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December 30, 2023
Unsurprisingly, federal prosecutors content to focus on sentencing rather than a second trial for Sam Bankman-Fried
As reported in this CNBC piece, headlined "Prosecutors say they will not pursue second Sam Bankman-Fried trial," the feds have officially decided it will not seek a second criminal trial for high-profile fraudster Sam Bankman-Fried. Here are excerpts from a lengthy piece that also previews the upcoming sentencing:
Prosecutors have decided not to pursue a second trial against disgraced FTX founder Sam Bankman-Fried. In a note to Judge Lewis Kaplan on Friday, the U.S. government explained that the decision to forego a second set of proceedings had to do with the fact that much of the evidence that would have been presented in a second trial had already been submitted to the Court during Bankman-Fried’s first criminal trial.
In November, following a month’s worth of testimony from nearly 20 witnesses, a jury found the former FTX chief executive guilty of all seven criminal counts against him following a few hours of deliberation. Prosecutors added that the Court could consider the hundreds of exhibits already entered into evidence during these proceedings when he is sentenced next year. “Given that practical reality, and the strong public interest in a prompt resolution of this matter, the Government intends to proceed to sentencing on the counts for which the defendant was convicted at trial,” continued the letter to Judge Kaplan.
Bankman-Fried, the 31-year old son of two Stanford legal scholars and graduate of the Massachusetts Institute of Technology, was convicted of wire fraud and conspiracy to commit wire fraud against FTX customers and against Alameda Research lenders, conspiracy to commit securities fraud and conspiracy to commit commodities fraud against FTX investors, and conspiracy to commit money laundering. He had pleaded not guilty to the charges, which were all tied to the collapse of FTX and its sister hedge fund Alameda late last year.
The second trial, which had been slated to start in March, addressed an additional set of criminal counts, including conspiracy to bribe foreign officials, conspiracy to commit bank fraud, conspiracy to operate an unlicensed money transmitting business and substantive securities fraud and commodities fraud.
Damian Williams, the U.S. attorney for the Southern District of New York, wrote in the letter to the Court that “a second trial would not affect the United States Sentencing Guidelines range for the defendant, because the Court can already consider all of this conduct as relevant conduct when sentencing him for the counts that he was found guilty of at the initial trial.”
So now, the question of prison time goes to Judge Kaplan. The sentencing date is March 28 at 9:30 a.m. ET. The FTX founder faces more than 100 years in prison....
In this case, the statutory maximum sentence is around 115 years, but there is a sliding scale for sentencing according to recommended guidelines given the scale of the crimes and the criminal history of the defendant. “I wouldn’t be surprised if SBF spends the next 20 or 25 years of his life in prison,” Renato Mariotti, a former prosecutor in the U.S. Justice Department’s Securities and Commodities Fraud Section, told CNBC.
“The sheer scale of his fraud was immense, he was defiant and lied on the witness stand, and Judge Kaplan had very little patience for his antics while out on bond. He will have more sympathy for the victims than he has for Bankman-Fried,” added Mariotti.... “The federal sentencing guidelines will likely be sky high, but they are just that — guidelines — and the judge is required to consider all of the circumstances surrounding SBF and his offense,” said Mariotti....
Former Assistant U.S. Attorney Kevin J. O’Brien, who specializes in white-collar criminal defense in NYC, thinks Bankman-Fried has the chance at a shorter sentence, telling CNBC, “Since judges have discretion even under the Guidelines, I believe his sentence will be in the 15 to 20 year range.” O’Brien added that given Bankman Fried’s age, he thinks the judge will be inclined to give him a chance to live a full life after his prison term.
Bankman-Fried’s case has been compared with that of Elizabeth Holmes, founder of medical device company Theranos, which ceased operations in 2018. Holmes, 39, was convicted in early 2022 on four counts of defrauding investors in Theranos after testifying in her own defense. She was sentenced to more than 11 years in prison, and began serving her punishment in May at a minimum-security facility in Bryan, Texas.
But former federal prosecutor Paul Tuchmann tells CNBC that he expects harsher terms for the former FTX CEO, because “the amount of losses that were suffered is simply staggering.” Tuchmann compared Bankman-Fried’s case to that of Bernie Madoff, who was sentenced to 150 years in prison. “Like Madoff, a lot of the losses in this case were small investors. They weren’t all large institutions, which really tends to create a greater pressure for a significant sentence,” said Tuchmann.
In this setting, it seems worth noting, yet again, how federal sentencing rules function to sometimes make jury trials and constitutional jury trial rights inconsequential. Here, the US Attorney accurately notes that the federal sentencing guideline range will be calculated to produce the exact same recommended sentence with or without a trial and guilty verdict on additional charges. (Indeed, under current federal sentencing rules, even if SBF were acquitted on all counts in a second trial, the guideline calculation could be the same.) Why bother with a second jury trial if the government can seek and secure punishment, under a lower standard of proof, at sentencing for the first convictions?
Prior related post:
December 30, 2023 at 10:58 AM | Permalink
Comments
Doug --
It's all true! Those nasty federal prosecutors are "depriving" (to use that word in the oddest sense I think I ever heard of) SBF of his "opportunity" (ditto) to get yet more time for being a thief and sleaze of breathtaking proportions. How could they!!!??? It's an outrage, I tell you.
Or, to be slightly more serious: When you have thievery on this gargantuan scale, sentencing gets to the point of diminishing returns. This is not the fault of sentencing law. It's the fault of the fabulously ambitious scope of the defendant's cheating. So the Biden Administration (not a group I'm a big fan of) makes the sensible decision to take a pass on the costs of a second trial and save the taxpayers some bucks, knowing that Mr. Nicey here is already headed to the slammer for a long, long time -- as he full well deserves to be.
Of all the crooks the defense side could and does stand up for, this one seems to be quite an odd choice.
Posted by: Bill Otis | Dec 30, 2023 11:33:18 AM
20 years seems to Judge anon1 to be "sufficient but not greater than necessary" to achieve the goals of sentencing.
Posted by: anon1 | Dec 30, 2023 1:58:15 PM
Bill, principles do not "pick and choose" sides. They are either defended or they will erode. If someone cares about the principles behind the right to a jury trial, they should defend those rights for everyone or expect them to be eroded. Free speech rights, freedom of religion rights, gun rights, property rights and all sorts of other rights work the same way.
Posted by: Doug B | Dec 30, 2023 9:38:55 PM
He got his jury trial. He, like Mrs. Holmes, simply wasn't believed. This isn't even a case of a retrial after a hung jury ((which I actually do believe should not be allowed).
It seems so very interesting that taking the offender's entire circumstances into account seems fine, up to the very moment those circumstances cut against the criminal.
As I have said for many years now, I wish that felons faced an automatic death sentence with it up to each individual offender to plead why they, in particular, are undeserving.
Posted by: Soronel Haetir | Dec 31, 2023 4:06:45 PM
Doug --
For public officers, including but not limited to prosecutors, principles are indeed important, but not the only guides to behavior. There are, for example, higher-ranking public officers, your constituencies (including the bench and the legislature), your budget, the press of other, sometimes more urgent cases, and more. The principle you support would, taken to its logical conclusion, counsel going to trial whenever you have an indictable case. I never heard of a prosecutor who did that.
One easy scenario will suffice here. Suppose Defendant X is going to get a big, fat sentence as a result of his first conviction (like SBF), but before his second trial comes up, he's diagnosed with terminal cancer and has, it's reliably estimated, six months to live. It would be pretty much pointless, and probably cruel as well, to go forward with the second case, no matter how strong.
Someone out there once said, "The life of the law has not been logic: it has been experience." Experience teaches that, once the basic goals of prosecution have been satisfied, you move on the the next 500 cases in need of initial adjudication.
It would be no skin off my back if SBF got tried again, and in a world of infinite resources maybe that would be the thing to do, but in this world, the law of scarcity and diminishing returns to scale counsels moving on.
Posted by: Bill Otis | Dec 31, 2023 5:43:35 PM
Bill, I do not disagree with much of what you say, though I'd be inclined to describe as a "principle" the idea that state powers and resources should be applied in efficient and effective ways. But the principle I had in mind here is the principle that our Framers' seemed to embrace robustly, namely that the state's power to punish is to be based on jury (rather than judge) determination of allegations contested by the individual. (Or as Justice Scalia put it in Blakely: "There is not one shred of doubt ... about the Framers' paradigm for criminal justice: not the civil-law ideal of administrative perfection, but the common-law ideal of limited state power accomplished by strict division of authority between judge and jury.")
Because SBF has already been convicted on multiple charges by a jury that carry 100+ years of prison time, there is not in this case much "juice" in the Framers' jury principle. But, again, principles should matter to the state in all case, lest they be subject to long-term erosion. That does not mean DOJ should pursue a second trial, but it might well mean that they do not seek punishment based on conduct/charges that were not already proven to a jury in the first trial.
Posted by: Doug B | Dec 31, 2023 7:34:28 PM
Doug stated: “ If someone cares about the principles behind the right to a jury trial, they should defend those rights for everyone or expect them to be eroded. Free speech rights, freedom of religion rights, gun rights, property rights and all sorts of other rights work the same way.”
This is off topic, but what do you think of first and fourth amendment auditing? Have you ever seen it?
Bill, too, if he wants to chime in.
Posted by: TarlsQtr | Dec 31, 2023 11:34:17 PM
Had to look up what you are talking about, Master Tarls. If you mean efforts to film public servants to ensure they are doing their government jobs properly, I am always inclined to be supportive of efforts to bring added transparency and accountability to all sorts of government work. (One reason I generally trust the exercise of discretion by judges more than by prosecutors is because judicial discretion is generally exercised in open court (and sometimes on video) and subject to appellate review, whereas prosecutorial discretion is often exercised only behind closed does and is not subject to review or even discovery.)
But aggressive efforts to ambush/surprise folks at work and then engage in a kind of "gotcha" journalism strikes me as potentially problematic, especially in a era in which it is hard to tell real videos from deep fakes and always easy to edit even real videos to drive a pre-determined narrative. And if these efforts are focused on police, I worry that it might make it even harder to recruit good people into a very hard job.
Posted by: Doug B | Jan 1, 2024 8:59:04 AM
Doug and TarlsQtr --
"But aggressive efforts to ambush/surprise folks at work and then engage in a kind of "gotcha" journalism strikes me as potentially problematic, especially in a era in which it is hard to tell real videos from deep fakes and always easy to edit even real videos to drive a pre-determined narrative. And if these efforts are focused on police, I worry that it might make it even harder to recruit good people into a very hard job."
I agree with this probably more than I've agreed with anything I've read in the blogosphere.
We're off to a good New Year!
Posted by: Bill Otis | Jan 1, 2024 10:07:45 AM
Doug, Bill,
I think most of your fears are unwarranted. People can “deep fake” videos, but it wouldn’t make sense. With the ubiquity of police body cams and street cams, these are seldom recorded only once. Most auditors also get the police body cam footage after filing public records requests. Technology can make deep fakes, but also can detect them pretty easily. A deep fake will not help you in court.
As far as “ambush,” I think you’d have to describe it. Stress testing the system is not an ambush, IMO. We have gradually given up our own rights, making it nearly impossible to even get into our government buildings without doing so. Should we have to allow our IDs be seized to get into one? It’s one thing to search me (probably legal). Taking my ID is a violation of the 4th and makes no one safer. How many significant attacks on government buildings have there been from the inside that would have been prevented with an ID? They historically occur from the outside via bomb or plane. Should people be thrown out of these buildings for filming, a guaranteed right under 1A?
Shouldn’t the cops, and us, know our rights under a Terry stop?
Finally, the police is the first place our “efforts” should go. They can seize and incarcerate me. Instead of giving them break after break when they violate my rights, they need to be held accountable. I’d imagine a couple of lawyers would agree to that. If we can’t keep good police because it’s a hard job, then train and pay more to attract good police. That’s better than paying bad ones any amount.
If you get the time and have the inclination, watch the one below. Some of these auditors can be complete bellends, but this is a good one. It’s not a severe case (I’ve seen completely unlawful arrests where civil rights cases were filed and won), but probably an “average” one.
https://youtu.be/AsxNf54ep1Q?si=Aj_i5Dcm5JCR6GFX
Posted by: TarlsQtr | Jan 1, 2024 7:22:46 PM
It should come as no surprise, given my long-standing and oft-stated views on crime and punishment that I believe police should be held to an incredibly high standard of behavior and should get absolutely no breaks for violating those standards.
That we allow so many officers to behave so shamefully is, in my opinion, one of the greatest failings of our CJ system.
Posted by: Soronel Haetir | Jan 1, 2024 11:55:51 PM
Master Tarls, just watching the start of the video you link gives me the impression that the "auditor" is mostly looking for trouble and hoping to antagonize in order to produce viral videos (where he sells ads as well a t-shirts and mugs). "Ambush" may be too strong a word in this context, but this seems like a "gotcha" effort from the get-go. If this is an example of a "good one," I wonder just how kinds of efforts will help enhance our rights and liberties.
Meanwhile, given the stream of threats that government officials from SCOTUS Justices to town clerks to school board officials now face from extremists across the political aisle, it seems reasonable that some government offices ask for ID to seek to keep track of who is coming in and out. I sense that all US prisons and jails, where so many persons are seized and incarcerated, check IDs for those coming to visit. I also assume there are restrictions on how "citizen journalists" can film our tax dollars are being used to imprison. Measures should be reviewed for reasonableness, but I wonder if "gotcha" videos are likely to help make government act more reasonably.
I agree that police and all government officials should be held accountable for misdeeds, and that's why I'd like to see far greater restrictions in tort immunities.
Posted by: Doug B | Jan 2, 2024 12:45:28 AM
SH,
I believe in “incredibly high standards,” but have to disagree about “no breaks.” The law is immense and complex, with our own SCOTUS justices taking several months, with a ton of help from clerks, to decide issues of law that the police have to decide on immediately. Merely deciding probable cause to pull someone over can be iffy.
If you are talking specifically of malfeasance, I’m more inclined to agree but even that is difficult. Even with body cams, it’s not always easy to read a cop’s mind even if others scream “tyrant” from the get go.
Doug,
Well, you judge the actions of police all the time and get paid for it. So? Does it make what you do any different because you do it in a DEI incubator? Jane Pawley (aging myself) gets paid. I don’t think payment makes a difference. This guy sends letters of commendation to Chiefs for officers who do well. It’s not all pointing out the bad.
The rest baffles me and sounds very “big government.” How many town clerks and school boards have been physically attacked? Would it matter if they knew the person’s name before? Nope.
As Ben said, “Those who give up liberty for safety deserve neither.”
Question. Should the police be able to walk up to people in the street and demand ID from everyone? It’s safety, you know. There are a lot more bad things occurring in the streets of our cities than in those cities’ county clerk’s office. They are already secure, with metal detectors at entrances and cameras everywhere. They are also manned by armed police or security personnel. Seizing my name does not add to it.
These public building fortresses are not about safety. My theory is that COVID really accelerated this trend. Our public servants decided they liked walking around these kingdoms without being bothered. Make it as difficult and troublesome to come in as possible so that the public will mail, call, or use the internet to get things done.
Voter ID has been a huge topic. Funny how the SAME people saying it is racist and an infringement on voting rights are OK with it to get public services and redress our government.
The status of the law for filming is this. One can film anywhere in public, as there is no “expectation of privacy” there. One can film you and your house, if on public property. One can also film in public buildings wherever the public has access. The limitations are bathrooms and in “Restricted Areas,” although you can film the inside of a restricted area if you remain in the publicly accessible areas. If the workers want privacy or are working with private information, it is their responsibility to close the door, keep information off the desk, etc.
One more thing. Why did you put “citizen journalists” in quotes? You do realize that the 1A was written explicitly for them, right? That we are all journalists? After all, Thomas Paine was nothing but an opinionated guy with a printing press. You don’t think that deserves protection?
You surprised me. I expected disagreement with Bill, but you are the big government power guy after all. I guess the little guy needs to “Shut up, sit down, and listen to their betters in government.”
Posted by: TarlsQtr | Jan 2, 2024 1:49:49 AM
Doug,
You say, “…[security] measures should be reviewed for reasonableness…”
Who gets to do it? Courts? Or, are you going to just allow the mayor to rubber stamp a measure as “reasonable” that he had a hand in creating?
If the courts, how does a case get there?
Posted by: TarlsQtr | Jan 2, 2024 1:55:33 AM
Could it be that the DOJ doesn't want the exposure relating to the politicians that were funded by SBF?
Posted by: federalist | Jan 2, 2024 11:11:13 AM
https://hotair.com/david-strom/2024/01/02/sbf-charges-dropped-proves-system-is-rigged-n602095
Worth reading.
Posted by: federalist | Jan 2, 2024 11:16:32 AM
TarlsQtr,
I mostly believe in no breaks for the enforcers because of how I advocate for extremely limited breaks for offenders in general. Officialdom crossing the line easily meets the equivalent of a couple hundred dollar theft where I believe execution warranted.
Posted by: Soronel Haetir | Jan 2, 2024 12:02:42 PM
Master Tarls, you hit many scattered issues. Trying to respond to some:
1. Whether/how someone is paid impacts their actions and accountability. When "citizen journalists" are paid based on clicks/attention that depend largely on outrage, we should expect them to be more outrageous. (I put the term in quotes because it is not clear many of these citizens are committed to journalism. But the 1st A protects all.) Of course, all "reporters" are subject to biases, including those driven by how they get paid, so it is sound to question all the motives and goals of all media. But the video you flagged struck me as being about getting a rise out of government actors rather and about trying to encourage respectful behaviors. Again, maybe there are example of "audits" improving government functioning, but the one you flagged did not seem like something I'd want everyone doing.
2. There are lots of reports/data of increased violent threats against all sorts of public officials, which surely makes their jobs harder and more stressful. If you were subject to increased violent threats at work, would you take extra precautions? I am not troubled when government officials do as long as they are reasonable --- which can and is judged by courts (and which almost everyone will have standing to challenge in court if any security measures produce any hardships).
3. I have generally been supportive of voter ID for voting (and I believe states must make it very easy for everyone to get an ID if required it for voting). SCOTUS spoke to some aspects of when police can ask for ID in a Terry stop in Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004). I am not a 4th A expert on the nuances of government asking for ID, but it seems a pretty minor intrusion in most settings. And, as I see it, broad criminal laws (like those driving the "war on drugs") has fostered and immunized a lot more "seizing" and questionable govt behaviors than check/ask for ID policies. The stop-and-frisk activity of NYC police that was eventually found unconstitutional was not fueled by ID inquiries, nor have been stash-house stings and tens of millions of wasteful weed arrests.
4. I am always eager for the little guy to stand up for his rights (and eager for the little guy to be left alone unless suspected of harming others). But I think the little guy can and should seek to stand up for this rights in a respectful and thoughtful way (though, obviously given how I run this blog and contrary to Bill's perferences, I also think anonymity can and should sometimes be respected). So I am eager for the little guy to be able to make videos and write blog posts and ask hard questions about all sorts of things the government is doing. But I tend to view uneccesary antogonism and aggression as often counterproductive to advancing the rights of the little guy (and I would cite parts of both the BLM movement and the MAGA movement as examples in partial support of this view).
Posted by: Doug B | Jan 2, 2024 12:03:15 PM
Doug,
1. Interesting. So you admit that the articles and studies you post here are less credible because the authors, magazines, and journals get paid? In doing so, they are pressured to meet a demand which, in the legal world, would be left wing university professors, lawyers, and law students? I’ll remember this the next time you put up such drivel from “researchers.”
As far as media, “If it bleeds it leads,” is a concept far older than YouTube.
As far as “getting a rise” out of people. This guy speaks to no one unless spoken to. He merely walks around public buildings with a camera until confronted. The public servants get a rise out of themselves. If public servants, including police, are ignorant of or ignore our rights, that’s a problem, no? My experience with him is that he conducts himself in the same manner he is treated.
2.Threats? You are merely repeating yourself rather than engaging the obvious, one is much less safe on the street than working in a government building. Metal detectors, armed police and security, cameras everywhere, etc.
As I asked before, what does my ID tell you? If one made a threat and gave his name, I sure as hell hope he was arrested. If no name was given, what advantage was gained by law enforcement taking it at the front door of a building? The person will be disarmed and watched on camera the entire time.
3. You were non-responsive.
The paragraph was telling though. Big Guv Doug is perfectly willing to allow rights to be seized as long as it is incremental and those seized are rights he feels less important.
4. I have a legitimate question that you skipped right by.
Should the police be able to ID every pedestrian in a high crime neighborhood with no probable cause, or even reasonable suspicion? That’s exactly what you advocate for in much safer public buildings. That opinion alone, in my belief, would keep you from ever reaching the federal bench if I had a say.
5. Another question you ignored.
You said policies should be reviewed for “reasonableness.” Who gets to do it? The same people who put it in place? The courts? If so, how do cases get there?
Posted by: TarlsQtr | Jan 2, 2024 9:32:50 PM
Master Tarls:
1. If a salesman gets paid only by commission or a reporter gets paid only by clicks, I worry more about the sales job/efforts to get click than if he is getting a fixed salary. (And in some settings, I also worry about the motives/goals of folks selling/reporting as a "volunteer.") Everyone has biases --- some clear, some hard to see; some conscious, some unconscious --- and everyone should consider all potential biases in all settings. (All lawyers and law professors have a host of biases, often starting with a commitment to the rule of law, but also extending to other matters profound and preverse (see, e.g., commitment to precedent and to legal citation form).)
What is this guy achieving by "walk[ing] around public buildings with a camera until confronted" beyond getting a video to market? Would you never have a cross moment with a person who made an effort to follow you around in public with a camera and eagerly sought to post your worst moments on the internet? I am not seeking to condemn all "audits" or the guy behind what you flagged, and I support using all sorts of media in order to keep government transparent and accountable. I just do not consider walking around "with a camera until confronted" as the ideal means to do so. But if you and others are eager to support these efforts with clicks and dollars, I certainly have no deep concerns as long as the audit behaviors remain lawful and at least aspire to be respectful and not "gotcha" efforts.
2. You seem to recognize that people are safer (and surely feel safer) in buildings with security measure. Most large private law firms and other businesses are in buildings requiring a sign-in as security. Many other private entities have ID checks for entry. Do you think these private folks are crazy to see some value in asking for ID?
Bill questions people who comment here without a form of "showing ID" because, I surmise, he trusts people who seek to hide their identity less than he trusts others. That various private and public entities adopt a similar view is understandable to me (even though, as you know and benefit from, I do not enforce a "show ID" approach that Bill would prefer here). But if you want to campaign against ID checks, would you start with airports, where the ID check really seem to slow lots of people down a lot more than in government buildings?
3. Not sure what you think I was not responding to, but I was adressing the suggestion of ID inconsistency. I am generally comfortable with allowing a government to require showing ID before exercising the right to vote and I am also generally comfortable with allowing government to require showing ID before exercising the right to enter goverment buildings, especially if there is a reasonable basis to have secuity concerns about activities there. (Eg, I am currently near the Lincoln Memorial and the Pentagon; I'd be more troubled by an ID check at the former than the latter.) I do not see asking for ID as a serious seizure of rights in this setting, though I'd like welcome hearing more about why you think this is more of a concern than government imprisoning people for growing a plant on their property or looking at certain pictures.
I get that you think requiring ID might be a waste of time or a dumb idea, but do you really think a prison or a military base or a polling place requiring an ID for entry/actiity is "seizing" rights any time an ID is requested? Perhaps because I make little effort to hide who I am or what I say and do, my biases may keep me from seeing real harm in ID checks. Perhaps you can help me better understand the harms you see.
4. I don't think police in the US ought to be able to demand ID from people in public absent compelling special needs or particularized suspicions. And I am not advocating for ID checks anywhere, I am just explaining that they seem like quite minor matters to me, and I surmise many private and public actors (including Bill) see connections between providing a form of ID and trustworthiness. Do you think it is irrational for Bill and other private and public actors to adopt this view and sometimes act upon it?
5. Please make the effort to read more carefully, as I stated quite clearly before (see sentence 3 in point #2): "I am not troubled when government officials do [take security precautions like ID checks] as long as they are reasonable --- which can and is judged by courts (and which almost everyone will have standing to challenge in court if any security measures produce any hardships)." As an account for why some "audits" worry me, I wonder what you might think of this minor mistake of yours being turned into a viral video without the context of all your prior cogent comments?
Posted by: Doug B | Jan 3, 2024 12:21:04 AM
Doug,
1. Your profit motive is no less than a salesman, reporter, etc. What do they say, “Publish or perish?” Do you think a job or promotion seeker at your law school is more or less likely to get a job writing papers against taking Trump off the ballot for “insurrection?” How many of your colleagues voted for Trump? Think about this, as I know you can’t answer but, “Are your colleagues more likely to vote for a RBG or Thomas clone to get a professor job there?”
Talk about profit motive. And studies have shown that people “click” on articles because they agree with them. Thus, these journals put them out and you put them on your blog, all headlined with something like, “over incarceration,” as if it is fact rather than debatable.
Talk about click bait! It’s law professor porn hub!
2. First, I shouldn’t have to explain the difference between private and public buildings. Do I?
Second, you’re a sly bugger. There is a huge difference between SIGNING IN and being forced to show ID. Sign ins are usually to keep track of the number of people in a building, not the who. I can sign in as “Stu Bidaso” if I want. That’s a dishonest “lawyer” move on your part. Perhaps we need only to ID the bar everywhere?
I’d love to see some data of your claim that a “majority” of “…businesses,” demand you sign in. I sincerely cannot remember a single time in my life I’ve had to do so. Why? Because businesses are answerable to the public. Make it a PIA to go into Wal-Mart and people go to Target. We have no such choice with government buildings, so after several generations you still cannot go into a DMV and return plates in under an hour without bitchy service. They don’t care. They are the government and we are the serfs.
I go into professional sporting events and heavy metal concerts with thousands of people all the time. No signing in and no ID unless I buy a beer, a choice I get to make.
3. I am giggling, ok, laughing, as Mr. Law Professor guffaws about taking an identity being a “seizure” when the courts have used the exact word in reference to it! It includes the person when stopped, his identity, bodily fluids, in addition to tangible things like a gun.
And, yes, a prison or military base is “seizing” your identity, but are doing it lawfully. Let me take you back to law school. There are three kinds of public forums; traditional, designated, and nonpublic forums. A prison is a nonpublic forum.
A government owned office building is a traditional public forum. Our rights are protected in them, while we give up some rights in a nonpublic forum.
4. So, ok, you wouldn’t like universal ID checks but it doesn’t bother you much. That’s (very) slightly better, I guess. Still unbecoming a law professor, though.
And, again, what public building attacks have ID checks prevented? Why is a building more or less safe knowing a name when they have already gone through weapons checks, there is armed police officers or security, and there are cameras everywhere?
What’s the rationale?
Posted by: TarlsQtr | Jan 3, 2024 2:44:10 AM
Master Tarls:
1. I am pretty sure I have said repeatedly in this space that there are biases (political and many others) in the law, in the legal academy and elsewhere in higher education and legal intututions. Indeed, two major progressive movements over the last 100+ years in law and the legal academy --- legal realism and criticial legal studies --- have stressed there is little "fact" here, just opinions, biases and power structures. I mostly agree with that view and it seems you do, too. So I am not sure what straw man you think you are attacking in this context.
2. I sought to refer to "large private law firms and other businesses" in big office buildings with desks before big elevator banks. Sorry to be unclear. And I fully agree private entities are often much more responsive to customers (who can all "vote" with money every day) than are public entities responsive to citizens (only some of who can vote and only relatively rarely). But if you really are a small government guy, why do you elsewhere seem to support so much punitive state public power to punish with so little accountability? Are you keen on governments imprisoning folks for growing a plant or looking at certain pictures? Are you suggesting you do not think the state should be able to require drivers' licenses? That all seems a much bigger deal than sometimes asking for ID to enter a building, but I'd like to hear how you see this differently.
3. I do not understand what you are talking about here. I thought our focus is showing ID when seeking to, say, visit FBI or DOJ offices in DC. I do not understand what that has to do with being "stopped" or "bodily fluids" or "tangible things like a gun." Obviously, a physical/forced stop, not to mention taking bodily fluids or tangible possessions, is very different than just asking for ID. Courts call this other stuff a "seizure," but I am not aware of ONLY a request for ID being deemed a seizure by courts. (I'm not a 4th A expert, so maybe you can point me to cases using that language for just an ID check). I believe a famous 9th circuit case some years ago upheld TSA requests for ID as not a "seizure," Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006), but I am not sure if that's still good law. Again, though, we need to be clear about what's being discussed, and I thought it was only an ID check to get into a building.
Can you better explain what you think are "lawful" ID checks and unlawful ones? Your mention of "forums," I believe, comes from 1st Amendment law, not 4th A law. Are you now contending asking for ID is a 1st A problem? I really am confused by what you are claiming and wonder, eg, whether you think FBI/DOJ buildings are more like a prison or an office building. Is the US Capitol an office building? (I don't think the US Capitol requires ID, but they do make you stand in a DMV-like line to take a tour.) How about the White House? The Supreme Court? Sounds like you are okay with ID checks for some govt building, but not others. Why, if you think they are always pointless? Are you suggesting 1st Amendment law is the way to sort this out?
4. As I noted before, Bill and many private and public actors (including Bill) see connections between providing a form of ID and trustworthiness. Also, folks committing crimes and doing other bad stuff typically work harder to stay hidden than people with nothing to hide. So I will ask you again: do you think it is irrational for Bill and other private and public actors to be suspect of anonymity and sometimes act accordingly? Your main point seems to be that there are lots of other means to security. Agreed. But if a public (or private) entity wants to use an ID check and uses it on everyone equally with transparant and accountable rules --- whether that's TSA or the Pentagon or DOJ or BOP --- I do not see that security choice as inherently or deeply problematic. Yet again, because I make little effort to hide who I am or what I say and do, my biases may keep me from seeing real harm in ID checks. You hide you name here, so you obviously see value in staying hidden. Hide away and advocate for the right to stay hidden, but modest ID checks do not trigger my big government concerns when I see our governments using its punitive powers in so many more extreme and disruptive and disparate ways.
Posted by: Doug B | Jan 3, 2024 12:10:27 PM
1. Except you don’t appear to discount the work posted on this blog because of the bias in the legal profession. In fact, you push it using words and phrases such as, “over-incarceration,” “machinery of death,” etc.
And the work of civilian journalists is at least visible for all. I don’t get to see the number massaging in the journal articles you post.
2. Some of your questions are just weird non sequitur.
Driver’s license? I don’t own the road and voluntarily gave up my right to the privacy IF I break the law and am pulled over lawfully.
Pot is a plant like a bullet is a piece of lead. Silly.
And, accountability is exactly what I’m pushing for. It’s why I like body cams and why people should be able to tape government workers in their duties. I am held accountable by all of the public cameras in a public building. Why not they being held accountable by mine?
If you bothered to ask, I’m huge on accountability in our government and hate corruption. Corrupt cops and public servants should get harsher punishment, not fewer.
Your error is living in the usual dichotomy of “pro criminal v. pro government.” I’m pro neither and only tolerate the one as a necessary evil to protect me from the other.
3. Well, we’ve jumped around a little. I’m talking both ID demands and the ability to be in our public buildings monitoring with cameras.
As to the second paragraph…
The 1A and 4A are intertwined in these cases. The police ignore the 1A by not allowing people to film or even be in a building. To do so, they will say it is “illegal,” which is where the types of public forums come in. It’s not illegal, other than in closed forums like a prison. They are then using the fake illegality (usually trespassing )of filming to demand ID. One does not have to identify themselves or provide ID unless a law has been broken. I hope that clears it up some?
If I am walking into a building and the LEO asks for my ID to enter, he has no right to it. It’s his right to ask but not deny me entry. How can you deny someone entry to a building he has legitimate government business in for lack of ID? He can’t fill out a FOIA? Apply for Medicaid? Go to social services?
4. If people want to adjust their behavior around an anonymous person, so be it. We, as individuals, have that right.
The government is not the people. Just as you see no problem in giving up your ID, I see it as they not needing or having a right to it. And, again, why do they need it? There have been no shootings prevented in public buildings because of an ID check. The lack of such shootings come from the weapons checks and security.
Posted by: TarlsQtr | Jan 4, 2024 11:33:25 PM
Master Tarls: 1. I present here data/articles/reports from all sorts of sources ranging from government agencies, reporters, practicing lawyers, students, legal academics, sociologists, advocacy groups, think tanks and many others. I try to provide the names of the authors/publishers with links to original sources. I try generally to report, not "discount," but I'm sure I have biases/inclinations as to what pieces catch my interest (and that I have time to platform). I aspire to give readers context and links so they can reach their own opinions (and most data articles report their data analysis methods if/when you click through to the full report). Do most of the citizen journalists provide links to their full unedited videos? The link you provided before seemed heavily edited to me, and I did not see where I could get an unedited version.
2. I have perceived you as a big government guy because you seem a fan of the government's waging of the war on drugs (which has relatively little transparency and accountability) and the goverment's use of extreme prison terms (which also have relatively little transparency and accountability). Do you support keeping public agents accountable --- perhaps through tort actions --- for all the violations of constitutional rights that take place in our drug enforcement efforts and our prison/jail systems?
3. Why should prisons be a "closed forum"? Prisons/jails are where governments are given the greatest authority to deprive citizens of the greatest numbers of rights. And prison deaths and other harms (eg, rapes by guards and other inmates) that citizens suffer there often seem largely the product of a lack of transparency/accountability. I assume one would say that there are "good reasons" prisons need to be closed. Okay, but I surmise that is the same thinking that leads to the closure of all sorts of other government buildings. Should we not ask for ID when I want to visit someone in prison? Or when I have a scheduled meeting with someone at DOJ? Most government services can be accessed online, but I cannot visit an incarcerated relative that way.
4. I agree that people have a right to be anonymous, but do they have a right to get government benefits anonymously? Should I be able to apply for Medicaid anonymously? How about welfare? Should I be allowed to apply to a state university anonymously? Should illegal aliens and/or homeless people have an absolute right to enter public building anonymously and squat there indefinitely?
Please understand, especially since you hide your name on this forum, I get that you see more value and virtue in hiding identity (and avoiding a certain type of accountability) than Bill and I do. But I suspect an ID check in buildings may deter some persons (eg, non-citizens) bent on various sorts of mischief from entering those buildings. Maybe not, and you certainly are free to advocate for laws that make it easier for more people to stay hidden. But, as I said before, compared to other government intrusions, this strikes me as a small matter (and one that few would want to eliminate from, say, the TSA or prison systems).
Put into a question, I guess the issue here is whether our governments must/should ALWAYS trust the completely anonymous person as much as an identified citizen in EVERY public place. If you think the answer is, "well, not ALWAYS in EVERY place," then I surmise we just have a small difference on the particulars of the value of letting people hide who they are in some public settings.
Posted by: Doug B | Jan 5, 2024 10:46:05 AM
Doug,
1. You present left wing data, articles, etc. Granted, there aren’t a ton of balanced or articles from the right as the field is infested with leftists, but still…
2. Well, we now know you are the big government guy.
I am anti drug, not pro big government. Law enforcement is one of the few principal powers given to the government in the constitution. Drugs do great harm to society and I don’t agree with your premise about “extreme” sentences. A life term for a guy poisoning hundreds of kids sounds about right.
3.Prisons should be a closed forum because you and others who have spent next to zero time in one have no idea about the the infinite number of security concerns. I think you can figure out why IDs are required to visit pretty easily.
4. Of course, you have to provide ID to apply for Medicaid. You also have a choice to not do so and are not giving it to law enforcement. Buildings requiring IDs are not giving you the choice.
Perhaps the person is a police PIA going in to request body cam footage via public records request. Why should the front desk officer get that information?
As to your final question, the government should have to follow the law regarding anonymous people. If the person has not given probable cause of law breaking, they don’t get it. There is no law against requiring ID on your blog.
Why are you so willing to give the government more power over us? Is it just your big government ideology or do you have a legal argument?
You can talk about drug wars and big government, but you’d be wrong. The government’s size is dictated by the size of the problem. The real fight for small government begins at the individual level and individual rights. I have the right to walk around and not hear , “Papers please,” from government officials wherever I go.
Posted by: TarlsQtr | Jan 6, 2024 6:17:34 PM
Doug,
For example, why are pieces like these so rarely part of this blog?
First, is about cops being murdered up 60% since 2018. The second a meta analysis indicating little evidence of racial bias in sentencing. If it said the opposite, I’m certain it would be on your website.
https://national.fop.net/reportshotkilled112024?&ios=1&referer=#page=1
https://www.sciencedirect.com/science/article/abs/pii/S1359178923000927
Posted by: TarlsQtr | Jan 6, 2024 11:03:18 PM
Master Tarls: 1. I largely avoid blogging about policing because it is a huge area, not my expertise, and covered by many others. I'd not seen the meta-review piece you link, and I'll blog that today. I welcome you and others suggesting materials, though I can only blog a portion of what gets sent my way (which is often much more left of center than what I end up blogging). As I said before, I know I have biases/inclinations as to what pieces catch my interest and that I find time to platform.
2. Where do you get notion that "Law enforcement is one of the few principal powers given to the government in the constitution"? Especially re drugs, the Drys recognized a century ago they had to pass a constitutional amendment to give the feds power to crminally prohibit traffic in alcohol. Here are a couple of books (one forthcoming) that highlight how a (misguided) view of constitutional powers/history connected to drugs helps account for why governments have grown and grown and now have so much power:
https://wwnorton.com/books/The-War-on-Alcohol/
https://global.oup.com/academic/product/the-constitution-of-the-war-on-drugs-9780197685457?cc=us&lang=en&
The scope of criminal laws, and government powers generally, have grown massively in the last century. If you cannot see how that connects to the war on alcohol and drugs, you are just not paying attention. (One if many examples comes from the Harrisons Narcotics Act of 1914 that led SCOTUS to first uphold strict criminal liability in US v. Balint, 258 U.S. 250 (1922).)
I find it notable and peculiar that you see far more troubled by relatively rare ID checks -- but only sometimes -- than you are by how the drug war is waged or people being arrested and imprisoned for their possessions. Are you aware of many (or any) public policy groups actively assailing or seeking reform of modest building ID checks? I recall seeing an ACLU report on digital IDs and I know the Brennan Center and others complain about voter ID, but I am unaware of any groups advocating against building ID checks. That leads me to think your concerns are quirky and not widespread, but maybe you can point me to advocacy groups or reports that can help me better appreciate tif here are broad concerns about building ID checks.
3. You clearly see the value of an ID check in prisons due to "the infinite number of security concerns." But don't prisions have "armed police officers, security, and there are cameras everywhere"? Why then defend the need for the extra ID check to enter a prison, but not in other public buildings? Once you recognize that the extra security of an ID check is needed for some public buildings (despite "weapons checks and security" and cameras all over), you seem to undercut your assertion that ID checks serve no additional purpose. And since you believe an ID check serves an additional purpose in the public place you worked, why so quick to discount those who may think an ID check serves a purpose in the public place they work (at least to make them feel less threatened by the risk of people knowing they can stay hidden while causeing mischief in the building)?
4. You recognize that if you want government services, you can be asked for ID. Asking the government for information, even if public info, is still seeking a service. It does not seem unreasonable, when seeking government resources --- which includes information --- that the government asks for reasonable information that can include asking for ID. But, again, I am not one inclined to hide.
Again, Master Tarls, I sense you care a lot about being able to hide your ID (which you do here) because you see value in being able to act without a certain level of transparency and accountability. Fine, but I am generally a fan of transparency and accountability for the government and individuals, and I share Bill's view that people who are eager to hide are, generally speaking, more likely to be interested in mischief and/or evading accountability than people who are not trying to hide their ID. That the government generally adopts the same view when people seek to access government resources and spaces seems like small potatoes to me (and, seemingly, most others). But you be you ... even as you try to hide who you are.
Posted by: Doug B | Jan 7, 2024 11:49:01 AM
