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ANTISOCIAL MEDIA: Facebook apparently identifying posts with conservative content as spam.

More from Tyler O’Neil:

Ellis published an article in The Washington Examiner explaining why “Democrats are overreacting to the Michael Cohen guilty plea.” She argued that plea bargains are a legal fiction, are not confessions, and are not evidence of crimes or verdicts of guilt. Therefore, the Cohen plea did not implicate Trump in financial crimes.

Ellis shared the article on Facebook, and a friend took a picture of Facebook removing the post. Again came the same message: “We removed this post because it looks like spam and doesn’t follow our Community Standards.”

Clarice Feldman recommends not jumping to conclusions, writing to American Thinker, “I also have no idea what is going on – whether (a) it is deliberate on FB’s part, (b) a glitch, (c) a concerted attack by leftists reporting anything to the right as against community standards or spam.”

Maybe people wouldn’t jump to conclusions, if Facebook operated transparently and without so much apparent bias against one side.

JOHN GRISHAM: It Is Too Easy To Convict An Innocent Person.

The rate of wrongful convictions in the United States is estimated to be somewhere between 2% to 10%. That may sound low, but when applied to a prison population of 2.3 million, the numbers become staggering. Can there really be 46,000 to 230,000 innocent people locked away? Those of us who are involved in exoneration work firmly believe so.

Millions of defendants are processed through our courts each year. It’s nearly impossible to determine how many of them are actually innocent once they’ve been convicted. There are few resources for examining the cases and backgrounds of those claiming to be wrongfully convicted.

Once an innocent person is convicted, it is next to impossible to get them out of prison. Over the past 25 years, the Innocence Project, where I serve on the board of directors, has secured through DNA testing the release of 349 innocent men and women, 20 of whom had been sent to death row. All told, there have been more than 2,000 exonerations, including 200 from death row, in the U.S. during that same period. But we’ve only scratched the surface.

And death penalty defendants get much more elaborate protections than ordinary criminals, most of whom are hustled into plea bargains without any sort of trial.


Imagine being young, vulnerable, and facing criminal charges for a crime you didn’t commit. The justice system sees you as nothing more than a statistic. Your case is not worth their time and resources. The question of your innocence is actually of little interest to the DA’s office. You are just another file on top of an endless stack of others. Their only goal is to move your paperwork from their stack to someone else’s.

Before you are even given the chance to adequately defend yourself in court, you are given two options: continue to maintain your innocence and face the full consequences of the legal system or agree to a reduced sentence by accepting a plea deal and admitting guilt.

This was the choice given to sixteen-year-old Kalief Browder. But unlike so many others in the same position, he had the courage to say no to the plea deal. And so the system destroyed him.

I think I’d support a ban on plea bargains. I have some related thoughts in my Ham Sandwich Nation: Due Process When Everything Is A Crime.

CRIMINAL JUSTICE REFORM: Ignore The Prosecutor, Ignore The Problem.

Prison reformers are making a hash of things again. A measure designed to reduce the unfair use of mandatory minimums in Drug Laws may be ignoring, or possibly worsening, one of the biggest problems in the criminal justice system today—the coercion of plea bargains. . . .

Both the new proposed law and the one it replaces create a situation in which defendants are punished much more severely if they exercise their right to trial. They do so in part by leaving to prosecutors, not judges, discretion in when to pull the trigger on minimums. As Ginatta wrote, “Our research found that sentences for federal drug defendants who exercise their right to go to trial are three times as long as those who forgo that right.” This strikes us as contrary to the spirit of the Constitution, if not necessarily the case law on what it allows the government to do (we are not lawyers).

As we noted the other day, prosecutorial culture plays an enormous and under-appreciated role in the criminal justice and prison crises.

Happy to see this piece reference my Ham Sandwich Nation.

THE PRISON PROBLEM: A problem with prosecutors, or something else?

Pfaff’s theory is that it’s the prosecutors. District attorneys and their assistants have gotten a lot more aggressive in bringing felony charges. Twenty years ago they brought felony charges against about one in three arrestees. Now it’s something like two in three. That produces a lot more plea bargains and a lot more prison terms.

I asked Pfaff why prosecutors are more aggressive. He’s heard theories. Maybe they are more political and they want to show toughness to raise their profile to impress voters if they run for future office. Maybe the police are bringing stronger cases. Additionally, prosecutors are usually paid by the county but prisons by the state, so prosecutors tend not to have to worry about the financial costs of what they do.

Pfaff says there’s little evidence so far to prove any of these theories, since the prosecutorial world is largely a black box. He also points out that we have a radically decentralized array of prosecutors, with some elected and some appointed. Changing their behavior cannot be done with one quick fix.

Well, limits on overcharging and plea bargaining, and empowering juries, might help. I have some suggestions here.

Meanwhile, there’s another possible explanation:

In the 1970s, we let a lot of people out of mental institutions. Over the next decades we put a lot of people into prisons. But the share of people kept out of circulation has been strangely continuous. In the real world, crime, lack of education, mental health issues, family breakdown and economic hopelessness are all intertwined.

I wonder if Fox Butterfield has any thoughts on this?

CONRAD BLACK ON plea bargains and prosecutorial overreach.

I’ve said the same sorts of things myself, of course.

THE ECONOMIST: A plea for change: American prosecutors have too much power. Hand some of it to judges.

More than 95% of convictions in America are reached through plea bargains, in which the defendant agrees to plead guilty in return for leniency. Many convictions also depend on the testimony of a “co-operating witness”, who snitches for the same reason. Defenders of the system argue that it is efficient. By avoiding long, costly trials, America can lock up lots of villains. Without plea deals, the courts would be swamped.

I think that without plea deals, prosecutors would have to be much choosier about who they charged, which is not a bug, but a feature.

Related: Department of Injustice:

Every week there are new revelations of the decrepit and often barbarous state of the U.S. criminal-justice and prison systems. The most egregious aspects of its dysfunction are not the absurdly severe sentences and world-record incarceration levels, or the North Korean conviction rates, or the frequent murders of prisoners by correctional officers in some of the state prisons, but the politically motivated antics of the prosecutors. . . .

In the assault on Governor Scott Walker, Democratic district attorney John Chisholm’s long-running criminal investigation of the governor and his entourage ended in 2013, and has been followed by a criminal investigation into the most prominent individuals and organizations that support the governor, expressing concern about improper collusion in support of the governor’s political, if not statutory, offense, which was to curb rapacious and irresponsible public-sector unions. This is a John Doe investigation (so called because it is a blind search into whether a crime was committed at all, and if so by whom — a procedure certain to lead to abuse).

Nothing is said in public, except that evidence of the existence of the investigation is conveniently leaked, and the subjects cannot speak about it. Unfortunately for Chisholm, a longtime friend of his and his wife’s (she is a militant shop steward for the teachers’ union) brought forward extensive allegations of the political and spousally generated motives behind the investigations.

Prosecutors need more accountability.


As a public defender, I have often discussed the concerns raised in your article. I absolutely agree with one of your main contentions: “Yet, because of overcharging and plea bargains, the decision to prosecute is probably the single most important event in the chain of criminal procedure.”

The problem, as you mention, is that the prosecutors have no real skin in the game. Most care about their conviction record, but win or lose they are going home after the trial. Requiring the state to pay for a defense if they lost would definitely influence the charging decisions where I practice, but I don’t see that happening anytime soon. Even so, I am encouraged that your article is fostering such a debate.

Well, that’s why I wrote it.

UPDATE: Some thoughts and criticisms.

WALTER OLSON: Courts, FCPA, and Runaway Federal Prosecutors. “Efforts to reform the substance of FCPA are picking up steam in Congress, and that’s all to the good. But equally or more vital to the public liberty is countering the danger of out-of-control federal prosecution, which we’ve seen lately in fields ranging from environmental enforcement to dubious obstruction-of-justice charges. Isn’t it time for Congress to use its oversight powers more vigorously?” We need a private right of action against abusive prosecutors. And — to guard against abusive plea bargains — it should either be non-waivable, or exercisable by third parties. Problem solved!


It has been a tough 10 days for those who see current events through the prisms of Vietnam and Watergate. First, the Democrats failed to win a breakthrough victory in the California 50th District special election–a breakthrough that would have summoned up memories of Democrats winning Gerald Ford’s old congressional district in a special election in 1974. Instead the Democratic nominee got 45% of the vote, just 1% more than John Kerry did in the district in 2004.

Second, U.S. forces with a precision air strike killed Abu Musab al-Zarqawi, on the same day that Iraqis finished forming a government. Zarqawi will not be available to gloat over American setbacks or our allies’ defeat, as the leaders of the Viet Cong and North Vietnam did.

Third, special prosecutor Patrick Fitzgerald announced that he would not seek an indictment of Karl Rove. The leftward blogosphere had Mr. Rove pegged for the role of Bob Haldeman and John Ehrlichman. Theories were spun about plea bargains that would implicate Vice President Dick Cheney. Talk of impeachment was in the air. But it turns out that history doesn’t repeat itself. George W. Bush, whether you like it or not, is not a second Richard Nixon.

Nope. Read the whole thing.

JEFF JARVIS IS RUBBING IT IN where Mike Hawash is concerned, and links to a column in the Oregonian calling on Hawash’s supporters to admit that they were wrong.

Hawash has said that he was guilty, very explicitly:

“You and the others in the group were prepared to take up arms, and die as martyrs if necessary, to defend the Taliban. Is this true?” U.S. District Judge Robert E. Jones asked Hawash during the hearing.

“Yes, your honor,” Hawash replied.

Hawash has also agreed to provide testimony against accomplices. As someone who was skeptical of this case, I have to say that it looks as if they’ve got the goods on him. On the other hand, heavyhanded tactics in obtaining plea bargains in other cases do produce a bit of a shadow on other plea bargains, perhaps including this one.

UPDATE: Reader Richard Heddleson thinks I’m wrong:

To a devoted reader and fan, you are starting to sound a tad defensive:

“On the other hand, heavyhanded tactics in obtaining plea bargains in other cases do produce a bit of a shadow on other plea bargains, perhaps including this one. ”

In the Lackawana case, the Feds may have been a bit heavy handed but not wrong. In war, decisions on the bubble go against the guilty/stupid and the sooner everybody floating near that bubble figures that out the better. In peace, we can be a bit more charitable. I feel for these fellows and their families, but they should never have made the trip.

Unfortunately, getting over excited about these less than clear cut cases takes the winds out of one’s sails for when the really bad one goes down. Here I am referring to Padilla. I strongly suspect he is a bad man. He is an American citizen. If he is treated as a belligerent and denied habeus corpus (or has this already happened?), I believe we’ll have a real problem, especially as I expect this “state of war” to last for at least 10 and maybe 20 years. For the next two decades the President will be able to jail any American indefinitely and potentially secretly in Gitmo with no recourse? This is a problem.

Throwing the book too hard at people who broke the law and were stupid, and perhaps not in that order, is no where as big a problem. Consistent suspicion of wrongdoing/incompetence by DOJ produces a bit of a shadow on protests when true outrages do occur.

Well, I take the point, and I’ve tried not to cry wolf. But the Lackawanna defendants were threatened with detention without trial unless they pled guilty. Once you make that kind of a threat, it’s just no longer as easy to say “he pled guilty, so he must be guilty.”

I absolutely oppose holding any U.S. citizen without trial. If you can do that, you can — and, history suggests, will — abuse that power against political opponents. There is no sign that the Justice Department is doing that now. But I don’t want to see temptation placed in their path, because I don’t believe that they can be trusted to resist it.

ANOTHER UPDATE: Arthur Silber has more on the Padilla case.

TALKLEFT has picked up on the story that I linked below regarding a man sentenced to prison for linking to bomb-building information on his website. There’s this bit, which was also in the earlier story that I linked, but which I didn’t play up: “Austin said he took a plea bargain because he feared his case was eligible for a terrorism enhancement, which could have added 20 years to his sentence.”

The news stories don’t say, but I believe the statute in question is 18 U.S.C. sec. 842(p)(2), which provides (key bit in italics):

(2) Prohibition. –

It shall be unlawful for any person –


to teach or demonstrate the making or use of an explosive, a destructive device, or a weapon of mass destruction, or to distribute by any means information pertaining to, in whole or in part, the manufacture or use of an explosive, destructive device, or weapon of mass destruction, with the intent that the teaching, demonstration, or information be used for, or in furtherance of, an activity that constitutes a Federal crime of violence;

Hmm. The “intent” part doesn’t fit these stories, but who knows what evidence they have. Still, this seems quite dubious to me — in order to meet the Brandenburg test you would have to show both the intent that such criminal use would happen, and the likelihood that it would happen. And such criminal use would have to be “imminent.” (Yes, this is a rather simplistic analysis, but I think it’s correct in its essentials. I’d be interested in hearing what Eugene Volokh thinks.)

You also see in this case the way in which threats of “terrorism” are allowing prosecutors to extract plea bargains in dubious cases. One consequence is that when the Justice Department gets a plea bargain, you can’t automatically assume that it’s proof the underlying case was especially good, just that the accused was afraid to roll the dice.

Of course, this sort of thing applies in most other federal prosecutions, too, where the threat of drastic sentence enhancements produces plea bargains in quite flimsy cases at times.

UPDATE: Some of TalkLeft’s commenters link to what are supposed to be mirrors of the site. It’s pretty lame. Does it rise to the level of incitement? It’s possible that it does, because of the combination of the explosives content with the rhetoric about fighting police, etc. It looks rather puerile and harmless to me — unless you try to follow some of its bomb-making advice, which seems naive and unsound in places. This report suggests that the District Judge in the case took a rather active role:

But when Ron Kaye, Austin’s federal public defender, began making his appeal for the new plea agreement, Wilson’s stone-faced demeanor changed: He looked away or fiddled with his glasses whenever Kaye spoke. Before long, an agitated Wilson made it clear he thought even the latest arrangement was too lenient.

“I must tell you,” he interrupted Kaye,
“I see this case differently. I’m rather surprised the government hasn’t taken this case seriously.”

By “taking the case seriously,” Wilson said, he meant setting an example to deter other would-be revolutionaries. He hinted that he favored an 8-to-10-month sentencing range. “Maybe I’m just living in another world,” he said of the plea deal. “I just don’t understand it.”

Then Wilson turned to the federal assistant prosecutor, Rob Castro-Silva: “Has your recommendation been cleared with the Justice Department? I just find it shocking.”

“I don’t need their approval —” the prosecutor began.

“How old are you?” the judge suddenly inquired.

“Thirty-eight,” the surprised prosecutor replied.

“You look younger,” Wilson pronounced, before telling the court that Austin’s case “has national and international implications.”

Wilson then announced he was postponing sentencing until July 28 and ordered Castro-Silva to contact the Justice Department and FBI Director Robert S. Mueller for their views on the plea arrangement.

Filing out of the courtroom, Castro-Silva was heard to mutter, “Well, I have my marching orders.”

Interesting. There’s more background here.

THE JAMES UJAAMA PLEA BARGAIN looks like a big win for Ashcroft:

James Ujaama, 36, who was charged last August with attempting to set up a terrorist training camp in rural Oregon, said as part of a plea agreement that he sought to provide “jihad fighters, currency, computers, software, computer disks and other items” to the Taliban, the Afghan rulers who sheltered al Qaeda leader Osama bin Laden and were crushed by U.S. forces after the Sept. 11, 2001, attacks. . . .

One of Ujaama’s attorneys, Peter Offenbecher of Seattle, called the agreement “a favorable outcome for both the government and Mr. Ujaama.” In addition to a recommended two-year sentence, the deal will also rescind severe restrictions on Ujaama’s contact with the outside world.

“He’s acknowledged his personal responsibility for the facts that are stated in the plea agreement,” Offenbecher said. “He stepped up to the plate and said, ‘I did these things and I regret them.’ “

“I did these things, and I regret them.” But only a two-year sentence? Either (1) the case was weak; or (2) he’s really helped them a lot. The other possibility would be that the plea bargain was coerced, which is an issue for concern in the Lackawanna cases, but — judging by the very light sentence — not one here. But, you know, the Lackawanna stories have made me a bit more skeptical of plea bargains in terrorism cases in general.

UPDATE: Judging from this story, it looks like the answer is (2).