We continue to make small gains in the ability of victims of crime to have their voices heard in cases affecting the criminal justice system.  On March 12, I noted that the California Court of Appeal had rejected the attempt of the California Department of Corrections to throw out the suit of two victims' families to force it to adopt a lethal injection protocol.

Meanwhile, back in federal court, the fight continues over the attempt to squelch the federal "fast track" on capital habeas cases, the never-implemented major reform of the Antiterrorism and Effective Death Penalty Act of 1996.  Since USDoJ is not interested in fighting this as vigorously or expeditiously as is needed, I moved to intervene on behalf of Marc Klaas, the father of a murdered little girl.  Unsurprisingly, the other side's favorite district judge rejected the intervention motion, so I filed an appeal from that order plus a protective appeal from the injunction on the merits of the case. 

The capital defense lawyers, being represented contra bono publico by the Orrick firm, moved to have the merits appeal dismissed before briefing.  Today the appellate commissioner denied that motion.  On its face, the denial is "without prejudice to renewing the arguments in the briefs," but since the whole point is to preclude the briefing, that is a win for the good guys.

Examining the Medical Model of Crime

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The Heritage Foundation is in my view on the wrong side of sentencing "reform," but remains a valuable, intellectually stimulating and honest organization.  (For example, its Senior Fellow, John Malcolm, acknowledges that increased incarceration accounts for from 25 to 35 percent of the huge decline in crime over the last generation).

Those who are interested and able might wish to attend its Tuesday, April 14 lecture titled, "How Modern Psychology Undermines Morality" by psychiatrist and author Theodore Dalrymple. Its description is:

Modern psychology is one of the most powerful intellectual authorities of our time. Its appeal derives in no small part from its ability to absolve us of responsibility for our misdeeds, vices, and failings. It's never our fault. It's the fault of our subconscious drives, our parents, or our genes. And the solution to our behavioral problems lies not in reforming our character, but in medicines and therapy that can cure the diseases and disorders diagnosed by psychology.

In Admirable Evasions: How Psychology Undermines Morality, the well-known writer, social critic, and psychiatrist Theodore Dalrymple shows how the findings of psychology are superficial and its net effects deleterious. Dalrymple examines the damage psychology has done to our politics by relieving individuals of moral responsibility and diminishing their ability for honest self-reflection. Theodore Dalrymple is the pen name of Anthony Daniels.

News Scan

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Prison Population Down, Payroll Up:  As the prison population drops 38 percent, the payroll costs for the CDCR have increased 5.3 percent, resulting in one third of officers earning more than $100,000 a year due to an increase in overtime hours worked.  Joel Hoffman of UT San Diego reports that overtime shifts have become a necessity due to a wave of retirements as well as recruitment classes slashed during budget crises.  Currently, four training academies are operating and are expected to generate 7,000 new recruits in the next three years to remedy the disparity.

CA's Death Row Runs out of Room:  Governor Jerry Brown is seeking $3.2 million from the California legislature for the addition of 100 cells for condemned inmates at San Quentin State Prison because the state's death row has run out of room.  Paige St. John of the LA Times reports that the death row population has increased steadily, from 646 inmates in 2006 to the current 751, and an average of 20 new death row arrivals are anticipated in each upcoming year.  Expanding death row is not out of the realm of possibility being that the prison's general population has decreased with the passage of AB 109 and Prop. 47.  Critics of the proposal emphasize Gov. Brown's failure to take steps to resume executions.

Fetal Homicide Debate Continues in CO:  Heated debates continue in Colorado over a fetus' legal rights after the brutal attack of an 8-month-pregnant woman, whose unborn child died when it was cut from her body, failed to result in a homicide charge.  Ivan Moreno and Nicholas Riccardi of the AP report that the state of Colorado has rejected fetal homicide proposals twice, fearing they could interfere with abortion rights.  Current law states that a person can face a murder charge in the death of a fetus "only if there is evidence that it survived apart from its mother."  In this case, there was no such evidence.

Some people may be surprised to learn that the State of Kansas has a state supreme court that tilts very heavily in favor of criminals, especially murderers in capital cases.  This is a result of the state's judicial selection process, which unwisely gave the state bar the keys to the initial entry gate to the bench, naively believing that this would result in selection of judges according to merit.  In reality, so-called "merit selection" only substitutes bar politics for general politics, a big step down.

Today the U.S. Supreme Court took up the highly controversial cases of the Carr brothers, both titled Kansas v. Carr, Nos. 14-449 (Jonathan) and 14-450 (Reginald), along with Kansas v. Gleason, No. 14-452.

Update:  Questions presented follow the break.

Yet Another Summary AEDPA Reversal

The U.S. Supreme Court has yet again summarily and unanimously reversed a decision of a federal court of appeals for failure to observe the limitation that Congress placed on its authority to second-guess decisions of state courts.

If two courts disagree on a question of law, which court's opinion should prevail?  Within the hierarchy of appellate review, the "higher" court's opinion prevails.  That is what we mean when say that questions of law are reviewed "de novo."  (For questions of fact, the judge or jury at trial gets broad deference.)

When a federal court considers the decision of a state court on habeas corpus, though, the situation is different.  A federal district court or court of appeals is not "higher" than the state supreme court in this sense.  Congress has never placed any federal court but the Supreme Court above the state courts in the sense of appellate jurisdiction.

So what do we do when a habeas petitioner claims in federal court that he is in jail illegally, but his legal argument has already been considered and rejected by the state court on appeal or state collateral review, and the U.S. Supreme Court has either refused or not been asked to review the state court's decision directly?  It's complicated.
The U.S. Supreme Court summarily reversed a decision of a North Carolina court regarding GPS monitoring of sex offenders and the Fourth Amendment.  The North Carolina court's error illustrates once again how far too many lawyers in the post-Mapp world have come to view the Fourth Amendment and the exclusionary rule as the same thing.  They are not.  Not even close.
As the direct cost of video recording plummets to the insignificant, there is widespread support for more cameras in law enforcement, from interrogation rooms to dashboards to the cops themselves.  From the standpoint of those who generally support law enforcement, we are confident that in the vast majority of cases where police misconduct is alleged, a recording will refute the allegation.  The most powerful example of where a video could have done a world of good, of course, is the recent Ferguson, Missouri debacle.  We now know that "hands up" was a lie and this was a fully justified use of force, but that would have been known from the beginning and the story would never have been more than a local incident if there had been a video recording.

Where the video does indeed show that the cop is a bad apple, it will be valuable in weeding him out, leaving us with a better police force.

But what about other people inevitably captured on police video?  By the nature of police work, the videos will very often record people in the worst moments of their lives.  Should those videos be public?  Might a video of a college student being arrested while sloppy drunk be used in an attack ad 20 years later when the now-mature upstanding citizen runs for public office?  Could videos be used in extortion schemes similar to those we saw with "revenge porn," except that unlike the revenge porn the person shown had no choice in the making of the video in the first place?
Accusing the police of racially-motivated abuse has become a favorite indoor sport. As the title of this entry suggests, the most prominent recent episode by far was the malicious and fake accusation that white police officer Darren Wilson murdered a peaceful and compliant Michael Brown simply because Brown was a teenage African American.  It turns out that the accusation was concocted, but it got plenty of currency, including from the Attorney General (until his own Justice Department, months later, quietly debunked it).

As ever undeterred by the truth, the Cops-Are-Klansmen industry keeps right on going. The latest episode I've learned about was this case, in which a rich Hollywood actress accused the cops of  --  you'll never guess  --  racially profiling her son.

As it turns out, the son is a small-time druggie and made up the story.  The actress at least had the decency promptly to apologize to the police.  Would that some MSNBC hosts had the same scruples.


New Leadership at NAAUSA

The National Association of Assistant United States Attorneys (NAAUSA) is an organization representing career federal prosecutors.  I was a member at one time, although my membership has lapsed.  It led the opposition of hundreds of prosecutors to the Smarter Sentencing Act, which failed in the last Congress (but has been re-introduced now).  Its opposition was cited by then Ranking Member, now Chairman, Chuck Grassley, in his statement in opposition to the Act after it got out of Committee.  It then never made it to the floor, despite then-Majority Leader Harry Reid's promise that he would bring it up  --  and that was before Sen. Reid lost the fight with his exercise bike.

NAAUSA last week elected Steve Cook as its President.  I have never met Mr. Cook, but I have occasionally exchanged emails with him.  I believe he is an outstanding leader for NAAUSA, and that he will do even more to strengthen its role in fighting the dumbing down of federal sentencing.

The text of part of the relevant part NAAUSA's press release announcing Mr. Cook's election follows the break.
"Evidence-based" sentencing is one of the catch-phrases of the sentencing reform movement.  I have never been able to figure out exactly what it means (my experience as an AUSA was that evidence has always been considered at sentencing), but I think it means that sentencing should be based on facts.

OK, good, if that's what it actually means.  That idea was, as Kent has pointed out (cf. his comment on this thread), one of the main selling points of Prop 47 in California.  Prop 47 reduced sentencing for a number of drug and property offenses by re-classifying them as misdemeanors.  The theory, or so we were told, was that judges would be given more leeway to impose "flexible," evidence-based sentences, and that this would help reduce crime.

Now that, in the wake of Prop 47, property crime (and violent crime) has exploded in the Golden State, however, the refrain is that it's, ummm, too early to pay attention to the evidence so attesting.

And no, I am not making this up.  Read it for yourself.

Abolitionism versus Reality

Statement of abolitionism, via the head of the National Coalition to Abolish the Death Penalty (interviewed by Salon):

"How death penalty politics radically, shockingly changed:  Death row's days are numbered..."

Statement of reality, via Gallup:

"Americans' Support for Death Penalty Stable.  WASHINGTON, D.C. -- Six in 10 Americans favor the death penalty for convicted murderers, generally consistent with attitudes since 2008."

For willingness to lie, belligerently and with a straight face, I have seldom encountered anything like the abolitionist movement.  The refrain is that public support for the death penalty has been crumbling in recent years, but the truth is otherwise (as abolitionists know while they continue to dissemble). 

News Scan

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Yolo County Questions Prop. 47 Sentencing:  Yolo County District Attorney Jeff Reisig has expressed disagreement with two Yolo County judges regarding the handling of low-level drug offenses under Prop. 47, adopted by CA voters last November.   Sarah Dowling of the Daily Democrat reports that the Reisig believes that drug offenders are less likely to pursue drug treatment without incarceration or the threat of incarceration.  He has proposed developing new sentencing guidelines for drug offenses, and Chief Probation Officer Brent Cardall agrees.  He is suggesting reforms to probation protocols that would help prevent drug offenders from avoiding treatment.

Gov. Brown To Parole Sick, Elderly Convicts:  In a cost-cutting effort, Governor Jerry Brown has proposed the parole of  hundreds of convicts who are chronically sick, mentally impaired, and over the age of 60.  Thomas D. Elias of the Napa Valley Register reports that this idea was first introduced in 2002 by Ray Procunier, the former California director of corrections under Ronald Reagan, who pointed out that Reagan cut the prison population by one-third with no increase in crime.  Since violent crimes are typically committed by young offenders in their teens and 20s, and the costs of treating sick and/or elderly inmates is extremely expensive, many consider their release to be a sensible solution to ease prison overcrowding.

Burglaries Linked to Prop. 47:  A rash of burglaries in La Cañada, California has residents wondering whether or not it is the direct result of Prop. 47, a law passed in November that released thousands of inmates from state prisoners.  Anita S. Brenner of the La Cañada Valley Sun reports that burglaries have been on the rise statewide, likely due to drug offenders, who often commit thefts and burglaries in order to feed their habit, receiving only a citation for their crimes.  State corrections officials insist that long-term studies must be conducted before the "true effect" of Prop. 47 is seen. 

CA Loosens Jessica's Law:  Jessica's Law, or Prop. 83, which forbids sex offenders from living within 2,000 feet of a school or park, is becoming less restrictive in California.  Kate Mather of the LA Times reports that the "blanket restrictions" outlined in the law will no longer be imposed, and cases will be assessed more individually.  The law, as it stands now, will still apply to high-risk sex offenders and offenders whose crimes involved children under the age of 14, who will be forbidden from living within a half-mile of a school or park.  This loosening of the law comes after a CA Supreme Court decision holding that the restrictions could not be applied in San Diego County due to a lack of residential properties 2,000 feet from schools and parks.

Desertion and Consequences

AP has an article headlined, "Bergdahl Charged Despite Torture, Attempts to Escape Taliban" (italics added):

Army Sgt. Bowe Bergdahl says he was tortured repeatedly in the five years he was held captive by the Taliban: beaten with a copper cable, chained, held in a cage and threatened with execution after trying to escape.

Bergdahl described his captivity in a note his lawyer made public Thursday after sharing it with the Army in an attempt to avert a court martial.

The Army charged Bergdahl nevertheless on Wednesday, accusing him of desertion and misbehavior before the enemy for leaving his post in Afghanistan in June 2009.
Despite?  Nevertheless?  Is desertion any less desertion because it is followed by bad consequences for the deserter when the enemy he places himself in the hands of turns out to be (surprise, surprise) the enemy?

"Bergdahl's lawyer Eugene Fidell said the sergeant has already suffered more than enough."  Okay, consider that in sentencing, but he is still a deserter, and his military record needs to reflect that.
Anyone who knows anything about polling will tell you that you can produce dramatic swings in results by how you phrase the question.  A common and blatant method of skewing a poll is to build arguments for one side into the question.

Public Policy Polling has done a poll on the Pennsylvania Governor's death penalty moratorium that is so blatantly worded that it reads like a parody of bad polling.  If an instructor gave his students an assignment to "draft the worst poll question you possibly can," it would read something like this:

Governor Wolf has temporarily paused executions in Pennsylvania until concerns about the risk of executing innocent people, the high cost of the death penalty, and serious issues of unfairness can be addressed by a bipartisan study commission. Do you strongly support, somewhat support, somewhat oppose or strongly oppose the decision to temporarily pause executions?
Yet even skewed to the max they didn't crack a majority.  "Strongly support" and "somewhat support" only totaled 50%.

They also asked the extremely biased "which punishment" question we have noted many times before, implying that the respondent must choose a single punishment for all murderers.

The press seems to be lapping this up, uncritically reporting the poll result with no mention of the extreme bias in the wording.  See, e.g., this article in the Wilkes-Barre Times Leader.

The real news here is that support for the death penalty remains so robust that even a badly worded question like this can't generate a substantial majority.  No one seems to be getting that.

News Scan

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Sen. Gillibrand Promotes Sex Assault Legislation:  In the wake of the findings that the UVa gang rape story published in the Rolling Stone in November was false, New York Senator Kristen Gillibrand still wants sexual assault on college campuses to be addressed more seriously.  Jessica Bakeman of Capital New York reports that Gillibrand's bill, the Campus Accountability and Safety Act, "would require colleges to sign memorandums of understanding with local law enforcement" in order to promote collaboration.  She hopes that victims will feel more comfortable reporting legitimate on-campus sexual assaults if they understand that law enforcement officials will be involved.

Big Data Assesses Risk and Recidivism:  The criminal justice system is leaning toward big data analytics to make predictions about future criminality, which would influence sentencing.  Dawinder Sidhu of the Baltimore Sun reports that 20 states have already adopted this approach, which purports to more accurately differentiate between high- and low-risk offenders. US Attorney General Eric Holder supports the use of risk-assessment tools, but is concerned that factors such as race and sex will inaccurately skew an individual's results.

Rape Victim Fights to Extend Florida's Rape Law:  Orlando resident Danielle Sullivan stands behind new legislation called the 43 Days Initiative Act, which would extend Florida's statute of limitations to ten years for reporting adult rape.  Ann Keil of My Fox Orlando reports that Sullivan was raped five years ago, but when she went to report it after four years, she was 43 days too late to seek prosecution.  Thirty-two states have a statute of limitations of ten years or more, while 18 states have no statute of limitation at all for reporting adult rape.  The passage of this bill would bring the state of Florida "in line with the rest of the nation."

Calaveras County Probation to Arm Officers:  The Calaveras County Board of Supervisors unanimously approved the purchase of guns for its probation officers due to the increased threat posed by high-risk offenders out on AB 109 (Realignment).  The Union Democrat reports that because so many higher risk offenders are out on Realignment, probation officers must conduct home visits accompanied by an armed Sheriff's deputy.  

Senate Committee Kills Bill That Would Shield Drug Companies:  A South Carolina Senate committee killed the bill with a 7-7 vote that would hide the names of companies that sell execution drugs, although it is still alive in the Legislature.  Jeffrey Collins of the AP reports that Democrats primarily voted against it on the grounds that condemned inmates have the right to know the identities of the companies making the drugs that will kill them.  Senator Mike Fair, in favor of the bill, has suggested that the identities of these companies can be kept secret from the public but confidentially disclosed to the person being executed and their defense team, just as with the identities of the doctors and nurses involved with executions.

The WSJ discusses the prosecution of Sgt. Bowe Bergdahl, illustrating why the pardon I predict (at a politically convenient moment for the Commander-in-Chief) will be a betrayal of duty and honor by the President even more stunning than Bergdahl's embrace of Jihad:

[T]he bigger story [in the Bergdahl case] is the extravagant price the U.S. has paid because President Obama wanted to score political points.

Readers will recall that then-Private First Class Bergdahl went missing from his post in Paktika province in eastern Afghanistan in June 2009. Fellow soldiers suspected desertion, though the Army conducted a risky manhunt to recover him...

The Associated Press has reported that an internal Pentagon investigation in 2010 found "incontrovertible" evidence that he had walked away from his post. Journalists also uncovered an exchange of letters in which the soldier wrote to his father "the title of U.S. soldier is just the lie of fools," that he was "ashamed to even be american," and that "the future is too good to waste on lies." Replied father Robert: "OBEY YOUR CONSCIENCE!"

All of this would have been known to President Obama and National Security AdviserSusan Rice when the Administration decided to swap Sgt. Bergdahl for five Guantanamo Bay detainees--all top Taliban leaders--in May 2014. Mr. Obama even invited Sgt. Bergdahl's parents to a [chipper  --  ed. addition] Rose Garden ceremony to announce the swap, while Ms. Rice declared on a Sunday talk show that the soldier had served his country with "honor and distinction."

It Was Murder

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The most shocking news this morning is reported by the Wall Street Journal:

The co-pilot of Germanwings Flight 9525 appears to have deliberately crashed the plane after he was left alone in the cockpit, according to a French prosecutor.

The captain was intentionally locked outside minutes before the A320 crashed into an alpine mountain ridge, French Prosecutor Brice Robin said Thursday. Co-pilot Andreas Lubitz, a 28-year-old German national, was silent throughout the plane's descent and was alive at the point of impact, according to the prosecutor.

Mr. Robin's conclusions are drawn from the plane's cockpit voice recorder, recovered at the crash site in the French Alps late Tuesday and analyzed by French accident investigators on Wednesday.

The recording contains screams believed to be from passengers, once they recognized the plane was crashing.

As with ISIS's burning to death a caged Jordanian pilot, the mind-bending horror of a mass murder undertaken like this causes me to wonder how any principled person can woodenly oppose capital punishment.  It took eight to ten minutes for the plane to hit the ground, after a steep, controlled dive that those on board could not have helped knowing was their last time on this earth. The horror and panic of it, multiplied for 150 passengers, is something I cannot put into words.

The co-pilot who engineered this horror died in it.  But he might have survived  -- it happens every now and again.  Had that happened, it's beyond my comprehension that a jury of fair-minded people, after hearing all the evidence, should be absolutely barred from having at least the chance to consider a death sentence.

The idea that a term of years is fitting punishment for the horror-laden, violent murders of dozens of helpless men, women and children  --  people subjected to a grotesque mental torture incapable of description (before being smashed to death)  -- is incoherent in any system I could recognize as civilized.

News Scan

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Hispanic Activists Support Tougher Immigration Laws:  SB 185, a bill in the Texas Legislature that would stop cities from enforcing policies that ban police officers from asking immigration-related questions to detainees, is gaining significant support from Hispanic Texans.  Kristine Galvan of My Fox Houston reports that supporters feel strongly that police officers need to have "all the tools available to them to keep us safe," which would include asking questions to arrestees and suspicious persons regarding legal status.  Maria Espinoza, director of the Remembrance Project, an organization that works with families of American citizens killed by illegal immigrants, is recruiting Hispanic conservatives to voice their support of SB 185.

Pension-Forfeiture Bill Proposed for Child Predator Teachers:  Washington State Senator Barbara Bailey has introduced a bill that would strip the pensions of persons in violation of the public trust, such as a teacher convicted of child molestation.  Dan Springer of Fox News reports that in the state currently, 22 of the 130 teachers who lost their licenses are convicted felons that are costing taxpayers $2 million to pay their pensions.  The Washington Education Association is challenging the bill, arguing that "the criminal justice system should have no bearing on a public employee's retirement benefits."

Violent Crime Up 26% In LA:   Los Angeles Police Chief Charlie Beck told the police commission Tuesday that violent crime in the city was up 26%.  The Chief reported that property crime rose by 11% and that serious crime has climbed 14% so far this year.  Richard Winton of the LA Times reports that the surge of violence was driven in part by a spike in aggravated assaults, which began last year and is still climbing.  The Chief noted that many of the increased assaults were domestic violence and alcohol-fueled street attacks.  Last year a Times investigation found that 1,200 violent or serious crimes had been misclassified  by the Department as low-level offenses. 

Serving with "Honor and Distinction"

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Those are the words the President's National Security Advisor, Susan Rice, used to characterize Sgt. Bowe Bergdahl.  It was politically necessary for Ms. Rice to praise Bergdahl in order to defend her boss from criticism that he had swapped five high value Taliban commanders for one traitor.

Today, Mr. Honor and Distinction was formally charged with desertion in battle and (in effect) cooperating with the enemy.

Confession #1:  I previously, and it now turns out wrongly, predicted that the Administration would just let the whole mess disappear into the fog, because it has no heart for prosecuting a "misguided youth."

Confession #2:  I also predicted, also wrongly, that if perchance the Administration allowed the Army's investigation to proceed at all, it would be cut short by a preemptive pardon, which I wrote here.

Prediction:  In light of my record of fumbling, I could scarcely blame readers for discounting my next prediction, but here it is anyway.  There won't be a Bergdahl pardon until roughly 21 months from now, after the 2016 election, and "in the spirit of Christmas."  Marc Rich, call your office.

A Civil Day at SCOTUS

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Today is all civil cases at the U.S. Supreme Court.  The oral argument calendar is three consolidated EPA cases.  The two decisions announced today were in civil cases.  Still waiting on Elonis.

The most controversial case, by far, will be the racial gerrymandering case, Alabama Black Legislative Caucus v. Alabama.   Part IV of the opinion deals with when race is the "predominant motivating factor," an issue that comes up in Batson cases.  Not sure if there will be any spillover.

In dissent, the ever-entertaining Justice Scalia takes aim at the way the majority bends over backwards to allow the plaintiffs to change their theory of the case after they were losing.

However, rather than holding appellants to the misguided legal theory they presented to the District Court, it allows them to take a mulligan, remanding the case with orders that the District Court consider whether some (all?) of Alabama's 35 majority-minority districts result from impermissible racial gerrymandering....  It does this on the basis of a few stray comments, cherry-picked from district-court filings that are more Rorschach brief than Brandeis brief, in which the vague outline of what could be district-specific racial-gerrymandering claims begins to take shape only with the careful, post-hoc nudging of appellate counsel.
Well, I know how I'm going to title my next pleading:  "Rorschach Brief in Support of Motion for Leave to Take a Mulligan."

Birtherism déjà vu

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Years ago, I got an email from a correspondent all excited about the "birther" controversy, whether Barack Obama was actually born in Hawaii or in a foreign country.  I told him to fuhgeddaboudit.  Even if he were born elsewhere, as the son of a U.S. citizen mother he was a "natural born Citizen" within the meaning of Article II of the Constitution.

Here we go again.

News Scan

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Abusers Take Classes, Effectiveness Questioned: In an effort to reduce domestic violence, some cities in Nebraska have been employing intervention programs for the past 20 years to teach hundreds of violent and abusive men about healthy relationships. Riley Johnson of the Lincoln Star Journal reports that attending the programs are often a requirement made by a judge in place of jail time, but there has not been sufficient tracking of how many of these men that complete the program go on to reoffend.  Minimal local research has been conducted, revealing that in 2008, 14 percent of the 184 men enrolled in a program committed another act of domestic violence upon completion, with some reoffending while still in the program.

Boston Residents Prefer Life For Bomber: A new poll of Boston residents released by WBUR reveals that 62 percent would sentence surviving Boston Bomber, Dzhokhar Tsarnaev, to life in prison while only 27 percent advocate for the death penalty.  Katherine Q. Seelye of the New York Times reports that despite the grim details of the bombings shared during Tsarnaev's trial by victims, the poll results are a reflection of the region's "longtime opposition to capital punishment."  However, the fact that Tsarnaev's crime is federal and not state, he is facing a death sentence that the Justice Department is pursuing.

Discretion for Judges Sentencing Juvenile Offenders: SF 448, a bill passed by the Iowa Senate, gives judges "wide discretion" in the sentencing of persons under the age of 18, to comply with the US Supreme Court's ruling in Miller v. Alabama which held that mandatory life sentences for juveniles are cruel and unusual punishment.  Karl Schilling of The Des Moines Register reports that a judge can take certain factors into account on an individual case-by-case basis, such as the offender's maturity or frontal lobe development.  If appropriate, a juvenile can still face a life sentence at the discretion of the judge.

Girl's Mother Wants Death In Run-to-Death Case: Heather Walker, the mother of Savannah Hardin, the 9-year-old girl who was run to death by her grandmother Joyce Hardin Garrard as punishment for telling a lie, wants to see her former mother-in-law face the death penalty.  Jay Reeves of the AP reports that during Walker's testimony on Monday at Garrard's capital murder trial, she testified that Garrard shouted at Savannah as she lay dying in a hospital bed and has shown no signs of remorse for her death.  Savannah's stepmother, Jessica Mae Hardin, is also facing murder charges for sitting by as Garrard ran the girl to her death.
The Attorney Discipline section of the U.S. Supreme Court's regular Monday orders list is not often interesting.  Mostly it's lawyers who have been disbarred by their home state courts getting routinely booted by SCOTUS as well, and that is rarely newsworthy.  But see In re Clinton, 534 U.S. 1016 (2001).

Today's list has an interesting item, though.  The Court ordered a lawyer who had submitted an unintelligible petition to show cause why he should not be disciplined.  Today they let him off with a finger wag.

A response having been filed, the Order to Show Cause, dated December 8, 2014, is discharged. All Members of the Bar are reminded, however, that they are responsible--as Officers of the Court--for compliance with the requirement of Supreme Court Rule 14.3 that petitions for certiorari be stated "in plain terms," and may not delegate that responsibility to the client.
Lyle Denniston has more on SCOTUSblog.
Yesterday the U.S. Supreme Court took up once again the question of whether its decision in Miller v. Alabama, that LWOP sentences for under-18 murderers must be discretionary and not mandatory, applies retroactively to overturn sentences that were correctly decided on appeal under the law existing at the time.  The previous case on this question, Toca v. Louisiana, became moot when Toca's sentence was commuted. 

The new case is Montgomery v. Louisiana, No. 14-280.  This case is a better vehicle than Toca, as the facts are more typical of an LWOP case.  Montgomery murdered Deputy Sheriff Charles H. Hurt in 1963, when Montgomery was 17.  He could have been executed in the electric chair at the time, but the jury granted him leniency.

The question presented as phrased by the petitioner/defendant is, "whether Miller adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison?"  The Court added its own question, "Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller v. Alabama, 567 U. S. ____ (2012)?"

Note the "die in prison" phrasing.  Apparently death is no longer different.

My initial impression is that the answers are "no" and "yes."  Since the parties are agreed on the jurisdictional point, the Court may appoint an amicus to argue the "no."

In other action, Court decided two civil cases today.  Still waiting on the Facebook threats case, Elonis v. United States.  Possibly tomorrow.

Yesterday the Court turned down the Wisconsin voter ID case, Frank v. Walker, No. 14-803.

SF Deputy City Attorney Christine Van Aken began her argument in City and County of San Francisco v. Sheehan the traditional way: "Mr. Chief Justice, and may it please the Court."  Evidently it didn't, because she was immediately grilled by the Justices one might expect to lean her way for arguing a position different and narrower than the one they thought they had taken the case to decide.

Does the Americans with Disabilities Act have anything to do with the use of force by police to subdue a mentally ill and potentially dangerous person?  It shouldn't.  There is plenty of law governing use of force by police from other sources, and ADA is supposed to be about employment and public accommodations.

Lyle Denniston reports on the argument at SCOTUSblog.  I would not be surprised if the Court drops the case.  Technically, that's Dismissed as Improvidently Granted, or a DIG in SCOTUS practitioner parlance.

A Culture of Rape or a Culture of Lies?

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According to multiple sources, including this ABC News piece, the sensational story of a sadistic gang rape by (white, let's not forget that) frat boys is unsupported by any substantive evidence.  In other words, after searching for months, the police couldn't find a single witness or a single piece of forensic evidence to support the story.  Zip. The ABC article begins (emphasis added);

A five-month police investigation into an alleged gang rape at the University of Virginia, described in graphic detail in a Rolling Stone article, showed no evidence the attack took place and was stymied by the accuser's unwillingness to cooperate, authorities said Monday.

The article entitled "A rape on campus" traced the story from a student identified only as "Jackie," who said she was raped at a Phi Kappa Psi fraternity house on September, 28, 2012. Police said there were numerous discrepancies between the article and what they found in their investigation.

"All I can tell you is that there is no substantive basis to conclude that what was reported in that article happened," Charlottesville Police Chief Timothy Longo said.

Longo said Jackie first described a sexual assault in May 2013 when she met with a dean about an academic issue, but "the sexual act was not consistent with what was described" in the Rolling Stone article. When she met with police, she didn't want them to investigate the alleged assault.

She also refused to talk to police after the article was printed in November and ignited the national conversation about sexual assaults on college campuses. 

Ah, yes, our old friend the "national conversation."

News Scan

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Race-Baiting Hypocrisy: Last week, Illinois Senator Dick Durban criticized Republicans for forcing Loretta Lynch, President Obama's African-American nominee to replace Eric Holder, to "sit in the back of the bus" until a decision is reached on a heated human trafficking bill.  Investors Business Daily reports that Republicans made a counter-argument against Sen. Durban's accusations, because he once opposed and filibustered the GOP nominations of black and Latino appeals court judges for not being the "right kind" of minority candidate.  Republicans insist that their opposition to Loretta Lynch has nothing to do with her race, and everything to do with her policies.

Three Bay Area Police Shootings in Eight Hours: Three police-involved shootings occurred in the Bay Area in an eight hour period over the weekend, resulting in fatalities of the suspects in two of the three incidents.  Henry K. Lee of SF Gate reports that the first incident involved a suspect pointing and firing a gun at a convenience store employee, the second involved an agitated man wielding a hunting knife and replica gun, and the third suspect led officers on a high speed chase before exchanging gunfire with them.  The suspect in the third incident, Daniel Tolosa, is being hospitalized for a gunshot wound, but is expected to survive.  The other two suspects were fatally wounded by police officers.  Officers in all three incidents were unharmed.

Renewed Attention for Reformed Legislation of ABC: Legislation to remove the Alcohol Beverage Control's law enforcement powers, a bill previously proposed by Virginia State Senator Creigh Deeds, is coming under review again in the wake of the arrest of UVA college student Martese Johnson last Wednesday, which sparked the excessive force debate.  Hannah Hall and Juliana Radovanovich of the Cavalier Daily report that Deeds suggests that such law enforcement powers should be the sole responsibility of the state police, and would prevent questionable actions such as those displayed by ABC recently.  Both the investigation into ABC's actions during Johnson's arrest last Wednesday, as well as the passage of any legislation to remove their powers, will take considerable time.

Neighborhood Opposes Sex Offenders in Group Home: Residents of a Danby, New York neighborhood are outraged and "blindsided" after learning that a group home housing level 3 sex offenders is opening soon in their vicinity.  Kelsey O'Connor of the Ithaca Journal reports that Unity House, a nonprofit organization that provides housing and services to the mentally ill, chemically dependent, and physically disabled, were not required to notify the community of the home due to its small size.  Town officials were aware of Unity House moving into the neighborhood, but were also not informed of the two level 3 sex offenders that would be residing there.  Fearful residents have begun signing an online petition to restrict where these individuals can live.

Mass High Court Grants Counsel In Juvenile Parole Hearings: In a 5-2 decision, the Supreme Judicial Court ruled that inmates serving life sentences for murders they committed as juveniles are entitled to counsel and expert witnesses at their parole hearings, because it is a constitutional right.  Bob Salsberg of the AP for the Daily Journal reports that this ruling includes the requirement of the state to pay for a lawyer and any expert witnesses if the inmate is unable to afford private counsel. 
On February 5, the U.S. Supreme Court stayed the execution of Texas quadruple murderer Lester Leroy Bower while it considered his petition to take up his case for full briefing and argument.  Today the high court denied the petition, and the stay automatically terminates, giving Texas the green light to proceed (if they can find some pentobarbital).

In order to accept Bower's claim, the Court would need to further extend what is possibly the worst of all the errors in its capital sentencing jurisprudence, the Lockett/Penry rule that the defendant must be allowed to introduce "mitigating" evidence that has nothing to do with the crime and that the jury must be instructed to consider it.  The rule is wrong for the reasons explained by Justice White in Lockett v. Ohio, Justice Scalia in Penry v. Lynaugh and Walton v. Arizona, and Justice Thomas in Graham v. Collins.

Justice Breyer, joined by Justices Ginsburg and Sotomayor, dissents from today's order.  Interestingly, Justice Kagan does not join this opinion.

A Belated Royal Funeral

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Karla Adam has this story in the WaPo, giving us another segment of the story that won't die, though its subject did over five centuries ago.
The fact-checkers at the WaPo award their maximum falsehood rating.

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