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Clark Neily

@ConLawWarrior

5 Jan

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

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Clark Neily

@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.

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Clark Neily

@ConLawWarrior

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

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Clark Neily

@ConLawWarrior

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.

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Clark Neily

@ConLawWarrior

16 Sep 20

@NewsInTheBurg

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:

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-…

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Clark Neily

@ConLawWarrior

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

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