Mormons and Critical Race Theory

[Doctor CamNC4Me]

You’ve conflated an approach designed to address the needs and abilities of all students with a claim that doing so ‘dumbs things down’ for all students, when this is not correct.

Help me out here, so I’m not misreading. Is it something like this?

OLD:

A = 90+
B =80-89
C = 70-79
D = 60-69
F = 0-59

NEW:

A = 90+
B = 75-89
C = 60-74
D = 45 - 59
F Incomplete = 0-44

In other words, high achievers still can learn the material, but poor performers have a wider gap allowing then to move on?

- Doc

[Res Ipsa]

… then we cannot simply rely on what appears to be a fair and neutral set of general principles to give us a fair and just society on the ground. We have to look at outcomes and not just be satisfied with theory.

At first blush what you propose is terrifying since it’s been tried over and over again with disastrous results. If Group A is failing to achieve the American Dream, whatever that actually means (I think Honor accurately portrays the American Dream as, pardon my summary, ‘getting a lot of crap’) then blaming the system that’s in place in 2022 is bananas. At what point do we keep leading horses to water that don’t want to drink water, while corralling our thoroughbreds who are thirsty af and don’t even need to be led? They’ll just run to the water and drink. Team Horse suffers when the thoroughbreds are hamstrung.

For example. Do we fight inequity by throwing money at designated groups because of historical sins? A short-term gain in the sense of their momentary happiness is achieved, but at what long-term cost? The problems of that policy are legion.

So, what outcomes are we actually looking to achieve? If we’re talking about achieving the opportunity of opportunity, then it exists. It may not be perfect in every situation, but people are allowed to pursue opportunity, and if that opportunity isn’t available to them, they’re free to form their own organizations or endeavors and carve out a living in some fashion.

If you take MG’s weird segue into ‘California calculus’ at face value there is something there. Not one person, practically speaking, is preventing anyone from cracking open a book and learning the material in 2022. You can attend a class, receive instruction, and study the material. If a particular demographic values the opportunities that is provided they’ll do it. If a demographic doesn’t, they won’t. The ‘outcomes’ are more tied to what the individual or their group values, and less about social inequality. The equality exists, which is the equality of opportunity. I don’t know how a municipality or state overcomes an individual’s desire, or lack thereof, to pursue opportunity.

Perhaps Honor simply cut through all the noise, and asked the right question. What are real aims or dreams we’re talking about here?

- Doc

Here's our point of departure. "If Group A is failing to achieve the American Dream, whatever that actually means (I think Honor accurately portrays the American Dream as, pardon my summary, ‘getting a lot of crap’) then blaming the system that’s in place in 2022 is bananas." It's not bananas if the system is, in fact, restricting the ability of Group A to achieve the American Dream. And you can't know that unless you make an effort to look to see if it is.

Here's an easy example. Changes to infrastructure to give people in wheelchairs more equivalent access to buildings. My suburb is old enough that none of the original sidewalks have curb cuts. The absence of curb cuts makes it extremely difficult for people in wheelchairs to be mobile in my suburb. So, the City is adding curb cuts to intersections. I don't have to have an all encompassing endgame to recognize a problem and take steps to fix it. I don't believe in making the perfect the enemy of the good.

If we take a serious look at an example of significant disparate outcomes and conclude that they are the result of free choice by the individuals involved, then no action needs to be taken. But if there are obstacles, like the absence of curb cuts, that are systematically disadvantaging members of a group, then make best efforts to remove the obstacles. I don't have to have a magic plan to fix all possible race problems in the US to recognize that the criminal justice system is screwed up as hell in terms of structural racism and to tackle that problem.

[Gadianton]

The problem to me comes down to financial inequality, and increasing poverty. Enclaves of people beaten down, whether the commonality is race or something else, simply get beaten down harder as the inequality gap widens. Here are my top 5 driving forces in semi-order:

1) monetary policy sustaining low interest rates
2) too much leverage in financial markets
3) market power of employers vs. regular employees; market power of executives vs. employers
4) too much outsourcing: 'things' become too cheap relative vs. land, healthcare, formal education.
5) decades of promoting home ownership by deductible interest.

But can the genie go back into the bottle?

Not sure. However, in the presence of these pressures, I really doubt that education reform is going to fix anything. That doesn't mean we don't have to try to do better, but, you know, it's never going to work so well that it will counteract the force of the undercurrent. I mean, even if you got it to where poor whites and poor blacks were equally increasingly poor, that's not a great fix.

[honorentheos]

Please dig away. I learned Critical Theory in law school, but not in a course called Critical Theory. I learned it through the utterly charming case method of study (a la the Paper Chase), but with the method turned on its head. And I was left to figure out what it all meant mostly on my own. So, it's hard sometimes for me to articulate as a general concept something that I learned through repeated examples.

Your initial understanding is what I intended, but I can see why you found my wording problematic. It's easiest for me to illustrate in law. Classical legal theory postulated that judges decided cases by the application of discernible and neutral rules. Langdell proposed that we could discover those rules by studying cases. From the cases, we could infer the rules. And, once we knew the rules, we could deduce the correct result in any given case.

Between classical legal theory and Critical Legal Studies came a school of thought called Legal Realists. I believe they were the first recognized school fo thought to apply Critical Theory to law. One of the notions that they challenged was that general rules could ever dictate the results in a specific case. When I referred to the ideals of western liberal democracy, I'm analogizing to the general legal rules. And when I referred to equality of opportunity vs. oppression, I'm analogizing to the results in a specific case. If a general rule cannot dictate the results in a specific case, then we cannot simply rely on what appears to be a fair and neutral set of general principles to give us a fair and just society on the ground. We have to look at outcomes and not just be satisfied with theory.

I hope that is a better explanation.

Thanks, Res. It reminded me of something I had read quite a few years ago (damn that made me feel old, too) out of Reason magazine in 2004. It had to do with the debate around same-sex marriage a decade before Obergefell v. Hodges that took on the issue from the position of marriage tradition. The writer is a gay, libertarian male who first framed the problem from an argument with which he agreed, then deconstructed to show the premise behind the conservative view of proven societal norms having intrinsic value that one tampers with at risk to society was digressive in the face of recognized harm. Here's the link:
https://reason.com/2004/06/01/objection ... -unions-2/

His set-up invokes Friedrich August von Hayek, who he describes as, "one of the 20th century's great economists and philosophers." The Hayekian argument, as he calls it, is built on the same foundation you describe being proposed regarding law by Langdell. That being as follows:

"Every man growing up in a given culture will find in himself rules, or may discover that he acts in accordance with rules -- and will similarly recognize the actions of others as conforming or not conforming to various rules," Hayek wrote in Law, Legislation, and Liberty. The rules, he added, are not necessarily innate or unchangeable, but "they are part of a cultural heritage which is likely to be fairly constant, especially so long as they are not articulated in words and therefore also are not discussed or consciously examined."

...

"It may indeed prove to be far the most difficult and not the least important task for human reason rationally to comprehend its own limitations. It is essential for the growth of reason that as individuals we should bow to forces and obey principles which we cannot hope fully to understand, yet on which the advance and even the preservation of civilization depends. Historically this has been achieved by the influence of the various religious creeds and by traditions and superstitions which made man submit to those forces by an appeal to his emotions rather than to his reason. The most dangerous stage in the growth of civilization may well be that in which man has come to regard all these beliefs as superstitions and refuses to accept or to submit to anything which he does not rationally understand. The rationalist whose reason is not sufficient to teach him those limitations of the powers of conscious reason, and who despises all the institutions and customs which have not been consciously designed, would thus become the destroyer of the civilization built upon them. This may well prove a hurdle which man will repeatedly reach, only to be thrown back into barbarism."

This Hayekian argument essentially being that the rules, the structure that culture and tradition has erected are dangerous to tamper with as one cannot be so smart as to be able to predict a positive outcome from doing so. And the potential risk is so great that it should scare away the attempt.

As the author continues,

"Here the advocates of same-sex marriage face peril coming from two directions. On the one side, the Hayekian argument warns of unintended and perhaps grave social consequences if, thinking we're smarter than our customs, we decide to rearrange the core elements of marriage. The current rules for marriage may not be the best ones, and they may even be unfair. But they are all we have, and you cannot re-engineer the formula without causing unforeseen results, possibly including the implosion of the institution itself. On the other side, political realism warns that we could do serious damage to the legitimacy of marital law if we rewrote it with disregard for what a large share of Americans recognize as marriage.

"If some state passed a law allowing you to marry a Volkswagen, the result would be to make a joke of the law. Certainly legal gay marriage would not seem so silly, but people who found it offensive or illegitimate might just ignore it or, in effect, boycott it. Civil and social marriage would fall out of step. That might not be the end of the world -- the vast majority of marriages would be just as they were before -- but it could not do marriage or the law any good either. In such an environment, same-sex marriage would offer little beyond legal arrangements that could be provided just as well through civil unions, and it would come at a price in diminished respect for the law.

"Call those, then, the problem of unintended consequences and the problem of legitimacy. They are the toughest problems same-sex marriage has to contend with. But they are not intractable."

The author acknowledges his own favoritism for Hayek as an economist, including the same principles being foundation to his economic views on free markets vs. central control, but then proceeds to make what I think is a case for same-sex marriage that aligns with what you describe above in general regarding critical theory as an approach to established orders where outcomes do not, as claimed, reveal truly desirable and predictable guiding principles in play.

So the extreme Hayekian position -- never reform anything -- is untenable. And that point was made resoundingly by no less an authority than F.A. Hayek himself. In a 1960 essay called "Why I Am Not a Conservative," he took pains to argue that his position was as far from that of reactionary traditionalists as from that of utopian rationalists. "Though there is a need for a 'brake on the vehicle of progress,'" he said, "I personally cannot be content with simply helping to apply the brake." Classical liberalism, he writes, "has never been a backward-looking doctrine." To the contrary, it recognizes, as reactionary conservatism often fails to, that change is a constant and the world cannot be stopped in its tracks.

His own liberalism, Hayek wrote, "shares with conservatism a distrust of reason to the extent that the liberal is very much aware that we do not know all the answers," but the liberal, unlike the reactionary conservative, does not imagine that simply clinging to the past or "claiming the authority of supernatural sources of knowledge" is any kind of answer. We must move ahead, but humbly and with respect for our own fallibility.

And there are times, Hayek said (in Law, Legislation, and Liberty), when what he called "grown law" requires correction by legislation. "It may be due simply to the recognition that some past development was based on error or that it produced consequences later recognized as unjust," he wrote. "But the most frequent cause is probably that the development of the law has lain in the hands of members of a particular class whose traditional views made them regard as just what could not meet the more general requirements of justice….Such occasions when it is recognized that some hereto accepted rules are unjust in the light of more general principles of justice may well require the revision not only of single rules but of whole sections of the established system of case law."

That passage, I think, could have been written with gay marriage in mind. The old view that homosexuals were heterosexuals who needed punishment or prayer or treatment has been exposed as an error. What homosexuals need is the love of another homosexual. The ban on same-sex marriage, hallowed though it is, no longer accords with liberal justice or the meaning of marriage as it is practiced today. Something has to give. Standing still is not an option.

Hayek himself, then, was a partisan of the milder version of Hayekianism. This version is not so much a prescription as an attitude. Respect tradition. Reject utopianism. Plan for mistakes rather than for perfection. If reform is needed, look for paths that follow the terrain of custom, if possible. If someone promises to remake society on rational or supernatural or theological principles, run in the opposite direction. In sum: Move ahead, but be careful.

[canpakes]

You’ve conflated an approach designed to address the needs and abilities of all students with a claim that doing so ‘dumbs things down’ for all students, when this is not correct.

Help me out here, so I’m not misreading. Is it something like this?

OLD:

A = 90+
B =80-89
C = 70-79
D = 60-69
F = 0-59

NEW:

A = 90+
B = 75-89
C = 60-74
D = 45 - 59
F Incomplete = 0-44

In other words, high achievers still can learn the material, but poor performers have a wider gap allowing then to move on?

- Doc

Sure, a realignment of assigned grade levels could be one way of achieving this. Another would be to not mandate that the same passing percentage be met for all districts within a state or across states (per earlier post about allowing for lower passing rates for some groups or districts). Neither approach necessarily changes the material taught - it only changes what is deemed an acceptable level of mastery of that material in order to achieve a particular grade. In that way, smart kids can still be as smart as they like, and less-smart kids get a break on grading.

But, I’m not so sure that this is only all about making things ‘easier’ on the poorly-performing kids. My take is that the guidelines of the NCLB Act were somewhat vague, and that many districts found that they could not qualify for federal funds if certain guidelines were not met, regardless of how those guidelines were calculated. Given the disparity between districts and states (related to tax base, resources, or whatever), a national standard for improvement might then end up penalizing districts least able to keep up with those standards, which could then deny them federal funds … which would then exacerbate the problem.

ETA: this link brings up an article from 2008 about several of the court actions regarding the details of the NCLB Act, and is much more helpful than my sloppy take above:

https://www.edweek.org/policy-politics/ ... ts/2008/01

In any event, I don’t see this decades-long controversy over the NCLB Act as some sort of action by critical race theory enthusiasts to dumb down white kids, so I’m going to reject MG’s attempt at connecting the two, regardless of any other legit concerns over whatever critical race theory is being defined as by various players.

[honorentheos]

Here's our point of departure. "If Group A is failing to achieve the American Dream, whatever that actually means (I think Honor accurately portrays the American Dream as, pardon my summary, ‘getting a lot of crap’) then blaming the system that’s in place in 2022 is bananas." It's not bananas if the system is, in fact, restricting the ability of Group A to achieve the American Dream. And you can't know that unless you make an effort to look to see if it is.

Here's an easy example. Changes to infrastructure to give people in wheelchairs more equivalent access to buildings. My suburb is old enough that none of the original sidewalks have curb cuts. The absence of curb cuts makes it extremely difficult for people in wheelchairs to be mobile in my suburb. So, the City is adding curb cuts to intersections. I don't have to have an all encompassing endgame to recognize a problem and take steps to fix it. I don't believe in making the perfect the enemy of the good.

If we take a serious look at an example of significant disparate outcomes and conclude that they are the result of free choice by the individuals involved, then no action needs to be taken. But if there are obstacles, like the absence of curb cuts, that are systematically disadvantaging members of a group, then make best efforts to remove the obstacles. I don't have to have a magic plan to fix all possible race problems in the US to recognize that the criminal justice system is screwed up as hell in terms of structural racism and to tackle that problem.

I like this example a lot. Not least of which is because Seattle has an amazing Pedestrian Master Plan that was innovative and demonstrates there was a lot more to undertakings like you describe than a City deciding to add curb cuts. I don't believe you live in Seattle but in the general area, and I'm making an assumption about the way Cities operate where there is competition among local municipalities so if one does something that is widely recognized among applicable professions with noteworthy results, others nearby will replicate it, innovate on it, and expand the benefits provided to be competitive with their neighbors.

Here's a link:
http://www.seattle.gov/transportation/d ... aster-plan

I looked to this as a model for something else I had worked on professionally and have some awareness of the process, time, and tools involved to make, "Adding curb cuts" one of numerous procedures identified and funded for implementation in a strategic manner. It's pretty cool.

[honorentheos]

The problem to me comes down to financial inequality, and increasing poverty. Enclaves of people beaten down, whether the commonality is race or something else, simply get beaten down harder as the inequality gap widens. Here are my top 5 driving forces in semi-order:

1) monetary policy sustaining low interest rates
2) too much leverage in financial markets
3) market power of employers vs. regular employees; market power of executives vs. employers
4) too much outsourcing: 'things' become too cheap relative vs. land, healthcare, formal education.
5) decades of promoting home ownership by deductible interest.

But can the genie go back into the bottle?

Not sure. However, in the presence of these pressures, I really doubt that education reform is going to fix anything. That doesn't mean we don't have to try to do better, but, you know, it's never going to work so well that it will counteract the force of the undercurrent. I mean, even if you got it to where poor whites and poor blacks were equally increasingly poor, that's not a great fix.

Hey Gad,

I think these are excellent points, too. There is a real social opportunity cost in this as well, as very bright, capable disadvantaged people find themselves unable to capitalize on their potential while mediocre advantaged folks find nothing but green lights in front of them.

One of the most striking examples of how this cycle works against society through obstructing disadvantaged youth that I've heard was on an episode of Malcolm Gladwell's podcast Revisionist History, here:
https://www.pushkin.fm/episode/carlos-doesn't-remember/

[Res Ipsa]

Please dig away. I learned Critical Theory in law school, but not in a course called Critical Theory. I learned it through the utterly charming case method of study (a la the Paper Chase), but with the method turned on its head. And I was left to figure out what it all meant mostly on my own. So, it's hard sometimes for me to articulate as a general concept something that I learned through repeated examples.

Your initial understanding is what I intended, but I can see why you found my wording problematic. It's easiest for me to illustrate in law. Classical legal theory postulated that judges decided cases by the application of discernible and neutral rules. Langdell proposed that we could discover those rules by studying cases. From the cases, we could infer the rules. And, once we knew the rules, we could deduce the correct result in any given case.

Between classical legal theory and Critical Legal Studies came a school of thought called Legal Realists. I believe they were the first recognized school fo thought to apply Critical Theory to law. One of the notions that they challenged was that general rules could ever dictate the results in a specific case. When I referred to the ideals of western liberal democracy, I'm analogizing to the general legal rules. And when I referred to equality of opportunity vs. oppression, I'm analogizing to the results in a specific case. If a general rule cannot dictate the results in a specific case, then we cannot simply rely on what appears to be a fair and neutral set of general principles to give us a fair and just society on the ground. We have to look at outcomes and not just be satisfied with theory.

I hope that is a better explanation.

Thanks, Res. It reminded me of something I had read quite a few years ago (damn that made me feel old, too) out of Reason magazine in 2004. It had to do with the debate around same-sex marriage a decade before Obergefell v. Hodges that took on the issue from the position of marriage tradition. The writer is a gay, libertarian male who first framed the problem from an argument with which he agreed, then deconstructed to show the premise behind the conservative view of proven societal norms having intrinsic value that one tampers with at risk to society was digressive in the face of recognized harm. Here's the link:
https://reason.com/2004/06/01/objection ... -unions-2/

His set-up invokes Friedrich August von Hayek, who he describes as, "one of the 20th century's great economists and philosophers." The Hayekian argument, as he calls it, is built on the same foundation you describe being proposed regarding law by Langdell. That being as follows:

"Every man growing up in a given culture will find in himself rules, or may discover that he acts in accordance with rules -- and will similarly recognize the actions of others as conforming or not conforming to various rules," Hayek wrote in Law, Legislation, and Liberty. The rules, he added, are not necessarily innate or unchangeable, but "they are part of a cultural heritage which is likely to be fairly constant, especially so long as they are not articulated in words and therefore also are not discussed or consciously examined."

...

"It may indeed prove to be far the most difficult and not the least important task for human reason rationally to comprehend its own limitations. It is essential for the growth of reason that as individuals we should bow to forces and obey principles which we cannot hope fully to understand, yet on which the advance and even the preservation of civilization depends. Historically this has been achieved by the influence of the various religious creeds and by traditions and superstitions which made man submit to those forces by an appeal to his emotions rather than to his reason. The most dangerous stage in the growth of civilization may well be that in which man has come to regard all these beliefs as superstitions and refuses to accept or to submit to anything which he does not rationally understand. The rationalist whose reason is not sufficient to teach him those limitations of the powers of conscious reason, and who despises all the institutions and customs which have not been consciously designed, would thus become the destroyer of the civilization built upon them. This may well prove a hurdle which man will repeatedly reach, only to be thrown back into barbarism."

This Hayekian argument essentially being that the rules, the structure that culture and tradition has erected are dangerous to tamper with as one cannot be so smart as to be able to predict a positive outcome from doing so. And the potential risk is so great that it should scare away the attempt.

As the author continues,

"Here the advocates of same-sex marriage face peril coming from two directions. On the one side, the Hayekian argument warns of unintended and perhaps grave social consequences if, thinking we're smarter than our customs, we decide to rearrange the core elements of marriage. The current rules for marriage may not be the best ones, and they may even be unfair. But they are all we have, and you cannot re-engineer the formula without causing unforeseen results, possibly including the implosion of the institution itself. On the other side, political realism warns that we could do serious damage to the legitimacy of marital law if we rewrote it with disregard for what a large share of Americans recognize as marriage.

"If some state passed a law allowing you to marry a Volkswagen, the result would be to make a joke of the law. Certainly legal gay marriage would not seem so silly, but people who found it offensive or illegitimate might just ignore it or, in effect, boycott it. Civil and social marriage would fall out of step. That might not be the end of the world -- the vast majority of marriages would be just as they were before -- but it could not do marriage or the law any good either. In such an environment, same-sex marriage would offer little beyond legal arrangements that could be provided just as well through civil unions, and it would come at a price in diminished respect for the law.

"Call those, then, the problem of unintended consequences and the problem of legitimacy. They are the toughest problems same-sex marriage has to contend with. But they are not intractable."

The author acknowledges his own favoritism for Hayek as an economist, including the same principles being foundation to his economic views on free markets vs. central control, but then proceeds to make what I think is a case for same-sex marriage that aligns with what you describe above in general regarding critical theory as an approach to established orders where outcomes do not, as claimed, reveal truly desirable and predictable guiding principles in play.

So the extreme Hayekian position -- never reform anything -- is untenable. And that point was made resoundingly by no less an authority than F.A. Hayek himself. In a 1960 essay called "Why I Am Not a Conservative," he took pains to argue that his position was as far from that of reactionary traditionalists as from that of utopian rationalists. "Though there is a need for a 'brake on the vehicle of progress,'" he said, "I personally cannot be content with simply helping to apply the brake." Classical liberalism, he writes, "has never been a backward-looking doctrine." To the contrary, it recognizes, as reactionary conservatism often fails to, that change is a constant and the world cannot be stopped in its tracks.

His own liberalism, Hayek wrote, "shares with conservatism a distrust of reason to the extent that the liberal is very much aware that we do not know all the answers," but the liberal, unlike the reactionary conservative, does not imagine that simply clinging to the past or "claiming the authority of supernatural sources of knowledge" is any kind of answer. We must move ahead, but humbly and with respect for our own fallibility.

And there are times, Hayek said (in Law, Legislation, and Liberty), when what he called "grown law" requires correction by legislation. "It may be due simply to the recognition that some past development was based on error or that it produced consequences later recognized as unjust," he wrote. "But the most frequent cause is probably that the development of the law has lain in the hands of members of a particular class whose traditional views made them regard as just what could not meet the more general requirements of justice….Such occasions when it is recognized that some hereto accepted rules are unjust in the light of more general principles of justice may well require the revision not only of single rules but of whole sections of the established system of case law."

That passage, I think, could have been written with gay marriage in mind. The old view that homosexuals were heterosexuals who needed punishment or prayer or treatment has been exposed as an error. What homosexuals need is the love of another homosexual. The ban on same-sex marriage, hallowed though it is, no longer accords with liberal justice or the meaning of marriage as it is practiced today. Something has to give. Standing still is not an option.

Hayek himself, then, was a partisan of the milder version of Hayekianism. This version is not so much a prescription as an attitude. Respect tradition. Reject utopianism. Plan for mistakes rather than for perfection. If reform is needed, look for paths that follow the terrain of custom, if possible. If someone promises to remake society on rational or supernatural or theological principles, run in the opposite direction. In sum: Move ahead, but be careful.

Thanks, Honor. I had never heard of Hayek. Interesting perspective. The way I think about critical theory is also not a prescription but an attitude. At least I think so. Where I would quibble with Hayek is what I think is his implicit assumption that the choice to change is qualitatively different than the choice not to change. Quibble aside, I think we end up at pretty much the same place. "Move ahead, but be careful" is a pretty good description of where I'm at, I think.

I'm trying to think of a cool name for my political philosophy. I''m jealous of Doc's "radical centrism" because, whatever it means, it's a cool label. Maybe it's Revolutionary Incrementalist. Or just Critical Incrementalist. As long as it comes with cool sunglasses, I'll be happy.

[drumdude]

If a general rule cannot dictate the results in a specific case, then we cannot simply rely on what appears to be a fair and neutral set of general principles to give us a fair and just society on the ground. We have to look at outcomes and not just be satisfied with theory.

Isn't this the logic behind things like mandatory minimum sentences? So that the rule always dictates the same equal result in every case, and the outcome is always the same?

[Res Ipsa]

If a general rule cannot dictate the results in a specific case, then we cannot simply rely on what appears to be a fair and neutral set of general principles to give us a fair and just society on the ground. We have to look at outcomes and not just be satisfied with theory.

Isn't this the logic behind things like mandatory minimum sentences? So that the rule always dictates the same equal result in every case, and the outcome is always the same?

Yeah, I think mandatory sentencing in general is a good example. We can conduct all kinds of studies and consult all kinds of experts to create the fairest and most equitable system of mandatory sentencing possible. And, still, we will end up with a truck driver sentenced to 110 years for a traffic accident. Or someone who commits a murder immediately upon release.

I have my own little mantra about fairness. It goes something like: Fairness requires treating like cases the same and different cases differently. Any two cases are both the same and different. The trick is in figuring out which samenesses and which differences are important.

The idea behind mandatory sentencing was that judges were too soft on crime. So, in the federal system and some state systems, the ability to take into consideration the facts of individual cases was taken away. The result, based on federal judges I've listened to, was dockets crammed with relatively minor drug offenses, resulting in sending people to prison that really should not have been there. As a result, we ended up with an embarrassingly high rate of incarceration when compared with other countries, overcrowded facilities, and a for profit industry that needs full cells to turn a profit. That's the price of focussing on sameness and not enough on differences. Too many mandatories and too little discretion.