In miniature, December 9

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“Frederick Uncut” podcast

I joined Danielle Gaines and Colin McGuire on the Frederick News-Post’s Frederick Uncut podcast series last month. Their description:

You may know Walter K. Olson because he’s a leading figure in Maryland’s congressional redistricting debate. Or from his articles as a fellow at the Cato Institute. Or maybe his nationally known blog, “Overlawyered.” Or perhaps as an unbridled cheerleader for the town of New Market, where he lives.

In the latest episode of the Frederick Uncut podcast, Olson joined host Colin McGuire and Frederick News-Post reporter Danielle E. Gaines to talk about politics and law, nationally and locally.

Download this MP3 file or listen at the Frederick Uncut site.

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In miniature, November 19

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“The United Shapes of America”

Maryland 9-year-old Araliya Rubin and her mom Nilmini Rubin have made a coloring book of gerrymandered Congressional districts, reports Beth Rodgers at Bethesda Beat. Staying inside the lines of the Maryland districts would challenge even a coloring book veteran.

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About the attacks on “The Star-Spangled Banner”

Critics keep claiming that Francis Scott Key used a racially charged swipe in the seldom-sung third verse of our national anthem, “The Star-Spangled Banner.” The vandals who attacked his statue in Eutaw Place, Baltimore this summer seemed to think that too, scrawling “Racist Anthem” at the statue’s base. But, I argue at National Review, there’s plenty of reason to think it’s the modern wave of racial revisionists whose interpretation is off Key.

More about the controversy at PRI last year (“Historians disagree”) and Snopes; contemporary English-language references to “slave” as a politically subordinate person, unrelated to race or to chattel slavery, are routine in the literature known to readers of that and earlier periods (as in “Rule Britannia”). On Francis Scott Key and persons of color, see also Key biographer Marc Leepson.

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In miniature, October 12

  • Maryland Redistricting Reform Commission held a lively hearing in Rockville Oct. 10 [Douglas Tallman, MCMedia] U.S. Supreme Court declines to speed up review of Maryland gerrymander — Lyle Denniston on what that could mean for wider issue [Constitution Center; more on Gill v. Whitford from Amy Howe, SCOTUSBlog]
  • We still need heroes: Lauren Weiner on statues and state songs [Law and Liberty, my earlier on Taney statue]
  • Anne Arundel County Executive Steve Schuh — a Republican — signs up with trial lawyers to sue opioid makers. Not a good look [Capital Gazette, my other blog on law firm Motley Rice, which helped orchestrate the tobacco caper]
  • Also to Frederick County, Maryland: “Montgomery County Wage Hike Will Drive Business to Virginia” [Emily Top, Economics 21]
  • “Hundreds Of Cases Dismissed Thanks To Baltimore Police Department Misconduct” [Tim Cushing, TechDirt]
  • Why Columbia has so many peculiar street names: it couldn’t re-use any that had been used in Baltimore City/County or Anne Arundel [Christina Tkacik, Baltimore Sun]

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What if bail reform leads to higher incarceration?

A campaign to get rid of the bail bond industry is currently in full swing across the country, with support from many liberals and libertarians. I’ve got an op-ed in the weekend Wall Street Journal’s “Cross Country” feature warning that Maryland’s experience over the past year should be a cautionary lesson:

Last fall the state’s attorney general, Brian Frosh, issued guidance that suddenly declared past bail methods unlawful, prodding the court system into an unplanned experiment. Judges may not set financial requirements if there is a reason to believe the defendant cannot pay, and unless they hold a suspect without bail, they must impose the “least onerous” conditions.

Now the results are coming in, and they can’t be what Mr. Frosh had in mind. An early report in March by Kelsi Loos in the Frederick News-Post found that since October the share of Maryland defendants held without bail had increased from 10% to 14%. The Washington Post later reported that from September 2016 to May the figure had jumped from 7% to 15%.

Meanwhile, fewer released defendants are showing up for trial. The Post, confirming anecdotal reports, writes that the “failure to appear” rate in January was 14.5%, up five points from October. Failing to show up for court sets up a defendant for more-severe consequences down the road, which can include being held without bail.

While bail reform is supposed to reduce the number of inmates held in jail, the number has instead increased in some places, though the results appear inconsistent.

If bail is taken away, judges need other tools to do the same job. Decades ago, when Congress steered the federal criminal-justice system away from bail bonds, lawmakers provided practical replacements, including systematic help in assessing a defendant’s risk of flight or re-offense, options for pretrial supervision, and methods of home and electronic detention. Several states have done the same. New Jersey now uses a mathematical algorithm to assess a person’s risk of fleeing or committing another crime. But the Maryland legislature, deeply split over Mr. Frosh’s destabilizing changes, has failed to set up such alternatives.

Maryland’s example doesn’t refute the idea of bail reform. But it does suggest state leaders should work to build consensus for comprehensive changes, instead of charging ahead with moralizing experiments.

On the current campaign to end bail bonds, see American Bar AssociationSens. Kamala Harris and Rand Paul and newspaperspraisingMarc Levin (conservative), ACLU (villainizing insurers), Gary Raney.

Other perspectives: Scott Greenfield (“pre-trial incarceration was a huge factor in obtaining guilty pleas from innocent defendants,” but algorithms, used as replacement in places like New Jersey, have problems too), Joshua Page (some families value bond company’s service), Dan Mitchell. On the uncertain stance of constitutional law, see Pugh v. Rainwater (Fifth Circuit 1977) and more (LaFave et al.), Walker v. City of Calhoun, 2016 (Cato amicus: bail must be individualized) and more (James McGehee).

[cross-posted from Overlawyered]

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Hamilton v. Paolozzi: gun rights of rehabilitated felons

Restore rights to a rehabilitated felon? Sure, says Maryland, but not gun rights. Constitutional check [Ilya Shapiro, Cato, on this certiorari amicus brief]

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Moving the Roger Taney statue

My new op-ed at the Frederick News-Post on Gov. Larry Hogan’s decision to support removal of the statue of Roger Taney from its place in front of the Maryland State House:

Taney did many things in an illustrious legal career but is remembered for only one: the disastrous Dred Scott decision, which served to entrench slavery….

Change in the display of public memorials is natural and inevitable….

No one has erased him from the history books — the Dred Scott case itself makes sure of that.

Plus: some thoughts from Andrew Stuttaford. From Atlas Obscura, displaced statues as a subject of historic preservation. Related: “My favorite Civil War era monuments are the 13th, 14th, and 15th Amendments.” [@david_tanenhaus on Twitter]

[cross-posted from Overlawyered] And from Chuck Lane at the Washington Post: how about a replacement statue honoring Maryland jurist Hugh Lennox Bond?

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Judge zaps MoCo lawn pesticide ban

Overturning Montgomery County’s ban on many commonly used lawn pesticides [Washington Post], Montgomery Circuit Court Judge Terrence McGann

said that the law — the first of its kind for a major locality in the region — would conflict with federal and Maryland state regulations that allow the use of the pesticides. The case was just one example of Maryland counties’ “insatiable appetite to tamper with existing state laws,” McGann said.

Counties have also “tried to hijack a portion of the existing field of law” in areas including tobacco, guns and minimum wage, he said.

My Cato Institute piece on the county’s bald double standard — officials had sought to exempt playing fields and other county properties from the ban — is here.

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