Tuesday, March 21, 2017


A meeting

In August, I had a wonderful moment: I got to call up Rudy Martinez, who had served 26 years of a life sentence, and tell him that he was going home. His clemency petition had been granted by President Obama.

Yesterday, I got to meet him in person. He came up to Minneapolis and visited with writer Bruce Rubenstein, who had recruited me into the case in the first place. Then they both headed over to St. Thomas. 

In the afternoon, Rudy came to my Crim Law class and talked about his case. It was fascinating, and important. Criminal law in the end has to be about people, not rules, and it is important to have both  crime victims and people like Rudy who have done time come to school and tell their stories.

As you know, the sum total of my Criminal Law experience is two classes in law school. But I wonder about your statement that "Criminal law in the end has to be about people, not rules."

I certainly agree that the legal system should observe the concept of mercy. And I also think a cookie cutter punishment/sentencing regime is a bad idea.

On the other hand, one of the important things that makes the Western Democratic Legal System superior to those of dictatorships and oligarchies is that we operate under a "rule of law, not the rule of men." (I'm misquoting someone most likely).

So yes, the sentencing standards for crack cocaine were ill conceived and draconian, as are many other mandatory minimums. And I do think we should allow Judges to actually "judge" and decide whether the punishment fits the crime. But how much "judgment" should we allow?

I suspect there's a semester's worth of discussion to be had here. but aren't clear black line rules important too.
What I meant was that the rules have to come from human experience-- that is, that they shaped to address human experience at the ground level, reflecting both public safety and human dignity. In other words, it is important to start with human experience and then develop rules, rather than start with a rule and apply it. That is what was lacking in drug sentencing: There was no systemic observation and study of what was going on before rules were imposed. The result was inhumane.

So far, it seems like a different route is being taken with opioids, and that is a good thing.
Oh, and this-- criminal law has way too much discretion built in to really be a "rule of law" in the sense that punishments are regular and predictable. It just isn't capable of doing that without restrictions on liberty we aren't willing to tolerate. The truth is that the system is built to let some people slide... and allows for considerations of humanity (or denial of it) throughout, at the discretion of flawed human actors. The "rule of law" as something that provides routine certainty is by its nature a myth in this realm. When we come close to that in any area (ie red-light cameras that catch every violator), people go berzerk.
That is AMAZING and must be incredibly gratifying!
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