Let’s talk about this story. It discusses a NJ bill that is designed to make sentencing less harsh. The bill is being held up because a lawmaker introduced an amendment that would eliminate the mandatory minimum for one type of corruption.

First, let's talk about the framing of the story. The lede is about how the lawmaker who introduced the amendment has a girlfriend whose son is facing corruption charges. The story minces no words: It says the amendment was added specifically to help that man.
The idea of powerful people helping each other escape punishment is a powerful one. It is the stuff of headlines and outrage, and so I'm not surprised that this is how the story is being framed.
But there is also another way to frame this story--that most people only appreciate the harshness and injustice of the criminal justice system once they or someone they love have been swept up in it.
We've seen the story before, and it sends us a different message.
The "powerful people get off" framing tells us to be suspicious of leniency & not to trust criminal justice reform.

The "I only realized when" framing tells us that we aren't paying enough attention to harshness & more reform is probably needed.
Second, let's talk about the crime itself which carries a 5 year mandatory minimum.
As someone who researches the statutory language of criminal laws, this law makes me very uncomfortable. The conduct is not well defined--look at that "clearly inherent" language. Yikes!
So it is unclear what, precisely, is illegal under this law. In addition, the law appears to be a kind of catch all -- other classic corruption crimes, like bribery, are handled by other statutes (which also carry mandatory minimums).
All of this raises an important question--Is this relatively vague law even necessary? Couldn't the girlfriend's son have been charged with some other crime, like theft?

And if we are going to have a relatively vague law, do we want it to carry a 5 year mandatory sentence?
That leads to my third point--all of the statements in the NYT story about why this mandatory minimum law is necessary. Those statements boil down to two arguments--neither of which stands up to scrutiny. The first argument is that officials "need" this law to "build cases"
In case it's not clear from these quotes, the argument about "building cases" is an argument that prosecutors need to be able to threaten suspects with a mandatory minimum sentence so that the suspect will plead guilty.
It's a common argument, usually framed in terms of "cooperation" rather than guilty pleas. (I guess prosecutors know that the public would balk at the idea that prosecutors shouldn't even have to bring a case to trial.)
The thing that is so galling about the "build the case" argument is that it is often paired with an argument about it being important that these defendants serve a particular sentence--even though the whole idea of cooperation is premised on the idea of a much lower sentence.
In this article, the argument is framed as a need for protection against politically appointed judges possibly being too lenient.
If the implication is supposed to be that judges as appointees can't be trusted, I wish it had mentioned that NJ prosecutors are selected the same way
By supplementing the "build the case" argument with "judges might be too lenient," the article may mislead readers.
The article never mentions that mandatory minimums are about shifting power over punishment decisions from judges to prosecutors.
But that's exactly what they do.
The second argument in favor of mandatory minimums is straightforward--both in terms of the argument and also why it is wrong.
The argument is deterrence. If you know crime X carries Y mandatory minimum, then you are less likely to commit crime X.
The deterrence argument seems intuitive. The problem is that it doesn't actually happen.
The truth is that human beings don't really think like this. And the idea that people will be less likely to commit crimes because of higher punishments has been debunked lots of times.
The irony of this story is that this whole bill is about reducing mandatory minimum sentences. The amendment just added one more crime to the list. All of this bad arguments about keeping mandatory minimums apply to drug and property crimes as well.
It is precisely because of this that some people interviewed for the story were just like "OK. Feel free to another crime to the bill if you want."
Those people get it--mandatory minimums are not a good idea, even if you really don't like a particular type of crime.
But not everyone feels this way. Aside from prosecutors (and plenty of former prosecutors) who are always willing to recycle the same tired arguments in favor of mandatory minimums, there are other people opposed to this amendment: Progressives
Progressive groups are worried about money in government, corruption, and income inequality. I get it. I also worry about those things.
But the idea that removing a mandatory minimum sentence sends the message that a crime is "tolerated" is just silly.
That "sends a message" argument is just as bad as the "build a case" argument and "deterrence" argument---and it has been used for decades to put more people in prison and to fuel mass incarceration.
These groups should know better.
Unfortunately, corruption specifically and white collar crime more generally is something where some progressives are happy to see higher penalties and a coercive justice system.

This desire for harshness is so prevalent, that some have coined the term "carceral progressivism"
Don't get me wrong. There are reasonable arguments to be made about the underenforcement of white collar crimes and how particular underenforcement patterns appear designed to benefit the wealthy and the powerful. https://t.co/v12qh0mlTj
But let's please not pretend that mandatory minimums are necessary to cure those enforcement problems. They exist in large part so that prosecutors do not actually have to prove their case in court. And they also just don't work.
And can we also agree that the Supreme Court's recent cases about how to interpret federal corruption statutes are just irrelevant to the conversation about whether states should have mandatory minimum penalties at their disposal to enforce poorly drafter state laws. Sheesh!!

More from Law

Pretty much every professional field EXCEPT police have clear, rigorous, transparent consequences for unethical behavior, negligence and malpractice.


The idea that we can "disbar" lawyers but not police is absolute foolishness.

All the factors that make disbarment a necessary tool for lawyers apply to cops... except that cops don't need to be qualified in the first place.

It is a rank absurdity of the criminal justice system that one needs to be educated and certified with a degree in order to argue on behalf of someone's life in court, but to have no qualifications necessary to detain, assault, or prematurely end that same life.

There are countless circumstances in which a lawyer's unethical behavior will result in them not only losing their job but never being able to practice it again.

But corrupt and murderous cops can be rehired indefinitely.

A lawyer's entire career can be ended forever if they were found to have knowingly put someone on a stand to lie.

Police officers however are allowed to lie in court on the stand under oath.

So much that lawyers aren't penalized for putting cops on the stand to lie.
This issue was repeatedly highlighted bu Judge Totenberg:

Dominion’s system “does not produce a voter-verifiable paper ballot or a paper ballot marked with the voter’s choices in a format readable by the voter because the votes are tabulated solely from the unreadable QR code.”


Judge also found that Dominion's QR codes are NOT encrypted:

“Evidence plainly contradicts any contention that the QR codes or digital signatures are encrypted,”

This was “ultimately conceded by Mr. Cobb and expressly acknowledged later by Dr. Coomer during his testimony.”

Judge Totenberg said there was “demonstrable evidence” that the implementation of Dominion’s systems by Georgia placed voters at an “imminent risk of deprivation of their fundamental right to cast an effective vote,” which she defined as a “vote that is accurately counted.”

Judge Totenberg found that Dominion Systems inherently could not be audited.

She noted that auditors are severely limited and “can only determine whether the BMD printout was tabulated accurately, not whether the election outcome is correct.“

Totenberg stated in her ruling that a BMD printout “is not trustworthy” and the application of an Risk-Limiting audit (RLA) to an election that used BMD printouts “does not yield a true risk-limiting audit.”

Georgia used RLAs to claim no fraud...
How to avoid (successful) accusations of defamation on Twitter. A few thoughts from someone who is NOT a libel lawyer, but does say very critical things about named individuals. 1/

1. Facts are different from opinions. But stating an opinion can imply a fact.
https://t.co/1PkiI4olib


2. When I tweet I aim to be sure A. I show the *facts* I am basing my *opinion* on. B. I have good reason to believe the *facts* are true. C. My opinion is reasonable based on the facts.

Here I am calling Arron Banks a racist (opinion). Pointing out this is because he called for mosques to be demolished (fact). 4/


I can prove this fact - and others - about what Banks has said. And I can justify why in my opinion that shows he’s a racist. 5/

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