The storm of racially-charged controversy surrounding the Charleston Massacre at the Emanuel AME Church in South Carolina last month continues to steal news headlines and remain at the center of heated debate. Addressing the topic of race and racism in the aftermath of this heinous crime is both foreseeable and reasonable, due to the fact that the shooter, Dylann Roof, is white and the nine victims he gunned down were black.  But during tense times when many Americans perceive the country as teetering on the brink of a race war, the liberal agenda injected into the discussion regarding the Charleston Massacre is not so much of a discussion, but rather, pure drivel that only serves to drive a deeper wedge between Americans of different races and promote the sentiment that we are living in a racist America.  Heather MacDonald fires back in this National Review piece titled "The Shameful Liberal Exploitation of the Charleston Massacre" to - as she always does - clear the air for those that refuse to recognize the truth through the media fog.  In response to President Obama's eulogy of Emanuel AME's pastor, the Reverend Clementa C. Pinckney, MacDonald notes:

News Scan

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Criminals Adapting to CA's Prop 47:  Though too early to comprehensively assess how California's Prop 47, the voter approved initiative that went into effect in November 2014 downgrading certain felonies to misdemeanors, law enforcement in Riverside County say that one result is clear:  offenders have adjusted their behavior to push the limits of the new law.  Sheriff Stan Sniff has this piece in the Desert Sun, stating that deputies have noticed that individuals arrested for theft have been careful not to exceed the $950 cutoff, and one man even admitted that what attracted him to mail theft was the lenient treatment the crime received under the law.  With police officers' duties to detain offenders stifled, and with no real consequences to "minor" criminals for their crimes, the price of Prop 47 is "steep for the public, while slight for the perpetrators."

'All Clear' at the DC Navy Yard After Reports of Gunfire:  A massive police response ensued after gunfire was reported at the same Washington Navy Yard where a gunman killed 12 people in 2013, but authorities issued an "all clear" following an extensive search.  Fox News reports that word of the shooting came after the news that the FBI was establishing command centers around the country to monitor potential terrorist threats around the Fourth of July weekend.  Retired Navy Capt. Chuck Nash says he is not aware of any specific threat.

New Warden, New Security Measures:  Clinton Correctional Facility in upstate New York is implementing a range of new security measures following the escape of two convicted murderers, leaving new superintendent Michael Kilpatrick, a 30-year correction veteran, with great responsibility.  Michael Virtanen of the AP reports that the new measures include ramped-up searches of inmates' cells, staffing changes to ensure more effective bed checks and installation of security gates in the facility's tunnels.  One of the two escapees, Richard Matt, was shot dead by police and the other, David Sweat, was captured alive after a three-week manhunt.  The former superintendent, two of his deputies and nine other staff members have been placed on paid leave while an internal review is conducted.

Justice Breyer's Dubious Authorities

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The following is a guest post by Connecticut Senior Assistant State's Attorney Harry Weller, commenting on Justice Breyer's dissenting opinion in Glossip v. Gross on Monday. The Connecticut Superior Court decision referred to is In re Death Penalty Disparity Claims (Oct. 11, 2013), previously noted in this post.   As always, opinions expressed by guest bloggers are their own.
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I was taken aback when I read Justice Breyer's reference to Prof. John Donohue's law review article about racial bias in Connecticut's administration of its capital sentencing scheme. That a United States Supreme Court Justice would quote an article about a study that was thoroughly rejected in litigation is astonishing. This is especially so in this instance, when the proponents of Donohue's study kept his written report from the habeas court to also block admission, on hearsay grounds, of the devastating and unqualified evisceration of his study by the state's expert.

I'm equally concerned that Justice Breyer cited the report without questioning the validity of Donohue's "egregiousness" scale. After all, Donohue just made up the scale and never tested it objectively to determine whether it indicated anything meaningful or relevant about  Connecticut's capital sentencing scheme. Thereafter, when his egregiousness results--compiled by law students from scrubbed summaries--disagreed with the results dictated by the statutory criteria for imposing a death sentence--as evaluated by experienced prosecutors, judges, and juries based on all the evidence--Donohue determined that the latter were arbitrary.

Glossip v. Gross Podcast

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For those of you who can't get enough of my commentary on Glossip v. Gross (and I know you're out there), yesterday's FedSoc teleforum is now available as a podcast.

Seriously, I'm told that the number of downloads of the podcast versions of the teleforums greatly exceeds the live participation on the calls, and I thank the Federalist Society both for hosting the teleforum and making the podcast available so promptly.

News Scan

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NYPD on High Alert for Terror Attack:  The Tri-State area is on hyper-alert for the threat of a terror attack during the Fourth of July holiday as the Islamic State (ISIS) continues to actively radicalize people in the area and orders their followers to "kill the enemy" during the Ramadan holiday.  CBS New York reports that five people have been arrested in New York and New Jersey recently on terror-related charges, the latest being 23-year-old Alaa Saadeh, who is believed to be part of a group planning to detonate a pressure cooker bomb at a New York landmark.  The Department of Homeland Security has ordered the NYPD and 18,000 other law enforcement agencies across the nation to be "especially vigilant and prepared."

Bill Aims to Stop Illegal Immigrant 'Catch and Release' Practices:  Congressman Matt Salmon has introduced a bill that aims to halt criminal alien "catch and release" practices, in response to the murder of a young Arizona man at the hands of an illegal immigrant who was out on bond after a burglary conviction.  Nicole Garcia of Fox News 10 reports that Apolinar Altamirano shot and killed 21-year-old convenience store worker Grant Ronnebeck over a pack of cigarettes.  HB 2941, or "Grant's Law," requires U.S. Immigration and Customs Enforcement to keep criminal aliens detained for at least 90 days, after which they would be put in the front of the line for deportation.

Chicago Communities Brace for Violent Weekend:  As the Fourth of July weekend approaches, Chicago's South and West side residents brace for the "seemingly inevitable" violence that has come to be associated with the celebration.  Jeremy Gorner and Lolly Bowean of the Chicago Tribune report that last year's Fourth of July festivities resulted in 14 people dead and 66 wounded in just 3 ½ days, many of which were attributed to gang violence.  Homicides and shootings have risen sharply in the city in the first half of 2015, prompting law enforcement and even trauma doctors to mentally prepare for what the weekend may bring.

NY Prison Escapees Broke Out Twice:  David Sweat, one of the two convicted murderers who broke out of a New York prison and went on the run for weeks before being shot and captured, told authorities that he and his accomplice Richard Matt, fatally shot by police while on the run, conducted a "dry run" of their escape the night before their plan reached fruition.  Fox News reports that Sweat claims to have used a hacksaw blade to cut holes in the steel walls of his and Matt's cells and in the 24-inch steam pipe they crawled through to reach the catwalk in the bowels of the prison, where they reached the outside of the prison through a manhole.  He also claims that the two navigated the pipe from 11:30 p.m. to 5 a.m. in the days before their planned breakout.  As details of the plan continue to unfold, more Clinton Correctional Facility prison officials are being put on leave, including the superintendent, his deputy and 10 other employees.

A small newspaper in central Pennsylvania published an editorial on Monday hailing Governor Tom Wolf's statewide moratorium on the death penalty.  It begins with a quote from novelist Raymond Chandler claiming that law is not justice but rather an imperfect mechanism that randomly jets out results - sometimes we get what we call justice; sometimes naught. 

 

The editorial proceeds by mentioning the case that led to the moratorium:  Hubert Lester Michael Jr.  Michael was convicted of the murder of 16 year old Trista Eng.  Eng had posted an ad to sell a chair, which Michael responded to.  Later Michael picked her up while she was hitchhiking. He bound, raped and killed her.  Eng's life was over at 16 because she posted an ad to sell someone a chair.   Her family is left to pick up the pieces. 

 

To which the editorial staff at the York Daily Record state:

All of us feel for these families. Many of us will never fully understand what they are going through.

And certainly, for them, and for many others, the death penalty is an emotional issue. But for the sake of justice, however imperfect, we have to be able to take a rational look at the death penalty and its purpose, its cost and its flaws, no matter how difficult that may be.

Mr. Michael is a poor candidate for this kind of rational reflection. He admitted his crimes. He had a history of brutality. He is a monster. It is easy to say, as York County District Attorney Thomas Kearney did, that he is "the poster child" for the death penalty.

Perhaps Mr. Michael deserves death.

But he is not what this debate is entirely about.

The rational debate about the death penalty is - at base - really about retributive justice.  The abolition movement is fond of recounting the "death is different" motto, which the Supreme Court invoked at least as far back as 1977.  But that is precisely the point: murder is a uniquely grievous crime that calls upon any civilized and orderly society to punish in an exceptional manner.   Society, of course, wants to deter murder and it wants to preserve the safety of its citizens, but justice, at least in this world, is an entirely human enterprise and it derives from the simple idea that people deserve to be punished when they have transgressed seriously against the social norms embodied in the law.

There is no "perhaps" in Michael's just deserts; what he deserves is worse than death but he mercifully gets less.  The conversation, though, is about deserving.  It is emotional but that does not render it irrational.  The touchstone of our humanity is that we can feel for others: the families of the victims; the outrage at the conduct of someone like Michael; the loss of safety that we all experience upon hearing of a horrendous crime; the brief thought: that could have been my child.  It is this same emotional affair that lends us to extend a lesser punishment for those who have truly extenuating circumstances.  Justice is not cold nor should it be because it is an entirely human endeavor not a mechanical one.   The debate about the death penalty does include concerns about its reliability as does the entire criminal justice system, but it is, at heart, a debate about what people like Hubert Lester Michael deserve and that is reason at its best. 

The outcome of the much-covered case, highlighted in articles here and here, filed by several death row inmates in Oklahoma holds great significance for the future of California's death penalty system.  In a 5-4 decision on Monday, the U.S. Supreme Court ruled on the case of Glossip v. Gross, determining that the sedative midazolam can be used in executions without violating the Eighth Amendment prohibition of cruel and unusual punishment.  Gov. Jerry Brown's administration now has 120 days to propose a new lethal injection method, as stipulated with families of murder victims in a recent settlement.  The ruling will fortunately create greater challenges for death penalty opponents and death row inmates, but a resumption of executions is not without obstacles:

-State law requires extensive public comment on a new execution method, including mandatory administrative procedures and hearings, a lengthy process that could take a year.

-Opponents of the death penalty may decide to return the ballot with a measure to replace the death penalty with life without parole, such as the one that was narrowly defeated by voters in 2012.

-Drug manufacturers are making it increasingly difficult for prisons to obtain lethal drugs for executions.


News Scan

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Parole Blocked for Killer of CA Man Buried Alive:  California Gov. Jerry Brown has blocked parole for the man responsible for the murder of a developmentally delayed man in 1980, who was beaten and buried alive.  Don Thompson of the AP reports that Brown ignored a state panel recommendation for 52-year-old David Weidert's parole, deeming him too dangerous to be released.  Initially sentenced to life without parole, an appeals court reduced Weidert's sentence in 1984 to 25 years to life with the chance of parole after striking down two special circumstances.

Unmonitored, Undocumented Sex Offenders Roam Freely:  Eleven convicted sex offenders living in the country illegally are residing in several western Washington neighborhoods without being monitored by authorities.  KIRO 7 reports that despite efforts to deport them, a Supreme Court ruling requires them to be released from custody if their home countries refuse to take them back. U.S. Immigration and Customs Enforcement admit that they do not track these criminals once they're released onto American streets.

Raise the Age NY Campaign Fails:  New York lawmakers were unable to reach a decision regarding changing the age of criminal responsibility in the state in legislation which sought to raise the age of criminal responsibility from ages 16 and 17 to age 18.  Jackie Davis of the Legislative Gazette reports that Gov. Andrew Cuomo, who proposed the legislation in his State of the State address, plans to take executive action to remove 16-and 17-year olds from state prisons and into separate facilities.  The 'Raise the Age NY' campaign advocates that changing the age of criminal responsibility would produce results that echo those of an Illinois study, which concluded that when teens are charged as juveniles the adolescent crime rate goes down.

Glossip Symposium at SCOTUSblog

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It's been a busy day in the wake of Glossip.  The case has drawn a lot of media attention.  We will have some links to coverage tomorrow.

Tomorrow I will be on a teleforum with the Federalist Society at 2:00 p.m. ET.

SCOTUSblog is having a symposium on the case.  The first post to be published is by Alabama SG Andrew Brasher, a co-amicus on our side of the case.

I have sent in my entry.  I will post the last section after the break.  I'll have a link to the The full post when it is available on SCOTUSblog.

Update:  The posts by Deborah Denno and Stephen Schwinn are available now.  They are not happy campers.

The Left Goes Bonkers, Part II

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In my original "The Left Goes Bonkers," I described a theory that the Just Compensation Clause entitles criminals to whitewash their record and fabricate their resumes' by just making stuff up (or composing "from whole cloth," as the theorist candidly acknowledged).

I had no idea that, instead of merely whitewashing one's prior stint in prison, the Left would come up with the idea of whitewashing  --  or more correctly, eliminating altogether  --  prison itself.

And no, I am not making this up.  The idea is advanced by Prof. Allegra McLeod of Georgetown University Law Center.  If Prof. McLeod has missed a single liberal shibboleth, I haven't been able to think of it.  Below is one paragraph from the abstract of her piece (courtesy of SL&P):

[T]his Article explores a form of grounded preventive justice neglected in existing scholarly, legal, and policy accounts. Grounded preventive justice offers a positive substitutive account of abolition that aims to displace criminal law enforcement through meaningful justice reinvestment to strengthen the social arm of the state and improve human welfare.  This positive substitutive abolitionist framework would operate by expanding social projects to prevent the need for carceral responses, decriminalizing less serious infractions, improving the design of spaces and products to reduce opportunities for offending, redeveloping and "greening" urban spaces, proliferating restorative forms of redress, and creating both safe harbors for individuals at risk of or fleeing violence and alternative livelihoods for persons subject to criminal law enforcement.  By exploring prison abolition and grounded preventive justice in tandem, this Article offers a positive ethical, legal, and institutional framework for conceptualizing abolition, crime prevention, and grounded justice together.

I am seldom left speechless, but this time...................




The title of this post is taken in part from Ed Whelan's column in NRO's Bench Memos. His observations are especially pertinent to the claim, repeated ad nauseum, that the death penalty is headed for extinction.

There was a time when this was true.  As Ed reminds us, however, it was 43 years ago.  On this very day in 1972, in Furman v. Georgia: 

...five justices vote to overturn a death penalty as cruel and unusual punishment in violation of the Eighth Amendment but can't agree on a rationale. Each of the five justices instead issues his own opinion. Despite the fact that the Fifth and Fourteenth Amendments expressly assume the existence of the death penalty, Justices Brennan and Marshall each assert that the death penalty is in every instance an Eighth Amendment violation. 

This morning, about two generations and 1411 executions later, the Court issued its opinion in Glossip, saying, among many other things (emphasis added):

Our decisions in this area have been animated in part by the recognition that because it is settled that capital punishment is constitutional, "[i]t necessarily follows that there must be a [constitutional] means of carrying it out." 

So much for our abolitionist friends (or anyone) claiming to have a crystal ball.

 


News Scan

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Second NY Prison Escapee Captured Alive:  Relief overwhelmed residents of upstate New York after the second prison escapee was captured alive near the Canadian border on Sunday after 22 days on the run.  Fox News reports that law enforcement spotted convicted murderer David Sweat on Sunday afternoon before hitting him with two non-fatal gun shots as he dashed for a line of trees.  Sweat's accomplice, Richard Matt, was fatally shot by police last Friday after failing to obey law  commands.  Sweat will face charges of escape and burglary, among others, when he recovers from his injuries.

CA Counties Must Examine Sex Offender Registration:  An April ruling by the California Supreme Court overrides justices' earlier decision regarding mandatory sex offender registration that allowed judges to exempt offenders who committed certain child sex crimes from registering, forcing counties to examine their sex offender registration requirements.  Brad Branan of the Sacramento Bee reports that the new ruling was in response to the case of Mike Grandinetti, convicted in 2006 of oral sex with a 17-year-old foster child under his care, exempted from registering as a sex offender under the previous ruling.  That decision allowed him to participate in the Miss Rio Linda Pageant with teenage girls, as well as in a program with at-risk juveniles.  Because exemption from registration was part of his plea agreement, Grandinetti may have a strong legal argument should prosecutors ask him to register as a sex offender.

Florida Death Penalty Faces Scrutiny from SCOTUS:  Florida's unique system of capital punishment, in which juries provide mere 'advisory' decisions to the judge's ultimate determination of whether to sentence someone to death, will be reviewed by  the U.S. Supreme Court.  Elaine Silvestrini of the Tampa Tribune reports that Florida is the only state among the 33 with a death penalty that permits judges to impose sentences different from jury recommendations and does not require juries to reach unanimous decisions on the existence of specific aggravated factors.  The U.S. Supreme Court will consider this fall whether 'the outlier state' needs to change their system.

Measure Introduced to Preserve Integrity of Jessica's Law:  New legislation authored by Senator Sharon Runner of California would make sex offender residency more "workable," but still maintain the integrity of the voter approved Jessica's Law, which lays out a 2,000 foot residency restriction from schools and parks for sex offenders.  Sacramento Today reports that SB 54 clarifies how 2,000 feet should be measured, ensures that only violent sex offenders are subject to the restriction and states that the Appellate Division of the Superior Court of each county has the primary jurisdiction to consolidate and hear petitions challenging the distance restriction.  The Senate Public Safety Committee will hear the bill on Tuesday.

Sonoma County Car Thefts on the Rise:  So far in 2015, at least five vehicles were stolen each day in Sonoma County, California, a sharp uptick in a crime that has already been on the rise in the county since 2013.  Julie Johnson of the Press Democrat reports that the AB 109 Prison Realignment program is believed to be responsible for the upswing, as researchers estimated that the measure increased the auto theft rate by about 17 percent from 2012 to 2013.  Rohnert Park Public Safety Sgt. Jeff Justice says that the "people being released from prisons early are the people who commit property crimes out on the streets."

1.  Justice Kennedy joined Justice Alito's strong opinion for the Court and did not pen any kind of concurrence.  For those who thought (or hoped) Justice Kennedy was on the verge of disbanding capital punishment, this is hugely important.

2.  If either of President Obama's appointees were inclined to outlaw capital punishment per se, now was the time to go on record by signing on to at least some part of Justice Breyer's dissent (with Justice Ginsburg).  Neither did.  It would thus appear that there are seven solid votes against the abolitionist position, including the five youngest Justices.

3.  The abolitionist shake-and-jive of trying to dry up lethal injection drugs as a means to end the death penalty not only failed; it backfired.  The Court has caught on, and caught on explicitly.

In my view, today's decision was the most significant Supreme Court victory for the death penalty since Gregg was decided in 1976.

P.S.  Last week, conservatives were doing a good deal of grousing about Burwell and Obergefell, and generally about Republican Supreme Court appointments. CJLF takes no position on those two cases.  I personally, however, would like to thank President Reagan for Antonin Scalia and President George H. W. Bush for Clarence Thomas, both of whom shredded the Breyer dissent.  And a special thanks to President George W. Bush for Sam Alito, whose precision, perceptiveness and analytical rigor were on bold display this morning.

UPDATE:  The CBS Radio News at 1 pm EDT led off with the Glossip case, and within 15 seconds was playing a comment by Kent.

Victory in Glossip

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The opinion is here, 5-4, by Justice Alito.  I will have more later.

Update:  At the end, the opinion of the Court says,

Finally, we find it appropriate to respond to the principal dissent's groundless suggestion that our decision is tantamount to allowing prisoners to be "drawn and quartered, slowly tortured to death, or actually burned at the stake." Post, at 28. That is simply not true, and the principal dissent's resort to this outlandish rhetoric reveals the weakness of its legal arguments.
There is a side debate between Justices Scalia and Thomas and Justice Breyer regarding the constitutionality of capital punishment itself.  At first glance, Justice Breyer's argument appears to be all the usual stuff we have refuted time and again.

Update 2:  CJLF has this press release.

The Left Goes Bonkers

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I realize that I am sometimes prone to overstatement, but I think readers will find the title of this entry justified.  The subject is a post on Sentencing Law & Policy titled, "A Second Chance: Re-biography as Just Compensation."  I will quote verbatim the opening paragraph of the tract it references:

Once upon a time, reinvention was an integral part of the myth of the American Dream. As the story went, one could leave the old country or old neighborhood, without looking back -- fashioning one's own second chance by stepping into a newer, better identity, crafting a redesigned life story out of whole cloth if necessary.  As one legal historian noted, "American culture and law put enormous emphasis on second chances." For most of the 20th Century, this notion of the second chance was also alive and well in the American criminal justice system, as rehabilitation was considered its primary goal.  My earlier article, "A Good Name: Applying Regulatory Takings Analysis to Reputational Damage Caused by Criminal History," couched the need for rebiography upon reentry in terms of the ongoing reputational damage suffered by the previously convicted.  Then, regulatory takings analysis was applied to that reputational damage.  In doing so, it analyzed the critical property-like characteristics of reputation, concluding that reputation is a form of "status property" and that such continued stigma attachment and reputational damage constitutes a "taking" without just compensation. Finally, it was argued that rebiography can serve as "just compensation" for this type of taking.

For those of you who believed the old line about the criminal's owing a debt to society, wake up.  Society owes a debt  --  and thus "just compensation"  --  to the criminal (ummm, make that "previously convicted") for the indignity of having convicted him for his behavior.


And Then There Were Three

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The WSJ's Washington Wire blog has this post on the remaining three cases of the current US Supreme Court term.  Word is they will all be decided tomorrow (Monday).

Something for everyone.  Here at C&C, we will be focused on Glossip v. Gross, the lethal injection with midazolam case.  Those who eat, sleep, and breathe politics will care most about the Arizona redistricting case.  Those who focus on issues of the environment and government regulatory overreach will be most interested in the power plant case.

Thank God for Editing

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I often find the book reviews in the WSJ to be entertaining reading over Saturday breakfast, even when I have no intention of ever reading the books reviewed.

1 Down, 1 To Go

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William Rashbaum and Benjamin Mueller report for the NYT:

Richard W. Matt, one of the convicted murderers who staged an elaborate escape from New York's largest prison nearly three weeks ago, was shot and killed on Friday by a federal agent, two people with knowledge of the situation said.

The authorities encountered Mr. Matt after the inmate, who was on foot, tried to carjack a camper vehicle near Malone, N.Y., a third person with knowledge of the situation said. The driver sped away and called 911, and law enforcement officers responded.

There was a report of a second episode of gunfire as officers pursued David Sweat, the other inmate. The officers did not see Mr. Sweat, but they heard him running. His whereabouts was unclear.

Background on the Weidert Case

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Those who read the entry about the Weidert case in today's News Scan may wonder why Weidert was not sentenced to life without parole.  After all, isn't killing a witness to a crime to prevent his testimony "special circumstance" murder in California?

This case was decided in the darkest days of the California Supreme Court.  See People v. Weidert, 39 Cal.3d 836, 705 P.2d 380 (1985).  Cal. Supreme in those days bent over backward to resolve every conceivable issue -- and some inconceivable ones -- in favor of murderers.  Weidert was 17 1/2 at the time of the crime, and the court held that the circumstance of killing a witness to prevent his testimony in a criminal proceeding did not apply to a person who at least initially would have been in juvenile court for the underlying burglary.

CJLF filed an amicus brief to argue against this anomalous result.  (Not me, that was before my time here.)  Justice Lucas agreed with our position, as did Justice Mosk, but the court was so stacked against the law-abiding public at the time that the decision went 5-2 the other way.

Fourteen months later, the people of California tossed out three of the justices for their consistent tilt in favor of criminals.  That vote and the consequent vast improvement in the California Supreme Court remains to this day one of the strongest arguments against life tenure for judges.

News Scan

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High Court Strikes Down 'Vague' Part of Career Criminal Law:  Part of a law intended to keep violent repeat criminals in prison longer was struck down Friday by the Supreme Court in a ruling which states that the law's catchall phrase is too vague.  The AP reports that the Armed Career Criminal Act includes burglary, arson, extortion and the use of explosives as past crimes that can lead to a longer sentence, but then adds a crime that "otherwise involves conduct that presents a serious potential risk of physical injury to another."  Six justices agreed that the phrase was unconstitutional, determining that defendant Samuel James Johnson's prior convictions, which added five additional years to his 2012 sentence in which he pleaded guilty to federal weapons charges, does not qualify as a felony under the law.

Drug Smugglers Using the Skies:  Small, homemade planes flown  by drug smugglers have twice dropped bales of marijuana, totaling at 400 pounds, onto Arizona soil over the past week, indicating that drug cartels have taken to the skies.  Morgan Loew of KPHO reports that authorities believe that drug smugglers are experimenting with much even smaller aircraft  such as drones.  As technology advances, it is expected that drones will be able to "carry enough of a payload to make them viable drug smuggling vehicles."

ISIS Expansion Along U.S. Borders:  The U.S.-Mexico border has growing appeal for the Islamic State, the terrorist organization known as ISIS, due in part to the presence of powerful drug lords.  Siouxland News reports that the labyrinth of tunnels used by drug cartels to transport product from Mexico to the U.S. discreetly could easily turn into an "underground highway" for ISIS to gain access to the U.S.  Mexico's unstable leadership and ruthless drug cartels is creating an opportunity for terrorist organizations.  

Gov. Brown Considers Parole For Brutal Killer:  California Gov. Jerry Brown has until midnight to decide whether to block the parole for a man who buried alive a developmentally disabled Fresno-area man in 1980.  Don Thompson of the AP reports that 52-year-old David Weidert was sentenced to life in prison for the murder of 20-year-old Michael Morganti, who Weidert forced to dig his own grave before beating, stabbing, choking and burying him alive, to keep Morganti from testifying against him about a burglary.  A state panel has already granted Weidert parole, but Morganti's family, state lawmakers, Fresno County Sheriff and the California State Sheriff's Association are urging Gov. Brown to have it revoked.

Today the Supreme Court, 6-2-1, declared that the "residual clause" of the Armed Career Criminal Act is unconstitutional.

The ACCA has a "three strikes" provision for violent felony priors, defined as a crime punished by over a year in prison that :

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another
What the heck does that last part mean?  That's the problem.  Criminal laws need to be more clear than that, the majority says.  The rest of the law remains in force.

The case is Johnson v. United States, No. 13-7120.  Justices Kennedy and Thomas concur in the judgment overturning Johnson's sentence by applying rather than invalidating the statute.  That is, they believe the statute is constitutional but that possessing a short-barreled shotgun is not a violent felony under the statute.  Justice Alito dissents.

No Glossip today.  From a press coverage viewpoint, that's just as well, as the decision in a civil case will suck all the oxygen out of the room.  The Court has informed the press that Monday is the last day of the term, so we will definitely have a decision then.

Real Life Overtakes Satire, Again

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I have noted several times on this blog how satirists sometimes imagine preposterous things and later someone really does or says what was once so absurd as to be funny.  Chief Justice Roberts gave us an example today in the health care decision, although he did not explicitly state the last part, instead expecting that everyone knows it.  He was explaining why some of the usual canons of statutory interpretation do not apply to this law because it is written so very badly.

The Affordable Care Act contains more than a few examples of inartful drafting. (To cite just one, the Act creates three separate Section 1563s. See 124 Stat. 270, 911, 912.) Several features of the Act's passage contributed to that unfortunate reality. Congress wrote key parts of the Act behind closed doors, rather than through "the traditional legislative process." ... And Congress passed much of the Act using a complicated budgetary procedure known as "reconciliation," which limited opportunities for debate and amendment, and bypassed the Senate's normal 60-vote filibuster requirement. ...  As a result, the Act does not reflect the type of care and deliberation that one might expect of such significant legislation. Cf. Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L.Rev. 527, 545 (1947) (describing a cartoon "in which a senator tells his colleagues 'I admit this new bill is too complicated to understand. We'll just have to pass it to find out what it means.'").
In the 1940s, that fictional senator's statement was so absurd that a cartoonist made it up for laughs, but in 2010 the Speaker of the House, Nancy Pelosi, said it for real. 

News Scan

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Prop 47 Blamed for Increased Thefts:  Law enforcement officials in a Central California town are pointing at Proposition 47, the voter-approved "Save Neighborhoods and Schools" initiative that reduced several felony offenses to misdemeanors, as the culprit in the rise of thefts.  Jackson Moore of the Dinuba Sentinel reports that Dinuba Police Chief Devon Popovich says that his department has seen a significant spike in thefts and drug offenses since Prop 47 passed last November.  Popovich acknowledges that while it has reduced the prison population, it certainly has not reduced crime or made neighborhoods safe.

Released Illegal Aliens Not Tracked or Registered:  Illegal immigrants convicted of rape, child molestation and other sex crimes are free in American communities without being tracked or registering as sex offenders.  Katie McHugh of Breitbart reports that the issue has been worsened by the 2001 Supreme Court ruling Zadvydas v. Davis, which determined that immigrants convicted of violent crimes can't be held for more than six months if their home country refuses to take them back.  Under the ruling, 134,000 criminal aliens have been released onto American streets is just three years.

Suspect in Fatal Crash Deported Three Times:  A man accused of causing a crash that killed a sports journalist in an Oklahoma town had previously been deported three times.  News 9 reports that 26-year-old Gustavo Castillo Gutierrez, driving without a valid driver's license, made an illegal U-turn in front of Bob Barry Jr. who was thrown off of his motorcycle, sustaining fatal injuries.  Gutierrez had been voluntarily returned to Mexico three times, twice in 2010 and again in 2013.

2nd Officer Accused of Helping NY Inmates Escape:  A corrections officer at the Clinton Correctional Facility in upstate New York was charged on Wednesday with bringing a screwdriver and pliers into the maximum-security prison in exchange for paintings given to him by the two convicted murderers who escaped earlier this month.  Tom Winter of NBC News reports that 57-year-old Gene Palmer's arrest suggests that the escape may be part of a larger conspiracy involving multiple prison workers, who worked together to carry out the Shawshank Redemption-style breakout of David Sweat and Richard Matt.  Palmer faces charges of promoting prison contraband, two counts of tampering with evidence and official misconduct.  The massive manhunt for the two escapees is still ongoing.

Cop-Fleeing Car Jumps Curb, Kills 2 Children:  A driver fleeing Detroit police officers killed two children and injured four other bystanders when the car jumped a curb after a 75-second high speed chase that reached speeds of 80 MPH.  Daniel Bethencourt of the Detroit Free Press reports that the chase ensued when the two officers decided to pull the vehicle over after spotting one of the two occupants with a handgun.  The two children that died were ages two and six.  The driver and passenger of the fleeing vehicle were arrested at the scene.

Crappy Days Are Here Again

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Myron Magnet minces no words in the City Journal:

Twenty-three prior arrests, including menacing someone with a machete five years ago, and this madman is still walking the streets? Seeing a passerby's video of Sook Yeong Im, a pretty young Korean tourist, lying on the 40th Street sidewalk after crazy career criminal Frederick Young, 43, had twice slashed open her arm with his viciously honed weapon--exposing muscle fiber and sending blood spurting everywhere--brought back in an instant the knot of fear New Yorkers carried in their stomachs in the pre-Rudy Giuliani era, when out-of-control crime was killing not just one person every four hours, 365 days a year, but also was killing Gotham itself. That the assault occurred in Bryant Park at 11:30 on a sun-drenched early-summer morning, as the victim was looking for a seat after her yoga class, seemed to unravel just about every gain that the tireless efforts of thousands over 20 years had achieved to make New York once more the capital of the world. Suddenly, it seems we're back to Son of Sam or the Wild Man of West 96th Street.
The subtitle of the piece, BTW, is It's De Blasio Time, and madmen with machetes are on the loose.
There will be lots of headlines and discussion about two U.S. Supreme Court decisions today on "disparate impact" and Obamacare, but we are still waiting for Glossip v. Gross.  Maybe tomorrow.
A discussion of pot always stirs the pot, as it were, but perhaps even more interesting, from the professorial point of view, is a discussion of the current dispute between Oklahoma and Nebraska, on the one hand, and Colorado, on the other. The state law in the former two forbids pot,  as does federal law.  Colorado state law permits recreational use of the drug.

Oklahoma and Nebraska have sued Colorado in the Supreme Court  --  one of the few types of cases in which the Court has original jurisdiction  --  alleging unhealthy and illegal spillover effects into their states of the latter's more permissive law. The Court has invited the United States to submit its views.  Eric Holder got out of Dodge before a decision had to be made on this hot potato. 

CJLF takes no position on pot legalization itself, but the federalism, supremacy, Commerce Clause and preemption issues at stake in the case are irresistible.  What position the feds take here is likely to reverberate in similar supremacy and spillover cases involving, for example, DOJ's position on state laws affecting water pollution, firearms regulation and immigration policy.

Prof. Zac Bolitho of Campbell Law School in Raleigh, NC takes an astute and fair-minded look at the case in his op-ed today in the Los Angeles Times.  Take a look.
Alicia Parlapiano, Adam Liptak, and Jeremy Bowers write in the NYT:

The Supreme Court under Chief Justice John G. Roberts Jr. has been a conservative court. But even conservative courts have liberal terms - and the current term is leaning left as it enters its final two weeks.

The court has issued liberal decisions in 54 percent of the cases in which it had announced decisions as of June 22, according to the Supreme Court Database, using a widely accepted standard developed by political scientists.
If you have access behind the paywall at National Law Journal, you might think I agree with that assessment.  My view is more nuanced than a brief blurb in a newspaper article can explain.

I have remarked more than once on the shortcomings of the labels "liberal" and "conservative."  Sometimes they work, as I noted Monday.  Sometimes they don't.

In the cases I follow closely (criminal, habeas corpus, law-enforcement-related civil), the number of wins for the "liberal" side this term (the defendant, the habeas petitioner, the prisoner, the person challenging police action) is to some extent a function of the cases the Supreme Court has taken up.  There are several where even a pro-law-enforcement type like me thinks the "other" side properly won.

The Knucklehead Defense

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Judge Barry Silverman, writing the opinion for the U.S. Court of Appeals for the Ninth Circuit in United States v. Rodriguez, No. 14-10122 today:

There ought to be a law against shining a laser pointer at an aircraft. In fact, there is, and it's punishable by up to five years in prison, as appellant Sergio Rodriguez discovered for himself. Rodriguez, his girlfriend, and their kids were fooling around with a laser pointer one summer evening in the courtyard of their apartment complex - trying to see just how far it could go - and they shined it at overflying helicopters. Rodriguez was convicted of Aiming a Laser Pointer at an Aircraft, in violation of 18 U.S.C. § 39A, and was sentenced to the maximum sentence: five years in prison. Rodriguez does not challenge that conviction.

He also was convicted of another crime stemming from the same conduct - Attempting to Interfere with the Safe Operation of an Aircraft, in violation of 18 U.S.C. § 32(a)(5) and (8). That crime requires proof of a willful attempt to interfere with the operator of an aircraft, with either the intent to endanger others or reckless disregard for human life. Rodriguez was charged with and found guilty of the reckless variety, and for that offense, was sentenced to fourteen years in prison.

Boston Marathon Bomber "Apologizes"

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Dzhokhar Tsarnaev apologized to his victims today, at least those (being quite a few) who are still alive to be able to hear it. CNN has the story.

I have probably heard less convincing apologies in my years as a litigator, but I can't recall one offhand.  From the story, few of the victims were convinced either.

The taxpayers will now spend hundreds of thousands or millions pursuing appeals and habeas remedies that knowledgeable people regard as ranging from dubious to absurd.  None will be absurd enough, however, to contest his factual guilt.  If we need to save money in the criminal justice system, this would be a good place to start.

There is not a whole lot left to say about this awful case.  The best capital defense lawyer in the country could not convince a single juror sitting in Boston, of all places, to vote for LWOP.

A sensible system would execute Mr. Tsarnaev promptly and move on to the next abolitionist poster boy, Dylann Roof.  But a sensible system would not tolerate the delay and expense already built in.

News Scan

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U.S. Won't Prosecute Hostages' Families Who Pay Ransom:  Families of Americans held hostage by terror groups will not face prosecution if they communicate with or pay ransom to captors, outlined in a broad review of U.S. hostage guidelines released Wednesday.  The AP reports that there will be no formal change to the law, but the Obama administration has clarified that the Justice Department will not prosecute anyone for paying ransom.  The government is still banned from directly paying ransom or facilitating payments for families.  Four Americans have been killed by the Islamic State terror group since last summer, and two other American hostages have been killed in recent months.

DHS to Release More Illegal Immigrant Families:  Even though a recent report revealed that 84 percent of Central American families who illegally entered the U.S. last year seeking asylum failed to appear in court, the Obama administration proceeded to further reduce family detention.  Caroline May of Breitbart reports that Department of Homeland Security (DHS) Security Sec. Jeh Johnson has approved a new plan which allows U.S. Immigration and Customs Enforcement (ICE) to offer release on monetary bond to illegal immigrant families who state a credible fear of persecution in their home countries.  Family detention will continue for those who are not seeking relief.

NY Prison Worker Hid Tools in Meat:  The prison tailor accused of assisting murdererss David Sweat and Richard Matt in the escape from a New York prison reportedly smuggled tools in hamburger that made it through the main gate.  Shimon Prokupecz, Steve Almasy and Jethro Muller of CNN report that Joyce Mitchell admitted to putting hacksaw blades and drill bits into hamburger, placed it in a freezer in the tailor shop after getting it through the main gate, and passed it off to corrections officer Gene Palmer to bring to the inmates' cell area.  Palmer did not put the package containing the meat through the metal detector - a violation of prison policy - though prosecutors don't believe he had any knowledge of what was concealed in the meat.  Convicted murderers Sweat and Matt are still on the run after 19 days.


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