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Clark Neily Profile picture
@ConLawWarrior
Jul 28, 2020 • 4 tweets • 1 min read • Read on X
In 2013, I wrote a book in which I argued that SCOTUS was wrong to treat the Constitution as a fundamentally amoral document that authorizes the govt to engage in a broad array of immoral conduct, such as locking people up for no good reason. /1 amazon.com/Terms-Engageme…
The govt has embraced that judicial misconception with gusto and behaves wildly immorally in any number of areas, but none more viciously—and inexcusably—than the so-called criminal justice system. I think part of what we’re seeing in Portland /2
Is the govt’s inability to claim the moral high ground with any credibility. They lost that opportunity when they embraced the judiciary’s tacit invitation to say “Immoral-but-legal—sucks to be you!” The govt has sowed the wind with so many morally indefensible policies. /3
And now it is reaping the whirlwind. I only hope both sides can back away and realize that all of us can and should do better before the situation becomes irredeemable. I wish I felt more confident about that than I do right now. Apologies for the downer thread. /end

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More from @ConLawWarrior

Clark Neily Profile picture
Oct 18
Civil forfeiture is back in the news. And for good reason: It’s among the most corrupt and corrupting public policies in America and presents serious constitutional concerns. Unfortunately, policymakers and activists both overlook the single most effective forfeiture reform. /1
If you want to reform civil forfeiture without completely eliminating it you just have to do one thing: treble damages for prevailing property owners. Why would that be so effective? Two reasons. /2
1. With treble damages, far more property owners will be represented by counsel. I can tell you from personal experience that no factor more affects the outcome of forfeiture cases than having a lawyer because LEOs tend to be SUPER-sloppy when policing for profit. /3
Read 6 tweets
Clark Neily Profile picture
May 21
Judge Carlton Reeves has criticized qualified immunity before, but wow, he really cut loose this time. It's extremely rare for a sitting judge to express this level of disdain for a legal doctrine that SCOTUS has consistently and repeatedly affirmed. /1 s3.documentcloud.org/documents/2467…
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What gives Judge Reeves' latest assault on QI such force is that (virtually?) nobody disputes any of his points—namely, that SCOTUS invented QI out of whole cloth in direct (and increasingly indisputable) contravention of statutory text and unambigous legislative purpose. /2
At this point, the *only* "defense" (if one can call it that) offered by QI's vanishingly small coterie of defenders is that SCOTUS has been getting it wrong for nearly half a century and Congress has done nothing to correct that error, so why should either of them bother now? /3
Read 8 tweets
Clark Neily Profile picture
Apr 26
Just beneath the surface of the Trump immunity case lies the fact that our CJ system has gone so off the rails that few people—especially if they’ve done anything interesting like run for office or start a business—can be confident they haven’t committed multiple felonies. /1
Is it reasonable for future presidents and executive-branch officials to be concerned that the decision whether to prosecute them for *something* they did in office will end up being purely a matter of prosecutorial largesse? Absolutely—just like the rest of us. /2
We live in a wildly overcriminalized society where even the govt has lost track of how many laws are on the books—true fact: DOJ has repeatedly tried and failed to count just the number of federal criminal laws on the books, which is of course just the tip of the iceberg. /3
Read 10 tweets
Clark Neily Profile picture
Mar 30
Why have retaliatory-arrest cases—including recently argued Gonzalez v. Trevino—so confounded SCOTUS? Simple: Because courts have become deeply committed to ensuring that govt officials who’ve been plausibly accused of misconduct can avoid jury trials. /1
scotusblog.com/case-files/cas…
Consider how low the stakes are for the govt officials in Gonzales compared to most criminal defendants—none are going to jail, it’s highly unlikely any will be fired or meaningfully disciplined if found liable, and they’ll be indemnified for any damage award regardless. /2
Truly, the stakes could scarcely be lower for the govt defendants who’ve been plausibly alleged to have grossly abused their official powers to inflict political payback on a 76yo grandmother, FFS. So why on earth are the justices tying themselves up in knots over these cases? /3
Read 10 tweets
Clark Neily Profile picture
Jan 7
More thoughts on qualified immunity. Besides the fact that it is lawless, immoral, and bad policy, QI reflects breathtaking political naïveté by gratuitously creating a policy that confers a massive institutional benefit on a powerful special interest (LEOs) that’s paid for by /1
Victims of civil rights violations. Contrary to the self-serving pablum you’ll hear from its various apologists, QI’s primary function in our system is not to protect cops from frivolous lawsuits (there are other tools for that), it’s to protect cops from MERITORIOUS claims. /2
Good example is the cops whom Tony Timpa called for help during a mental health crisis and ended up asphyxiating him while joking about it. They fought like cats for QI precisely because they understood how a jury was likely to—and ultimately did—react. /3 keranews.org/criminal-justi…
Image
Read 12 tweets
Clark Neily Profile picture
Jan 5
US police are very good at going after low-hanging fruit like traffic infractions, nonsense regulatory infractions, and low-level drug crimes—which is why ~80% of arrests are for misdemeanors. But they’re just awful at solving serious crimes like murder and rape, which is why /1
US clearance rates for homicide and other serious crimes are among the lowest in the developed world. Also, police enjoy low levels of trust in communities where crime is most prevalent, partly because they prioritize enforcement of BS “crimes” like this and partly because /2
They are, as an institution, fundamentally untrustworthy. Police are trained to use deceit as a routine investigative tool, and recordings of police blatantly lying to motorists, bystanders, random teenagers, etc, are endemic. One thing that would go a long way to restoring /3
Read 7 tweets

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