As someone who came to criminal justice reform after nearly two decades in constitutional law, the thing I can't get over is how utterly cavalier police and prosecutors can sometimes (emphasis on "sometimes"—take it easy) be in cases involving matters of life and death. /1
For example, when there's been a heinous murder and the killer is still on the loose with every indication that he (and it's almost always a he) is likely to kill again, they will sometimes arrest a suspect on the flimsiest of evidence—or, worse, despite overwhelming... /2
evidence of innocence—just to close the case. I'm reading about just such a case in Texas right now. DNA analysis unambiguously excluded the man they'd arrested for the murder, but they soldiered on trying to prosecute him anyway while the trail of the true killer went cold. /3
Finally, 9 MONTHS after receiving the DNA report that categorically excluded their suspect (who spent most of that time in jail), they dropped the charges. I did a lot of malpractice work as a young lawyer, and a doc who screwed up this bad would never practice medicine again. /4
But nothing—NOTHING—will happen to the police and prosecutors who destroyed the life of an innocent man through their own professional incompetence and allowed a killer to walk free for nine months after receiving a report that made clear they had the wrong man. /5
Anyway, that's how it typically works in our system when people commit law-enforcement malpractice, and it's not right. /end
Epilogue: Read this excellent book by a former prosecutor-turned-innocence advocate for a shocking number of stories like this and a discussion of the psychology behind the screwups. So much of it boils down to their complete lack of skin in the game.
amazon.com/Blind-Injustic…

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More from @ConLawWarrior

8 Nov 20
I've been mocking the "Four Seasons" press conference pretty mercilessly today. Here's why:
1. It's hilarious. Your heart would have to be made of stone not to laugh at the spectacle of a defeated administration proclaiming a massive conspiracy to steal the election in the parking lot of a landscaping company sandwiched between a crematorium and a sex shop.
2. I'm sick of it. Sick of the lies, the cruelty, the malice, and most of all the relentless polarizing by a president who panders to the basest of his base, dehumanizes his opponents, cozies up to dictators, and denigrates the very institutions that sustain us.
Read 4 tweets
7 Nov 20
A credible case can be made that the way it was *supposed* to work here is that before govt can do you any significant harm (eg, incarceration, forfeiture, any non-trivial financial penalty) it has to go to trial and get a jury verdict. The implications of that are staggering. /1
First, trials are expensive, inconvenient, and uncertain. It’s basically impossible to impose any kind of punishment/penalty on a mass scale if every case has to go to trial. This means govt has to focus on the small # of truly bad people rather than mere rule-breakers. /2
Second, people are going to get sick of being called for jury duty to adjudicate ticky-tacky BS like low-level drug sales and will send a message to prosecutors and legislators to knock it off. Like in this story: nola.com/news/courts/ar… /3
Read 8 tweets
24 Sep 20
I would strongly urge conservatives who wish to maintain their credibility in the criminal justice space to stop misrepresenting what happened in the Breonna Taylor case:

1. The cops DID have a no-knock warrant. This is undisputed.
2. While it appears they knocked, it is hotly disputed whether they announced themselves as police.
3. If they did announce, it is highly likely based on the totality of circumstances, that they knocked-announced-and-deployed-the-battering-ram all at once, which is an extremely common technique and completely defeats the purpose of the knock-and-announce rule.
Read 7 tweets
16 Sep 20
EDITORIAL: Banning qualified immunity is complicated

NARRATOR: Only if you believe the baseless self-serving prevarications of the LEO-lobby.
fredericksburg.com/opinion/editor… via @NewsInTheBurg
Like this whopper right here: Image
Empirically unsupported, factually false, and cynically self-serving. Know who’s *actually* on the hook for lawsuits against cops? Not cops—but we the taxpayers. nyulawreview.org/issues/volume-… Image
Read 5 tweets
28 Jul 20
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
Read 4 tweets
15 Jul 20
Whether to convict and punish someone is an inherently political as well as legal question. One of the many reasons our CJ system cannot accurately described as well-functioning is because judges and prosecutors have succeeded in making it a purely legal one. Disastrously.
If modern jurors debated the legitimacy of various criminal laws and the justness of applying a particular law to a particular D, the way they did at the Founding, charging decisions would look way different aned we almost certainly wouldn't have mass incaceration.
Defenders of the status quo claim Founding-era-informed juries (who know consequences for D if they convict and that they have the power/duty to acquit against the evidence to avoid an unjust conviction) would be a disaster. And I'm like, "You mean a BIGGER disaster?" Doubtful.
Read 4 tweets

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