Crime and Consequences Has Moved

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Effective New Year's Day 2020, the Crime and Consequences Blog has moved to

The old blog will be left in place at this address as an archive of posts from the blog's inception in 2006 through the end of 2019.

Abolish the Police?

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Some ideas of the soft-on-crime crowd are simply misguided, but some are so bizarre as to make one question their sanity. Christopher Rufo has this article in the City Journal, with the above title, on one of the latter variety.

News Scan

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CA Has The Most Porch Pirates:  Three of the top ten regions with the most porch piracy are in California according to SafeWise, a national security system rating company.  Julia Barajas of the Los Angeles Times reports that the San Francisco metro area ranks #1 in the nation for its level of packages stolen off of porches.  The Los Angeles metro area ranked 9th, while the Sacramento metro area 10th.  The other regions in the ranking were Salt Lake City, Portland, Oregon, Baltimore, Seattle-Tacoma, Chicago, Austin, Texas and Denver.  What other factors link these places?  Well, the entire state of California has embraced sentencing reform, essentially decriminalizing theft and drug use.  Seattle, Baltimore, and Chicago have also weakened the penalties for so-called "low level" property crimes and drug use.  The Mayors of each of the cities belong to the same political party as are all of the governors of their home states but Texas and Utah.  As reported earlier, the progressive Mecca of San Francisco has the highest per-capita level of property crime of the nation's 20 largest cities.    

Most Alabama Officers Killed in Three Decades:  2019 was a deadly year for police officers in Alabama with six officers shot and killed by criminals.  The Associated Press reports that the total was the highest for the state since 1987.  Five of the six officers were killed with stolen guns. "None of the guns were in the hands of people who should have had them," according to the head of the state's ATF bureau.  A seventh Alabama officer died in a car crash while responding to a burglary.  Nationally, 128 police officers have been killed in the line of duty over the first 51 weeks of 2019.   
California, like many states, has a mandatory reporting law that requires various people to report child abuse or neglect when it comes to their attention. The Child Abuse and Neglect Reporting Act stems from a law enacted in 1980. It was amended and renamed in 1987.

Among the mandatory reporters are mental health professionals. In 2014, the law was amended again to include, among others, persons who download or stream videos "in which a child is engaged in an act of obscene sexual conduct."
The notorious Dean Carter is on deck to join the ranks of exceptionally vicious murderers spared from their full punishment by Cal. Gov. Newsom's misuse of the reprieve power. A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit today affirmed the rejection of his collateral attack on his convictions and sentences in two counties for four murders and three rapes, aggravated by two other rapes and another murder.

News Scan

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The Cost of Being Hip:  While there are violent killings in many parts of America every day, generally the ones that make the national news involve celebrities or their families.  Last week an habitual violent felon was arrested for murdering the brother of the backup quarterback for the San Francisco 49ers and another young man in front of a bar in Nashville.  Paul Mirengoff reports on Powerline that the accused murderer, Michael Mosley, had multiple convictions for drugs and property crimes before graduating to violent offenses including a 2015 stabbing conviction and arrests last year for domestic violence and assault.  How is it that a ticking timebomb like Mosley, who in years past would have been sent back in prison for his continued violence, was armed with a knife and free in Nashville to commit a double murder?  Recent sentencing reform policies designed to empty out prisons and jails have been embraced by politicians looking to challenge the old fashioned approach to habitual criminals which removed them from law abiding society.  As Mirengoff, notes, this hip new trend is not just evident in liberal states such as  California, New York and Washington, but is also being promoted by Republican Governor Bill Lee in Tennessee.  Sadly, everything is new to those who do not know history.  Hat tip to Hans Bader for this story.              


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All I want for Christmas is to stop the damn robocalls.

Congress passed the Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act last week, and the President is expected to sign it. Ryan Tracy and Sarah Krouse report for the WSJ on what the act will and won't do.

Venue at 30,000 Feet

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The Ninth Circuit has granted rehearing en banc in an interesting venue case, United States v. Lozoya, No. 17-50336. The panel decision is here. The case involves a charge of misdemeanor simple assault occurring somewhere over the Great Plains on a flight from Minneapolis to Los Angeles. A garden-variety dispute between passengers escalated to a physical blow.

Where should this case be tried? (Sounds like a law school exam question.) It is more complicated than you might think.

News Scan

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South Dakota Upholds Death Sentence:  In a decision announced last week, the South Dakota Supreme Court upheld the death sentence given to an Alaska man convicted of a 2000 torture and murder during a burglary.  The Associated Press reports that, hoping for sympathy from the court, Briley Piper plead guilty to the kidnap and brutal torture murder of Chester Poage in a remote area outside of Spearfish, North Dakota.  Piper and two accomplices were high on drugs when they decided to burglarize Poage's home on March 12, 2000.  The trio attacked Poage, beating and kicking him, then forcing him to drink a mixture of pills and hydrochloric acid.  They then stripped him naked and buried him in the snow.  But Poage was still alive and attempted to escape.  The murderers then threw their naked victim into a creek and stabbed him multiple times as he begged for his life, finally killing him by smashing his scull with a bowling ball sized rock.  A more complete discussion of the facts is provided in the direct appeal here.  In his second state habeas corpus petition Piper argued that his guilty plea was involuntary and that his attorney was incompetent.  The court unanimously rejected those claims
In 1985, the Supreme Court decided that a police officer's use of a level of force that the Court deemed excessive--despite being authorized by state law and consistent with a rule going back to the common law and widely adopted by the states--was an "unreasonable seizure" in violation of the Fourth Amendment. The case was Tennessee v. Garner, 471 U.S. 1. Under that case and its progeny, before a federal court can get into the question of how much force is "reasonable" it must first find a "seizure."

In a nutshell, a person is seized if either (1) he is physically stopped by the police action, or (2) he stops in obedience to the police show of authority. CJLF last briefed this issue in the Eighth Circuit case of Johnson v. Ferguson. See our brief and the post on the decision.

Yesterday, the Supreme Court took up a case presenting this issue, Torres v. Madrid, No. 19-292.

USCA9 Judges Getting Testy Over AEDPA

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As we have noted on this blog multiple times, the Supreme Court has often (and correctly) rebuked the Court of Appeals for the Ninth Circuit for failure to follow the standard for reviewing state criminal judgments prescribed by Congress and elaborated by the Supreme Court. A growing minority of judges of the Ninth Circuit itself are rebuking their colleagues on the same point, and the dispute is getting increasingly strident. Here is the opening of the dissent from denial of rehearing en banc in the Arizona capital case of Kayer v. Ryan, No. 09-99027:
California's Legislative Analyst's Office issued this report with the above title yesterday.

Proposition 64 (2016) directed our office to submit a report to the Legislature by January 1, 2020, with recommendations for adjustments to the state's cannabis tax rate to achieve three goals: (1) undercutting illicit market prices, (2) ensuring sufficient revenues are generated to fund the types of programs designated by the measure, and (3) discouraging youth use.... While this report focuses on cannabis taxes, nontax policy changes also could affect these goals.
The Foreign Intelligence Surveillance Court today issued this order regarding the revelations on the FBI's conduct in the Carter Page matter.
U.S. Attorney General William Barr has this op-ed, with the above title, in the New York Post.

Serving as a cop in America is harder than ever -- and it comes down to respect. A deficit of respect for the men and women in blue who daily put their lives on the line for the rest of us is hurting recruitment and retention and placing communities at risk.

News Scan

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Tool Box Killer Dies in Prison:  Lawrence Bittaker, California's notorious "tool box killer" died of natural causes on death row according to corrections officials.  The San Jose Mercury News reports that Bittaker, who was the ringleader, and an accomplice kidnapped, raped and tortured five teenage girls along the California coast over a span of five months, from June to October 1979. The victims, some of them hitchhikers, ranged from 13 to 18 years old and were from Los Angeles County's South Bay, Long Beach and San Fernando Valley.  Bittaker and the accomplice were tagged as the "tool box killers" because Bittaker would use hand tools such as vice grips, hammers and ice picks to torture the girls before they were killed.  He tape-recorded the torture and murder of 16-year-old Lynette Ledford, which he later called "pillow talk."  Jurors cried during the trial when that tape was played.  It took only 15 minutes for the jury to return a death sentence, yet Bittaker's claims against his sentence for these horrific crimes has been languishing in a federal district court for decades.  Veteran prosecutor Stephen Kay told reporters "I'm upset that he beat the system. He died a natural death, something that his victims didn't have a chance for. They had their whole lives ahead of them; they never got to get married, have children or grandchildren."     
        This morning the California Supreme Court issued its opinion in People v. Arredondo (S244166).  Arredondo was convicted of 14 sex offenses against his three young step-daughters.  He had been repeatedly molesting them over an 8 year period. It finally came to an end when he inappropriately touched one of the victim's friends on multiple occasions.  She told a school counselor of the abuse which lead to Arredondo's arrest.

At trial, the oldest victim was 18-years old and in the 11th grade.  He started molesting her when she was 8-years old and it ended when she was 16-years old.  When she took the stand to testify against Arredondo, she started crying and had a very hard time continuing with her testimony.  The court took a recess so that she could compose herself.  During the recess, the witness box was slightly modified so that a small computer monitor located on the witness stand was slightly elevated so to block her direct view of Arredondo.  Arredondo objected and argued that the modified witness box violated his 6th Amendment right to confront witnesses against him.  The trial court disagreed and overruled the objection.  The monitor remained elevated and Arredondo was subsequently found guilty.

USCA1 Hears Boston Marathon Bomber Case

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The U.S. Court of Appeals for the First Circuit heard oral argument today in the case of the surviving Boston Marathon Bomber, Dzhokhar Tsarnaev. Jon Kamp has this report for the WSJ. Looks like the main issues are change of venue and jury selection. There is also an argument about the defense's attempt to introduce evidence implicating the older brother in another murder, but the probative value of that seems quite weak.

Kentucky Pardons

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The worst abuses of the pardon power generally occur in the "lame duck" period between the election and the change of officeholders. Hans Bader has this commentary at CNS News. "In his last days in office, Kentucky Governor Matt Bevin pardoned some of Kentucky's worst murderers. Among those he released from prison was a convicted killer whose brother was a big campaign donor."
Today, the U.S. Supreme Court heard oral argument in the case of McKinney v. Arizona, No. 18-1109. The transcript is here.

Regrettably, an essential issue in the case was barely mentioned. The attorney for McKinney said, "This Court's decisions in Ring and Hurst require a jury sentencing." That is wrong, yet the attorney for Arizona completely failed to challenge it. The consequences could be catastrophic.

Gascon's Gamble

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Former San Francisco District Attorney George Gascon resigned that office a few months ago to run for District Attorney of Los Angeles County.  Gascon bills himself as a criminal justice reformer who would presumably bring to the Los Angeles DA's office the same enlightened approach he brought to San Francisco.  Former San Francisco Deputy District Attorney Nancy Tung, who left the office in 2017 and ran to replace Gascon after he resigned, has this piece in the the Los Angeles Association of Deputy District Attorneys blog.  Tung was a Deputy DA when Gascon was appointed SF Police Chief in 2009 and served under him for six years after Mayor Newsom appointed him acting DA when Kamala Harris left the office to serve as California Attorney General.  Although he had never tried a civil case or prosecuted a criminal, upon his appointment Gascon told reporters that he believed that his organization skills and understanding of the criminal justice system qualified him to run a prosecution agency.  Under his management, Tung writes that the office became demoralized and began to lose prosecutors to other agencies. 

On Friday, the murderers on federal death row won what may have been a Pyrrhic victory. The high court declined to stay or vacate the injunction against their execution. See prior posts here and here. However, the Court signaled its expectation that "the Court of Appeals will render its decision with appropriate dispatch." There is also an opinion "respecting the denial of stay or vacatur" by Justice Alito joined, significantly, by the two junior Justices. Today it is clear that the D.C. Circuit is paying attention.

Professor Joseph Bessette of Claremont McKenna College has this article in The Public Discourse reviewing Rachel Barkow's book, Prisoners of Politics: Breaking the Cycle of Mass Incarceration. Bessette notes that Barkow's prescriptions are largely anti-democratic, seeking to take sentencing law decisions away from the people and assign them to "experts." However, the current system is not, on the whole, sentencing criminals to more than they deserve.

News Scan

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Hate Crimes and Hoaxes:  For several years we have seen reports indicating that hate crimes have been increasing across America.  Some on the left have attributed this to President Trump and his "white nationalist" supporters.  Peter Jamison of the Washington Post reports on a the charge by some conservatives that many incidents that are initially identified in the media as hate crimes turn out to be hoaxes.  Criminologist Brian Levin, a professor at the Center for the Study of Hate and Extremism at Cal State San Bernardino, estimates that about .5% of reported hate crimes are false.  Professor Wilfred Reilly of Kentucky State University believes that roughly 15% of hate crimes reported to the FBI are fabricated.  Reilly, who is black, notes that the media plays a role that furthers the narrative of increasing hate crimes, by identifying incidents as hate crimes before the facts are known.  He cites news stories speculating that toppled tombstones at a Jewish cemetery outside of Philadelphia was a hate crime when it turned out to be just age and landscaping, or the discovery of a noose at a D.C. construction site that turned out to be just a rope used to move equipment.  The story identifies other widely-reported incidents of hate crimes which were later determined to have been staged by the alleged victim.  "The problem you run into is the perception," said a Mississippi Fire Marshal.  "Once it gets on the news as racially motivated, and then they do a retraction three days later in small print---nobody notices that."       

News Scan

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CA Car Burglaries Surging: An article in The Los Angeles Times reports that current California law appears to be encouraging increases in car burglaries.  Under existing law, the value of items stolen from a car must be $950 or more to qualify the crime as a felony and current law also requires the victim to present proof that the car was locked.  As one lawmaker noted, "It's ridiculous that under current law you can have a video of someone bashing out a car window, but if you can't prove that the door was locked you may not be able to get an auto burglary conviction." This is a statewide problem and in the past few months it has gotten worse. Data shows that there were 243,000 automobile burglaries across California last year.  Though the number of car break-ins was higher during the peak year of 2017.  San Francisco saw car burglaries spike by 24% from 2016 to 2017. So far this year, the numbers remain on track to be higher than pre-2017.  Other Bay Area cities experienced similar increases in recent years. From 2016 to 2018, San Jose experienced a 20% increase in car break-ins, according to a recent report by the San Jose Mercury News.  The good news for proponents of sentencing reform is that fewer criminals are in prison.  The bad news for the rest of us is that more criminals are free on the streets committing crimes.

Once again, we see a tragic demonstration that leniency to the evil is cruelty to the innocent. Usman Khan stabbed five people, killing two of them, on London Bridge last week. Jason Collie reports for the Evening Standard that Khan had been convicted of terrorism offenses in 2012. He "originally received an indeterminate sentence for public protection but this was quashed at the Court of Appeal in April 2013 and he was given a determinate 16-year jail term." "He was released from prison in December 2018 on licence ...."

Last week I noted the dubious opinion of the U.S. District Court in D.C. halting federal executions. Yesterday, a three-judge motions panel of the U.S. Court of Appeals for the D.C. Circuit denied the Government's motion to stay or vacate. The panel gave only an explanation of only one sentence plus citation, inadequate for the seriousness of the matter: "Appellants have not satisfied the stringent requirements for a stay pending appeal. See Nken v. Holder, 556 U.S. 418, 434 (2009); D.C. Circuit Handbook of Practice and Internal Procedures 33 (2018)."

As expected, the Government has taken the case to the Supreme Court, Barr v. Roane, No. 19A615.

As a matter of procedure, the petition is submitted to Chief Justice Roberts, the designated Circuit Justice for the D.C. Circuit, but the Circuit Justice invariably refers capital case stay petitions to the full court, except in emergencies.

News Scan

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Illegal Pot Farms Damaging the Environment:  With illegal marijuana farms flourishing across California, scientists are finding that they are having a serious negative impact on the environment.  Christopher Weber of KCRA News reports that after two men were arrested for illegally growing around 9,000 marijuana plants on public land known as Emerald Triangle in Northern California, state authorities found an illegal and highly toxic rodenticide, which could kill a 300 lb. bear, along with piles of trash. Following discovery of Carbofuran which is a banned neurotoxicant that is used to kill rodents on illegal pot farms, scientists warn that it could completely destroy the wildlife population near an illegal grow.  The trash left at the sites, which include food containers, attract animals who ingest the rat poison and fertilizer, which are also being found in streams near the farms.  Illegal pot farms have increased since the legalization of marijuana, with and estimated sales of $9 billion compared to $3 billion for legal market.  The state recently decided to raise taxes on legal marijuana on January 1, which will encourage further expansion of the illegal market. 
It would be an unusual case where a teenager as young as 14 should be charged in adult court, but unusual is not the same as never. In 2016, the people of California decided by direct vote that the decision as to whether to charge teens in the 14 to less-than-18 age range in adult court should be made by a judge and not the prosecutor. Okay, that's democracy.

Can the Legislature then strike the balance in a different place and decide that teens a day or more short of their 16th birthday can never be charged in adult court no matter how depraved their crimes? The California Court of Appeal for the Second District said no in O.G. v. Superior Court, No. B295555.

Manner v. Method of Execution

Last week, Federal District Judge Tanya Chutkan issued a preliminary injunction preventing the U. S. Attorney General from carrying out executions for federal capital crimes. DOJ promptly appealed. See this story in the WSJ by Jess Bravin and Sadie Gurman.

The slender reed on which this injunction rests is Congress's use of the word "manner" rather than "method" in adopting the way executions are carried out in states.

News Scan

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Several Illegals Arrested for Murders:  A illegal alien was arrested last week for the murder of an Anaheim man.  Police found the body of Adrian Bonar in the trunk of a car in October.  Dave Gibson of the Mercury News reports that following the arrest of Antonia Lopez Silva for kidnapping, police linked him to Bonar's murder.  While arresting Silva, officers found four pounds of fentanyl, four guns and a male hostage.  In 2014,  Silva plead guilty to raping a 12-year-old girl and received a one-year sentence. KPTV reports that an illegal alien has been arrested for murdering his former employer in the Oregon town of Wilsonville.  Camilo Santiago-Santiago was charged with second-degree murder for gunning down Carl Hellinger on the morning of November 18.  Santiago led police on a chase as he fled the scene.  He was arrested after he turned his vehicle onto a dead end road.  He had three firearms in his possession when arrested.  Fox news reports on the arrest of illegal alien, Nemias Perez Severiano for the hit and run killing of a 67-year-old veteran in Norristown, PA last Tuesday.  The defendant reportedly hit Samuel Jackson with his car, dragging him 50 feet before he fled.  Severiano, a Mexican citizen, was driving without a license and admitted drinking seven or eight beers before getting behind the wheel.    

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