Given that this Holder memo was required by extraordinarily flagrant violations of the law by senior DEA officials during their official activities, would it be fair for me to wonder what other laws are sometimes ignored or violated by DEA officials and agents?

You often highlight acts by one or two judges to argue no judges should ever be trusted. By the same logic, can and should I now conclude no DEA officials or agents should ever be trusted?

DEA officials and agents, holding as they do considerable public power, should be required to conform to written-down rules. As should judges.

Of course both judges and executive branch officers should also have a degree of discretion within the spheres assigned to them under the Constitution. But utterly unlimited discretion is a bad idea, as -- for example -- the irresponsible sentencing of the Sixties and Seventies proved.

I agree that utterly unlimited discretion is a bad idea, which is why I prefer judges to make sentencing decisions subject to openness in court and appeals rather than having prosecutors make such decisions behind closed doors without any scrutiny other than the very remote chance of congressional investigation.

Bill, in the post right before this one you wrote expressly: " Judges spent at least the 20 years after 1960 showing why they cannot be trusted with unlimited discretion." That suggests to me you think no judge should be ever trusted with unlimited sentencing discretion. And since we are having a sentencing debate, I assume you understood I was expressing the belief that you do not think no judges
should ever be trusted with unlimited sentencing discretion.

What is funny is that I truly do not trust ANY government official --- judge or prosecutor or police officer or legislator or DEA agent or probation officer or government-paid public defender or AG or Prez --- with any unlimited discretion especially if/when it is exercised without any effective public scrutiny, without a clear and open decision-making process, and without any effective appeal/review. Thus, while I do not trust (or distrust) judges or prosecutors more or less, I trust the required judicial decision-making process MUCH more than I trust the prosecutorial decision-making process.

It is really that simple: with judges, you might trust, but we all can verify; with prosecutors, you again might trust, but nobody really can verify. Therefore, when it comes to judges at sentencing, because the work of judges is open and subject to appeal, I do not have to "trust" what they say/do, I can assess and criticize it myself. But when it comes to prosecutorial discretion --- ranging from the Lerner non-indictment to the Menendez indictment to the Angelos case to the Williams case to the Young case --- we are all left completely in the dark.

I agree words have meanings, Bill, which is why I keep asking question and seek explanations you use words that seem misleading or false -- e.g., I still await an explanation for your words in a prior post that "violent crime has exploded" in California after the passage of Prop 47.

Troublesomely, when I press/inquire about the words you use, you either ignore my questions (as in the Prop 47 post) or you engaging in wordsmithing to accuse me of trying to distort your positions. I never want to distort your position, I just want to make the meaning and substance of your positions clear and I sincerely apologize if in this imperfect forum I do not accurately capture the nuances of your various assertions.

In an effort to be extra clear, and unless you explain your views otherwise, all I mean to highlight here is my understanding of your general position that you trust federal prosecutors/DOJ officials in the exercise of their (hidden) charging/bargaining discretion more than you trust federal judges in the exercise of their (open) sentencing discretion. Is that a fair characterization? To the extent it is, it makes sense that you strongly support mandatory minimums, which give prosecutors enhanced (hidden) charging/bargaining discretion while diminishing judicial (open) sentencing discretion.

In contrast, as explained in another thread, I have little trust for any government official, and thus I always favor discretion in forms that are exercised on an open record and subject to some form of public scrutiny and clear/open review. I thus generally oppose mandatory minimums because they enhance the import of hidden discretion by prosecutors and diminish the exercise of open discretion by judges.

1. I will continue to try to stick with direct quotes and continue to ask for support for your exact claims like your statement that "in the wake of Prop 47, property crime (and violent crime) has exploded in the Golden State." I think I have now asked half a dozen times for any support for the "violent crime" part of that statement. Have your failed to notice my inquiries or just refused to explain the meaning of your words in this important context?

2. I agree that charging and sentencing are not comparable, and that is why I want prosecutors to have exclusive domain over charging and judges to have primary responsibility over sentencing. Unfortunately, severe mandatory minimums serve, functionally, to turn prosecutorial charging decisions into sentencing decisions (e.g., possession vs receipt charging for child porn offenses has nothing really to do with charging and everything to do with sentencing). Ergo, to be a big fan of severe mandatory mininimums, one generally needs to trust prosecutors exercising sentencing power more than trusting judges to do so.

3. If Congress really wants rock-bottom sentences for certain crimes, I want to see them limit the authority of prosecutors to bargain away the rock-bottom. Do you support Congress having that power, or should Congress let the executive branch have 100% discretion 100% of the time?

Notably, Congress has managed judicial sentencing discretion by transparency/appeal procedures: judges must explain the justifications for sentencing and those decisions are subject to appellate review. Sadly, Congress has not yet taken any steps to manage prosecutorial sentencing discretion, and lots of research suggests that how that discretion gets exercised is not always sound.

4. Fair point about being stuck with judges, but at least we know their names and are aware of what they do and can debate the consequences of what they do (and in state systems they can be voted out). Career federal prosecutors are largely unknown, what and how they operate is a mystery to all but fellow prosecutors, and it is incredibly hard to vote them out.

Again, I enjoy the debate between both of you. Personally, I think the best way to address all of the concerns on both sides, is have the jury impose the sentence withing a relatively wide range of potential sentences. This gives a defendant some protection against so-called over-charging, and also protects against judges imposing their personal opinions as to sentencing policy. I have more confidence in 12 random citizens than judges, legislators, defense attorneys and prosecutors who all have varying agendas.

Of course, my opinion on this is based on my belief that the purpose of sentencing and punishment is to protect the public and deter future crime. I'd rather trust this to a jury, as I don't think we'd see Darren Sharper doing a minuscule 8-years for raping multiple women or harmless grandmothers doing 25 to life on flimsy shaken baby syndrome cases.

Oh, and being a California resident, I haven't seen any analysis on the crime rate regarding Prop 47, but am very interested for any analysis.

Kent and Matt --

Yes, at this early stage, the evidence on the impact of Prop 47 on crime is necessarily anecdotal. But anecdotal evidence can count a lot, depending on the source and how well the source is positioned to know the on-the-ground reality.

The evidence I have seen is that both property crime and, to a lesser extent, violent crime, are up in California after the passage of Prop 47.

See, e.g., this entry from C&C's News Scan: "Prop 47 Creates a Revolving Door for Crime: Yolo County District Attorney Jeff Reisig has spoken openly about the challenges his office is facing as property and violent crime continue to increase in the county, due to AB 109 (Realignment) and Proposition 47."

See also these:

http://www.thepresstribune.com/article/3/13/15/roseville-officers-deal-multiple-prop47-related-cases-violence

http://www.fresnobee.com/2014/12/11/4282003_fresno-police-chief-jerry-dyer.html?rh=1 As the Fresno chief says, "The passage of Proposition 47 by California voters in November is at least partially to blame for an uptick in Fresno crime figures, Fresno Police Chief Jerry Dyer said this week.

Aggravated assault is up 9.9% in a 28-day period ending Wednesday, although it remains down 3.9% for the year in figures released by police after the department’s monthly Crime View session, in which Dyer and his command staff go over key statistics. Burglary is up by 30.7%, in the period, while it remains down by 12.8% for the year. Auto theft spiked by 12.6% but is still down by 25.9% for the year.

See also this piece, taking an equivocal stand on whether Prop 47 has played a role in the increase in violent crime: http://richmondstandard.com/2015/04/richmond-police-chief-addresses-uptick-in-crime-and-whether-prop-47-is-a-factor/

Thanks to you all for the focus now on the crime-rate impact of Prop 47 (and realignment), though such a conversation surely merits a new post/thread.

I am especially eager to see Kent's statistical anaylsis --- I consider Kent to be one of the most insightful and least biased number-cruncher in this always-contested arena.

I also wonder whether/if anyone thinks that the 2012 amendment to 3-strikes or all the federal drug sentencing reforms may also be moving the crime needle in California. My sense is that realignment is the biggest player in all these stories, but I especially think that what we see in California over the two decades from 2005 to 2025 should help us better understand the relationship between sentencing laws, prison populations and crime rates.

Douglas stated: "My sense is that realignment is the biggest player in all these stories, but I especially think that what we see in California over the two decades from 2005 to 2025 should help us better understand the relationship between sentencing laws, prison populations and crime rates."

Yet the supposed "evidence based policy" supporter wants to jump Chesterton's fence and change the policy nationwide.

Fair concern, Tarls, but we already have lots of evidence that massively increased levels of incarceration since the 1970 has had a huge economic and social cost, especially for certain vulnerable communities. It is also quite possible, because significant evidence indicates that initial service of prison time may be criminogenic, that massively increased levels of incarceration since the 1970 in part explains aspects of the crime increases in the 1980s and may also be contributing to higher crime rates now.

Put simply, the evidence we have most clearly is that "Chesterton's mass incarceration fence" is causing plenty of economic and social harm now without any clear benefits. So I am hoping, by reducing incarcerations levels, we can reduce the harms without reducing the benefits. Notably, despite all the sturm and drang about the Plata case and ruling (and predictions of a grim roster of victims), California had a record low violent crime rate last year according to the Cal AG statistics.

TarlsQtr and Doug --

"...we already have lots of evidence that massively increased levels of incarceration since the 1970 has had a huge economic and social cost, especially for certain vulnerable communities."

Note that the huge amount of misery (and money) we have saved by less crime and millions fewer crime victims never gets a mention, much less a calculation.

Perhaps someone will tell us what that amount is. Not that I'll be holding my breath.

And now, with my emphasis added:

"It is also QUITE POSSIBLE, because SIGNIFICANT evidence indicates that INITIAL SERVICE of prison time MAY BE criminogenic, that massively increased levels of incarceration since the 1970 IN PART explains ASPECTS of the crime increases in the 1980s and MAY also be CONTRIBUTING to higher crime rates now."

That's a truly amazing amount of wiggle room to build into a single sentence.

Doug,

I would add more to the discussion, but I could not destroy your post any better than Bill did.

Bill, the reason I do not mention the "huge amount of misery (and money) we have saved by less crime and millions fewer crime victims never gets a mention, much less a calculation" is mainly because we cannot be confident that these positive developments are the result of mass US increases in incarceration. I have come to think the EPA's reduction of leaded gas should be credited for much of the misery and money saved. Others would significantly credit Roe v. Wade or CompStat or expanded gun rights, and relatively few analysis suggest that the 100% cost of incarceration has accounted for much more than 25% of the crime control benefits.

I would welcome your efforts (and others) to objectively quantify both the indisputable costs and indisputable benefits of increasing our prison population from roughly 300,000 in 1970 to 2.3 million in 2015. This is a very hard empirical task, and my "wiggle" language above is my own effort to be fair and rigorous in describing contested research. Obviously, if you think modern mass increases in incarceration obviously has done more good than harm, I want to see how you run these numbers and also I want to know if you think the cost/benefit trade-off continues to be positive if we have 3 or 5 or 10 million incarcerated in the US (as you might be quick to note, even with 10 million incarcerated, we'd still have less than 5% of the nation in cages).

Personally, I think we likely hit a point of significantly diminishing returns some time ago, but I am eager to see how you (and Tarls) would "run the numBers." Should I hold my breath while I want for your calculation?

A classic case of "shifting the burden of proof."

The status quo is high incarceration rates and low crime. There is no need for me to quantify the amount saved by keeping criminals in jail instead of wreaking havoc on society. You want to make the sea change in how we conduct CJ policy, you (your side) need the data.

You stated: "Bill, the reason I do not mention the "huge amount of misery (and money) we have saved by less crime and millions fewer crime victims never gets a mention, much less a calculation" is mainly because we cannot be confident that these positive developments are the result of mass US increases in incarceration."

But you (your side) have no reservation doing the calculation for how much incarceration costs when you can be no more confident that lowering the cost will make us safer. Why is that? Answer: Because you have a desire to provide a one-sided and dishonest view of the cost and omit the benefit.

You stated: "I have come to think the EPA's reduction of leaded gas should be credited for much of the misery and money saved."

This is the ridiculous lengths you will go to explain away the most obvious conclusion. Occam's razor and all.

It would take a mad man to believe that leaded gas has a bigger impact on crime rates than putting bad people in prison, especially when you realize that lead was put in gas in the 1920's and the crime rate did not spike until the 1960's.

Tarls, have you read the lead-crime-link research? If you haven't, how can you say it is ridiculous? If you have, why is it ridiculous to say reductions in lead exposure in the 1970s might best explain reductions in violent crime rates when that correlation has been remarkably strong over the last 40 years AND has been strong worldwide even in the face a massive nation-by-nation differences in sentencing and incarceration policies?

Bill justifiably complains about the challenge of having a debate with someone who ignores evidence, and you helpfully highlight that challenge with your comment, Tarls.

Finally, Bill and Tarls, I fully understand your frustration that those seeking reform are quick to highlight costs of the mass incarceration status quo while they are too dismissive of possible benefits from the status quo. But I do not think anyone seeks to deny the US has experienced huge violent crime reductions, it is just that those seeking reform are not moved by the extant evidence that the costs of incarceration caused these benefits. (Also, we have not had a huge reduction in drug crimes, and the many harms of the modern heroin surge have grown in recent years in the face of mass incarceration. If you think mass incarceration must be credited for some crime harms being reduced, is it fair for me to say mass incarceration must be blamed for the spike in heroin harms?)

More fundamentally, in a national committed to human freedom and limited government, I would like to think the "burden of proof" is always on those eager to limit freedom and grow government. But this is always where our real differences exist, Bill and Tarls: when it comes to size and force of government-run criminal justice systems, I am a true small government libertarian who always questions the evidence and justification used to support ever-increasing big-government liberty deprivations; you two, in contrast, are in this setting consistent in asserting big-government-does-much-more-good-than-harm social conservative ideas (and thus, like folks on the left in other settings, you assert it is always the burden for true small government libertarians to justify having more liberty and less government).

I have lots of disagreements with folks on both the left and the right these days who are eager to defend, in various contexts, the big-government-does-much-more-good-than-harm position. And in this setting, I just hope you recognize how much your arguments inherently undercut efforts by folks like Rand Paul and Ted Cruz and Mike Lee to scale back the growth and impact of government in American society.

That's cute, Doug.

Yes, I have read a lot of reports (although not the actual studies) regarding a correlation between lead and violent crime.

Your double standard is so obvious that even you should see it. You are so eager to see correlation equaling causation with lead but refuse to see that the same correlation exists with drug use (while you support legalization) and incarceration rates compared to crime rate. Suddenly, "correlation does not equal causation."

The rest of your screed is your libertarian posing. Please. You have a "libertarian" position in exactly one issue, criminal justice. You are otherwise a big government liberal who happens to have a shared cause on that single topic. For instance, are you for government getting out of the university business and paying your salary?

Didn't think so.

Meanwhile, I TRULY want to scale back the size of government. However, I also believe that our founders gave us a wonderful guiding document and blueprint for it. They gave us one with core functions that government is supposed to be involved with (military, criminal justice). Those not listed are not a government function. Getting rid of the DoEnergy, DoEd, Interior, etc. IS consistent with their "small government" principles instead of your small government posing.

No double standard, Tarls, as I wonder a lot about causation when it comes to crime and punishment rates and can really only try to make guesses based on correlations. Based on correlations, both incarceration AND violent crime kept going up and up through the 1970s and 1980s in the US, then crime peaked around 1991 while incarceration peeked around 2008. And different drug crimes have gone up and down and up and down throughout. Not sure what you think is causally proven -- I am not confident anything is, though I am sure the evidence linking incarceration rates and crime rates is not especially strong, especially when one does good empirical work across time and region. (Ironically, the correlations links between hot weather and limited education and crime a very strong -- so those truly concerned about crime rate should be eager to invest in schools and air conditions based on the data.)

I keep asking why you think I am posing, Tarls, and you never explain. I am generally against gun control, against govt restrictions on the right to marry or the right to control one's own body and against govt restrictions on speech (e.g., as a policy matter, I like Citizen's United). I am not an anarchist who wishes there to be NO government --- and thus I think government can and should have a role in society, but mostly as a market participant and a free-market, liberty enhancer. Thus, I like public schools, but I also like charter schools and I want there to be robust market competition in various big sectors (like education and health care).

In addition, when government actions truly help enhance human liberty --- e.g., keeping people free from violence at home and abroad --- I am for this kind of government. But when government actions seem to be able restricting liberty --- e.g., keeping adults from harming themselves or keeping adults in cages --- I want to see some net liberty benefit. With respect to mass incarceration and the modern drug war, I just do not see the net liberty benefit. The same may also be true for a lot of other big government programming, much of which I also oppose.

Meanwhile, rather than trying to tell me what I believe, please explain what you believe -- i.e., do you believe mass incarceration and the modern drug war advances human liberty? If so, please help me understand how. Or, please explain what other values you believe are well served by having Weldon Angelos cages for 55 years or Chris Williams caged for 5 years or Edward Young caged for 15 years at federal taxpayer expense. I know why I think they are having their liberty deprived for much too long for no good reason, but I would like to know why you think it is a positive value to have them caged in the federal pen for 75 years in total. Thanks.

TarlsQtr and Doug --

I'll just say one word here, since this zinger in Doug's most recent comment to Tarls cracked me up: "Meanwhile, rather than trying to tell me what I believe, please explain what you believe -- i.e., do you believe mass incarceration and the modern drug war advances human liberty?"

Doug's consternation about being told what he believes is remarkable. Exactly four days ago, he said this to me: "To be clear, the only transparency and review you support for federal prosecutors is through congressional investigation."

The only catch is that Doug's quite aggressive statement about what I believe (leading off with "[t]o be clear") is that it's false. Nor could he possibly have thought at the time he wrote it that is was true.

Yikes.

I am still trying to understand what other transparency and review for federal prosecutors that you support. Please elaborate. I am not accusing you of not being true to what you claim, I am just trying to fully understand your views (and Tarls). That is why I engage here... To better understand those who disagree with me.

Douglas stated: "I keep asking why you think I am posing, Tarls, and you never explain."

lol I have explained several times. I once even posted a list of 10-15 libertarian positions to compare with your own that you mostly ignored.

You stated: "I keep asking why you think I am posing, Tarls, and you never explain. I am generally against gun control, against govt restrictions on the right to marry or the right to control one's own body and against govt restrictions on speech (e.g., as a policy matter, I like Citizen's United)."

"Generally." Sure would love to know what that means. It is similar to making abortions "safe and rare" except those who say it support every policy that would make it anything but. Let's get to specifics. What current gun laws would you rescind if given the power? Libertarians support rescinding virtually all of them. And you? Would you stop the registration of all guns?

Paul, Lee, and Cruz, those who you seem to tout as the libertarian benchmark, are all against abortion and I believe gay marriage. Does the right to control "one's own body" include up to birth like the belief of DWS, Obama, Pelosi, et al.? Please explain.

You stated: " I am not an anarchist who wishes there to be NO government --- and thus I think government can and should have a role in society, but mostly as a market participant and a free-market, liberty enhancer."

The above is not only a laughable position, it is completely anathema to libertarians. Have you EVER taken an economics course?

The government does not enter anything as a "market participant." It is a market controller, as it has the power to coerce (or outlaw) competition, coerce (or dictate to) consumers, e.g. Obamacare, and take losses in perpetuity because it is absorbed by taxpayers, not stockholders who would throw their sorry butts out the door.

Let's take public schools, something you support. You obviously see it as a "market participant", which is pure nonsense and not a libertarian position. I pay Federal, state, and local taxes for education THAT I CANNOT TAKE ADVANTAGE OF UNLESS MY KID IS IN PUBLIC SCHOOL. Want private school? Sure, but I still have to pay for the public school. Want to homeschool (what I do with my son)? Same thing.

A much more LIBERTARIAN position would be collect the taxes, abolish the public schools, and allow parents to spend that money for the private school of their choice or homeschool. Even more libertarian would be no tax, but I believe poor kids should be subsidized.

You stated: "The same may also be true for a lot of other big government programming, much of which I also oppose."

lol Sure. Should the state get out of the university business (including financial aid)? A libertarian would say yes.

Should the government get completely out of healthcare (Medicaid, Obamacare, etc.)? A libertarian would say yes.

Should the government be cut in half like Lee, Paul, and Cruz want?

Do you publicly endorse Rand Paul's budget?

http://www.washingtontimes.com/news/2013/mar/22/rand-paul-maps-quick-path-balanced-budget/

You stated: "Meanwhile, rather than trying to tell me what I believe,..."

As Bill already noted, a precious line.

You stated: "please explain what you believe -- i.e., do you believe mass incarceration and the modern drug war advances human liberty?"

I have done this several times.

In short, yes I do.

It greatly enhances the liberty of the rest of us when the liberty of criminals is reduced. I care a great deal more about the liberty of the children of the crack addict (much more likely to be abused/neglected) than I do the crack addict. I care a great deal more about the liberty of my family being able to go to the market and not be accosted by a meth head here in SE Kentucky than I do the liberty of the meth head. I care much more about the liberty of the Ferguson shop owner who just wanted to make a living for his family than I do about the liberty of the thugs who broke in and looted the place.

You stated: "Or, please explain what other values you believe are well served by having Weldon Angelos cages for 55 years or Chris Williams caged for 5 years or Edward Young caged for 15 years at federal taxpayer expense. I know why I think they are having their liberty deprived for much too long for no good reason, but I would like to know why you think it is a positive value to have them caged in the federal pen for 75 years in total. Thanks."

First, any CJ system is going to have abuses or injustices. Your anecdotal information outlines that fact, not the one you think.

Secondly, little to no sympathy for either of them. Your first was a gang member who owned a $30,000 Lexus. This outlines that those committing supposedly "victimless" crimes are almost always committing other crimes they were not arrested for.

Everyone knows selling pot is against Federal law. Stupidity can get you in prison, Mr. Williams.

Edward Young was found with stolen property. Bye bye.

You need to do better than those for your poster children.

Lots here Tarls, and more subject to discussion in other settings. But, in short form, I like Rand Paul's budget MUCH more than any other I have seen. I have long favored a balanced budget amendment, and I would like to see federal government spending cut probably by 75%. I would favor getting rid of most gun regulations, though I want gun makers and sellers to be subject to much of the tort liability that faces makers of other dangerous products.

You are right that the modern governments, which are not very libertarian, are now market bullies. But I would favor a school voucher program along the lines you suggest so government school would have to compete for dollars with private schools. I would also favor, roughly speaking, having health care, transportation services, and retirement benefits run this way. Prison and police forces as well. At core, any person/activity without competition gets fat and lazy, and the government shows this reality in all these spheres. I want markets providing much more competition.

Finally, just to better understand your views, because LWOP for any and every criminal would likely increase the liberty of non-criminals, is it fair to say you would favor and support as liberty enhancing giving the federal government power to punish any and every lawbreaker with LWOP for a first offense? This is a serious query, because it seems you have no sympathy or concern for the liberty of anyone who violates the law and seem not to think their confinement should even factor into our liberty calculation. Is that accurate?

Doug,

That is "dancin' and prancin'" more than Rand Paul (as Bill would say). You answered hardly any of my questions.

You stated: "Lots here Tarls, and more subject to discussion in other settings."

Wrong. The question is whether you are a libertarian or posing. Asking for me to explain why I believe this about you and then refusing to address my points as better suited for "other settings" is a transparent dodge and poor form.

You stated: "I would favor getting rid of most gun regulations,..."

I asked a specific question which this does not answer. Do you hold the libertarian position that guns should not be registered? Yes or no?

You stated: " ...though I want gun makers and sellers to be subject to much of the tort liability that faces makers of other dangerous products."

How unlibertarian of you. In other words, instead of controlling guns through criminal law, you will do so via tort law (using the same force of government that supposedly makes your "Libertarian" heart ache).

You stated: "You are right that the modern governments, which are not very libertarian, are now market bullies."

Yet, you want to keep the government in the "markets."

You stated: "But I would favor a school voucher program along the lines you suggest so government school would have to compete for dollars with private schools. I would also favor, roughly speaking, having health care, transportation services, and retirement benefits run this way... At core, any person/activity without competition gets fat and lazy,..."

This is incoherent and ivory tower thinking. You want "more markets" but there is no logical reason to keep the government in many of them (e.g. schools)and NO CHANCE that government will refrain from using the force of law to gain advantage. The government cannot even process a 501c application fairly and we are to expect that the DoEd is going to treat me fairly as a homeschooler? Government does not become more efficient with competition, it becomes more coercive against it.

The REAL libertarian position is to get government out of all realms that it does not belong and have it concentrate on core functions outlined in the constitution (police, military, etc.).

You stated: "Finally, just to better understand your views, because LWOP for any and every criminal would likely increase the liberty of non-criminals, is it fair to say you would favor and support as liberty enhancing giving the federal government power to punish any and every lawbreaker with LWOP for a first offense? This is a serious query, because it seems you have no sympathy or concern for the liberty of anyone who violates the law and seem not to think their confinement should even factor into our liberty calculation. Is that accurate?"

SMH

Actually, I would give the Federal government LESS power to convict criminals. I believe they put their noses in a lot of cases that would have been handled locally decades ago.

Nothing in my previous comments indicate a desire for LWOP for every crime, nor does logic lead one to that conclusion. You have a fertile mind to even go there.

I am not for putting a guy with a joint in jail at all, so LWOP is a non starter. However, when you are trafficking enough that both you and your girlfriend can fit into the duffel bag you carry it in (Weldon Angelos), my sympathy wanes quickly. Same when you are a gang banger. Same when you are carrying a gun to carry out your trade. (but a gang banger selling drugs while packing is probably not doing anything else wrong, correct?)

You stated: "This is a serious query, because it seems you have no sympathy or concern for the liberty of anyone who violates the law and seem not to think their confinement should even factor into our liberty calculation. Is that accurate?"

It is not that I feel a felon's confinement should not factor in the calculation, it is that I feel the liberty of law abiding society is exponentially more important. Whenever there is a mandatory anything, injustices will occur as the law cannot foresee all possible scenarios. However, I believe that even graver injustices are more probable when a judge can give a pedo 15 months. It is true that the pedo may never molest again but I am far more willing to unfairly surrender his liberty than I am the next prospective victim's.

Tarls: You are showing your ignorance of libertarian theory, because most serious libertarians look to tort law as a way to reduce the size of the criminal/regulatory state while still allowing restitution for those who have their private property or personal liberty significantly harmed by the actions of others. Thus, it is a classic libertarian response to say I would favor a tort remedy in place of big-govt regulation.

That all said, though I do not favor big-government restrictions/regulations of guns, I think some freer markets function better and more efficiently when some things are "registered" so that buyers and sellers can have a place to check on what they are getting. Private plots of land and securities, for example, are often "registered" for this reason. So, to try to make the point clear, I generally favor registration of items when it helps with market transactions, but not when it aids government control. (FWIW: I struggle with current government registration requirements for cars and drivers, especially when I have to go to the DMV and stand in line.)

I hope that is a clear enough answer for you on the gun front, and I trust from reading my blog that you realize I am very against all federal laws which significantly restrict who can purchase and use guns/ammo. Do you share my disaffinity for felon in possession federal criminal laws? That is the law which got Ed Young in federal prison for 15 years, and I would think you should have at least some concern if you really care about too much gun regulation and if you really would like to see the federal government having "LESS power to convict criminals."

Your comment to that extent allows us to get to the real heart of my concern with Bill's approach to crime and punishment (and our likely grounds for much agreement). Not only does Bill seemingly want government to have lots of criminal justice power, it seems he especially wants FEDERAL prosecutors and agents to have that power without any real restrictions or oversight (and backed by a government that prints money).

In the end, it is ironic that you are worried that the government will not treat you "fairly as a homeschooler": I trust you realize that many of my concerns about the FEDERAL criminal justice system stem from my worry that the FEDERAL government will not often be sure to treat all of us "fairly as a defendant." Indeed, the main reason I think it VERY important to have more criminal law done at the state and local level is because the budgetary consequences of bad government serves as a greater check on government waste and excessiveness. Indeed, but for the FEDERAL government printing lots of money to support the drug war, I suspect marijuana would have been de jure legal about a decade ago.

Douglas stated: "Tarls: You are showing your ignorance of libertarian theory, because most serious libertarians look to tort law as a way to reduce the size of the criminal/regulatory state while still allowing restitution for those who have their private property or personal liberty significantly harmed by the actions of others. Thus, it is a classic libertarian response to say I would favor a tort remedy in place of big-govt regulation."

Stop being a lawyer. We were not speaking about general libertarian theory. We were discussing a specific topic, gun control. There is no libertarian position for harassing gun manufacturers through tort law. You know this. I know this. Trying to slide away from the topic constantly while pretending we were talking about the new topic the entire time) is dishonest and speaks poorly of you.

You stated: "That all said, though I do not favor big-government restrictions/regulations of guns, I think some freer markets function better and more efficiently when some things are "registered" so that buyers and sellers can have a place to check on what they are getting. Private plots of land and securities, for example, are often "registered" for this reason. So, to try to make the point clear, I generally favor registration of items when it helps with market transactions, but not when it aids government control. (FWIW: I struggle with current government registration requirements for cars and drivers, especially when I have to go to the DMV and stand in line.)"

In other words, you do not have a libertarian position on gun control at all. Then please stop pretending that you do. It is just more lawyering.

Registration has no meaningful impact on "market transactions" of guns. (I cannot believe you even had the nerve to type that.) A glock is a glock. You know what you "are getting."

You stated: "I hope that is a clear enough answer for you on the gun front, and I trust from reading my blog that you realize I am very against all federal laws which significantly restrict who can purchase and use guns/ammo. Do you share my disaffinity for felon in possession federal criminal laws? That is the law which got Ed Young in federal prison for 15 years, and I would think you should have at least some concern if you really care about too much gun regulation and if you really would like to see the federal government having "LESS power to convict criminals."

Oh, it is clear all right. Your gun position is not at all libertarian. And I feel that felon in possession laws should be a states issue. I am sure there is some legal basis for the Feds to involve themselves in cases like Ed Young's, but they should stay out of possession cases unless it is on Federal land or involves trafficking.

You stated: "Your comment to that extent allows us to get to the real heart of my concern with Bill's approach to crime and punishment (and our likely grounds for much agreement). Not only does Bill seemingly want government to have lots of criminal justice power, it seems he especially wants FEDERAL prosecutors and agents to have that power without any real restrictions or oversight (and backed by a government that prints money)."

Although we would agree that the Feds are too quick to jump into cases best handled by the states, I agree with Bill that prosecutors are constitutionally given the task to bring forth charges. Judicial oversight comes in the form of criminals being found not guilty if the prosecutor overcharges. I have no problem with MMs in cases where the Feds (or states) have proper jurisdiction.

You stated: "In the end, it is ironic that you are worried that the government will not treat you "fairly as a homeschooler": I trust you realize that many of my concerns about the FEDERAL criminal justice system stem from my worry that the FEDERAL government will not often be sure to treat all of us "fairly as a defendant.""

No irony at all.

A prosecutor is within his rights to charge for any and all crimes committed. The Federal government has no constitutional basis for being included in education.

Noted that a lot of my questions are STILL unanswered.

Tarls, I do not favor "harassing gun manufacturers through tort law" nor do I favor HARASSING any other private industry through tort law. But I do favor having private manufacturers bear at least some of the real costs of the harm their products produce so that they have incentives to make their products safer for consumers. This is not lawyer speak, this is classic libertarian theory that recognizes that government is often needed to help address "market failures" --- and the ability of a producer to internalize only benefits and externalize major harms of its products is a market failure that tort law seeks to address. (I would urge you to read Guido Calabresi's classic, The Cost of Accidents, to better understand the importance of effective tort law to well functioning markets in potentially dangerous products like guns and drugs and cars.)

Let me try to explain what I mean when I call myself a libertarian, especially because I fear you think being a libertarian means accepting nearly all the positions of the modern GOP. If embracing modern GOP platforms defines your vision of libertarianism, then you are right that I am not that kind of libertarian.

My libertarianism involves a core commitment to trusting (adult) individuals and free markets and distrusting any and all heavy-handed government interference (especially federal government interference) with the activities and choices made by (adult) individuals and free markets. (For the record, my libertarianism is a function of my meta-commitment to a consequentialist philosophy with a vision of the good based in Aristolean value-ethics focused on enabling human flourishing. In other words, I think free markets and less government best facilitates, at this moment in world history, enabling the maximum number of humans to maximally flourish through the course of their lives.)

I am sorry if this strikes you as too theoretical or lawyerly --- I am a American law professor, so my job demands I think a lot about theory in the context of modern American law. And, as a result of 20+ years in this field, I feel very strongly that the huge growth in federal criminal powers/punishments deployed by federal prosecutors and judges serves are nation very poorly and it is insufficient, at least from my libertarian position, to say simply that "a prosecutor is within his rights to charge for any and all crimes committed." After all, it is arguably a federal crime right now if you were, as a homeschooler, to falsely fill out a required federal form about your homeschooling. Does it not concern you that the feds would be most likely to attack homeschoolers through use of the criminal law?

We can turn this back to the gun control story by looking at a telling federal prosecution that made it all the way to the Supreme Court --- US v. Victor Rita. Mr. Rita's federal crime was that, after buying some gun parts through the mail, he apparently was not fully honest with ATF agents who wanted to know more about what and why he bought these parts. For this crime, Mr. Rita was forced to serve 30 months in federal prison. (Notably, it was the BUSH DOJ that prosecuted and defended Mr. Rita's treatment.)

If you really worry, Tarls, about gun control and/or federal government overreach, I think you should look into just how broadly and aggressively the federal government goes after individuals and free markets through the criminal justice system to achieve its various policy interests. (The recent Yates case before SCOTUS is another good example.)

I do not want to dispute your belief that you are more free because the federal government went hard after Mr. Yates and Mr. Rita and Mr. Young. But I do want to suggest that if people really concerned about the growth of government do not speak out against the huge growth of the federal criminal justice system, it will be very hard to convince lots of voters that you really care about the overall growth of government or just care about the growth of the government in areas you dislike.

I would like to address all your unanswered questions about my views, Tarls, and perhaps our hosts here might usefully start a new thread which simply asks "What is a true libertarian position on the size and reach of modern criminal justice systems and gun regulations and ______." If you are willing to come back to my blog, we can continue the discussion there. I really do want to try to explain myself to you fully and I am especially interested in understanding what you consider to be "true libertarian position on the the size and reach of modern criminal justice system and gun regulations and ______."

If Bill or Kent are still paying attention, I would be grateful for a new thread to get on this topic. Especially given Rand Paul's interest in getting to the Oval Office, I think this topic is very important and timely and I am eager to hear multiple views and perspectives to deepen my understanding of how others look at these matters.