Derb, I was delighted to leave this at bread rolls, but since you insist on pressing on, I have to say that you are particularly unsuited to pine about whether the coelum will ruat since you’ve evinced no interest in whether justitia is actually, er, fiat.

Whether justice has been done in this case depends on whether 11 or 12 years in prison is a fair result, not in a vacuum but versus other likely alternative results. I have struggled mightily with that question. After considering the spurned sweetheart plea offer, the government’s need to call the drug dealer at the trial the agents insisted on having, the fact that the government routinely charges the most serious readily provable offense, and Congress’s prescribed penalty for the conduct the agents committed, I’ve concluded that an 11 or 12-year sentence is not out of bounds, even though it is more time than I would have imposed … and quite likely more time than the judge would have imposed had Congress not tied his hands.

But I’ve also conceded that reasonable minds could differ — that it would not be irrational to criticize the prosecutor’s exercise of discretion to charge the killer 10-year count … even though Justice Department policy holds that the most serious provable crime should be charged in every case. (Such that, if I gave these agents a break, I’d have to worry about all the people who claim the government has two systems of justice — including an easier one for government officials.)

To the contrary, you are all over the map depending on what point you happen to be trying to make. When it suits your purposes, you say the agents have done nothing wrong; when cornered, you say they have sinned, but it was a trifle — and you conveniently avoid dealing with the fact that prosecutors don’t get to determine the penalty for such sins, even if the prosecutor may agree they are trifles. You further choose not to deal with the version of the evidence that supports the jury’s verdict (which would require you to put a value on the shooting of an unarmed fleeing suspect who never endangered the police); and you choose in addition not to deal with the fact that Congress has assigned an adhesive penalty to the conduct that occurred here. (Given your resistance to any pre-existing standards, I could easily see you, in the next case, complaining that the prosecutor’s charging decision had imperiously ignored the will of Congress that some criminal serve a mandatory five or ten years in the slammer).

Alas, the real world is not that easy. If, as you conceded before, the agents have obstructed justice by covering up their shooting, such that some penalty is appropriate, the real world demands that a judge sentence within the bounds of the laws that apply — including the 10-year mandatory minimum. There is not a separate justice system for Border Patrol agents. The real world, moreover, is not a peanut gallery where a judge sentences based on how pissed-off you and Mark Krikorian happen (justifiably) to be over the Bush administration’s lax immigration enforcement.

I’m trying to grapple with the facts and complexities here; you are throwing your hands up and saying, “Who cares what the law says about this nonsense?” Tell me which one of us is really blind to the consequences as long as his version of justice is done?