News Scan

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Good Samaritans Attacked for Reporting Child Locked in Hot Car: A Colorado woman who alerted police about a child being locked in a hot car has been seriously injured after the child's mother ran the woman and her boyfriend over.  Tammy Vigil of Fox Denver reports that 27-year-old Kristina Riddell, angered about the couple calling police, physically attacked them before running them over and fleeing the scene.  This is not Riddell's first incident with police, she has prior arrests for assault, domestic violence and multiple driving violations.  She now faces charges of hit-and-run, assault and child abuse.

Murder Re-Trial May Result in Death Sentence: A California man behind bars for murder may be sent to death row if found guilty of two more killings at the conclusion of his re-trial.  KESQ News reports that 30-year-old Angel Esparza, a parolee, was tried for the three murders together and was convicted of one.  The jury deadlocked on the other two murder charges forcing a re-trial.  Two of Esparza's accomplices pled guilty to the murders and were sentenced to 15 years to life behind bars.

Teens Charged in Beating Death: Four California teenagers have been charged with the beating death of a University of Southern California graduate student in an attempted robbery.  The Associated Press reports that two of the suspects were juveniles but will be charged as adults after allegedly beating the student to death with a baseball bat and wrench.  The defendants will be arraigned in two weeks on charges of murder during an attempted robbery.
Not all capital defense attorneys see themselves as being on a crusade to abolish the death penalty or to throw sand in the gears in the meantime.  David Goodwin has a letter to the editor in the L.A. Times in reaction to a column by George Skelton:

As a criminal defense attorney with four capital cases, I agree with Skelton that the death penalty system is broken. Here's a radical idea: Fix it.

Skelton is right that Gov. Jerry Brown and Atty. Gen. Kamala Harris, both lifelong death penalty foes, will do nothing to fix the system. It is unethical for them not to zealously enforce the law just because they don't like it. Unable to win at the ballot box, the opponents win by obstruction and refusing to do the job they are obligated to do.

Someday a governor may be in office who does not like certain environmental protections or civil rights statutes. If that happens, I hope it is remembered where the precedent arose that the executive need not do the public's bidding.

We need more with attitudes like Goodwin's.  Specifically, we need capital defense lawyers who will do their duty as advocates to make the best case for their assigned client but who will not delay, obstruct, or bury the courts with patently meritless pleadings.  (See In re Reno, 55 Cal. 4th 428 (2012).)  Capital cases should be just like noncapital cases in this regard.  A lawyer assigned an appeal for a rapist sentenced to prison is not on a crusade to abolish imprisonment.  He just makes the case that his particular client shouldn't have been convicted or shouldn't have been sentenced to as much time as he got.

Retired prosecutors might be good candidates to step up and take capital appeals and state habeas petitions.  Any takers?

John Gleeson, Defense Lawyer in a Robe

A long time ago, in a galaxy far, far away, judges were neutral.  Parities made their arguments as best they could, and the judge, not taking one side or the other, decided the case under the law.

Then there's the Eastern District of New York, otherwise known as Brooklyn, and its twin pro-criminal zealots, Jack Weinstein and, of late, John Gleeson.  Gleeson is young enough to know better, and I'm sure he does.  The problem is he doesn't care.

Recently he accused federal prosecutors of being extortionists because they do what the Supreme Court explicitly authorized them  to do, to wit, offer sentencing inducements in order to settle cases by plea bargains, Bordenkircher v. Hayes. (His screed neglected  to point out that the defense bar demands, and for all practical purposes lives off, exactly such plea offers).  His most recent stunt, however, takes pro-criminal huckstering to a new level.  I'll just let the New York Times article describe it (emphasis added):

Francois Holloway has spent nearly two decades of a 57-year sentence in a federal prison, for serious crimes that no one disputes he committed. There were armed carjackings, and his participation in an illegal chop shop, where stolen cars would be dismantled and sold for parts.

But the fairness of the mandatory sentence has been a matter of dispute, not only for Mr. Holloway, but also for a surprising and most effective advocate: the trial judge, John Gleeson.

Does anyone see something amiss in that sentence?

Exoneration Inflation

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This issue usually comes up in capital cases, and I have shamelessly pirated the title of this post from Ward Campbell's article demolishing the so-called Innocence List.

It happens in noncapital cases, too, though.  A conviction is set aside, and no new conviction is obtained against the defendant.  There are many reasons consistent with guilt why this can happen.  Essential witnesses may be dead.  Evidence may be suppressed for reasons other than its reliability.  In noncapital cases, the defendant may have already served most or all of the prison sentence that could be obtained, so no additional criminal sanction is available or needed, so the prosecutor may just drop it.

Despite all this, there is frequently a PR campaign declaring the defendant "exonerated" with the implication that he has been proved innocent and scathing condemnation of the criminal justice system.  Sometime, to be sure, actually innocent people are convicted, and sometimes condemnation of actual misconduct is warranted.  But sometimes the "exonerated" defendant actually committed the crime.  Sometimes the defendant actually committed part of the crime.  Michael Armstrong, former Queens DA, has an article in the WSJ, Persistent Myths in the Central Park Jogger Case.

The panel's report to Police Commissioner Kelly in 2003 suggested that it was "probable" that the defendants participated only in a preliminary "hit and run" attack on the jogger, similar to the other assaults for which they had been convicted. If that theory is correct, it seems clear that they served excessive prison terms. Others, pleading guilty to such offenses occurring on the same night, served two to three years, not six or 13.

Perhaps it is fair, though not required as a matter of law, to compensate the defendants for their extra prison time. But some thought should also be given to the blameless police officers and assistant district attorneys who, as a result of a well-orchestrated publicity campaign, have been subjected to public vilification, anonymous death threats and petitions calling for them to be fired.

News Scan

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Serial Killer Sentenced to Death: A Kentucky man released on parole after serving time for murder has been convicted and sentenced to death for the cold-case rape and murder of a mother of five in 1983. Claire Galofaro of The Courier-Journal reports that 56-year-old Larry White was sentenced to death in 1985 after being found guilty of murdering two young women, but two years later the state Supreme Court ruled that his confession was illegally obtained and reduced his sentence to  28 years. Since 1976, Kentucky has only executed three murderers, most recently in 2008.

Parolee Named Person of Interest in Recent Murder: A Colorado man with a lengthy criminal history has been arrested after  he fled his court-ordered halfway house.  Police believe that he may be responsible for his mother's disappearance and murder.  Jesse Paul of the Denver Post reports that 31-year-old Daniel Stetzel has been arrested more than a dozen times on a variety of charges including drug possession, robbery, assault and parole violations.  Stetzel is being held in county jail in lieu of $20,000 bond.

Teen Convicted in Cop Killing: A 19-year-old Texas man has been found guilty of beating to death an El Paso police officer in 2012.  The Associated Press reports that the off-duty officer confronted Juan Gonzalez and two of his friends after he caught them vandalizing his car.  When the officer identified himself, prosecutors say Gonzalez violently assaulted him causing critical injuries  that he died from nine days later.  Gonzalez now faces between five and 99 years in state prison.

News Scan

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CA High Court Upholds Death Sentence: In a unanimous ruling, California's Supreme Court upheld the death sentence for a man convicted of murdering an off-duty Los Angeles County deputy sheriff in 1997.  Ann Anooshian of Metropolitan News-Enterprise reports that the officer and his fiancee, who was also a peace officer, were at a hair salon when two men entered the building in an attempt to steal the cash register, when the men found out he was a sheriff they shot him in the head and fled with his fiancee's debit card.  The gunman, Kevin Boyce was sentenced to death for the murder, his accomplice was also convicted of murder and sentenced to 75 years to life. 

TX Governor Seeks Help From National Guard to Deal with Immigration: Texas Governor Rick Perry is asking for the National Guard to be deployed along the state's border with Mexico in order to deter and detain criminals who have illegally entered the country.  Salena Zito of Newsmax reports that the governor is concerned with the number of criminals entering the state, and is requesting the National Guard's presence to assist Border Patrol and other agencies protecting the border.  Since 2008, 203,000 illegal immigrants have been arrested in the state and charged with more than 640,000 crimes including thousands of homicides and sexual assaults.

Parolee Found Guilty in Cop Killing: A New York man has been found guilty of killing a Long Island police officer and an innocent motorist in October 2012.  Joe Kemp of the New York Daily News reports that 34-year-old Darrell Fuller, who was out on parole at the time of the crime, shot the officer at point-blank range after being pulled over for a traffic stop, he then shot another man in attempt to steal his car and flee the scene.  Fuller faces life in prison without the possibility of parole.

HIPAA Consequences

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Stewart Baker has this post at Volokh Conspiracy, "HIPAA is an arguably well-intentioned privacy law that seems to yield nothing but 'unintended' consequences."  I'm not quite as cynical on HIPAA as Stewart, and I wouldn't have said "arguably" or put "unintended" in quotes.  He is right that the law has had numerous bad consequences, though, including this gem from the Daytona Beach News-Journal:

In the name of patient privacy, a Daytona Beach, Fla., nursing home said it couldn't cooperate with police investigating allegations of a possible rape against one of its residents.
If I were Attorney General of California, Judge Carney's decision in Jones v. Chappell, noted here, here, here, here, and here would have been greeted the same day by a fiery denunciation and a Churchillesque pledge to fight it wherever, whenever, and for as long as it takes.  Instead, we have who we have, and we hear [sound of crickets chirping].

The Attorney General is the chief law enforcement officer of the State of California and has a constitutional duty to see that its laws are enforced.  (Cal. Const. Art. V § 13.)  Until we hear otherwise, we should assume that Ms. Harris will do her duty and do everything in her power to have this clearly erroneous obstruction of the law overturned.  Purely hypothetically, though, I have been musing about the possibilities.  So let's take a little stroll down the "what if" road.

In California, can the District Attorney intervene in a federal habeas corpus collateral attack on a felony conviction and appeal a grant of relief if the Attorney General fails to?
Today in Los Angeles, Judge Cormac Carney entered final judgment on Claim 27 of Jones v. Chappell, his absurd decision that delay in the review of capital cases is a reason to change a death sentence to life imprisonment.

Federal Rule of Civil Procedure 54(b) permits a judge to enter final judgment on one claim while other claims remain pending "if the court expressly determines that there is no just reason for delay," which this judgment does.

This final judgment is appealable under 28 U.S.C. § 1291.  See, e.g., Brown v. Eli Lilly & Co., 654 F.3d 347 (CA2 2011).  A notice of appeal must be filed within 30 days.

There is no reason not to appeal this decision.  There is no excuse not to.

News Scan

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Northern California City Struggling Under Realignment: A California State Senator has dubbed Redding, CA as one of the cities hit hardest by Realignment after taking a tour of the Shasta County Jail earlier this week.  Vienna Montague of KRCR News reports that since Realignment went into effect in 2011, the city of Redding has seen higher rates of auto theft, robbery and drug use, and it has caused major problems throughout the community.  The senator mentioned additional funding that has been set aside to combat Realignment issues, but believes money is a simple fix to a problem that requires a long-term solution.

Man Sentenced in Cold Case Rape: A Chicago man has been sentenced to 40 years in prison after DNA from a rape kit linked him to a cold case sexual assault committed more than ten years ago.  The Associated Press reports that the rape kit was one of dozens left untested and forgotten about in a suburban police station.  He became the 15th person to be either charged or convicted as a result of the discovery of the untested rape kits. 

CA High Court Denies Murderer's Appeal: A California man convicted of murdering five people will stay behind bars for the rest of his life after the state's Supreme Court denied to review his case.  Ivette Lopez of the Santa Monica Lookout reports that William Vasquez, a documented gang member, was found guilty in 2008 and linked to five murders that took place around Southern California between 2002 and 2005.  Two of Vasquez's accomplices in the murders are also serving life sentences without the possibility of parole.  

Culture, Values, Politics and Crime

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A commenter recently took me to task, disturbed that I criticized the Administration for its tepid response to the Russian-sponsored mass murder of 298 people in the Ukraine.  The commenter thought my remarks went too far in the direction of a strictly political attack.

Let me say that reasonable minds could differ about that post.  My own view is that (1) the episode was indeed mass murder, (2) our government's response was, and is, feckless, both for moral and practical purposes, and (3) fecklessness in the face of murder, and of crime generally, is a huge problem just now, and I'm going to continue to talk about it when it rears its head.

Intent, Plagiarism, and Politics

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In criminal law, intent is a big deal.  The prosecutor must often prove not only what the defendant did but his state of mind while he was doing it.  Even though the harm to the victim may be the same, there is a fundamental moral difference between intentional and accidental harm.  "Even a dog distinguishes between stumbled over and being kicked," Justice Holmes famously said.  He had a knack for putting legal concepts into concrete terms everyone can understand.

How do you prove intent?  It's usually clear from the circumstances that an act is intentional.

Intent matters in politics as well.  Aaron Blake at the WaPo's political blog, The Fix, is incredulous of Montana Sen. John Walsh's claim of accidental plagiarism at the Army War College.

It also takes a pretty big suspension of disbelief to think that Walsh lifted those passages without ill intent. Proving someone's intent is always difficult, but believing that this was anything other than an attempt to cheat takes some logical leaps that are pretty hard to make.
We will be addressing intent in a Supreme Court case on threats in the coming term, Elonis v. United States.

Update:  Bill's later post asks whether plagiarism can be a crime.  Could be.  "Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct."  10 U.S.C. § 933; see also Parker v. Levy, 417 U.S. 733 (1974).  The military is different.  Funny the statute still says "gentleman."  We've had women officers for a long, long time.
Arizona Director of Corrections Charles Ryan has this statement on the execution of Joseph Wood (emphasis added):

The Department of Corrections followed the execution protocol and, as with every execution, it was monitored by an IV team of licensed medical professionals in control of the medical procedures.

The first confirmation that inmate Wood was fully and deeply sedated occurred at 1:57 PM, five minutes after the direction to proceed with the administration of drugs was given. The medical team re-affirmed the inmate remained deeply sedated seven additional times before death was pronounced at 3:49 PM.

Once the inmate was sedated, other than sonorous respiration, or snoring, he did not grimace or make any further movement. Throughout this execution, I conferred and collaborated with our IV team members and was assured unequivocally that the inmate was comatose and never in pain or distress.

Physiologically, the time to complete an execution varies for each individual. The Department of Corrections will conduct a full review of the execution protocol and process. We will await the results of an independent autopsy from the Pima County Medical Examiner and we have requested a toxicology study as well.
Also, Ashby Jones and Jacob Gershman have this story in the WSJ.

De-policing New York

Incredible as it seems, the people who want to undo the policing reforms that made New York City a much safer and more livable place than it used to be are gaining ground.  The current poster boy for this movement is Eric Garner, who died after being put in a chokehold while resisting arrest.  Heather MacDonald has this article in the City Journal on the dire consequences of undoing New York's very successful policing efforts.  The article concludes:

The biggest threat facing minority New Yorkers now is not "over-policing," and certainly not brutal policing. The NYPD has one of the lowest rates of officer shootings and killings in the country; it is recognized internationally for its professionalism and training standards. Deaths such as Garner's are an aberration, which the department does everything it can to avoid. The biggest threat facing minority New Yorkers today is de-policing. After years of ungrounded criticism from the press and advocates, after highly publicized litigation and the passage of ill-considered laws--such as the one making officers financially liable for alleged "racial profiling"--NYPD officers have radically scaled back their discretionary activity. Pedestrian stops have dropped 80 percent citywide and almost 100 percent in some areas. The department is grappling with how to induce officers to use their lawful authority again to stop crime before it happens. Eric Garner's death was a heartbreaking tragedy, but if the unjustified backlash against misdemeanor enforcement takes root and finds a sympathetic audience in Mayor Bill De Blasio, the consequences for all New Yorkers will be even more dire.

News Scan

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Judge Asks Why Murder Suspect Wasn't Already Behind Bars: A Michigan judge has revealed that the man suspected of murdering a two-year-old girl earlier this month should have been in jail at the time of the killing, and is asking why he was released from custody early.  CBS Detroit reports that 25-year-old Raymone Jackson was sentenced to 11 months in prison last September, but was released just six months later. Police believe Jackson killed the girl as form of retaliation against her father.
Delaware High Court Upholds Death Sentence: The Delaware Supreme Court has ruled to uphold the death sentence for a man convicted of murder nearly ten years ago.  Joe Jenkins of the Daily Voice reports that James Cooke was sentenced to death in 2012 for the rape and murder of a University of Delaware student in 2005.  Cooke was originally sentenced to death for the killing in 2007, but that conviction was ultimately thrown out by the state's high court in a divided ruling.  He was tried again and sentenced to death five years later.

Increase in Murders After Death Penalty Abolished: South Africa has experienced a sharp increase in murders and violent crimes in recent years, which some believe was caused by eliminating the death penalty. Laura Oneale of Guardian Liberty Voice reports that the murder rate has continued to increase since the death penalty was abolished in 1996.  South Africa, which has been rated the most murderous society in the world, averages more than 47,000 killings annually. 


Colorado Gov. Race Now A Toss-Up

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Colorado Governor John Hickenlooper was considered "safe" for reelection not so long ago.  Real Clear Politics changed its rating to "toss-up" last week.

On July 15, I noted that the NBC/Marist Poll had Hickenlooper ahead 49-43.  Conventional political wisdom is that an incumbent is in trouble if early polls show less than a majority, even if leading the opponent.

Two polls since then have come out 43-44 and 44-43, Quinnipiac and PPP respectively.  I generally dislike the term "statistical dead heat" in political poll reporting, but it fits here.  That's a dead heat.
Dan Frosch has this story in the WSJ:

Republicans have tried to cast Mr. Hickenlooper as indecisive, noting his move last year to delay the execution of a convicted murderer, Nathan Dunlap, over concerns about the death penalty's morality. Mr. Hickenlooper didn't grant Mr. Dunlap clemency either, instead issuing a "temporary reprieve."
The Federal Public Defender for Arizona has filed a motion to stop the execution of Joseph Wood already in progress.  The first paragraph says:

The Arizona Department of Corrections began the execution of Joseph Rudolph Wood III at 1:52 p.m. At 1:57 p.m ADC reported that Mr. Wood was sedated, but at 2:02 he began to breathe. At 2:03 his mouth moved. Mr. Wood has continued to breathe since that time. He has been gasping and snorting for more than an hour. At 3:02 p.m. At that time, staff rechecked for sedation. He is still alive. This execution has violated Mr. Wood's Eighth Amendment right to be executed in the absence of cruel and unusual punishment.
The conclusion does not follow from the premises.  The motion does not dispute the ADC's conclusion that Wood is sedated.  If he is sedated, he is not in pain, and nothing happening here remotely qualifies as "cruel."  Gasping and snorting do not necessarily mean a person is in pain, and if he is sedated he certainly is not.

When states were able to use the single-drug protocol with pentobarbital, the executions went smoothly.  The problem here has been caused by those who pressured the suppliers to stop supplying pentobarbital, and any response should be directed at reopening that supply line.

Update:  AP reports the Arizona AG says the execution is completed, though it took about 2 hours.

The anti-death-penalty crowd is already throwing around their favorite word, "botched."  Wrong.  Joseph Wood died, as he should have, and he was sedated, not suffering extreme pain or, for that matter, any pain.  That is not "botched."

Vietnam Lethal Injection

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Ha An reports for Thanh Nien News:

The Hai Phong man who outraged the nation by killing and dismembering an ex-girlfriend was executed by lethal injection on Tuesday night, despite his pleas for mercy.
*                                    *                                  *
Nghia was watching his new girlfriend's apartment while she was out of town when he called Linh, his one-year college lover, to come over.

After they made love, he stabbed Linh to death, wrapped her torso in a blanket and stashed it on the building's rooftop.

He pawned her motorbike, laptop and mobile phone for VND5 million (US$240).

He was arrested on May 22, 2010 while hiding out in Thai Nguyen Province, one day after police discovered Linh's naked, rotting body.
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Starting in late 2011, Vietnam officially switched from dispatching convicts with firing squads to lethal injections. An EU ban on exports of the lethal cocktail to Vietnam caused a lengthy backlog and drove many convicts to insanity and suicide--until Vietnam began manufacturing its own lethal serum.
So there is a source of supply.  We need the House of Representatives to slip a provision exempting lethal injection drugs from FDA importation requirements into a bill that the Senate politically cannot refuse to pass and the President politically cannot veto.  See prior post.
Ryan v. Wood, 14A82 (today):

The application to vacate the judgment of the United States Court of Appeals for the Ninth Circuit granting a conditional preliminary injunction, presented to Justice Kennedy and by him referred to the Court, is granted. The district judge did not abuse his discretion in denying Wood's motion for a preliminary injunction. The judgment of the United States Court of Appeals for the Ninth Circuit reversing the district court and granting a conditional preliminary injunction is vacated.
No dissent is noted.  That does not necessarily mean the decision is unanimous, but any Justice voting against the order, if any, did not feel strongly enough about it to have it noted.

The Court denied Wood's motion for stay and petition for certiorari in the parallel case seeking review of the Arizona Supreme Court's decision.

Wood's execution is set for 10:00 a.m. Mountain Standard Time tomorrow.  Arizona doesn't go in for that biannual clock-fiddling nonsense.  That's 10:00 a.m. PDT and 1:00 p.m. EDT.

Update (Wednesday, 7/23):  Yesterday the Ninth Circuit rejected an attempt by Wood to reopen his case via Federal Rule of Civil Procedure 60(b).  This morning the U.S. Supreme Court denied a stay of execution and writ of certiorari in that case.  No dissent is noted.

Update 2:  Now the Arizona Supreme Court has issued a stay, according to this AP story 1:41 p.m. EDT 7/23.

Update 3:  The 2:48 EDT update of the AP story (same link) says Arizona Supreme lifted the stay an hour later.  "The appeal focused on arguments that Wood received inadequate legal representation at his sentencing, along with a challenge about the secrecy of the lethal injection drugs."
Twenty-five years ago, the U.S. Supreme Court announced one of the most important decisions* in the modern history of criminal procedure, Teague v. Lane, 489 U.S. 288, 306 (1989).  Adopting a rule proposed by Justice Harlan 20 years earlier, the court decided that new rules of constitutional law would not be applied retroactively to cases that were already final on direct review at the time the rule was announced.  A corollary rule was that new rules could not be announced in habeas review of final convictions.

In his decision declaring California's death penalty unconstitutional, Judge Carney has this cursory discussion of the Teague issue:

The rule Mr. Jones seeks to have applied here--that a state may not arbitrarily inflict the death penalty--is not new. Rather, it is inherent in the most basic notions of due process and fair punishment embedded in the core of the Eighth Amendment. See Furman, 408 U.S. at 274-77 (Brennan, J., concurring) (describing the principle that "the State must not arbitrarily inflict a severe punishment" as "inherent in the [Cruel and Unusual Punishment] Clause" and tracing its application in Anglo-American jurisprudence); see also id. at 242 (Douglas, J., concurring) ("There is evidence that the provision of the English Bill of Rights of 1689, from which the language of the Eighth Amendment was taken, was concerned primarily with selective or irregular application of harsh penalties and that its aim was to forbid arbitrary and discriminatory penalties of a severe nature."). This rule is certainly one "so deeply embedded in the fabric of due process that everyone takes it for granted." Dyer v. Calderon, 151 F.3d 970, 984 (9th Cir. 1998) (en banc). It is therefore not a new rule for Teague purposes. See id. ("[A] rule needs to be announced for purposes of Teague only if it's new.").
Judge Carney is breathtakingly ignorant of the most elementary principles for applying the Teague rule.

News Scan

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Colorado Residents Using EBT Cards to Buy Marijuana: According to an analysis conducted by National Review Online, welfare recipients in Colorado have been withdrawing thousands of dollars worth of their cash benefits at marijuana retailers and dispensaries since the state began selling recreational marijuana earlier this year.  Jillian Kay Melchior of National Review Online reports that in the last six months, more than $23,000 has been withdrawn at a variety of marijuana establishments across the state, however, officials have yet to determine how much was spent on marijuana exclusively because some of the stores sell groceries as well.  In order to combat the issue, the state has enacted an emergency rule restricting the use of EBT cards at marijuana shops, bars, liquor stores and gambling establishments.

Convicted Killer Released From Prison Early, Arrested for Murder Again: An Indiana man convicted of murdering his first wife more than 20 years ago has been arrested and charged with murder yet again after authorities say he killed his current wife over the weekend.  The Associated Press reports that 50-year-old Tony Degrafreed was convicted of murder and sentenced to 30 years behind bars in 1995, but was released early and paroled after spending just 12 years in prison.  Authorities arrested Degrafreed on Sunday, charging him with murder and separate assault charges for stabbing his wife's son in the chest, causing minor injuries.

Convicted Killer up For Parole Under New Law: A Massachusetts man convicted of murder and sentenced to life in prison at the age of 17 is now eligible for parole after the state ruled that minors can not be sentenced to life in prison without the chance of parole.  Angie Angers of WPRI reports that Anthony Rolon was convicted of murder and sentenced to life after authorities say he stabbed another teen to death at a party, and so far, has spent just 17 years behind bars.  In 2013, a Massachusetts court ruled it is unconstitutional to sentence a minor to life without parole because their brains are "not fully developed."

Arizona Moves to Vacate Wood Stay

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The State of Arizona has filed in the U.S. Supreme Court an application to vacate the stay of execution of murderer Joseph Wood, noted yesterday.  The case is Ryan v. Wood, 14A82.

The Ninth Circuit has a very helpful collection of the pleadings in this case.  The Supreme Court papers are in green.  The administrative folks at the Ninth really do an excellent job.  Now if we could only do something about the substance of the opinions . . .

Lest we forget what this case is about:

Too Much Safety

Justice William J. Brennan had a way with words.  One of the most memorable examples was his asking, in the lead dissent in McCleskey v. Kemp, why the majority was afraid of "too much justice."

Today, we need to ask why those arguing that the incarceration rate is the lodestar of the criminal justice system are afraid of too much safety.
From the Federalist Society:

The Supreme Court issued a number of notable opinions in the area of criminal law during the recently concluded term. Members of the Federalist Society's Criminal Law & Procedure Practice Group Executive Committee offered their analysis on recent developments in the Supreme Court's criminal law jurisprudence and fielded questions from a call-in audience.

    • Dean Mazzone, Chief of the Enterprise and Major Crimes Division, Massachusetts Attorney General's Office

    • Kent S. Scheidegger, Legal Director and General Counsel, Criminal Justice Legal Foundation
Last Wednesday, I noted in this post some of the reasons why Judge Carney's decision in Jones v. Chappell (declaring California's death penalty unconstitutional due to delays in execution) was wrong.  The opinion is wrong in so many ways that it will take a number of posts to catalog them.

To that end, former California Supervising Deputy Attorney General James Ching has this post at giving some more reasons:

There is no doubt that the District Court condemns only state processes: "The Eighth Amendment simply cannot be read to proscribe a state from randomly selecting which few members of its criminal population it will sentence to death, but to allow that same state to randomly select which trivial few of those condemned it will actually execute."
The placing of blame is underlined by the District Court's failure to address any federal responsibility for the delay or to issue relief against the federal courts. However, if "[a]rbitrariness in execution is still arbitrary, regardless of when in the process the arbitrariness arises," it must surely apply to the 46.2% of the total delay and dysfunction.
Today's News Scan notes the stay of execution granted by a divided panel of the Ninth Circuit to Arizona murderer Joseph Wood so he can litigate his supposed First Amendment right to information about the source of Arizona's execution drugs.  The Ninth swiftly denied rehearing en banc with a dissent joined by 11 of the courts active judges.  The split was largely but not entirely on party-of-appointment lines, with Clinton appointee Richard Tallman and Obama appointee John Owens joining the dissent and Bush appointee Richard Clifton not joining it.

I have no doubt this case is headed for the Supreme Court.  It might be there already.

News Scan

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AZ Murderer Granted Stay of Execution: A federal appeals court has ruled to delay an Arizona man's execution until prison officials reveal details on the two-drug protocol to be used to put him to death.  Jacques Billeaud and Andrew Dalton of the Associated Press report that Joseph Wood's attorneys argued that the murderer's First Amendment rights were violated when officials refused to disclose the source of the drugs and how they would be administered.  Wood was sentenced to death for the 1989 murders of his estranged girlfriend and her father, he was originally scheduled to be executed Wednesday afternoon.

Thousands of Drug Felons set to be Released: The U.S. Sentencing Commission has unanimously voted in favor of retroactively reducing prison sentences for more than 46,000 drug offenders currently serving time behind bars.  Eric Tucker of the Associated Press reports that tens of thousands of these inmates may now be eligible for early release in what officials are calling a 'cost-cutting' proposal aimed at reducing the nation's prison population.  The releases would begin happening in November 2015 and continue on for a period of years.

FL High Court Debates New Juvenile Sentencing Law: Florida's Supreme Court is debating whether or not a new law changing the state's juvenile sentencing guidelines should apply retroactively.  Margie Menzel of The News Service of Florida reports that the new law, HB 7035, which went into effect July 1, requires a hearing in cases involving juvenile murderers facing a life sentence to determine if that sentence is appropriate.  If the life sentence is determined inappropriate, the murderer can  instead by sentenced to a minimum of 35 years in prison.

It's the Culture, Continued

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Persons of sense have known for a long time that the primary "root cause" of crime is culture.  Kids growing up are subject to influence from parents, peers, schools, and popular media.  These influences instill in the growing kids either an attitude that (1) they should "do the right thing" in obeying rules (in all but extreme circumstances) and respecting the rights of others or (2) it's every person for himself and they should take whatever they can get away with.

Empirical validation of theories is difficult in social sciences because we generally cannot do controlled experiments.  That is why, for example, much of the "evidence" touted for rehabilitation programs is tainted by selection bias, as noted in posts last February here and here

Every once in a while, though, we get a "natural experiment" where a comparison becomes available between two groups that do or do not receive some "treatment" or "intervention" selected in a way that gives us increased confidence that the "treatment" and not the selection of the groups is the reason for the difference in outcomes.

One such "natural experiment" is forthcoming in the next issue of Pediatrics.  It is titled, "Successful Schools and Risky Behaviors Among Low-Income Adolescents."  The abstract is here and is copied at the end of this post.  The AAP press release is here.  AP has this story.

The thrust of the story is that kids randomly selected to go to better schools have a variety of better outcomes, including reduced gang membership.
Four days ago, Russian-backed separatists using a Russian-supplied surface to air missile shot down a commercial passenger jet, killing the 298 people on board, all civilians. Since then, those same Russian-backed separatists have taken control of the crash scene, seized the "black box" (and reportedly sent it to Moscow), stuffed the bodies in a bunch of bags like they were picking up trash, stonewalled the mourning relatives, and generally behaved as you would expect from people who murder about 300 of their fellow creatures because, ya know, these rocket launchers are really cool and fun to set off.

News Scan

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Parolee Accused of Murder: An Arkansas man released from prison and placed on parole just two months ago has been arrested in connection with a Memphis murder that took place earlier this week.  Jason Pederson of KATV reports that 33-year-old Will Johnston has been in and out of prison for more than a decade, serving time for burglary, parole violations and drug offenses.  A study conducted by the Department of Justice shows that 38% of individuals on parole end up violating their release orders and are sent back to prison.

CA Family Outraged Over Death Penalty Ruling: A Northern California family fighting for justice for their murdered relative expressed outrage after a federal judge ruled the state's death penalty unconstitutional. Brian Chalk, who has been waiting since 1981 for the execution of his sister's murderer called the ruling a "slap in the face not only to families, but to every citizen."  Maria Medina of CBS Sacramento reports that murder victim Terri Winchell's family thought the the killer, Michael Morales, would finally pay for his crime in 2006, but two hours before his scheduled execution the state put all executions on hold.  The family fears that this ruling sends the message that California's worst murderers will never be executed.

High-Risk Sex Offender Released: A Canadian man with a lengthy history of violent and sexual offenses has been released from prison despite being a high-risk to the community.  Lara Schroeder of Global News reports that 41-year-old Rene James Everett was placed on a 10-year supervision order in 2009 and will be required to participate in a treatment program, police believe he is at high-risk level of re-offending; especially when it involves women or children.  Everett's criminal record includes convictions for sexual assault, robbery and weapons offenses.  

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