News Scan

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Brown's Bill Helps his Crime Initiative:  Dan Walters has this piece in the Sac Bee about a bill California Gov. Jerry Brown signed last week in which he effectively gave himself an extension and incentivized county clerks to count signatures on the bill in time for it to make the ballot on Nov. 8.  Brown's new crime initiative is being criticized because of its potential to increase crime by lessening punishment for criminals.  When he failed to submit signatures by the April 26 deadline, he changed the rules.  AB 120 appropriates $16.3 million for election-related expenses under the condition that county clerks complete signature counts by June 30.  Brown also gave himself until May 20 to collect signatures, 23 days later than the original submission date.  "This entire episode -- a governor apparently getting special treatment no one else could have obtained -- has a smarmy tinge,"  says Walters.  "And if he's successful, it could have long term consequences for the political process."

Another CA City Blames Crime Rise on Prop. 47:  Crime increased in Red Bluff, Calif., in 2015 according to the police department's 2015 annual report, and the city's chief of police suspects Proposition 47 is the reason.  Joe Szydlowski of the Redding Record Searchlight reports that major violent and property crimes rose 12.6% in 2015, with a 28% spike in simple assaults and a 17.6% increase in thefts.  Domestic violence calls also jumped 16% and arrests rose 42%, which may be because more people who used to be incarcerated are now out in the community, says Kyle Sanders, the city's police chief.  Burglaries did decrease, but Sanders thinks it is likely due to some burglaries being charged as thefts under the voter-approved measure. Prop. 47 passed in Nov. 2014 and reduced several felonies to misdemeanors.  Sanders notes that Red Bluff experienced three years of consistency in major crime data and saw the dramatic spike in crime after Prop. 47's implementation.

Fla. High Court Weighs Death Penalty Law:  The Florida Supreme Court is reviewing the state's death penalty law Thursday to decide whether the U.S. Supreme Court's January ruling, that the state's system is unconstitutional, should be applied retroactively to already-sentenced death row inmates.  Steve Bousquet of the Tampa Bay Times reports that the Jan. 12 ruling was brought on by the case of Timothy Lee Hurst, who is on death row for the 1998 murder of his co-worker.  Justices ruled that Florida's death sentencing system was unconstitutional because it gave too little power to juries and ordered the Florida Supreme Court to review Hurst's sentence.  Assistant Attorney General Carine Mitz argues that Hurst should still be eligible for execution because the Legislature addressed the defects of the old law.  The new law requires juries to agree on one aggravating factor in order to apply capital punishment.  There are currently 390 inmates on Florida's death row.

The Scalia Legacy

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The Constitution Center in Philadelphia yesterday hosted a discussion of the legacy of Justice Antonin Scalia, by anyone's reckoning a genius, a spectacular writer, and one of the most influential Justices of my lifetime.

My wife, Hon. Lee Liberman Otis, was one of the participants, all of whom, I thought, did a first-rate job.

The tape, a little more than an hour, is here.

News Scan

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Convicted Sex Offender Arrested After Multiple Deportations:  An illegal immigrant from Mexico with multiple state and federal convictions was arrested in Utah by U.S. Immigration and Customs Enforcement (ICE) for failing to register as a sex offender and for re-entering the U.S. illegally.  Fox News Latino reports that 37-year-old Sergio Amador-Olive has two state sexual assault convictions and two federal immigration convictions dating back to 2003.  He faced deportation in 2003, 2010 and 2014, but continued entering the country illegally.  An ICE press release states that Amador-Olive's case will be presented to the U.S. Attorney General's Office for federal prosecution.

Daytona Sword Killer Gets Death for 3rd Time: 
A jury voted 11 to 1 Tuesday to recommend the death penalty for the third time for a man who used a sword to hack and slice another man to death in Daytona Beach, Florida, over two decades ago.  Frank Fernandez of the Daytona Beach News-Journal reports that 52-year-old James Guzman was found guilty last week at his third death penalty trial for the 1991 killing of 48-year-old businessman David Colvin.  The first two convictions were overturned on appeal.  At the latest trial, the jury unanimously agreed on four aggravating factors presented by the prosecution, including that Guzman killed Colvin during a robbery, that he killed to eliminate a witness, that it was an especially heinous killing and that he had murdered before.  Guzman had served just nine years of a 30-year sentence for the 1982 shooting death of a Miami woman.  He was released from prison four months before he killed Colvin.  Guzman's case is the first in the 7th Circuit in which the jury recommended death since the U.S. Supreme Court overturned Florida's death penalty process in January, ruling that judges had too much power in death penalty decisions.

Execution Date Set for TX Man:  A murderer inmate on death row for fatally shooting a young woman in southwest Texas 15 years ago is set to die by lethal injection on August 10.  The AP reports that 33-year-old Ramiro Gonzalez murdered 18-year-old Bridget Townsend in January 2001, but her remains weren't found until two years later when Gonzalez disclosed their location to authorities after receiving two life terms for the abduction and rape of another woman.  The U.S. Supreme Court refused to review his case last December.

AL Man Found Competent for Execution:  One of Alabama's longest-serving death row inmates has had his request to suspend his May 12 execution denied by a state circuit court judge.  Kelsey Stein of AL reports that Vernon Madison has been on death row for 31 years for the 1985 slaying of Officer Julius Schulte, who was responding to a domestic disturbance call.  Madison's attorneys argued at a competency hearing last month that several strokes had caused such a mental decline that he was no longer competent to be executed, but Mobile County Circuit Judge Robert Smith disagreed, issuing a ruling Friday that attorneys had not proven their argument and the execution can move forward.

News Scan

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Va. Gov Sued for Allowing Felons to Vote:  Republican lawmakers in Virginia announced Monday that they are pursuing legal action against Gov. Terry McAuliffe over his decision to restore the voting rights of thousands of felons.  Kelly Cohen of the Washington Examiner reports that Virginia's GOP leaders say McAuliffe overstepped his constitutional powers as governor and was politically motivated when he issued an executive order 10 days ago restoring the voting rights of about 206,000 convicted felons.  Virginia is often a swing state in general elections, and many Republicans believe that McAuliffe, a Democrat, is attempting the influence the election's outcome this November.

Budget Grows, Deportations Drop:  In the last few years, Immigration and Customs Enforcement's (ICE) budget for detention and removal has increased while deportations plummeted, according to the Senate Subcommittee on Immigration and the National Interest.  Caroline May of Breitbart reports that from FY 2012 to FY 2015, ICE's deportation budget grew 25% while the number of deportations declined by nearly 43%.  The total number of illegal immigrants deported in FY 2012 was 409,849, compared to 235,413 in FY 2015, and the budget jumped from $2,750,843,000 in FY 2012 to $3,431,444,000 in FY 2015.  In the midst of it all, ICE deported nearly 41% fewer criminal aliens last year with 25% more resources than it had in FY 2012.

Dozens of Escapes from WA state Mental Hospital: 
In the wake of two violent patients' escape from Washington state's largest mental hospital last month, the Associated Press investigated and found 185 instances in which patients escaped or walked away over the past 3.5 years.  Martha Bellisle of the AP reports that at least five patients committed assaults or other offenses after either bolting out unsecured doors, jumping over fences, crawling out windows, running away from staff during off-campus appointments or wandering off after being allowed outside.  Of the 185 escapees or walk-offs, the public was notified in just five instances, even though many had violent histories, were convicted felons or registered sex offenders, or had protection order against them.  Some of the missing had been charged with crimes such as murder, rape, kidnapping, assault and robbery prior to hospitalization.

News Scan

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High Court Turns Away CA Death Penalty Challenge:  The U.S. Supreme Court rejected a challenge to California's death penalty system after an Orange County murderer filed an appeal arguing that waiting decades on death row results in "psychologically inhumane stress."  David G. Savage of the LA Times reports that Richard Boyer was condemned to death in 1984 for the robbery and murder of an elderly Fullerton couple.  That conviction was later overturned due to a police error, but he was tried, convicted and sentenced to death again in 1992.  Justice Stephen Breyer filed a two-page dissent Monday arguing that Boyer's appeal should have been heard.  California's death row is that largest in the nation with 743 inmates awaiting execution, but it has carried out just 13 in 40 years.  None have been carried out for the last ten years because of the lack of a valid execution protocol, but a new one is in the process of being established due to litigation brought by CJLF on behalf of murder victims' families.

Five Seattle Cops Hurt as Protest Turns Violent:  Five Seattle police officers were injured Sunday after an anti-capitalist May Day protest erupted in violence.  Fox News reports that demonstrators pelted officer with rocks, flares, bricks and Molotov cocktails, and also vandalized windows, buildings and parked cars.  One officer suffered a head laceration after being struck by a rock, another was injured, but not burned, by a Molotov cocktail and a third was bitten.  The other two officers' injuries were not detailed by the department.  The protests began peacefully, with demonstrators advocating for workers and immigrants, calling for better wages, an end to deportations and support for the Obama administration's plan to give work permits to illegal immigrants who have American children.  The ensuing violence resulted in nine arrests.

Three Bills Address Illegal Entry into the US:  Seven House Republicans, headed by Rep. John Culberson, R-Texas, have proposed three pieces of legislation aimed at discouraging people from entering the country illegally.  Pete Kasperowicz of the Washington Examiner reports that one of the bills, the Interior Immigration Enforcement Act, states that "any alien who is age 18 and older" and enters the country "shall be fined ... or imprisoned not more than 6 months, or both."  A second bill, the Zero Tolerance for Illegal Entry Act, requires all illegal immigrants to be prosecuted to the fullest extend of the law.  The third bill, the Criminal Alien Detention and Removal Act, requires illegal immigrants convicted of a felony to be automatically deported by U.S. Marshals after their sentence is served.

Kickbacks and Conspiracies

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The U.S. Supreme Court, 5-3, upheld a conviction for conspiracy to violate the Hobbs Act, the federal extortion law, in a case involving a kickback scheme in which crooked police officers referred damaged cars to a particular body shop in return for payments.  The case is Ocasio v. United States.

Justice Alito wrote the opinion of the Court, joined by Justices Kennedy, Ginsbury, Breyer, and Kagan.  Justice Breyer wrote a separate concurrence saying that a key precedent, Evans v. United States, may well have been wrongly decided, but since the defendant did not ask the Court to overrule it, he loses.  Justice Thomas would go ahead and overrule Evans.  Justice Sotomayor, joined by Chief Justice Roberts, would rule for the defendant without overruling Evans.

The next scheduled public session, and therefore the next likely day for release of opinions, is two weeks from today, Monday, May 16.

The Tea Party Patriots

Last night, I had the opportunity to talk about proposed sentencing reform legislation in a webinar broadcast by the Tea Party Patriots. (Next month, I'll do so with a politically quite different group, the American Constitution Society National Convention).

The Patriots asked if I would post my remarks, and I am happy to do so.  I'll start out by saying here what I said in the webinar: There are some good people supporting the bill, like Michael Mukasey and Sen. Mike Lee, but also some good ones opposing it, like Sens. Jeff Sessions, Tom Cotton and David Perdue.  Sen. Ted Cruz likewise opposes bill, although he voted for a somewhat similar bill in the last Congress.  And Sen. Orin Hatch opposes the bill at least until it is re-written to include mens rea reform  --  a dim prospect given the Administration's adamant opposition. 

What's different is that, while no extreme leftist supports preserving our present, successful system  --  a system that has helped massively reduce crime  --  many support going back to what President Reagan called the failed policies of the past: Feckless faith in untethered judicial discretion, and a misguided belief in the efficacy of rehabilitation. Among those supporting a return to the failed ideas (and, as night follows day, the failed results) of the past are George Soros, the ACLU, the SEIU, and of course the entire Obama Administration.

Conservatives in the Tea Party might want to think twice before joining forces with that group.
Laurence Steinberg isn't someone I agree with often, but he, Thomas Grisso, Elizabeth Scott, and Richard Bonnie have this op-ed in the NYT opposing the crackpot notion of raising the juvenile court jurisdiction age to 21.

The proposal to expand the jurisdiction of the juvenile system to age 21, in addition to being based on ambiguous science, would also create two potentially serious policy problems. First, just as the adult correctional system is ill equipped to respond to the needs of adolescents, the juvenile justice system is poorly positioned to handle young adults. It is hard to imagine a juvenile facility that could appropriately house 20-year-olds and 14-year-olds, or a juvenile justice staff whose training would allow it to work effectively with young adults. And because a disproportionate number of serious violent crimes are committed by individuals between 17 and 21, the juvenile system would be overwhelmed by the number of young adults it would need to process, and its rehabilitative purpose could be seriously undermined.

Second, the juvenile justice system interacts with several other health and child welfare systems. Those agencies have created relatively separate systems for serving children and adults, in part because of important differences between these two ages. For example, some mental illnesses arise only in young adulthood, and professionals have long specialized in providing services either to children and adolescents or to adults. Creating a juvenile justice system that works well for both adolescents and young adults would require significant (and costly) restructuring of many other agencies.

5 Reasons Marijuana Is Not Medicine

Bertha Madras, professor of psychobiology at McLean Hospital and Harvard Medical School, has this article in the WaPo with the above title.

Data from 2015 indicate that 30 percent of current cannabis users harbor a use disorder -- more Americans are dependent on cannabis than on any other illicit drug. Yet marijuana advocates have relentlessly pressured the federal government to shift marijuana from Schedule I -- the most restrictive category of drug -- to another schedule or to de-schedule it completely. Their rationale? "States have already approved medical marijuana"; "rescheduling will open the floodgates for research"; and "many people claim that marijuana alone alleviates their symptoms."

Yet unlike drugs approved by the Food and Drug Administration, "dispensary marijuana" has no quality control, no standardized composition or dosage for specific medical conditions. It has no prescribing information or no high-quality studies of effectiveness or long-term safety. While the FDA is not averse to approving cannabinoids as medicines and has approved two cannabinoid medications, the decision to keep marijuana in Schedule I was reaffirmed in a 2015 federal court ruling. That ruling was correct.

News Scan

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Under-the-Radar Routes for Refugees:  It appears the Obama administration is pursuing under-the-radar "alternative" ways to admit more Syrian and other refugees as soon as this year, causing further fear of the crisis becoming a "terrorist Trojan horse."  Adam Shaw of Fox News reports that during a "high-level meeting" on March 30 in Geneva between the administration and the Office of the United Nations High Commissioner for Refugees, commissioner Filippo Grandi called for pursuing "alternative avenues" for refugees, such as more flexible mechanisms for family reunification, including extended family members.  He also suggested labor mobility schemes, student visas and scholarships, and visas for medical reasons.  Some have expressed concern that the Obama administration isn't "going to let anyone know about it" and that if refugees are coming in through several different visa programs, properly vetting them will be difficult. The administration's goal is to admit 10,000 Syrians in FY 2016 and increase the total number of refugees from around the world to 100,000 by the end of FY 2017.

Sens. Renew CJ Legislation Overhauling Mandatory Minimums:  A bipartisan group of senators revamped the push for criminal justice reform Thursday, focusing on legislation that would overhaul mandatory minimums.  Andrea Noble of the Washington Times reports that the bill, which has 37 co-sponsors, would ban retroactive applicability to offenders with any serious violent crimes on their records and avoid inclusion of provisions that would increase criminal intent requirements for prosecutors.  It also adds new mandatory minimums for offenses involving fentanyl, a deadly opioid.  Some senators are not on board with the bill, however, criticizing it for not focusing on "real consensus reforms that promote rehabilitation and reduce recidivism."

Consistent Surge of People Crossing Border Illegally:  The Border Patrol chief says that the number of people crossing the border illegally is inconsistent with the surge two years ago but that agents are better prepared to handle it this year.  KRGV reports that over 80,000 people have illegally crossed the U.S.-Mexico border since October, with the numbers of Central Americans staying consistent and the number of Mexicans dipping.  Analysts say that Mexico's improving economy may be discouraging many citizens from making the dangerous journey.  However, Central Americans will keep coming and exploiting loopholes in the system "until we start enforcing the laws," says Border Patrol Union President Chris Cabrera.  The coming surge will be felt by more than 3,000 agents who serve in the Rio Grande Valley.  Cabrera says at least 1,500 additional agents are needed in the area to effectively combat the coming wave of migrants, despite Chief Patrol Agent and Commander of the South Texas Corridor Manuel Padilla Jr.'s insistence that agents are prepared.

Preventable Deaths

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Timothy Jones, 34, is currently on trial in South Carolina for murdering his five children in 2014.  The year prior, in 2013, he was awarded primary custody following divorce proceedings with his now ex-wife, Amber Jones, 31, who has filed a lawsuit against the South Carolina Department of Social Services.  Brandy Zadrozny of the Daily Beast reports the suit's allegations:

[The DSS] failed to fully investigate multiple allegations of abuse, from teachers, school officials, neighbors, babysitters, and Amber Jones herself, according to the complaint. When investigations uncovered abuse, the DSS made a half-dozen ineffectual "safety plans," instead of reporting evidence of child abuse to the authorities and removing the children from Mr. Jones's care.

Mr. Jones had a history of substance abuse and served time in prison for drug possession, forgery, burglary and car theft, crimes that are now deemed "nonserious" and would classify him as a "nonviolent" offender in the state of California and in the proposed federal sentencing reform.  It is disheartening to realize that this rap sheet, even if regarded by the state and the DSS as consisting of "nonserious" and "nonviolent" offenses, could be discounted when considering the primary custody of five children.

Prosecutors are seeking the death penalty against Mr. Jones for these horrific -- and preventable -- murders.  If ever there was a crime for which death is the suitable penalty, this is it.  Anything less for a man who brutally kills his five small children would be unjust.

News Scan

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Nearly 20,000 Criminal Aliens Freed in 2015:  Nearly 20,000 illegal immigrants convicted of crimes were released from custody and into American communities last year, including hundreds charged with sexual assault, kidnapping and homicide.  Stephen Dinan of the Washington Times reports that together, the illegal immigrants tallied a total of 64,000 crimes, including 12,307 drunken driving convictions, 1,728 cases of assault, 216 kidnapping and over 200 homicide or manslaughter convictions.  The precise breakdown can be read here.  Approximately half were released by immigration judges, another 2,000 were freed in order to comply with a 2001 Supreme Court decision that put a six-month cap on the length of detention for immigrants "absent extenuating circumstances," the Obama administration was unable to arrange travel documents to send someone back home in time in 89 other cases.  In 7,000 cases, U.S. Immigration and Customs Enforcement released criminal aliens at its own discretion.

GA Executes Man for Triple Slaying:  After the State Board of Pardons and Paroles declined Tuesday to spare the life of a death row inmate, Georgia executed him Wednesday evening.  The AP reports that 37-year-old Daniel Anthony Lucas was put to death by lethal injection for the 1998 killings of a man and his two children, who interrupted Lucas while he was burglarizing their home.  Lucas is the fifth person to be executed in Georgia this year, tying a record set in 1987 and 2015 for the most executions carried out by the state in a calendar year since capital punishment's reinstatement in 1976.  He was the 42nd person executed in the state by lethal injection.

Border Agents Seek More Fencing, High-Tech Gear:  Federal agents in charge of patrolling the U.S.-Mexico border have requested 23 additional miles of fences, better radios and more aerial drones to tighten border security.  Julia Harte of Reuters reports that the extra fences sought by California and Texas agents, if installed, would be the first major fencing along the 1,954-mile border in five years and cost about $92 million.  It would cover three sections of the border and consist primarily of metal or concrete bollards clustered closely together.  There is currently 653 miles of fencing along the border --  a mix of wall-like fences and more basic vehicle barriers.  More high-tech gear such as radios and aerials drones are also being sought by agents, as the Border Patrol agents' union has been openly critical of the Department of Homeland Security and Customs and Border Protection for neglecting their stocks in basic equipment.

Presidential Humor

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Dan Zak at the WaPo has collected, in his view, "The single best joke told by every president, from Obama to Washington."  Well, except Grover Cleveland.  He alone gets to be the butt of a joke.  A couple of samples:

Ronald Reagan, to protesters at UCLA
"'Make love not war'? By the looks of you, you don't look like you could do much of either."

Abraham Lincoln
"If I were two-faced, would I be wearing this one?"

News Scan

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San Bernardino sees Uptick in Homicides:  San Bernardino, Calif., has had seven homicides in nine days, a pattern police Chief Jarrod Burguan says is "more than numbers."  Doug Saunders of the San Bernardino County Sun reports that the city has logged 24 homicides so far this year, all of which have either been drug- or gang-related.  Last year, there was only a total of 44 homicides for the entire year, including the 14 who were killed in the terrorist shooting at the Inland Regional Center on Dec. 2.  San Bernardino police officials believe the "underlying causes trace to the passage" of AB 109 and Proposition 47.  AB 109 was implemented in 2011 by Gov. Jerry Brown in an effort to reduce prison overcrowding by diverting several inmates from state prisons to county jails, resulting in early releases.  Prop. 47, passed by voters in 2014, lessened the sentences of several felony property and drug offenses.

Obama admin Fails to Screen Social Media of Refugees:  Despite promises made following last year's terrorist attack in San Bernardino, the Obama administration is not effectively screening the social media profiles of all Syrian refugees.  Stephen Dinan of the Washington Times reports that the government is 8,370 refugees short of its goal of admitting 10,000 Syrian refugees, with just over five months left in the fiscal year, sparking concern that the administration will reduce screening even more to accelerate the process.  In order to meet the president's intended target, 75 applications would have to be approved every workday for the remainder of the fiscal year -- nearly seven times the average so far.  Last year, one of the San Bernardino attackers was found to be an immigrant who had posted her desire to wage jihad on media.  Though her post was not public, the president acknowledged that social media messages should be screened.  While Homeland Security Secretary Jeh Johnson and U.S. Citizenship and Immigration Services Director Leon Rodriguez insisted months ago that it was increasing its monitoring, another USCIS official confirmed Tuesday that "the agency has not reached that point."

Prop. 47 Shows More Failure than Success:  Local governments in California are searching for solutions to Proposition 47, described by most law enforcement officers as "the biggest public safety disaster in the last several decades."  Lauren King of the Woodland Daily Democrat reports that state voters passed the measure in 2014 reducing "nonserious and nonviolent property and drug crimes" from felonies to misdemeanors and allowing previous convicts of such crimes to apply for reduced sentences.  In the first half of 2015, compared to 2014, California had the greatest increase in property crime, according to a report released by the Public Policy Institute of California, compiled from the FBI's crime statistics.  Specifically, San Francisco property crime jumped 66% while Sacramento became number one in the nation for violent crime.  Overall, the state claimed six of the nations top 10 cities with the biggest increases in crime after Prop. 47's passage.  Yolo County District Attorney Jeff Reisig says one of the measure's greatest flaws is its failure to mandate drug rehabilitation.  He acknowledges that there may be "a few success stories" to come out of the measure, but far more people have become victims because of it.

A Suboptimum Escape Route

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Peter Hermann reports in the WaPo:

A man whom authorities said jumped a fence securing the White House grounds on Tuesday was trying to escape after he robbed or sexually assaulted four people in the heart of downtown Washington, according to a D.C. police report.

Instead of escaping, the man was quickly caught as he crawled along a fence-line ditch, called a "moat," at the Eisenhower Executive Office Building, adjacent to the White House, one of the most secure buildings in the world.

News Scan

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OH Man Gets Death for Killing Mother:  An Ohio man was sentenced to death Monday for the 2013 beating death of his mother.  Chanda Neely of Cleveland reports that 28-year-old James Tench beat 55-year-old Mary Tench to death after she confronted him about his use of her credit cards.  Her skull was fractured in the beating.  Last month, a jury found Tench guilty of three counts of aggravated murder, two counts of murder, aggravated robbery, kidnapping and tampering with evidence.  In addition to a death sentence, Tench received 49 years.  He is currently serving a five-year sentence for a 2014 robbery.  He maintains his innocence in the murder of his mother.

Central American Countries Airlifting Cuban Immigrants to U.S. Border:  The Obama administration has not demanded that Central American countries stop airlifting Cuban immigrants to the southern U.S. border, a State Department official admitted Tuesday.  Joel Gehrke of the Washington Examiner reports that at a hearing under question from Sen. Marco Rubio (R-Fla.), Francisco Palmieri, a senior official in the Bureau of Western Hemisphere, testified that Central American countries have not been told to refrain from airlifting Cuban immigrants to the U.S. border, insisting instead that these countries enforce their own immigration laws.  Costa Rica and Panama have flown approximately 8,000 Cuban migrants to northern Mexico.  Over a five-month period, 18,500 Cubans have arrived at the Texas-Laredo Border field office as part of a significant surge.
Have tough sentencing laws harmed black Americans?  Well, without them, an estimated 129,000 blacks would be dead today, says Heather Mac Donald of the Manhattan Institute.  Speaking last week on 'The O'Reilly Factor,' Mac Donald discussed violent crime and incarceration, where she answered the charge of the media and the liberal left that sentencing laws are racist when, in fact, tough sentencing laws have resulted in historically low crime rates that have primarily benefited law-abiding blacks in inner cities.  Watch the segment here.
David Lat of Above the Law explains in the WaPo why his blog has dropped comments.  The subhead is "I used to rely on Above the Law commenters for tips. Now they just spew bile."

Over the years, however, our comments changed. They had always been edgy, but the ratio of offensive to substantive shifted in favor of the offensive. Inside information about law firms and schools gave way to inside jokes among the "commentariat," relevant knowledge got supplanted by non sequiturs, and basic civility (with a touch of political incorrectness) succumbed to abuse and insult.
Lat notes that comments became increasingly racist and sexist insults.  Equally offensive, I should note here, is the comment that accuses someone else of racism, etc., with no rational basis for doing so.  ("You support Policy X, and Policy X has a disparate impact.  Therefore you are a racist," and drivel such as that.)  He also notes that the administrative burden of actively policing the comments is just not worth it.  Comment degeneration not only diminishes the blog and the post to which the comment is made, but gutter comments drive away commenters who actually do want to discuss ideas in a civil manner, creating a downward spiral.

We have no plans to drop comments here at C&C.  Our commenters on the whole remain multiple levels above the degeneracy seen elsewhere.  The comments section adds valuable perspective and spices up the blog.

So let's keep it clean, folks, and keep the focus on facts and ideas, not name-calling.  Our policies on comments are noted in this post as updated in this post.

A Second Chance to Do What?

Sentencing "reform" advocates insist that we should go lighter on sentencing in the name of the distinctly American virtue of "giving people a second chance."

The phrase itself reveals the confusion posing as thought that lies behind this movement.  A person has a "second chance" whether his sentence is 78 months or 96 months.  He has a "second chance" whether it's 16 years or 18 years.  The question in either case is not whether he'll get a "second chance" under sentencing reform he would otherwise miss; the question is what he does with it, reform or not.

This story gives part of the answer.  When I read it, I asked the same question I frequently do:  When early release goes wrong, as it so often does, who pays the price?  The sentencing reform crowd at their posh, self-congratulatory, "we-are-so-humane" parties in Manhattan and Hollywood, or the next unsuspecting victim they helped set up?

A convicted murderer in Michigan, who was paroled early for good behavior after serving 19 years in jail, reportedly killed again less than one year after his release.

Malcolm B. Benson, 50, was serving a 20- to 40-year prison sentence as part of a plea deal he made in 1995, MLive reports. He was initially charged with first-degree murder but the plea deal reduced the charge to second-degree murder. He was also found guilty of felony use of a firearm, which added an additional two years to his sentence.

Benson was paroled on Jan. 13, 2015, after spending just over 19 years of his minimum 22-year sentence in prison.

Like Wendell Callahan's victims, Benson's victim would be alive today if he had been required to serve even the minimum of his term.

News Scan

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Street Behavior in SF Worsens, Stirs Debate:  San Francisco is feeling the ramifications of its liberal ethos that has turned the city into a "consequence-free zone," with crime increasing sharply and city officials divided as to how to address it.  Thomas Fuller of the NY Times reports that since 2010, property crime in the city is up more than 60% and recent data shows it has the highest per-capita property crime of the nation's top 50 cities.  Nearly half of the cases are smash-and-grabs from vehicles.  Violent crime has also spiked 18% since 2010.  The city "is now divided over whether to respond with more muscular law enforcement or stick to its forgiving attitudes."  While the Chamber of Commerce and city tourist board call for harsher measures to improve the "condition of the streets" -- homelessness, public intravenous drug use, aggressive panhandling and the large population of mentally ill on the streets -- others criticize such solutions as a "punitive approach that is ineffective and inconsistent with the values of San Francisco."  However, despite the traditional "values of San Francisco," a recent Chamber of Commerce poll shows that the primary concern of the city's residents is the spike in "street behavior."

Lawyers Seek Clemency For GA Murderer:  Attorneys for a Georgia death row inmate set to die this week have filed a clemency petition asking the state parole board to spare his life.  The AP reports that Georgia's State Board of Parole and Pardons, the only entity authorized to commute a death sentence, will hold a clemency hearing Tuesday for 37-year-old Daniel Anthony Lucas, a convicted murderer scheduled to be executed on Wednesday.  Lucas was sentenced to death for the 1998 murders of a 37-year-old man and his two children, aged 11 and 15, who interrupted him and another man, Brandon Rhode, while they burglarized their home.  Lucas, then 19, received the death penalty for the slayings, as did Rhode, who was executed in September 2010.  Lucas' lawyers argue that his childhood was troubled and plagued by drugs and abuse, and his status as a model inmate should exempt him from the death penalty.  If his execution is carried out this Wednesday as scheduled, it will be the fifth in the state this year.

Steady Increase of Illegals an Omen of the Surge to Come:  Apprehensions of illegal immigrants at the southern border increased last month after a winter lull, and authorities are expecting the numbers to steadily rise during the summer.  Molly Hennessy-Fiske of the LA Times reports that the Border Patrol saw a 28% increase in illegal border crossers from February to March of this year, with a total of 33,335 people caught in March compared to 26,076 in February.  Of those apprehended, 4,452 were families traveling together, 46% more than the month before, and 4,240 were unaccompanied minors, 37% more than the month prior.  The figures reported are higher than in 2014, when a surge of Central American migrants prompted crisis-level emergency measures.  Last month, Homeland Security Secretary Jeh Johnson touted a month-to-month decrease in migration during the winter, attributing the decline to stepped-up enforcement, but the recent influx indicates it was likely seasonal.  This article authored by Breitbart's Brandon Darby and Bob Price delves deeper into the dangers of illegal immigration and the consequences of an open border.

Anti-Suicide Pact

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Ted Cruz and John Kasich have entered an agreement to prevent the Republican Party from committing the mass suicide of nominating a candidate disliked by 2/3 of the American people.  James Taranto has this column at the WSJ.

Deflategate Ruling

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Off-topic, but for those who are interested the 2-1 decision of the Second Circuit reversing the District Court and reinstating the NFL ruling is here.  Jacob Gershman has this post at WSJ Law Blog.
The U.S. Supreme Court took up once again the issue of the mental element of crime, known in legal Latin as mens reaShaw v. United States, No. 15-5991, is a case from the Ninth Circuit.  The summary of the Ninth's opinion is:

The panel affirmed a conviction for a scheme to defraud a financial institution, in violation of 18 U.S.C. § 1344(1), in a case in which the defendant used PayPal to convince banks that he was a particular bank customer and thus had authority to transfer money out of that customer's bank accounts and into a PayPal account in the defendant's control.

The panel held that for a violation of § 1344(1), the government need not prove that the defendant intended the bank to be the principal financial victim of the fraud, and that the district court therefore correctly refused jury instructions that included such a requirement.
The Question Presented, as phrased by counsel for Shaw, is:

Whether subsection (1)'s "scheme to defraud a financial institution" requires proof of a specific intent not only to deceive, but also to cheat, a bank, as nine circuits have held, and as petitioner Lawrence Shaw argued here.
The sentencing appeal case is Manrique v. United States, No. 15-7250.  The unpublished opinion of the Eleventh Circuit begins:
Virginia Governor Terry McAuliffe today issued an order removing the disqualification from voting for felons who have completed their time, both in custody and on parole or probation.

Can he do that, constitutionally?  Of course.  Virginia Constitution Article V §12, the clemency power, is quite explicit on that point.

Why did he do it?  The primary reason, in my opinion, is that he expects that the criminal vote will go overwhelmingly to the Democratic Party versus the Republicans, and I believe he is correct on that.

The primary division in America today is not between rich and poor, labor and management, white and black, or any of the old divisions that have been prominent in the past.  The primary division is between people who believe in personal responsibility, obedience to the law, and work ethic, on one side, and those who do not along with their apologists, on the other.

Gov. McAuliffe believes that those who do not are more likely to vote for his party, and that should send a strong message to those who do.

Why Is the SRCA Sinking in the Ooze?

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The Senate's bill for mass reduction of federal felony sentences (called sentencing "reform" to keep it opaque) passed out of the Judiciary Committee months ago by a lopsided 15-5 vote.  But it's been downhill ever since.

Why?  Several reasons, I think.

1.  Two of the most fearsome crimes, murder and heroin trafficking, are going through the roof from coast to coast.
2.  The Sentencing Commission disclosed that nearly half of federal offenders recidivate, most in their first or second years out.
3. The Wendell Callahan sentencing reduction/child murder scandal has displayed the potentially grotesque costs of early release.
4.  It has finally dawned on lawmakers that those who'll pay the price of more crime are minorities and the poor.
5.  The proposal for retroactive reductions, meaning a boatload of additional costly litigation, is unpopular in the House.

And there is one more reason, highlighted by today's story in the Washington Examiner:  Democrats are refusing to go along with the one element of true criminal justice reform upon which the huge majority of sensible people would agree  --  that no one should be held criminally liable unless he knew or had some fair reason to know that what he was doing was wrong.

News Scan

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ISIS Suspect Planned Route Through Mexico:  A document filed Wednesday by prosecutors in a case against an American man accused to trying to join the Islamic State terrorist group described the man's plan to open up routes from Syria to the U.S. through Mexico.  Fox News Latino reports that 21-year-old Gules Ali Omar and a group of his friends in Minnesota's Somali community plotted to join the Islamic State, communicating with the foreign terror group's members about the route so it could be used to send fighters to America to carry out terrorist attacks.  Omar and four others have pleaded not guilty to multiple charges, including conspiracy to commit murder outside the U.S.  Their trial begins May 9.  Five other men have pleaded guilty to one count each of conspiracy to support a foreign terrorist organization and another is at large, believed to be in Syria.  According to the FBI, approximately 12 people have left Minnesota in recent years to join militant groups fighting in Syria and, since 2007, over 22 have joined al-Shabab in Somalia.

Chicago Tallies 1000th Shooting:  As of Wednesday, 1,000 people have been shot in Chicago, rising to levels last seen in the 1990s and far outpacing shooting incidents in the much larger cities of New York and Los Angeles.  Kelly Cohen of the Washington Examiner reports that according to Chicago Police Department data, there were about 600 shooting victims at the same point last year and just 483 the year before.  Additionally, as of Sunday, the homicide total was 64% higher than last year's, jumping from 98 to 161.

Va. Gov. Grants Voting Rights to Thousands of Felons:  Virginia Gov. Terry McAuliffe announced a sweeping executive order Friday that would restore the voting rights of over 200,000 convicted felons.  The AP reports that the action, which would impact an estimated 206,000 felons, means that every felon in the state who has completed their sentence and finished any supervised release, parole or probation requirements as of April 22 is eligible to vote, run for public office, serve on a jury and become a notary republic.  Most of the convicts that will be affected by the order are African American and Latino, two groups that vote overwhelmingly for Democratic candidates.  John Whitbeck, chairman of the Republican Party of Virginia, said McAuliffe's "decision to issue a blanket restoration, without regard to the nature of the crimes committed doesn't speak of mercy.  Rather, it speaks of political opportunism."

Recidivism, with a Twist

When I discuss America's sky-high recidivism rate (49% for federal offenders and 77% for state offenders), I sometimes encounter the objection that not all criminals return to the crime for which they went to prison.  This is true.  Not infrequently, they branch out.  Hence today's story:

A Grand Rapids man released from prison last summer for a November 1998 murder pleaded guilty Tuesday to a federal cocaine trafficking charge following his arrest in Southeast Grand Rapids with more than a pound of cocaine.

Keith Vonta Hopskin appeared in U.S. District Court in Grand Rapids where he admitted to having at least a pound of cocaine he planned to distribute....

Hopskin told police he had been receiving several ounces of cocaine about two times a month since July, court records show. He was released from prison July 5 on a second-degree murder conviction.

The 38-year-old, who has a prior federal drug conviction, told investigators he paid $10,500 for the cocaine and was able to sell three ounces before police stepped in.

Now just to head off the coming furrowed brows, this is not an argument that we should send people to prison forever; the first principle of sentencing remains just punishment.  It is, however, an argument against the delusion that, when we release criminals, we can expect them to become productive members of society.  It is not impossible that that will happen, but the decided likelihood is, instead, that the Hopskin story happens.  We need to bear this in mind when we told how much society will "benefit" from shorter sentences.

Was Prince Killed By Illegal Drugs?

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The iconic and eclectic musician Prince (his given first name was indeed "Prince") died yesterday.  There are already strong indications he was killed by heroin or some illegally obtained opioid.  The NY Daily News reports:

Prince received drug overdose treatment six days before his death during his plane's emergency landing in rural Illinois, according to a report.

Medical examiners are investigating the cause of the 57-year-old legendary musician's Thursday death at his Minnesota estate. But doctors in Moline, Ill., only 48 minutes from his home, gave Prince a so-called "save shot" during the emergency stop last Friday, TMZ reported.


The "save shots" usually help combat opiates, such as heroin and narcotic painkillers, in the bloodstream. Doctors and paramedics have used the injectable medication, called naloxone, for years, according to WebMD.

As this tragic incident certainly seems to illustrate, "save" shots are not the answer as long as the next patch of drugs is available.  We cannot play just defense against heroin and similar drugs; it just doesn't work.  We have to play offense.

Question:  Do we go on offense against illegal drugs by enacting softer sentences for their dealers, as the SRCA would allow?  Answer:  You don't need an answer.  It answers itself.  

Which Black Lives Matter?

The Chicago Tribune has released video of the unprovoked assault on a popular young black bartender by another black man on a crowded street corner.  William Lee of the Tribune has the story of the February 7 assault on 32 year-old Marques Gaines in front of a busy 7-Eleven store on the Near North Side of Chicago at about 4:20 AM.  The video shows what appears to be two men confronting Gaines as he steps out of the store with a bag of chips.  After a few moments Gains tries to step away and the larger of the two men cold cocks him in the head, knocking him unconscious.  Seconds after Gaines falls in the street, two people run up and begin rummaging through his pockets. 

News Scan

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High Court Hears Oral Arguments about DUI Laws:  The Supreme Court expressed doubt Wednesday during oral arguments in three cases challenging North Dakota and Minnesota laws, that make it a crime to refuse to test for alcohol in a driver's blood, breath or urine even in the absence of a search warrant.  The AP reports that drivers prosecuted under the laws, which were upheld by state supreme courts in both North Dakota and Minnesota, argue that they violate the Constitution's ban on unreasonable searches and seizures.  Justices "seemed to be searching for a middle ground"; Justice Kennedy took issue with the states' "extraordinary exception" to make it a crime for people to assert their constitutional rights, while Justice Kagan said a breath test is "about as uninvasive as a search can be.  Deputy Solicitor General Ian Gershengorn implored the justices not to assume warrants are available 24/7.  CJLF filed an amicus brief in one of the North Dakota cases, Beylund v. Levi.

Half-Mile Tunnel Found on Border:  U.S. authorities announced Wednesday that a sophisticated cross-border tunnel was discovered, running a half-mile from a Tijuana house to a large lot in San Diego and equipped with an elevator, a rail system, lighting and ventilation.  Elliot Spagat of the AP reports that investigators are unsure when the tunnel was completed but that the tenants operating the San Diego wooden pallet business, where the tunnel ended on the U.S. side, arrived about a year ago.  Investigators began monitoring the area last fall after noticing suspiciously heavy traffic in the lot.  Six people were arrested last Friday in connection to the tunnel.  Over a ton of cocaine and seven tons of marijuana were seized.  The tunnel in the 13th sophisticated secret passage found along California's border with Mexico since 2006.

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