Archive for the ‘Punishment’ Category


Last week, nicely summarized what’s going on with the Volkswagen  US emissions cheating scandal, not be confused with the Mitsubishi Japanese emissions cheating scandal. The short of it is that the car manufacturers programmed the computers to output a false set of numbers when attached to an emissions testing machine. They did this for many years. And the real numbers were above those permitted by the law.

It bugged me that, initially, this was blamed on a few engineers. The uppest management tried to make those engineers into scapegoats. This bugged me because I couldn’t believe that this kind of operation could have gone on without some degree of consent from uppest management. Then, about two weeks ago, charges against an engineer were announced. I’m relatively confident that some engineers probably should go to prison over this: the total amount of emissions that were allowed by this gambit were dramatically higher than those permitted by law. And this is the kind of stuff that literally kills people who have breathing problems. But I sincerely hope this is just one guy they will flip so that they can go after the folks that gave the go-ahead. Otherwise, well, I’d be irritated.

When Minors are Adults

Posted: September 15, 2016 by Nazim in Criminal Procedure, Punishment

Get it? Minor miners? Get it?

In NC, if you are a charged with a crime while over 16, you’re an adult. But if you’re the victim of a crime and under 18, you’re a minor. So, two 17-year-old teenagers sexting each other were both, due to NC child pornography laws.

Yeah, it’s weird. More at WNYC’s Note to Self.

Sex Offenders Have…

Posted: September 3, 2016 by Nazim in Punishment, Real Property


A not-so-rare occurrence with sex offender laws that limit where sex offenders can reside is that they simply can’t reside anywhere, or just about. In Milwaukee, a word I love typing, they can only reside in the light yellow areas. So, at the airport or in a couple of golf courses in the northwestern corner of the city, according to my infallible knowledge of Wisconsin and the satellite view on Google. Now, I know nobody cares about child rapists except Chris Hansen. They’re literally the modern version of the bogeyman, but it’s a bit weird that we don’t have registries and maps with the locations of murderers, and don’t forbid them from living anywhere near you. Seriously, there are several websites that show exactly which thousands of sex offenders live next to you right now, and I’m not linking any of them.

More, if you don’t fear auto-playing video, at the Milwaukee-Wisconsin Journal Sentinel.

Background of For-Profit Prisons

Posted: September 1, 2016 by Nazim in Punishment


Last week, the Department of Corrections announced that it would decrease or discontinue use of private prisons. Here is a great article outlining the background of for-profit prisons. The silver lining is this bit, at the very end:

If history is any guide, it may well take decades for the states to follow, but eventually they will.


Among the myriad of ongoing legal debates are marijuana law reform – recently set back by the DEA’s decision to keep it as a Schedule I drug because there isn’t enough evidence for any legitimate medical use, despite the fact that it’s basically impossible to do any research on it because it’s a Schedule I drug – and sentencing reform. I mean who doesn’t like to be the runaway winner of the nation for most of its citizens in prison? I guess we’re just, you know, bad. But, just in case some of us thought that this might be an opportunity to kill two birds with one stone, well, here’s why we can’t, succinctly stated in this excerpt:

There’s no question that the “war on marijuana” is overblown and unproductive. Since the early 1990s the focus of drug arrests nationally has shifted from a prior emphasis on cocaine and heroin to increasing marijuana arrests.  By 2014 marijuana accounted for nearly half of the 1.5 million drug arrests nationally. But while this elevated level of marijuana enforcement is counterproductive in many respects, there is little evidence to indicate that it has been a substantial contributor to mass incarceration.  Of the 1.5 million people in state or federal prisons, only about 40,000 are incarcerated for a marijuana offense.  The vast majority of this group is behind the walls for selling, not using, the drug, often in large quantities.  We could debate whether even high-level marijuana sellers should be subject to lengthy incarceration, but they constitute less than 3% of the prison population.


You’ve probably seen this elsewhere, but I wanted to link the beautiful letter the MO PD sent to the Governor (pdf warning). Now, let’s move on to how the governor could get out of doing the job, because he will. As the letter plainly states, the PD’s office has the legal power to appoint any attorney with a current bar license. There’s no conflict of interest, because the prosecutor is an independently elected office in the great state of Missouri. Maybe the governor can get out it by suspending his bar membership? Well, all my dreams will come true if he takes the case to trial, loses, and then pardons his client.

Hat tip to Nick for highlighting the article on buzzfeed.

We’re at that delightful juncture between law and technology. Again. So, laws protecting technological privacy are purposefully worded vaguely so smart hackers can’t sidestep it. “Unauthorized access” is as simple as me saying “don’t go to my website.” Which, to be honest, I don’t have too much of a problem with. The problem, really, is the potential for a jail sentence, since, while the case linked below is a civil one, it’s based on a criminal statute.


More at the Washington Post from Orin Kerr, longtime blogger at the illustrious Volokh Conspiracy.

“The Ninth Circuit — and two subsequent federal appeals courts — has emphatically refused to turn violations of use restrictions imposed by employers or websites into crimes under the CFAA.”


via the Consumerist

WHAT HAPPENED:  Defendant was convicted of skipping a sentencing hearing, but sentencing was deferred to a later date.  That “later date” was 14 months after his initial guilty plea.

WHY IS THIS BEFORE THE SUPREME COURT:  Good question!!  Although the system tries to get your sentencing together sooner rather than later, the classic “speedy trial” rights that you hear about in the Constitution don’t apply to the time period between conviction and sentencing.  This case asks whether the Court is going to apply Speedy Trial principles to sentencing (probably not), or create a Due Process requirement that requires a time limit between conviction and sentencing (also unlikely).

WHAT IS THE RULING:  This case is not yet decided.

WHAT ARE THE RAMIFICATIONS:  This brings up an interesting issue of what the harm is in this matter.  For one, unlike your right to speedy trial, there is far less prejudice in a delay before sentencing, so the ramifications in either direction seem fairly irrelevant.  This also ignores the fact that most people want as much time before sentencing as possible so they can get their affairs in order before going to prison, so this defendant looking for quicker sentencing could be the legal equivalent of reminding the teacher to give you homework.

ROOT FOR BETTERMAN IF:  You don’t like waiting for things, even long, indeterminate stretches of incarceration.

ROOT FOR MONTANA IF:  Good things come to those who wait.  Except for defendant’s who await sentencing, who are going to prison.

WHAT HAPPENED:  Defendant was convicted of murder and sentenced to death in Pennsylvania.  Somewhere along the line, a Motion for Post-Conviction Relief was granted in favor of Defendant, staying his death sentence.  That finding was appealed to the Pennsylvania Supreme Court, where it was reversed, thus reinstating the death penalty.

WHY IS THIS BEFORE THE SUPREME COURT:  As luck would have it, one of the Judges who reversed Defendant’s successful appeal used to work for the District Attorney in PA before being appointed to the bench.  While in his previous position, he was at least part of the decision to charge Defendant with death.  This potential conflict of interest is the crux of this case, where the Court has to determine whether or not this judge was biased enough to force recusal for Defendant’s appeal.

WHAT IS THE RULING:  This case is not  yet decided.

WHAT ARE THE RAMIFICATIONS:  There are potentially two different questions here that need to be asked.  (1)  Whether this particular judge should have recused himself on the appeal, and (2)  what are the rules going forward for judges in this position, because this judge is not the first or last person from the District Attorney’s Office to get appointed to an appellate court and hear a death penalty appeal.  Putting the specifics of Defendant’s case aside, this case could pass rules concerning under which circumstances judges should be recused based on previous work, which could affect death penalty appeals most specifically since they are both common and highly scrutinized.

ROOT FOR WILLIAMS IF: You are on-board with the “death by 1,000” cuts approach to dismantling the death penalty.

ROOT FOR PA IF: You watch Judge Dredd and think “maybe Stallone is on to something here…..”