Painting the Criminal as Victim

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Anyone who spent as much time as I did watching allocution knows how routine it is for defense counsel to try to turn the client into the victim.  In a sense, I don't blame them.  What else are they going to say?  They can't very well just tell the plain truth  --  that the client did it because he gets his kicks hurting people and thinks rules are for suckers.  That's not the world's most persuasive pitch for leniency.

It's thus one thing, and understandable, for defense counsel, and the culture in which criminal defense takes root, to make this sort of argument.  It's another when anyone else buys it, much less makes a fetish of it.  But that's what happened in a fairly prominent case last week in Minnesota, in which six Somali immigrants were arrested for plotting to join the world's most notorious throat-slitters, ISIS.

In a remarkable statement, US Attorney Andrew Luger said that the plot was "a Minnesota problem."  That claim is false, if not absurd; the "appeal" of joining ISIS has nothing to do with, and is scarcely limited to, Minnesota.

The problem is that the US Attorney's statement goes beyond mere absurdity.  It pulls back the curtain on the extent to which the culture of criminal-as-victim has permeated Obama's Justice Department.


The Story of a Minor Crime

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We are told more and more that minor property crimes should not be punished with jail.  That was the principal rationale' for California's passage of the predictably disastrous Prop 47.  We need to be "smarter" about sentencing  -- use our resources better, don'tcha know.

Here is the story of a "minor property crime" I ran across a few days ago just listening to the local news:

LANGLEY PARK, Md. (WUSA9) -- A four-year-old boy's wheelchair was stolen from a building in Langley Park, according to Prince George's County Police.

The theft occurred Sunday night in the lobby of an apartment building on Merrimac drive, police said.

Surveillance video shows the suspect pushing the empty wheelchair through a parking lot.

The family of four-year-old Joshua shared a video of her son. "This family already faces challenges and shouldn't be burdened with the emotional and financial stress of the theft of this wheelchair. The suspect we're looking for has no heart," Captain Ken Humbel said in a statement.



News Scan

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Committing Crimes While In Prison:  An habitual felon currently serving time in an Oklahoma prison has plead guilty to filing fraudulent federal tax returns netting over $219,000 while in the California prison in Susanville.  Cathy Locke of the Sacramento Bee reports that Edwin Ludwig IV, has been identified as the ringleader in the tax fraud scheme which involved fellow inmates and accomplices outside of prison.  So far authorities credit Ludwig and company with 247 false tax returns between 2008 and 2011.  Under California's Realignment law, Ludwig would not have been eligible for a prison sentence if he had committed state tax fraud. 

Federal Court Denies Murderer's Appeal:   A divided panel of the Fifth Circuit Court of Appeals has rejected a condemned murderer's third request to extend the deadline for filing a habeas corpus petition.   KWTX Houston reports that triple-murderer Louis Castro Perez unsuccessfully claimed that one of his appeals attorneys abandoned him, resulting in his failure to submit his federal claims before the deadline.  Perez was convicted of beating his ex-girlfriend and her roommate to death and strangling the roommate's nine-year-old daughter to death with panty hose.  The facts found by the jury are included in this District Court ruling.  
Anti-death penalty groups claim the Perez is innocent.   

Priorities for the New Attorney General

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The Crime Report is published daily by the Center on Media, Crime and Justice at the John Jay College of Criminal Justice in New York.  It includes investigative articles by a number of veteran crime reporters, plus analysis and commentary.

It asked me to write a memo for Loretta Lynch setting out what I believe should be her priorities as she takes the helm at Main Justice.  My response is here.  I start with questions about what model of leadership she should adopt (Michael Mukasey).  I go on to suggest how she should react when the White House starts to push her (push back) and what to do about the fact that by far most of the members of the majority party in the Senate opposed her (reach out to them).

I continue by making suggestions about what direction to take in dealing with drugs, over-criminalization, the decaying sentencing guidelines, assaults on the First Amendment (especially on campus), criminal justice "reform," the culture of grievance and racial preference, the growing chorus against police and prosecutors, calls for mass clemency, and enforcement of the death penalty.

That's for starters.  My extremely unsolicited (by Ms. Lynch) advice is set forth after the break. 

Why We Have the Death Penalty, Vol. MMM

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I wrote a few days ago to emphasize an item it might have been easy to miss in the News Scan.  I do so again today.  My reason for both entries is the same:  They give concrete examples of why we cannot trust the constant assurance that we'll be just as safe if we dumb-down sentencing and/or abolish the death penalty.  

The reason we can't trust this assurance is simple.  It's false. Today's item is particularly instructive:

Supermax Inmate Convicted of Murder:   CBS Colorado reports that a leader in the Mexican Mafia prison gang has been convicted of the murder of another inmate.  Silvestre Rivera, sentenced to prison for a string of bank robberies in California and Arizona, was found guilty of stomping and kicking 64-year-old Manual Torez to death ten years ago at the federal Supermax prison in Southern Colorado.  The maximum sentence Rivera can receive is LWOP.  It was the first murder ever at that facility. 


News Scan

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Medical Pot Law Dies In Florida:   The effort to pass a medical marijuana law during the current legislative session has "gone up in smoke" according to this story (registration required) by Bradenton Herald reporter Michael Auslen.  The chief proponent, Republican State Senator Jeff Brandes, had conceded that his bill is effectively dead this session.  He said he plans to work through the summer to draft legislation that will gain enough votes to pass next year.

Colorado Senate Passes Fetal Homicide Bill:  The Republican controlled Colorado Senate passed legislation classifying the killing of an unborn child as murder.  Megal Verlee of Colorado Public Radio reports that the measure was introduced in response to the  recent assault on a pregnant woman in which her unborn baby was cut from her womb as reported here .  Abortion advocates are opposed to the bill, arguing that if passed it might permit the murder prosecution of a woman who chooses to terminate her pregnancy. 

Supermax Inmate Convicted of Murder:   CBS Colorado reports that a leader in the Mexican Mafia prison gang has been convicted of the murder of another inmate.  Silvestre Rivera, sentenced to prison for a string of bank robberies in California and Arizona, was found guilty of stomping and kicking 64-year-old Manual Torez to death ten years ago at the federal Supermax prison in Southern Colorado.  The maximum sentence Rivera can receive is LWOP.  It was the first murder ever at that facility.   

 

Tsarnaev, Silence, and Remorse, Part II

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Kent has noted that, on the current uncertain state of the law, prosecutors would be taking a risk if they use Tsarnaev's (presumed) silence as evidence of lack of remorse.  I concur.  But there's more to this story.

At first, I agreed with the conventional wisdom that defense counsel would not call their client to the stand.  Now, I have my doubts.  The government's evidence of the savagery and cruelty of this crime in my view makes the death penalty likely unless the defense can move the ball.

I think their best shot to avoid lethal injection is to call Tsarnaev and have him show remorse.  If he does so, and makes a convincing showing, I think he lives. It would help if he broke down in tears of grief in a way that struck the jury as sincere, and not a coached performance.

And there's the rub.  I have seen not a lick of evidence that Tsarnaev actually feels any differently than he did the day of his capture.  That afternoon, he scribbled a note to the effect that he was in a Holy War against the United States, and if there was "collateral damage," in the phrase made immortal by his fellow butcher Timothy McVeigh, well......tough.

My guess is that it will depend on defense counsel's assessment whether Tsarnaev can pull it off, and that he won't break out in an anti-American diatribe during cross-examination.  Having to make judgments like that is one of many reasons I'm happy I did not become a defense lawyer.

Loretta Lynch Confirmed

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The vote was not that close, 56-43.  The Wall Street Journal has the story.

Tsarnaev, Silence, and Remorse

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The prosecution has rested in the penalty phase of the trial of Boston Marathon bomber Dzhokhar Tsarnaev.  If he does not testify in the penalty phase, as I expect he will not, can that silence be used against him as indicating a lack of remorse?  I don't know.

In White v. Woodall, decided one year ago today, the Supreme Court reviewed its precedent in Mitchell v. United States, 526 U.S. 314, 328 (1999):

"The Government retains," we said, "the burden of proving facts relevant to the crime . . . and cannot enlist the defendant in this process at the expense of the self-incrimination privilege." Id., at 330 (emphasis added). And Mitchell included an express reservation of direct relevance here: "Whether silence bears upon the determination of a lack of remorse, or upon acceptance of responsibility for purposes of the downward adjustment provided in §3E1.1 of the United States Sentencing Guidelines (1998), is a separate question. It is not before us, and we express no view on it." Ibid.
A footnote at that point notes a division in the Courts of Appeals.  No First Circuit cases are noted there or in the certiorari petition.

Woodall did not resolve the question.  It was a state case being reviewed on federal habeas corpus, and the unsettledness of the underlying question was enough to require the federal court to respect the state court's decision under the controlling act of Congress.  CJLF's brief in that case is here.  My post on the case is here.

Prosecutors would be well advised to avoid mentioning the defendant's silence until the issue is resolved.  It isn't worth risking a reversal.  Long-term, though, I think the Griffin no-comment rule should be limited to the extent expressly held in Supreme Court precedent and not extended by a fraction of an inch.  I wouldn't mind seeing it overruled, but I don't think that is a realistic possibility.
Now this is definitely the shortest opinion of the Ninth Circuit en banc I have ever read:

During a grand jury proceeding, defendant gave a rambling, non-responsive answer to a simple question. Because there is insufficient evidence that Statement C was material, defendant's conviction for obstruction of justice in violation of 18 U.S.C. § 1503 is not supported by the record. Whatever section 1503's scope may be in other circumstances, defendant's conviction here must be reversed.
A reversal for insufficient evidence implicates defendant's right under the Double Jeopardy Clause. See United States v. Preston, 751 F.3d 1008, 1028 (9th Cir. 2014) (en banc) (citing Burks v. United States, 437 U.S. 1, 11 (1978)). His conviction and sentence must therefore be vacated, and he may not be tried again on that count.
That's the whole thing.  The eleven judges on the pseudo-en-banc panel are so fractured that the court issued this brief disposition "per curiam" (by the court as an institution with no identified individual author) and then various judges weighed in with lengthy concurring and dissenting opinions.

Judge Rawlinson dissented, citing Ernest Lawrence Thayer.  "There is no joy in this dissenting judge. The per curiam and concurring opinions have struck out."   What's up with that?  The defendant is Barry Bonds.

News Scan

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Parolee Charged With Rape One Day After Release:  A Rochester man has been charged with multiple counts of rape for sexually assaulting a 14-year-old girl on a street, just one day after being released on parole.  The AP reports that Michael Carunthers was paroled after completing just over two year of a 2½ to five year sentence for robbery.  He faces up to 50 years in prison for the rape charges.

Felon Voting Bill Passes AL House:  A bill that would create a list of the felony offenses that would cost criminals their voting rights was approved Tuesday by the Alabama House of Representatives.  Tim Lockette of the Anniston Star reports that the changes to the state's 1901 Constitution would classify murder, rape, drug and terrorism charges, theft and bigamy as felonies that would revoke one's voting rights.  The bill was one of seven election-related bills sponsored by Republicans in the state.

Jail Overcrowding Bill Heads To Committee:  California State Senator Ted Gaines is sponsoring a bill authorizing county sheriffs to contract with any state, county, private jail or prison system in the United States to transfer inmates from counties whose jail or prison population is over 80 percent capacity.  Davis Brenda of the Record Searchlight reports that SB 171 is scheduled to go before the Senate Public Safety Committee on May 12.  Sen. Gaines is unsure of what the specific costs for a transfer would be, but believes the money will come out of the state's general fund.

Early Releases Up 37% After Realignment, Audit Says:  The California state auditor has reported data showing that the number of inmates being released by county jails has increased by 37 percent since the passage of Realignment, or AB 109, three years ago.  The AP reports that in June 2014, 14,000 prisoners were released in one month compared to 10,200 in September 2011.  The audit also shows that while Realignment ultimately helped to lower the state's prison population, the population in county jails increased by 16 percent, which prompted thousands of early releases.

Waiting for Elonis

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The U.S. Supreme Court decided two civil cases today.  United States v. Kwai Fun Wong, No. 13-1074 deals with equitable tolling, an issue that comes up regularly in habeas corpus cases.

Still no decision on the Facebook threats case, Elonis v. United States.  That case was argued in December, and it is the only case from that session not yet decided.  Playing the SCOTUS Sudoku game, we see from the SCOTUSblog statistics page that Chief Justice Roberts is the only one not to write a majority opinion yet from that session.  (The June case was decided together with Wong today, written by Justice Kagan.)  So it's a good bet that the Chief is writing Elonis.

Does that give us a clue how the case will be decided?  Not really.  He was probing both sides at oral argument.  In First Amendment cases generally he has been pretty much down the middle.  He has written opinions in favor of First Amendment claims in cases on funeral protests and crush videos, but he has also written opinions against such claims in cases on school speech and terrorism support.  That last one gives me some hope here.  We are dealing with speech that involves genuine danger of grave physical harm to a person.  That makes Holder v. Humanitarian Law Project and Elonis different from all the other cases.

Still, we will have to wait and see.  Maybe next week.

AG Nominee Cleared for Vote

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Kristina Peterson and Louise Radnofsky report in the WSJ:

Senate leaders on Tuesday resolved a partisan dispute over abortion funding that had snarled a bill aimed at curbing human trafficking for more than a month and prevented the chamber from voting on attorney general nominee Loretta Lynch.

Senate Majority Leader Mitch McConnell (R., Ky.) said that the Senate would begin to consider Ms. Lynch's nomination "hopefully in the next day or so." He has said that the Senate wouldn't vote on Ms. Lynch, nominated by Mr. Obama last year, until the dispute over the trafficking bill had been resolved.
I am not making this up.  It's from PBS.


You gotta love the use of the word, "normally."

News Scan

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Sex Offender Placement in Washington:  A county in Washington state hopes that the governor will approve their proposal that would avoid concentrating the state's most violent sex offenders in one area.  Jordan Schrader of the News Tribune reports that the proposal responds to the placement of nine released detainees in Pierce County, although none of them come from or committed crimes there.  The proposal requires sex offenders be placed in the county where the crime was committed, unless proximity to their victim or lack of treatment services prevents it.

Supreme Court Reconsiders Career Criminal Law:  In Johnson v. United States, the Supreme Court is reconsidering the scope of the 1980s Armed Career Criminal Act which adds a 15-year prison term on armed career criminals.  A defendant argues that the law is unconstitutionally vague on what crimes warrant the additional penalty.  David G. Savage of the LA Times reports that the law cites burglary, arson, extortion, and the use of explosives as violent crimes, but Justices are divided about the law's phrasing of "conduct that presents a serious potential risk of physical injury to another."  

Gun Offender Registry Adopted in Cleveland:  Cleveland City Council passed legislation on Monday that would require gun offenders to register with the city's safety department within five days of moving into Cleveland or being released from prison.  Leila Atassi of the Northwest Ohio Media Group reports that other provisions in the legislation have replaced the city's current gun ordinances with language that better reflects state law, allowing police to charge offenders under the city code rather than state statute.  

More Preschool, Less Crime:  Illinois' top law enforcement officials believe preschool helps deter children from crime and have organized a group called Fight Crime: Invest in Kids Illinois to help support state funding for early childhood education.  Alicia Fabbre of the Chicago Tribune reports that a study revealed that students who didn't attend preschool were "five times more likely to be arrested for drug felonies and two times more likely to be arrested for violent crimes by the age of 27" than those who attended preschool.  The group is asking lawmakers to boost preschool funding by $50 million.

Gang Member Granted Amnesty Under DACA:  The Obama administration has admitted to granting executive amnesty to a known gang member charged with four counts of murder and now promises to work to assure that other gang members weren't approved for deferred status.  Caroline May of Beitbart reports that Emmanuel Jesus Rangel-Hernandez's approval for deferred status under the Deferred Action for Childhood Arrivals program violated standard procedure and should not have been approved.  The Obama administration has approved over 866,638 DACA applications since March 20, and many fear that the US Citizenship and Immigration Services is not eliminating dangerous applicants from the DACA program.

Traffic Stops and Dog Sniffs

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The U.S. Supreme Court today decided Rodriguez v. United States, No. 13-9972:

In Illinois v. Caballes, 543 U. S. 405 (2005), this Court held that a dog sniff conducted during a lawful traffic stop does not violate the Fourth Amendment's proscription of unreasonable seizures. This case presents the question whether the Fourth Amendment tolerates a dog sniff conducted after completion of a traffic stop. We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution's shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, "become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission" of issuing a ticket for the violation. Id., at 407.
Justice Ginsburg wrote the opinion.  Justice Thomas dissented, joined by Justices Kennedy and Alito.

The "only" in the last sentence is disputed in this case and remains open.  The government contends that the officer did have an individualized basis for suspicion that the car contained drugs.  Justices Thomas and Alito would affirm on that basis.  Justice Kennedy agrees with the majority that the point is not properly before the Supreme Court because the Court of Appeals did not decide it.

Although the issue discussed in that Part [of Justice Thomas's dissent] was argued here, the Court of Appeals has not addressed that aspect of the case in any detail. In my view the better course would be to allow that court to do so in the first instance.
Violent, repeat criminals should be put away for a long time, Congress quite reasonably decided in 1984.  But the devil is in the details, and the Armed Career Criminal Act has been an interpretive problem for a long time.  What exactly is a "violent felony or serious drug offense"?  Jess Bravin has this article in the WSJ on today's argument in Johnson v. United States, No. 13-7120.  The transcript is here.
"Sentencing reform" is the deliberately gauzy name given the movement for shorter sentences and earlier release.  Its advocates say it will be focused on "low level, non-violent" offenders, but quietly, and less prominently, acknowledge that it's intended to apply to "all offenders."  

This is one reason I want to add explicit language to one of the main "reform" measures, the Justice Safety Valve Act, before it gets a vote.  I want the public to know exactly what "all offenders" means.

It's also the reason I want to highlight an item from today's News Scan.  The Scan is sometimes easy to pass by quickly, because it contains a number of stories. But this one deserves our immediate attention:

Sex Predator Gets Second Chance, Reoffends:  Michael Shepard, released after serving a 15 year sentence for committing sex offenses against children, faces 14 new charges of raping or assaulting at least seven children after being out of prison 18 months.  Claire McNeill of the Tampa Bay Times reports that Shepard initially lied to his neighbors about his crimes, claiming his sex offender status stemmed from a Romeo and Juliet affair with a preacher's daughter.  He was released from prison after two psychologists determined that he "did not qualify for commitment" to a treatment facility after his sentence.  Shepard claims that the children fabricated their stories.

News Scan

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Sex Predator Gets Second Chance, Reoffends:  Michael Shepard, released after serving a 15-year-sentence for committing sex offenses against children, faces 14 new charges of raping or assaulting at least 7 children after being out of prison 18 months.  Claire McNeill of the Tampa Bay Times reports that Shepard initially lied to his neighbors about his crimes, claiming his sex offender status stemmed from a Romeo and Juliet affair with a preacher's daughter.  He was released from prison after two psychologists determined that he "did not qualify for commitment" to a treatment facility after his sentence.  Shepard claims that the children fabricated their stories.

Milwaukee's Spiraling Violence:  Milwaukee, Wisconsin, has suffered dozens of violent incidents this year, claiming the lives of at least 43 people.  Gina Barton and Ashley Luthern of the Journal Sentinel report that the mayor and police chief have cited the city's concealed carry law, but others blame the increase on police department cuts and a policy barring police from high speed chases unless there is probable cause that someone in the suspect vehicle is a dangerous felon.  The mayor plans to spend $2 million to improve the investigation and charging of gun crimes.

Death Penalty Rare for Child Killers:  Ohio prosecutor Joe Deters' effort to enact legislation permitting prosecutors to seek the death penalty in cases involving the killing of a child has paid off.  Paula Christian of WCPO reports that Deters was outraged when prosecuting child-killer Richard Joseph Klein 18 years ago.  Klein received a sentence of only 31 years for holding down his girlfriend's mentally disabled 12-year-old son in scalding hot water until he died.  Now that the new law has passed, Deters plans to seek the death penalty against a couple accused of torturing their 2-year-old daughter to death.

Texas Aids Arkansas With Prison Overcrowding:  A contract with Bowie County, Texas, allows Arkansas to place up to 288 of its male inmates in a Texas facility.  John Lyon of the Arkansas News Bureau reports that the contract expires on December 31.  "More innovative approaches" yielding long-term impact are being considered.  State prison officials hoped to begin construction of a new 1,000-bed prison last year, but Governor Asa Hutchinson has a different plan to add bed space without building a new prison.  Another alternative, as outlined in Act 1206 of 2015, would allow counties to house state prisoners in regional correctional facilities subject to the governor's approval.

Of Drug Legalization and Flying Saucers

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I have occasionally said here that support for the legalization of hard drugs is so low that it's never even been polled.

I was wrong.

I just found out that it was polled by the Huffington Post last year.

Also polled, by a different organization, was the belief that Earth has been visited by flying saucers.

Although a small majority now believes that pot should be legalized, flying saucers beat hard drugs by a fat margin.

20 Years Ago and Today

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 OKfireman1995.jpg

It was 20 years ago today that a domestic terrorist murdered 168 people in Oklahoma City, setting off a vehicle bomb in front of the federal building.  In this famous photograph by Charles Porter IV, fireman Chris Fields cradles infant Baylee Almon, who did not survive.

Timothy McVeigh was sentenced to death for this crime on August 14, 1997.  He was executed June 11, 2001, less than four years later.  Why so quickly?  What lesson is there for those seeking justice in the present day?
CJLF takes no position on pot legalization.  Kent has said he regards it as inevitable. My view is that pot became de facto legal long ago, and that the whole debate is therefore mostly academic.  But. yes, if you light up on the steps of the US Attorney's Office, you'll probably get a summons, anyway.  Then, in all likelihood, some AUSA will get in your face  --  before he dismisses the case or settles for a $50 fine.

One of the items I frequently see from legalizers is the assertion that pot never killed anyone.  Of course that's not the point; shoplifitng never killed anyone either, but, if it's not habitual, it's a minor crime deserving minor punishment.  Same deal with pot.

As to the "never-killed-anyone" argument itself......well......apparently not.

Intelligence Squared Debate Video

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The permanent link to the Intelligence Squared debate is:

http://intelligencesquaredus.org/debates/past-debates/item/1254-abolish-the-death-penalty


The full video is now available on the site. 

News Scan

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Only Minor Changes In Vermont's Sex Offender Laws:  A high-risk sex offender was released from a Vermont after maxing out his sentence, despite his refusal to seek treatment while incarcerated, sparking public demand for stricter sex offender laws.  Alex Keefe and Lynne McCrea of VPR report that lawmakers are considering two weak reforms.  The first would be a clarification to an existing that that states sex offenders must report their plans and activities to the registry before their release from jail.  The second would improve the sex offender registry's accuracy.  Also, several additional requirements have been considered for sex offenders labeled as high-risk.

New System Screens Out Registered Sex Offenders:  A high-tech system that produces instant background checks is being used at schools in Southern Indiana to protect students from sex offenders and other threats.  Stephan Johnson of WDRB reports that the Raptor System performs an immediate background check at the school's entrance, and then prints out a label with the person's name and photo ID if the system approves their entry.  The police department in Clarksville, Indiana purchased the system for the local elementary school.

Uniform Trafficking Law Heads To ND Governor:  North Dakota lawmakers are proposing a uniform law on human trafficking in an effort to move towards helping the victims.  Katherine Lymn of the Dickinson Press reports that Senate Bill 2107 would grant immunity to minors who committed prostitution offenses and other nonviolent crimes related to being trafficked, a law also known as Safe Harbor.  Adult victims would have their prostitution convictions and other related offenses expunged if the court determines the crime resulted from trafficking.  The bill is now headed to the governor for final approval.

Arkansas Parole Officers Overloaded:  In the state of Arkansas, 402 parole officers are responsible for the supervision of 52,292 parolees, equating to an average of 130 parolees per officer, or twice the national caseload average.  Josh Dooley of the Baxter Bulletin reports that with such large caseloads, officers say it is impossible to provide adequate supervision and they "just have to hope nothing bad happens."  Arkansas governor has approved funds to hire 45 additional parole officers over the next two years and add 500 beds in reentry programs across the state.

Bring Up, and Vote Down, an Amended JSVA

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The Justice Safety Valve Act, which would effectively nullify mandatory minimum sentencing in federal law, was so radical that its co-sponsor, Sen. Pat Leahy, would not bring it up last year in his own Committee.  In this, Sen. Leahy showed his typical canny feel for the lay of the land.  Committee chairmen tend not to bring up bills they know are so ideologically lopsided they'll go down in flames. 

Still, Sen. Leahy and Sen. Rand "no vaccinations" Paul have co-sponsored the same bill this year.  If Sen. Leahy were still the Chairman, I have no reason to believe he'd be any more willing to advance it than he was in the past.

Still, there could be value in having a vote on the bill in the SJC  --  having a vote, that is, if the bill were amended to give the public a more transparent look at what it's actually designed to do.

News Scan

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Crime Rise Puts LAPD In Difficult Position:  Los Angeles Chief of Police wants to send more than 200 officers from the highly trained, "elite" Metro Division to combat the city's first major crime increase in over ten years.  Kate Mather, Richard Winton and Cindy Chang of the LA Times report that the new data-driven, predictive policing strategy will transition from utilizing beat cops focused on building community relations to Metro officers employing their specialized tactical and weapons training.  Law enforcement officials have admitted that although the change is not ideal, something must be done to reverse the 26% increase in violent crime and 11% increase in property crime.

NE Bill Removing Mandatory Minimums Clears Senate:  Nebraska's proposed sentencing reform measure, which would limit the use of mandatory minimum sentences to reduce prison overcrowding, passed the state senate yesterday with a 28-9 vote.  Grant Schulte of the AP reports that the bill would eliminate mandatory minimum sentences for certain felonies such a robbery and assault on a police officer, and would limit use of the "habitual criminal" enhancement.  Nebraska's Attorney General and some conservative senators criticize the bill for removing tools essential for prosecutors to do their jobs.  Supporters claim the law would not affect a judge's ability to impose long sentences for heinous crimes.

Tulane Body Camera Footage Will Not Be Public Record:  The footage obtained from body cameras of the Tulane University Police Department in Louisiana will not be made available to the public, according to the Office of General Counsel.  Brandi Doyal of the Hullabaloo reports that it is not a requirement for TUPD to release footage because "it is not a public body under the provisions of the Louisiana Public Records Act."  General Counsel states that the decision protects the rights of victims and perpetrators, but opponents of the policy feel that the public has the right to view the tapes.

Half The States Consider Right-To-Die Legislation:  Half of US states are considering medically assisted suicide legislation this year, which would "allow mentally fit, terminally ill patients age 18 and over, whose doctors say they have six months to live, to request lethal drugs."  Malak Monir of USA Today reports that Oregon, in 1997, was the first state to have "right-to-die" legislation written into law, and its practice has led to benefits in improving the quality of life for terminally ill patients in the state.  Opponents argue that the potential for mistakes and abuse offset any benefits.

Parolee Speeding To Make Curfew Kills Passenger:  A felon on parole was hurrying home on his motorcycle to comply with his curfew requirements when he crashed on Highway 99, killing his female passenger.  Bill Lindelof of the Sacramento Bee reports that witnesses told CHP officers that the driver was traveling at a high rate of speed and weaving through traffic.  He  was later found to be under the influence of alcohol and arrested for gross vehicular manslaughter while intoxicated, driving without a license, and violating parole.  The victim was 21-year-old.

While the defense is brainstorming to come up with psychobabble excuses for child shredder Dzhokahr Tsarnaev (or seeing what some social worker will agree to say), other grisly news continues apace.  This story caught my eye:

[A] Philadelphia woman accused of abandoning her quadriplegic son with cerebral palsy and leaving him alone in the woods for over five days with nothing but a blanket and a Bible will be charged with attempted murder once she is released from the hospital.

Isn't it a nice touch that she's the one in the hospital?

Still, we wouldn't want to get too tough here.  She left him a Bible, after all.

Nyia Parler, 41, is accused of leaving her 21-year-old son in a wooded area ...around 11 a.m. Monday before traveling to Montgomery County, Maryland to visit her boyfriend.

At least the trip was for something urgent.

"A lot of things could've happened out there," [Officer] Walker said. "Obviously he's in the middle of a wooded area. You have wild animals out there. You never know what's going to happen...."

Officials describe the victim as "non-verbal" and completely dependent on others for his care.

In my view, a jury should be able to consider the death penalty for behavior involving life-threatening harm, gross cruelty, and conduct outside the bounds of civilized life. In other words, it should be able to consider it here.







Should the Senate Vote on the JSVA?

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The question has been raised whether it would not improve the accountability and transparency of the legislative process for the Senate, or at least the Senate Judiciary Committee, to bring the Justice Safety Valve Act (JSVA) to a vote.

It's a fair enough question.


The JSVA's substantive provisions are, in full, as follows:

Authority to impose a sentence below a statutory minimum.

Section 3553 of title 18, United States Code, is amended by adding at the end the following:

"(g) Authority To impose a sentence below a statutory minimum To prevent an unjust sentence.--

"(1) GENERAL RULE.--Notwithstanding any provision of law other than this subsection, the court may impose a sentence below a statutory minimum if the court finds that it is necessary to do so in order to avoid violating the requirements of subsection (a).

"(2) COURT TO GIVE PARTIES NOTICE.--Before imposing a sentence under paragraph (1), the court shall give the parties reasonable notice of the court's intent to do so and an opportunity to respond.

"(3) STATEMENT IN WRITING OF FACTORS.--The court shall state, in the written statement of reasons, the factors under subsection (a) that require imposition of a sentence below the statutory minimum.

"(4) APPEAL RIGHTS NOT LIMITED.--This subsection does not limit any right to appeal that would otherwise exist in its absence.".


I think the idea of having a vote, to increase accountability and transparency, is not without merit.  Indeed, I think what we need here is much more transparency. 


Last night I participated in a debate on the death penalty hosted by Intelligence Squared in New York.  See Bill's post yesterday.  We will post a link to the podcast when it is available.

I have participated in many debates on this subject over many years, but this one was exceptionally well done by the hosts.  It was very well produced, fairly structured, and well moderated.

IQ2 scores debates by having the live audience vote on the motion before the debate begins and again after it concludes.  The winner is the side with the greatest net votes changed in favor of its position.

The motion was that the death penalty be abolished, so a "yes" vote is a vote against the death penalty, and a "no" vote is a vote to keep the death penalty.  There is a potentially confusing double negative there, but the moderator explained the vote carefully enough that I doubt anyone was confused.  Our side was, of course, the "no" side.

And the result:

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Measure to Reduce Recidivism Passes OK Senate:  House Bill 2179, a measure that seeks to reduce criminal recidivism by giving nonviolent offenders greater access to the workforce, has passed the Oklahoma Senate.  Edmond Sun reports that the bill would allow nonviolent offenders on probation to obtain commercial driver's licenses, rather than just a provisional license, which would make them more employable.  Offenders not on probation or those with suspended or revoked licenses resulting from a DUI would not be eligible to receive a CDL.

CA Bill On Date Rape Drugs Clears First Committee:  Assembly Bill 46, which would restore the ability to charge possession of date rape drugs as a felony, cleared the Assembly Public Safety Committee on a bipartisan vote yesterday.  Last November, California voters passed Proposition 47, which converted the possession of drugs, including date rape drugs, from a felony to a misdemeanor.  The Santa Clarita Valley Signal reports that the bill would create a new felony; possession of date rape drugs with intent to commit sexual assault, rather than directly converting possession to a felony.  This avoids the requirement that amendments to an initiative go before the voters.  

Over Half Million SSNs Issued To Illegal Immigrants:  More than a half-million new social security numbers have been issued by the Obama Administration to illegal immigrants granted amnesty under the Deferred Actions for Childhood Arrivals program.  Caroline May of Breitbart reports that DHS has approved more than 787,068 DACA applications as of December 31.  The issuance of these social security numbers means that thousands of illegal immigrants will be eligible for tax benefits and refunds.

Colorado Lawmakers Extend DNA Collection Serious Misdemeanors:  A new Colorado bill, HB 1312, would expand the state's ability to collect DNA, requiring that a sample be collected from adults convicted of one of the eight misdemeanors deemed serious.  Lance Hernandez of the Denver Channel reports that the measure will be a major help to law enforcement because DNA collection is cost effective, solves cold cases, and gets criminals off the streets.  However, right on cue, the ACLU voiced their opposition to the bill, citing it as an "erosion of our civil liberties."

Missouri Executes Third Murderer This Year:  The state of Missouri executed condemned murderer Andre Cole Tuesday for the 1998 stabbing murder of a friend of his ex-wife, who he also attempted to kill.   An Associated Press story reports that when Cole was behind on his child support payments he told co-workers that "before I give her another dime, I'll kill her."  When overdue support payments were deducted from his paycheck, Cole went to her home to carry out his promise.  The execution, which utilized pentobarbital,  was uneventful and took nine minutes. 


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