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12 Sep, 2017

Seventh Circuit Judge Richard Posner Retires

Author |Circuit Court, Constitutional Law, Criminal Law, Legal Profession|0 Comments

The legal world was shocked when the infamous Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit announced his retirement last week, effective immediately. Judge Posner is well-known in the legal community for being witty and outspoken, sometimes courting controversy with his statements. Though his retirement is seen as abrupt, […]

18 Sep, 2013

My Written Testimony to the U.S. Senate on Mandatory Minimum Sentences

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Today, the U.S. Senate Judiciary Committee is holding a hearing on the Justice Safety Valve Act of 2013 (you can read a primer on the JSVA here). The JSVA would allow federal judges to sentence criminal defendants below all mandatory minimum sentencing provisions. And the JSVA would prevent some of the worst injustices in federal […]

28 Jul, 2013

Paying Billions to Warehouse those Addicted to Drugs

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We are one of the few Western countries in the world that deals with drug addicts primarily through incarcerating them, and especially incarcerating those that support their habit by selling small quantities of drugs.

Is this a wise, cost-effective, or even productive solution to the drug problem? And is it even a reasonable way to handle drug addiction? I will let you be the judge.

Consider the case of Terri Pruitt, a woman who was 42 years old by the time of her federal indictment. Ms. Pruitt had a long run of drug addiction, including three prior State court convictions for selling small amounts of drugs, which is fairly predictable addict behavior.

The federal government indicted Ms. Pruitt in 2004, because she sold an ounce of methamphetamine to a government informant in exchange for $1,350. Yes, Ms. Pruitt was not the kind of drug king pen you think of when you think about a federal drug charge.

Given the seriousness of federal penalties for any crime involving drugs, Ms. Pruitt’s prior convictions, and her well-established drug addiction, what sentence do you think Ms. Pruitt received? Or, to put it differently, what sentence is a reasonable one? […]

21 Apr, 2013

The Worst Torture: Solitary Confinement

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What is the worst form of torture? I’ve been thinking about this subject for the past two weeks after reading an article written by William Blake, a New York State prisoner who has been housed in solitary confinement for the past 26 years because he murdered a sheriff’s deputy.

Although I read the article two weeks ago, I can’t shake it. For starters, Blake’s essay describes what solitary confinement is like better than any I’ve ever read. He writes:

There is always the misery. If you manage to escape it yourself for a time, there will ever be plenty around in others for you to sense; and though you’ll be unable to look into their eyes and see it, you might hear it in the nighttime when tough guys cry not-so-tough tears that are forced out of them by the unrelenting stress and strain that life in SHU is an exercise in.

Or this:

I have lived for months where the first thing I became aware of upon waking in the morning is the malodorous funk of human feces, tinged with the acrid stench of days-old urine, where I eat my breakfast, lunch, and dinner with that same stink assaulting my senses, and where the last thought I had before falling into unconscious sleep was: “Damn, it smells like shit in here.”

And before you think that Blake made some of this up, I would tell you that everything he says in the essay is exactly how I remember solitary. I had two stints, myself, and I felt and witnessed its demoralizing effects as a prisoner across the hall from me hung himself two weeks after I was released back to general population. […]

18 Apr, 2013

The Need for Prosecution Clinics in Ending Mass Incarceration

Author |Criminal Law|0 Comments

There is a debate fermenting at my law school, the University of Washington, over whether the school should fund a criminal prosecution clinic. I weighed in on the debate, and to the surprise of many, I said that I favor a prosecution clinic. I favor it because I think such a clinic, if done properly, is an indispensable part of changing the criminal justice system in a way to end mass incarceration. Because some of my classmates do not understand my position, I thought I would share my thoughts here.

Let me first give some context. This country has a problem called mass incarceration. The U.S. locks up more people than any other country on the planet, even more than China, which has a few more billion people than we do. We also have a large racial disparity in our criminal justice system, as we lock up a disproportionately large number of people from communities of color. Part of the problem, but surely not the bulk of it, lays at the feet of prosecutors, some of whom believe that their primary job is to lock up as many people as possible for as long as possible.

Given the problem, some of my classmates question, and rightly so, whether UW law school should fund a prosecution clinic, and whether such a clinic evokes the wrong image for a school deeply invested in public interest, and especially, invested in ending mass incarceration. Our school motto is “Leaders for the Global Common Good,” and one of my more comedic classmates said that after the prosecution clinic starts, we should change the motto to the “Jailers for the Common Good.”

I should also point out that our sister school, Seattle University School of Law, rejected the prosecution clinic, largely, from what I hear, on social justice grounds.

Now, not everyone is opposed to the clinic. Some of my classmates desire a prosecution clinic because they plan to begin their career inside a prosecutor’s office and they value clinical experience in their field. They also value trial advocacy experience, which the clinic will provide.

My reasons for valuing a prosecution clinic are many. Most importantly, anyone who thinks that we can end mass incarceration without prosecutors is simply wrong. Prosecutors possess power. The power of discretion in deciding whether to charge, in deciding how to charge, and the discretion in recommending a sentence once a prosecutor proves his or her charge. This is largely why my good friend and mentor, who is one of the top criminal defense attorneys in Nebraska, told me that a prosecutor can do way more justice than any defender ever can. […]

25 Sep, 2012

Judge Posner Allows Defense Attorney To Testify Against His Client

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Judge Posner has been in the news a lot lately (reviewing tearing apart Justice Scalia’s new book here). He is normally known for being a pragmatic judge, which is why his recent opinion is so bizarre. In United States v. Williams, Judge Posner’s pragmatism was instead replaced with a cavalier attitude towards the right to counsel and towards […]

3 Aug, 2012

The ACS Blog Talks With A Public Defender About What Arguing A Case In The Supreme Court Felt Like

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Over at the ACS blog, Nicole Flatow interviewed attorney and State Appellate Defender Valerie Newman about her experience arguing before the Supreme Court on behalf of the respondent in Lafler v. Cooper. Rarely, do we hear an unvarnished take on what it is like for attorneys to argue before the high court. Speaking of the […]

20 Apr, 2012

Judge Dismisses Government’s Attempt to Prosecute Man Handing Out Jury Nullification Pamphlets

Author |Criminal Law|1 Comment

Yesterday, U.S. District Judge Kimba M. Wood dismissed jury tampering charges against retired chemistry professor Julian P. Heicklen after he stood outside a courthouse and distributed pamphlets containing information about jury nullification. Reason and the New York Times have coverage.

If there was ever a time to reprimand an Assistant U.S. Attorney for bringing frivolous charges, […]

18 Apr, 2012

Racist Criminal Laws Examined At The Supreme Court

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This week the Supreme Court considered, in Dorsey v. United States and Hill v. United States, whether the Fair Sentencing Act of 2010 applies retroactively to those prisoners sentenced before the act took effect. A number of media outlets reported on the oral arguments, including  Lyle Denniston at SCOTUSBlog; Adam Liptak at the New York Times; Mike […]

7 Apr, 2012

Just Another Reason Why We Need a Different Kind of Politician

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