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They Keep Lying and Lying

The main problem in being an advocate for robust law enforcement is not putting up with repeated smears from the other side.  Kent and I have been called fascists and bloodlusters too many times to remember.  After a while, you get used to it as the way many people (although not the majority) on the other side do business.  (I have also been called a kapo and  --  get this  --  a necrophiliac.  I think Kent has missed out on those two bouquets, so far).

No, the main problem is not that the Left smears but that they lie.  "Lie" is a strong word, but it's the only one that correctly captures what's going on.  Moreover, they generally lie with impunity.  While the more adult advocates on the Left will criticize insult as a means of debate, only a handful will call out the lying.  Even when they do, it's largely excused as being merely push-the-envelope advocacy.

Two recent examples of flagrant lying come to mind.
As is often the case, the quite informative Sentencing Law and Policy provides a useful window. In an entry today, it notes a broad-based challenge to the death penalty mounted by the renowned Neal Katyal, a very smart lawyer and a former Acting Solicitor General in the Obama Administration.  It quotes the cert petition Katyal filed in the Supreme Court as stating:

A national consensus has emerged that the death penalty is an unacceptable punishment in any circumstance.

What can I tell you?  That assertion is a point-blank lie.  I need not recur to the fact that, according to Gallup, 60% or more of the public supports the death penalty, now as for at least the last 40 years; nor to the fact that every major Presidential candidate has supported it, including the last two; nor to the fact that the death penalty won substantial victories everywhere it was on the ballot last November, most notably in deep blue California; nor to the fact this year and over the last five years, the country has had an execution on an average of once every two weeks (or slightly more often, see.https://deathpenaltyinfo.org/executions-year).

No, one need only recur to the strained method abolitionists themselves use, to wit, the number of states with the death penalty (31) that have had executions in the last ten years.  That number would be be 20, or roughly two-thirds of capital punishment states.  See the table compiled by none other than the DPIC, https://deathpenaltyinfo.org/jurisdictions-no-recent-executions.

But hold on, you say.  Shouldn't we count all the states, not just those with the death penalty?  The answer is no, for reasons explained by Justice Alito in his four-member dissent in Kennedy v. Louisiana,   

But even that is not the point.  The point is that, even if one does count all the states, 40% of them have had executions in the last decade.  Now 40% is not a majority, but it's a large enough minority to make it not merely false, but preposterous, to claim that there is a "national consensus...that the death penalty is an unacceptable punishment in any circumstance."

(This is not the place to elaborate the fact that it is up to the elected branches, and not the intentionally non-majoritarian judicial branch in any event, to determine when there exists a "national consensus").


The other point-blank lie that popped up recently was featured in a second entry on SL&P.  The article there discussed is a supposed "news story" by the NYT credulously channeling a one-sided argument by the advocacy group Alliance for Safety and Justice.  

The argument, and hence the "news story," is to the effect that crime victims themselves, unlike President Trump, favor a rehab-over-prison approach to criminal justice.  In the course of making this argument, the head of the Alliance, one Aswad Thomas (a shooting victim), is quoted by the Times as saying:

'Lock 'em up and throw away the key,' that's the traditional way of thinking, but many victims don't want 'tough on crime' and incarceration...Most of us want more rehabilitation services for crime victims.

The claim that the "traditional way of thinking" is "lock 'em up and throw away the key" is just flat-out false.  The traditional way of thinking is that the punishment should fit the crime.  No serious person  --  not one  --  thinks now or has thought for time out of mind that a life sentence (throwing away the key) is an appropriate sentence for any but a tiny number of crimes.

If the head of the Alliance for Safety and Justice doesn't know this, he's a fool.  But the chance he doesn't know it is remote.  The greater chance by far is that he's a liar.  He simply concocts the other side's "position" to smear it as a bunch of vindictive, knee-jerk know-nothings.

So there we have it.  Aggressive, and mostly not even remarked-upon, lying.  This is what the other side is up to, in the New York Times and in Supreme Court briefs, and why it's increasingly almost impossible to attempt to have a conversation with them.

P.S.  I won't get into the obvious fact that wanting more services for crime victims is not in any way inconsistent with wanting more punishment for victimizers. Incoherence is a different problem from mendacity.


"While the more adult advocates on the Left will criticize insult as a means of debate, only a handful will call out the lying. Even when they do, it's largely excused as being merely push-the-envelope advocacy."

Those sentences should hit one frequent commenter here right between the eyes.

If one has to lie or "push-the-envelope" to make a point, the point is better off unmade. The argument is weak.

Tarls, are you talking to me?

Are you saying I should feel an obligation to call out "lies" by criminal justice reform advocates?

Just trying to know for sure who you are referencing and what you think I should be spending my time doing.

Hey Bill, Senator Rand Paul had this response to the Sessions charging memo back in May: “Mandatory minimum sentences have unfairly and disproportionately incarcerated too many minorities for too long,” said Dr. Paul. “Attorney General Sessions’ new policy will accentuate that injustice. Instead, we should treat our nation’s drug epidemic as a health crisis and less as a ‘lock ‘em up and throw away the key’ problem.”


Is Senator Paul a fool or a liar eager to smear AG Sessions and others in DOJ "as a bunch of vindictive, knee-jerk know-nothings"?

I concur that the phrase "Lock 'em up and throw away the key" is a characterization of a "tough-on-crime" position, but I am not sure using that characterization alone turn one into a liar.

Why? Did you see yourself in that statement?

I will answer you anyway.

Yes, it is your obligation, more so than just about any other lawyer, because you are in academia.

That is not to say that your job is necessarily to take sides when discussing case law or a criminal justice issue with your students, but it is your job to teach your students proper ethical limits for the profession. Excusing lies and "push-the-envelope advocacy" is a disservice to them and the public. It is exactly that kind of advocacy that has put us on the road to a rise in white nationalism, antifa, BLM, and Trumpism.

Speaking of dishonesty and as an attempt to abort it in the womb, none of the words above are meant to state or imply that I hate Jews. I hate to even type such a disclaimer, but with you it is unfortunately a necessity in this era of "push-the-envelope advocacy."

"Is Senator Paul a fool or a liar..."

Not sure which, or both, but "yes."

In the classroom, Tarls, I am quick to call out advocacy and case law that I consider wrong/inaccurate/pernicious in all sorts of ways. I agree that it is my job to "teach my students proper ethical limits for the profession," and thus I have a particular obligation to explain what I see as good/bad, right/wrong, true/false in the advocacy and judicial work that I put in front of my students as required reading.

Indeed, Tarls, one reason I developed the first-ever law school course on marijuana law and policy is because I see so much "lying" in this advocacy space, and I think it critical for lawyers to be able to sort truth from lies --- critical as a matter of personal ethics and as a matter of properly serving as a contributor to society through law and legal institutions.

But I do no think it my job, nor could I do the job in any way adequately, to "fact check" and call out any and every statement made by any and every advocate that I might link to on my blog (and I certainly cannot fact check every statement made by commentators). I will never reprint material that I know is perniciously false, but I will often reprint statements my by serious advocates in serious settings that I think is deeply misguided. This happens a lot with DP abolitionist claims, but also in some other settings. Sometimes I will be able to flag or raise questions about claims that really leave me puzzled (see, e.g., my comments about the label "racist" in a NYT op-ed here: http://sentencing.typepad.com/sentencing_law_and_policy/2017/08/lamenting-the-role-of-prosecutors-in-continued-pursuit-of-juve-lwop-sentences.html). But if I were to talk about every statement made by an advocate that seems suspect, I would never have time to do anything else.

Advocates say some out there stuff --- e.g., I do not think it fair or honest to call Senator Paul a fool and/or a liar --- and I do my level best to call them like I see them when I have the chance. If you come to my classes --- where you have an open invitation --- you can watch how I do this in the classroom.

You remain the master of diverting the discussion to the one you'd like to have and away from the one noted in the post.

So before we get to Sen. Paul, about whom I said not one word, let's return to the actual discussion.

1. Neal Katyal wrote in his brief (and you quote his words in your blogpost) that, "A national consensus has emerged that the death penalty is an unacceptable punishment in any circumstance."

That statement is a point-blank lie, isn't it? The evidence that it's false is beyond overwhelming, and a man of Katyal's extensive sophistication and experience knows it's beyond overwhelming.

2. The head of the pro-criminal alliance for Safety and Justice said that the traditional view of criminal justice policy was to "Lock 'em up and throw away the key."

That too is a point-blank lie, isn't it? As you know better than most, the traditional view is that the punishment should fit the crime, and in only the rarest of prosecutions, far less than one percent, does that mean a life sentence.

After clear and direct answers to those questions, we can talk about Rand Paul.

1. I agree that, as written, Neal's statement is foolish and inaccurate. I hesitate to use the word "lie" because I use that term to describe a knowing falsehood. I suspect Neal has taken up this case in part because he believes that the more limited use of the DP in recent years provides the basis to claim the existence of a national consensus.

I think his brief would be far more effective --- and maybe have a chance to get votes for cert --- if he changed the last phrase "in any circumstance" to "in any case not involving terrorism or mass murder." Do you think this statement could/should be branded a "lie" if so modified?

2. I think the phrase "Lock 'em up and throw away the key" is a loose way to describe a very harsh, pro-punishment/incapacition, anti-rehabilitation attitude about prison sentencing. I think it accurate to say that, after failing with rehabilitative models for much of the 20th century, our sentencing laws largely embraced a pro-punishment/incapacition, anti-rehabilitation attitude about prison sentencing. I am not sure it is at all right to call this a "traditional" view of CJ policy, but I also do not think it a "point-blank lie" to assert that rehabilitation in prison was not a concern for many decades.

Critically, I do not think "Lock 'em up and throw away the key" is meant to describe only LWOP sentences. I think "throw away the key" can mean disregard rehab and parole possibilities while a person is serving their term. I am not sure if that is what this speaker meant, but I am again disinclined to call him a liar unless I feel confident the statement is a knowing falsehood.

At the risk of distracting again, I sure wish you and others here would express as much concern about when our Prez seems to lie as when sentencing advocates do.

-- I couldn't believe Neal would say such a thing. If he'd put something like that in a Supreme Court brief when he was in the SG's Office, he'd get fired.

He can't help but know it's false. Indeed, he knows it better than practically anyone in the country.

It's going to hurt his reputation. It may make him unconfirmable in the next Democratic Administration. It's too bad; he's a good guy and does not look on law as a bloodsport.

-- Whoever this head of the Alliance is is expected to be off-the-wall, but when you make it as obvious as he did, you just hurt your case. But I have no sympathy for him. He did it for a risible purpose -- to portray his opponents as careless, callous and cruel. That is unworthy and false.

I would love to get this guy in a debate. Love it.

-- There are hundreds if not thousands of blogs devoted to The Donald. Kent does a yeomanlike job of keeping this one focused pretty strictly on criminal law. As a humble guest contributor, I am both happy and obligated to honor the constraints CJLF thinks wise. As you have undoubtedly seen, I speak more vividly on Facebook.

Mr. Katyal did not use the quoted phrase in the Hildago cert petition; what he actually wrote is,
" A National Consensus Rejects the Death Penalty". This statement is followed by six paragraphs of argument and statistics in support. You may disagree with his characterization of what constitutes a "consensus" and find his argument unpersuasive, that hardly makes the statement a lie.

Smilani: the sentence Bill assails appears on p. 4 of the petition (p. 14 of the pdf linked via my blog).

My mistake, I skipped the introduction when I read the petition. Thanks

It took me a while to find it, too.

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