Short Circuit: A Roundup of Recent Federal Court Decisions

Torture, restraint chairs, public cavity searches, and the secret to eternal youth.

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New on the Short Circuit podcast: A landmark, watershed, and very salubrious ruling from the Michigan Supreme Court on implied rights of action under the state constitution. And also, a starkly different holding from the Tenth Circuit in the wake of Egbert v. Boule.

• Guantanamo prisoner is tortured for information, which the government then includes in legal filings in the prisoner's criminal case. No problem, say the feds, we're not using it at trial, just for discovery matters. That's cool, right? On further reflection, the feds remove the info from the filing and promise not to use the torture-obtained info in future filings. D.C. Circuit: So the prisoner's challenge to the use of the info is variously moot, unripe, without standing, and inappropriate for mandamus.
• Forget about the judicial reasoning in this run-of-the-mill wrongful arrest case from the D.C. Circuit, what on earth is hiding under the redactions?
• Ever fail to click a couple of boxes on an overly confusing computer program and as a result pay an extra $894 mil in principal when you only meant to pay the interest? Well, a guy at Citibank did, and when he and his colleagues realized their mistake the next day—and immediately sent detailed notices asking for the money back—a number of the lenders said "that's funny, but screw you the money's ours now." Were they wrong to keep it? District court: No, life moves fast sometimes. Second Circuit: Yes, they had the money an incredibly short time before the notices went out and should have known something funny was up. Concurrence: This is obvious and why did we take a year to decide? "Possession is not ten-tenths of the law."
• Former biopharmaceutical-company employee: As a condition of my employment, I had to give the company a ton of sensitive personal and financial information, which was later accessed by a hacking group and distributed on the dark web. Class-wide damages and equitable relief please. District court: No standing. Third Circuit: She's seeking damages for the release of her personal information on the dark web and she claims, among other things, that her former employer breached its employment agreement with her by failing to secure her info. Sure seems like a controversy to us. Concurrence in the judgment: Agreed, and we could have said so in far fewer words. (Also, Third Circuit, we're capitalizing "Sister Circuits"?)
• Texas City, Tex. fire dept. official who does not have the authority to detain anyone nevertheless detains two emergency medical technicians over a permit violation. ("You are detained. You are not allowed to leave. … [G]et the F back into the vehicle.") District court: Could be an unconstitutional seizure, but there's no prior case on point. Qualified immunity. Fifth Circuit: Reversed. Before an official can raise QI as a defense, they must show they were acting within the scope of their authority—an "oft-overlooked threshold requirement." [Ed.: At this very moment, IJ is asking the Supreme Court and asking the Tenth Circuit to remind courts of this requirement.]
• Twelve days of Christmas are enough to get you more partridges than you probably wanted, but, says the Fifth Circuit, twelve days of a preliminary injunction before your case is mooted by legislative reform are not enough to make you a "prevailing party" for purposes of recovering fees.
• Allegation: Middle-aged man grabs seven-year-old by the neck after the boy accidentally dropped raisins in front of the man's home. When a Fort Worth, Tex. officer arrives, he asks the boy's mother "Why don't you teach your son not to litter?" She does not take kindly to this; after some shouting and jostling, the officer arrests her and her 14-year-old daughter. And then, after the situation had de-escalated, the officer arrests an 18-year-old daughter who had been filming the incident, shoving her against his patrol car, ripping the phone out of her hands, handcuffing her, and then—when she declined to give her name—wrenching her arm behind her back causing "excruciating pain." (Internal affairs officers recommend firing the officer for using excessive force and lying in his affidavit. Instead, he's suspended 10 days.) Fifth Circuit (February): Qualified immunity for everything. IJ amicus brief: Surely not for the arm wrenching? Fifth Circuit (this week): "Nothing in our opinion should be construed as suggesting, much less holding, that officers may use pain maneuvers to force non-resisting individuals to respond to questioning." The 18-year-old was actively resisting arrest. Qualified immunity.
• Allegation: Boyd County, Ky. jail staff used excessive force putting inmate into a restraint chair and then tightening straps around his neck until he passed out. As it happens, the DOJ conducted an investigation at the jail, noting that an inmate died of blunt force trauma while in a restraint chair and that at least two other inmates were strapped down with their genitals exposed to passersby. District court: Ah, but the plaintiff can't sue the municipality unless he shows a pattern of mistreatment. Which he can't do because the DOJ report is inadmissible. Sixth Circuit (unpublished): It's admissible, and (over a dissent) a jury might see a pattern.
• Allegation: Memphis police subject man to forcible anal cavity search on street in full public view. He tries to obtain public records relating to the incident, but the city conceals the info until after the one-year statute of limitations expires. City: Shouldn't have missed that statute of limitations! Sixth Circuit (unpublished, over a dissent): The man's suit can proceed.
• Debt collector sends Missouri bankruptcy attorney a debt-collection letter for one of his clients. Except the client isn't the lawyer's client at all. The lawyer's never heard of the person. So (as one does) he sues the debt collector for violations of the Fair Debt Collection Practices Act. Eighth Circuit: Yeah, the debt collector may have violated the FDCPA, but the statute exists to protect consumers, and you—random lawyer dude—aren't the kind of plaintiff who can sue to enforce it. Dissent: Actually, the statute unambiguously gives the random lawyer dude a cause of action.
• Following his arrest for a three-month burglary spree that nabbed about $5k worth of property, 21-year-old Arizona man turns down a plea deal and goes to trial. He's convicted of 25 counts, with all but two of the sentences to be served consecutively. A total of 292 years in prison! Is this punishment so grossly excessive that it violates the Eighth Amendment? Ninth Circuit (over a dissent): Might be wrong, but none of the individual sentences are unconstitutionally excessive, and the Supreme Court has never said we should add them all up, so no habeas for this guy.
• Ninth Circuit (2013): Talk therapy is, for First Amendment purposes, not speech but instead a form of medical conduct, no different from brain surgery. Supreme Court (2018): That Ninth Circuit case, specifically, was wrongly decided because it treated speech by professionals different from speech by nonprofessionals. Ninth Circuit (2022): But we've already established that talk therapy is not speech, it's conduct, like brain surgery, so we reach the same conclusion.
• Allegation: At DHS officials' instigation, ICE agent is charged with inflating her overtime pay. The criminal case lasts three years until an Orange County, Calif. prosecutor tells the judge it's bogus. District court: But she can't sue the DHS officials under the Federal Tort Claims Act; officials need leeway to do their investigations and present evidence as they see fit; they get discretionary function immunity. Ninth Circuit: Reversed. They don't have discretion to make up false allegations, lie under oath, and doctor evidence. Also Ninth Circuit (unpublished): Nor was she required to file her constitutional claims while the criminal case was still pending. Some of those claims are undismissed as well.
• Allegation: Man dies from complications related to alcohol withdrawal at Uintah County, Utah jail after staff failed to give him his medication and sat by while his condition worsened. Defendants: Okay, but none of these earlier cases about deliberate indifference to an inmate's medical needs were about alcohol withdrawal. Tenth Circuit: And yet the law is clearly established. No qualified immunity, and the county may be on the hook too.
• What is the secret to eternal youth? If 92-year-old Senior Judge Gerald Bard Tjoflat is any guide, the trick is to voluntarily elect to participate in Eleventh Circuit en banc cases about Article III injury-in-fact (and have your panel dissent vindicated by a majority of the full court).
• Do the FAA's new air traffic control measures around south and central Florida airports keep people from getting a good night's sleep? Eleventh Circuit: Doesn't matter. There's no such thing as a right to sleep (unless you're in prison).
• And in en banc news, the Fourth Circuit will not reconsider its order denying the defendant (a prominent Baltimore attorney convicted of money laundering) release pending appeal. Dissent: There's no relevant factual difference between this motion and that from former Virginia Governor Bob McDonnell, which we did grant.
• And in amicus brief news, IJ is asking the Eleventh Circuit to let a U.S. business and its Bolivian customer challenge the forfeiture of $9k cash that the customer sent to the business via courier—a courier who decided to smuggle some cocaine into the U.S. on the side. As part of his plea deal, the courier agreed to forfeit the cash. The business and its customer want to argue that their transaction was entirely lawful, but the district court dismissed their petition on the basis that they lack standing because of perceived deficiencies in their (perfectly adequate) initial pleadings, which were filed within the strict 30-day deadline. Worse, the court said that—unlike all other civil pleadings—forfeiture petitions can't be amended after the filing deadline. But there's nothing in the statute that imposes these heightened pleading requirements on property owners, and this case should be decided on the merits.

Friends, Brandy Davis is an experienced eyelash extension specialist from Texas who recently moved to Oklahoma. But Oklahoma won't let her work as an eyelash extension specialist unless she spends hundreds of hours obtaining a cosmetology or esthetician license—licenses that require no training in eyelash extensions, only lots of training in other things Brandy does not wish to practice. That does not make sense, and the Oklahoma Constitution protects Oklahomans' right to earn an honest living free from senseless regulations, so this week IJ and Brandy sued the Oklahoma State Board of Cosmetology and Barbering. Click here to learn more.

Comments

[Jerry B.]

"Forget about the judicial reasoning in this run-of-the-mill wrongful arrest case from the D.C. Circuit, what on earth is hiding under the redactions?"

Gotta protect the MPD.

[Bubba Jones]

Seems to be describing Lin and her actions.

Was she naked? Eating a ham sandwich?

[Davy C]

"She then sat [???] on the chair."

"Although Lin remained seated and [???]..."

"Still, the video footage indicates Lin stood [???] and [???]"

"One of the officers said [???] even though Lin, who is only 5 foot 3 inches, was already [???]."

"Just a few seconds before the officers instructed Lin to stop resisting, they ordered her to [???] even though she was already [???]."

These aren't big redactions. One, maybe two words for most of the ones I posted. It looks like they're redacting the manner in which she's sitting and standing. My best guess is there's a disability involved? I'm not sure why that warrants redaction, especially if it's something the other people could see for themselves.

Anyone for Mad Libs?

[Davy C]

"She then sat [down] on the chair."

"Although Lin remained seated and [quiet]..."

"Still, the video footage indicates Lin stood [up] and [shouted]"

"One of the officers said ["Dunk!"] even though Lin, who is only 5 foot 3 inches, was already [dunking]."

"Just a few seconds before the officers instructed Lin to stop resisting, they ordered her to [resist] even though she was already [resisting]."

[Davy C]

Actual language from the now-unredacted opinion:

"She then sat [quietly] on the chair."

"Although Lin remained seated and [quiescent]..."

"Still, the video footage indicates Lin stood [motionless ] and [passive]"

"One of the officers said ["stand up!"] even though Lin, who is only 5 foot 3 inches, was already [standing up]."

"Just a few seconds before the officers instructed Lin to stop resisting, they ordered her to [stand ] even though she was already [standing].

Why redact that??

[Krayt]

Sergeant Ritchie asked, [Redacted....................]

Sergeant Ritchie asked, "Do you like the new Rings of Power on Amazon Prime?"

I can see why this is controversial.

[John F. Carr]

"Experienced eyelash extension specialist" reminds me of "telephone sanitizer, second class".

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Makes one wonder what the US Navy rating badge would be.

[F.D. Wolf]

In Tingley v. Ferguson (2022), the Ninth Circuit upheld Washington's "conversion therapy" ban, relying heavily on its decision in Pickup v. Brown(2013), upholding a similar California ban.

But as noted, in the interim the Supreme Court had decided National Institute of Family and Life Advocates v. Becerra (NIFLA), which struck down on First Amendment grounds a California statute requiring crisis pregnancy centers to provide abortion information to patients. In NIFLA, the Supreme Court specifically said Pickup was wrongly decided. The Eleventh Circuit, citing NIFLA, recently struck down a "conversion therapy" ban in Otto v. City of Boca Raton (2020). So, there is a circuit split.

It seems to me that the Ninth Circuit is (again) ignoring the Supreme Court and will likely get reversed (again) if the Court reviews the decision. And, of course, we can anticipate the "Supreme Court Gives Approval to Conversion Therapy" and the accompanying leftist histrionic freakout.

[y81]

Yes, but valorizing gays is a top priority at the Conspiracy. So don't expect any criticism of the Ninth Circuit on this issue here.

[Bob from Ohio]

"Patsalis was convicted of 25 felonies (mostly
residential burglaries) committed against multiple victims
over a three-month period. These were not his first crimes"
"At sentencing, the trial judge found that Patsalis was a
category three repetitive offender because he had two prior
felony convictions that impacted his sentencing calculation.
The trial judge also considered Patsalis’s lack of empathy for
his victims; that his victims included elderly, retired people"

The Arizona "Justice" Project should look up the word's meaning. He got what his deserved justice.

[LawTalkingGuy]

Big surprise, one of the cruelest most openly immoral commenters supports this and pretends that this is justice. Which leads to a few questions:

1. Did you pay attention in and pass criminal law? Because if you did, you would understand the principles of justice and purposes of sentencing. None of which support this sentence. Therefore I think it is you who needs to look up the meaning of "justice." If a sentence can't be justified on either retributive or utilitarian grounds it is simply not just, it is just a cruel torture.

2. Are you okay with someone being subject to rape or medical negligence as a punishment for property crime? Cause that risk is high with a life sentence. Would you be willing to stand by and let someone die of an easy to treat disease in jail or watch them be sexually assaulted over $5000? What about $500? $5? Five cents? How much cruelty are you willing to inflict on someone in support of your perverted sense of "justice?" Would you be willing to engage in it yourself? Would you keep someone locked in your basement for 300 years if they stole from you?

3. Because you are a person who exists in the United States you have likely committed several violations of various criminal codes without remorse. Would you think it is justice if someone sentenced you consecutively on those to an American prison?

4. Finally, since you are presumably so perfect, you would have absolutely no problem with someone doing a deep dive into your personal and professional activities over the course of your life and sentenced you to a rate of 18.25 days for each ill-gotten dollar you've made over your life. Take more than your fair share of fires from a friend's plate? Pad a legal bill with more hours than were necessary? Overpromised and underdelivered and caused a loss? Would that be fair, Bob?

[QuantumBoxCat]

Setting aside the AEDPA procedural issue, the aspect of this case that I find most troubling is the State's abrupt switch in its view on sentencing. According to the linked appellate position, "Patsalis turned down two plea offers from the State: a seventeen-and-a-half-year prison sentence, and an offer of a sentence between ten and twenty years, leaving the exact jail time to be determined by the sentencing court." The trial judge "explained the terms of the deals and that Patsalis faced up to 490 years' of imprisonment if he went to trial." At the sentencing stage, "[t]he State urged the court to impose the maximum sentence for all but two of Patsalis's convictions and argued that the sentences should run consecutively ... The State represented that it would understand if the trial court imposed a concurrent sentence for three of the charges because they related to the same victim."

So, the maximum sentence that the defendant faced was 490 years in prison. The State, prior to trial, believed a 10 to 20 year sentence was appropriate. After the defendant was convicted at trial, the State argued for maximum sentences on all but two counts, presumably putting the sentence towards the 490 year maximum. The trial judge ultimately imposed a cumulative sentence of 292 years. The State was will to accept a plea that would have put the floor on sentencing at 10 years, where the ceiling was 490.

The gap between those two numbers is utterly astounding. The only thing that changed between the plea offer and the State arguing for something close to the maximum was that the defendant exercised his right to a trial. The defendant "trial penalty" (the sentence imposed for taking your case to trial) was 272-282 years. I understand the rationale underlying the plea bargaining process, but sentencing loses any semblance of "justice" when variance is as wide as it is in this case.

Why did the State initially believe a sentence of 10-20 years was "just" but then decide that a sentence of close to 400+ years was "just"? In my view, the plea offer made by the State should be a relevant factor in determining whether the sentence is grossly disproportional to the crime(s). A sentence of 292 years when the State was willing to accept of minimum of 10 years is, to me, grossly disproportional.

[LawTalkingGuy]

It’s a deep structural problem with the plea bargaining system. The state will offer things they say are “fair” sentences based on what they did and then make sure there is a major penalty when someone exercises their trial rights. So it’s not clear what they think is fair. But it also works the other way too. Prosecutors with a tough case to prove or a somewhat uncooperative victim will offer extremely reduced charges or lenient sentencing recommendations even if they would think that a higher sentence would actually be just based on what they think the defendant did.

Another issue is the government culture of reflexively defending judicial decisions that are in their “favor” on appeal. There’s actually no reason to do this, other than to ensure the existence of trial penalties, in the sentencing context. A ridiculously high sentence might not actually be in the executive’s interest! It might not achieve justice and might also just be ridiculously expensive in the long run for little benefit. I mean…life in prison and a lifetime of defending one outlier sentence probably aren’t worth the costs to the executive (or the courts).

[jimc5499]

"Another issue is the government culture of reflexively defending judicial decisions that are in their “favor” on appeal. There’s actually no reason to do this, other than to ensure the existence of trial penalties, in the sentencing context. A ridiculously high sentence might not actually be in the executive’s interest! It might not achieve justice and might also just be ridiculously expensive in the long run for little benefit. I mean…life in prison and a lifetime of defending one outlier sentence probably aren’t worth the costs to the executive (or the courts)."
You are leaving politics out of these decisions. If a verdict is overturned on appeal, a political opponent can play that as the Prosecutor not being qualified for the job.

[tkamenick]

I don't see these as "trial penalties". The default position is the statutory punishment, knowing you could get the maximum. Anything better than that the criminal gets is a reward to them for admitting guilt and saving the prosecutors' resources.

[Rev. Arthur L. Kirkland]

If you want more authoritarian asshole decisions (like that grabbing-a-seven-year-old's-neck-for-dropping-raisins and arrest-a-citizen-for-filming-assholes-in-police-uniforms case) from the Fifth Circuit, keep putting right-wing Republican assholes on that court.

[LawTalkingGuy]

Imagine sentencing a 22 year old to life in prison for non-violent felonies, conceding on the record that your own sentence seems "harsh" and "incomprehensible" and then having the nerve to also wonder aloud whether the defendant is a sociopath.

Prison entails:

1. An increased risk of physical and sexual violence at the hands
of both inmates and guards
2. Increased risk of health problems from poor diet and
unsanitary conditions.
3. Increased risk of being subject to medical negligence. And
indeed, Short Circuit itself shows examples of this all the
time.
4. Collateral consequences on this person's family, friends, and
associates

So in short the supposedly non-sociopathic judge sentenced the supposed sociopath to a lifetime of brutality and violence over $5,000.

In addition to the cavalier attitude to what prison entails in real terms to the sentenced, the judge's sentence fails every single rationale for appropriate sentencing.

Retribution: Under Kantian retributive theories this sentence is absolutely absurd. It is simply not "just desserts." If anything it is actually insulting to victims of other more serious crimes that this guy got 292 years, when someone who commits one act of murder or rape or a violent physical assault might get less.

As for the utilitarian principles of punishment and sentencing, it fails those as well.

Specific deterrence: to the extent this is achieved by sentencing someone to die in prison, I suppose it technically counts as specific deterrence for them to commit similar crimes in the future. But it costs society way more to house this person for life when the number needed to deter them from future crime is much lower.

General deterrence: the judge hung his hat on this, by talking about the message to the community, but this is nonsense. General deterrence is achieved by widespread knowledge of the certainty of punishment. This is not the case here, and deterrent effect of punishment drops off after certain lengths. A ten year sentence likely has no more deterrent effect than a five year sentence for robbery. And to the extent this sentence is widely known, the message isn't don't rob in AZ...it's: this judge is a bonkers sentencer.

Rehabilitation: completely ignored, obviously. And it should be a MAJOR consideration for youthful offenders. Judge completely failed here

Incapacitation: technically achieved, but like with specific deterrence, costs society way more than is necessary to keep him from committing similar crimes. Completely at odds with utilitarian purposes.

And this result is countenanced by judges and prosecutors more concerned with procedural formality than actual justice or the text of the Eighth Amendment. Cruel and unusual on every level.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I agree it's too long a sentence, but not with your reasoning.

He burgled 25 houses. You ignore all the suffering of very single one of those victims , and it's not just material loss made up by insurance; it's the violation of privacy, knowing someone has poked around your underwear drawers, the collateral damage and mess, the cleanup time, haggling with insurance companies and police, buying replacements which may not all be as good as the originals, worrying for months and years if your house will be burgled again, wondering if there will be a burglar still inside that you don't know about.

Your empathy for the irredeemable career criminal is fine; where's your empathy for those 25 families and their neighbors?

[LawTalkingGuy]

“Your empathy for the irredeemable career criminal is fine.”

He was 22. It’s absurd to call someone that age either irredeemable or a career criminal at that point. I don’t know if you realized this, but a whole lot of people age out of crime and reform themselves when given the support and chance to do so.

“where's your empathy for those 25 families and their neighbors?”

It’s present and fulfilled by hoping for an actual appropriate sentence, not a cruel and ridiculous one. Indeed empathy for the victims also require us to consider how the thought of a disproportionate sentence will weigh on their conscience. I was mugged by some teenager in law school. Took my phone and laptop. Insured so no biggie. I was scared and upset obviously, but do you know what would have made it much worse? Knowing that some asshole judge “empathizing” with me decided to sentence them to the max. That would frankly harm me more than the mugging. Indeed, I’ve seen victims speak at sentencings who didn’t think maximum punishment in their case would serve their interests or the interests of justice.

Empathy also requires, as I alluded to above, consideration of what the sentence would mean to victims of other crimes. Imagine you were raped and your rapist got ten. This guy gets 292. Doesn’t that devalue the severity of your harm?

So my empathy is in the right place: victims, the defendant, and society as a whole are not served well by this sentence.

[ducksalad]

You have some good points. But I disagree with you on this one:

"Incapacitation: technically achieved, but like with specific deterrence, costs society way more than is necessary to keep him from committing similar crimes. Completely at odds with utilitarian purposes."

We could (maybe) decide to indefinitely and repeatedly tolerate someone who keeps shoplifting and can't control it, as long as each cycle involves some restitution to the victims. But continuing to break into people's houses will eventually lead to someone getting killed, most likely himself.

So what is your proposed method to get him to stop doing it? You said there is a way that costs society less. The previous felony convictions and incarcerations did not succeed in getting him to change his conduct. Do you have some convincing reason to believe that X years would do the job, and if so, what is X?

Life does seem harsh. But I could see a sentence of 5 to life, with release conditional on a parole board believing something fundamental has changed.

[LawTalkingGuy]

utilitarian theories of punishment need to be viewed against its conception of the greatest good for the greatest number. You can incapacitate people by killing then and they won’t commit any crime ever. You could prevent someone from jaywalking again by executing them. But that wouldn’t achieve the greatest good for the greatest number. And so when we think about the incapacitation rationale it needs to be tailored to the needs of a society as a whole and sometimes the cost is too great, particularly when sociological research demonstrates that youth age out of crime. So here the incapacitation rationale should last only as long as would reasonably be necessary to reform this individual and make him not a criminal. That would likely increase the net good in society more than simply locking him up for forger.

[LawTalkingGuy]

*forever

[David Nieporent]

You could prevent someone from jaywalking again by executing them. But that wouldn’t achieve the greatest good for the greatest number.

On the other hand, executing people who drive 50 mph in the left lane…

[Rev. Arthur L. Kirkland]

Two Republicans put on the bench relatively early -- and thus chosen as likely for ideological predictability as for achievements or qualifications -- on the authoritarian side of this one.

The sentencing judge (district court) is a Republican, too.

I wouldn't expect those judges to demonstrate much concern for a defendant unless than defendant is a Republican elected official or candidate.

[Michael D]

I agree and I agree with your reasoning. Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf has a point about the necessity for punishment brought about by the loss to the victims but your points about retribution, specific deterrence, general deterrence, etc are all, IMO, valid arguments.

The alternative to this multi-year sentence is not to just ignore the crimes and release him. There are many alternatives to prison, especially for property crimes. The combination of probation and restitution would seem to be a better alternative, but that is just my personal opinion.

What I do know is that your 4 points about the detrimental impact of prison are something which most people choose to ignore in their wish to lock people up and throw away the keys and the belief that if enough people are in prison, crime would be stopped.

[David Nieporent]

The combination of probation and restitution would seem to be a better alternative, but that is just my personal opinion.

See, if I were forced to choose only between life in prison and "probation and restitution," I'd pick the former. Restitution is fictional; a guy doing dozens of burglaries just for penny-ante scores is not going to come up with $5,000 (the actual number is much higher) to compensate his victims. All it will do is trap him in long term debt, and keep him out of the legitimate economy.

And "probation" is a joke. "You've done a lot of bad things. Don't do it again, or this time we'll send you to prison. This time we mean it." (Remember that he had already been to prison.)

[Toranth]

Well, you've declared that imprisonment for any crime is something you view as 'morally unacceptable' because you think it is equivalent to rape and violent abuse. And you've previously declared all forms of corporal punishment to be 'immoral'.
So. Even ignoring the not-even-wrong nature of your claims, what do you think should be done to this person?

The guy spent three months targeting specific people to be robbed, choosing to target the elderly and infirm over others - and not for the first time, as his previous convictions show. He stole things ranging from unimportant (a drill) to essential (a car). When he found out that one of his victims was related to someone he knew, he them admitted to feeling bad about that one crime, but not any others.

So what do you think should be done to this unrepentant criminal that has already had the chance - as an adult! - to change his ways, but refused to do so?
How do you prevent him from victimizing more people?

[David Nieporent]

I can't sign on to your analysis.

A few observations, and then a response:

1) The obvious: 292 is just a number. Even for Betty White, that would've just been a fancy way of saying "life sentence."

2) I think that the sentence should be analyzed as a whole under the 8th amendment, rather than parsing it by individual offenses. (We've seen the same issue with excessive fines under the 8th amendment: courts have rejected arguments — including by IJ — that a daily fine for violating some municipal ordinance, like not mowing one's lawn, should be evaluated on an individual daily basis rather than by the total fine imposed.)

3) We should all agree this is an absurd application of the trial tax. Brownie points for accepting responsibility is one thing. So you get 20 years instead of 22 if you plead guilty. But if the prosecutor originally thought 20 years was reasonable, then that should be the ballpark of the sentence even if you go to trial.

4) As far as we can tell, he's not guilty of violent crime. That should generally put some sort of upper limit on a reasonable sentence. (But not as a hard and fast rule; Bernie Madoff wasn't violent either.)

But… I can't agree with your minimization of the crime by saying, "Oh, this is just theft of $5,000." First, there's no way that the guy committed exactly 25 burglaries and they identified every one. If they proved he did 25, he probably did 75. There were undoubtedly burglaries for which he wasn't caught, and indeed smaller burglaries that were never reported to the cops.

Second, the cost of a crime — especially a residential burglary — is not limited to the amount obtained by the felon. The impact on the victims is significantly greater than the value of what was stolen. Setting aside the out-of-pocket costs, there are psychological costs. It's obviously orders of magnitude lower than actual rape, but having one's home broken into makes one feel violated. And having a massive string of burglaries in a neighborhood makes everyone in the neighborhood feel unsafe, not just the direct victims; it's corrosive. It's not linear; 25 thefts of $200 is worse than one theft of $5,000.

You also ignore that he had been to prison before, and it hadn't deterred him in any way.

You're also trying to have it both ways with respect to prison. On the one hand, you argue that we should be realistic and realize that prison is a terrible place where he's likely to suffer brutality and violence. But on the other you argue that the judge failed to consider rehabilitation. Anything is possible, but he's in his early 20s and is already a career criminal; you think he's going to spend just 10 years in this violent environment and then come out at age 30 as a law-abiding citizen?

[John F. Carr]

I did not know until today that the various Department of Justice reports on how awful various law enforcement agencies are were admissible evidence under federal rules.

The dissenting judge in the Boyd County case wants the plaintiff to produce evidence "on how many excessive force incidents would be normal for the jail" before the county can be held liable for a the jail's custom of strapping prisoners into a chair and beating them.

[Michael D]

Abolish occupational licensing.

“ Most importantly, occupational licensing raises the cost of people practicing a given vocation, and so reduces the ability of people to access their preferred type of work, or to be able to find work at all. A consequence is that many, particularly those on lower incomes, are seriously curtailed from reaching their potential and living a more satisfying life. An attendant effect is to reduce labour market efficiency – as people are in occupations they are not as suited to – which reduces economic efficiency and economic growth.

Further, a large and growing body of evidence, mostly from the United States, shows that occupational licensing reduces wages and employment for those outside of licensed professions, increases wages of incumbent employees, reduces labour mobility, and raises prices for consumers which has a regressive effect.

To make matters worse, proponents of occupational licensing claim they are supporting a noble purpose. For example, proponents of occupational licensing often claim licenses are needed to keep incompetent, predatory, and untrustworthy suppliers out of the market. But the best available evidence does not support these claims. Firstly, people should be free to purchase cheaper, and potentially lower quality items. Secondly, the preponderance of evidence shows occupational licencing doesn’t raise quality or improve the safety of products and services. Thirdly, occupational licensing increases prices which falls most heavily on low income individuals. And by raising prices, occupational licensing creates incentives for people to economise on, or avoid, the use of regulated products and services. This decreases living standards and can result in injury or death. Finally, claims occupational licensing is required to address supposed information asymmetries are now largely redundant given technological development.”

https://ipa.org.au/wp-content/uploads/2018/06/Submission-to-Red-Tape-Committee-Occupational-Licensing-040518.pdf

[Rev. Arthur L. Kirkland]

Let's see what Bannon gets for fleecing gullible, downscale dumbasses out of tens of millions of dollars.

[bevis the lumberjack]

Almost every week I read this and find myself asking how we continue to find all these sadistic cops.

[SRG]

FWIW enforcing laws against the use of steroids by cops would help.