Very important correction

I screwed up. In my post yesterday addressing Scott Greenfield, I attached a photograph that I believed portrayed Scott’s classic sports car. I got the wrong photo.

Since this is a matter of some importance to me (I plan on trying to steal Scott’s car), I have now obtained a photo that correctly depicts the auto. Boy, do I covet that thing. Anyway, sorry for the error.

Here is a correct photo of the classic owned by SHG:

Scott's classic sports car with his son (now at MIT), age 14, behind the wheel.

Scott’s classic sports car with his son (now at MIT), age 14, behind the wheel.

Some things are more important than others.

RGK

Memo to Scott Greenfield: Now is not the time to attack Smokey the Bear

Like my affection for the Sentencing Reform Act (a part of Comprehensive Crime Control Act of 1984, Pub.L. 98–473, S. 1762, 98 Stat. 1976, enacted October 12, 1984), the Sentencing Commission and the Guidelines regime, I love Smokey the Bear. I had my own Smokey when I was about 8. My damn brother threw him into the bath and since my Smokey was stuffed with straw he began to smell just like a real bear.* My Smokey soon went missing, along with the foul odor flowing out of him like a bear on beans.

However, I did not know then that, like the Sentencing Commission, Smokey was the product of an Act of Congress that dealt with criminal penalties. See Smokey Bear Act of May 23, 1952, P.L 82-359, Ch. 327, 66 Stat. 92;18 U.S.C 711; 16 U.S.C. 580p-2 (“Whoever, except as authorized under rules and regulations issued by the Secretary of Agriculture after consultation with the Association of State Foresters and the Advertising Council, knowingly and for profit manufactures, reproduces, or uses the character ‘Smokey Bear’, originated by the Forest Service, United States Department of Agriculture, in cooperation with the Association of State Foresters and the Advertising Council for use in public information concerning the prevention of forest fires, or any facsimile thereof, or the name ‘Smokey Bear’ shall be fined not more then $250 or imprisoned not more then six months or both.”).

With the foregoing in mind, I now turn to Scott H. Greenfield (Simple Justice) directly and his post entitled The Fallacy of Sentencing Deference. In that post, and in a powerful style unique to SHG, he takes me on for my post entitled Perhaps it is chemo fog, but I’m getting soft on crime. In that post, I strongly endorsed doing away with mandatory minimums, but also wrote that: “I always have been, and remain, a strong supporter of the Sentencing Commission and the Guidelines.”  That Guidelines stuff set SHG’s teeth to gnashing.

SHG wrote:

Of course, there is no sound basis for the fact that the Guidelines were crafted at the outset around mandatory minimums, skewing from the outset the perception of proper sentencing and thereafter producing a generation of absurdly severe sentences to form a data set of normalcy for imposing life plus cancer on defendants.

So who needs mandatory minimums anymore? They served their purpose, as new federal judges never practiced law a day in their lives when sentencing took into account the hunger in a child’s stomach compelling a mother to carry a bag with ten kilos of heroin across a border, who think a sentence of 121 months was handed down to Moses on Mt. Sinai.

But for judges with 22 years experience molding the lives of children of uneducated parents with little expectation of feeding them because IBM wasn’t hiring minorities from Fort Washington that day for executive vice president positions, falling back on the magical voodoo of the commission made it perfectly acceptable to impose sentences of decades, lifetimes, for hard, bad choices, for the frail-minded, for the traumatic brain-injured from a few clubs to the head during their youth, for the angry, the miserable, the hopeless, the cynical. After all, the Sentencing Commission said this was the correct sentence, and they must know best.

Thus, the court defers. And loses no sleep at night knowing that the magical voodoo of the United States Sentencing Commission is right and just.

(Emphasis in italics by Kopf.)

Let me first say two things about SHG or his post without intending to curry his favor. (There is no real chance of doing that anyway, and we both know it. However, others might not.) As I have said before, and now say again, I think SHG would make a terrific federal district judge. I would be honored to have him as my colleague.

Furthermore, the most powerful of Scott’s criticism is the ending sentence to his post. Summarized, it this: federal district judges who are believers in the Guidelines regime (like me) can, and sometimes do, fool themselves into ignoring the human carnage that they (and they alone) impose by the draconian sentences fairly frequently called for under the Guidelines. By such self-delusion, judges do terrible harm and they do so without any legitimate excuse.

Now, I want to address SHG directly on several other things. The reader can tag along.

Scott, I assume you abhor unchecked forest fires and concede that all of us should band together to do everything we can to put them out. But because you practice criminal law in New York, because you drive a really neat classic sports car (that I sincerely covet)** and because you are, above all else, a realist, I assume that you also believe that Smokey the Bear is a silly creation of 1950 era advertisers that serves no useful purpose.

But, here is my point:  Statutory minimums are like raging forest fires. We absolutely must put them out. The Sentencing Commission is like Smokey the Bear. If we have to kill him, we can do that later. Let’s not fight about that now.

I deeply fear that such arguments will distract from the most important message that you and I both agree on: Death to statutory minimums. I can just hear the refrain now in Congress by rabid Republicans nut cases:  “They say they want to do away with statutory minimums, but don’t be fooled; this is really all about liberals, criminal defense lawyers, Holder and Obama killing the Sentencing Reform Act and the Sentencing Guidelines while letting all the predators out of prison.”

SHG, I bet you are typing a response now. It has something to do with me being a chicken shit unwilling to engage you on the merits of the Guidelines. Stop! If you really want to argue about the Guidelines, I am willing.  After all, you are far more media savvy than I am. You might be right that nothing you say or I say will distract the dumb asses in Congress.

So, if you conclude that now is the time to fight about the merits of the Guidelines regime, let us have at it. But please let’s avoid generalities. I propose that we start with average and median sentence lengths and sentencing disparity. If you decide that now is the time to have that debate, and agree that we should write first about average and median sentence lengths and sentencing disparity, you go first and I will follow.

What say you?

RGK

*Kip, assuming you read this from your home near Cleveland while contemplating other nasty things to do to me from that far away, I am still really pissed off at you for turning Smokey the Bear into Stinky the Bear, as you laughing called him. This remains true despite the fact that Mom loved you best and gave me all sorts of excuses why you should not be staked to a pine tree and burned to death in a raging forest fire. Bastard!

**SHG’s classic.

Photo credit: Photo by RGK of image on Scott's Twitter page.  Fair use claimed.

Photo credit: iPhone photo by RGK of image on Scott’s Twitter page. Fair use claimed. (I have no earthly idea what that claim means, but it sounds good and legal.)

Shutting the barn door after my “dirty old man/slut” post has made it round the world

Despite this blog, I don’t understand how the Internet really works. I once had a case that forced me to gain a little knowledge about how things really worked but what I leaned was like a 100 level course in remedial math. I can multiply small numbers. So, take what I write next with a huge grain of salt.

Over at Simple Justice, SHG has written an interesting post about the European Court of Justice’s decision to tell Google that if I get drunk and start french kissing Zoey and Elvis, our dog friends across the fence, and if I take a “selfie” of my behavior and post it, not all is lost when I wake up with a hangover and dog breath.  After a certain point in time, I can tell Google to make the image impossible to find.  I think the ruling also requires the same thing for old writings. At least that’s what I think the decision requires.

Here’s a more precise description:

Europe’s highest court said on Tuesday that people had the right to influence what the world could learn about them through online searches, a ruling that rejected long-established notions about the free flow of information on the Internet.

A search engine like Google should allow online users to be “forgotten” after a certain time by erasing links to web pages unless there are “particular reasons” not to, the European Court of Justice in Luxembourg said.

The decision underlined the power of search companies to retrieve controversial information while simultaneously placing sharp limits on their ability to do so. It raised the possibility that a Google search could become as cheery — and as one-sided — as a Facebook profile or an About.me page.

David Steitfield, European Court Lets Users Erase Records on Web, New York Times (May 13, 2014).

Anyway, SHG’s post, and the Times article, got me thinking. (I know.)  I want help from the readers to answer the following three questions:

  1. Is the decision essentially irrelevant to most users here in Amerika?
  2. Is what the “Court” ordered technically feasible?
  3. If what the “Court” ordered is technically feasible, should I tell Google to shit can my “dirty old man/slut” post or should I leave it up as an example of the new age of enlightenment?

If you know anything about the Internet, or even if you don’t, I am interested in your answers to one or all of my questions. For younger readers who need to pad resumes, and assuming you help me out, you and each of you have my permission to add something like “Pro bono adviser to dirty old man about the Internet” to your list of accomplishments.

RGK

 

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