- Antitrust legislation once targeted the unstoppable rise of chain stores A&P and Sears, both now bankrupt [my new Cato post, quoting Joe Nocera, Bloomberg (“The next time you hear somebody say that the dominance of Walmart or Amazon or Facebook can never end, think about Sears. It can — and it probably will.”)]
- When you wish upon a suit: visitor grabs Disney cast member and screams at her after she asks him to move out of parade route, later pleads no contest to disorderly conduct, now wants $15,000 [Gabrielle Russon, Orlando Sentinel]
- Tomorrow (Thurs.) at noon Eastern, watch a Cato panel on “Coercive Plea Bargaining” with Scott Hechinger of Brooklyn Defender Services, Bonnie Hoffman of the NACDL, and Somil Trivedi of the ACLU, moderated by Cato’s Clark Neily. Could you resist taking a plea bargain if faced with a false accusation? [Marc John Randazza, ABA Journal]
- “I am a Democrat. But this may be the dumbest thing I have seen…. the Speech or Debate Clause makes about as clear as anything in the Constitution that a court cannot enjoin legislative officials from taking a fundamental legislative action such as a vote.” [Howard Wasserman on suit by Sen. Jeff Merkley (D-Ore.) asking court to, among other things, order delay of Senate vote on Kavanaugh nomination]
- An ideological screen for CLE? Following demands from tribal attorneys, Minnesota bar authorities order shelving of continuing legal education class on Indian Child Welfare Act developments taught by attorney Mark Fiddler, who often handles ICWA cases on side adverse to tribes [Timothy Sandefur]
- Left-leaning Florida Supreme Court nixes plan to let incumbent Gov. Rick Scott fill vacancies, entrenching its leftward lean for a while at least depending on outcome of governor’s race [Spectrum News 9]
“What a wild story: a prisoner serving 39 years to life started making drawings of golf courses. The drawings made their way to Golf Digest, which wrote about him, then realized his conviction was sketchy, then investigated, and now he’s free.” [Tom Gara on Max Adler, Golf Digest]
The article quotes one of Valentino Dixon’s pro bono lawyers: “It’s embarrassing for the legal system that for a long time the best presentation of the investigation was from a golf magazine.”
Cato held a conference on plea bargaining last month:
Today, more than 95 percent of criminal convictions in the United States are obtained through plea bargains. As the Supreme Court observed in 2012, “criminal justice today is for the most part a system of pleas, not a system of trials.” Compared with jury trials, plea bargains are efficient and inexpensive, and they free up resources that might otherwise be devoted to securing convictions in cases where the defendant’s guilt is not seriously in doubt.
But plea bargaining has a dark side as well. Given the imbalance of resources between prosecutors and most defendants, together with the array of tools that prosecutors can bring to bear in any given case, such as mandatory minimum sentences, charge-stacking, and witness inducements, it is fair to ask how many guilty pleas are truly voluntary. A growing body of evidence suggests that false confessions may not be nearly as rare as we would hope, and indeed the specter of coercion casts a shadow over the entire plea-bargaining process.
The panel featured the Hon. Joseph Goodwin, a federal judge in West Virginia who has announced that he would no longer accept plea bargains except when there are truly extenuating, case-specific circumstances; New York City criminal defense attorney and popular law blogger Scott Greenfield, and University of Illinois law Prof. Suja Thomas, with Cato’s Clark Neily moderating. You can watch or download it here.
“For roughly 200 years, trial transcripts were popular, if not the favorite, reading material in the English-speaking world — especially in Britain.” Theodore Dalrymple recounts high points from “the 83 volumes of Notable British Trials, which are as complete a compendium of human nature as has ever appeared.” [City Journal]
The Supreme Court has agreed to take up the question of whether the Bill of Rights’s Excessive Fines Clause applies to the states [Eugene Volokh] Because the case involves a state’s claim to a seized vehicle, it might also permit the Court to address issues of the constitutionality of asset forfeiture [Ilya Somin, Nick Sibilla, IJ petition for cert in Timbs v. Indiana]
A “union-backed activist group says Amazon should be charged with a crime for its threat to roll back job growth” if the Seattle City Council follows through with a controversial tax idea to assess larger firms a new per-employee tax. “The group, Working Washington, is asking Washington State Attorney General Bob Ferguson to charge Amazon with a Class B felony: ‘intimidating a public servant,’ citing the company’s move to pause some construction and leasing in the city pending the outcome of the vote on the so-called ‘head tax.’…Former state Attorney General Rob McKenna called the group’s prosecution demand absurd, saying the law in question is aimed at protecting individual public employees from personal threat, particularly of physical force.” [Jim Brunner, Seattle Times] More: John Sexton.
Commenter @Living4Winter on Twitter: “It’s so fricken weird when Ayn Rand comes true.” On Monday the Seattle city council voted 5-4 to approve the tax; a final vote will come later and Mayor Jenny Durkan has signaled that she may veto the measure. [KOMO] Update: the council unanimously adopts a tax set lower, at $275 rather than $500 per worker. [Matt Day and Daniel Beekman, Seattle Times]
More: Eugene Volokh with a more thorough First Amendment legal analysis (Working Washington’s theory “would criminalize a vast range of ordinary political action” including “an advocacy group’s threatening to boycott a city if the city council doesn’t change some law that the threatener thinks unjust.”)
Two things that can both be true:
1) we should find a better system than cash bail;
2) in the mean time bail bond services provide a needed service for some families.
Or as I put it in my new National Review piece:
This week Google and Facebook announced that they would stop accepting ads for bail-bond services. It’s the perfect moral gesture for our times: It makes a grand statement, keeps pressure groups happy, reminds us that the tech giants have weight to throw around, and leaves its intended beneficiaries no better and perhaps imperceptibly worse off.
I go on to discuss stigmatization as a substitute for policy, which sorts of practices if adopted would probably serve as a substitute for cash bail, and the widely held notion that mass incarceration in the contemporary U.S. arose from a plot to expand business revenue. The piece concludes:
If one is going to be suspicious of mercenary motives in the justice system, I recommend starting with the providers among whom defendants’ families do not get to pick and choose in their hour of need in a relatively competitive market. That would include probation providers and jail phone-call providers — and, yes, some firms involved with private prisons.
Of course, those companies aren’t big advertisers, since the only customer they need to convince is the law-enforcement agency. So Google and Facebook are spared the need to worry about what posture to strike toward them.
Whole thing here. For a different view, here’s Google’s Senior Counsel on Civil and Human Rights writing together with the chairman of Freedom Partners Chamber of Commerce and general counsel for Koch Industries. [Malika Saada Saar and Mark Holden]
In the case of a federal law providing for the mandatory deportation of lawful permanent residents convicted of a hazily defined “crime of violence,” Justice Neil Gorsuch steps comfortably into Nino Scalia’s shoes as the Court’s champion of void-for-vagueness invalidation of criminal laws whose contours were left overly unclear. “It doesn’t make him a squish. It makes him an originalist,” [Ilya Shapiro, Washington Examiner; opinion in Sessions v. Dimaya] More: Jay Schweikert, Cato.
On the legalities of the raid on Trump’s attorney Michael Cohen, a good place to start is with Ken White’s for the New York Times (his earlier blog post). Also: “Lawyers should be reminding people, pundits and groundlings alike, that this is an extreme measure, a dangerous measure, that may be necessary” but should not be the occasion of glee [Scott Greenfield]
Meanwhile, the New York Times has managed to discover the worst argument.
Under an Alabama law passed before World War II, many county sheriffs can keep what are deemed extra sums allocated for inmate meals but not used for that purpose. Some large counties require the surplus to be turned over to general county funds. Can sheriffs of other counties convert the funds to personal use? In Etowah County (Gadsden), a local resident says he was paid to mow the sheriff’s lawn with checks from from the sheriff’s “Food Provision Account.” [Connor Sheets, Al.com] And in a followup, four days later local police arrested the resident who had told the reporter about being paid for lawn-mowing. The raid, said to have been based on an anonymous call reporting the odor of marijuana issuing from within an apartment, resulted in charges against him later bumped up to felony drug trafficking based on weight: “Once that marijuana was mixed with the butter then the whole butter becomes marijuana, and that’s what we weighed.” [Sheets, Al.com]