A:  More violent crime, which is surging across the United States.

As Heather McDonald writes in the WSJ:

[T]he evidence is not looking good for those who dismiss the Ferguson effect, from the president on down. That group once included Richard Rosenfeld, a criminologist at the University of Missouri, St. Louis, who was an early and influential critic. Mr. Rosenfeld has changed his mind after taking a closer look at the worsening crime statistics. "The only explanation that gets the timing right is a version of the Ferguson effect," he told the Guardian recently. "These aren't flukes or blips, this is a real increase." 


A study of gun violence in Baltimore by crime analyst Jeff Asher showed an inverse correlation with proactive drug arrests: When Baltimore cops virtually stopped making drug arrests last year after the rioting that followed the death of Freddie Gray while in police custody, shootings soared. In Chicago, where pedestrian stops have fallen nearly 90%, homicides this year are up 60% compared with the same period last year. Compared with the first four and half months of 2014, homicides in Chicago are up 95%, according to the police department. Even the liberal website Vox has grudgingly concluded that "the Ferguson effect theory is narrowly correct, at least in some cities."

Double oooooops.  And it gets worse.

Three explanations strike me as plausible.

First, he believes that every ex-con deserves to "participate in democracy" regardless of how grievous his crime or how thoroughly it demonstrated contempt for law.

Second, he wants to increase the number of Democratic voters in Virginia to help his pal Hillary in the forthcoming Presidential election.

Overall crime in Las Vegas spiked by 22 percent this year, with homicides up by over 60 percent, sexual assaults up by nine percent and robberies up by 21 percent.  And what does the sheriff think is the reason behind this?  CBS reports:

The sheriff of the Las Vegas Metropolitan Police Department claimed a number of crimes that happened in Sin City have been traced back to Californian[s].

Sheriff Joe Lombardo blamed AB 109, which allows for early release of certain inmates, and Proposition 47, which reduces nonviolent crimes to misdemeanors.

"Individuals we're able to identify, and also the victims of those crimes - we're seeing a significant increase in individuals that have gang affiliation, gang association directly related to California," Lombardo said.

Los Angeles' city attorney expressed skepticism in how Lombardo made a connection between the Las Vegas crime spike and California's laws.  Still, it is telling, even if Lombardo's theory is falsely perceived, that because AB 109 and Prop. 47 are such bad policies, neighboring states believe they are reaping the negative consequences of them as well.

Whether or not there is anything to Sheriff Lombardo's reasoning remains to be seen.

The  full text transcript of Judge Barry Williams's ruling in the trial of Baltimore police officer Edward Nero is available here.

Infected Prosecutions Get Tanked

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I live near Washington, DC.  The big criminal law news here today consists of two cases. One is the SCOTUS reversal of the conviction of a black Georgia murderer on grounds that the government engaged in racially biased jury strikes.  Kent has his typically thoughtful and analytic description here.  While, as Kent notes, there are grounds to question the procedural setting of the case, the Chief Justice's opinion documents disturbing reasons to think the defendant's claims of racial bias were true.

The other news item is the acquittal on all counts of a white Baltimore policeman in the Freddie Gray case.  He had been charged, along with five other officers (two other whites and three blacks) with helping cause Gray's death in police custody. The case was brought by a radical black prosecutor who, after announcing the filing of charges, held an outdoor, campaign-style news conference to congratulate herself, then attended a rock concert (not a typo) ostensibly to laud some sort of "why-can't-we-all-get-along" theme, but actually designed, so it certainly seemed, to further inflame racial passions against the accused.  I discussed the prosecutor, Marilyn Mosby, and her antics several times, e.g., here.

A number of thoughts come to mind from today's stories.

News Scan

MA Officer Killed, Suspect Dead:  Jorge Zambrano killed Officer Ron Tarentino Jr. during a routine traffic stop in Massachusetts on Sunday and injured an 18-year state trooper veteran.  Fox News reports that after an 18-hour manhunt, Zambrano was killed in a shootout with Massachusetts police when he opened fire on state troopers in an Oxford duplex.  The state trooper sustained a gunshot wound in the left shoulder and is expected to make a full recovery.  Zambrano had numerous previous arrests and court appearances, including a hearing for motor vehicle charges just four days before fatally shooting Officer Tarentino, who is the second Massachusetts police officer to be killed in the line of duty this year.

Obama's Reintegration Plan Sparks Fear:  President Obama is pushing for administrative reforms to better integrate ex-offenders into society, sparking concern that such reforms could jeopardize public safety.  Andrea Noble of the Washington Times reports that some of the reforms include the removal of questions regarding criminal history on federal job applications and college applications, and making it a federal violation for landlords to disqualify a renter only due to their criminal history.  According to the U.S. Sentencing Commission, at least one half of 25,000 federal offenders released will be rearrested and at least one quarter will be re-incarcerated within eight years of their release.

TX Family Killed by Drunk Driver with Previous DUI Conviction:  Three members of a Houston family were killed early Saturday morning when a drunk driver with a previous drunk driving conviction blasted through a red light and broadsided the driver's side door of the family's vehicle.  Bob Price of Breitbart reports that the suspect, Jeremy Valdez, 25, attempted to flee the scene of the crash but was chased down by a witness, who held him until deputies arrived.  Valdez, who was previously convicted of drunk driving in January 2011, has been charged with three counts of felony murder in the deaths of Emilio Avila, 33, Adla Nolasco, 41, and high school senior Mauricio Ramires, 18, who was scheduled to graduate on June 4.

Reversal in an Ugly Batson Case

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When cases with ugly facts reach the U.S. Supreme Court, they sometimes cause damage that lasts a very long time.  Foster v. Chatman, No. 14-8349, decided this morning, is a case with ugly facts.  How much damage it will do to states seeking to preserve their judgments in other cases where the defendant's collateral attack is much weaker remains to be seen.

At the root of this case is a horrible crime, with no real doubt that Foster committed it.  Not only did he confess, but the victim's possessions were recovered from his home and from the homes of his sisters, to whom he had doled out some of the loot.

Until 1986, there was no constitutional prohibition against the prosecution taking race into account in exercising its peremptory challenges in jury selection in individual cases, although a pattern of such use that had the effect of excluding black veniremen from jury service overall was actionable.  That changed when the Supreme Court decided Batson v. Kentucky.  The Foster case was tried only four months later.

All the News That's Fit to Slant

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The New York Times occasionally has excellent and insightful news articles.  Then there's stuff like this, "reporting" on Donald Trump's speech accepting his NRA endorsement:

Mr. Trump, whose record of sexist remarks, among other things, has left him at a potentially crippling disadvantage among female voters, polls show, appealed directly to women in his speech, imbuing his defense of gun rights with an undercurrent of fear.

"In trying to overturn the Second Amendment, Hillary Clinton is telling everyone -- and every woman living in a dangerous community -- that she doesn't have the right to defend herself," Mr. Trump said. "So you have a woman living in a community, a rough community, a bad community -- sorry, you can't defend yourself."

If Mr. Trump's comments seemed reminiscent of an era when crime rates were far higher -- the Willie Horton ads attacking Michael S. Dukakis, the Democratic nominee, in the 1988 presidential race came to mind -- they also appeared somewhat at odds with the broad bipartisan consensus on the need to reduce incarceration rates and prison populations: Mr. Trump sought to frighten voters about the idea of criminals being released from prison.

The idea that this is a news story, as opposed to an editorial hatchet job, is preposterous.  Let's take it one line at a time.

In Oklahoma, a grand jury has released its report on the problems with executions by lethal injection in that state and the substitution of potassium acetate for potassium chloride.  There are numerous procedural errors detailed in the report, and opponents of the death penalty are having a field day with them.  However, this should not obscure the "bottom line" finding on the execution of Charles Warner (emphasis added):

Warner's death was intentionally inflicted by correctional officers acting pursuant to a Death Warrant issued by the District Court in State of Oklahoma v. Charles Fredrick Warner, Oklahoma County Case No. CF-1997-5249.  The execution, which involved the administration of midazolam, rocuronium bromide, and potassium acetate, was completed in a manner consistent with the Death Warrant and statutory authority. The intravenous administration of the three-drug cocktail to Warner resulted in his humane death within eighteen minutes of the commencement of the sequential administration of these drugs. There is no evidence the manner of the execution caused Warner any needless pain. Nevertheless, his execution was not administered in compliance with the Department's Protocol or in a manner allowing Warner to challenge the procedure prior to his death.

Going forward, the grand jury recommended further research on the use of nitrogen, recently authorized by the legislature:

News Scan

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Signatures for Death Penalty Measure Submitted:  Californians for Death Penalty Reform and Savings submitted 593,000 signatures Thursday for a November ballot initiative to accelerate executions for death row inmates, which will appear alongside an opposing measure to repeal capital punishment in the state.  Elliot Spagat and Don Thompson of the AP reports that the measure would speed up the appeals process for death penalty cases by assigning attorneys to condemned inmates more quickly, limiting the number of appeals and forcing them to be filed sooner.  The whole process would have to be completed in five years, sharply contrasting the current system, in which inmates don't get a lawyer assigned until five years after their sentence.  Other provisions of the measure would allow death row inmates to be housed in prisons other than San Quentin and require them to work and pay victim restitution while they await execution.  California has the largest death row in the nation with nearly 750 convicted killers, but an execution hasn't been carried out for a decade and only 13 total have been executed since the capital punishment's reinstatement in 1978.

CA Parolee Added to FBI's Most Wanted List:  A convicted felon and parolee from Los Angeles has been added to the FBI's 10 Most Wanted Fugitives list after fleeing last month following the murder of his pregnant girlfriend and her unborn child.  Willian Avila of NBC Los Angeles reports that Philip Patrick Policarpio, 39, a parolee, became angry with his pregnant girlfriend on April 12 and beat her in the face with his firsts before shooting her in the forehead with a handgun, killing her.  In 2000, Policarpio fired nine shots into another car over a dispute, after which he fled to the Philippines.  He was deported to the U.S. the following year, convicted and sentenced to 14 years in prison.  He was released on parole in May 2014.

OH Jury Recommends Death for Serial Killer:  A jury recommended the death penalty Thursday for a Cleveland serial killer convicted of murdering three women.  The AP reports that Michael Madison, 38, was convicted of aggravated murder earlier this month in the deaths of three women whose bodies were found wrapped in garbage bags near his apartment in July 2013.  The judge will now consider the jury's recommendation and issue a final decision on May 26.
Press conferences were held at county registrars of voters around the state as we turned in the petitions.  Sean Emery of the Orange County Register has this story on the turn-in there.

Here are photos from the Sacramento event, by our own Marissa Cohen.  Click on the photo for a larger view.

Sacramento District Attorney Anne Marie Schubert introduces the measure and discusses its significance.

News Scan

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An Academic has Second Thoughts on Ferguson Effect:  A criminologist has parted ways with liberal deniers of the "Ferguson effect," which suggests that crime has gone up amid the barrage of anti-police rhetoric resulting in a decrease in proactive policing following the shooting death of Michael Brown in Ferguson, MO, in August 2014.  In this piece in the Washington Examiner, Michael Barone quotes University of Missouri at St. Louis criminologist Richard Rosenfeld admitting that, after looking over 2015 data from 56 large cities and noting that homicides jumped 17% and as much as 33% in some cities from 2014, "[t]he only explanation that gets the timing right is a version of the Ferguson effect."  Going back to 1960, the only double-digit increases in the nation were 13% (in 1968), 11% (in 1966, 1967 and 1971) and 10% (in 1979).  James Wilson and George Kelling introduced broken windows theory in 1982, arguing that proactive policing and elimination of signs of disorder could sharply reduce crime.  When the theory was employed in New York City beginning in the 1990s, homicides decreased from 2,445 in 1990 to 328 in 2014.  The numbers "aren't flukes or blips" says Rosenfeld, which discount the mainstream media's mantra that a "rising epidemic of racist police" is what is driving up the crime rates.

Court Considers MO Lethal Injection Protocol:  The Missouri Court of Appeals heard arguments Wednesday that a judge incorrectly dismissed a lawsuit last year challenging the state's procedures for obtaining lethal injection drugs.  Margaret Stafford of the AP reports that the lawsuit, filed on behalf of two former state lawmakers and two Missouri residents, argues that the state is in violation of federal and state law because it uses an illegal prescription to obtain pentobarbital from a compounding pharmacy for executions.  The lawsuit was dismissed in July 2015 after a circuit court judge ruled that taxpayers have no standing to challenge Department of Corrections' operations and the Missouri Supreme Court has jurisdiction in death penalty-related lawsuits.  At the time, the Missouri attorney general's office argued that the lawsuit was illegally attempting to enforce federal food a drug laws privately.  It is unclear when the appeals court will issue a ruling in the case.
I was fortunate to have the opportunity to see Sen. Tom Cotton's remarks today at the Hudson Institute on what is called sentencing "reform," and on policing.  

I have seldom seen a member of Congress speak with such knowledge and specific data as Sen. Cotton.  

One of the many points he conveyed is that some of his colleagues have simply become complacent about the gains the country has made against crime, and accept as the state-of-nature the low crime we have now.

It is not the state of nature, and if we turn away from the work we did to get here, soon enough we'll find ourselves back in the time when New York City had six murders a day. In one major city after another, we're already headed in that direction.

Will we wake up?  Sen Cotton seems optimistic. His remarks are here.

Postpartum psychosis defense

A 29 year-old mother researches on the internet how to poison her children.  She later mixes windshield de-icer fluid into some grape juice and serves the toxic mixture to her five-year-old son and 4-month-old daughter.  When the toxic fluid fails to kill them, she takes those two children into the bathroom and drowns them in the bathtub.  She writes a note to the father of those two children blaming him for her actions.  She had recently discovered that he fathered a child with another woman.  She then seals all of the windows in her apartment with plastic and tape and sends a text to her boyfriend (father of the children) that says, "I'm sorry the kids are gone.  I'm next." She turns on the gas from her stove, drinks the toxic grape juice, and cuts her wrists.  9-1-1 reports of a gas leak cause firefighters to discover the grave scene.  The kids are dead, but the mother survives.

Lisette Bamenga committed this horrific crime in New York four years ago.  Prosecutors charged her with two counts of murder and sought a 40-year prison sentence, claiming that she killed the children in a jealous rage after finding out about her boyfriend's infidelity.  Bamenga opted for a bench trial, and her defense attorneys argued that she suffered from postpartum psychosis and should not be held responsible for the killings.  The judge convicted Bamenga of manslaughter and sentenced her to 8 years in prison on each count to run concurrently.

Postpartum psychosis?  Would it be different if her kids were 2 years old and 5 years old instead?  At what point after the birth of a child does the postpartum psychosis defense cease to apply?  At what point does the psychotic period end, if ever?  What if the tables were turned and the father committed this crime instead?  This woman researched methods of poisoning her children on the internet.  She went to the store and bought windshield de-icer fluid.  She mixed it with juice and gave it to her unsuspecting, trusting little children.  When the poison did not kill them like she thought it would, she decided to drown them.  She took their little bodies and submerged them under water in their own bathtub until she was sure they were dead.  She was distraught over her boyfriend's affair and baby with another woman.
This case seems different from the Andrea Yates case.  In 2006, after a re-trial, Andrea Yates was found innocent by reason of insanity and sentenced to a mental hospital.  As far as I know, she remains in a mental hospital today. 
The sad fact is that two young, defenseless children are dead at the hands of the woman who gave them life.
In 2012, the friends of murderers came within four percent of repealing California's death penalty by popular vote, something that has not been done in any state in the United States.  Opposition to the death penalty (like other soft-on-crime efforts) is mostly an elitist cause, pushed by affluent people who can go home to their leafy neighborhoods while the bloody consequences of their feel-good "humanitarianism" fall on people of more modest means.  Thus, repeal bills have gotten through legislatures even when the people of the state are opposed to repeal.  We saw this in Connecticut, where repeal went through even as polls showed the people opposed by 2-1.

In California, the death penalty was enacted by initiative and can't be repealed by the Legislature.  However, the Legislature has failed to do the maintenance necessary to make the death penalty effective, and until now the forces of justice have not been able to raise the very large amounts of money needed to get a fix-it initiative on the ballot.

I can easily see why a lot of people who support the death penalty in principle voted for repeal in 2012.  The present system is not working.  If I genuinely believed it was not fixable, I might vote for repeal myself.

The well-funded friends of murderers have enough signatures to put repeal on the ballot again this year.  But this year is different.  Through a herculean fund-raising effort led by the district attorneys, there will also be a competing initiative to actually fix the system, making the reforms that our derelict Legislature has killed instead of passing so many times.

"Mend it, don't end it" was our slogan in opposition to repeal last time.  A good many people asked, "Yeah, but when are you going to mend it."  Finally, we have a good answer.  This time, the people of California have a direct choice between the two.  The status quo is toast.

I have no doubt the people will choose to mend it and not end it if they are fully and honestly informed of the choice before them.  The main concern now is the overwhelming funding advantage the opponents have.  They can and will spend big bucks to put misleading advertisements on the air, and our side will have only a shoestring grass-roots campaign.  This campaign may be a test of the extent to which money can buy an election.
A perennial problem in criminal law, and the closely related area of deportation for crime, is the fact that the laws of one jurisdiction must take into account crimes prosecuted under the law of another jurisdiction.  What do we do when the elements of the crimes don't match up completely?

Federal immigration law provides for deportation, with no exceptions and expedited process, for aliens who commit an "aggravated felony."  The principle is sound, but the definition of "aggravated felony" needs a lot of work.  Congress really needs to pay some attention to this.

The definition refers to a list of federal offenses, many of which have elements of effects on interstate commerce because in many cases the federal government does not have the authority to make an act criminal without such a connection.  If a person is convicted in state court of an offense which is the same except for the interstate commerce element, is that an "aggravated felony" for deportation purposes?  Yes, that's one of the easier questions in this area.

Justice Kagan wrote the opinion of the court in Luna-Torres v. Lynch, No. 14-1096 (5-3).  Justice Sotomayor, joined by Justices Thomas and Breyer, dissented.  They would apply the words of the statute literally. 

There is something to be said for the view that if Congress screwed up the wording, and it did, it's up to Congress to fix it.  Even so, this is a good result in the case and for the law generally.  Luna is an arsonist, and we don't need him in this country.

Speedy Trial Rights Post-Trial?

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The expression "Well, Duh!" has been out of vogue for many years, but every once in a while I wonder if we should bring it back.

The Sixth Amendment guarantees a right to a speedy trial.  Does that guarantee apply after trial, or after a person has waived trial by pleading guilty?  Of course not.  "We hold that the guarantee protects the accused from arrest or indictment through trial, but does not apply once a defendant has been found guilty at trial or has pleaded guilty to criminal charges," Justice Ginsburg wrote for a unanimous court in Betterman v. Montana, No. 14-1457, announced this morning.

The opinion notes that other provisions of the Constitution may provide protection from inordinate delay between conviction and sentence.  It certainly is unjust to hold a person longer pending sentencing than his sentence is likely to be.  But Betterman's lawyer did not bring the claim under the Due Process Clause or anything other than the Speedy Trial Clause, so that issue is not in the case.
"Criminal Justice Reform" is the name usually given to the movement to reduce incarceration.  Sometimes, although less frequently, it denotes efforts to scale back proactive policing.

I've spent a good deal of time opposing these efforts, for pragmatic reasons if for no others.  The fact is that increased use of incarceration and more aggressive policing are two of the principal causes of the huge decrease in crime victimization over the last generation.  I don't know of any serious person who denies this fact.

Today, I saw in the (very) liberal journal ThinkProgess an article titled "North Carolina's Bathroom Law Is Invigorating the Push for Criminal Justice Reform." Down the page, I found this sentence:

Criminal justice reform is a critical issue for the trans community. From the time they are stopped until they land behind bars, trans people experience violence and discrimination at the hands of the system every step of the way.

It is, I suppose, possible this sweeping claim is true, but.....ummmm.....I have my doubts. In the 18 years I was an AUSA, not once did I even encounter anyone hinting that he or she was "trans," and still less did I see, or hear of, "violence and discrimination" against a transgendered person. Nor did sex per se have beans to do with whether a person would "land behind bars."  That was a function of their behavior.

Still, if this is the kind of over-the-moon support criminal justice "reform" is getting, I think I'll be able to relax my efforts.  With friends like this..................

Eugene Volokh has this post at the Volokh Conspiracy on one of the most blatant violations of the First Amendment right of freedom of speech that I have ever heard of from any government agency in my lifetime, and that is saying quite a lot.

Here is my question.  Is this violation of the First Amendment so clear that the commissioners can be prosecuted for the federal crimes of conspiracy against free exercise of federal constitutional rights, 18 U.S.C. §241, or deprivation of rights under color of law, §242?

Donald Trump's Pretty-Short List

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For many of us who were less than enthused to see Donald Trump win the Republican nomination, the general election choice nonetheless seemed to be a clear one based on the kinds of judges the respective nominees would appoint, especially to the Supreme Court.  The Trump campaign apparently wants to reinforce that point by releasing a list of possible Supreme Court appointments.  Bill noted the release a few minutes ago, and Jill Colvin and Mark Sherman have this report for AP.  The list is:

Steven Colloton of the Eighth Circuit (Iowa)
Allison Eid of the Colorado Supreme Court
Raymond Gruender of the Eighth Circuit (Mo.)
Thomas Hardiman of the Third Circuit (Penn.)
Raymond Kethledge of the Sixth Circuit (Mich.)
Thomas Lee of the Utah Supreme Court
Joan Larsen of the Michigan Supreme Court
William Pryor of the Eleventh Circuit (Ala.)
David Stras of the Minnesota Supreme Court
Diane Sykes of the Seventh Circuit (Wis.)
Don Willett of the Texas Supreme Court

I am not familiar with the jurisprudence of all 11, but I do think that William Pryor would make a very fitting successor to Justice Scalia.  Confirmation would be a bloody fight, but if we hold the Senate it is a fight we would win.

The larger question is whether Mr. Trump can and will pivot from the crass bluster that got him this far into a man of serious policy, capable of winning the general election and then being an effective President.  Many have serious doubts, but this looks like a good start.

News Scan

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Death Sentence Ordered for KS Man:  A judge followed a jury's recommendation on Wednesday and sentenced a Kansas man to death for the 2013 killings of a young woman and her 18-month-old daughter.  Tony Rizzo of the KC Star reports that Kyle Flack, 30, was found guilty earlier this year of capital murder in the shotgun slayings of Kaylie Bailey, 21, and her toddler, Lana.  Flack was also convicted of first-degree murder in the killing of Steven White, 31, and second-degree murder in the death of Andrew Stout, 30, receiving life in prison and 22 years three months, respectively.  He received an additional nine months for illegal possession of a firearm.  A motive for the murders, which occurred on the same farmhouse, is unknown.

Cartel Member Caught Crossing Border:  A self-confessed Los Zetas cartel member was arrested in Texas over the weekend entering the U.S. illegally and is now in federal custody.  Ildefonso Ortiz of Breitbart reports that the cartel member, an illegal immigrant from Mexico, was arrested Saturday near the border city of Roma, just north of Aleman, Tamaulipas.  The member's arrest is one of many that commonly occur along Texas border communities, including arrests of high-ranking drug cartel figures.  Earlier this month, five Gulf Cartel members were apprehended crossing into Roma from Miguel Aleman, claiming to be fleeing their rivals in Mexico.

Case could Yield 1st Death Penalty for CA County in Years:  The fate of an Oakland, Calif., man convicted of killing an eight-year-old girl and another man three years ago will be decided by a jury this week, marking the conclusion to Alameda County's first death penalty trial in years.  Angela Ruggiero of the East Bay Times reports that Darnell Williams, 25, was convicted last week of the July 2013 killing of Alaysha Carradine and the September 2013 death of Anthony Medearis, 22.  Carradine was spending the night at a friend's house when she died in the crossfire of a barrage of bullets Williams sent into the home, where he had gone intent on hurting loved ones of a man he believed killed his friend.  Two months after Carradine's death, Williams murdered Medearis after arguing over a dice game.  The last time the Alameda County district attorney prosecuted a death penalty case was for David Mills, who was sentenced to die in 2012 for killing three people in Oakland in 2005.  If Williams is sentenced to death, his execution may not be carried out for 20 years or more due to the state's years-long appeals process and a moratorium on executions amid an ongoing legal battle over the lethal injection protocol.  California has executed just 13 inmates since the death penalty was reinstated in 1978, the last of which was in early 2006.  As of Jan. 1, 743 death row inmates are awaiting execution.

Trump's Supreme Court Candidates

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ABC News has a story out today listing eleven candidates Donald Trump says he would consider for the Supreme Court.

I know three of them slightly, none of whom I am going to name.  They would be excellent. My one big regret about this list is that it does not include former Solicitor General Paul Clement.

The difference in probable Supreme Court picks between Sec. Clinton and Donald Trump remains, in my view, the most important reason to be, if not enthusiastic about Trump, at least not in hellish despair.

I'm offended that you're offended

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White teenagers singing along to A$AP Ferg's rap song whose lyrics include the n-word is offensive to Barry Bonds?  A pregnant white actress who captions her Instagram post with a lyric from Sir-Mix-Alot's "Baby's Got Back" is offensive to the black community?  I don't get it.  Yes, I agree that A$AP Ferb's "Dump Dump" song is totally and completely offensive in and of itself.  However, a black artist (who most likely profited from these white people) can write and record a song with these offensive lyrics, but a white person can not sing along to it or refer to it? Sure, there are plenty of things going on in the world today to get offended about.  But, white people directly repeating a black artist's song lyrics is not one of them.  

More Resources for Indigent Defense

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One of the excuses we hear for supposedly innocent defendants' supposedly being "railroaded" into jail is that indigent defense is too resource-starved to fight off rapacious prosecutors and their fabricated charges.

All that is baloney, with one exception.  We should indeed devote more resources to indigent defense.  The country is not going get a high quality legal system without paying for it. Adults need to understand this.

But hold on:  There's a way to provide it without raising taxes or more binge borrowing. The way is to draft lawyers to fulfill their obligations to the community that gives them their licenses.

I have suggested this before, but I find that I have a new and prominent ally  -- Justice Sonia Sotomayor.  Her remarks are reported by the National Law Journal:  "Sotomayor Urges Mandatory Pro Bono for All Lawyers."

Senator Sessions Sounds the Alarm

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Sen. Jeff Sessions has been one of the leaders in the opposition to proposals for mass sentencing reduction for felony-level criminals.  As he noted in remarks on the Senate floor this week:

"According to the F.B.I. statistics released just this year, the number of violent crimes committed across the country was up in the first half of 2015 compared with the same period of 2014. The number of murders, rapes, and assaults and robberies were all up over the first six months of 2015. There was a 6.2 percent increase in murders, [and] violent crime across America rose 5.3 percent in large cities... What I'm seeing is, in my judgment, that this is a long-term trend. I think we're going to continue to see this increase. I wish it weren't so, but I'm afraid it is...

"When you have 20, 30, 40 percent increases in crime, you're talking about doubling the crime rate, the murder rate in America in two or three years, after we spent 20 years bringing it down by half. We've got to be sure what we are doing here, colleagues, is smart and we're not signing death warrants for thousands of American innocent citizens."

The tape of his remarks is here.
Subtitle:  Pot Is Wonderful, Only Not So Much.

From Fox19Now, a TV station in Ohio:

A man in a Hamilton County courtroom finally gave in and pulled out two bags of pot from his underwear- a move that landed him an extra day of jail.

Hamilton County Municipal Court Judge Bernie Bouchard stopped court on Wednesday after an overwhelming smell of marijuana allegedly took over the courtroom. 

Bouchard gave everyone a chance to claim responsibility for the marijuana before he ordered deputies to bring drug dogs in the courtroom. 

The defendant, Darius Dabney, raised his hand and admitted to smoking marijuana before entering the courthouse.  

The ensuing exchange between the judge, the defendant and his lawyer is a hoot.  You can read it in the link

News Scan

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Constitutional Carry Passed by MO Lawmakers:  The Missouri legislature passed a bill last Friday that lifts the permit requirement for the concealed carry of firearms, and Gov. Jay Nixon is expected to decide whether or not to sign the measure into law.  Stephen Gutowski of the Free Beacon reports that the bill allows any law-abiding adult who can legally possess a firearm to carry a concealed firearm on their person without having to obtain a separate permit.  Additionally, it extends "castle doctrine" protections to house guests and removes the requirement that someone in a public place who reasonably believes their life is threatened must retreat before using deadly force to protect themselves.  The measure passed with a 114-36 vote in the House and a 24-8 vote in the Senate.  Gov. Nixon has not announced whether he will sign or veto the bill.  If he vetoes it and the original vote count holds, the legislature could override the veto.

Bill Addresses Uncooperative Foreign Nations:  A congressman introduced a bill last Friday that stipulates withholding foreign aid and travel visas from countries that refuse to repatriate illegal immigrants who have been given a final order of removal from the U.S.  Melanie Hunt of CNS News reports that Rep. Brian Babin (R-Texas) and 20 Republican co-sponsors proposed the Criminal Alien Deportation Enforcement Act of 2016, citing the crime of Jean Jacques, who murdered a woman six months after he was released from prison when his home country of Haiti refused to take him back.  The legislation requires the Department of Homeland Security to submit a report to Congress every three months detailing those countries that refuse to repatriate their citizens and will, in turn, subject those countries to the bill.  The bill also gives victims of crimes resulting from foreign countries' lack of cooperation legal standing to due in federal district court. 

CA Considers Making Lethal Injection Drugs:  Since pharmaceutical companies are refusing to sell lethal injection drugs for executions, new rules proposed by the California Department of Corrections and Rehabilitation (CDCR) allow prison officials to manufacture barbiturates at its own compounding pharmacies to carry out the death penalty.  Frank Soltze of KPCC reports that the plan outlines the four barbiturates California prison officials would be allowed to use for executions -- amobarbital, pentobarbital, secobarbital and thiopental -- and provides the option to sidestep big drug companies by either compounding the chemical itself or contracting with a private non-state compound pharmacy.  Compounding pharmacies differ in that they are barred from simply copying barbiturates and other drugs already on the market, and also require a preexisting doctor-patient relationship, a patient with a particularized need and a prescription for the specific compound from the doctor.  The CDCR is taking public comment on its proposed regulations through July 11.  It has been over 10 years since California carried out an execution.
In my last post, I gave a preview (courtesy of Harvard Law Prof. Mark Tushnet) of how dreadful a Clinton-appointed Supreme Court would be.

I am unhappy to report that that's not the principal reason Sec. Clinton should be denied the keys to the White House.  The principal reason is that, as she has already made clear, she will use the awesome power to prosecute as a political tool  If that is not the road to tyranny, what is?

That's a bold proposition, sure.  I invite readers to draw any other conclusion after reading the following account by Stephen F. Hayes in the Weekly Standard.

What to Expect from a Hillary SCOTUS

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Many conservatives find the upcoming election choices less than uplifting.  But either Hillary or The Donald is going to be the next President; it would take a miracle for anything else to happen.

So the country will have to choose.  In considering what to do, one of the most important factors is what kind of Supreme Court the next President will appoint.

With Trump, it's hard to know.  Two possibilities he has named, Judge Bill Pryor and Judge Diane Sykes, are excellent in my opinion.  But one never knows for sure what's going to happen with The Donald.

Things are easier to predict with Hillary.  She's a child of the Sixties, has moved even further to the left to hold off Bernie Sanders, and has embraced the toxic Black Lives Matter movement.

Lest there be any doubt about what to expect from a Hillary-appointed Court, Mark Tushnet, a liberal Harvard Law professor, pulls back the curtain in this revealing piece. Suffice it to say that we'll be longing for the good ole days when Justice Ginsburg felt like Felix Frankfurter.  
The effort to engineer mass sentencing reduction took a major hit when Sen. Marco Rubio announced his opposition.  As the Washington Examiner discloses:

Marco Rubio [has become] a firm opponent of the bipartisan sentencing reform legislation pending in the Senate, following a review of the bill and multiple conversations with Republican proponents of the package.

"I just have too many concerns about the spike in violent crime in this country and what impact that law would have on it," Rubio told the Washington Examiner. "I just can't support it...There are people who are supporting this proposal who I have a lot of respect for, and so I took the time to review it," Rubio said. "I think, unfortunately, if you apply it to some of the cases I've asked prosecutors to look at, it could result in the release of dangerous people who, maybe, pled down to a lower charge but ultimately are very dangerous."

I thought it noteworthy, and a credit to Sen. Rubio, that he asked prosecutors independently to look at the bill.  Many senators just rely on white papers from interest groups and staff work, which can range from brilliant to appalling.

Sen. Rubio's Presidential campaign foundered, but he is still viewed as an influential voice among Republicans.  This is not a year where one wants to have a lot of confidence making political predictions, but I think Rubio's opposition is very bad news for sentencing reform's future. 

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