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Should We Ever Have LWOP for Juveniles?

Since the Supreme Court, acting as it so often does on its own tastes, outlawed mandatory LWOP for juvenile murderers, there has been a raging debate whether LWOP should ever be allowed for adolescent killers. You can guess which side academia, the press and the one-direction-only defense bar take.

This grisly story will not make them reconsider, because nothing makes them reconsider. That's because, despite their demand for "evidence-based sentencing," they are not about to take an honest look at any actual evidence when it undermines their predetermined position.


The biggest problem with Miller is the rationale behind it that juveniles are less blame worthy because their brains haven't fully developed is devoid of any scientific suppport. Indeed, all of the arguments about the science is cited to back to Graham (bad opinion) there or to "common sense".

I believe that LWOP is appropriate in some cases involving juvenile murders. Indeed, in some cases involving other violent crimes committed by juveniles.

But I don't believe that the underlying murder conviction discussed in the article cited by Bill should, in retrospect, have been coupled with an LWOP sentence. In my mind, it simply didn't rise to the level of seriousness and depravity justifying an LWOP sentence, even if the juvi offender had been an adult.

I don't believe that the fact the juvi commited a murder shortly after being paroled, by itself, supports the argument that LWOP is appropriate for juvi murders, or that the initial conviction should have been coupled with an LWOP sentence.

"I don't believe that the fact the juvi commited a murder shortly after being paroled, by itself, supports the argument that LWOP is appropriate for juvi murders, or that the initial conviction should have been coupled with an LWOP sentence."

Like Mary Jo Kopechne, the victim here couldn't be reached for comment.

One issue, as always, is risk allocation. When you have conditionality on juvenile LWOP or ban it for crimes "less than murder," then you increase the risk to the rest of us. Some of us feel that legislatures are the ones that get to make that call--the Supreme Court lawlessly decided otherwise.

paul --

"I don't believe that the fact the juvi committed a murder shortly after being paroled, by itself, supports the argument that LWOP is appropriate for juvi murders..."

But it does support the argument that LWOP should at least remain an option for the sentencer in juvi murder cases, and that's the only argument I'm making here.

As federalist correctly notes, one of the major questions at sentencing is future risk allocation. A rule barring juvenile LWOP, ever, allocates 100% of the risk to future victims, which in my view is wrong both as a descriptive and as a normative matter.


The Constitution doesn't preclude the sentencer in juvi murder cases from imposing an LWOP sentence. At least the Court hasn't said so yet.

I agree with you that the sentencer should have this option in certain murder (and non-murder) cases. I disagree with federalist that this option should be available in every murder prosecution. (If that is, indeed, his position.) I think a line must be drawn. And that line must be drawn based upon an objective evaluation of the seriousness and depravity of the juvi's conduct.

Whether that line is drawn by state legislators, prosecutors, or the courts, a reasonable line must be drawn, just as has been done in the context of death penalty eligibility.

This is a disturbing story you have highlighted, Bill, but where is needed criticism and careful review of the work of the parole board here (and/or prison officials who surely should have had some inkling this murderer was not quite ready for free time)?

Part of the justification for "evidence-based sentencing" -- as opposed to "instinct-based" or "hindsight-based" sentencing --- is to allow us to learn and become more efficient and effective in our use of incarceration to mitigate risks to public safety. Paroling 15-year-old killers when they are, say, 65 is likely supported by evidence-based tools, whereas letting them out at age 45 may not be. Unless and until we can know whether evidence-based tools were used in this setting, you are potentially aiming your justified criticisms at the wrong target.


I agree that those on the Parole Board should be held to account, just as those on Gov. Deval Patrick's Parole Board in Massachusetts were (sort of) held to account after they released a fellow who wasted little time in committing murder. (I forget the details just now, but it's a well known story, and I believe at one point you put it up on your blog).

One other person(s) who has earned scrutiny is whomever, on the Board's staff or outside it, urged this guy's release.

Of course, even if they are "held to account" in the sense of public scorn (which I seriously doubt will ever happen), that is not even comparable to the harm (murder) their carefree fecklessness directly facilitated.

I am not urging "hindsight based" sentencing. I am urging that we learn, or ought to learn, from episodes like this, and that they be taken seriously in FUTURE release decisions. I doubt that they will be, however, because release decisions are now made increasingly, not on evidence either pro- or con-, but on ideology. Specifically they are made on the ideology of, among others, the "conservatives" supporting Smart on Crime (plus their numerous allies in the liberal camp like George Soros) who reflexively support early release simply out of doctrine-related reasons having to do with race (see my most recent post on Ebola), evangelism (Chuck Colson and his group), libertarianism (one of your oft-expressed concerns), or the general view that sentencing has become too punitive.

Risk assessment (which Eric Holder recently criticized as -- ready now? -- racist) is a difficult enterprise. My point in writing this entry was to note that getting it wrong has costs to those who are truly "voiceless," as liberals love to say.

The woman who got murdered the day after Mr. Nicey's parole has no voice. No liberal group stands up for her. Convicted criminals, however, have a loud and well-advertised voice -- advertised on the pages on the NYT, MSNBC, the Washington Post, the LAT, New Yorker and Atlantic, etc. This is not to mention in the speeches of Eric Holder and, last but not at all least, your own blog.

I'm actually all for evidence-based tools. I simply want all the evidence to be scrutinized, including not just this one dreadful example, but the massive recidivism rate for released felons generally. http://www.bjs.gov/content/pub/press/rprts05p0510pr.cfm

Miller and the other decisions are lawless and wrong.

And as for the Parole Board--isn't that the point--parole boards make mistakes, and why can't legislatures say that certain murderers or other criminals say that the risks of parole board screw-ups (or liberal judge screw-ups) just aren't worth it? Of course, they can---it's just that five lawless Justices said otherwise. They've got blood on their hands, as far as I am concerned.

Just so. The SRA ended parole in federal law, not just to put honesty in sentencing, but also to shift the burden of risk to the criminal, who has a choice, and away from the future victim, who doesn't.

It is silly, Bill, for you to claim victims lack a voice: in addition to having rights to be heard in federal statutes and state constitutions, prosecutors regularly speak on behalf of victims. Moreover, most of the advocacy for modern sentence reform comes in drug settings, which typically involve people involved in voluntary transactions, not crimes with direct victims.

That said, you are right that ideological concerns about race, redemption and liberty are driving an interest in precluding persons like Kuntrell Jackson, who made one bad decision to hang with the wrong crowd at age 14, from being forever and condemned to live in a prison cage until he dies. I would hope everyone in America share an ideological commitment to these principles, but perhaps not.

The recidivism data you cite --- which concerns released prisoners, not all felons --- provide yet another reason I fear modern over-use of incarceration may INCREASE crime. Evidence suggests that prison can be criminogenic, especially for lower-level first offenders. That is why I am against any mandatory prison term for lower-level first offenses and why I think the Smarter Sentencing Act could, in the long run, continue to help reduce crime (just like I hope the Fair Sentencing Act passed in 2010 might have played a small role in continued crime declines). But you disagree and will always be able to cite anecdotes of ugly cases to support your claims that any mitigation of sentence relative to the current severe status quo will lead to some crime increase. And that is what I call anecdote-based, hindsight-based sentencing.

As you seem now to concede, this sad and ugly case is not a knock on real evidence-based sentencing, but rather a knock on "biased" sentencing. I think we can and do both condemn biased sentence --- but you seem to see more "biased-lenient" sentencing (except when Scooter Libby is the defendant), while I still see more "biased-severe" sentencing for the likes of Terrance Graham and Kuntrell Jackson and Weldon Angelos.

Last but not least, I wonder if Bill and federalist would think it would be constitutionally permissible for LWOP to be a mandated sentence for any and all drunk drivers. I can find dozens of examples of repeat drunk drivers killing innocents every week, and the carnage created by repeat drunk drivers is MUCH greater than the carnage of released juve killers. I suspect it is our ideological commitment to liberty (and redemption? and race?) that keeps legislatures from mandating LWOP for any and all drunk drivers. But, in light of federalist's comments, I wonder if you both think there is "blood on the hands" of all of a jurisdiction's legislators, prosecutors and judges for any and every person killed by a repeat drunk driver.

Prof. Berman raises an important issue regarding repeat drunk drivers.

How many innocent people are killed and maimed per year by repeat drunk drivers? How do these numbers compare to the number of victims of repeat murderers? And how many of these victims (of both category of crimes) knew their assailants?

In my mind, despite the difference regarding mens rea, repeat drunk drivers who kill innocent victims are, in many instances, more reprehensible and deserving of LWOP sentences than first or, in some instances, second-time murderers, especially when the victims of the murderers are themselves unsavory characters with long rap sheets who were acquianted with the killer.

So why are legislators, for the most part, not willing to provide for punishment of repeat drunk drivers who kill that is commensurate with their criminal conduct and its impact on innocent victims and their survivors? And please don't say because they were so drunk when they got behind the wheel that they lacked the express intent to kill (that is usually required for murder). Could their relative coddling of this category of criminals have anything to do with the power and influence of the multibillion-dollar corporations that manufacturer the suds that is so beloved by liberty-loving Americans?

Paul, for what it's worth, during the time that I was general counsel for an alcoholic beverage company and a member of the board of the Wine Institute, opposing tougher punishment of drunk drivers was never on the lobbying agenda.

paul --

You'll need to look long and hard before you find the entry on this blog speaking up for giving a break to drunk drivers. When I was in the USAO, MADD was one of our best friends.

The entry here is simply to make the point that LWOP should remain on the table as a jury option for juvenile killers. History shows that it will seldom be imposed, but it would be an injustice to end it.

It is of course the case that not every drunk driver/killer will get what he deserves. Neither did the Green River Killer or (in the end) Mumia Abu Jamal or dozens of other murderers. But the fact that occasional irrational leniency for some is a flaw in the system does not mean that uniformly irrational leniency for all should be added to make it even worse.

Good follow ups, folks, and I am especially interested in Bill suggesting JURIES should have the LWOP option. I would have loved if Miller said only JURIES can impose LWOP and only after a capital-like sentencing hearing, and perhaps Bill will support me if/when I try to push a 6th/8th Amendment argument in this direction.

Of course, Miller said that JUDGES can still sentence juve killers to LWOP, and many still get that sentence and very few states (save Texas and a few others) have responded to Graham and Miller to preclude LWOP sentences for juve killers. I suspect it is unlikely SCOTUS will extend Miller in any significant way in the coming years.

And, to the extent individual cases are part of this debate/discussion, check out a new post of mine concerning a 10-year-old killer in PA who would likely be facing (and getting) a mandatory LWOP sentence but for Miller. I wonder if federalist or others here think even a 10-year-old should face mandatory LWOP: http://sentencing.typepad.com/sentencing_law_and_policy/2014/10/does-the-constitution-limit-the-age-at-which-a-juve-killer-can-be-tried-as-an-adult-.html

I hope maybe some of the C&C bloggers and commentors might be willing to come back to the debate at SL&P so that they more regularly hear some competing perspectives.


1. Crime victims have nothing like the voice raised in behalf of criminals. Throughout virtually all of the most prominent media, and in academia, and in dozens of legal blogs, there is the cry to go easier on criminals. And although, as you say, this cry is usually raised "in drug settings," it is by no means confined to drug offenses. Nor, under the rationales I noted (and you agreed with) could it be so confined.

I am hardly being "silly" in saying this. I think you're being silly in denying it. Much of the substance of your own blog is derived from the daily deluge of "America is too tough" stories.

2. The President -- again, according to credible stories on your own blog -- is planning tens of thousands of commutations and/or pardons (after next month's election, of course). Most state governors have the same or a similar clemency power. Thus it is hardly an argument against preserving LWOP for some juvenile killers to point, as you do, to one juvenile offender in a non-homicide case who got an outlier harsh sentence.

Outliers in both directions are a fact of sentencing life. Indeed, outliers are a fact of STATISTICAL life. Something is going to be out there on the margin, right?

The difference is that, when a criminal gets an outlier soft sentence and the judiciary goes along with it, that's the end of the story. When he gets an outlier harsh sentence, there is the ever-present prospect of (1) the big "you people are Nazis" media campaign for him, resulting in (2) clemency.

Where is there anything even approaching such a campaign for justice for crime victims who have seen their victimizers get absurdly lenient treatment?


Just a very brief note in response to your last line.

All of us here can "hear" the arguments on SL&P by reading it, which I (and I would guess any number of C&C people) do.

One of the reasons I stopped engaging on SL&P is that it proved impossible to do so without being spit at by a variety of anonymous guttersnipes who, near the time I left, had taken to not only routinely insulting me, but making vile remarks about my family.

That is not acceptable and I will not put up with it. If a commenter made similar insulting remarks about you or your family on this blog, they would be taken down and banned. C&C has banned people for less.

The decision elsewhere on the Internet to open the floor to anonymous guttersnipes full of bile is just that -- a decision. I don't wish to expose myself to that kind of stuff, and, as you see, have stopped doing so. I am simply not going to appear in a forum lacking any standard of decent behavior.

Bill raises a great point.

I also enjoy reading intelligent commentary about the criminal justice sysytem from a wide variety of sources, regardless of whether or not I agree with the opinion piece.

I find Prof. Berman's opinions on SL&P engaging. But, like Bill, I won't post a comment on SL&P because of the vitriolic responses one receives if your position is not in the mainstream of SL&P followers.

In particular, Bill has been the "victim" of unjustified, inappropriate, gutter-talk on SL&P simply because his well-stated, intelligent position is an outlier when contrasted to that of the SL&P audience.

Prof. Berman you really should set (and enforce) some ground rules.

I think you protest a bit too much, Bill, as you (and federalist and Supremacy Clause and others) also have been known to insult some of those with opinions you find disagreeable. It is fine that you are comfortable serving as censor on your block using your own standards of decorum, but my own commitment to freedom in all forms makes me uncomfortable playing that role on my block. If folks want to make themselves look foolish via foolish comments about me or others, I hope intelligent people can and will see through such foolish tripe.

In any event, back to substance, I can provide many recent examples of efforts by victims and their claimed representative to "campaign for justice" in the media. Some recent examples include, e.g., Ray Rice's crime, the Montana teacher rape case, and he Texas affluenza drunk driving case. I will readily admit that, largely because America is an world and historical outlier with it modern extreme use of imprisonment, it is much easier for the media and many other advocates to find examples of excessively long prison terms rather than excessively lenient ones. Indeed, you Bill often have to return to the same few cases (Ringold, the Montana case) to lament lenient sentencing because of late examples of prison terms seemingly way too short are generally harder to find than examples of of prison terms way too long.

Finally, if and when we start to see even hundreds (let alone "tens of thousands") of clemency grants from Prez Obama or state govs, your suggestion that clemency serves as a real failsafe to correct extreme sentences would be meaningful claim. But can you point to even a single juve LWOP sentence ever commuted to life with parole? Can you point to more than a handful of the truly tens of thousand of defendants subject to now-repealed extreme federal crack sentence who received clemency?

You have a good clemency track record with Scooter Libby (and perhaps others like the Border Patrol agents granted clemency as GWB left office), so perhaps you will be right that we will soon be seeing "tens of thousands" of clemency grants. If and when we do, I will have much less concern about extreme madatory front-end excessive sentencing.


Thank you.


I will not participate in a forum where my family and I get spit at. If there's some reason I should -- when I have alternatives -- I'd love to hear it. Do you have one? Do you think the slurs directed at my wife are funny?

I hope you'll learn something from paul's comment. Will you take it to heart? I also hope you'll see what's happening on the comments section of SL&P in response to your unrestricted liberty policy -- which is actually, and as you could not possibly help knowing, an unrestricted license policy.

What's happening, as paul points out, is that conservatives have basically given up trying to engage there. It's not just me. Federalist, Tarlsqtr, and Adamakis have all essentially taken off. They are intelligent people with a good deal to say, but, so it certainly seems, have had it. They've had it for reasons similar to the ones that persuaded me to stop -- and persuaded paul never to start.

The reasons are easy to state. You say you want engagement with other points of view, but you run the blog in a way you know with 100% certainty will wind up with the grossest sort of insults being aimed at any attempt to do so.

Respectable and informed people do not care to try to debate while standing in a cesspool.

It's not censorship. It's the enforcement of basic decency.

The reason you refuse to require it has zip to do with "freedom." It has to do with encouraging and abetting hate.


So that others will know what actually goes on in the comments section of your blog -- the stuff you breezily pass off as the mere outcroppings of "freedom" -- here's a taste. It comes from one of your repeat commenters hiding himself (as typically they do), with the alias "GilbetsHumptyDumpyt":

"Bill r u into domination n s&m or some sexual deviance? Cuz ur obsession with the rule of law and respect my authority r astounding n a bit inexperienced n sophomoric unlike Fred who I can tell knows what he's talking about.*****Oh c'mon bill, lighten up. U know u like it up the butt sometimes. U need ur soapbox to preach ur rule of law blah blah blah online cuz no one in the real world would listen to u. So all this online rule of law mumbo jumbo is just venting of ur own frustration for lack of receiving much attention. U should re-read ur posts cuz all I see is an old broken man who has nothing better to do in life than sit behind a pc screen ranting n raving all day about the rule of law. Ur not even a fucking lawyer cuz if u were, I'd think u'd have better things to do than discussing the finer points of Bill's law. Ur full of shit n even a legal novice like me can tell lol. But the reason y I respond is not cuz I think u have a point. It's cuz I'm being entertained by legal newbs like u.

"As far as rodsmith goes, I can tell he's keeping it real. Maybe a little overdoing on the venting n violence but then again, that only shows his passion.

"Actually Bill, u remind me of that senator, Craig was it, that was an outspoken critic of gays, the typical family, Xian values Republican, who got caught soliciting sex in the men's bathroom inside an airport. I surmise that he's ur role model, so I figured to proposition u on some s&m n domination. My offer is still good Bill :)"


Doug, are you groovin' on that passage as a proud exemplar of the freedom -- and thus of the stellar quality -- of your blog and its standards?

But wait! There's more!!

There was this from the ever-lovely "albeed":

"I hope your grandchildren p--s on your grave."


Hey, look, I'm sure Tom Paine himself would write this stuff, ya think?

Then from some fruitcake using the name "Daniel," the none-too-subtle suggestion that I am a -- ready now? -- necrophiliac. Yup, ya know, that I have sex with corpses. And little girl corpses at that.

I made the error of expressing sympathy for little Caylee Anthony after she got murdered by her mother. Daniel's reaction was that my -- and I'm quoting him here -- "real problem is that he just so happens to feel more compassion for dead little white girls than live middle-aged black women. That's his prerogative or his prejudice, whichever one prefers."

Followed by this: "Far be it from me to say that your compassion for the dead little Anthony girl is driven by racism. Maybe it's driven by pedophilia as you just so happen to like little girls over mature women. Maybe your compassion is motivated by necrophilia."


I mean, Doug, that adds a lot worthwhile to FREEDOM, dontcha think? Perhaps you could tell us in three or four paragraphs how wading through the gutter is needed for said freedom.

Oh, and yes, more recently, you could barely contain your snickering as my wife, the daughter of a Jewish man who fought the Nazis in WWII, was on the receiving end of this:

"These types strike me as power hungry and/or sadistic and not the type of folks who should be key actors in our criminal justice system. Bill Otis is a disgrace for helping these people. What is wrong with you? You have nothing better to do then support those who would keep in place our monstrosity of a criminal justice system? There is a term for those like you and you wife who help tthe fascists suppress liberty and eliminate supposed undesirables from society -- kapos."

KAPOS now!!! And my wife too! Well that's so cool! Could I find out, please, how this makes your blog a place serious people would want to comment?

Not to be outdone, your close buddy, the Bible-thumping Prof. Mark Osler, was not far behind. He did not in haec verba accuse me or my wife of being kapos. Instead, we get a promotion to Nazi regulars, maybe even the SS. Our support for the modern increase in imprisonment that has done so much to help bring down crime is, according to Osler, simply a Nazi clone, since, in his writing, it's so plainly similar to the mass torture, brutalization and extermination of the Jews.

Not that I think your buddy Osler was out to take a crack specifically at me or my wife. No, Osler has more ambitious aims -- to smear as Nazi annihilation artists ANYONE who disagrees with his hermetically sealed view about the desirability of immediate mass release of thousands of dangerous prisoners. If a person doesn't go along with that, it's not that he could have a reasonable disagreement. It's that he (and I guess she, since my wife gets included) has both the morals and the ambitions of a concentration camp commandant.

The idea you're peddling -- that I have ever said anything similar to this garbage -- is just a total falsehood.

The reason I put the foregoing examples up here for people to see is so they'll know that your blog's version of "freedom" has nothing to do with free dissent in a debate among reasonable people. It has everything to do with the most disgusting kind of smear and insult -- the kind of battering designed to stifle, not encourage, debate.

You're not defending freedom, Doug. Your defending filth. If you want respectable commenters, the filth needs to get moved out.

Bill, you clearly are upset, and I understand why. But, as is too often the case, you use outliers to make a point about norms that is just not true. According to my blogging software, there have been over 90,000 comments on my blog. I would wager that you could not find more than a few dozen examples of what you call "filth." And, as you should know, there is a special name for how quickly on the internet people are inclined to call opponents Nazis. So to take huge offense to that in this context is really pretty rich.

In other words, for the price of freedom for the 99.9% of non-filthy comments on my blog, readers will sometimes have to tip-toe (not wade) through .1% of filth --- as well as about 5% of Supremecy Clause, whom many on the left have implored me to censor repeatedly.

Moreover, I think it is valuable --- in service to understanding both freedom and human nature/frailty --- to see/hear what kinds of comments and commentary has a tendency to generate fifth and how folks react thereto. Your reaction to this "filth" is both understandable and justifiable, and it makes me sad that others' words have hurt you so much. But it still does not lead me to want to play censor or serve as the decency police in the comments to my blog (in part because I know my own biases will be reflected in my censorship choices).

You can continue to play censor/decency cop on your blog, and you could even come back on my blog and try to play that role (as you sort of did in the past when you made various efforts to "out" commentators you did not like). But that is your choice, and I will continue to stand by mine.

I also continue to believe it is interesting that you seem so hurt by some words in my blog comments, but then you seem so dismissive when a community of people claim to be similarly hurt by the name of a professional sports team in DC. Perhaps you could tell us in three or four paragraphs why I should worry more about your hurt feelings than you should worry about the feelings claimed hurt by the Washington Redskins?


Nice try, but no dice, at making the problem my "feelings." The problem is that your commenters (and I have put up merely a fraction, the ones I remembered off the top of my head) are spitters. You have yet to give me a single reason I should tolerate getting spit at, much less having my family spit at.

The problem is not my supposed touchiness. The problem is that numerous of your commenters engage in filth, that you never (until just now) uttered one word of criticism of it, that indulging such filth retards rather than encourages debate, that no respectable person debates standing in a cesspool, and that in consequence I and numerous other more thoughtful conservatives have taken off. Are they also too touchy?

I also see you decline to respond to paul and his apt observations. The comments section of your blog has become so toxic and disgusting that he won't post a single comment on it, although he is obviously extremely bright and informed.

Enforcing rock-bottom standards of adult behavior and civil discourse is not censorship in any meaningful sense, no matter how often you call it by that name. And I don't believe for one minute that you can't tell the difference between liberty and license. Nor do I believe that you don't clearly see that your comments section has crossed that line many times and long, long ago.


I should probably take this on specifically:

"I also continue to believe it is interesting that you seem so hurt by some words in my blog comments, but then you seem so dismissive when a community of people claim to be similarly hurt by the name of a professional sports team in DC."

1. I am dismissive when a bunch of Whiners think they get to dictate the name of a team they don't own, you bet. This is especially true when the Whiners are a minority even among the Native American community.

I would not be dismissive if the Whiners -- instead of claiming such a non-existent right -- simply stayed away from the games in order to express their disapproval. Indeed, I would applaud them (even while not sharing their views).

2. It's astounding that you would compare (a) some unhinged hatemonger on your blog calling me a necrophiliac to (b) calling a football team the "Redskins" (its long-accepted and broadly popular name). Do you really think there is any comparison there whatever?

3. I don't think you should worry in the slightest about my "hurt feelings." Indeed, your talking about my supposed "feelings" is just a dodge so you can avoid confronting the fact that you've allowed your blog to be hijacked by filth.

One last point for now: My debates at FedSoc events generally last about an hour to an hour and a half. If my opponent, or any audience member, spent ten seconds accusing me of necrophilia or that "I like it up the butt sometimes" (to quote directly the commenter whose "freedom" you so cherish), I would walk out on the spot.

Of course such a thing never happens, because at live debates, questioners HAVE TO SHOW THEMSELVES, and a person who has to show himself wouldn't try a stunt like that in a million years.

So your saying that you decline to play "censor" is, once more, a dodge. You could allow anyone to say anything, PROVIDED that he give his true name. The real reason you protect the anonymity of these spitters is that, as you know, the protection facilitates their spitting.

I repeat: I will not be spit at, ever, and my family will not be spit at, ever. This will remain my stance until I am given a persuasive reason to adopt a different one -- a reason I asked for earlier, but am still not receiving.

Bill, unless you think I am wrong to believe that, at most, .1% of my blog involves "fifth" then I do not think you can soundly say I have "allowed [my] blog to be hijacked by filth." You can say I have allowed my blog to be used by bad people to hide behind anonymity in order to spew fifth. And I say in response that I find it educational and useful to see who and how people spew filth and how people react to that.

I think the Redskins question is fair because some people now claim it is filth, in their view, comparable to other words (like the n-word or the f-word). I do not know how to judge such a claim, just as I do not know whether it is fair when people tell me I should consider comments by federalist or by SC or others to be "filth." Plain and simple, I do not know how to judge decency without reflecting bias, so I do not try to do so. That is my choice, and I doubt I can give you a "persuasive reason" to have a different view. For me the value is seeing what happens without any censorship or standards at all -- which, in turn, as you able suggest, might lead me to think in other spheres government-enforced censorship or standards are needed for a positive dialogue. Problematically in the academy, I see this as the road to preventing needed debates not as the way to foster them. Ergo, it may be that you have more in common with the PC police than you realize -- and that you are all right that freedom is really just a dodge for tolerating spitting (or hatred or bigotry or class bias or racism).


Your response is mind-blowing.

1. You continue to decline to come to grips with the fact that every one of the identifiably conservative regulars who used to frequent your blog has mostly or completely given up commenting.

Do you have any interest about why that is? Are we all too touchy? Did we all get that way at the same time?

Do you have any reaction to paul's refusal to even put his toe in the water, because you've allowed the water to become so polluted?

Do you think respectable people should participate in a forum where they're only spit at every once in a while rather than every day (although it was getting toward the every day side when I departed)?

2. The idea that I'm sliding toward the "PC police" because I object to be smeared as a necrophiliac is just stunning. Probably not as stunning, though, as saying I'm in the PC police corner because I object to MY WIFE, a Jew, being smeared as a kapo.

I have numerous examples of just how disgusting your comments section has become, and, rather than take it seriously or do any introspection about it, you turn on a dime and say that the problem is -- not vulgarity, of which there is plenty -- but the heralding of censorship, of which there is none.

3. The view that more prison causes more crime is preposterous, being at odds with decades of evidence that shows the opposite. It is not nearly as preposterous, however, as the idea that the "all-vermin-welcome" way you run your blog is The Path of Freedom and hence contributes to more, and more robust, debate.

The evidence is exactly the opposite. Your "all-vermin-welcome" policy has produced LESS debate, for the now-obvious reason that people who count as serious debaters don't like being surrounded with vermin.

4. You note: "You can say I have allowed my blog to be used by bad people to hide behind anonymity in order to spew fifth. And I say in response that I find it educational and useful to see who and how people spew filth and how people react to that."

Yes, it's useful to a point, which is one of the reasons I (probably foolishly) put up with it for as long as I did. But when it has reached the stage that I'm a "necrophiliac," that I like to "take it up the butt," that my grandchildren should "piss on my grave," and a great deal more garbage, it has gone too far.

At that point, the Left has proved that there's nothing to which it won't stoop. Nothing -- absolutely nothing -- conservatives have said on your blog even approaches that.

You also say, "I do not know whether it is fair when people tell me I should consider comments by federalist or by SC or others to be 'filth.'"

Good grief.

As to SC, he's sui generis. As to federalist, his comments could not be considered filth by any rational person. He is sometimes aggressive (as both of us are), but he's not even close to the line. Indeed, he's one of the most astute and analytical commenters you USED to have. Maybe he too has had it with the sickos you permit (and by permitting, encourage).

Your commenters didn't attack him in the gross, anatomical and anti-Semitic terms they use with me and my wife, but I've noticed they won't take him on analytically, either.

What's happened, Doug, is the SL&P has degenerated into what you say you don't want: It's become nothing but a cheering section for criminals. Your entries remain valuable, but the comments section is both one-sided and, too often, toxic.

It's your blog and you can make your own rules as you wish (or make none). But commenters, potential commenters, and past commenters get to make their own rules, too -- about how, when, and if to engage. For my own part, I find that the anonymous guttersniping has reached intolerable levels. I am not in a position, professionally or otherwise, where I have to tolerate it.

This is an interesting back and forth. Honestly, Doug, I think it funny that you would bother to credit anyone saying anything I write as "filth." The only time I've ever come anywhere within shouting distance of "filth" is my attack on Hickenlooper.

As for Bill's comments--it just seems weird that Doug would decide to engage on this issue--newsflash, a professional like Bill doesn't like to be propositioned for deviant (no judging here) sexual activity and chooses therefore not to engage.

As for me, I don't particularly care if people want to call me names. It's tiresome because it's so boring. My reaction is typically--is that all you got, name-calling?

I suspect a lot of your commenters don't like the fact that I refer to Sonia Sotomayor as the "wise [sic] Latina." Or that I refer to Judge Dennis as a "'rat judge." Or maybe it's that I've defended Judge Sharon "Killer" Keller.

I should resist, but I won't. Doug, your Redskins analogy is, at best, weak. I am sure that Bill doesn't lose a lot of sleep over the peanut gallery over at SL & P. He's just pointing out that the comments section of your blog is a vapid sewer. In other words, it reflects respect for you, not a ton of hurt feelings over repulsive, designed for shock value comments. People that get worked up about the Redskins football name need to get lives.

"Vapid sewer" about sums it up.

The attempt to compare your comments to the kind of gutter-level stuff that shows up from the pro-defense side on SL&P is astonishing. No one could take it seriously, and I doubt Doug does either.

The shame of it is that the comments section there once was a valuable resource and a more-than-worthwhile supplement to Doug's entries. That is simply not true now. And the reason is principally your almost complete departure, along with that of TarlsQtr, Adamakis and one or two others with informed viewpoints that did not genuflect to the Required Liberal Wisdom.

Doug says he's afraid of the beginnings of a speech code-type ethos if he expels the filth peddlers. The irony, of course, the that he ALREADY HAS AN EFFECTIVE SPEECH CODE, only done indirectly. Conservative commenters are not blocked in haec verba; no, instead, Doug knowingly creates conditions -- an open door to limitless indecent insults, including insults to conservatives' family members -- with which conservatives will sooner or later get fed up and leave.

I am not aware of any other major legal blog that allows the kind of filth SL&P does. This blog sure doesn't. And I have had blog conversations with Orin Kerr, Will Baude, Eugene Volokh, Paul Cassell, Jonathan Adler and numerous others, all in forums where nothing approaching the filth allowed on SL&P is seen or tolerated.

One of the other big disappointments is the blase' attitude of the very few of Doug's remaining thoughtful liberal commenters, who seem content if not happy that the opposition has been hectored off. There is one exception: Michael R. Levine, a thoughtful liberal, defense attorney and gentleman. But virtually all the other liberals sit in snickering silence while McCarthyite muzzling of the opposition gets accomplished indirectly through vulgarity, rather than directly through banning.

Maybe silencing through indirection makes them feel better because it lets them pretend they have no responsibility. That's what I suspect, although I don't know -- and, at this point, don't much care.

I would assume, Bill, that others who like hearing different views now just come over here, like I do.

That said, as you will see, in another post I have asked if you will be interested in helping me get rid of fifth on my blog. I am disinclined to require real names for lots of reasons, including that it would cause issues for SC and federalist and TarlsQtr and Adamakis and many others. But if you think it is not to hard to police fifth, please become my cop on the comment beat.


As you know, I'm a believer in personal responsibility. That's one of the reasons I sign with my real name every word I have written for public consumption.

Blog owners are responsible for their policing policy. The majority, so far as I am able to see, have and enforce one. But for however that may be, I am not the owner of SL&P (nor C&C, for that matter).

As the owner of your blog, you are free to choose your own blogging policy. As the owner of my time, and as the "owner" of a disinclination to use that time reading, for any purpose whatever, anatomical insults to my family and to me, I am free to choose my own commenting policy. The policy is to avoid fora where I'm used as target practice by spitters who never developed anything close to adult manners.

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