This and that

1. There are things I see and hear at sentencing that deaden my soul. Like the parents who made child pornography with their own little kids. The excellent panel lawyer who represented one of the defendants refused to accept my thanks and compliments for taking this horrific case. In chambers, he said, wryly, “Hell, judge, I thought it was a drug case.”

2. A young black man on supervised release on my docket was driving drunk with his pals. A white cop pulls them over. The driver–my kid on supervised release–tries to slide into the back seat. His buddy takes the driver’s seat. He intends to take the rap for his friend. The only problem is that the officer’s cam captures the stupid scheme. As the officer is arresting my supervised release offender, the kid becomes abusive. He brings up Ferguson, Missouri and utters the slogan “Hands up, don’t shot.” Other racial abuse follows. The officer doesn’t react. Later the kid admitted to me that he played the race card in an effort to provoke a fight with the cop and avoid state prosecution that would surely result in his return to federal prison.*

3. I finished my Federal Sentencing Reporter article. It argues that actuarial data relating to similar offenders such as race, gender and age that are empirically correlated with a risk to reoffend should be taken into account at sentencing. It is a detailed rebuttal to General Holder’s speech this summer. I’ll let you know when it comes out.

4. This Thursday, I will be honored to give the George Norris Lecture at the University of Nebraska a Kearney. I will be talking about “judicial activism” and asking whether Nebraska’s first federal judge, Elmer Scipio Dundy, was an “activist judge” when he granted a writ of habeas corpus to a band of Indians. For those of you who read this blog, you may remember I am speaking of the famous Standing Bear case that I have previously written about.

5. Cover_art_for_Firing_Line_program_featuring_William_f._BuckleyI remain tired and weak. Slept most of Friday and Saturday. UNK will kindly allow me to give my lecture from a nice soft chair if I tire at the podium. Sorta reminds me of William F. Buckley’s “Firing Line” where Buckley held forth while seated in a comfy chair. Except my presentation will lack the erudition of the intellectual giant who was Buckley. I do think, however, that I may use a pencil as a prop.



*In the study of rhetoric, there is something called the “moral equivalence fallacy.” See Odessa College, Fallacies of Argument. It suggests that serious moral wrongs are no different in kind than minor offenses. Therefore, and to be clear, the act of an offender provoking a police officer does not justify, for example, the officer shooting the suspect in the back.


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