Support the Guide on Patron!

Be sure to share your comments in the Class Participation section below -- that's the best part! Also, you can use the arrows on your keyboard to flip through pages quickly.

Use this link to buy the books, and a portion of the proceeds goes to St. Jude Children's Research Hospital

Join the conversation!
There are now 10 comments... what are your thoughts?
  1. Jeff says

    The orange jumpsuit is making me have feels. :( Unjust application of laws!

      • My neurons tend to link up in surprisingly efficient ways, or something like that!

        Actually, that makes me wonder – how DOES something like eidetic memory work? Or more generally, what’s the difference between someone who has a good memory and someone who doesn’t? I know you don’t want to go into too much depth in the comic itself, but if you have any insight on this I’d be interested to hear.

        • I wonder myself, as I have a terrible memory for details (I will forget your name within 5 seconds of meeting you, it’s very embarrassing), but can remember and link concepts in ways that often surprised my teachers. And poems. I remember poems, I can recite poetry for hours. But I can’t remember my own phone number.

          • Poetry has a story. Stories seem to be one of the fundamental data structures of the human mind. Hash tables? Not so much.

  2. 54 says

    is that the girl that got in trouble for her feather collection? i think of her every time i see a feather not attached to a bird. poor girl.

  3. Jonathon says

    The feather story reminds me of regulatory law abuses. What do you think of Yates vs. The United States? My neighbor John got to argue a Supreme Court case!

    • I didn’t review the oral argument yet, but others seem to think Mr. Badalamenti did a good job.

      There are a few fundamental problems that lead to such abuses. First, criminal legislation is drafted without enough thought given to unintended consequences. Much of it — and especially administrative regulations that don’t even involve the legislature — is put together without any real understanding of how criminal law works. I go into the main problems there in more detail in that earlier chapter.

      But all of this is compounded by another systemic problem: Prosecutorial discretion. More accurately, how prosecutorial discretion has gotten screwed up.

      We’ll get into all this in Advanced Crim Pro, but that’s a long way away, so here’s a quick version: Prosecutors have awesome powers. They are the ones — and nobody else — who decide what crimes to charge someone with, what an appropriate plea bargain (the vast majority of convictions) will be, and in most cases even what the sentence will be. When someone is arrested, it is the prosecutor and nobody else who decides what will happen to him until it goes to trial, which rarely happens. Once the police arrest you, your life is in the prosecutor’s hands.

      Of the myriad crimes you could be charged with, the prosecutor can decide which ones to actually charge — or even decide not to go forward with the case at all. A prosecutor is always free to dismiss the charges in the interests of justice. Choosing the crime to charge has a huge effect on what happens to the case — will it be a felony with restricted plea bargain opportunities and severe punishments and serious lifelong consequences after conviction? will it be a misdemeanor that gives you a criminal record but can be more lightly punished and have less effect on your life afterward? could it be a non-criminal outcome that accomplishes the goals of society without wrecking anyone’s life? Likewise, the prosecutor gets to decide what plea bargain (and usually what sentence) to offer — which accounts for the outcome of most cases.

      With great power comes great responsibility. So the prosecutor is tasked with making these decisions so as to “do the right thing.” It is the prosecutor’s job to minimize abuses of the state’s awesome might. It is the prosecutor’s job to seek the outcome that serves society’s needs with the least harm, to get the most fair outcome.

      The poorly-drafted laws are passed with this expectation: that the dire unforeseen consequences will never happen, because wise prosecutors will use their good judgment and discretion to not charge people unjustly or seek unfairly high sentences. The politicians ratchet up penalties and rack up crimes to please the voters, secure in the knowledge that prosecutors are there to prevent misuse and abuse of these laws. The bureaucrats write their criminal regulations with similar expectations, that their rules will be used to go after the big fish, and the little fish that get caught in the net will be released. (I really hope that analogy had been used at oral argument in Yates.)

      However… Prosecutorial discretion is all but absent in many prosecutors’ offices around the country. Federal prosecutors don’t get to choose the most just offense to charge — their orders are to charge the most severe offense they can find. They can’t decide to dismiss a count on their own, but need to go way up the chain of command in the DOJ to get approval. Their plea bargains are supposed to reflect the acts that were committed, not what the fairest outcome is, and they’re bound by the absurd penalties put in place by the lawmakers. There is little room for creativity, though to their credit some AUSAs try to do what they can in the more sympathetic cases. State prosecutors’ offices can be even worse. Both as a prosecutor and as a defense attorney I have dealt with offices around the country, and some of them give zero discretion to their prosecutors. Charging decisions and plea offers are made by higher-ups, or by adherence to a standard policy, and the prosecutor has little or no power to do things differently. Some offices — I am not making this up — believe that it is their job to seek a conviction on every arrest made by the police, totally misreading the role of a lawyer to “zealously advocate.” Few DA’s offices actually give their front-line prosecutors full authority to decide what to do in their own cases, which they alone know best. And even where prosecutors do have a decent amount of discretion, some of them don’t or won’t use it. Some are hard-nosed, some are malicious, some are fools, and some just don’t know any better.

      So the hope that bad laws and erroneous policing will be tempered by the prosecutor’s discretion is a false hope.

      It’s a perfect storm of systemic flaws, all cascading into one big tidal wave of overreach, abuse, and heartbreaking injustice.

      Anyway, that’s the short version.

      • So when someone talks about cracking down on crime, the effect is often felt by those who made an honest or unavoidable or ignorant mistake?

Class Participation

Your email address will not be published. Required fields are marked *

Support the Guide on Patron!