Cliven Bundy--Illegal Grazing = PATRIOTISM!

muddi900

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#81
How much of this is an objection to appeals, rather than mandatory minima? Like, if the sentence had been a matter of discretion, but the 9th Circuit decided that the sentencing court had abused its discretion, would you be more or less sympathetic?

EDIT: muddi, you may be amused to know that I love mando mins and think they should be more common.
I meant everyone who doesn't suck. ;)
 
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#82
How much of this is an objection to appeals, rather than mandatory minima? Like, if the sentence had been a matter of discretion, but the 9th Circuit decided that the sentencing court had abused its discretion, would you be more or less sympathetic?

EDIT: muddi, you may be amused to know that I love mando mins and think they should be more common.
My gripe is with mando mins. The appeals I have no problem with personally, but I can totally get why it would be a bummer to succeed in reducing your sentence, serve your time, and then get told that you defeated after all and need to serve more time.
 

Ox

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#83
Oh, sure, I get that.

But I have a strong hunch what happened, based on news reports. The Hammonds were convicted of arson on federal land in 2012. A mando says that maliciously damaging US property is five years. But in 2013, likely before the Hammonds were sentenced, SCOTUS said that the facts underpinning a mando have to be proven at trial beyond a reasonable doubt. My hunch is that the Hammonds argued, "Hey, just 'cause the jury convicted us of arson on government land doesn't mean they thought we maliciously destroyed US property!" They should have realized that wasn't a slam dunk to survive on appeal. Also, maybe they shouldn't be arsonists?
 

zarathstra

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#84
Oh, sure, I get that.

But I have a strong hunch what happened, based on news reports. The Hammonds were convicted of arson on federal land in 2012. A mando says that maliciously damaging US property is five years. But in 2013, likely before the Hammonds were sentenced, SCOTUS said that the facts underpinning a mando have to be proven at trial beyond a reasonable doubt. My hunch is that the Hammonds argued, "Hey, just 'cause the jury convicted us of arson on government land doesn't mean they thought we maliciously destroyed US property!" They should have realized that wasn't a slam dunk to survive on appeal. Also, maybe they shouldn't be arsonists?
That last part, especially, is pretty good advice.
 
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#85
Oh, sure, I get that.

But I have a strong hunch what happened, based on news reports. The Hammonds were convicted of arson on federal land in 2012. A mando says that maliciously damaging US property is five years. But in 2013, likely before the Hammonds were sentenced, SCOTUS said that the facts underpinning a mando have to be proven at trial beyond a reasonable doubt. My hunch is that the Hammonds argued, "Hey, just 'cause the jury convicted us of arson on government land doesn't mean they thought we maliciously destroyed US property!" They should have realized that wasn't a slam dunk to survive on appeal. Also, maybe they shouldn't be arsonists?
No arguments here, though my understanding was their arson was accidental. I'm not sure if that matters, but if true, it does paint them in a different light.

Now, the protesters? I've no idea. They didn't even have clear demands until just a day or two ago, and those demands are so impossible as to be laughable. And now the Bundy clan is involved and the whole thing reeks of stupid.
 

Ox

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#86
No arguments here, though my understanding was their arson was accidental. I'm not sure if that matters, but if true, it does paint them in a different light.
They deliberately set the fire on their own property, then lost control as the fires spread into government land. Then they did it again five years later.

Let me get my boy William Blackstone:
Commentaries on the Laws of England said:
ARSON... is an offense of very great malignity, and much more pernicious than simple theft... because of the terror and confusion that necessarily attends it[.] It is also frequently more destructive than murder itself, of which it is too often the cause: since murder, atrocious as it is, seldom extends beyond the felonious act designed; whereas fire too frequently involves in the common calamity persons unknown to the incendiary, and not intended to be hurt by him, and friends as well as enemies.
[...]
The offense of arson (strictly so called) may be committed by willfully setting fire to one's own house, provided one's neighbor's house is thereby also burnt... The punishment of arson was death by our ancient Saxon laws. And, in the reign of Edward the first, this sentence was executed by [retaliation]; for the incendiaries were burnt to death.
BTW, I was wrong earlier: the Hammonds argued that a five-year sentence for maliciously destroying US property was, under the circumstances of their case, cruel and unusual. The sentencing judge actually bought that! Which, wow. As the Ninth Circuit pointed out, that argument is ridiculous: courts routinely uphold longer sentences for far less serious offenses.

Totally agree about your sentiments re: the protesters.
 
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#87
They deliberately set the fire on their own property, then lost control as the fires spread into government land. Then they did it again five years later.
I see. I recall hearing that part of the issue wasn't that the fire spread to federal lands, but rather, that the fire was used to cover up poaching. The Hammonds claim it was to stop an invasive species. Still, I agree: accident or not, they acted recklessly and should be punished. I'm curious if fines or the like was also part of their punishment? I'll have to look.

Also, not to derail the conversation, but you did say you support man mins? Why so? Is it because it gives prosecutors more discretion?

edit: I should clarify that the burning of federal lands is definitely part of the issue, and is the salient matter. I meant to say that what initially got them in hot water was allegations of poaching. But I never did read further and most news stories I find are more concerned with the antics of the Bundy clan than anything else.
 
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Ox

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#88
Also, not to derail the conversation, but you did say you support man mins? Why so? Is it because it gives prosecutors more discretion?
No, mandos don't increase a prosecutor's discretion (although they can give the prosecutor more influence). They do cabin the judge's discretion, though, and I've had a bellyful of that over the years. Everyone agrees that judges shouldn't have infinite discretion to impose harsh punishments, I happen to think they shouldn't have infinite discretion on the low end, either.

It's not quite as much of a tangent as you think, because it ties back to the double standards argument. Allowing judges wide discretion in sentencing invites arbitrary and invidious decision-making. Do you think poor black arsonists typically get one-year sentences? I saw a convicted rapist get house arrest once; the convict was a neuroscientist, and the judge gushed over the scientist's "important work" at sentencing. This next part is shocking enough for a trigger warning: that neuroscientist did not look like Dr. Carson. Judges are just as subject to availability bias as the rest of us: they see a particular defendant and are inclined to sentence him in a vacuum, without regard for principle. Some judges find it very easy to sympathize with everyone, some only sympathize with the "right sort," and some are just fucking crazy. I don't trust them as much as you do.
 

OUX

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#89
I don't trust them as much as you do.
To be fair I personally don't trust any man that wears a robe to work and is taken seriously.

But on serious note, I seriously don't trust judges at all. They are the most corrupt sons of bitches in the whole legal system.
 
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#91
No, mandos don't increase a prosecutor's discretion (although they can give the prosecutor more influence). They do cabin the judge's discretion, though, and I've had a bellyful of that over the years. Everyone agrees that judges shouldn't have infinite discretion to impose harsh punishments, I happen to think they shouldn't have infinite discretion on the low end, either.

It's not quite as much of a tangent as you think, because it ties back to the double standards argument. Allowing judges wide discretion in sentencing invites arbitrary and invidious decision-making. Do you think poor black arsonists typically get one-year sentences? I saw a convicted rapist get house arrest once; the convict was a neuroscientist, and the judge gushed over the scientist's "important work" at sentencing. This next part is shocking enough for a trigger warning: that neuroscientist did not look like Dr. Carson. Judges are just as subject to availability bias as the rest of us: they see a particular defendant and are inclined to sentence him in a vacuum, without regard for principle. Some judges find it very easy to sympathize with everyone, some only sympathize with the "right sort," and some are just fucking crazy. I don't trust them as much as you do.
See, that is where I do see eye-to-eye with you on this issue. Man mins help produce fairness, in that a certain crime, no matter who does it or who is attending court, comes with a certain min sentence. On the other hand, man mins seem to often come to rather outrageous punishments and don't carry the kind of flexibility needed to produce fair sentencing when extenuating circumstances are at play. I think there should be a compromise here. What about the Safety Valve Act? I will admit, I only read a brief on it, and never the bill proper, so I may be out of my depth. But in theory, it jived with me. Do you think there should be some changes to man mins, or should the status quo be left alone?
 

Ox

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#92
If a particular offender is obviously less culpable such that he clearly shouldn't get the mando, there's already a solution in place: the federal government is generally entitled to waive the mando, either on the front end (by failing to charge the defendant in a manner that invokes the mando) or back end (by making a motion at sentencing describing the convict's assistance in prosecuting someone else). State prosecutors often have an even simpler system that allows them to waive s mando for any reason. For offenders who are clearly less culpable, that should be sufficient.

Stuff like the Safety Valve Act would only be relevant to an offender that the government thinks *should* get the mando, but the judge disagrees because this defendant is clearly the "right sort" of person. It eviscerates mandos: the judge would be permitted to deviate from Congress's wishes whenever he thinks the mando wouldn't be "just." It's a wolf in wolf's clothing.

EDIT: The bill itself is extremely short. It would allow judges to ignore the mando if "the court finds it necessary to do so in order to avoid violating [18 U.S.C. sec 3553(a)". Sec. 3553(a) basically says, "the sentence should be fair and just in light of the offender's needs and the needs of society." Which, fine, but obviously there is a wide difference of opinion on how to apply that.
 
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#93
If a particular offender is obviously less culpable such that he clearly shouldn't get the mando, there's already a solution in place: the federal government is generally entitled to waive the mando, either on the front end (by failing to charge the defendant in a manner that invokes the mando) or back end (by making a motion at sentencing describing the convict's assistance in prosecuting someone else). State prosecutors often have an even simpler system that allows them to waive s mando for any reason. For offenders who are clearly less culpable, that should be sufficient.

Stuff like the Safety Valve Act would only be relevant to an offender that the government thinks *should* get the mando, but the judge disagrees because this defendant is clearly the "right sort" of person. It eviscerates mandos: the judge would be permitted to deviate from Congress's wishes whenever he thinks the mando wouldn't be "just." It's a wolf in wolf's clothing.

EDIT: The bill itself is extremely short. It would allow judges to ignore the mando if "the court finds it necessary to do so in order to avoid violating [18 U.S.C. sec 3553(a)". Sec. 3553(a) basically says, "the sentence should be fair and just in light of the offender's needs and the needs of society." Which, fine, but obviously there is a wide difference of opinion on how to apply that.
Mind if I ask a dumb question? What incentive would a prosecutor have to waive a mando? Your concerns on the SVA do make sense, though perhaps less nebulous language can fix that? You seem convinced that there are already failsafes in place. I agree that they are, but I'm not sure if they are used enough. But again, I admit to being a bit out of my depth here. I am generally opposed to the idea of mandos on principle, but I cannot help but also agree with the arguments for them, too. Both sides have very valid points and I have a hard time deciding which one is the most correct. It's entirely possible seeking a compromise would only bring out the worst in both worlds instead of the best.
 

Ox

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#94
Mind if I ask a dumb question? What incentive would a prosecutor have to waive a mando?
Not a dumb question at all. In decreasing order of cynicism:
1. Agreeing to waive a mando can be part of a plea agreement, just like you can agree to plead to lesser charges.
2. Induce cooperation in a more important case.
3. PR when you have a sympathetic defendant.
4. Sometimes prosecutors actually agree that a lengthy prison sentence is not just. This is not nearly as rare as you might imagine.

Your concerns on the SVA do make sense, though perhaps less nebulous language can fix that? You seem convinced that there are already failsafes in place. I agree that they are, but I'm not sure if they are used enough. But again, I admit to being a bit out of my depth here. I am generally opposed to the idea of mandos on principle, but I cannot help but also agree with the arguments for them, too. Both sides have very valid points and I have a hard time deciding which one is the most correct. It's entirely possible seeking a compromise would only bring out the worst in both worlds instead of the best.
This is a fundamental conflict in law: the conflict between rules (like mandos) and standards (like discretionary sentencing). Rules can be harsh and inflexible, while standards invite abuse and arbitrariness. We have a variety of ways of combining them, but none are perfectly satisfying. I tend to strongly prefer rules, as you might expect. But part of that is self-interest: rules are much easier to apply as a practitioner.
 

Ox

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#95
I will say that one possible solution is to make mandos the *minimum* sentence we think a sympathetic defendant ought to get. So, for example, if you're writing a mando for robbery with a firearm, picture the most sympathetic case, a Jean Valjean type. What should he get? Not life, right? Maybe ten years?
 
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#96
I will say that one possible solution is to make mandos the *minimum* sentence we think a sympathetic defendant ought to get. So, for example, if you're writing a mando for robbery with a firearm, picture the most sympathetic case, a Jean Valjean type. What should he get? Not life, right? Maybe ten years?
I'd be down with that. Also, maybe mandos should only be for serious offenses? If my memory serves, historically speaking the first mandos in the United States were for drug offenses, right? Maybe mandos just for violent offenders?
 

Ox

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#97
Historically, way before drug crimes existed, many crimes carried a mandatory death sentence (this is now unconstitutional for all crimes). Today the vast majority of people sentenced under mandatory provisions are recidivists, people who commit crimes with a firearm, or violent criminals.

EDIT: I disagree with mandos only for "serious" offenses, though. Mandos should be used whenever judges are significantly likely to be arbitrary or excessively lenient at sentencing. DUI is a classic example of a relatively minor offense that judges are notoriously reluctant to punish, probably because they can imagine themselves doing it. But DUI is dangerous enough to warrant at least some jail time, especially for repeat offenders. Domestic violence and hate crimes (especially against gays) are other examples of not-necessarily-felonious crimes that I wouldn't trust an elderly white male good ol' boy judge to take seriously.
 
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#98
Historically, way before drug crimes existed, many crimes carried a mandatory death sentence (this is now unconstitutional for all crimes). Today the vast majority of people sentenced under mandatory provisions are recidivists, people who commit crimes with a firearm, or violent criminals.

EDIT: I disagree with mandos only for "serious" offenses, though. Mandos should be used whenever judges are significantly likely to be arbitrary or excessively lenient at sentencing. DUI is a classic example of a relatively minor offense that judges are notoriously reluctant to punish, probably because they can imagine themselves doing it. But DUI is dangerous enough to warrant at least some jail time, especially for repeat offenders. Domestic violence and hate crimes (especially against gays) are other examples of not-necessarily-felonious crimes that I wouldn't trust an elderly white male good ol' boy judge to take seriously.
Doesn't it swing both ways, though? Is there honestly a dearth of white male good ole boy prosecutors, some of which are elected and wish to appear as "tough on crime" as possible? I'm not disagreeing with you, since I share your sentiments. But this was what I was driving at earlier; wouldn't prosecutors, in a way, get more discretion (or pull, or power, or whatever you want to call it) by the virtue of it being stripped from judges? I don't think prosecutors--or even judges, for that matter--are so venal and capricious as to not have any human empathy or scruple; however, like you said, no one is free of bias, even the best of us. In the situation you describe, it sounds like--and I could be getting the wrong picture--that the prosecutor pretty much gets a lot of play. The prosecutor more or less, in a manner of speaking, decides the sentence. If a mando is to be ignored, it is done so at the prosecution's discretion. I understand this is somewhat unavoidable and perhaps preferable to giving judges free reign to arbitrarily pick and choose sentences. However, though I believe you when you say that prosecutors do sometimes make a plea for forgoing the mando out of empathy or good PR, I am just not entirely convinced it happens as much as it should; or, rather, if it does happen, it often happens for the same reasons you state that cause judges to go too easy or too hard on certain people.

fwiw, I work in Corrections, so I work directly with criminals and understand them better than most; I tend to sympathize with the prosecution more than the defense and understand that most people brought before a criminal court are guilty; when choosing between Locke or Hobbes, I always go with my boy, Hobbes, even if his prescriptive of absolutism is a bit harsh; When Liam Neeson is training Batman and he tells him that "criminals thrive on the indulgences of society's understanding," I have to stop myself from cheering (I also have to remember that Neeson's solution to this is creating a ninja army that burns down entire cities, so his solution sucks); I do lean more to the left than my peers, especially since Corrections is a very conservative occupation, and West Virginia is a very conservative state; I'm socially liberal, but still maintain what would be, in an American context, some very conservative ideals, particularly as it pertains to property rights, gun rights, and foreign policy, but despite that, some of my peers think I might as well be Chairman fucking Mao. My point is is that I'm not playing Devil's Advocate or being naive. I understand the limitations and realities at play enough to know that no perfect or even close-to-perfect solution exists. But I cannot help but think mandos, as they are now implemented, are wrong. There are failsafes, but I think they need buttressing. Some of the solutions you suggest I do find fair. And I definitely appreciate your take on the situation, because it comes from experience and is logical. I learned much from this conversation. I mean, sure; I could dig around on the internet and find the same arguments you make from someone else, I'm sure; but, to me at least, it is better to have a real conversation with someone that is actually in a position to know what they are talking about.
 
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Ox

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#99
Doesn't it swing both ways, though? Is there honestly a dearth of white male good ole boy prosecutors, some of which are elected and wish to appear as "tough on crime" as possible?
Oh, absolutely. And you're right that taking power away from judges doesn't magically make that power go away. It gets transferred, to the legislature and/or the prosecutor. I think there's somewhat less danger of a prosecutor being capricious or biased in cutting breaks for defendants than with a judge, but it certainly happens and you're right to point it out.

Ideally, a mando works as a Schilling point for the negotiation: judges can veto higher sentences, and prosecutors can veto lower sentences. If they are at loggerheads, the mando applies. But I grant they are far from perfect, and I am open to better solutions. I rather liked the old federal sentencing guidelines, which had a very detailed matrix constraining both judges' and prosecutors' discretion within narrow bands. Too bad SCOTUS said they were unconstitutional.
 
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Conspiracy theorists are already studying the footage and have determined that his arms went down because they shot him once in the abdomen, he brought his hands down, raised them again, and then they shot him again, his hands went down again, then finally shot him a third time killing him.

Because it makes perfect sense that law enforcement officers, when they choose to murder someone in cold blood, shoot once and wait to see if he goes down before shooting again. They're not trained that, when it's time to use lethal force, to shoot multiple times in succession, no, not at all.
 
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