Release Now, Pay Later

The Department of Justice is set to undertake the biggest legalized jailbreak in history.  That is not an exaggeration; it's a close paraphrase of today's Washington Post article, which begins:

The Justice Department is set to release about 6,000 inmates early from prison -- the largest one-time release of federal prisoners -- in an effort to reduce overcrowding and provide relief to drug offenders who received harsh sentences over the past three decades.

Notice what this paragraph does not include  --  the specific crimes for which those to be released were sentenced (the great majority of them for trafficking, including trafficking in heroin and other deadly drugs).  Also conspicuous by its absence is any reference to the judicial finding, a la' Plata, that federal prisoners are overcrowded to the point of an Eighth Amendment violation (there being no such finding).  Finally, no mention is made of the recidivism rate, since that would alert readers to the fact that the huge majority of these criminals  -- three-quarters  -- will soon enough take up where they left off.

In other words, less than a week after the introduction in the Senate of a major bill to require the premature release of thousands of drug traffickers, we learn that the release of thousands more was already in the works.

Goodness.  Why didn't any of the bill's sponsors highlight this in their announcement?

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TX Murderer to be Executed:  A Texas death row inmate is set to be executed Tuesday for the 1998 robbery and fatal shooting of a man for $8.  The AP reports that a clemency request was denied last week and no late appeals have been filed on behalf of 35-year-old Juan Martin Garcia, who robbed and fatally shot 36-year-old Hugh Solano in Houston 17 years ago when he was 18-years old.  Although Garcia admits to shooting Solano four times in the head and neck as Solano was getting into his car to go to work, he asserts that he should not face capital punishment because the jurors in his trial unfairly penalized him for refusing to take the witness stand in his own defense.  Following his arrest one week after Solano's death, evidence and testimony tied Garcia to at least eight aggravated robberies and two attempted capital murders in the weeks before and after the crime.  Garcia will be the 11th inmate executed in Texas this year.

A Brutal September in Chicago:  September has come to an end in Chicago, marked by more homicides than any other month and the second-most shootings.  Kyle Bentle and Abe Epton of the Chicago Tribune report that according to the Tribune's data, last month was the city's deadliest September since 2002, with over 50 people shot in two consecutive weekends.  Four charts compiled by Tribune reporters from data about shooting victims show shootings by month and year, age and sex of shooting victims and homicides by month.  Most of the shootings and homicides are clustered in the city's south and west sides.

Previously Deported Criminal Alien Arrested at Border:  A previously deported criminal alien from El Salvador, convicted and deported for the kidnap and rape of a 12-year-old girl at gunpoint, was arrested trying to cross the porous U.S.-Mexico border into Texas.  Ildefonso Ortiz of Breitbart reports that 34-year-old Rene Vladimir Escobar Bautista was arrested near the border city of Hidalgo over the weekend as he attempted to re-enter the U.S.  Escobar was deported in 2003 for kidnapping a 12-year-old girl at gunpoint from her Long Island, New York home and taking her to North Carolina in 2001.  He pleaded guilty and spent 16 months in prison before being deported to his native El Salvador.  Several criminal alien sexual predators who have been previously deported have been arrested near the Texas border in recent weeks.

Oregon Shooter Leaves Behind Manifesto:  In a manifesto left behind by the man who gunned down nine people at a community college in Oregon last week before committing suicide, he ranted about not having a girlfriend and being surrounded by "crazy" people, referring to himself as "the sane one."  The AP reports that the couple-pages long manifesto was penned by 26-year-old Christopher Harper-Mercer, who opened fire at Umpqua Community College in Roseburg, Ore. last Thursday, killing nine and injuring nine others before killing himself after a shootout with police.  Harper-Mercer's mother has told investigators that her son was struggling with mental health issues, though the claim cannot be disclosed publicly due to the ongoing investigation.  Classes will resume at the college next week.

SCOTUS Considers the Wichita Massacre

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Even among people who deal with violent crime all the time, there are some crimes of such revolting depravity, such pure evil, that they knock us back in our chairs just reading about them.  The United States Supreme Court considers such a case tomorrow.  It is the notorious case of brothers Jonathan and Reginald Carr, whose crime spree culminated in a case called the Wichita Massacre.

The horrifying facts of the case are described briefly in CJLF's brief and press release.

The Federalist Society will have a "courthouse steps" teleforum.  Details at the end of this post.
The Kansas Supreme Court bent over backwards to overturn the supremely well-deserved sentences of the Carr brothers.  Along with a dubious holding on severance of the cases, the majority's far-fetched theory is that because the jury was instructed to find other matters beyond a reasonable doubt, the fact that the jury was not expressly instructed on the burden of proof for mitigation meant that the jury might have turned this around and imposed a similar burden on the defendant to prove mitigating circumstances.  Under this scenario, a jury supposedly might have ignored mitigation proved by a preponderance but not beyond a reasonable doubt and then unanimously agreed to a sentence that the jurors would not have thought just if they had considered those circumstances.

"Preposterous" barely describes this convoluted logic.
About a year ago, I noted a controversy about the U.S. Supreme Court making changes to its opinions without any public announcement. The Court has responded and made a change to the way it makes changes.

There is now a "revised" column in the slip opinions page.  When a slip opinion has been modified, the date of the modification will appear in that column, and it will link to a version of the opinion highlighting the changes and showing both old and new text.  A change-highlighted version of Miller v. Alabama is here as a sample.

A "what's new" summary of this and other changes that apparently came from the Court is available at SCOTUSblog, but oddly not on the Court's own website, at least not anywhere I can find it.

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Gov. Brown Signs Racial Profiling Bill, Vetoes Date Rape Measure:  California Gov. Jerry Brown has signed a racial profiling bill and vetoed a measure involving date rape this Saturday.  David Siders of the Sac Bee reports that the racial profiling legislation, Assembly Bill 953, requires police officers to record the reason for each stop they make, the result and perceived race, gender and age of the individual stopped in order to "illuminate evidence of racial profiling."  Law enforcement groups argue that such a requirement burdens officers with needless paperwork, keeping them from their necessary duties.  Brown also vetoed 11 crime-related bills, including Senate Bill 333, which would have made it a felony to possess date-rape drugs with the intent to commit a sexual assault.  Under last year's ballot measure, Proposition 47, simple possession of date-rape drugs such as Rohypnol was reduced from a wobbler to a misdemeanor, igniting fierce opposition from prosecutors, law enforcement and the community. 

Post-Freddie Gray, Violence Still Plagues Baltimore:  Despite a slight drop, shootings and homicides are still high in Baltimore, where racial tensions and distrust in police continue to loom nearly six months after the death of an unarmed black man in police custody.  Edmund DeMarche of Fox News reports that although homicides in September represented a drop from the record-breaking four-decade high of 43 recorded in May and 45 seen in July, locals are still angry and police officers still demoralized post-Freddie Gray, whose death in April sparked rioting, looting and the arrests of six Baltimore police officers.  Lt. Gene Ryan, president of the Baltimore Fraternal Order of Police, says that following the April unrest, police officers are "being attacked at every different angle and they're not getting the support they need and deserve" from Mayor Stephanie Rawlings-Blake and other civic leaders.  University of Maryland law professor Michael Greenberger and other experts add that Baltimore's "less assertive" police force, stemming from either resentment, their treatment by city leaders or fear that they too can face arrest for doing their jobs, is reflecting unfavorably in the city's crime statistics.  

Police Challenged by Cyber Banging:  A younger generation of "cyber bangers" is challenging the LAPD as crime and gang violence, particularly in South Los Angeles, continues to climb.  Sandy Banks of the LA Times has this column describing how gangbangers of today have become bolder and less predictable, evolving "in ways that make them harder to rein in."  Banks explains that in the past, gangs were hierarchical, less impulsive and feuded over turf and colors; however, presently, gang shootings are more often linked to spats exchanged on social media - referred to as "cyber banging" - which has gang interventionists, police and the community baffled.  In August, half of the city's homicides occurred in South Los Angeles, 70 percent are believed to be gang-related, and LAPD's tried-and-true tactics of relying on veteran gang members, increasing patrols and engaging in community policing are not having the same effect on the younger generation of gang members as it has on those years before.  LAPD Deputy Chief Bill Scott says the department is working on recruiting new intervention crews of street-savvy, online sleuths to scour social media posts and decipher signs of trouble before violence is carried out on the streets.

My title is, obviously, a takeoff on the old rhyme, "An apple a day keeps the doctor away."

The principal effect of the sentencing reform bill introduced in the Senate last week will be to go softer on drug dealers, of course including heroin dealers.

Is this the time to go softer on heroin dealers?

This story from the Chicago Tribune gives us a clue:  "74 Overdoses in 72 Hours: Laced Heroin May Be to Blame."

In fact, I have no clue whether actual facts about the damage that drugs cause will have any effect on sentencing reform; I guess I tend to doubt it.  Lowering drug sentences has never been about been protecting the public. It's about ideology  --  as well as, it now seems, fact-free and, it's depressing to see, occasionally slanderous religious bullying by such people as Sen. Mike Lee (R-UT)
The Constitution guarantees counsel for defendants, but what does that mean beyond appointment of a person who is a member of the bar?  Will a hopeless incompetent who does nothing for the client do?  No.  Is an absolutely perfect performance that no one can find the slightest flaw in, even in hindsight, required?  No.  Where do we draw the line between those two extremes?  It's complicated.

The standard was set in the landmark case of Strickland v. Washington (1984), a case won by my good friend Carolyn Snurkowski of the Florida AG's Office.  As summarized by the Supreme Court today in Maryland v. Kulbicki, "Counsel is unconstitutionally ineffective if his performance is both deficient,meaning his errors are 'so serious' that he no longer functions as 'counsel,' and prejudicial, meaning his errors deprive the defendant of a fair trial."

No longer functioning as counsel is a very low standard, a performance so dismal that very few such claims should be granted, and the bar should proceed to revoke the license or at least impose some discipline on any lawyer who actually botches a client's case that badly.  That is how it was intended, but that is not how it is applied in practice.  Instead, courts often use ineffectiveness claims as ways to overturn verdicts they feel uncomfortable about, even though the lawyer actually did a decent job.

Today in Kulbicki, the U.S. Supreme Court reversed a decision of the highest court of Maryland in severe terms.   "Applying this standard in name only, the Court of Appeals of Maryland held that James Kulbicki's defense attorneys were unconstitutionally ineffective. We summarily reverse."
We are endlessly lectured about how "alternatives to incarceration" will cost less, keep us just as safe, and improve rehabilitation.

And that's true, if one spells "rehabilitation" as  E-S-C-A-P-E.  From the Associated Press:

More than 240 inmates have slipped away from federal custody in the past three years while traveling to halfway houses, including several who committed bank robberies and a carjacking while on the lam, according to documents obtained by The Associated Press.


A Serial Killer's Final Moments

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I previously linked a Washington Post story about the execution of serial killer and multiple rapist Alfred Prieto.  I want to quote some parts of it, however, to illustrate a number of points retentionists stress, but are mostly deep-sixed by the mainstream media.  My hat is off to the Post for allowing this story to be printed.

[T]he state of Virginia handles the execution of convicted murderers in a precise and professional way. Similarly, serial killer Alfredo R. Prieto lived the final moments of his life with his own version of professionalism, maintaining the same passive look he held through his three long trials in Fairfax, and defiantly refusing to show any remorse or regret as he issued a rehearsed final statement similar to a pro athlete being interviewed after a game. He thanked his "supporters" and then snapped, "Get it over with."

The last story I read about an execution, that of Kelly Gissendaner for plotting to have her husband sliced to death so she and her lover could share the insurance money, started off with how she sang "Amazing Grace" during the execution procedure. Somehow I suspect, "Get it over with" is more common, but doesn't get widely reported because it doesn't make good abolitionist propaganda.

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Obama Politicizes Gun Control Again:  In comments Thursday following the mass shooting that claimed nine lives at a rural community college in Oregon, President Obama used the tragedy as a platform to call for stricter gun control laws.  Susan Jones of CNS News reports that the president blasted "those who oppose any kind of common-sense gun legislation," as well as the National Rifle Association. Fox News' Bill O'Reilly, on his Thursday night program, directly criticized Obama for politicizing high-profile mass shootings while ignoring the bloodshed taking place in his hometown of Chicago.  On Thursday morning, 26-year-old Christopher Harper Mercer, described as an angry man with disdain for organized religion and seeking notoriety, opened fire on the quiet Umpqua Community College Campus in Roseburg, killing nine and injuring seven.  According to witnesses, he was allegedly targeting Christians before he was shot and killed during a gunfire exchange with police.  The former president of the college says that the school has only one unarmed security guard on duty at a time.

Two Found Guilty in Border Patrol Agent's Murder:  Two men were found guilty Thursday of murdering, with guns supplied by the U.S. government, a U.S. Border Patrol agent, whose death exposed the bungled gun-running Fast and Furious operation.  Aalia Shaheed of Fox News reports that Ivan Soto-Barraza and Jesus Sanchez-Meza, who were part of a five-man cartel rip crew patrolling the Arizona desert targeting drug smugglers to rob at gunpoint, were found guilty on nine charges, including first-degree murder and attempted armed robbery in the death of agent Brian Terry in 2010.  Terry's death revealed the botched Fast and Furious operation in which agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives allowed criminals to purchase guns with the intention of tracking them.  However, the agency lost track of many of the guns, including two AK47-style weapons discovered at the scene of Terry's death.  The two men face life sentences at their next court appearance in December.

UCR Omits Border Crimes, Paints Skewed Picture:  The FBI released its annual Uniform Crime Report (UCR) this week, summarizing violent crime statistics across the county in 2014, but omitted kidnapping and drug- or cartel-related crimes in their assessment, painting a misleading picture of the U.S.-Mexico border.  Sylvia Longmire of Breitbart reports that UCR data does not track crimes that are unique to the border, fooling the average reader into thinking that border communities, specifically in Texas, are "quiet with little criminal activity."  Data used to generate the UCR is voluntarily submitted by thousands of law enforcement agencies and no standards exist for how each agency classifies a particular crime, nor is there an audit process to ensure data uniformity.  Even if there were such standards and processes, the UCR still precludes kidnapping and drug-trafficking related crimes, which are common along the southern border.  Also, the UCR relies on crimes reported to the police and therefore, drug smugglers and illegal immigrants who are targets of border violence are far less likely to report crimes to law enforcement for fear of arrest and deportation.  Longmire notes that crime statistics are merely a starting point in crime analysis and "can be skewed many ways to prove a point or further an agenda."

Two CJLF Cases to be Heard by Supreme Court this Fall:  The U.S. Supreme Court begins its new term - which runs from October through July - on Monday, with arguments being heard on Monday, Tuesday and Wednesday of the first two weeks of the month.  Legal Director Kent S. Scheidegger has this article on The Federalist Society outlining the criminal cases on the high court's docket, two of which CJLF filed amicus briefs in support of the states,  Kansas v. Carr and Montgomery v. Lousiana.  Carr will be heard on Wednesday, October 7 and Montgomery will be heard on Tuesday, October 13.

The Real Machinery of Death

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"Machinery of death" is a favorite phrase of the abolitionist movement.  It was invented by Justice Harry Blackmun in order to justify his constitutionally obtuse, mostly lonely, and ever-so-sanctimonious opposition to the death penalty.

A better example of the actual "machinery of death" was put out of business this week by the Commonwealth of Virginia when, after years of courtroom battles, it executed Alfred Prieto.  Prieto had been convicted of "only" four murders, but was almost certainly responsible for nine.  Talk about a "machinery of death."  (He also raped four of his victims before killing them).

In the typical last-minute pitch, cobbled together more from abolitionist lore than from facts, his lawyers argued that he was mentally defective.  That argument did not garner a single vote I know about in all the many years this case has been in litigation.  In a different context, making an argument of that character would be called "fraud." In this one, it's called "due process."

The Washington Post has an excellent article written by a reporter, Tom Jackman, who witnessed the execution. Originally, I was going to link the article simply because it has photos of five of the victims, but I also found, after reading it, that it contains many, many insights from a journalist who actually took the trouble to research his story.  I commend it to our readers.

Obstruction Out to Infinity

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Atlantic, a frenetically anti-death penalty magazine, published a piece titled, "Virginia Executes Alfredo Prieto With Appeal Pending."  It starts:

The commonwealth of Virginia executed Alfredo Prieto at 9:17 p.m. on Thursday night, and, according to BuzzFeed's Chris Geidner, Prieto still had an appeal pending before the Supreme Court at the time of his death.

Virginia did not violate the law by executing Prieto, as Geidner notes, because no stay of execution was in force when the death warrant became active at 9 p.m. But states typically wait for the final ruling from the Supreme Court before beginning the execution process.

The piece then goes on with the by-now-standard advocacy about how the death penalty is "under scrutiny from both the public and the courts," as if "under scrutiny" means we should hesitate forever before imposing a legal sentence.

It's possible the author thinks his readership is so stupid it doesn't realize that a defendant's lawyer can always and at any time run to court with an appeal  --  thus meaning, according to the logic he implies, that a death sentence could never be carried out.  It's also possible he doesn't know that counsel could have previously asked the court for a stay pending an order specifically authorizing the execution.

Possible, but not likely.  What the author actually wants is to ensure that the death penalty, no matter how thoroughly reviewed in a given case, and how popular with the public, is, strictly for ideological reasons, obstructed out to infinity. 

Among the provisions of the sentencing reform bill introduced yesterday is one that would alleviate sentences imposed under what is called 924(c) "stacking.'  At present, under 18 USC 924(c), a defendant who carries a gun in the course of committing a drug felony is subject to a 10 year mandatory minimum term for the firearm, in addition to the sentence for the drugs.  For a second and subsequent 924(c) offense, he is subject to consecutive mandatory terms of 25 years.  It was this sort of "stacking" that resulted in the decades-long prison term for repeat pot dealer Weldon Angelos. Angelos undertook a number of drug deals wearing, but not using, a pistol. (The judge in Angelos' case, now-Prof. Paul Cassell, believed the sentence was too harsh, and, on the facts of that case, I agree, as I have said).

Yesterday's bill would, if enacted, repeal the "stacking" provision, and allow retroactive application of this relief. The only beneficiaries would be gun-toting felons.

Although yesterday's multiple murders in Oregon were not (so far as is yet known) connected to drug dealing, they highlight, in a grotesque way, the evils of guns in the hands of criminals.  And multiple shootings in the drug business are far from unknown.  In fact, they are routine, as we can see in the murder spikes in Washington, Baltimore, Chicago and cities around the country.

One can only imagine the national shock and disbelief if legislation to take it easier on gunplay had been introduced on the same day as the Charleston massacre.  In my view, it is no less shocking, and no less unacceptable, for such legislation to be considered in the immediate aftermath of yesterday's mass murder in Oregon.

What are these people thinking? 

A Terrific Idea from Prof. Doug Berman

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Prof. Doug Berman is one of the leading sentencing experts in the country and a strong backer of the "reform" bill introduced yesterday in the Senate.  On the theory that information is more useful than ideology, I fully endorse his suggestion that we get some help from the Sentencing Commission in understanding the bill's many provisions.  As Doug says:

The full bill, which runs 141 pages and is available at this link, has so many notable parts;  I am already struggling to figure out what is what and to assess the good, the bad and the ugly of what can be found in this massive legislative proposal.  Moreover, without some basic (and not-so-basic) data about how many past, present and future federal cases could be readily impacted by various provisions, it is hard to know which are the most consequential elements of the bill from just a basic reading to the SRCA text .

Ergo, the question in the title of this post, which jumped into my head as I started to think about what to think about SRCA 2015.  I am sure it would take a very long time for the US Sentencing Commission to do a comprehensive analysis of all that appears in the SRCA 2015.  But I suspect the USSC and its terrific research staff might be able to compose quickly one of its terrific "Quick Facts" publications to aid those of us trying to better figure out what needs still be to figured out about this massive bill.

Notably and fittingly, in the press event announcing the SRCA 2015, Senator Chuck Schumer astutely described the sentencing and prison reform problem as a kind of Rubik's Cube with lots of interlocking and moving parts.  I am sincerely hopeful the US Sentencing Commission will commit itself in the days ahead to helping all of us fans of federal sentencing reform better figure out whether and how the different-colored pieces of the proposed SRCA 2015 match up.

Execution of a serial killer

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Tom Jackman reports in the WaPo, "We watched what appeared to be an utterly painless death for a man who brutally killed nine people and devastated nine families, and here is how it unfolded:"
A federal judge in Richmond, Virginia has lifted the temporary restraining order imposed yesterday by another judge in Alexandria, permitting the execution of serial killer Alfredo Prieto.  He is scheduled for execution for the murders of Rachael Raver and Warren Fulton in Fairfax County, Virginia.  He is also sentenced to death in California for the murder of Yvette Woodruff in San Bernardino County.  Tom Jackman has this story in the WaPo.

Prieto's claim that he is intellectually disabled was tried to a jury and rejected unanimously by them in one of his Virginia trials.  On retrial of the penalty, his lawyers considered the claim so weak they didn't even try again.

Prieto really should have been executed in California.  See Bill's post earlier today, noting a column by Debra Saunders.  The California case had already been through direct appeal and a first state habeas, the primary reviews a defendant is entitled to, before Virginia even began.  After the Virginia case was finally solved by DNA many years after the murder, that state tried the case twice and got it all the way through direct appeal, state habeas, and federal habeas while the state and federal courts in California were still stalling on secondary reviews.

A final claim in the case is that Virginia's refusal (or inability) to say where Texas got the pentobarbital it supplied to Virginia was a problem.  If the drug has been tested for potency and purity, it doesn't matter where it came from. 

Sterility is not required.  That is a concern in medicine to prevent postoperative infections, but the whole point of this procedure is that there is no post-op.  The form of pentobarbital sold for euthanasia of dogs under the trade name Euthasol says right in the product insert that it is not sterile.

The U.S. Supreme Court denied review here and here.  No dissents are noted.

Update:  Mission accomplished.  David Savage has this story in the LA Times.

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Illinois Officer Shot With Own Weapon:  The lead investigator in the case of the fatal shooting of an Illinois officer last month announced Thursday that the officer was shot twice with his own weapon and evidence indicates signs of a struggle.  Don Babwin of the AP reports that it was also revealed that nine unidentified DNA samples were found at the scene, and detectives are analyzing more than 100 samples taken since the officer's death to identify the sources of some of those samples.  On September 1, 52-year-old Fox Lake police Lt. Charles Gliniewicz was found shot to death after he radioed that he was in pursuit of three suspicious men in a remote area, sparking a massive manhunt that turned up nothing.  Questions have surrounded the investigation after the county coroner said he was unable to definitively rule the manner of death a homicide, suicide or accident, but detectives emphasized that the investigation is being conducted "strictly" as a homicide probe.

SC Officer Fatally Shot at Mall:  A police officer was fatally shot responding to a report of a suspicious person at a South Carolina mall on Wednesday.  The AP reports that 32-year-old Forest Acres Officer Greg Alia and another officer responded to the call and attempted to talk to the suspect, who then fled on foot through the Richland Mall in suburban Columbia.  Officer Alia pursued and confronted the suspect, there was a struggle and he was shot, according to Forest Acres police Chief Gene Sealy.  The suspect is in custody and being questioned, but the department has yet to release details about his identity or the charges against him.  Alia was a seven-year veteran of the force whose wife had recently had a baby.

LA Convict Accidentally Released:  A Louisiana murderer who was accidentally released from prison last week is still at large, and the Louisiana Department of Public Safety and Crime Stoppers have offered cash rewards for any information that leads to his capture.  Fox News reports that 32-year-old Benjueil Johnson, serving a 40-year sentence for manslaughter and being a felon in possession of a firearm, was mistakenly released on good behavior from Dixon Correctional Institute for prior charges on September 23 before being transferred to East Feliciana Parish jail to be booked on misdemeanor count of battery against a correctional officer.  After processing, Johnson was able to be post bond and walk free because the manslaughter conviction did not appear in his file.  Law enforcement was unaware of Johnson's release until Monday when someone who recognized him reported it.

MO's Juvenile Sex Offender Registry Challenged:  Attorneys for a 14-year-old Missouri juvenile who assaulted and attempted to rape his adult adoptive sister say that requiring him to register as a sex offender for life constitutes cruel and unusual punishment, contradicting the "rehabilitate and reintegrate" goal of the juvenile justice system.  Tony Rizzo of the Kansas City Star reports that the attorneys have filed an appeal for the juvenile, regarded only as S.C., arguing that juveniles should not be subjected to the same registration requirements as adult sex offenders.  However, the Missouri attorney general's office contests that they are within federal law in requiring certain juvenile offenders to register, citing the vicious nature of S.C.'s attempted rape on his 41-year-old sister.  The ACLU of Missouri has filed a brief in support of the juvenile, arguing that lifetime sex offender registration for juveniles increase their changes of recidivism by isolating them from important networks.  Nevertheless, appeals courts in the state "have found that sex offender registry laws are not criminal punishments, but are civil in nature and are designed with the 'rational basis' of giving the public information about individuals who pose a 'significant risk.'"

California's New Death Row -- Virginia

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The title of this post is taken from Debra Saunders' spot-on and mind-bendingly ironic column in today's SF Gate. As Ms. Saunders notes:

California has a new Death Row -- it's called Virginia. Death penalty opponents, federal judges and defense attorneys have been so successful at blocking capital punishment in California that a San Quentin Death Row inmate has more to fear from being extradited for a capital murder to another state than seeing his sentence carried out here. There has been no execution in California since a federal judge effectively halted the practice in 2006.

There is undoubtedly someone more deserving of execution than the killer facing his imminent punishment in Virginia, but it's hard to think of one off-hand:

Take serial killer Alfredo Prieto. In 2005, Prieto was on San Quentin's Death Row for the 1990 rape and murder of 15-year-old Yvette Woodruff in Riverside County, when DNA evidence linked him to three 1988 murders in Virginia. Under Gov. Arnold Schwarzenegger, California sent Prieto to Virginia, where killers sentenced to death actually face the likelihood of execution. (Authorities say evidence links Prieto to nine murders.) In 2010, a Virginia jury sentenced Prieto to death for the murder of Rachel Raver and Warren Fulton, both 22. Prieto is scheduled for lethal injection at the Greensville Correctional Center in Virginia Thursday night. Just 13 inmates have been executed in California since the death penalty resumed in 1978. Prieto will become the secondāˆš California Death Row prisoner to be executed in another state.

We will probably never know how many innocent people are dead because Prieto wasn't executed before now.

The Rewards of Backing Sentencing "Reform"

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There have been two very important conservative-leaning groups backing sentencing "reform":  The Heritage Foundation, which has been interested (as am I) in reform of non-mens rea criminal statutes; and the Koch Foundation, funded by the wealthy and libertarian Koch brothers.  Without those backers, it's questionable at best how much Republican support  --  support essential in the current, Republican-dominated Congress  -- sentencing "reform" would ever have obtained.

In the sentencing bill to be introduced tomorrow, there will be no effort whatever to achieve mens rea reform. Perhaps this will give Heritage cause to reconsider its position, although I have no information on that score.

The Koch brothers will be getting something different from merely being ignored. Their reward for signing on to sentencing "reform" will be, Politico reports, a full-scale attack from their erstwhile allies.

Welcome to the snakepit of backroom, inside-the-Beltway deals.
From the OK Gov:

I, Mary Fallin, Governor of the State of Oklahoma, pursuant to Section 10 of Article 6 of the Oklahoma Constitution, hereby grant a stay of the execution of Richard Eugene Glossip of thirty-seven days from the current scheduled date of execution, September 30, 2015. This stay is ordered due to the Department of Corrections having received potassium acetate as drug number three for the three-drug protocol. This stay will give the Department of Corrections and its attorneys the opportunity to determine whether potassium acetate is compliant with the execution protocol and/or to obtain potassium chloride. The execution for Richard Eugene Glossip is therefore scheduled for Friday, November 6, 2015.
Technically that is a reprieve, not a stay.  The referenced section of the state constitution says, "The Governor shall have power to grant after conviction, reprieves or leaves of absence not to exceed sixty (60) days, without the action of the Pardon and Parole Board."

Glossip's petition to the U.S. Supreme Court was denied today with only Justice Breyer noting a dissenting vote.  They evidently were not impressed with his actual innocence claim, in contrast to Troy Davis, where they sent the case to a federal district judge for a full evidentiary hearing (at the conclusion of which he declared Davis's innocence claim to be "smoke and mirrors.")

Odd that potassium chloride would present a problem.  That is nothing fancy, just a simple salt.  Non-sodium table salt substitute (yuck) is often potassium chloride.

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Convicted VA Killer to be Executed:  Virginia Gov. Terry McAuliffe announced Monday that he will not intervene in the scheduled execution of a convicted serial murderer, allowing the execution to move forward this week.  Tom Jackman of the Washington Post reports that 49-year-old Alfredo Prieto received two death sentences in 2010 for the 1988 murderers of Rachel Raver and Warren Fulton III, and was also linked by DNA to another Northern Virginia murder that occurred that same year.  It is believed Prieto committed nine murders between 1988 and 1990.  He received a death sentence in California for the rape and murder of a 15-year-old girl.  Prieto's defense lawyers claimed he was mentally retarded in his 2007 and 2008 trials in an effort convince the juries to spare his life, but the juries in both trials convicted him of capital murder.  He faces death by lethal injection Thursday night.

US Failing to Stop People from Joining ISIS:  An extensive six-month review released Thursday conducted by the House Homeland Security Committee found that the Obama administration has failed to stop more than 250 Americans who have traveled overseas since 2011 to join or attempt to join terrorist groups in the Middle East, including ISIS.  Fox News reports that the final congressional report states that of the hundreds of Americans who have attempted to travel to Iraq or Syria, only a fraction have been thwarted by authorities.  It is estimated that over 25,000 Americans have joined Iraqi and Syrian jihadists.  Also noted in the report was the Obama administration's lack of strategy to identify those who try to return to carry out terrorist attacks in the U.S., adding that "several dozen" have managed to make it back successfully.

Toll of Criminal Aliens Revealed:  Government agencies that crunch crime numbers are unable or unwilling to inform the public of how many illegal immigrants are arrested within U.S. borders each year, likely because "these numbers would expose how serious the problem is and make our government look bad."  Malia Zimmerman of Fox News reports that examined a patchwork of local, state and federal statistics, revealing figures that show illegal immigrants are three times as likely to be convicted of murder as the general population and constitute more crime than their 3.5 percent share of the U.S. population would indicate.  Statistics compiled from agencies such as the U.S. Census Bureau, U.S. Sentencing Commission, Immigration and Customs Enforcement (ICE), the Government Accountability Office and the Bureau of Justice Statistics show that of the 11.7 million illegal immigrants in the U.S., account for 13.6 percent of all serious crimes committed - 12 percent of murder sentences, 20 percent of kidnapping sentences and 16 percent of drug trafficking sentences.  To make matter worse, many of these offenders are being released onto U.S. streets by ICE every year:  in 2014, the agency released 30,558 criminal aliens with a combined 79,059 criminal convictions including 86 homicides, 186 kidnappings and thousands of sexual assaults, domestic violence convictions and DUIs.  At least 10,246 more have been released as of August.  "It is no accident that local, state and federal governments go to great lengths to keep the data under wraps," critics say.

Rising Bloodshed in Los Angeles:  This past weekend, a total of 19 people were shot across Los Angeles, five of them fatally, highlighting the rising bloodshed the city is experiencing.  Kate Mather and Nicole Santa Cruz of the LA Times report that the rising violence is fueled mostly by gang-related activity, something the LAPD has been trying to reduce for months by deploying more officers into the streets.  Still, killings continue to rise, with homicides up 11 percent this year compared to 2014.  Officials have been approaching the heightened violence with new strategies, such as focusing their efforts elsewhere if a shooting appears to be an isolated attack in order to prevent further violence and conducting more probation and parole checks.  The department continues to participate in gang prevention and intervention efforts as well as youth outreach, which has been successful over the years in curbing gang-related crime.  An activist who works to curb gang violence, Aqeela Sherrills, says that in order for the LAPD to succeed in combating the bloodshed, the city has to shows it's really committed to community-based solutions, adding that "the response is not more police."

Georgia Completes Execution

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NBC News has this story, just breaking:

A Georgia woman who was executed despite a plea for mercy from Pope Francis sang "Amazing Grace" until as she was given a lethal injection, witnesses said.

Kelly Renee Gissendaner was put to death at 12:21 a.m. Wednesday after a flurry of last-minute appeals failed.

Gissendaner, who was sentenced to death for the 1997 stabbing murder of her husband at the hands of her lover, sobbed as she called the victim an "amazing man who died because of me."

Particularly noteworthy was this paragraph later in the article:

In the hours before her death, Gissendaner pressed a number of appeals, arguing that it was not fair she got death while the lover who killed her husband got a life sentence. She also said the execution drugs might be defective, and that she had turned her life around and found religion while in prison.

I must be missing the argument there that could not have been made many years before last night.  It strikes me that the time has long since come to sanction lawyers who intentionally clog the courts and make a spectacle of legal process by bad faith, last-minute, kitchen-sink appeals.


A Grain of Salt for the Coming Spin

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Word has it that a "bi-partisan" bill will be introduced in the Senate on Thursday for sentencing "reform."  I don't know what's in it specifically, but it is reported to contain some elements of "back-end" reform (a kind of watered-down return of parole), a somewhat expanded "safety valve" for existing mandatory minimums, and a scattering of new mandatory minimums.

There is going to be a great deal of spin about this bill, most of it in pre-packaged press releases from organizations that have not had much of a chance to study it (as no one will have at the time these press releases go out the door).  My purpose here is no more than to caution against swallowing the spin by identifying it for what it is.  I expect the bulk of it to hail the bill as the "breakthrough" for "reform" and to be on the breathless and gushing side. A minority will have a sourpuss, lowering-of-expectations slant, saying that this is a poorly disguised sell-out of what could have been a burgeoning movement to release the downtrodden of society.

I won't be signing up for either version. I will instead, for the moment, content myself with what I view as very likely to be the basics.  There are four of them.

First, the bill will not even resemble reformers' principal aim, the Justice Safety Valve Act, which would have effectively abolished mandatory minimums.  Second, it's unlikely (although not impossible) that it will even reduce the length of present mandatory minimum terms.  Third, it will add some new ones, meaning that, if it becomes law, we will have more MM's than we do now.  Fourth, of course it's a long, long way from becoming law.  Last year, the Senate Judiciary Committee passed a more ambitious bill (the so-called Smarter Sentencing Act), which, after being heralded as having "unstoppable momentum," went nowhere.

News Scan

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Glossip Denied Stay:  A condemned Oklahoma death row inmate's appeals and request for a stay of execution were denied by the state Court of Criminal Appeals, allowing the scheduled execution to move forward.  Mark Berman of the Washington Post reports that attorneys for Richard Glossip, a convicted murderer, requested that the state appeals court halt his execution, arguing that Glossip was improperly tried and sentenced due to reliance on witness testimony, but the court rejected the claims with a 3-2 vote, finding that his conviction was "not based solely on testimony of a codefendant."  Glossip was convicted and sentenced to death for the 1997 beating death of Barry Van Treese, a motel worker.  Though he was not convicted of personally killing Van Treese, he was found guilty of paying Justin Sneed, serving a life sentence without the possibility of parole, to kill him.  Glossip will be executed by lethal injection Wednesday morning.

Long Island Prosecutors Banned from Owning Guns:  The Nassau County District Attorney's Office on New York's Long Island is prohibiting its prosecutors from possessing handguns, even at home, which some criticize as unconstitutional.  Fox News reports that the Nassau County DA's office insists that their policy of banning prosecutors from owning handguns "is to ensure the safety and comfort of staff, victims, and witnesses," however, UCLA law professor Eugene Volokh says that such a policy violates an individual's Second Amendment rights.  Additionally, it contradicts an important state statute "under which a handgun collection can be considered a lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purpose."  Volokh notes that, given the nature of their professions, prosecutors often have special reasons for wanting to carry a gun to protect themselves and their families from harm and should have the same constitutional rights as everyone else.

PPIC Study says Crime Down, Costs Up since AB 109:  AB 109 - also known as realignment - California's four-year-old program enacted to reduce the state prison population by sending low-level felons to county jails, has not increased crime, but also has not reduced the costs of incarceration or the rates of recidivism as intended, according to a study published Monday by the Public Policy Institute of California.  Bob Egelko of SF Gate reports that the study, authored by Magnus Lofstrom and Brandon Martin, says that since Gov. Jerry Brown's prison realignment plan went into effect in 2011, the number of inmates has declined by 40,000 in state prisons and 18,000 overall, part of which stems from 2012's Proposition 36 (exempting some non-violent felons from life terms under three-strikes) and 2014's Proposition 47 (reducing certain felonies to misdemeanors).  The authors claim that rates of violent and property crime have fallen to "historic lows," with the exception of auto theft, which is 17 percent higher under AB 109.  Despite reducing the prison population, AB 109 has not reduced costs to corrections, according to the study, as California is paying more now than before the initiative was passed.  Additionally, recidivism has not decreased as intended, and though the figures show that inmates are returning to prison less, it is only because they are sent  to county jail instead.  The rate of new convictions has also increased, due to changes in the parole system.

Note:  The findings in PPIC's study are deceptive, misleading and fail to tell the whole story.  First, while AB 109 did result in a decreased prison population, it was at the expense of county jails, which are now overcrowded beyond manageability, with some bursting at the seams with bunk beds stacked three-high to compensate for the immediate influx of additional offenders following the bill's passage in 2011.  To make matters worse, many of these offenders are serving much longer sentences for more serious crimes.  Second, the study claims that violent crime has reached "historic lows" following AB 109, though LAPD's misclassification of nearly 1,200 violent crimes as misdemeanor offenses last year was not factored into this finding.  Nor does the study make any mention to the statistics disclosed by police departments themselves, such as LAPD Chief Charlie Beck reporting earlier this year that violent crime rose 26 percent and property crimes 11 percent in Los Angeles.  There are also scores of other police chiefs and law enforcement officials in the state have reported disappointing crime rates, all of them condemning AB 109, Proposition 47 or both (see here, here, here and here).

The Extent of the Drug Abuse Disaster

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It's often said by those who would legalize drugs and/or substantially reduce the punishment for trafficking in them that the real drug-related damage befalling our country arises, not from drug use, but from the "war" against drug use.

I am content to let the following story speak for itself. From CNN, July 7, 2015:  "Heroin-related overdose deaths quadruple since 2002."  The article starts out:

Heroin use is increasing rapidly across the United States among all age, race, income and ethnic groups, the Centers for Disease Control and Prevention announced Tuesday. And the increase comes with a devastating price: Deaths from heroin-related overdoses nearly quadrupled between 2002 and 2013.

Heroin use doubled among women and young adults ages 18 to 25, and more than doubled among non-Hispanic whites. Some of the highest increases were in groups with historically low rates of abuse: women, people with higher incomes and people who are privately insured.

In other words, as we lose our nerve in the war against drugs  --  to the point that Congress is (apparently) thinking breezily about lowering penalties for illicit drugs of every sort  --  the human toll is exploding, and reaching into groups where it was little known before.

Indeed,, a pro-legalization group, acknowledges in this chart that there were 17,000 deaths per year from illicit drugs (and that's using 2002 data), Moreover, in 2013, before this year's spike, there were 8,257 heroin overdose deaths alone.

It's not the drug war that kills.  It's drugs that kill.  

Crime Fell Slightly in 2014, FBI Says

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Devlin Barrett has this article with the above headline in the WSJ.

Violent crime fell slightly in the U.S. last year, according to data released Monday by the Federal Bureau of Investigation, although big-city police chiefs recently warned that the number of killings this year appears to be rising.

According to the FBI, the number of violent crimes fell 0.2% in 2014 compared with the previous year. Property crimes decreased by 4.3%, according to the data.

Last month, the Major Cities Chiefs Association held a meeting in Washington to discuss a spike in killings this summer. Some law-enforcement officials fear that trend may signal an end to two decades of falling crime rates.

Police made more than 11 million arrests in 2014, and about 73% of those arrested were male.

Murder and manslaughters decreased 0.5% to 13,472, according to the FBI estimates, while robberies fell 5.6%. Rape and aggravated assaults increased about 2%, the agency said.

There are multiple theories for the long decline in crime that began in the early 1990s. Some law-enforcement officials cite stricter enforcement of quality-of-life crimes, while others cite increased incarceration or improved tactics and technology.

General Election Neck-and-Neck

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Mostly off-topic

How the Heroin Business Operates to Kill

A chilling Washington Post story describes how heroin is a bigger business than ever, having spread its market from big cities to medium-sized communities like Dayton, Ohio.

Mexican cartels have overtaken the U.S. heroin trade, imposing an almost corporate discipline. They grow and process the drug themselves, increasingly replacing their traditional black tar with an innovative high-quality powder with mass market appeal: It can be smoked or snorted by newcomers as well as shot up by hard-core addicts.

They have broadened distribution beyond the old big-city heroin centers like Chicago or New York to target unlikely places such as Dayton. The midsize Midwestern city today is considered to be an epicenter of the heroin problem, with addicts buying and overdosing in unsettling droves. Crack dealers on street corners have been supplanted by heroin dealers ranging across a far wider landscape, almost invisible to law enforcement. They arrange deals by cellphone and deliver heroin like pizza.

Then there was this chilling line:

Pellets bursting [inside the carrier's intestine] was a courier's worst fear. Once in Lorain, Ohio, a courier started foaming at the mouth, and his handler called down to Mexico to figure out what to do. As authorities listened via wiretap, the handler was told to cut the courier open and retrieve the remaining drugs.

Libertarian theory looks upon the "opportunity" to traffic in drugs as a hallmark of individual freedom.  I look upon it as one of the most heartless and grotesque forms of murder.

The Common Denominator in Crime Reduction

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Jeremy Gormer and Annie Sweeney have this article in the Chicago Tribune titled "A tale of 3 cities: LA and NYC outpace Chicago in curbing violence," showing the correlation between immersive policing strategies employed in New York City and Los Angeles -- both past and present -- and the reduction in violence the two cities have experienced and maintained despite national crime spikes.  While each city's criminal problems are uniquely their own and different tactics are utilized by their respective police departments to address those problems, one commonality is glaringly obvious among them all:  An involved, hands-on police presence in the community equates to less violence.  John Jay College of Criminal Justice professor David Kennedy confirms this:

Everything we know about procedural justice and legitimacy says that when communities -- including offenders and potential offenders -- respect the police more and trust the police more, violent crimes go down.

The Long Conference

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One week from today is the First Monday in October, at which the U.S. Supreme Court begins its 2015-2016 term, officially known as the October 2015 Term.

Today the Justices meet in conference to go over the big stack of petitions built up over the summer asking them to take cases up for review.  About 99% of these petitions will be denied without comment.  This week we can expect a short orders list of the few cases they have taken.  Last year it was on Thursday.  Next Monday there will be long list of cases denied.

SCOTUS blog has its Cases to Watch List in three parts, here, here, and here.  On a quick read there don't appear to be any blockbusters in the criminal law area.

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