Already we see states and the Feds trying to figure out how to push protesting behavior into something far worse.
We are already arresting and charging the insurgents. We don’t need new laws to get them.
“But what about investigations?”
It’s worth noting that the PATRIOT Act created a special “sneak and peek” warrant to target terrorism… which has been used almost entirely to go after routine drug cases.
Same thing will happen here.
The catch is clear: defining “domestic terrorist” will be hard.
I doubt there is clear statutory text that unambiguously distinguishes the Jan 6 insurgents from ppl surrounding the police station in Brooklyn Center, MN.
A determined DA will find a way.
In fact, it doesn’t even have to be a *strong* argument, just a viable-plausible one.
Just the threat can be chilling. And some will plead just to make the bigger threat go away.
Take the J20 defendants from Trump’s inauguration protests. Cases fell apart… after 20 pleas.
We already have the tools we need.
Expanded tools are always used in other areas.
For a political issue like this one, it’s going to rope in a lot of conduct ppl don’t want included.
Even weak arguments can have huge effects.
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It’s like the “million dollar blocks” claim. Equally wrong for the same reason, but so intuitively appealing that I think it is basically invulnerable.
So we’ll cut prisons, and not see the savings, and not get why (happened to a program in IN that made EXACTLY this error).
In short: $60,000 is the AVERAGE cost.
But 2/3 of that cost, if not more, if wages. Then some is heating and cleaning and other fixed costs.
So release 1, or 10, or maybe even 1,000, and savings will be <<< $60,000 per. Maybe $10,000, maybe less.
A lot of anti-prison rhetoric starts at “prison has entirely negative effects.”
And it’s true that studies increasingly indicate that the effects are, on net, much weaker than proponents suggest.
But some ppl are imminently dangerous. Removing them likely has some gains.
But that does not mean prison is the EFFECTIVE way to do this. It doesn’t mean it’s the MORAL way to do this. None of this accounts for how we ignore the social costs of how we’ve done it.
But assuming these results replicate, they’re useful to have.
Alabama held off resentencing Miller—whose SPECIFIC sentence SCOTUS declared unconstitutional in Miller v AL in 2012—until this week, almost a decade later.
And mere days after SCOTUS made it easier to sentence kids to life without parole.
The judge noted growth, but then expressed his own scientific sense that he was “unsure” if Miller could function outside controlled settings.
And based on his gut instinct, declared no one should ever be able to reevaluate his decision ever again, until Miller dies in prison.
The arrogance of the judges, the arrogance of the SCOTUS justices who perpetuate this, the arrogance of the legislatures who authorize this and the prosecutors who impose and defend these sentences.
And the cold indifference to the struggles of struggling children.
So… Congress isn’t going to repeal the PLRA, not any time soon. It doesn’t face popular anger, and letting ppl in prison back into court isn’t getting 60 votes in the Senate, maybe not 50.
But! There are things we can do—just indirectly.
A student of mine, for ex, has a note coming out in the Fordham L Rev this fall arguing, among other things, for pushing states to streamline (and even make electronic) their grievance processes: make it easier to satisfy exhaustion.
The PLRA—or, really, the fed courts’ strange read of the PLRA—caps lawyer fees. So states could fund indigent counsel to handle those sorts of cases.
None might be as good as a full repeal, but that seems utterly unlikely. Seemed unlikely in 2015. So in 2021?