Results matching “thomas”

CA Murderer Avoids Death Penalty with Plea:  A California man who participated in the slaying of a teenage couple over eight years ago was sentenced Tuesday to 50 years to life, skirting a possible death sentence.  The AP reports that 28-year-old David Brian Smith's sentencing comes two weeks after he pleaded guilty to murder, and he is eligible for parole.  In January 2008, Smith and two other men, Cameron Thomason and Collin McLaughlin, ordered Christopher Thompson, 18, and Bodhisattva Sherzer-Potter, 16, out of their vehicle, which the couple had been sleeping in following a party at an abandoned Air Force bunker in the Mojave Desert.  The three men, who had targeted the couple for robbery, took the teens to the bunker, forced them to kneel and shot them in the backs of the heads with a shotgun and rifle when it was discovered they had no money.  Thomason, who served as the lookout during the murders, received a 15-year sentence after pleading guilty to voluntary manslaughter and attempted robbery in 2011.  McGlaughlin pleaded guilty to murder, kidnapping and robbery in 2013 and is serving a life sentence without the possibility of parole.

TN Man Will Face a Death Sentence:  A Tennessee man accused of fatally shooting a woman and her young son last year will face the death penalty if convicted.  The Chattanooga Times Free Press reports that a notice to pursue a death sentence against accused killer Ross Anderson was filed Wednesday morning by Steve Crump, attorney general in the 10th Judicial District.  Anderson, a former firefighter, is charged with killing Rachel Johnson, 30, and her son Colton, 5, in their home last December.

CA Man Faces Possible Death Sentence:  A California man who has already served decades in prison for murder is facing a possible death sentence for another murder he committed 37 years ago.  Debbie L. Sklar of My News LA reports that Darrel Mark Gurule, 57, was found guilty last Wednesday for the rape and murder of Barbara Ballman, 23, who was shot in the abdomen and found naked inside her car in September 1979.  Gurule wasn't charged with Ballman's death until 2010 when his DNA was connected to evidence found on her body.  He has been serving a life sentence since 1987 for kidnapping and murdering a man in what detectives believe was a drug deal gone wrong.  Prosecutors also say he is responsible for the kidnapping and sexual assault of a woman in 1977, the assault of two brothers in 1979 and the robbery of a man in 1982.  Jurors began on Monday hearing evidence that will factor in to whether they will sentence Gurule to life in prison without parole or the death penalty.

AL Death Row Inmate Files Appeal:  An Alabama inmate just a few months away from his scheduled execution filed an appeal over the weekend asking an appellate court to review his claim that the state's lethal injection procedure is inhumane.  Kim Chandler of the AP reports that Thomas Arthur, 74, who was scheduled to be executed on Nov. 3 for the 1982 murder-for-hire of a businessman, filed the appeal with the 11th U.S. Circuit Court of Appeals arguing that his legal challenge was prematurely dismissed in July by a federal judge who misapplied a requirement for inmates to name an alternate execution method.  Arthur is arguing against the use of the sedative midazolam hydrochloride in his execution, citing the drug's unreliability and his health issues.  It as been over two years since Alabama regularly carried out executions.  The last person put to death in the state was Christopher Eugene Brooks in January for raping and fatally beating a woman in 1993.

CA Parolee Arrested for Murder:  A California parolee was arrested and booked on suspicion of murder early Sunday morning for killing a man over the weekend.  Lyndsay Winkley of the San Diego Union-Tribune reports that Richard Gunner, 23, is accused of killing Brandon Deguzman, 21, in front of the victim's El Cajon home on Saturday morning.  Deguzman was discovered with at least one fatal gunshot wound on the sidewalk.  Gunner was arrested the next day, initially on a parole violation and then later for murder, once police obtained sufficient evidence.  Gunner's father says his son has spent time in prison for carjacking and has a serious drug problem.

Akhil Reed Amar of Yale Law is a rarity -- a prominent legal academic who has his head screwed on straight when it comes to the Fourth Amendment exclusionary rule.  He has this post at SCOTUSblog titled The Court after Scalia: The despicable and dispensable exclusionary rule.  No doubt about where he stands.

I agree with what Professor Amar says about the exclusionary rule, but not so much what he says about the Justices.  He begins by noting the difference between cases where the Court was focused on the substantive Fourth Amendment question and cases where it focused on the exclusionary remedy:

In countless cases over the last forty years, the Court has held that the Fourth Amendment was violated by the facts at hand, and has thus ordered or upheld evidentiary exclusion....   But whenever the modern Court has squarely focused on the exclusionary rule itself - giving express thought to whether the rule's contours should be widened or narrowed - the Justices have almost always ruled against the rule, and have done so in case after case dripping with implied or express contempt for it.

This contempt is well founded:

The exclusionary rule has no sound footing in any originalist legal source material. None. Nothing in the text as originally understood supports it; no framer ever endorsed it; no judge in America for the first century after independence ever followed the exclusionary rule or any genuine prototype of it. On one of the very few occasions when a lawyer tried to argue for exclusion before 1876, the lawyer was laughed out of court by America's preeminent jurists, led by Joseph Story.

A bit of rhetorical exaggeration there.  Laughing wasn't Justice Story's style.  But he did make very clear that the exclusionary argument had no basis in the law at that time.  My brief in Utah v. Strieff has more on this.

Mapp v. Ohio, the case that imposed the exclusionary rule on the states, was wrongly decided as an original matter.  A long string of decisions has chipped away at it, limiting the damage it does to some extent, but the case has not been overruled.  Why not, and what of the future?

Death Penalty Sought in PA Cookout Ambush:  Prosecutors in Pennsylvania announced Friday that they plan to seek the death penalty against two men charged in an ambush at a cookout five months ago that killed five adults, one of whom was pregnant.  The AP reports that Cheron Shelton, 29, and Robert Thomas, 27, will face the death penalty if convicted of first-degree murder for the March 9 shooting in suburban Pittsburgh that left five adults and an unborn child dead, and three others wounded.  Thomas allegedly fired 18 shots from a pistol into a group of 15 partygoers, who then ran toward the rear porch of the house.  Shelton was hiding behind a fence nearby and fired 30 shots from an AK-47-style rifle.  Prosecutors say the men's motive stems from the murder of Shelton's best friend in 2013, who is believed to have be killed by one of the wounded partygoers.  Shelton and Thomas both face six counts each of criminal homicide, as well as charges of criminal conspiracy, aggravated assault and reckless endangerment.

Illegal Immigrant Bus Driver Kills 2 in Crash:  A bus operated by an unlicensed illegal immigrant driver carrying flood recovery volunteers crashed into several vehicles, including a fire truck, on a Louisiana interstate Sunday morning, killing two people and injuring 36.  Fox News reports that the driver of the bus, Denis Yasmir Amaya Rodriguez, 37, of Honduras, hit the fire truck and then a car, veering behind the fire truck and into a pickup truck.  Three firefighters, who were there responding to an earlier crash, were knocked into the water below the interstate.  The two fatalities include Jermaine Star, 21, who was in the backseat of the car that was struck, and St. John the Baptist Parish district Fire Chief Spencer Chauvin.  Two other firefighters, 24 bus passengers and nine people in other vehicles were injured.  Rodriguez sustained minor injuries.  He faces two counts of negligent homicide, reckless operation and driving without a driver's license.  Police say there will be additional charges.

Man Faces 2 Capital Murder Charges in MS Nun Deaths:  A man suspected of murdering two Mississippi nuns last week has been arrested and charged with two counts of capital murder.  Emily Wagster Pettus of the AP reports that Rodney Earl Sanders, 46, is charged in the deaths of Sister Margaret Held and Sister Paula Merrill, both 68, whose bodies were discovered inside a residence Thursday after they failed to show up for work at a health clinic.  The home showed signs of a break-in and their stolen car was discovered a mile away.  Police haven't disclosed a motive for the slayings or the women's cause of death.  Sisters Held and Merrill were both nurse practitioners who worked at a clinic administering flu shots, dispensing insulin and providing other medical care for children and adults who couldn't afford it. 

Former KKK Member Convicted of Murder Up for Parole:  One of the three men responsible for killing four black girls in a church bomb blast during the civil rights movement in Alabama is up for parole this week.  Jay Reeves of the AP reports that as a young Ku Klux Klansman in 1963, Thomas Edwin Blanton Jr., now 78, planted a dynamite bomb that exploded outside the 16th Street Baptist Church in Birmingham, killing an 11-year-old and three 14-year-old black girls.  He was convicted of murder and sentenced to 15 years to life in 2001 after the FBI reopened its investigation and obtained recorded evidence by planting FBI bugs in Blanton's home and in the car of a former Klansman turned informant.  Two other men were convicted in the bombing, Robert Chambliss in 1977 and Bobby Frank Cherry in 2002, who both died in prison.  The three-person parole board has scheduled Blanton's hearing on Wednesday.  Blanton will not be permitted to attend, but several opponents of his release are expected to be there to address the board.  The former U.S. attorney who prosecuted Blanton on the state charge, Doug Jones, says Blanton neither accepted responsibility for the crime nor showed any remorse and should not be released.  Update:  The parole board denied the release of Blanton on Wednesday.

IL Officer Shot, Seriously Wounded:  A Carbondale, Ill., police officer was shot and seriously injured late Sunday during a police chase.  Kim Bell of the St. Louis Post-Dispatch reports that Carbondale officers drove toward the sound of gunfire at 11:38 p.m. and, after spotting a vehicle speeding off, a chase ensued.  The fleeing vehicle refused to pull over and someone in the vehicle then fired several shots at the officers, hitting one police car and striking the officer.  Police did not return fire.  The officer, whose name has not yet been released, remained in serious condition Monday morning.  The gunman is still at large.

Black Lives Matter Release List of Demands:  For the first time since its emergence, the Black Lives Matter organization released its policy agenda Monday, outlining six demands and 40 recommendations on how to address them.  Errin Haines Whack of the AP reports that in seeking "radical transformation," BLM organizers stipulated that there be an end to militarized police presence at protests; that drug, sex work-related and youth offenses be retroactively decriminalized and all people convicted of those offenses be released immediately; and that federal legislation be passed creating a commission to study reparations for descendants of slaves.  The BLM movements spawned in 2012, but exploded in 2014 following the shooting death of Michael Brown by Ferguson police officer Darren Wilson, who was later found to have rightly defended himself against an aggressive Brown.  Since then, BLM has been heavily criticized by groups who say the organization is "unfairly critical of -- an even endangers -- law enforcement."

Habeas corpus is the correct procedure for persons who claim they are wrongly imprisoned.  For any other civil rights claim in federal court by a state prisoner, the correct procedure is a suit under the civil rights law, 42 U.S.C. §1983.  The line between the two is not always clear.

Today the U.S. Court of Appeals for the Ninth Circuit, sitting sort of en banc, decided Nettles v. Grounds, No. 12-16935:

Damous Nettles, a prisoner serving a life sentence in California prison, appeals the district court's dismissal of his habeas petition for lack of jurisdiction. The petition challenged a disciplinary violation on constitutional grounds and claimed that the failure to expunge this violation from his record could affect his eligibility for parole. We conclude that because Nettles's claim does not fall within the "core of habeas corpus," Preiser v. Rodriguez, 411 U.S. 475, 487(1973), it must be brought, if at all, under 42 U.S.C. § 1983.

Judge Ikuta wrote the opinion, joined in full by Judges Rawlinson, Clifton, Callahan, and Randy Smith.  Judge Hurwitz concurred in part.  Judge Berzon dissented, joined by Chief Judge Thomas and Judges Fletcher, Murguia, and Nguyen.

It should not be news that a federal court of appeals sitting "en banc" has corrected an erroneous decision by a three-judge panel.  That's what the en banc process is supposed to do.  However, in the Court of Appeals for the Ninth Circuit it has long been rare that a rogue panel decision wrongly overturning a death sentence was even reviewed en banc, much less corrected.  At times, petitioning for such a rehearing has been considered such an exercise in futility that some AG offices would not even bother but would instead go straight the Supreme Court.  (The Supremes don't like that.)

Today we have the Arizona case of Eric Mann.  Mann baited two men to his house to sell them cocaine for $20,000, took the money, and then shot them both.

From the "interesting things stumbled upon while looking for something else" file is this article by Melvin Konner in the June 30 WSJ.

One of the most persistent and foolish myths is that people are naturally wonderful, and it is only society that screws them up.  A lot of wrongheaded notions on a variety of topics from parenting to crime control stem from this fallacious but widespread belief. 

The notion goes back at least as far as French philosopher Jean-Jacques Rousseau and his rhapsodizing about noble savages.  An earlier English philosopher, Thomas Hobbes, got it right when he said that life before civilization was "nasty, brutish, and short."  One common reason for it being short was other humans.  Konner's article describes the archaeological evidence.

People have to be taught and conditioned to respect the rights of others.  It doesn't come naturally.  Failure to properly civilize the young is the true primary "root cause" of crime, and the varying degrees of that failure in different subcultures is the primary reason for "disparities" in offending rates and incarceration rates.

This morning, the U.S. Supreme Court decided three consolidated cases involving the implied consent laws that all 50 states utilize in their efforts to combat the serious problem of drunk driving.  The implied consent laws imply a lawfully arrested motorist's consent to chemical testing as a matter of law and the state uses the test results as probative evidence of intoxication in a subsequent DUI prosecution.  Some motorists, usually repeat offenders, refuse requests for testing because they know that the Blood Alcohol Concentration ("BAC") results would impose harsher penalties than that of simply refusing a test.  The standard legal consequence in most states for test refusal is the suspension or revocation of a motorist's driver's license.  A refusal can also be admitted as evidence of intoxication in a DUI prosecution.  Based on recidivist drunk driver statistics, it does not matter if they have a driver's license or not.  The suspension or revocation of a driver's license does nothing to stop a person from drinking and driving if that person chooses to get into a car and drive while intoxicated.

Thirteen states gave some teeth to their implied consent laws and made it a crime to refuse testing.

The United States Supreme Court issued three decisions today, none with major implications.

In Puerto Rico v. Sanchez Valle, No. 15-108, the Court decided that the "dual sovereignty" exception to the Double Jeopardy Clause does not apply to Puerto Rico.  That is, a person who has already been prosecuted for a crime by the United States (in this case, ending in a guilty plea) cannot be prosecuted by the Commonwealth of Puerto Rico for the same crime.  The Commonwealth, unlike like a State, is a creature of the federal government, not a separate sovereign.  As decided, the case is more about Puerto Rico's status than it is about the Double Jeopardy Clause.  Justice Ginsburg, joined by Justice Thomas, concurs but would undertake a broader reexamination of dual sovereignty, another blow to the simplistic, one-dimensional model of categorizing Justices.

Williams v. Pennsylvania, No. 15-5040, involves Ronald Castille, the District Attorney of Philadelphia who became the Chief Justice of Pennsylvania.  As DA, he signed off on his office seeking the death penalty against murderer Terrance Williams.  The Court holds that his failure to recuse himself from the case as Chief Justice when it reached the Pennsylvania Supreme Court violated the Due Process Clause.  Opinion by Justice Kennedy.  Chief Justice Roberts and Justices Thomas and Alito dissent.

Court watchers will remember that in the first few years after Justice Kagan moved to the Court from the Solicitor General's office she recused in every federal case where her office had been involved, a large number of cases.

In Dietz v. Bouldin, No. 15-458, the court holds that a "federal district court has a limited inherent power to rescind a jury discharge order and recall a jury in a civil case for further deliberations after identifying an error in the jury's verdict."  Probably limited impact on criminal cases, but I thought it was worth noting here.

Va. GOP File Lawsuit to Block Felons from Voting:  Virginia Republicans filed a lawsuit Monday in the state Supreme Court to block over 200,000 felons from voting in November, arguing that Gov. Terry McAuliffe abused his power when he restored the voting rights of convicts with completed sentences.  Alanna Durkin Richer of CNS News reports that the lawsuit, brought by House Speaker William Howell and Senate Majority Leader Thomas Norment along with four other Virginia voters, argues McAuliffe's executive order violates the separations of powers by suspending the state's ban on voting by felons and ignores the decades-old practice of governors being able to restore voting rights only on a case-by-case basis. McAuliffe's announced the sweeping order last month, which allows an estimated 206,000 felons who have completed their sentences and any supervised release by April 22 to vote, run for public office, serve on a jury or become a notary public.

OK Considering New Execution Method:  The state of Oklahoma is seriously considering nitrogen hypoxia as its primary method of capital punishment in lieu of the current method of lethal injection, which has come under Grand Jury investigation in the state. Grant Hermes of News 9 reports that the method works by pumping pure nitrogen gas into a face mask or sealed hood of the individual being executed and cause death by lack of oxygen.  According to an unnamed doctor and unnamed professor who testified in front of the jury, nitrogen hypoxia would be "easy and inexpensive," "simple to administer" and "quick and seemingly painless."  The method was signed into law last spring as an alternate execution procedure.

More Gitmo Detainees Set to be Transferred:  The Obama administration is preparing the transfers of up to 24 Guantanamo Bay detainees this summer.  Catherine Herridge and Lucas Tomlinson of Fox News reports that the announcement of more transfers comes as President Obama continues progression towards closing the camp, so far reducing the population from 242 detainees to 80.  An official could not state confidently whether the countries receiving the detainees would keep them locked up or track them.  Republican Sens. Mark Kirk, of Illinois, and James Lankford, of Oklahoma, have introduced an amendment to hold countries that accept transfers accountable.

When cases with ugly facts reach the U.S. Supreme Court, they sometimes cause damage that lasts a very long time.  Foster v. Chatman, No. 14-8349, decided this morning, is a case with ugly facts.  How much damage it will do to states seeking to preserve their judgments in other cases where the defendant's collateral attack is much weaker remains to be seen.

At the root of this case is a horrible crime, with no real doubt that Foster committed it.  Not only did he confess, but the victim's possessions were recovered from his home and from the homes of his sisters, to whom he had doled out some of the loot.

Until 1986, there was no constitutional prohibition against the prosecution taking race into account in exercising its peremptory challenges in jury selection in individual cases, although a pattern of such use that had the effect of excluding black veniremen from jury service overall was actionable.  That changed when the Supreme Court decided Batson v. Kentucky.  The Foster case was tried only four months later.

A perennial problem in criminal law, and the closely related area of deportation for crime, is the fact that the laws of one jurisdiction must take into account crimes prosecuted under the law of another jurisdiction.  What do we do when the elements of the crimes don't match up completely?

Federal immigration law provides for deportation, with no exceptions and expedited process, for aliens who commit an "aggravated felony."  The principle is sound, but the definition of "aggravated felony" needs a lot of work.  Congress really needs to pay some attention to this.

The definition refers to a list of federal offenses, many of which have elements of effects on interstate commerce because in many cases the federal government does not have the authority to make an act criminal without such a connection.  If a person is convicted in state court of an offense which is the same except for the interstate commerce element, is that an "aggravated felony" for deportation purposes?  Yes, that's one of the easier questions in this area.

Justice Kagan wrote the opinion of the court in Luna-Torres v. Lynch, No. 14-1096 (5-3).  Justice Sotomayor, joined by Justices Thomas and Breyer, dissented.  They would apply the words of the statute literally. 

There is something to be said for the view that if Congress screwed up the wording, and it did, it's up to Congress to fix it.  Even so, this is a good result in the case and for the law generally.  Luna is an arsonist, and we don't need him in this country.

For many of us who were less than enthused to see Donald Trump win the Republican nomination, the general election choice nonetheless seemed to be a clear one based on the kinds of judges the respective nominees would appoint, especially to the Supreme Court.  The Trump campaign apparently wants to reinforce that point by releasing a list of possible Supreme Court appointments.  Bill noted the release a few minutes ago, and Jill Colvin and Mark Sherman have this report for AP.  The list is:

Steven Colloton of the Eighth Circuit (Iowa)
Allison Eid of the Colorado Supreme Court
Raymond Gruender of the Eighth Circuit (Mo.)
Thomas Hardiman of the Third Circuit (Penn.)
Raymond Kethledge of the Sixth Circuit (Mich.)
Thomas Lee of the Utah Supreme Court
Joan Larsen of the Michigan Supreme Court
William Pryor of the Eleventh Circuit (Ala.)
David Stras of the Minnesota Supreme Court
Diane Sykes of the Seventh Circuit (Wis.)
Don Willett of the Texas Supreme Court

I am not familiar with the jurisprudence of all 11, but I do think that William Pryor would make a very fitting successor to Justice Scalia.  Confirmation would be a bloody fight, but if we hold the Senate it is a fight we would win.

The larger question is whether Mr. Trump can and will pivot from the crass bluster that got him this far into a man of serious policy, capable of winning the general election and then being an effective President.  Many have serious doubts, but this looks like a good start.

The U.S. Supreme Court, 5-3, upheld a conviction for conspiracy to violate the Hobbs Act, the federal extortion law, in a case involving a kickback scheme in which crooked police officers referred damaged cars to a particular body shop in return for payments.  The case is Ocasio v. United States.

Justice Alito wrote the opinion of the Court, joined by Justices Kennedy, Ginsbury, Breyer, and Kagan.  Justice Breyer wrote a separate concurrence saying that a key precedent, Evans v. United States, may well have been wrongly decided, but since the defendant did not ask the Court to overrule it, he loses.  Justice Thomas would go ahead and overrule Evans.  Justice Sotomayor, joined by Chief Justice Roberts, would rule for the defendant without overruling Evans.

The next scheduled public session, and therefore the next likely day for release of opinions, is two weeks from today, Monday, May 16.

Laurence Steinberg isn't someone I agree with often, but he, Thomas Grisso, Elizabeth Scott, and Richard Bonnie have this op-ed in the NYT opposing the crackpot notion of raising the juvenile court jurisdiction age to 21.

The proposal to expand the jurisdiction of the juvenile system to age 21, in addition to being based on ambiguous science, would also create two potentially serious policy problems. First, just as the adult correctional system is ill equipped to respond to the needs of adolescents, the juvenile justice system is poorly positioned to handle young adults. It is hard to imagine a juvenile facility that could appropriately house 20-year-olds and 14-year-olds, or a juvenile justice staff whose training would allow it to work effectively with young adults. And because a disproportionate number of serious violent crimes are committed by individuals between 17 and 21, the juvenile system would be overwhelmed by the number of young adults it would need to process, and its rehabilitative purpose could be seriously undermined.

Second, the juvenile justice system interacts with several other health and child welfare systems. Those agencies have created relatively separate systems for serving children and adults, in part because of important differences between these two ages. For example, some mental illnesses arise only in young adulthood, and professionals have long specialized in providing services either to children and adolescents or to adults. Creating a juvenile justice system that works well for both adolescents and young adults would require significant (and costly) restructuring of many other agencies.

Street Behavior in SF Worsens, Stirs Debate:  San Francisco is feeling the ramifications of its liberal ethos that has turned the city into a "consequence-free zone," with crime increasing sharply and city officials divided as to how to address it.  Thomas Fuller of the NY Times reports that since 2010, property crime in the city is up more than 60% and recent data shows it has the highest per-capita property crime of the nation's top 50 cities.  Nearly half of the cases are smash-and-grabs from vehicles.  Violent crime has also spiked 18% since 2010.  The city "is now divided over whether to respond with more muscular law enforcement or stick to its forgiving attitudes."  While the Chamber of Commerce and city tourist board call for harsher measures to improve the "condition of the streets" -- homelessness, public intravenous drug use, aggressive panhandling and the large population of mentally ill on the streets -- others criticize such solutions as a "punitive approach that is ineffective and inconsistent with the values of San Francisco."  However, despite the traditional "values of San Francisco," a recent Chamber of Commerce poll shows that the primary concern of the city's residents is the spike in "street behavior."

Lawyers Seek Clemency For GA Murderer:  Attorneys for a Georgia death row inmate set to die this week have filed a clemency petition asking the state parole board to spare his life.  The AP reports that Georgia's State Board of Parole and Pardons, the only entity authorized to commute a death sentence, will hold a clemency hearing Tuesday for 37-year-old Daniel Anthony Lucas, a convicted murderer scheduled to be executed on Wednesday.  Lucas was sentenced to death for the 1998 murders of a 37-year-old man and his two children, aged 11 and 15, who interrupted him and another man, Brandon Rhode, while they burglarized their home.  Lucas, then 19, received the death penalty for the slayings, as did Rhode, who was executed in September 2010.  Lucas' lawyers argue that his childhood was troubled and plagued by drugs and abuse, and his status as a model inmate should exempt him from the death penalty.  If his execution is carried out this Wednesday as scheduled, it will be the fifth in the state this year.

Steady Increase of Illegals an Omen of the Surge to Come:  Apprehensions of illegal immigrants at the southern border increased last month after a winter lull, and authorities are expecting the numbers to steadily rise during the summer.  Molly Hennessy-Fiske of the LA Times reports that the Border Patrol saw a 28% increase in illegal border crossers from February to March of this year, with a total of 33,335 people caught in March compared to 26,076 in February.  Of those apprehended, 4,452 were families traveling together, 46% more than the month before, and 4,240 were unaccompanied minors, 37% more than the month prior.  The figures reported are higher than in 2014, when a surge of Central American migrants prompted crisis-level emergency measures.  Last month, Homeland Security Secretary Jeh Johnson touted a month-to-month decrease in migration during the winter, attributing the decline to stepped-up enforcement, but the recent influx indicates it was likely seasonal.  This article authored by Breitbart's Brandon Darby and Bob Price delves deeper into the dangers of illegal immigration and the consequences of an open border.

A mostly off-topic note on yesterday's apportionment decision, Evenwel v. Abbott.

Today the U.S. Supreme Court decided Luis v. United States, No. 14-419.  Justice Breyer's plurality opinion begins:

A federal statute provides that a court may freeze before trial certain assets belonging to a criminal defendant accused of violations of federal health care or banking laws. See 18 U. S. C. §1345. Those assets include: (1) property "obtained as a result of " the crime, (2) property "traceable" to the crime, and (3) other "property of equivalent value." §1345(a)(2). In this case, the Government has obtained a court order that freezes assets belonging to the third category of property, namely, property that is untainted by the crime, and that belongs fully to the defendant. That order, the defendant says, prevents her from paying her lawyer. She claims that insofar as it does so, it violates her Sixth Amendment "right . . . to have the Assistance of Counsel for [her] defence." We agree.

Justice Thomas concurred in this result, making the decision 5-3.

With which political party do black lives matter?  It has to be the party that elected Maxine Waters, Charles Rangel, Elijah Cummings to Congress and the first black President, Barrack Obama.  It is no mystery that Jessie Jackson and Al Sharpton are Democrats.   But which political party supported the Eugenics movement, which sought to cull inferior breeds, including blacks, from the world's gene pool, spawning Planned Parenthood?   Which political party filibustered to block adoption of the Civil Rights Act of 1964, and which delivered the highest percentage of votes to finally allow its passage?  And what party's criminal justice policies have saved the most black lives?  Thomas Sowell answers these questions in this column from the Press Enterprise. 

The Federalist Society's Criminal Law Practice Group reports:

In a per curiam opinion, the Court vacated and remanded a decision by the Supreme Judicial Court of Massachusetts that upheld a state law prohibiting the possession of stun guns after considering "whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment." The Court held that the state court's opinion directly contradicted DISTRICT OF COLUMBIA v. HELLER (2008), in which the Court held "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." Alito, joined by Thomas, concurred in the judgment, noting that "[t]he lower court's ill treatment of HELLER cannot stand."

I see that Kent and Bill have posted their thoughts on the nomination of Judge Garland to replace Justice Scalia's seat on the Supreme Court.  Here are a few thoughts of my own.

 

It's often said that the Supreme Court is above the political fray that seems to consume so much of Washington.  But anyone who's paying attention knows that's just not the case.  For better or worse (certainly worse) the federal courts of our nation, and the Supreme Court most noteworthy, are modern political animals.  There are many reasons for this plain fact, including the vast regulatory nature of our country and the lifelong tenure that federal judges enjoy.  But, by far, by a country mile (to borrow a Bill Clinton expression), the central reason is that the courts have become the central stage where social change occurs; or rather is mandated on the populace instead of through the deliberative legislative process enshrined by our Constitution. 

There is no denying it, the Supreme Court is a political entity and should be subject to the political process most harmonious with a democratic republic:  The election of a president, which will take place in a short seven months.   Some might say that even if the Court is captured by politics we ought to try to keep it from becoming engulfed by partisan politics.  That train left the station when Judge Bork was denied his seat at the table and was out of sight when Justice Thomas endured his confirmation hearings.   When a government entity has the power to create rights not found in the constitution without any input from the electorate, it has become the most powerful government actor.  Not subjecting it to the political process makes it invincible.

I also share Kent's disappointment that if Judge Garland is successfully confirmed the Court will be comprised exclusively of graduates from two of the most elite law schools in our nation.  As a graduate of both SUNY Buffalo law school and Harvard law school I find it striking that it is assumed by so many that only a graduate of an elite school is qualified for the high court.  As best as I could discern, the main difference between these two institutions was money and political connections; not the acumen of the students.  The sterility that infects the legal academy is largely the result of the fact that so few schools are willing to consider anyone who is different than what they are accustomed to; whether that's political ideology, life experience, age, or most certainly, pedigree.   Whoever is confirmed next to the Court, I sure hope it's someone who's a bit different than what we already have who can bring a fresh perspective to the Court. 

Well, so much for predictions.  Merrick Garland was not the expected choice of many of those venturing a prediction.  Tom Goldstein had this handicapping at SCOTUSblog, and that blog's series of profile posts on potential nominees had not gotten around to Garland by announcement day.  Here at C&C, Bill Otis had this post early this morning.

I was hoping for a diversity pick.  Alas, confirmation of Judge Garland would leave us with nine Justices all of whom went to Harvard or Yale.

I have been browsing Judge Garland's criminal and related opinions and haven't found anything noteworthy either way yet.

Should the Senate confirm him?  Should Republicans even allow the machinery to start?

A "no" answer is, in effect, doubling down on the election.  A victorious President Hillary Clinton would likely nominate someone further into left-wing judicial activism, making the Scalia->X transition a even larger shift than the Marshall->Thomas transition, currently the largest single-appointment shift in modern history.  A victorious Republican candidate would likely appoint someone more aligned with Justice Scalia's views.

Is this a good hand to double down on?

Probably the leading spokesmen for sentencing "reform" are no longer on the Left  -- the Left having shown (in fits and spurts) that it realizes lower sentencing will produce more crime, but believing that Amerika has it coming because of its racist, classist, sexist and otherwise Really Mean ruling class.  The class consists of people like Mitch McConnell, Jeff Sessions, Tom Cotton, Clarence Thomas, Thomas Sowell, Heather MacDonald and anyone else who didn't have a poster of Che Guevara hanging in his or her dorm room. That the victims of increased crime are certain to be disproportionately minorities never seems to register with the Left.  I guess Black Lives Don't Matter that much.

Rumor has it that the Obama White House wants to nominate a successor to Justice Scalia who would be hard for Republicans to oppose.  One name that has been floated is Judge Jane Kelly of the Eighth Circuit.

Thomas Hopson has this post at SCOTUSblog.  He lists five capital cases that Judge Kelly participated in.  They are all cases decided en banc or denying rehearing en banc with a dissent.  In every one of five cases, a large majority of the court decides against the murderer or decides not to review a panel decision against the murderer, and in every one Judge Kelly joins the dissent.

While an honest judge faithfully applying the law may occasionally need to reverse a conviction or sentence or stay an execution in a case that has completed the full review cycle, these are the exceptions.  Most cases that have reached this stage are sound judgments, and execution should go forward.  A judge who votes this consistently for the murderer in cases where large majorities go the other way almost certainly has an agenda and is willing to bend the law in the murderer's favor to advance that agenda.  That willingness is disqualifying.

What kind of Bizarro World are the folks in the White House Counsel's office living in that they think a judge with this kind of record would be difficult for Republicans to oppose?

The facts that Senator Grassley supported her for the Eighth Circuit or that she was easily confirmed for that seat are now irrelevant.  She didn't have that record then, and in any event there is a fundamental difference between an intermediate appellate court and a court of last resort.

The U.S. Supreme Court summarily reversed a Louisiana state court's denial of habeas corpus relief to Michael Wearry, an inmate on that state's death row.

Generally, if one has prevailed in a lower court and wants the U.S. Supreme Court to deny review, arguing that the case is "fact-bound" is a good bet.  The Supreme Court's "reason for being" is to settle broad questions of law on which other courts disagree, not to police case-specific application of settled law to particular fact patterns.

In this case, Wearry claims he actually didn't do it, and he is one of the rare death row inmates with a "colorable claim" to that effect, to use Judge Friendly's famous term.  The specific constitutional violation claimed is that the prosecution failed to disclose exculpatory evidence.  The "application of law to fact" question is whether that evidence is "material," defined "new evidence [that] is sufficient to 'undermine confidence' in the verdict."  (See p. 7 of the slip opinion.)

Justice Alito, joined by Justice Thomas, finds summary disposition "highly inappropriate" and calls for the case to be given full briefing and argument instead.

This is the kind of case that should not have been capital in the first place.  In my opinion, trial prosecutors should not seek the death penalty in any case where the evidence of identity of the perpetrator is such that a jury would have any difficulty at all finding that the proof is beyond a reasonable doubt.  More discretion here would avoid a host of problems, and most prosecutors' offices do, in fact, screen out cases on that basis.

In our increasingly uncivil times, we have an example of how people can disagree, sometimes passionately, and still be friends.  Adam Liptak has this story in the NYT on the memorial service for Justice Scalia, and at the top is a touching video of Justice Ginsburg's tribute.

Justice Thomas also has a nugget for us:

But once, Justice Scalia was harshly critical of an important precedent. "'Just a horrible opinion,' he said. 'One of the worst,'" Justice Thomas related. It fell to Justice Thomas to break the bad news: "Nino, you wrote it."

Josh Blackman and Ilya Shapiro have this op-ed with the above title in the WSJ.  They recount the history* of Supreme Court vacancies and note that the Court has managed with short-handedness before.  A few cases are affirmed 4-4 without setting a precedent and a few are deferred for decision later, but there is no large-scale disruption.

One of the cases which may well be affected in the present term is Utah v. Strieff.  This is a Fourth Amendment case that could be decided on narrow grounds by applying existing "attenuation" case law to the facts of the case, or it could be a vehicle for the Court to take a bolder step to take another sizable chunk out of judicially fabricated Fourth Amendment exclusionary rule.  Orin Kerr had this preview on SCOTUSblog on February 3rd, before Justice Scalia's death.  CJLF's brief urged the bold approach, taking an originalist viewpoint that would have been right up Justice Scalia's alley. 

Alas, the argument on Monday lacked Justice Scalia's unique contribution.  The six Justices who spoke seemed divided 3-3.  Justice Thomas was characteristically silent, and Justice Breyer was uncharacteristically silent.  What to make of the latter?  We will have to wait and see.

A perfect example of the wrong way to think of the Supreme Court comes to us from President Obama's former White House Counsel.  Kathleen Hennessey and Mark Sherman report for AP:

"The Supreme Court has not reflected where the American people have been on issues," said Gregory Craig, who served as White House counsel early in Obama's first term. "This is the first opportunity in many, many years to bring the court more in line with the American people."

In this way of thinking, the Supreme Court is nothing but a third house of the legislative branch.  It's job is to take the pulse of current public opinion and be "in line" with current views, declaring as a constitutional mandate whatever that current view is.

That is not how it is supposed to work.  Fundamental rules are written into the Constitution when they are agreed by a strong national consensus to be so fundamental as to place them beyond the short-term reach of ordinary legislation.  They can be changed when (and legitimately only when) a strong enough consensus to the contrary has formed to clear the high hurdle for a constitutional amendment under Article V.

Bill noted yesterday the sudden death of Justice Antonin Scalia.  His passing is a great loss to the country and the Constitution.

The Great Question of constitutional law is not hard to state.  Is the Constitution a contract between the people and their government, with the power to change its terms reserved to the people, or is it an empty vessel for five unelected, unaccountable justices to pour their policy preferences into?

Legitimate judicial review is to prevent the legislature from crossing a line that the people wrote into the Constitution.  Illegitimate judicial review is creating lines that the people did not write into the Constitution, striking down laws enacted by the people's representatives or by the people themselves on a pretense that they violate the Constitution but actually just because the judges disagree with the people -- "substitute their own pleasure to the constitutional intentions of the legislature," as Hamilton put it in Federalist No. 78.

There are two primary dangers in appointing Justices to the Supreme Court:  appointing people with views on the wrong side of the Great Question and appointing people who have not thought much about it at all.