With no votes to spare, the Nebraska legislature overrode the Governor's veto, and its bill abolishing the death penalty became law.

This is an unwise decision, for reasons noted many times on this blog.  In some ways, however, it makes little practical difference; Nebraska had executed a grand total of three convicts in the last fifty years.  In that sense, the legislature abolished what was barely there anyway.

Still, the decision has moral consequence  --  so much so that, in my view, the voters should pass on it themselves, as Oregon voters did in both the general elections of 1978 and again in 1984 (the latter to effectively overrule a state Supreme Court decision that invalidated the state's death penalty statute).  The people of California also voted to retain the death penalty in the 2012 election, despite its costs and a well-financed (and deceptive) campaign against it.

The voters should have the last say, and I hope Nebraska law provides them a way to get it.

[UPDATE:  Nebraska citizens do, in fact, have the ability to repeal the death penalty abolition bill by referendum,

http://ballotpedia.org/Laws_governing_the_initiative_process_in_Nebraska].

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Federal Appeals Court Refuses to Lift Immigration Hold:  A request from Justice Department lawyers allowing President Obama to enforce his immigration actions pending appeal has been denied by a federal appeals court.  Ariane de Vogue of CNN reports that the decision, a victory for 26 states that have challenged the president's executive actions, means that "eligible undocumented immigrants will be unable to apply for the programs aimed at easing deportation threats."  Lawyers for the Justice Department and the White House are evaluating the ruling together to determine the next steps.

Taliban 5 Free to Travel Soon:  The five leaders of the Taliban traded one year ago for Sgt. Bowe Bergdahl and under heavy supervision in Qatar ever since, are approaching the end of their terms for supervised release and could be free to travel as early as Monday.  Fox News reports that the Obama administration has discussed extending the security measures for the "Taliban 5" with Qatari officials, but "it's unclear if any restrictions will remain in place after the end of the month."  Congressional lawmakers are concerned that the former Guantanamo detainees will rejoin the battlefield in Afghanistan.  In March, a government official revealed that at least three of the five members have tried reconnecting with their former terrorist networks.

Shooting Spree at ND Wal-Mart:  A North Dakota Wal-Mart Supercenter was the scene of a shooting early Tuesday when a U.S. airman opened fire with a handgun inside the store, killing one worker and injuring another before killing himself.  The AP reports that 21-year-old Marcell Willis, an airman stationed at the Grand Forks Air Force Base located about 12 miles west of the Wal-Mart, has no known connection to any of the victims.  Law enforcement says that at this time, Willis' motive is unknown.

Tougher Punishment for Child Porn Offenders:  New York state Senator Tim Kennedy has introduced legislation that would toughen the penalties for those in possession or in promotion of child pornography, increasing the maximum jail time from four years to seven.  Katie Gibas of Time Warner Cable News reports that Kennedy and law enforcement officials emphasize the necessity of stiffer penalties for such offenders because "up to 40 percent of criminals arrested for child pornography have also personally victimized a child."  Kennedy is confident the legislation will be approved.

Crime Spike in NYC Tourist Areas:  Shootings and murders are up in New York City, spilling over from outer boroughs to Manhattan tourist areas.  Juliet Papas of CBS reports that Mayor Bill de Blasio believes that gang-on-gang crime is to blame for the spike, but former FBI agent and NYPD sergeant Manny Gomez says that the upswing in violence "gives us pause to believe there is something that is just not right in the city's policing system right now."  Popular tourist spots in the city, such as Radio City Music Hall's area of Midtown North Precinct, have seen murders increase 28.6 percent, while robberies in Central Park are up 125 percent.

FIFA Officials Indicted by US:  Fourteen world soccer leaders, including officials from the international Federation of Football Associations (FIFA), have been charged by the U.S. with racketeering, bribery, money laundering and fraud, revealed in a 47-count indictment from the Justice Department.  Michael E. Miller and Fred Barbash of the Washington Post report that the allegations involve "kickbacks" to FIFA officials by sports marketing executives and companies, and bribes in connection with both the selection of the 2010 World Cup's host country and FIFA's presidential election in 2011.  Four of the accused have already pleaded guilty of the charges.

The John Doe Murderer

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Pseudonyms such as "John Doe" are sometimes used in court cases, usually to protect the innocent.  The Ninth Circuit recently issued an opinion in a capital case in which it referred to the murderer as John Doe, supposedly to protect him from victimization within prison.

But anyone who wants to know the name of the perp can find out easily.  Here are the first two paragraphs of the opinion from March 31:

In 1984, a house in California was burglarized and a number of items were stolen. K.H. and M.H. resided there with M.H.'s young children, a live-in babysitter, L.R., and her daughter. Petitioner John Doe,1 who was living at the time in a vacant house adjacent to the property, was arrested in connection with the burglary, but then released.

Soon after, while K.H. and M.H. were not at home, their house was burglarized again. L.R. was murdered, having been beaten, stabbed, and strangled. Her body was found supine on the bed in the master bedroom, with her hands bound behind her back. She was naked from the waist down, with her legs open, and a vibrator near her body. A number of items were stolen.
Go to Lexis, limit to California, and search for "babysitter & strangled & vibrator" and the California Supreme Court's opinion on direct appeal, with the perp's real name, pops up.  If you don't have Lexis or one of its competitors, the same can be done with Google Scholar case law.

Today the Ninth Circuit denied rehearing en banc and reiterated its reasons for the "John Doe."

Will the U.S. Supreme Court take the case?  It's an uphill battle to get them to take a pre-AEDPA, fact-bound, ineffective assistance case, but it's not out of the question.  The opinion is written by the frequently reversed Judge Reinhardt, and that's always a plus.

The Nebraska Override Vote

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Kent noted that the Nebraska legislature is considering whether to override the Governor's veto of a bill abolishing capital punishment.  Kent observes that death penalty retentionists would advance their cause by proposing solutions to the practical problems in carrying out executions, prominently among them manufactured procedural delays in post-sentence litigation.

I suggest that Nebraska legislators ask themselves this:  Do we, and do the people of this state, really want a future jury never to be able to impose the death penalty? Never, no matter what the facts?

When Tsarnaev strikes and shreds a little boy to bleed to death in his father's arms, do we want never?

When McVeigh strikes, and wipes out 19 toddlers in the day care center, do we want never?

When an ISIS wannabe strikes an elementary school and starts slitting throats, do we want never?

When a psychopathic killer already serving life strikes in prison and kills his guards, do we want never?

When you buy "never," you buy a morally disarmed future you cannot possibly know. 
AP reports that Nebraska Governor Pete Ricketts has vetoed a bill to repeal the death penalty that passed the one-house legislature 32-15.  He needs to change three votes to have his veto sustained.

But some lawmakers said they still believed the veto could be sustained -- and at least one senator who previously voted for the repeal said Tuesday he had changed his mind.

"You wouldn't see an effort like this if all hope was lost," said Sen. Beau McCoy, an Omaha Republican who supports capital punishment.

Sen. Jerry Johnson, a Republican who voted for the repeal, said he decided to switch votes because he believes the new governor's administration needs more time to carry out an execution. Johnson said he took calls all weekend from constituents who support the death penalty.
For opposing repeal efforts nationwide, it is important that supporters of the death penalty take an active stance in pushing reforms, not just opposing repeal.  The opponents are getting their swing votes with the argument that we aren't enforcing it anyway, so it's just a waste of money.  The answer must be to push the reforms that will get it enforced.

One simple reform would speed things up substantially in states that have not yet reformed their successive petition rules.  Adopt the rule endorsed by a plurality of the Supreme Court in Kuhlmann v. Wilson (1986) that no prisoner will get consideration of a second collateral review petition unless he supplements his petition with a colorable showing of actual innocence.

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Baltimore's Deadliest Month in 15 Years:  Over the weekend in Baltimore, 29 people were shot - nine of them fatally - in what has become the city's deadliest month since 1999.  Fox News reports that violence has been reported in every part of the city and no neighborhood is immune.  In the month of May alone, 35 people have been murdered, with a total of 108 homicides for the year.

Border Still Wide Open:  Border Patrol agents have been trying, in vain, to stop the flow of illegals but "open border initiatives" have allowed for the continuous flow of illegal immigrants and drugs across our southern border with Mexico.  Bob Casimiro, former executive director of Massachusetts for Immigration Reform, has this piece in the Bangor Daily News describing two Arizona groups, the Arizona Border Defendants and the Arizona Border Recon, trying to secure the border by "augmenting what the Border Patrol does."  It is estimated that only 30 percent of illegal aliens that cross the border are apprehended.

Death Penalty for Sex Traffickers?:  A Utah lawmaker has proposed legislation that would extend capital punishment to child-sex traffickers.  Robert Gehrke of the Salt Lake Tribune reports that Rep. Paul Ray, who sponsored the measure that reinstated the firing squad as the state's backup execution method, believes that sex traffickers need to face harsher punishment with a stronger deterrent effect.  Civil-liberties groups oppose the measure, claiming that the death penalty will not deter child-sex traffickers.

Cleveland Agrees to New Rules for Police:  Under an agreement with the Justice Department, the city of Cleveland will have its police department overseen by an independent monitor and require its officers to adhere with strict new rules on the use of force.  Sari Horwitz of the Washington Post reports that the agreement, followed Justice Department findings that the city's police "engaged in unnecessary and excessive use of force," requires oversight by a community police commission and a mental health response advisory committee.  The agreement is court-enforceable.

B.B. King's Death Investigated As Homicide:  A homicide investigation is underway in the death of blues legend B.B. King, whose two daughters have filed affidavits alleging that he was intentionally poisoned.  Justin Wm. Moyer of the Washington Post reports that the late musician's daughters, Patty King and Karen Williams, believe that Patricia Toney, King's longtime business agent who has the power of attorney in this case, may be responsible.  King died at the age of 89 on May 14 and the results of his autopsy, which was performed on Sunday, will be available in approximately eight weeks.

It's really convenient to be able to retrieve online information about your taxes, Social Security earning record, health information, and all kinds of important data.  But there's a catch.  John McKinnon and Laura Saunders report for the WSJ:

The Internal Revenue Service said identity thieves used its online services to obtain prior-year tax return information for about 100,000 U.S. households, a major setback for the agency that is charged with safeguarding taxpayers' privacy.

The IRS said criminals used stolen Social Security numbers and other specific data acquired from elsewhere to gain unauthorized access to the tax agency accounts. About 100,000 more attempts were unsuccessful, the agency said.

The Case Against PowerPoint

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Off-topic but priceless, Katrin Park has this modest proposal in the WaPo.  My favorite slide from this presentation is the Gettysburg one, copied after the break.
The US Supreme Court took up two criminal cases today.  The first is Foster v. Humphrey, No. 14-8349, a Georgia capital case in which the defendant was convicted of the murder of a 79-year-old widow, Queen Madge White.  The evidence showed she had also been sexually molested with a salad dressing bottle.  The claim is racial discrimination in use of peremptory challenges, i.e., a Batson v. Kentucky claim.

The State's Brief in Opposition is here.

The Court also took up a federal case, Lockhart v. United States, No. 14-8358.  The question relates to sex offenses triggering a mandatory minimum under federal sentencing law.

The Court decided three civil cases.

Generally in May and early June the Supreme Court announces opinions only on Mondays (and the Monday-like Tuesday after Memorial Day), so we expect opinions again on Monday, June 1.

A Pause to Remember, Part II

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There are many nearly unbelievable stories of bravery to be shared on Memorial Day, but this one, related by Scott Johnson on Powerline, stood out to me.


Big for his age at 14, Jack Lucas begged his mother to help him enlist after Pearl Harbor. She collaborated in lying about his age in return for his promise to someday finish school. After training at Parris Island, he was sent to Honolulu. When his unit boarded a troop ship for Iwo Jima, Mr. Lucas was ordered to remain behind for guard duty. He stowed away to be with his friends and, discovered two days out at sea, convinced his commanding officer to put him in a combat unit rather than the brig. He had just turned 17 when he hit the beach, and a day later he was fighting in a Japanese trench when he saw two grenades land near his comrades.


He threw himself onto the grenades and absorbed the explosion. Later a medic, assuming he was dead, was about to take his dog tag when he saw Mr. Lucas's finger twitch. After months of treatment and recovery, he returned to school as he'd promised his mother, a ninth-grader wearing a Medal of Honor around his neck.

The makings of a riot had come together Saturday night in light of the acquittal of a Cleveland policeman on charges of voluntary manslaughter.  Some violence had already begun, as I noted here.

But this time, there was a difference.  Because protection of citizens is apparently taken more seriously in Cleveland than in Baltimore, the police did not retreat. Instead, they were at the ready.  Paul Mirengoff has the story:

[T]he Cleveland police declined to tolerate lawlessness. Paula Bolyard of PJ Media reports:

Cleveland police were taking no chances in the wake of the acquittal of police officer Michael Brelo, going to great lengths to ensure that Saturday afternoon's peaceful protests didn't evolve into violent riots like Baltimore and Ferguson have experienced in recent months.

In addition to having the National Guard on standby, police followed protesters through the streets and arrested anyone who acted violently or refused to obey police orders to disperse. A total of 71 people were arrested. . . . 

A Pause to Remember

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MemDay2015Scout.jpg

Let us take a moment today to remember those who gave their lives in defense of freedom.  Without their brave and selfless sacrifices, the world would be a very different and far less free place than it is today.

Just as important is passing on our traditions and values to succeeding generations.  In this photo, Scouts place flags on graves at the Cypress Hills National Cemetery in Brooklyn, New York.  Click on the photo for a larger view.
I asked here, in the aftermath of the Baltimore charges against six police officers, whether the mob  --  the one that had been burning, looting and rioting  --  would tolerate an acquittal.

Of course we don't know yet.  But there was an acquittal yesterday in a case in Cleveland where a white officer was charged with voluntary manslaughter for firing repeatedly into a car containing two unarmed suspects, killing both.

The aftermath of that acquittal does not create grounds for great optimism.  The story is reported in the Toronto Sun.  It's titled, "Cleveland erupts into riots after cop found not guilty in shooting."

As I predicted, the point is not "accountability."  The point is not "visibility"  -- nothing is more visible, and little is better covered, than the homicide trial of a policeman. The point is not "due process for everyone."  

The point is that The Cops Are Satan.  There's not a whole lot more to it than that.

The "Broken" Criminal Justice System

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We keep hearing from the sentencing "reform" movement that our criminal justice system is broken.  We heard it once more today in an op-ed in the NYT.

Is it true?  Is our criminal justice system broken?

I stumbled across the graph below doing some research.  Judge for yourself.  

My own view is easy to state.  The claim that the criminal justice system is broken is not just misguided or poorly informed.   It's a point-blank lie.  The number of victims of violent crime aged 12 and over, per 1000 population, has dropped by two-thirds in one generation.  That is a spectacular success by any conceivable measure.  Whatever we're doing, we should do more of.

So Long to the False Arrest Charges

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Apparently the Baltimore State's Attorney read Crime and Consequences before she met with the grand jury. Very good. It might have been better, though, if she had read it before her earlier, courthouse steps carnival announcing charges against six city police officers.  

Although she originally made a point of the supposed illegality of Freddie's Gray's arrest, we now see that false arrest (or false imprisonment, as it is put) charges against the arresting officers have disappeared.  The prosecutor gives no explanation. But this Reason article does:

Of the criminal charges proposed by Marilyn Mosby, the state's attorney for Baltimore, in connection with the death of Freddie Gray, three are notably missing from the indictments approved by a grand jury today. The Washington Post reports that "charges of false imprisonment against three of the officers are no longer part of the case." That change presumably reflects the dispute over whether the knife Gray was carrying, which was the official justification for his arrest, qualified as an illegal switchblade.


Judging from the way police described Gray's knife ("a spring-assisted, one-hand-operated knife"), it did not fit the state's definition of a switchblade (as Mosby noted) and probably did not fit the city's definition either. But the latter point--which Mosby did not publicly address, even though Gray was charged with violating the city ordinance--is open to debate, which suggests that the officers who arrested him might reasonably have believed the knife was illegal. If so, they could not be convicted of false imprisonment, since to arrest Gray they needed only probable cause to believe he had broken the law.



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Police Officer Killed Hours Before Maternity Leave:  An Omaha police officer was shot and killed by a fugitive on Wednesday, just hours before she was to go on maternity leave.  Fox News reports that 29-year-old Kerrie Orozco was part of the city's fugitive taskforce and had closed in on 26-year-old Marcus Wheeler, a fugitive with a felony arrest warrant who then opened fire at Orozco and other officers.  Orozco had given birth to a premature baby girl in February, postponing her maternity leave until the baby's release from the hospital, which was the day after she was killed.  The shooting suspect was also fatally shot.

Transgender Inmate's Surgery Delayed:  Hours after a California panel recommended parole for convicted killer Michelle-Lael Norsworthy, a federal appeals court delayed his sex reassignment surgery, making it unlikely that he will receive prison-funded surgery before his release.  Don Thompson of the AP reports that the state contested a lower court judge's ruling that Norsworthy receive the surgery as soon as possible, but now it could be delayed for months while the appellate court considers the case.  Corrections officials are "pleased that the delay will let the appeals court review the merits of the state's appeal."  Norsworthy's attorneys argue that the denial of his surgery amounts to cruel and unusual punishment.

Six Baltimore Officers Indicted:  A grand jury decided to indict all six Baltimore police officers charged in the death of Freddie Gray, allowing the criminal prosecution to proceed.  The AP reports that the officers' attorneys believe that Baltimore State's Attorney Marilyn Mosby should be replaced with an independent prosecutor, arguing the current prosecution as "overzealous."

Two ISIS Recruits Arrested in LA:  Two men were arrested by the FBI in Southern California yesterday, one at the Los Angeles International Airport, on suspicion of terrorism related charges.  Andrew Blankstein of NBC News reports that Muhanad Badawi and Nader Elhuzayel of Anaheim were allegedly planning to travel abroad and join the Islamic State terrorist group, known as ISIS.  Two search warrants were also served in relation to the charges.

Suspect In DC Homicide Charged:  Daron Dylon Wint, suspected of murdering a Washington businessman, his family, and their housekeeper last week and setting their mansion on fire in an extortion scheme, has been arrested and charged with first-degree murder.  Greg Botelho, Mary Kay Mallonee, and Ed Payne of CNN report that Wint was apprehended Thursday while traveling from a Maryland hotel to Washington D.C. in a car with two women alongside a box truck driven by his brother and two other men.  At least $10,000 was discovered during the arrest.  The other five individuals were arrested but have not been charged.  Wint is set to make his first court appearance on Friday afternoon.

This is what happens:

WASHINGTON (WUSA9) -- New, horrifying details are surfacing about what happened inside the Savopoulos mansion near Vice President Joe Biden's house before the murders.

A law enforcement source tell WUSA9's Bruce Leshan that detectives now believe the killers tortured the 10-year-old boy, Phillip Savopoulos, in the effort to get money out of his father.

Police believe the killers were in the house for about 10 hours, and that they successfully forced the Savopoulos family to get them tens of thousands of dollars. Someone may have actually had to go out and get the cash while the rest of the family and their housekeeper were held hostage.

The prime suspect in this grotesque crime is one Daron Dylan Wint.

Was Wint a stranger to the criminal justice system?  Not exactly.

The New York Post carries this opinion piece on the nature and benefits of "broken windows" policing in New York City.  It's written by George Kelling, co-author of the original "Broken Windows" strategy and the leading authority in the field. Surprisingly, it has good news for both those of us serious about stanching crime, and those viewing themselves as friends of sentencing "reform:"

[I]ndiscriminately attributing all of the ills displayed in recent events in cities to Broken Windows risks taking us back decades in our attempts to improve public safety and quality of life for all citizens....

There's every reason to believe de-policing high-crime minority neighborhoods would be a disaster. We tried it in the past, and it's taken decades for us to regain control of public spaces, and even now some neighborhoods remain under threat.

No surprise there, but this was eye-opening:

[W]hile some have argued that Broken-Windows policing results in higher incarceration rates, research indicates that police crime-prevention methods, including Broken Windows, have actually reduced mass incarceration.

In New York City, both prison commitments and jailings declined substantially between 1992 and 2013 -- prison by 69 percent; jailing by 45 percent.



A:  You had to ask?

The Daily Beast has the story, direct from Baltimore.  The numbers tell a sorry tale:


Baltimore logged its 100th murder of the year on Thursday morning, hitting the milestone after recording more than a murder per day in the month following Freddie Gray's death.

The massive increase in homicide, shootings, and violent crime comes as arrests have plummeted to their lowest levels all year. In the week before Gray died, 682 people were arrested. In the last week of available data, 339 people were arrested.

The Western District, where Gray was arrested, is the center of the crime boom. Homicides are up 200 percent compared to this time last year; non-fatal shootings have risen 800 percent; robberies of varying types 100 to 300 percent.

Despite more crime, there are far fewer arrests in the district. In fact, at least three days in May saw no arrests.


Forbes ranked Baltimore the seventh most dangerous city in the country. My strong guess is that, this year, it will be moving "up."

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NE Bill Abolishing Death Penalty Approved:  A bill abolishing the death penalty was approved on Wednesday by Nebraska's legislature with a 32 to 15 vote.  The AP reports that Governor Pete Ricketts promises to veto the bill, although there may be enough votes in favor of the bill to possibly override a veto.  

Parolee Found Guilty of Investigator's Murder:  Paroled sex offender Randy Alana was convicted Wednesday of murder, second-degree robbery, auto theft and grand theft for the 2013 killing of Sandra Coke, a federal defense investigator from Oakland.  Henry K. Lee of SF Gate reports that the jury deliberated for less than three hours before finding Alana guilty.  Alana, who had previously dated the victim and was the father of her teenage daughter, was out on parole and being tracked by authorities with a GPS anklet in August 2013 when he strangled Coke and dumped her body in Vacaville, because she called his parole agent.

Man Who Landed Gyrocopter At Capitol Faces Nine Years:  The man who landed his one-man gyrocopter on the lawn of the U.S. Capitol last month to protest campaign finance could face over nine years in prison.  Warner Todd Huston of Breitbart reports that Douglas Hughes, a mail carrier from Florida, flew through restricted airspace on April 15 before landing on the west lawn of the Capitol building, and was arrested immediately.  He has been indicted on six charges by a federal grand jury, including violation of national defense airspace and violation of aircraft registration requirements.

Bill that Loosens Execution Restrictions Passes House:  A North Carolina bill, which passed the House and is under consideration in the Senate, would permit other medical professionals to oversee executions, not just licensed physicians.  The Daily Tar Heel reports that House Bill 774 was created in response to physicians' growing unwillingness since 2007 to participate in executions, when the North Carolina Medical Board banned providers from giving lethal injections.  Although the state Supreme Court ruled in 2009 that the board could not revoke physicians' licenses, physicians in the state have still been hesitant.  The bill would extend execution participation to physician assistants, registered nurses, nurse practitioners and emergency medical technicians, but a licensed physician would still be required to pronounce an inmate dead.

Suspect Named In Quadruple Murder:  Police have identified a suspect in last week's quadruple homicide of a wealthy couple, their 10-year-old son, and their housekeeper that occurred in one of Washington D.C.'s poshest neighborhoods, just down the street from the Vice President's residence.  Fox News reports that Daron Dylon Wint, a career criminal whose DNA was found on pizza crust left at the crime scene, is believed to have held the family hostage on the evening of May 13 while coordinating the delivery of $40,000 in cash, then killed them and set their mansion ablaze before fleeing in the couple's Porsche, which was also torched.  Law enforcement believes Wint is hiding out in Brooklyn and have expanded their manhunt.

George Will has a column in today's Washington Post titled, "Capital Punishment's Slow Death."  In it, Will makes three arguments against the death penalty.  All of them are wrong.

Here's how he puts it:

The conservative case against capital punishment, which 32 states have, is threefold. First, the power to inflict death cloaks government with a majesty and pretense of infallibility discordant with conservatism. 


Second, when capital punishment is inflicted, it cannot later be corrected because of new evidence, so a capital punishment regime must be administered with extraordinary competence. It is, however, a government program. Since 1973, more than 140 people sentenced to death have been acquitted of their crimes (sometimes by DNA evidence), had the charges against them dismissed by prosecutors or have been pardoned based on evidence of innocence....


Third, administration of death sentences is so sporadic and protracted that their power to deter is attenuated. And the expensive, because labyrinthine, legal protocols with which the judiciary has enveloped capital punishment are here to stay.


Let's start from the beginning.





Congress is presently debating whether and to what extent to re-authorize bulk collection of telephone records, a key provision set forth in Section 215 of the Patriot Act.  My friend Rachel Brand, a former Assistant Attorney General for the Office of Legal Policy, writes an informative piece about it in the Christian Science Monitor. She notes, among other things:

[T]he question before Congress is not whether to reauthorize or prohibit the bulk telephone records program that has garnered so much attention. It is whether to reauthorize Section 215 itself. This authority was enacted after 9/11 to remedy the problem that officers conducting foreign intelligence investigations of international terrorism and espionage did not have a basic investigative tool available even in ordinary criminal investigations. The telephone records program conducted by the NSA is only one application of that authority. If Congress allows Section 215 to expire, it will not just eliminate that program; it will do away entirely with an essential investigative tool.

News Scan

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Police Oppose Obama's Military Equipment Ban:  Law enforcement agencies nationwide will no longer be provided with certain military equipment by the federal government under President Obama's executive order.  Genny McLaren of Fox 40 reports that Sacramento County Sheriff Scott Jones calls the ban the president's "latest missive," reinforcing the administration's attitude that "local police and sheriff's departments are incapable of effectively and fairly providing public safety."  The equipment ban includes tracked armored vehicles and a lot of stuff police don't use like 50 caliber weapons and ammunition, certain camouflage clothing, bayonets, weaponized aircraft and grenade launchers.

Report Links Auto Thefts To Realignment:  The Public Policy Institute of California released a report on Tuesday suggesting  the state's AB 109 Realignment law, which released thousands of felons from prison, resulted in increased auto thefts but had no impact on violent crime.  The report, which relies on 2013 data, left out 2014 data reported by the LA Times showing the state prison population increasing due to increased convictions for violent and serious felonies, and also missed the Los Angeles Police Chief's March 24, 2015 statement that violent crime has increased 26% in his city so far this year.

Trove Of Bin Laden Documents Released:  A trove of documents recovered during the raid on Osama bin Laden's compound in 2011 have been released to the public by U.S. Intelligence, revealing Al Qaeda's operations.  Fox News reports that included among the documents are letters, accounting information, and application forms from prospective members.  One document in particular warned that the "motives that led to 9/11 are still there."  The Office of the Director of National Intelligence says they will review hundreds more documents for possible declassification and release.

Development Of San Quentin's Land Debated:  The $18 million project to demolish and rebuild San Quentin State Prison's boiler house, which is non-compliant with the Bay Area's air emissions regulations, is reigniting the debate over whether the aging prison should stay or go.  KTVU reports that a global property strategist says that the land occupied by the prison could sell for "at least a billion," and transform the facility into a revenue generator rather than an economic drain.  Inmates are against the relocation, however, citing their proximity to the courts and tech companies who send in volunteers as their reasons for wanting to stay put.

Bandidos Biker Gang Allied With Drug Cartel:  The Bandidos, one of the biker gangs involved in the shootout at a Texas restaurant Sunday, has been identified by the FBI as a longtime affiliate of the violent Mexican cartel Los Zetas.  Ildefonso Ortiz of Breitbart reports that the Bandidos coordinate drug smuggling operations with international drug-trafficking organizations such as Los Zetas, in which they manufacture, transport, and distribute marijuana, cocaine and methamphetamine.  The gang's ties to the cartels provide them with a steady flow of drugs that "make up the majority of the gangs profits."

Rehab for This Non-Violent Offense?

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Sentencing "reformers" have finally admitted explicitly that their largesse would extend to violent as well as non-violent offenders.  Still, and for obvious PR reasons, they continue to push the line that "reform" (i.e., early release or no incarceration to begin with) is intended principally for "low-level, non-violent" offenders.  Their argument is that (1) we simply can't afford the present level of incarceration, (2) we're overly punitive in any event, certainly compared to Western Europe, and (3) we can use the money saved to focus on "truly dangerous" criminals.

Today brought news of a "non-violent" offense that very likely cost individual victims no more than $50 or $100 each.  Certainly that's a "low-level" sort of thing for which "reformers" would be scandalized that Puritanical nags (like me) would even contemplate prison.  But I am contemplating it indeed, even though to date only civil charges have been filed.  To boot, I think a sentence of ten or twenty years would be just fine.

The WSJ has the story.
At SL&P, Doug Berman extensively quotes a NYT editorial about sentencing "reform" (i.e. letting felons out earlier to do it again, which the great majority will). The quotation starts with this paragraph (emphasis added):

It has been getting easier by the day for politicians to talk about fixing the nation's broken criminal justice system. But when states in the Deep South, which have long had some of the country's harshest penal systems, make significant sentencing and prison reforms, you know something has changed.

Here are a few statistics about how "broken" the criminal justice system is:  

The last time we had a number of serious crimes this low was 1973, or 42 years ago. The last time we had a murder rate this low was 1963, or 52 years ago. The last time we had a violent crime rate this low was 45 years ago.  The last time we had a property crime rate this low was 49 years ago. The last time the auto theft rate was this low was 51 years ago.  In 2013, the most recent year for which figures are available, we had 5,077,242 fewer serious crimes than in the peak crime year at the dawn of the Nineties.  That is more than five million fewer crime victims.

It may well be that, for the drug pushers, child rapists, con artists, thugs, hoodlums, rioters and others who earned the sentences we finally had enough sense to give them, the criminal justice system looks "broken." But on the theory that the NYT had a broader audience in mind, labeling the system "broken" is nonsense bordering on insanity.
Punishment for crime involves both judicial and executive discretion.  The sentence in years (or life) is imposed by the trial court, but where the convict actually is in those years is typically an executive decision.  That may involve which prison he is sent to, whether he is inside or outside prison (i.e., parole), or even which country he is in.

Khalid Al Fawwaz was sentenced today for his part in the 1998 Embassy Bombing plot.  He received three life sentences and a ten-year sentence, concurrent.  And Judge Kaplan added this:

The Court makes the following recommendation to the Department of Justice: The Court is mindful of the fact that defendant may have the ability to apply to the U.S. Department of Justice under the international prisoner transfer program to be allowed to serve some or all of his sentence in another nation. Although a decision on any such application, if one is made, would be up to the Department of Justice, the Court strongly recommends that any such application be denied. The defendant has been convicted of very serious crimes against American citizens. His punishment ought to be served in, and more particularly, always remain under the control of the United States of America.
Now that's refreshing to hear from a federal judge.

News Scan

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State Supreme Court Overturns Assailant's Sentence:  On Monday, the California Supreme Court struck down the five-year prison sentence of a Sacramento man who beat his children's mother because a trial judge failed to advise the defendant that admitting to a prior conviction could result in a harsher penalty.  Denny Walsh of the Sacramento Bee reports on the high court's decision in People v. Joshua Cross that overturned defendant Cross' sentence.  A week before the court's determination, Cross, released after serving the previous sentence, pleaded no contest to misdemeanor battery and was sentenced to three years of informal probation.

Legal Immigrants Take Back Seat To Illegals:  As the numbers of illegal immigrants seeking legal status under Obama's executive actions increase significantly, the waiting list to enter the U.S. legally is growing longer by the day, with illegal aliens prioritized over immigrants that entered the country legally.  William La Jeunesse of Fox News reports that the waiting list for individuals trying to enter the U.S. legally has reached 4.4 million, exceeding last year's numbers by 100,000.  Some, such as American born Jimmy Gugliotta, who lives in Chile with his Argentinean wife and their children, has been waiting almost two years for his family's visas while illegal immigrants continue to cut in line.

Baltimore Surges with Murders, Shootings:  Following the riots last month, Baltimore has experienced a "dramatic increase in violence," leaving many residents concerned that police officers are hesitant to aggressively respond to the spike in crime.  Christie Ileto of CBS Baltimore reports that 96 homicides have occurred in the city this year, up almost one-third from last year.  A Baltimore police officer said the Freddie Gray case "impacted policing," adding that he could understand why some officers may not want to be proactive during these rocky times.

Judge Alcee Hastings, Living in Sackcloth

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In his ten years (1979-1989) as a federal District Judge, Alcee Hastings did "sentencing reform" the old-fashioned way:  He accepted bribes for lower sentences. This is the story in a nutshell:

In 1981, Hastings was charged with accepting a $150,000 bribe in exchange for a lenient sentence and a return of seized assets for 21 counts of racketeering by Frank and Thomas Romano, and of perjury in his testimony about the case. In 1983, he was acquitted by a jury after his alleged co-conspirator, William Borders, refused to testify in court (resulting in a jail sentence for Borders).

In 1988, the Democratic-controlled U.S. House of Representatives took up the case, and Hastings was impeached for bribery and perjury by a vote of 413-3. He was then convicted in 1989 by the United States Senate (also controlled by the Democrats), becoming the sixth federal judge in the history of the United States to be removed from office by the Senate.

But Judge Hastings is a superb politician, and got himself elected to Congress in 1992.  He's still there  --  but as he tells us, just getting by.

Jessica Gresko and Ben Nuckols report for AP:

People in the nation's capital no longer have to show a good reason to get a permit to carry concealed handguns outside their homes and businesses.

The District of Columbia's police chief said Tuesday that she's dropping this requirement, a centerpiece of the city's handgun-control legislation, after a federal judge issued a preliminary injunction against it.

How about being in a jurisdiction where the murder rate is many times higher than the national average and among the highest of all American cities?  Doesn't everyone in the District have a "good reason"?


Mitigating in whose opinion?

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I have downloaded the Tsarnaev jury verdict form from PACER and uploaded it here. There are several interesting things about this form, but one that I particularly want to note is the deficiency in what the jurors are asked to find about "catchall" mitigating factors.

The Supreme Court has mandated since 1978 that the defendant can proffer to the jury any aspect of his character, background, or record that he wants to argue as mitigating.  When he does, there are actually three decisions to be made.  (1) Is the factor factually true?  (2) If so, is it actually mitigating? (3) If so, how much weight should it be given?

It seems to me that there is not enough attention given to the second step.  Supposedly mitigating factor 16 on page 18, for example is, "Dzhokhar Tsarnaev's mother facilitated his brother Tamerlan's radicalization."  Ten jurors found that factually true.  How many considered it mitigating?  Did all 10 understand they could find it true and still say "So what?  That's not mitigating."

These kinds of failures to make clear to the jury the nature of what they are supposed to be deciding were held to be unconstitutional when they ran against the defendant many years ago.  But ambiguities and omissions that run in the defendant's favor apparently go uncorrected.

The jurors probably get to the right end result in any case.  In the weighing process, jurors may find that a true factor gets zero weight if it is not mitigating.  Still, I would like to see this cleaned up.

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