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February 17, 2024

Lots and lots of weekend reads on lots and lots of different topics

Another weekend leads me to realize that a bunch of notable pieces have caught my eye, and yet I will not have time to blog about them in any detail.  Ergo, the time for a lengthy, and this time quite elclectic, round-up post:

From the Brennan Center, "What the Race for Santos’s Seat Says About Crime Messaging"

From The Bulwark, "How Marijuana Could Become a Political Issue in 2024"

From the Coloroda Sun, "Colorado could become the first state to require in-person voting in jails

From Fox News, "New York man who smuggled pythons into the US by hiding them in his pants sentenced to probation, fined $5k"

From the Kansas City Star, "Kansas hasn’t executed anyone in six decades. Kobach is preparing for that to change"

From Law360, "What Rescheduling Pot Would Mean For Criminal Justice Reform"

From the Marshall Project, "Medical Marijuana Is Legal, But Oklahoma Is Charging Women for Using It While Pregnant"

From The New Yorker, "What Do We Owe a Prison Informant?"

From NPR, "Violent crime is dropping fast in the U.S. — even if Americans don't believe it"

From ProPublica, "Oregon’s Drug Decriminalization Aimed to Make Cops a Gateway to Rehab, Not Jail. State Leaders Failed to Make It Work."

From Reuters, "Mass killer Breivik loses human rights case to end prison isolation"

From Stateline, "Drunken drivers would have to pay child support for victims’ kids under these laws"

From the San Francisco Chronicle, "A little-known feature of Prop. 47 has led to far lower crime rates for this group"

From Slate, "The True Crime Canon: The 25 best crime books, podcasts, and documentaries of all time."

From The Verge, "New bill would let defendants inspect algorithms used against them in court"

As always, I would welcome comments about any of these pieces/topics and especially about which ones might merit more attention through additional postings.

February 17, 2024 at 12:33 PM | Permalink


I like the article about them getting incarcerated voters to vote from jqil or prison! Some years ago, I heard a story about inmates in a New England state who went to Federal Court to get to vote in a Presidential election. Supposedly, a Federal Judge ordered the Secretary of State to deliver ballots to the jail/prison, so that the inmates to vote in the Federal elections only. The issue is that while state law may forbid felons from voting, it does not prevent pre-trial detainees from voting, but because they are incarcerated, they would normally have no way to get to a voting precinct.

Posted by: Jim Gormley | Feb 18, 2024 2:26:29 PM

The article from ProPublica about Oregon’s drug decriminalization reminds me of the commie line, “True communism hasn’t been tried yet,” when discussing how it has never worked.

Posted by: TarlsQtr | Feb 18, 2024 4:36:54 PM

Did you see this case?


Posted by: federalist | Feb 19, 2024 10:16:30 AM

or this one?


Posted by: federalist | Feb 19, 2024 10:16:55 AM

Thanks, federalist. I heard about the Wilson case, and it will be interesting to see how full 5th Circuit deals with the Heck issue. The Rudolph case is a high-profile reminder that (a) the federal rules of collateral review of federal convictions are messy, and (b) appeal waivers do not always function to preclude appeals. I wonder if Rudolph has the chutzpah to seek a sentence redcution under 3582.

Posted by: Doug B | Feb 19, 2024 12:55:06 PM

Rudolph absolutely should. Personally, I think he deserved the death penalty, but what do I know? There was a Minnesota arson case, federally prosecuted, where the federal prosecutors asked for leniency simply because the arson (which killed a man) was committed as a part of a BLM protest. Same with the lawyers who firebombed a car.

A very strong argument can be made that they just don't like Rudolph's politics. This is what happens, Doug, when prosecutors act like this. You can't drop hammer on Rudolph but then try to give people a break because they were upset about police violence and killed a person.

Posted by: federalist | Feb 19, 2024 1:28:39 PM

I have said it before and I will say it again, federalist: prosecutors are always influenced by politics.

According to the latest USSC data from FY 2023, in the US there were 15 times as many federal meth prosecutions/sentences than marijuana. How can one explain that disparity when illegal marijuana trafficking is far more widespread and public? POLITICS. Same story explains why there are nearly 3 times as many federal drug cases than gun cases. And why there are appeal waivers, and DOJ is aggressively seeking to limit reach of the sentence reduction authority expanded in the First Step Act.

(The irony in your BLM comment/concern is that the BLM crowd descends largely from academic movements like legal realism and critical legal studies that have long sought to open people's eyes to how law is alwasy understood and applied in political ways. Ergo, you are singing largely the same political tune as the BLM, you just do not like how the lyrics are now being written.)

Posted by: Doug B | Feb 19, 2024 2:03:24 PM

Politics may come into play, Doug, but there is no principled basis for hooking up one guy who killed and throwing the book at Rudolph.

And BLM is full of it.

Posted by: federalist | Feb 19, 2024 2:32:59 PM

For those interested in habeas cases, there was an interesting order earlier this month from the U.S. District Court for the Eastern District of Missouri in Lance Shockley v. Ryan Crews, Case Number 19-2520. Judge Clark denied the habeas petition late last year. This order was resolving the previously entered order to petitioner's counsel to show cause why they shouldn't be sanctioned for misrepresentations of the record and law in the habeas petition. Judge Clark opted against fining habeas counsel but he did find that they did violate Rule 11 and should be admonished for their conduct.

Posted by: tmm | Feb 19, 2024 5:22:19 PM

tmm --

Thanks. That would seem to be worth taking a look at.

Posted by: Bill Otis | Feb 19, 2024 5:42:47 PM

federalist, Rudolph was involved in series of bombings over multiple years which killed at least two people (including a police officer) and injured over 100 others, including the high-profile Centennial Olympic Park bombing at the 1996 Summer Olympics in Atlanta. That Rudolph was allowed by DOJ to plead guilty to avoid a capital trial is what seems like a quite the "hook up."

The GW Bush Admin was running DOJ at the time Rudolph got his sweetheart plea deal, and well over a dozen persons were sent to death row by the Bush-era DOJ for murders/actions seemingly much less serious than Rudolph's. (Arguably the closest comparable to Rudolph is Dzhokhar Tsarnaev, who was sent to death row by the Obama DOJ. Tsarnaev seemingly had more mitigating factors than Rudolph, but the Obama DOJ reportedly turned down a LWOP plea deal for him.)

That you think the Bush DOJ was "throwing the book at Rudolph" is great proof that everyone views crimnal justice administration (and especially sentencing outcomes) through the lens of their own personal politics. That's why I see you and the BLM crowd on the same page: you and the BLM crowd see all sorts of political (and racial?) elements in how the law gets applied, though many others do not see it quite the same way. I assume you and the BLM crowd have different views on the political factors in play, but you are both operating in the tradition of the critical legal studies movement, which stressed that law and its application often functions as a tool used by political/social establishments to assert/maintain power.

Posted by: Doug B | Feb 19, 2024 7:19:29 PM

I don't see how LWOP is a sweetheart deal, evah. My point is comparing the BLM guy who killed someone and Rudolph. Tsarnaev was treated more harshly than Rudolph.

Posted by: federalist | Feb 20, 2024 9:49:02 AM

What is your assessment/accounting, federalist, for why Tsarnaev was treated more harshly than Rudolph by DOJ? Is it "politics" or something else in your view? Should Tsarnaev have one of those equal protection claims you used to prattle about?

As for Rudolph's deal, it seems pretty sweetheart when there was seemingly no dispute about guilt for multiple capital crimes and no obvious mitigating circumstances. I have always assumed the feds cut him a deal to minimize attention around the FBI's harmful allegations surrounding Richard Jewel. DOJ being eager to cover its mistakes (eg, Ted Stevens, Jeffrey Epstein) is a version of "self-serving politics" that may explain lots of suspect actions.

Which "BLM guy" are you referencing? Did he kill two people and injury 150 more in separate bombing incidents and then hide from prosecution for 5 years?

Posted by: Doug B | Feb 20, 2024 11:41:02 AM

Doug, that certainly is possible re: Jewell. And I am on record stating that defendants aren't entitled to cosmic fairness. But with the BLM riot arson death and the lawyers who firebombed a car, the DOJ appears to have gone lenient merely because there was sympathy for the politics of the perp. That's a problem, whether you want to obfuscate or not. Personally, I would have sought death for Eric Rudolph. He is an evil killer. But to say LWOP is a sweetheart deal is just sophistry. And to deny that some romanticism about BLM protests didn't lead to good deals given to the Minnesota arsonists and the Brooklyn firebombers is laughable, as is the attempt to lump it in with the inevitability of some political considerations in prosecutions. The problem, of course, is how much and the kind of political considerations at play.

This should be obvious to all.

Posted by: federalist | Feb 21, 2024 11:30:55 AM

federalist: we agree on "the inevitability of some political considerations in prosecutions" and that figuring out "how much and the kind of political considerations at play" is where the challenge lies. And you and the BLM crowd and so many others surely have diverse views on how to assess and respond to "how much and the kind of political considerations at play" in many arenas.

Posted by: Doug B | Feb 21, 2024 12:03:05 PM

Once again, romanticism about BLM protests has no place in prosecution, and it's pretty clear that was the case here. Cf. Dougan v. State (Fla. 1992). It's amazing, Doug, that you fail to see this.

Rudolph has every right to ask for the same lenience regarding why he did it.

See how this crap is so dangerous? Rudolph is an evil killer. And he gets to ask why burning a man to death in the course of a BLM protest evokes some romanticism on the part of federal prosecutors. He was trying to protect the unborn, right?

Posted by: federalist | Feb 21, 2024 3:59:49 PM

federlist, what is the basis for your assertion that "romanticism about BLM protests" is "clear" in the Minnesota case? I found the DOJ sentencing memo in the case that I think you are talking about: https://alphanews.org/wp-content/uploads/2022/01/Montez-Lee-Sentencing-Opinion.pdf. That memo details, inter alia, four pre-BLM cases "in which arson or the detonation of a destructive device took a human life." The sentence imposed in 3 of those 4 cases was less than the 144 months that DOJ sought in this case (and the other case involved two lives lost). Did all those other cases involve problematic "romanticism" about something? How can we tell?

Notably, the DOJ lawyers who filed this sentencing memo both had past military service, JAG Corps experience, and long stints as AUSAs in this district. That suggests to me they likely had a sense for their sentencing judge (and judging generally), and notably the sentence imposed was 2 years (but only two years) below what they urged. Might the DOJ lawyers reasonably feared that seeking a more sereve sentence could lead to an even more lenient outcome (especially since the defendant was disputing responsibility for the death)?

Notably, the Acting USA in charge of this filing now works for Jones Day; you could call him and ask about his "romanticism about BLM protests," but I suspect he will dispute that his BLM bias is so "clear." And that's the point: good and bad politics is always going to be in the eye of the (politically contingent) beholder, and that's why I am eager to check all government powers. Absent a binding plea agreement that precludes the making of mitigating sentencing arguments, Rudolph and every other defendant can and should be able to cite to other sentencing outcomes to make sentencing argument under 3553(a)(6) that they should be treated similarly at sentencing. But, critically, Rudolph's case bears little similarity to anyone other than Tsarnaev and perhaps Ted Kaczynski.

I am not here to defend robustly DOJ discretionary choices in any of these or others cases; I just mean to highlight that one can see "politics" in operation in all sorts of ways and surely could conclude it was "evil killer" Rudolph who benefitted from political prosecutorial leniency. After all, what (non-pro-life) mitigating factors did Rudolph have for multiple deadly bombings, and why shouldn't those have been tested before a capital jury rather than embraced by DOJ? Can you provide a (non-political) account for why the Bush DOJ allowed Rudolph to avoid a capital trial through a plea while the Obama DOJ refused such a plea offer from Tsarnaev (who arguably had more arguments in mitigation)?

What's dangerous, federalist, is your failure to see how your own political biases --- like those of the BLM crowd --- color your assertions and concerns about political bias.

Posted by: Doug B | Feb 21, 2024 6:21:54 PM

"Mr. Lee’s motive for setting the fire is a foremost issue. Mr. Lee credibly states that he was in the streets to protest unlawful police violence against black men, and there is no basis to disbelieve this statement. Mr. Lee, appropriately, acknowledges that he “could have demonstrated in a different way,” but that he was “caught up in the fury of the mob after living as a black man watching his peers suffer at the hands of police.” (PSR ¶ 13.) As anyone watching the news world-wide knows, many other people in Minnesota were similarly caught up. There appear to have been many people in those days looking only to exploit the chaos and disorder in the interests of personal gain or random violence. There appear also to have been many people who felt angry, frustrated, and disenfranchised, and who were attempting, in many cases in an unacceptably reckless and dangerous manner, to give voice to those feelings. Mr. Lee appears to be squarely in this latter category."

Break out the world's smallest violin. Rudolph wanted to save the unborn. I don't excuse it--I think that Rudolph deserves death, but this is just ridiculous.

Posted by: federalist | Feb 22, 2024 9:34:43 AM

Lee should have gotten the max.

Posted by: federalist | Feb 22, 2024 9:37:15 AM

I am still eager for and waiting for any non-political account for the Rudolph plea deal, federalist. You say he “deserves death,” so why did he not face it? I see politics. What do you see?

Posted by: Doug B | Feb 22, 2024 3:37:23 PM

The death/LWOP decision can come down to so many things--I have no idea--but LWOP is a very very tough sentence, no? And certainly not a sweetheart deal. Perhaps Jewell's case would have created embarrassment. Who knows? Can't flyspeck everything. But what you can do is look at some very obvious things.

With respect to the BLM protester who killed someone, the DOJ was writing a sentencing memo that, let's face, should have come from the defense attorney. There's a fair bit of romanticism there. You can do the miasma thing all you want, but let's get real, the DOJ has a thing for lefty protesters. (They got off in Portland, DC etc.)

Posted by: federalist | Feb 22, 2024 4:28:12 PM

federalist, you seem to be taking the miasma approach to explaining the Rudolph deal. Fine, but that's the point: if you want to shrug about that unexplained deal, you can. But others will reasonably see worrisome politics involving a righty bomber getting a live-saving deal that others did not get for no clear non-political reasons.

Similarly, some will see the DOJ sentencing effort in the Lee case as pretty tough, as they asked for a longer sentence than in all the comparable cases they found (and DOJ pushed for 12 years, defense sought less than 7). But you see worrisome politics. I am not defending DOJ in any of these settings --- I see plenty of DOJ work in the criminal realm that strikes me as indefensible --- and I lack experience inside DOJ to know just how these discretionary decision get made. I am just always seeking to highlight that critical views of DOJ politics (from you, from the BLM crowd) are often in the eye of the political beholder. And lefties (as well as the BLM crowd) certainly have plenty of DOJ actions/cases --- past, present and likely future --- in which they can reasonably believe/complain that righty politics/biases are driving DOJ discretionary decision-making. Consider, as just one forof so many examples, the stash-house sting cases.

Posted by: Doug B | Feb 22, 2024 9:54:36 PM

Doug, let's look at what I said--Rudolph has every right to avail himself of the argument that he was just trying to protect babies a la the BLM protester cum arsonist killer. Why Rudolph got LWOP vs death--who knows, and that type of flyspecking just isn't going to get anyone anywhere.

"Similarly, some will see the DOJ sentencing effort in the Lee case as pretty tough"--they are f'in morons. Intentionally burn someone's property to the ground and kill someone while you're at it--death is on the table.

Posted by: federalist | Feb 23, 2024 9:20:51 AM

Every sentencing system I am aware of, federalist, allows motive to be a proper argument, and the federal system expressly states sentencing judges must consider "the nature and circumstances of the offense and the history and characteristics of the defendant." So it is beyond dispute or controversy that Rudolph was fully permitted to argue for leniency by stressing his motive --- and one might reasonably suspect the Bush DOJ was moved by that motive when they took death off the table and gave him sentencing leniency in a plea that seems hard to otherwise explain (as shown by your inability to do so).

And to call questions about DOJ's capital decision-making "flyspecking" is a laughable attempt to dodge what could be (ugly?) politics here. My understanding is that DOJ has an elaborate procedure surrounding every capital discretionary decision --- with memos from local USAs to Main Justice --- and Rudolph's case surely got a lot more Main Justice attention and involved more DOJ's agents than Lee's. But you do not want to question the apparent DOJ politics in the Rudolph case ... because of your politics.

And, again, that's my point: for you and the BLM crowd and for many others, what looks problematically political to you is a product of your politics. (Same is true for me: my political commitments include an affinity for appellate review of sentencing decision-making, and so I see problematic politics in broad sentencing appeal waivers.) But I understand that highlighting how you and the BLM crowd live in glass houses will not prevent you from wanting to keep throwing stones.

Posted by: Doug B | Feb 23, 2024 10:03:58 AM

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