We’ve seen a remarkable vindication of the criminal jury trial lately. I hope everyone takes a moment to reflect on the folly of our decision to supplant that institution with an ad hoc, extra-constitutional, nontransparent, and often nakedly coercive system of plea bargaining.
This accurate quote from a 2012 SCOTUS case should be cause for alarm and an urgent call for reform—not merely a resigned shrug. scholar.google.com/scholar_case?c…
Allowing coercive plea bargaining to supplant constitutionally prescribed jury trials was a choice, not an inevitability. We can—and should—make a new choice to embrace the Founders’ decision to put citizen participation at the heart of the administration of criminal justice.
What are we waiting for? law.georgetown.edu/public-policy-…

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More from @ConLawWarrior

24 Nov
This is a thread about the two most important qualified immunity cases on the Supreme Court's docket right now—and maybe ever. Earlier this year, the Fifth Circuit dismissed two Section 1983 cases against (1) TX jailers who did nothing as a suicidal inmate took his own life...
...right in front of them; and (2) TX cops who set a mentally ill man on fire in order to keep him from setting himself on fire (yes, you read that correctly). There's a word for people who need the amount of protection the CA5's qualified immunity doctrine provides: Monsters.
My friend Cate Stetson represents the petitioners in both cases. In her cert petitions (linked below), she dissects the respective CA5 decisions with surgical precision and demonstrates—respectfully but unsparingly—their flagrant departure from controlling legal standards.
Read 7 tweets
7 Nov
Roughy half the Bill of Rights is devoted to criminal procedure and most of that is about jury trials. The Constitution prescribes a system that's designed both to err in favor of Type I errors (false acquittals) over Type II errors (false convictions) and ensure transparency. /1
But we've almost completely supplanted/subervted the constitutionally prescribed method of adjudicating criminal charges (jury trial) with an ad hoc, extra-constitutional procedure (plea bargaining) that's optimized for efficiency at the expense of literally every other value. /2
It's been an unmitigated disaster. In this piece, I compare the practical elimination of citizen participation in the administration of criminal justice to the effect that the loss of a keystone species like honey bees would have on the ecosystem. cato.org/policy-report/…
Read 8 tweets
6 Nov
Think you’re cynical enough about qualified immunity? Trust me, you’re not. Must-read from @radleybalko. I’ll screenshot key passages below. RT if you’ve had enough of QI already.
1. Cops commit indisputable rights violation.
CA10 bends over backwards to let them off the hook. (Must’ve been another day ending in Y.)
Read 6 tweets
3 Sep
CA10: To be clear—you were specifically trained that people have a right to record you in public but you still abused this guy for recording you, and now you think you should get qualified immunity?
Cops: Uh...
CA10: Just messing with you—of COURSE you get QI. And next time too!
Read 4 tweets
17 Aug
I've seen plenty of no-brainer cert petitions in my day, but this one—from a CA10 decision granting QI to cops who were specifically trained that there's a constitutional right to record police in public that they mustn't interfere with—takes the cake. Why?supremecourt.gov/search.aspx?fi…
1. It involves one of the most important constitutional rights SCOTUS has yet to weigh in on: the ability to record police in public to prevent govt from creating false narratives about things like murdering citizens, like MPD tried to do with George Floyd.businessinsider.com/police-initial…
2. No one seriously thinks modern QI has a shred of legitimacy, and virtually everyone agrees it was invented out of whole cloth in a blatant act of judicial policymaking that's supposed to offend a certain kind of jurist (hint: rhymes w "shmoriginalist").
Read 10 tweets
14 Aug
I know it’s trendy to dunk on the Founders these days, but their foresight was really quite remarkable. That said, something they did not and could not foresee was the rise of a massive professional law-enforcement faction with an almost pathological aversion to accountability.
If you look back to the Founding era, you’ll see that government officials could and did get sued at the drop of a hat. This was absolutely routine, and absolutely the right way to organize things. We do the opposite, and I don’t have to tell you what a disaster it has been.
That we live in an era when self-styled “originalists” judicially amend democratically enacted laws in order to make it maximally difficult for citizens to hold power-abusing government officials accountable is, to put it politely, remarkable. See, e.g., cato.org/policy-analysi…
Read 5 tweets

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