A strange brew is this, and not all of it is pretty. Partially a record of a crackup and partially a tale of rising from that crackup back into a useful life; and part of that is how I decided writing was necessary to my life and recovery; and another part is just keeping a record of where I have been and what I have learned. You can see the topics I cover the sidebar. The hope is to help others; the purpose is figuring out where I am going. Thank you for dropping by. Feel free to comment.
For decades, the court operated under a healthy, if unspoken, anxiety: the fear of reversal. This fear once acted as a structural brake, reminding the justices that if they strayed too far from the constitutional mainstream, the system would push back.
For instance, the 11th, 13th, 14th, 16th and 26th Amendments to the Constitution were passed to overturn Supreme Court decisions. Congress has reversed several decisions by passing statutes as well, as exemplified in the passage of the Lilly Ledbetter Fair Pay Act in 2009. And the Supreme Court occasionally overrules itself, including overturning Bowers v. Hardwick, which allowed states to criminalize same-sex sexual relations, in 2003.
But the constitutional changes came at a time of crisis; the 13th and 14th came after the Civil War (and with the Union controlling enough states to pass them). The others were tune-ups to the constitution, mechanical upgrades to keep the government functioning.
What has become our de facto method of amending the Constitution is Supreme Court decisions.
The statutory revision process - Court striking down then Congress reworking - is the reason FDR floated a plan to pack the court.
That same process has a flip-side: Congress passing to the Court the job of completing legislation. I first noticed this in the snail darter case.
We have a dysfunctional Congress, so his solution feels impractical:
The most effective way to achieve this is a two-pronged structural reset. First, Congress should exercise its clear constitutional authority to
expand the size of the court. Second, and more crucially, the justices
should no longer sit as a permanent, monolithic body of nine. Instead,
they should be required to hear cases in randomly assigned three-judge
panels with final decision-making authority.
Okay, I agree with expanding the Court. There are nine Justices and around 13 federal circuits, so on a workload rationale there is a need for an expansion.
Not that expansion by itself is enough to curb the Court from becoming a branch as a partisan extension of the elected branches. It only ups the partisanship to four more nominees.
What Mr. Collins has done is apply the operations of the federal Circuit Courts of Appeal to the Supreme Court. It is clever, it may even improve its operation. I suppose there might be the right to an en banc hearing. It may be the only way to keep a 13 member court from becoming unweidly. What it does not do is prevent ideologues intent on forcing their ideology on all of America. It does not look upon the Senate milking partisan issues for their campaign funds as an issue underlying a court intent of ideologues. Not even his staggered appointments seem fitted to this problem.
Coupled with a larger pool of justices appointed across multiple
presidential administrations, this system would dilute the
winner-take-all stakes of judicial appointments. It transforms the court
from a partisan prize into a functional institution where the law is
shaped by a diversity of perspectives, rather than the iron grip of a
permanent majority.
There is another power Congress has over the Supreme Court and that is impeachment. It seems Justices Thomas and Alito have given Congress non-partisan grounds for their ethics. Others may have provided other grounds. That might give the court an incentive to impose on itself truly effective ethical rules.
Expansion, term limits, impeachments, and staggered terms are all good ideas and are necessary. However, there is one greater remedy: reinstating the amendment process, perhaps even making it easier. Until the federal government understands it does not run in a closed loop, there will always be a risk of ideologues intent on working their will on the people.
Reading Petrarch on Cities, Time, and Heraclitus by Iván Parga Ornelas Antigone made me think of Thoreau. There is a difference between being alone and solitude. The former can be imposed and resented; the other is a peace and a joy.
The idea of a solitary life in some field or forest has probably appealed to many of us. But Petrarch’s solitudo is demanding. One must not only abandon the city, but everything it represents: ambitions, desires and appetites, and the wish for recognition and personal gain through others. Petrarch, in other words, would not approve of the digital nomad, nor of your plan to retire into a cabin in the woods and spend the day reading and writing for Antigone, if your motivation was to gain recognition and applause.
I got the idea this morning to make a list of what I have been reading since I started on my latest research project. The hope is that it will give me time to get my eyes to focus.
Today's big post was inspired by Do Liberals Want a Beautiful World? from The Point Magazine. It impinges on many ideas I have had about my writing, about constitutional law, and politics. A grab bag, I know.
I generally dislike writing inspired by interviews, and this piece was like an interview, being a symposium. I have quoted what caught my attention, what made me think, and what showed me something I did not know. Please bear with these selections and read the original in full.
The topic is defined, always a good place to start.
I’m going to begin by summarizing the arguments of the piece, and I’m going to conclude by raising a few questions that I’ve been brooding over since it came out, and there will be another Trilling quote. But before I get into the weeds, it’s important to begin with a terminological note. What we on this panel mean by “liberalism” is not what is meant by, say, political commentators in the Opinion section of the New York Times. We do not mean the Democrats. We are referring to a political philosophy that arose in the seventeenth century as an outgrowth of Enlightenment moral philosophy and various Enlightenment-era conceptions of the nature of the self. Its hallmarks are an enthusiasm for autonomy, a propensity for diversity and a commitment to egalitarianism. I’ve offered a vague characterization of liberalism rather than a more concrete definition because the specifics are very much up for debate, and there are as many accounts of liberalism as there are liberal theorists. What matters for our purposes is that what we are talking about here is very much not the historically particular political orientation of the Democratic Party, much less in 2026 when it is peak listless; rather, a much broader political philosophy that has developed over the course of at least two centuries.
When the Republicans railed against liberals, they omitted that in the fuller world of political sides, they were also liberals. Now, it seems that with Trump, they have decided they oppose the ideas of equality of all persons and their inalienable rights.
I never knew of the distinction between perfectionist and non-perfectionist thinkers.
An important divide among liberal thinkers is this: Some of them are perfectionist—that is to say, they think there is a substantive liberal conception of the good life, of the way that we ought to live. Their aim is to construct a political formation that reflects, protects and gives rise to this privileged form of life. Some liberal thinkers, however, are non-perfectionist. That is to say, in their view, it is the job of a liberal state to enable citizens to devise and realize their own conceptions of the good life. This doctrine, according to which the liberal state should not favor or disfavor a particular conception of the good is called the “doctrine of neutrality.” Here is an example of what I mean. Christianity takes a controversial and substantive stance about the nature of the good life. Christianity asks its adherents to believe certain contentious things about the world, for instance, that Jesus is the son of God, and thus asks his adherents to believe certain controversial things about how humans ought to live. For instance, that we ought to worship Jesus or emulate him. A non-perfectionist liberalism permits its citizenry to be Christian, but it remains neutral only insofar as it does not compel them to be Christian. The most prominent liberal thinker of the past century is my other patron saint, John Rawls, who embraced a non-perfectionist liberalism, as do I.
I side with the non-perfectionist. Work and life left Rawls mostly undread by me. Where I got the most food for thought that made me anon-perfectionist liberal came from studying Article I, Section One of the Indiana Bill of Rights:
WE DECLARE, That all men are created equal; that they are endowed by their CREATOR with certain unalienable rights; that among these are life, liberty and the pursuit of happiness; that all power is inherent in the PEOPLE; and that all free governments are, and of right ought to be, founded on their authority, and instituted for their peace, safety, and well being. For the advancement of these ends, the PEOPLE have, at all times, an indefeasible right to alter and reform their government
What I saw was a space for people to operate as they wanted to fulfill themselves without government interference, so long as their fulfillment did not injure other people.
Which I think applies to aesthetics. The symposium worried that fascism expresses politics through aesthetics, and with liberalism's laissez-faire attitude toward what people do with their freedom, it was losing to fascism.
To come back to the question of what the good life has to do with aesthetics, one of the things I’ve been asking myself is: What creates a powerful aesthetic? It comes from a very convincing way of seeing the world, a very convicted way of seeing the world. I don’t think it necessarily needs to come from a vision of the good life. It could come out of a vision of how bad life is. We certainly know artists that have had aesthetics that arose from either side. But I think there is a question whether liberalism can provide something like this at all. Even in some of the higher points of what I might call “liberal art,” what you tend to find is a portrayal of society as good enough—not exactly beautiful or deeply meaningful in the sense that we often think of when we think of a strong aesthetic. And this problem is particularly acute at a time when liberalism is challenged by actually possible alternatives. So I think one of the things to discuss is whether we might need to reconnect with the imagination, even if it makes us uncomfortable, at a moment when liberals are being challenged politically.
***
This goes to what Becca just discussed, with regard to the Sontag and Trilling quotes about the great works of liberal society often being illiberal. This was one of the lessons of the 2010s, when progressivism did try to extend into the culture and make liberal art, in a sense: I don’t think the results were impressive. And so I don’t think the answer can be that liberals need to politicize art, but rather to make sure that we provide institutional structures and social arrangements that allow for the free development of art and ideas as much as possible. Another way of putting it would be to say that it is especially important for a society that does not offer a fully substantive vision of the good life politically, to create a public culture where we can work out our ideals and values for ourselves, including through art.
***
There’s one answer, let’s call it the “head’s answer” to Becca’s challenge, which is that liberalism allows for and realizes the aesthetics of freedom, pluralism, separation of powers, democracy and the rule of law. But in the end, the liberal commitments aren’t aesthetic commitments. They say, Everyone in this room, go for it. Whatever your conception of the aesthetic is, liberalism says, that’s yours. Make it yours. Exercise your agency. That’s the head’s answer.
The heart’s answer is that liberalism’s peak aesthetic is when Bob Dylan went electric—do you know this reference, even? This was like the most important moment ever, in the world. He played “Maggie’s Farm”: “I ain’t gonna work on Maggie’s Farm no more”—a song of liberty and pluralism. And he also sang “Like a Rolling Stone,” converting the state of rootlessness and of separation and exclusion into a song of freedom, a new national anthem. “How does it feel to be on your own / With no direction home, like a complete unknown? / Like a rolling stone”—sung with joy and celebration. When he was booed in England for not doing folk music, he said to his band, and it’s recorded on tape, “Play It Fucking Loud.” That’s a liberal aesthetic. That’s liberalism’s Riefenstahl.
I can go along with those ideas. I would add The Clash's Complete Control. But what of the effects of capitalism in centralizing the arts? Maggie's Farm may have had that in mind, too. We have more people creating, more things being written than ever before, but they are all subjected to the rule of the algorithm.
But the essential idea feels too right. Pluralism need not mean tribalism. In The Rebel, Albert Camus distinguished between unity (good) and totality (bad). Tribalism that communicates between tribes creates a pluralism; tribes that do not communicate lead to a social/political Manicheanism. The former promotes growth, the other dies shivering in a dark bunker.
I disagree with mandating beauty. Where I prefer Shakespeare, someone else might prefer Edward Albee. If I mandate Shakespeare, have I not imposed upon the Albee fans? Or vice versa.
But mandating beauty seems too much like mandating religion. Nothing has crippled religion more than mandating a state faith. A legal standard of beauty would be stultifying; I can imagine it dulling any sense of beauty in people.
Becca Rothfeld: I guess the original way you were posing the question made me think that it’s about the relationship between the content of policy and the aesthetic results of policy. And I think that the right-wing has no problem answering, Yeah, we should mandate beauty. We should mandate, like, neocolonial architecture and bad lip filler or whatever. I have strong disagreements with them about what they think is beautiful, but they don’t have a problem with that. A liberal obviously would have a problem with that. You can’t mandate beauty for various reasons, even if justice permitted it, it doesn’t seem like it would be effective. But what I think you can do is have policies that at least permit the pursuit of beauty. Another thing that you can do that Trilling gestures at in various ways, is have policies that are founded on an anthropology that, in turn, is the basis of good art production. What I mean by this is that one of Trilling’s criticisms of what he calls bureaucratic liberalism—what we would call technocratic liberalism—is that it has a really impoverished account of what people are like. He really likes Freud, not necessarily because he thinks that Freud is even correct, but because he thinks that Freud provides us with the resources to create better novels and such. And so I think that you could at least be careful to sort of write policy in a way that doesn’t assume an impoverished anthropology.
I find the thousand-flowers-bloom metaphor congruent with my ideas. It fits within my ideas of pluralism.
So what can be done? One Battle After Another is a liberal cri de coeur. It wasn’t produced by politicians. If politicians tried to produce a movie like that, it would be didactic and wouldn’t be very human. If you look at texts, either literary texts or not, that are part of our culture, they’re frequently liberal in character, and they gave rise to, you know, the civil rights movement, the movement for same sex marriage—a thousand things like that. What I’m saying now has a thousand-flowers-bloom quality, but we find that not exciting only because we’ve heard it so many times. And the challenge, I think, for this generation, is to find a conception of liberalism that celebrates and doesn’t nod bored at the relevant commitments and makes them new and real. Making something new and real is going to make them different.
There is much I found needing unpacked and considered in this paragraph:
To attribute social terribleness to liberalism is reckless. Liberalism isn’t a force in history. It’s not Voldemort. It’s not whispering behind married couples saying, sleep with your neighbor. It’s not telling fathers don’t pay attention to your kids. It’s not saying to people of faith, you should stop believing in God. This is recklessness. And I’d say exactly the same thing, if I may, about capitalism. Capitalism means people get to own things. So you get to own that green shirt and those blue jeans. Some of you probably own laptops; they can’t be taken from you because there’s private property. To believe in capitalism is to believe in something which is an engine of freedom from fear, which is a defining liberal ideal. The idea of post-liberalism, at least in some forms, is a recipe for subjection to fear, because freedom of speech starts to get smaller, and freedom of religion might get smaller too.
Unlike Marxism, liberalism does not think it is ordained by history. It turned out that Marxism was not, either. I consider liberalism to be an environment within which we get to figure out our purposes in this life.
Inducing fear and hate has been the mark of Trumpism. I have a sister who fears the coming of Sharia law. She has not explained to me how this is to occur in a country where Muslims are a distinct minority. The tech bros also seem ready to propagate fear. Musk, with his pro-white supremacy talk, comes to mind here.
Ignorance breeds fear. I did not see anywhere in this article any mention of education. Political education seems to me the balance to ill-liberal thinking. If we are looking for a liberal aesthetic, then education is the tool for its advancement.
The closest approach I found to education was in this paragaraph:
Becca Rothfeld: Can I answer more tyrannically? So I was just thinking like when Jon was talking about how liberalism and criticism have some natural affinity. Actually, I could not disagree more. The greatest tension in my life is that, as a critic, I am constantly making judgments of taste, and it’s a presumption of my vocation that other people should agree with me; I’m inegalitarian. I think that there’s a hierarchy of taste, and I presume to have a kind of authoritarian status when I’m writing a book review. I’m trying to persuade you; I’m trying to get you to agree with me. But I also think that you should think what I think. So, this is only a limited answer about what the good life looks like—I’m not taking a stance about what you should eat or whether you should stay married. (I don’t think you should stay married if your marriage is unhappy.) But my positive view is: beauty is good. The pursuit of beauty is something that you should spend your life doing. You should devote at least some part of your life to the consumption of difficult and important works of art. That’s a substantive commitment about the good life that I have and that I am willing to express.
Finally, it is up to us to fight for our freedom. Here is one way to fight: create art that springs not from political mandate but from the anarchy of real life.
With the law, I have no use for originalism. Not in law school and certainly not now has it made sense: the past informs, it is not a prison.
Considering the rampant ignorance of historical knowledge in Americans, it is dangerous. I have a sister who believes this country was set up as a Christian nation. She sent me this link: https://www.facebook.com/share/16XTpKuTji/. I sent her this response:
I sent you the piece about the applicability of Sahria law - this is some BS dreamt up to scare people. But what most people don't understand is that if you weren't from England proper you came here under a different law. Scotland, Germany, France, Switzerland all had a different system of law. The Irish had the Brehon law but I think the English took that from them. Louisiana operates under a different legal system than Indiana. Are we to get to get rid of that state?
People who come here are not slaves anymore. Slaves have to accept what their masters tell them. Free people can say whatever they like. The real question is if their complaints are justified or not? We are not getting Danes and their like here because we do not have a real national health care system. I suppose this fellow would tell anyone complaining about no national health care should be sent back to Denmark.
He repeats that nonsense about this being a Christian country. It was not. We were set up as a country without a national church. Our ancestors knew how vile that institution could be. Especially the Scots who weave in and out of the Continental Congress and the Constitutional Convention.I was going to suggest googling conventeer but just go here: https://scotland-history.com/the-rise-of-the-covenanters-and-religious-conflict/. I suspect the Livingstons came over here to get away from that. But you can google Thirty Years War.
How does one baptize a nation? Without baptism, there is no remission of sins. What soul does a nation have? A nation has no more soul than a rock. We are a nation of Christians - and Jews, Hindus, Buddhists, and Muslims. We always have been.
But then the question comes down to what kind of Christian. If only Protestants, then kiss colonial Maryland away. And if you will allow Roman Catholics, why are you a Protestant? Better check out the Northern Ireland Troubles if you want to see what "Christians" can do - in our own time.
Tell this fellow to read Jefferson's letter to the Danbury Baptists. He should also read the First Amendment to the United States Constitution, and his state's Bill of Rights.
But, assuming this was a Christian country, it is not now. Christians do not turn away the stranger; Christians do not applaud torture and governmental murder; Christians favor feeding the poor. This was the Gospel reading for today:
MATTHEW 25:31-46
The Lord said, “When the Son of man comes in his glory and all the holy angels with him, then he will sit on his glorious throne. Before him will be gathered all the nations, and he will separate them one from another as a shepherd separates the sheep from the goats, and he will place the sheep at his right hand, but the goats at the left. Then the king will say to those at his right hand, ‘Come, O blessed of my Father, inherit the kingdom prepared for you from the foundation of the world; for I was hungry and you gave me food, I was thirsty and you gave me drink, I was a stranger and you welcomed me, I was naked and you clothed me, I was sick and you visited me, I was in prison and you came to me.’ Then the righteous will answer him, ‘Lord, when did we see you hungry and feed you, or thirsty and give you drink? And when did we see you a stranger and welcome you, or naked and clothe you? And when did we see you sick or in prison and visit you?’ And the King will answer them, ‘Truly, I say to you, as you did it to one of the least of these my brethren, you did it to me.’ Then he will say to those at his left hand, ‘Depart from me, you cursed, into the eternal fire prepared for the devil and his angels; for I was hungry and you gave me no food, I was thirsty and you gave me no drink, I was a stranger and you did not welcome me, naked and you did not clothe me, sick and in prison and you did not visit me.’ Then they also will answer, ‘Lord, when did we see you hungry or thirsty or a stranger or naked or sick or in prison, and did not minister to you?’ Then he will answer them, ‘Truly, I say to you, as you did it not to one of the least of these, you did it not to me.’ And they will go away into eternal punishment, but the righteous into eternal life.”
I do not know why people keep repeating this nonsense. I suppose it's not having stayed awake in their history classes. Or they are too weak-minded to double check what they are being told. I notice he gives nothing to support his blather. That should have told you something right there.
She has not responded.
I want to add Joseph Ellis's Leadership of the Founder from American Heritage. Ellis is not some wild-eyed fanatic, nor is American Heritage a publisher of flaky ideas.
Second, they created the first wholly secular state. Before the American
founding, it was assumed that state support for an established religion
was a mandatory feature of all viable governments, because it enforced a
consensus on the common values that made a collective sense of purpose
possible. While many of the states retained various Protestant
establishments well into the nineteenth century, the founders insisted
on a complete separation of church and state at the national level,
thereby overturning the long-standing presumption that only shared
religious convictions could hold a nation together.
Third, they rejected the conventional wisdom, agreed upon since
Aristotle, that political sovereignty was by definition singular and
indivisible and must reside in one agreed-upon location. The
Constitution defied this assumption by creating multiple and overlapping
sources of authority in which the blurring of jurisdiction between
federal and state levels, as well as between and among branches of
government, became an asset rather than a liability. The very idea of
sovereignty became problematic, and its rhetorical depository, “the
people,” an inherently elusive location.
Ellis points out the Founders failures and their particular successes—they were human beings who met their moment in history as best they could. It was a white country; their imaginations and nerves failed them to abolish slavery and integrate the former slaves into the citizenry. But they knew their hypocrisy on this point; they knew what they created was not limited to whites.
Peter Cozzens's book review, Being Thomas Jefferson (American Heritage) makes a relevant point:
Any discussion of Jefferson and slavery must consider his
relationship with his teenaged slave Sally Hemings, his late wife’s
half-sister. Because Jefferson never wrote of her, Burstein is unable to
provide any significant insights into what attracted Jefferson to the
girl. But he was an ardent pursuer of beauty, so Burstein suggests she
was beautiful. He assumes Jefferson felt tenderness toward Hemings but
no inclination to elevate her from her subordinate position in the
Monticello orbit. Burstein posits that the loss of his wife so
devastated Jefferson that he was unwilling to expose himself again to
such pain. Rather than remarry, as was customary in Southern society, he
took a concubine with whom he could maintain a sexually active life
without deep emotional involvement. Burstein summarizes the relationship
in the context of Jefferson’s nature thusly:
“I am suggesting that we should reckon with
the ‘Saly Hemings story’ as we do with evidence of Jefferson’s personal
anxieties as these emerge in all he wrote over the years. He
rationalized almost effortlessly. On the basis of his extensive reading
and thinking, he was convinced that he knew what was best. He felt
morally secure. He doled out advice. He willfully shaped his legacy (or
at least tried to), and he managed his little mountain [Monticello] as
he saw fit.”
In Jefferson’s feud with Alexander Hamilton over the future of the
federal government, which Burstein explores in depth, he delves into the
darker side of Jefferson’s psyche. Toward this political rival who
orchestrated his removal from the Washington administration, Jefferson
felt the deepest “contempt and disgust.” He was unable to recognize any
good in an enemy, whom he could only traduce, and against whom he
maintained smoldering revulsion. In the political arena, Hamilton
“didn’t just frustrate Jefferson. He was the better Machiavellian.”
If you want originalism, then you need to acknowledge what the Founders knew where they were acting wrongfully.
By stoppering up American life and thought into a sterile past, we ignore how we have risen above our limitations. Therein is the true greatness of America,
Good thing that Indiana's Constitution protects the right to a jury trial, particularly since the United States Supreme Court seems to be giving up on the Constitution and the law.
Section 13. (a) In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury, in the county in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor.
(b) Victims of crime, as defined by law, shall have the right to be treated with fairness, dignity, and respect throughout the criminal justice process; and, as defined by law, to be informed of and present during public hearings and to confer with the prosecution, to the extent that exercising these rights does not infringe upon the constitutional rights of the accused.
In all criminal cases whatever, the jury shall have the right to determine the law and the facts.
§ 19 has confused judges, lawyers, and legal writers for over a century, if not longer. Some things I have read in the distant past seemed to indicate the writer taking offense that mere citizens have such power.
Despite existence of a provision
which constitutionally mandates jury determination of the law as well as
the facts since 1851, no definitive explanation exists of what a jury
should do when it 'determines law.' Further, only minimal attention has
been directed toward the role counsel can play in the constitutional
scheme. Avoidance of these issues by the appellate courts of Indiana
only detracts from the effectiveness of trial judges, juries, and
counsel. To incorporate the positive implementation it has effected and
to reconcile or eliminate the contradictions and inconsistencies which
have appeared in the case law, the State supreme court should develop an
operation model on the basis of theoretical placement of the jury in
the judge's role, with modifications to accommodate the jury's collegial
nature. The jury's attention could routinely be directed to legislative
intent and be instructed to apply canons of construction. Such
commonsense rules of interpretation would provide useful guidelines to
the jury which until now has been forced to operate in a vacuum. In
addition, the suggested model would provide a useful analogy in
impressing jurors with the seriousness of their responsibility. However,
some findings of law or fact, are not delegated to the jury under the
model. Footnotes are included.
This has been coming for some time. In July, the government commissioned an Independent Review of the Criminal Courts. The review, chaired by Brian Leveson, made some recommendations as to how to deal with the ever-growing backlog of cases in the Crown Court. These proposals include reclassifying some “either way” offences as “summary only” offences, meaning they will be heard in a magistrates’ court with no jury present. For other either way offences, where defendants previously had the option of choosing trial by jury, all juries will be replaced by a judge and two magistrates. Serious and complex fraud cases will also be assigned to judges only.
There is a contradiction at the heart of the revised justice system that is about to come into being. If trial by jury remains our method of trying the most serious crimes, this implies that it is the best way of litigating criminal cases. If so, then we are accepting that “non-serious” cases are going to be tried using an inferior form of litigation. That will create a two-tier legal system.
The irony is that, over the past year, public discourse has been obsessed with what some are calling a crisis of national identity. Does “Englishness” exist? If so, is it good? What are its ethnic boundaries?. Yet, jury trial, something that is very important to English history, identity, and our understanding of ourselves—something that has been an ancient, even ancestral, English right, is facing a wrecking ball. People outside the Anglosphere may not understand why this is such a big deal. But you cannot understand the English psyche without understanding the symbolic value of this practice, which has deep roots in English history.
We should expect the same wreckage here, if anyone were foolish enough to make such a proposal.
As the American conservative thinker Russell Kirk observed when examining the “British roots” of American order: “The English people looked upon common law as their law, the product of their historical experience; it was not something imposed upon them from above.” He further speculated that “representative government” arose in England first because juries taught “free men to assert a share in public concerns.”
The English Marxist E.P Thompson put it differently. Trial by jury, he explained, “rests upon a total view of the relation between the legislature, judiciary and the people; upon a notion of justice in which the law must be made to seem rational and even humane to lay jurors... and upon a particular national history of contests between ‘the people’ and the Crown or state.”
Whether you accept Kirk’s Burkean organicism or Thompson’s Muggletonian Marxism, both were right to stress that civil liberty depends on involving the people in the judicial process. Juries are a popular restraint on arbitrary power. The legitimacy of the law comes from its embeddedness in our social relations, and the rule of law is the institutionalisation of the general will of civil society.
And so in 1851, the Indiana Constitutional Convention made jurors judges of law and fact to keep the government honest.
“I met with a man who’s a very rational person,” Trump told reporters in the Oval Office following the private Friday afternoon meeting. “I met with a man who ... really wants to see New York be great again.”
“I’ll really be cheering for him,” Trump added.
Standing alongside the president, Mamdani described the meeting as “productive” and “focused on a place of shared admiration and love, which is New York City and the need to deliver affordability to New Yorkers.”
When asked by a reporter, Trump even said he would be comfortable living in New York City with Mamdani as mayor, saying they had more in common than he had expected.
In Indiana, the lack of Republican support for a redistricting effort there has led to Trump issuing broadsides at GOP leaders in the state, accusing them of “depriving Republicans of a Majority in the House, A VERY BIG DEAL,” and saying he’d support primary challenges against them. One Republican legislative leader was the victim of a swatting incident at his home hours later.
Bill Maher being cranky about woke, but under it all there is a ray of good sense; we get nothing by being sanctimonious prigs:
The unaccountable barons of Silicon Valley, the main hub of AI, are, along with Trump, the main protagonists in the compelling story of democracies entering a new epoch. How the political and the socio-economic are put together, combining to create a new political economy, is the $64 trillion question. The Greek economist and former politician Yanis Yaroufaxis in Technofeudalism: What Killed Capitalism (Penguin 2024), takes an entertaining crack at explaining how the tech giants make a fortune out of our addiction to small bright screens with their pictures and information, hoovering up masses of data in order to influence our behaviour. It is a prodigious and worrying development.
Hybrid cars run on petrol and electricity. In the US, political life runs on money and social media. The tech oligarchy offers both of them in exchange for proximity to and influence over government. This relationship is analysed in BBC 1’s November 3rd Panorama programme, “Trump & The Tech Titans”, revealing the malign consequences of the US Supreme Court’s 5/4 ruling in the crucial 2014 case, McCutcheon v Federal Election Commission. The five Supreme Court judges declared unconstitutional 1971 legislation which had capped over two years political donations towards federal electoral campaigning, “the aggregate contribution limits”. The issue was deemed to be one of freedom of speech, bearing no negative impacts on government and offering no opening for corruption. The case cleared the way for floods of corporate and private money to enter and shape American politics.
BBC Panorama documented how the extraordinary wealth of the tech titans had been the lubricant for their entering the circles of power. Their wealth is unprecedented: Elon Musk is worth $497 billion; Larry Ellison, who owns Tik Tok, CBS and CNN, $320 billion; and Peter Thiel, around 100th in the global wealth table at $23 billion, is a founder of Paypal and Palantir. All are donors to the Republican party and are close to the Trump administration.
***
What the Panorama programme intimated, though never came right out and said, is that we should be worrying more about Vance than about Trump. The tech barons – and the Republican Party — may well feel their money, influence and future are better invested in Vance than in an aging Trump. For Trump to run in 2028, he would need to tear up the clear constitutional doctrine, enshrined in the 22nd Amendment, that no President can serve more than two terms.
Since before 2016 when he was denigrating Trump, Vance has made a 180 degree turn, and now holds to the whole of Trump’s extreme right-wing agenda. He could even do another 180 degree turn. Vance and the power of his backers — yes, power not “agency” — would mean relatively uncontrolled development of AI. He could also normalise fascist-leaning populism as the MAGA masses tire of Trump. JD Vance is a clear and future danger to democracy.
The problem isn’t that industrial policy has been done badly. It’s just bad economics.
Dreams of reviving manufacturing jobs face the reality that modern manufacturing is capital-intensive and largely automated. Even if subsidies or government loan guarantees spur a factory boom — and history suggests otherwise — it won’t bring back 1950s-style armies of industrial workers unless we somehow outlaw productivity. Today’s factories run on robots and engineers.
Nor will tariffs bring a manufacturing revival. Taxing inputs and components only raises costs, weakens U.S. competitiveness and ultimately punishes the firms protectionists claim to support. True American industrial strength rests on productivity, innovation, competition and access to global supply chains, not on coddling producers behind walls of higher prices.
Mazzucato and her ideological opposites commit the same error. They imagine a politics-free technocracy that can “direct” the economy. In the real world, politics always dominate economics. Subsidies and tariffs are never tools of neutral expertise; they are invitations to lobby. Every “strategic investment” quickly becomes a political IOU.
Biden’s programs came loaded with child-care mandates, union preferences and “Buy American” rules. Trump’s industrial interventions are indeed erratic, but the notion that his protectionism would work if wrapped in a more “mission-oriented” narrative is even sillier. Industrial policy doesn’t fail because it’s chaotic, it fails because it’s political, and human politicians are incapable of the precision markets achieve every day.
After conducting a sweeping review of five decades of U.S. industrial policy, Economists Gary Clyde Hufbauer and Euijin Jung’s conclusion was unambiguous: Subsidies and trade protections for individual firms have been politically irresistible but economically ruinous. Government protection delays economic adjustments; innovation succeeds. In the rare cases when industrial policy showed positive results, the government limited itself to supporting open, competitive research and innovation — programs like DARPA or Operation Warp Speed — rather than shielding firms from competition or subsidizing failing industries.
Talking Points Memo just celebrated 25 years of online political reporting. It’s a “go-to” source for many, if not most, political observers. Heather Cox Richardson, among others, frequently cites publisher Josh Marshall, and TPM is one of my trusted sources for insightful political analysis.
In a recent column, Marshall proposed a basis for evaluating Senators, and I strongly agreed with his criteria for “purging” those who don’t pass his tests. He identifies a series of issues that he says can give voters “a clear indication of whether they are serious about confronting the challenge of the moment or battling back from Trumpism.” He analogizes the process to a status interview you might hold if you were a new manager hired to turn around a failing company–a “sit down” with every employee to determine whether they’re part of the solution or part of the problem.
***
Marshall identifies five issues. The first is the filibuster. He writes that lawmakers who support keeping the filibuster “are not serious about moving the country forward in any positive direction.”....
The second identified issue is Supreme Court reform....
Number three is (finally!) making DC and Puerto Rico into states. He acknowledges that this isn’t as essential as the first two, but it’s very important, and it’s the right thing to do. DC and Puerto Rico should in fact be states....
We now know that Marshall’s number four is especially important. He calls it “clearing the law books.”....
And number five? Here, Marshall proposes something near and dear to my heart: outlawing gerrymandering with a federal legal framework governing how maps can be legitimately drawn....
I think the fellow is right. We need to get over the excuse of how hard it is to amend the Constitution. Terms limits for the Supreme Court and Congress, must be added to the Constitution - among a few other changes.
Overtime with Bill Maher: Killer Mike, Donna Brazile (HBO) has me wondering if Maher understands the military has never had to disobey unlawful orders.
I have spent most of the past hour on this post. That is after telling myself I must stop letting my temper flare over politics.
However, I can no longer keep my mouth shut about what I see as wrongs in the hope that others see the same wrong. Keeping silent is its immorality; it is a cowardice I need to refuse.
In the ten-plus months of this horrific excuse for a federal administration, the racism that powers the MAGA movement has become impossible to ignore or minimize. Trump and his sycophants aren’t even trying to mask their hatreds–they have withdrawn funding from universities and other organizations that engage in even the most modest efforts to level the playing field for minorities; waged war against (their version of) DEI; fired competent Black officials and replaced them with manifestly unqualified White ones; sent masked goons into Blue cities to kidnap Brown people…the list goes on.
Now, several media outlets report that the FBI has officially abandoned what has for years been its top domestic terrorism concern: White nationalism. The agency has cut its ties with two major civil rights watchdogs, yielding to pressure from MAGA influencers and Donald Trump’s FBI Director Kash Patel.
***
What is so depressing is the “in your face” evidence that Americans haven’t come very far since the Civil War, that a significant percentage of White Americans continue to hate and fear people who are different. White Christian Nationalism is, in a number of ways, a continuation of the worst of the Confederacy, and it is still as fundamentally unAmerican as it was then.
Trump and MAGA are tearing down more than the East Wing of the White House. That destruction is symbolic of the arrogance with which they are trying to destroy the very fabric of a nation trying to live up to the principle that all people are created equal.
I think there is a connection between education and the health of our democracy. Without education, we get tricked about our history; we get fooled about why there is no economic progress. So, who benefits from keeping we the people ignorant. And teaching ignorance is what I saw when reading Our New Diploma Problems by Michael J. Hicks.
Indiana’s largest, and growing, problem is that we send too few young
Hoosiers to college. The decade-long decline has been so bad, and so
sustained, that we are now graduating and keeping young people beneath
the replacement rate of our already dismal educational attainment.
This
ensures we will slide toward the bottom of the nation in our share of
college graduates by mid-century. That matters for our economy because
over the past half-century more than 100% of economic growth accrued to
places in the top half of educational attainment. So, if you wish to
grow the place where you live — whether it’s a county, city or state —
it needs to have better than average educational attainment.
The
second problem is that too many young Hoosiers who don’t head to college
lack the job skills to obtain meaningful employment that will lift them
out of poverty. And, just to be clear, we have an excess supply of
young Hoosiers who haven’t been to college.
I’m aware that large
employers complain to economic developers and legislators that they
struggle to find qualified workers for entry-level jobs. However, taking
these complaints seriously is one of the worse examples of selection
bias available today.
Employers that need college graduates or
applicants with advanced degrees don’t typically complain to
legislators. They recruit elsewhere.
That doesn’t mean the new
diploma changes are without benefits. The new diploma does increase
student exposure outside the classroom. Schools will be charged with
finding more internships and developing more hands-on learning
opportunities. Few Hoosier adults would find fault with that, except to
acknowledge that these changes also come at a steep cost.
To
accommodate work outside the classroom, the new diploma requirements
reduce academic requirements across the board. In fact, under the new
rules, it is now possible to get a high school diploma with mathematics
courses that are mostly taught in middle school and have been since the
1920s. Math, science, literacy, history and writing requirements have
all been reduced. These are the lowest diploma standards in modern state
history.
Does it surprise anyone that Indiana's Prosecuting Attorneys want to take away Hoosier's right to bail in all cases except murder and treason? That they want to copy the federal system where bail is denied to anyone falling into a category termed "dangerous" without looking at the individual; where the bail system becomes another form of incarceration? I was held by the federal government because my non-violent, victimless crime fit into a category for which Congress decided on political grounds the perpetrators would not have the right to bail. I also got no credit time against my sentence for my lack of freedom. So when Jarrod Holtsclaw writes the following in Bail and release reform: Preventative detention as a tool for public safety, there is a healthy dose of BS and misinformation:
At least 22 states and the federal government allow the most dangerous arrestees to be held without bail, and Indiana judges should have that discretion to protect the public in that way.
It is not that the arrestees are dangerous; it is their crimes are the ones that the legislature finds politically expedient to keep in jail.
I did a quick and dirty search on Google Scholar, since there has been a change in the case law since I resigned from the Indiana Bar. Here are the results:
A criminal defendant now charged with murder challenges the constitutionality of the statutory provision assigning him the burden of showing he is entitled to bail. After due consideration, today we hold that the burden must be placed upon the State to prove the defendant should be denied bail. Nevertheless, given the facts and circumstances of this particular case we affirm the trial court's decision denying the defendant bail.
That the right to bail is so deeply valued, however, does not mean
that it is unqualified. The Indiana Constitution specifically provides
that "[o]ffenses, other than murder or treason, shall be bailable by
sufficient sureties. Murder or treason shall not be bailable, when the
proof is evident, or the presumption strong." Ind. Const. art. 1, § 17.[2] We have thus said that "as a general rule, murder and treason shall not be bailable," except "in either 435*435 one of two cases: 1st. When the proof is not evident; 2d. When the presumption is not strong." Ex parte Jones, 55 Ind. 176, 179 (1876). "In either one of these two separate and distinct cases, the offence shall be bailable." Id.
This qualification was proper because murder is "the most serious
charge that can be lodged by this state against an individual and
carries with it the possibility of the imposition of a sentence of
death, society's harshest penalty," Phillips, 550 N.E.2d at 1294-95,
and the purpose of bail would likely be disserved by an unqualified
right in such a case. "Given the seriousness of the charge and the
severity of the consequences that could potentially attach, the
likelihood that an accused person would appear for trial if let to bail
is sufficiently doubtful that an initial presumption that no monetary
sum could provide an adequate assurance of attendance at trial" is
appropriate. Id. at 1295.
We have also long-held that the burden is placed upon the defendant
to show that either of those two separate and distinct circumstances
exist — i.e., to show that in his murder case the proof is not evident,
or the presumption not strong. Bozovichar, 230 Ind. at 366, 103 N.E.2d at 683; see also Ex parte Jones, 55 Ind. at 180; Ex parte Heffren, 27 Ind. 87, 88 (1866).
However, the presumption against bail in a murder case — and the
defendant's corresponding burden to show otherwise — is only permissible
under the Constitution "so long as that person is afforded the type of
procedural due process hearing that will guarantee that bail is not
denied unreasonably or arbitrarily." Phillips, 550 N.E.2d at 1295.
In 1981, the General Assembly codified this case law into §
35-33-8-2, which states, "(a) Murder is not bailable when the proof is
evident or the presumption strong. In all other cases, offenses are
bailable. (b) A person charged with murder has the burden of proof that
he should be admitted to bail." Ind.Code § 35-33-8-2. Fry challenges
subsection (b) of this statute, and, by extension, our prior case law.
***
The State argues that the presumption of innocence is not the only
factor at issue in bail decisions, which is quite correct. As we have
said, the determination must primarily consider the likelihood that the
accused will be present to stand trial and, in some instances, any
potential danger to the community. In fact, as the State correctly
continues, guilt or innocence is not a factor at all in the bail
decision, which is why appellate courts avoid laying out the evidence in
opinions reviewing pre-trial denial of bail. Doing so would risk
improperly influencing a later trial and jeopardizing the presumption of
innocence. Rather, the presumption against bail in a murder case is —
as we said in Phillips — based on a presumptive likelihood that
one accused of such a crime is unlikely to appear for trial no matter
what the monetary consequences.
Nevertheless, we do not find the State's arguments availing. For one
thing, we read Article 1, § 17, to grant a right to bail for all
offenses "other than murder or treason," and those two crimes "shall not
be bailable, when the proof is evident, or 441*441
the presumption strong." Ind. Const. art. 1, § 17. We do not see this
in any way other than murder and treason — when the proof is evident, or
the presumption strong — being exceptions to the presumptive right to
bail. We think it only fair that the party seeking to apply that
exception — the State — should be the one required to prove it. Cf. Konigsberg, 164 A.2d at 744
("The burden should rest on the party relying on the exception. That is
the logical and natural rule and the one which conforms with the
pervasive presumption of innocence attending all criminal charges.").
Additionally, contrary to the State's argument that guilt or
innocence is not at issue in a bail hearing, those matters are very much
at issue in a bail hearing where the defendant is accused of murder. In
fact, the "proof" and "presumption" that Article 1, § 17, refers to are
the "proof" and "presumption" of guilt. What the State is
seeking — and what we acknowledge that we have always required — is for a
criminal defendant accused of murder (and who is presumed innocent
until found guilty beyond a reasonable doubt) to get bail only by
carrying the burden of proving that he is probably not guilty.
This flies in the face of "the principle that the presumption of
innocence abides in the accused for all purposes while awaiting trial." Arthur, 390 So.2d at 719.
Second, in considering whether the State or defendant should carry
the burden of proof in these matters, these cases tend to hold that "as a
matter of convenience, fairness, and practicality, it is preferable
that the state have the burden of coming forward when the accused seeks
release on bail. Presumably the state is in a better position to present
to the court the evidence upon which it intends to rely." Id. at 720; cf. Simpson, 85 P.3d at 487
("Indeed, apart from the presumption in favor of bail, the State is in a
position superior to that of the accused to produce evidence during a
hearing because it already will have presented evidence in the process
of charging the person."); Purcell, 268 Ill.Dec. 429, 778 N.E.2d at 700 ("As a practical matter, the State is in a better position to present such evidence during a bail hearing.....
What Indiana's Prosecuting Attorneys want is to undermine, if not dispose of, the presumption of innocence. They do not want to do the work of presenting evidence of a person's guilt.
And let us read the statute that Indiana's Prosecuting Attorneys and courts need to follow:
35-33-8-4(b) provides:
(b) Bail may not be set higher than that amount reasonably
required to assure the defendant's appearance in court or to assure the
physical safety of another person or the community if the court finds by
clear and convincing evidence that the defendant poses a risk to the
physical safety of another person or the community. In setting and
accepting an amount of bail, the judicial officer shall consider the
bail guidelines described in section 3.8 of this chapter and take into
account all facts relevant to the risk of nonappearance, including:
(1) the length and character of the defendant's residence in the community;
(2) the defendant's employment status and history and the defendant's ability to give bail;
(3) the defendant's family ties and relationships;
(4) the defendant's character, reputation, habits, and mental condition;
(5) the defendant's criminal or juvenile record, insofar as
it demonstrates instability and a disdain for the court's authority to
bring the defendant to trial;
(6) the defendant's previous record in not responding to
court appearances when required or with respect to flight to avoid
criminal prosecution;
(7) the nature and gravity of the offense and the potential
penalty faced, insofar as these factors are relevant to the risk of
nonappearance;
(8) the source of funds or property to be used to post bail
or to pay a premium, insofar as it affects the risk of nonappearance;
(9) that the defendant is a foreign national who is unlawfully present in the United States under federal immigration law; and
(10) any other factors, including any evidence of
instability and a disdain for authority, which might indicate that the
defendant might not recognize and adhere to the authority of the court
to bring the defendant to trial.
Where is public safety not protected? Pay attention: "to assure the
physical safety of another person or the community if the court finds by
clear and convincing evidence that the defendant poses a risk to the
physical safety of another person or the community."
What Indiana Prosecuting Attorneys want to relieve themselves of the work of proving public safety is in danger if a citizen is released on bail.
Pay attention to what bail is about - attendance at trial for someone presumed innocent.
The General Assembly's recent codification of Criminal Rule 26 and
the adoption of evidence-based practices in the administration of bail
aim to strike the proper balance between preserving a defendant's
pretrial liberty interests and ensuring public safety. But these changes
call into question the legal standards governing pretrial release, the
level of discretion enjoyed by trial courts, and the standard of review
on appeal.
Today, we hold that these statutory reforms enhance, rather than
restrict, the broad discretion entrusted to our trial courts when
executing bail. What's more, a trial court can and should exercise that
discretion to protect against the risk of flight or potential danger to
the community. The trial court here did just that. And, so, we affirm
its order denying the petitioner's motion for bond reduction or
conditional pretrial release. We emphasize, however, that neither our
affirmance of judgment nor our grant of transfer affects the trial
court's order conditionally releasing the petitioner to pretrial
electronic home detention with GPS monitoring.[1]
So, should either party seek modification of the petitioner's
conditional release, we remand with instructions for the trial court to
conduct a hearing consistent with this opinion.
***
o accomplish its goals, Criminal Rule 26 urges trial courts to use
"the results of an evidence-based risk assessment" when determining
whether to release a defendant before trial. Ind. Criminal Rule 26. This
assessment, "based on empirical data derived through validated criminal
justice scientific research," aims to assist a court in evaluating the
likelihood of a defendant committing a new criminal offense or failing
to appear in court. I.C. § 35-33-8-0.5. Evidence-based practices in the
criminal-justice system have shown "considerable promise" in recent
years. See Malenchik v. State, 928 N.E.2d 564, 569 (Ind. 2010).
Indeed, research indicates that the IRAS-PAT itself "has strong to
moderate predictive validity when assessing risk for failure to appear
and re-arrest during the pretrial stage." Justice Reinvestment Advisory
Council, Report on Bail Reform and Pretrial Issues 2 (2019) [hereinafter JRAC Bail Report].
Despite this progress, Indiana's recent bail-reform initiatives call
into question the legal standards governing pretrial release, the level
of discretion enjoyed by trial courts, and the standard of review on
appeal.
Our decision today aims to resolve these questions. To that end, we
begin our discussion with an overview of Indiana's statutory bail
regime. See Pt. I, infra. Our analysis here leads us to
conclude that Indiana's recent bail-reform measures enhance, rather than
restrict, the broad discretion entrusted to our trial courts. See id.
Next, we analyze the bail decision here, holding that the trial court
did not abuse its discretion by denying DeWees's request for reduction
of bond or conditional pretrial release. See Pt. II, infra.
Finally, we turn to a brief discussion of Indiana Appellate Rule 65(E),
the implications of deviating from that Rule, and the need for
appellate courts to exercise prudence and restraint—especially in
developing areas of the law like we're presented with today. See Pt. III, infra.
***
Whether in setting bail or modifying bail, a trial court must first
consider, among "other relevant factors," the "results of the Indiana
pretrial risk assessment system (if available)." I.C. § 35-33-8-3.8(b).
If the trial court finds, based on the results of its assessment, that a
defendant presents no "substantial risk of flight or danger" to himself
or to others, "the court shall," with certain exceptions,[6] "consider releasing the arrestee without money bail or surety." Id.
After considering the IRAS results, "other relevant factors, and bail
guidelines described in section 3.8," the "court may admit a defendant
to bail" and require the defendant to execute a bail bond, restrict the
defendant's activities, place the defendant under supervision, or impose
any other "reasonable" conditions on the defendant's release. I.C. §
35-33-8-3.2(a).[7]
These bail conditions aim to assure the defendant's appearance at
future proceedings and "to assure the public's physical safety." Id. See also
I.C. § 35-33-8-4(b) (prohibiting the amount of bail to exceed that
"reasonably required" to ensure future court appearances "or to assure
the physical safety of another person or the community"). This latter
goal requires "a showing of clear and convincing evidence that the
defendant poses a risk of physical danger to another person or the
community." I.C. § 35-33-8-3.2(a). See also I.C. § 35-33-8-4(b) (specifying the same standard of proof).
***
Finally, a trial court may reduce the amount of bail when a defendant
presents "evidence of substantial mitigating factors." I.C. §
35-33-8-5(c). These factors, the same as those a court must consider
when setting and accepting an amount of bail, must "reasonably" suggest
"that the defendant recognizes the court's authority" over 268*268 him or her. Id.
(citing I.C. § 35-33-8-4(b)). A trial court may not reduce bail—and in
fact may increase bail or revoke bail entirely —if it finds by "clear
and convincing" evidence that the defendant "poses a risk to the
physical safety of another person or the community." I.C. §§
35-33-8-5(b)-(d).
Though far from a model of clarity, this statutory scheme imparts
considerable judicial flexibility in the execution of bail. What's more,
these statutes clearly permit —indeed mandate—a trial court to consider
all "relevant factors" when setting or modifying bail. See I.C. § 35-33-8-3.8(a). See also
I.C. § 35-33-8-4(b) (directing the court to "consider the bail
guidelines described in section 3.8" along with "all facts relevant to
the risk of nonappearance); I.C. § 35-33-8-5 (permitting modification of
bail "based on the factors set forth in section 4(b)"). This reading
comports with the very nature of a bail determination. Indeed, to tailor
that decision to the individual offender, the trial court should
consider the "widest range of relevant information in reaching an
informed decision." See Malenchik, 928 N.E.2d at 574 (quoting Dumas v. State, 803 N.E.2d 1113, 1120-21 (Ind. 2004)).
And what happened in this case to the defendant?
DeWees argues that the trial court abused its discretion by denying
her motion for reduction of bail or conditional pretrial release. She
insists that the State presented no "objective evidence to support a
finding that [she] posed a threat to Mullins or anyone else in the
community." Resp. to Trans. at 11. A victim's statement of fear,
standing alone, she contends, falls short of the clear-and-convincing
standard necessary for the evidence to support such a finding. Id. at 11-12.
The State counters that, while the trial court got it right, the
Court of Appeals ignored the standard of review by impermissibly
reweighing Mullins' testimony. Pet. to Trans. at 9-10. What's more, the
State contends, the panel mistakenly "concluded that there was no
evidence DeWees posed a risk to the physical safety of the victim or
that she was a flight risk." Id. at 10.
While we consider this a close case, our standard of review prompts us to agree with the State.
In reaching its decision, the trial court acknowledged DeWees's
"strong" family ties, her lack of criminal record, and no evidence of
past bad character. App. Vol. II, p. 50. The court also cited the
"extremely serious" nature of the offense; DeWees's IRAS score and
unemployment status; and her potential distance from the community,
depending on living arrangements. Id. at 50. These factors, the
trial court ultimately concluded, prevented it from saying that DeWees
"is not a substantial flight risk" or "that she is not a danger to
others." In specifically finding that DeWees posed a risk of physical
safety to Mullins, the court relied "[p]rimarily" on his testimony that
he lived in fear. Id. at 51.
Where was there any failure in protecting the public?
How does our current right to bail endanger the public?
Which threatens public safety - our right to bail or the government's ability to declare wide swathes of offenses unbailable?
I have written more than enough on this. Hopefully, you will read this and pass it along to other Hoosiers.
