Let’s talk about this story. It discusses a NJ bill that is designed to make sentencing less harsh. The bill is being held up because a lawmaker introduced an amendment that would eliminate the mandatory minimum for one type of corruption. nytimes.com/2020/12/17/nyr…
First, let's talk about the framing of the story. The lede is about how the lawmaker who introduced the amendment has a girlfriend whose son is facing corruption charges. The story minces no words: It says the amendment was added specifically to help that man.
The idea of powerful people helping each other escape punishment is a powerful one. It is the stuff of headlines and outrage, and so I'm not surprised that this is how the story is being framed.
But there is also another way to frame this story--that most people only appreciate the harshness and injustice of the criminal justice system once they or someone they love have been swept up in it.
We've seen the story before, and it sends us a different message.
The "powerful people get off" framing tells us to be suspicious of leniency & not to trust criminal justice reform.

The "I only realized when" framing tells us that we aren't paying enough attention to harshness & more reform is probably needed.
Second, let's talk about the crime itself which carries a 5 year mandatory minimum.
As someone who researches the statutory language of criminal laws, this law makes me very uncomfortable. The conduct is not well defined--look at that "clearly inherent" language. Yikes!
So it is unclear what, precisely, is illegal under this law. In addition, the law appears to be a kind of catch all -- other classic corruption crimes, like bribery, are handled by other statutes (which also carry mandatory minimums).
All of this raises an important question--Is this relatively vague law even necessary? Couldn't the girlfriend's son have been charged with some other crime, like theft?

And if we are going to have a relatively vague law, do we want it to carry a 5 year mandatory sentence?
That leads to my third point--all of the statements in the NYT story about why this mandatory minimum law is necessary. Those statements boil down to two arguments--neither of which stands up to scrutiny. The first argument is that officials "need" this law to "build cases"
In case it's not clear from these quotes, the argument about "building cases" is an argument that prosecutors need to be able to threaten suspects with a mandatory minimum sentence so that the suspect will plead guilty.
It's a common argument, usually framed in terms of "cooperation" rather than guilty pleas. (I guess prosecutors know that the public would balk at the idea that prosecutors shouldn't even have to bring a case to trial.)
The thing that is so galling about the "build the case" argument is that it is often paired with an argument about it being important that these defendants serve a particular sentence--even though the whole idea of cooperation is premised on the idea of a much lower sentence.
In this article, the argument is framed as a need for protection against politically appointed judges possibly being too lenient.
If the implication is supposed to be that judges as appointees can't be trusted, I wish it had mentioned that NJ prosecutors are selected the same way
By supplementing the "build the case" argument with "judges might be too lenient," the article may mislead readers.
The article never mentions that mandatory minimums are about shifting power over punishment decisions from judges to prosecutors.
But that's exactly what they do.
The second argument in favor of mandatory minimums is straightforward--both in terms of the argument and also why it is wrong.
The argument is deterrence. If you know crime X carries Y mandatory minimum, then you are less likely to commit crime X.
The deterrence argument seems intuitive. The problem is that it doesn't actually happen.
The truth is that human beings don't really think like this. And the idea that people will be less likely to commit crimes because of higher punishments has been debunked lots of times.
The irony of this story is that this whole bill is about reducing mandatory minimum sentences. The amendment just added one more crime to the list. All of this bad arguments about keeping mandatory minimums apply to drug and property crimes as well.
It is precisely because of this that some people interviewed for the story were just like "OK. Feel free to another crime to the bill if you want."
Those people get it--mandatory minimums are not a good idea, even if you really don't like a particular type of crime.
But not everyone feels this way. Aside from prosecutors (and plenty of former prosecutors) who are always willing to recycle the same tired arguments in favor of mandatory minimums, there are other people opposed to this amendment: Progressives
Progressive groups are worried about money in government, corruption, and income inequality. I get it. I also worry about those things.
But the idea that removing a mandatory minimum sentence sends the message that a crime is "tolerated" is just silly.
That "sends a message" argument is just as bad as the "build a case" argument and "deterrence" argument---and it has been used for decades to put more people in prison and to fuel mass incarceration.
These groups should know better.
Unfortunately, corruption specifically and white collar crime more generally is something where some progressives are happy to see higher penalties and a coercive justice system.

This desire for harshness is so prevalent, that some have coined the term "carceral progressivism"
Don't get me wrong. There are reasonable arguments to be made about the underenforcement of white collar crimes and how particular underenforcement patterns appear designed to benefit the wealthy and the powerful.
But let's please not pretend that mandatory minimums are necessary to cure those enforcement problems. They exist in large part so that prosecutors do not actually have to prove their case in court. And they also just don't work.
And can we also agree that the Supreme Court's recent cases about how to interpret federal corruption statutes are just irrelevant to the conversation about whether states should have mandatory minimum penalties at their disposal to enforce poorly drafter state laws. Sheesh!!

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More from @CBHessick

29 Nov
The President is on Fox News right now saying that maybe the FBI and the Department of Justice were involved in the supposed election fraud in the 2020 election.

When will this nightmare end?
Update: He says "people keep asking" DOJ whether they are looking into all of the fraud allegations, and they have been told "yes, we are looking"
But "no one" has told him that they've arrested anyone who has done anything wrong.
Now Trump's asking why DOJ still hasn't done anything to prosecute Jim Comey, Andrew McCabe, and John Brennan.

I'm no fan of Bill Barr's, but this bizarre interview suggests that he has been resisting an awful lot of pressure from this president to persecute political enemies.
Read 4 tweets
28 Nov
One thing that I really like about traditional legal scholarship is that it asks the writer to deal with legal issues in the abstract.

That helps to ensure that legal principles and generalized analysis drive conclusions rather than just situational facts.
That's why, when it comes to the hot topic of the day, I am always eager to read the opinions from legal scholars who wrote about the issue before it became enmeshed with present-day politics
They are less likely to let the situation in which the issue arose affect their analysis
That's certainly not always possible. Some topics are just too obscure to have warranted the time and effort that is required to write traditional legal scholarship. (Hello, GSA ascertainment!!)

But for plenty of other topics there's at least a law review article or two.
Read 7 tweets
28 Nov
It’s really hard to turn down interviews from national media outlets. But I think those of us who are being interviewed because of our expertise have a professional obligation not to give those interviews when the topic is outside our area of expertise.
And when I say “it’s hard,” I mean it really sucks. And I haven’t been perfect on this front.

But I feel a bit better when I give the reporter/producer the name of someone who *is* an expert—especially if that person is more junior & doesn’t always get a lot of recognition.
Even that isn’t always enough to make me feel better, so I’ll tell the reporter to tell the other person I recommended them.

“Seriously, use my name,” I’ll say.

It lets the person know I value them. And it also lets me tell *someone* that I gave up a chance at the spotlight.
Read 4 tweets
13 Nov
Fascinating @rachelweinerwp article about the court battles of a judge in Alexandria who is being sued by both the local prosecutor and the local public defender.
The judge and the local prosecutor @parisa4justice are clashing, in part, because VA gives prosecutors less control over charging decisions than a lot of other states. For many crimes, police make charging decisions, and prosecutors have to move to dismiss.
A bill was introduced in the VA legislature that would have changed this arrangement, giving VA prosecutors more power to dismiss charges without having a judge weigh in.

It looks like that legislation stalled. Do folks in VA know more? lis.virginia.gov/cgi-bin/legp60…
Read 7 tweets
12 Oct
At today's Supreme Court confirmation hearing, we will be told that judges are not supposed to make policy decisions.
That statement is entirely false.
The people who wrote our Constitution expected judges to make policy decisions, and that's what they did for a long time. ImageImage
In the years before and after the Constitution was ratified, judges and non-judges alike had no doubt that judges could make policy. This was the whole idea behind the "common law" that they had brought with them in England. Judges even had the power to create new crimes. ImageImageImage
The power of judges to set policy came under attack when partisan battles between the Federalists and the Democrats began to play out in federal court prosecutions for common law crimes. Once the Federalists lost their hold on the courts, the Court curtailed that power. ImageImage
Read 7 tweets
21 Sep
If your criticism about a potential Supreme Court nominee is her religion, can I kindly suggest that you look in the mirror and think about when you decided that religious discrimination is okay.
To all the folks in my mentions telling me that it’s just one *type* of Catholicism that you think makes someone unfit for office/likely to impose her religious views on others—-that’s still religious discrimination.
The replies to this are making my stomach churn. But I’ll give it one last shot for those who are insisting that Coney Barrett’s kingdom of god quote means she will force her religion on others.

Have you heard religious people talk about their faith before?
Read 5 tweets

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