Another controversy relating to the execution of Ronald Smith concerns use of the three-drug protocol with midazolam (Versed) as the first drug.  This is the same protocol that was at issue in Glossip v. Gross in 2015.  Kent Faulk of the Birmingham News reports:

During the 34-minute execution at the Holman Correctional Facility in Atmore, Smith heaved and coughed for about 13 minutes and underwent two consciousness tests to make sure he couldn't feel pain.
We have known for some time that the single-drug method with thiopental or pentobarbital is the way to go.  Texas has done dozens of these without incident.  The incoming administration should take steps to make sure the states can obtain these drugs, both to reduce the chance of an actually inhumane execution and to ensure that justice is not defeated by a complete unavailability.

There are a number of possible routes to a fix.  The erroneous decision that prevents states from importing thiopental from willing sellers overseas could be abrogated by statute or taken up to the U.S. Supreme Court.  The government could itself  import the drug or the ingredients from which it is compounded and distribute them to the states.  A government entity with the capability to do so might manufacture the drug.  One way or another, a permanent fix to this problem should be a priority.
As noted in today's News Scan, last night Alabama executed murderer Ronald Smith.  The execution involved last-minute petitions to the U.S. Supreme Court, which is routine, but there was an unusual four-four split on the presently eight-justice court.

At the root of the case is the decision last term in Hurst v. Florida.  Under the post-1976 capital sentencing system mandated by Supreme Court precedents, courts must find the defendant guilty of murder plus at least one factor from a list of aggravating factors defined by state law before the death penalty can be considered.  In Ring v. Arizona (2002), the Supreme Court overruled its own precedent and said the jury, not the judge, must make that latter finding.  In Hurst v. Florida (2016), the court applied Ring to strike down the Florida sentencing system that it had repeatedly approved multiple times against the very same attack.

Does Hurst extend further, to require the jury and not the judge to make the additional findings that state law requires before a "death-eligible" defendant is actually sentenced to death?  In my opinion (and that of the Alabama courts), the answer is clearly no.  However, the Delaware and Florida Supreme Court think it does.

The U.S. Supreme Court needs to take this issue up and resolve the split, and an Alabama case would be the cleanest vehicle to do so.  The high court has sent several Alabama cases back to the state courts, and it presently has several on its docket pending decision on whether to take them up.  The Smith case last night, however, was not a clean case.

News Scan

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Louisiana Illegal Immigrant Rapist on the Run: One of the two illegal immigrants suspected in an aggravated rape in 2013 is on the run. John Binder of Breitbart News reports that Illegal immigrants from Mexico, Christian Ramirez and Mario Rameriz, were both arrested and charged with aggravated rape of pre-teen girls in the northern Louisiana town of Farmerville in 2013. Rameriz was convicted of the rape and is currently serving his sentence, while Ramirez was turned over to ICE which mistakenly released him. Ramirez's whereabouts are currently unknown although authorities believe he may have fled back to Mexico.

Ohio Murderer's Death Sentence Upheld: The death penalty imposed on an Ohio man convicted of 11 counts of murder was upheld by the state Supreme Court Thursday. As reported by Bill Mears of Fox News, Anthony Sowell, who was convicted of murdering 11 women and hiding their remains on his property was sentenced to die in 2011. Recently, Sowell's counsel brought a motion for retrial on the grounds that a videotaped confession was inadmissible and prejudiced the case. In a 5-2 decision, the Court denied that claim the death sentence was upheld. Sowell's attorneys intend to appeal.

Alabama Inmate Executed Despite Delays:
A man convicted of shooting and killing a convenient store clerk more than two decades ago was executed in Alabama late Thursday night. CBS News reports that Ronald Bert Smith Jr., 45, was pronounced dead at 11:05 p.m. after a lethal injection at the state prison in southwest Alabama. In a 7-5 decision, the sentencing jury had recommended that the defendant face life in prison, but the presiding judge overrode the recommendation and imposed the death penalty.  The execution was delayed twice while the defendant's counsel argued that a judge should not have the power to override the jury and impose a death sentence, but the Supreme Court eventually declined to issue a stay.  Smith was found guilty of capital murder in 1994 for the shooting death of store clerk Casey Wilson. This was the second to take place in Alabama this year.
The direction of the Supreme Court was one of the most important issues in the election, and rightly so.  Over the last three generations, both the size of government and the Court's role in influencing it (by, for example, resolving basic cultural questions about marriage, abortion, gun rights, free speech and criminal procedure) have grown tremendously.

Ascendant Republicans and President-elect Trump want a Justice in the Scalia mold  --  an originalist and a textualist, a jurist who believes the Constitution says what it says and doesn't say what it doesn't say.  It's less clear to me what the Democrats want.  Some seem to want a liberal leader in the mold of Justice Ginsburg who will move constitutional doctrine to the left.  Others seem to prefer an "identity candidate"  --  a woman, gay, transgender, black or Hispanic  --  largely for symbolic and/or political value.

It will come as no surprise to readers that I prefer the originalist/textualist choice. Strict fidelity to the text and original meaning of the Constitution seems to me to be the best way to curb judicial license and keep the most fundamental decisions about the rules we must live under where, overwhelmingly, they belong  --  in democratic self-government.

With the filibuster for Supreme Court candidates still among the Senate's rules, however, and the Republicans having only 51 (probably to be 52) of the required 60 votes, the question is how to get a Scalia-style nominee confirmed.
There is a right way and a wrong way to invoke the "nuclear option" to eliminate the filibuster or to limit the topics on which it may be used.  There is a lawful way and a lawless way.  Harry Reid and his gang did it the lawless way.  The Senate majority of the incoming 115th Congress should do it the lawful way as the first order of business.

The Plea Bargain Effect in Practice

Last week in Stockton, California, a plea bargain was reached in one of the most notorious cases in recent years, a bank robbery in which the robbers took hostages, one of whom was killed.  Roger Phillips reports for the Record:

[Paul] Singh spoke about three hours after Jaime Ramos and Pablo Ruvalcaba pleaded guilty to the murder of his wife, 41-year-old Misty Holt-Singh, during Stockton's Bank of the West robbery on July 16, 2014.

Ramos, 21, will spend the rest of his life in prison. Ruvalcaba, 23, received 25 years to life.
*                    *                    *
Ramos had faced the death penalty. Public defender Jonathan Fattarsi, who represents Ramos, suggested it was not a coincidence that his client's case was resolved within weeks of California voters' rejection of a measure that would have abolished capital punishment in the state.

"Obviously we didn't want to start talking seriously about (a plea agreement) with the District Attorney until after we knew the fate of Proposition 62," Fattarsi said.

If voters had ended the death penalty, Fattarsi said, the motivation to accept a life sentence for his client would have been gone.
An implicit assumption in the outcry for releasing "nonviolent offenders" is that criminals specialize, and a person in prison for, say, burglary, is no more likely to commit a violent crime than regular law-abiding people are.  Last month, California voters approved an initiative for releasing supposedly "nonviolent" criminals by a landslide even while they rejected an initiative to repeal the death penalty by a greater margin than they did four years ago.  That indicates the extent to which the "nonviolent offender" myth has taken hold.

But it's a bunch of hooey.  Today the U.S. Bureau of Justice Statistics released supplemental data on Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010.

How many prisoners released in 2005 were rearrested by 2010, and for what crimes?

For those committed for violent offenses, 33.1% were rearrested for another violent offense.  For those whose most serious commitment offense was classified as a property offense, 28.5% were rearrested for a violent offense.

Is that a big difference?  No, it is a small, bordering on trivial, difference.  The premise that "nonviolent offenders" can be released without placing law-abiding people at increased risk of violent victimization is just plain wrong.

News Scan

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2 Officers Shot in Georgia: Two police officers sustained serious injuries in shootings that took place early Wednesday morning. Jon Gosa of the Albany Herald reports that the two officers were injured this morning in separate shootings which are believed to be related. One of the officers was with the Americus Police Dept. and the other was with the Georgia Southwestern State University Campus Police. The suspected shooter is still at large. During the investigation, GSSU will be on campus-wide lockdown.  ABC News reports that the Albany Police Department has identified the shooting suspect as Minguell Kennedy Lembrick, 32.

Parolee Arrested For Discharge and Possession: A habitual criminal was arrested in Salinas, CA late Monday night following a report that multiple gunshots had been fired. Chelci Adami from The Californian reports that Armando Yslas, a 36-year-old Parolee discharged four rounds from a stolen semi-automatic pistol with the serial numbers filed off. He reportedly fired the weapon in response to an argument he was having with a woman who lived nearby. Following his arrest, the responding police found an additional 40 rounds of ammunition in Yslas's possession. 

Florida Asks SCOTUS to Clarify Hurst Ruling:  The state of Florida is asking the U.S. Supreme Court review a Florida Supreme Court ruling in a death penalty case.  Last January in  Hurst v. Florida  SCOTUS held Florida's capital sentencing process violated the Sixth Amendment.  After the state legislature adopted a law correcting the process, the state's highest court ruled that it did not comply with Hurst regarding requirements for jury findings of aggravating circumstances.  Dara Kam from The News Service of Florida reports that state court interpreted Hurst to require that jurors find all aggravating factors, mitigating factors and weigh them before recommending a sentence.  The Florida Attorney General believes that this goes beyond what was actually required by Hurst, and is asking the high court to clarify this.  Timothy Lee Hurst was convicted and sentenced to death for the May 1998 murder of a female co-worker at a restaurant he was robbing.  Her body was found stuffed in a freezer.    

Roots of the Populist Wave

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Bret Stephens writes the Global View column at the WSJ.  He was that paper's most persistent and outspoken critic of Donald Trump throughout the campaign.  He has these thoughts on the global populist wave (italics added):

News Scan

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Governor-Elect's Wife Robbed at Gunpoint:  The wife of Missouri Governor-elect Eric Greitens was robbed Monday.  Fox News reports that Greitens' wife Sheena left a St. Louis restaurant early Monday evening and had just gotten into her car when a suspect opened the door and threatened her with a gun.  After she turned over her laptop and phone, the suspect fled.  Police were able to track a cellphone stolen from a nearby car to the suspect vehicle.  The vehicle crashed after a brief chase and three teenagers were arrested and the stolen phones and laptop were recovered.  Greitens, a Republican and former Navy Seal, said that a focus of his administration will be "safe neighborhoods."

Afghan Arrested For Rape/Murder of German Student:   A 17-year-old Afghan immigrant has been arrested for the rape and drowning murder of a German medical student.   Victoria Friedman of Breitbart  reports that the suspect, whose name was not released, entered Germany last year as an unaccompanied minor under Chancellor Andrea Merkel's "open door" policy.  DNA linked the suspect to the rape and murder of 19-year-old Maria L., early in the morning of October 16 as she was returning to her residence hall after a party.  Her body was found along the Dreisam River in Freiberg.  Police mentioned similarities between the yet-unsolved rape and murder of a 27-year-old woman weeks after Maria's death, in the town Endigen, roughly eighteen miles from Freiberg.  

Criminal Insider Trading

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The U.S. Supreme Court today decided Salman v. United States, No. 15-628, yet another case in the continuing saga of when trading securities based on an insider tip is against the law.

What always struck me as very odd about insider trading is that we have this enormous body of law with both criminal and civil liabilities, and at the root of it all is a very broadly worded regulation, SEC Rule 10b-5, not a statute.  The statute in question, 15 U.S.C. ยง 78j(b), makes it a crime to trade securities using "any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe ...."

Should insider trading be a crime?  Yes, under some circumstances.  But Congress should make it a crime, not the SEC.  Administrative agencies have a place in modern civil law, filling in gaps that the legislature will not get around to, but defining crimes should be a non-delegable legislative power.

Speaking of Fake News....

| 8 Comments's a juicy item from today's Sentencing Law and Policy:

The title of this post is the title of this intriguing little paper authored by Emily Fetsch for the Ewing Marion Kauffman Foundation and now available via SSRN. Here is the abstract:

One in three Americans has a criminal record.  Given the significant size of this population, the ability for these individuals to attain economic success after they leave prison has tremendous implications for our economy and economic mobility...
There is a paragraph and a half following that squib in the SL&P entry, but I stopped right there, because there is a limit on how many brain cells I'm willing to kill by reading pure tripe.

Proposition 66 Status

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As of 2:24 pm today, the Proposition 66 margin of "yes" over "no" is 287,711 votes.  This exceeds the number of unprocessed ballots in today's 11:59 am Unprocessed Ballots Report, which is 232,852.

The Secretary of State has until December 16 to certify for results for all races except the presidential election.

The all-but-final result on the Proposition 62, the death penalty repeal measure, is 46.9% to 53.1%.  The margin is 845,755 votes.  The 6% spread is greater than the 4% spread by which California voters rejected substantially the same proposal four years earlier as Proposition 34. 
I wrote a few days ago about the hundreds of victims of murder, rape and robbery whose victimizers were set loose early because of the sentencing "reform" statute followed in the District of Columbia.  That statute, the Youth Rehabilitation Act, was born of exactly and precisely the thinking that continues to push sentencing "reform" in Congress:  That we must avoid the collateral consequences of giving young adults a felony record, that we're too punitive, that the system is racially biased, and that everyone deserves a second chance. 

The problem is that these "youthful offenders" overwhelmingly do not get rehabilitated, having no particular interest in the matter.  And why should they? The system itself rushes to tell them that their predation just isn't that serious.  To whatever minor extent it is, however, the problem is not with them.  It's with us. The difficulty lies not with their behavior, but with the fact that the electorate (particularly Trump voters) are simpleminded trailer park trash, prosecutors are extortionists, and cops are Nazis.

Where this sort of thinking leads is the subject of another excellent article in today's Washington Post, "The crimes against them were terrifying, but the judicial system made it worse."  (Link not presently available, but you can Google the title).

The Limits of Free Speech

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The First Amendment to the U.S. Constitution says, "Congress shall make no law ... abridging the freedom of speech ...."  The Fourteenth Amendment is understood to extend this limitation to state legislatures.

Note the wording carefully.  It does not say "the freedom of speech" has no limits.  The freedom of speech may not be abridged, meaning reduced from what it was when the First Amendment was adopted.  "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." Schenck v. United States, 249 U. S. 47, 52 (1919) (Holmes, J.).

Threatening people is not within "the freedom of speech."  Fourteen years ago, CJLF defended Virginia's cross-burning law as applied to a cross burned in a manner that constituted a threat to specific people, and the U.S. Supreme Court upheld it as so applied in Virginia v. Black.*

A few years later, the Virginia Legislature added a "noose law" along similar lines.   The Virginia Court of Appeals upheld the law as applied on Nov. 22 in Turner v. Commonwealth.

Near Unanimity

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What is the highest level of agreement Gallup has ever polled on a public policy question?  Lydia Saad has this item from Gallup's vault, 75 years ago next week.  She doesn't say it's the highest, but it is hard to imagine anything above 97%.

News Scan

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Arrest Made in Ohio Child Kidnappings:  A 29-year-old man has been arrested for the May 21, 2016 kidnapping of a six-year-old Cleveland girl.  ABC News 5 reports that familial DNA helped link Justin Christian to the abduction of the little girl from her bedroom as she slept.  The FBI has also linked Christian to the attempted kidnapping of a 10-year-old girl last February.  Several recent child abductions in the Cleveland area have kept the community on edge, as police conducted a ten-month investigation.  Law enforcement officials have not yet reported on Christian's possible connection with other cases.  

Illegal Arrested For Murder:   An illegal alien has been arrested for the murder of a Wichita mother and the kidnapping of her baby last month.  KNSS Radio reports that Yesenia Sesmas had been arrested last July and her immigration status was reported to  U.S. Immigration and Customs  (ICE), but the agency did not move to detain her before she posted bail and was released.  According to the County Sheriff, had ICE put a detainer on the woman, she would not have been free to commit the murder or kidnap the baby.   ICE responded that while they were notified of Sesman's arrest and immigration status, they did not have time to detain her before she was released.   ABC News reports  that the July arrest of Sesmas was for two counts of aggravated kidnapping and aggravated robbery for allegedly taking two Wichita children.  

LA "Ban the Box" is a Jackpot for Felons: A recent measure passed by the Los Angeles City Council is good news for felons, although employers may see it differently. Doug McIntyre of the Los Angeles Daily News reports that last week in a 12 to 1 vote, the LA City Council passed the "Ban the Box" or "Fair Chance" measure which will prohibit employers from questioning prospective employees about their criminal history during the initial hiring process. Not only does this hinder an employer's ability to screen potential applicants, but it opens businesses to a wide array of litigation for every time they unknowingly turn down a felon for employment

Moore v. Texas Podcast

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The Federalist Society has this Courthouse Steps podcast on the Nov. 29 Supreme Court oral argument in Moore v. Texas.  The podcast is a recording of a December 2 teleforum with CJLF Legal Director Kent Scheidegger.

News Scan

Police Officers Shot in Arizona & Washington:  Veteran Tacoma, Washington police officer Reginald "Jake" Gutierrez was shot and killed Wednesday as he responded to a domestic violence call.  CBS News reports that when Gutierrez and his partner arrived at the scene early Wednesday evening a woman told them that her husband had locked her out of their house.  The officers entered the house and the suspect shot Gutierrez multiple times.  After a standoff of several hours the suspect was shot and killed by a police deputy.  On Thursday a habitual criminal shot two Arizona police officers when they were attempting to serve an arrest warrant in Tucson.  Garrett Mitchell of the Arizona Republic reports that officer Jorge Tequida is in critical condition from the shooting while his partner officer  Doug Wilfert, who was wounded in the leg, was treated and released.  The shooter, Jose Noe Barron Gomez, was killed during the gunfight.  Gomez was wanted for aggravated assault, and had a prior for drug smuggling.  132 police officers have died in the line of duty this year.  

Avoid Mandatory Minimums, This Is What You Get

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The Washington Post published a story today that should bring shame to the cheerleaders for "leniency" for "young offenders" in order to give them a "second chance."  

I've been asking for years, "A second chance to do what?" The Post, a liberal paper that supports sentencing "reform," has the admirable and astonishing honesty finally to answer that question (emphasis added):

Hundreds of criminals sentenced by D.C. judges under crafted to give second chances to young adult offenders have gone on to rob, rape or kill residents of the nation's capital....

In dozens of cases, D.C. judges were able to hand down Youth Act sentences shorter than those called for under mandatory minimum laws designed to deter armed robberies and other violent crimes. The criminals have often repaid that leniency by escalating their crimes of violence upon release.

Are the people who support avoiding, diluting (or, in some cases, outright repealing) mandatory minimums listening?  Let me ask that another way:  Can they take time off from their catered Bethesda and Georgetown parties to give a hoot about the mostly African American population they leave behind in DC to fend for themselves?

News Scan

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Congressman Appointed CA Attorney General:  In a surprise announcement today, California Governor Jerry Brown appointed Congressman Xavier Becerra to replace Senator-Elect Kamala Harris as the state Attorney General.  Sara Wire and John Myers of the Los Angeles Times report that Becerra served in the California Assembly and spent three years as a Deputy Attorney General before his election to represent the state's 34th Congressional District in 1992.  During his twelve terms in Congress, Becerra rose to become the current Chairman of the House Democratic Caucus.  While Becerra has not announced plans for run for the job in 2018, the possibility would be a setback for Democrat  Insurance Commissioner Dave Jones, who had already declared his intention to run. In a statement, Governor Brown praised Becerra's public service and said that as AG he will  "help our state aggressively combat climate change."  
Sherri Papini went for a run on November 2nd, but never returned home.  She did not pick up her two young children from daycare that evening and her cell phone was found lying on the side of the road.  Three weeks later, she is found alive in the very early morning hours by a passing motorist on the side of a County Road approximately 150 miles from her home.  She is chained and severely injured.  Her nose is broken and her skin has been branded by her captors

I live in the County where she was found that morning.  A friend of mine was the CHP Officer first on the scene.  When I got the news that she had been found alive, my first reaction was of shock and disbelief.  Too often these types of missing persons cases end with a dead body.  The cynic in me assumed that Sherri Papini would be found at some point in a similar manner.  Thankfully for her children and family, her story did not end in a typical fashion.

Unfortunately, immediately upon her discovery, the media and public jumped to the conclusion that the whole thing was a hoax.  Really?  A hoax by whom?  The severely beaten, branded and chained up woman who'd been thrown from a moving car onto the side of a pitch dark road in the middle of the night in the freezing cold?  Why are people so quick to assume that she's lying, or her husband is lying?  Perhaps I'm too trusting or gullible to believe otherwise.  Or perhaps despicable people like Scott Peterson or Drew Peterson make it hard to believe the story being told.

The details will come out eventually and I hope whoever is responsible is caught.  Any punishment the perpetrators receive, however, will in no way compare to the cruel and unusual torture that Sherri Papini endured and will continue to endure emotionally for the remainder of her life.   

How is Euthanizing Murderers Cruel & Unusual?

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In July, Mark Langedijk, a middle aged man in Holland, was euthanized at his request due to his addiction to alcohol. The Netherlands is one of nine countries, including Canada and parts of the U.S., which allows assisted suicide for those living their lives with an "unbearable" illness or affliction.   Tom Embury-Dennis of the Independent  reports that the Netherlands introduced euthanasia 16 years ago, and the current "euthanasia kit" available in pharmacies employs a three drug protocol to induce a painless death.  This raises the question "if the same chemicals we use to execute our worst murderers aren't cruel and unusual for an alcoholic in Holland or a cancer patient in Oregon, why are US courts wasting time and money reviewing Eighth Amendment challenges?"  The standard argument from the Anti-death penalty lobby is that capital punishment is cruel and unusual, that it's "inhumane".  Apparently this is only true for murderers who inhumanly shoot, stab or torture innocent people to death, after a trial and several appeals to confirm their guilt.  

News Scan

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Immigration Violations at an All-Time High: For the first time, Immigration violations have been identified as the majority of federally prosecuted cases. William La Juenesse from Fox News reports in this last fiscal year, 69,636, or 52% or all federally prosecuted cases in the United States were related to the violation of immigration laws. The two most common charges among these cases are illegal entrance into the country and illegal re-entry into the country following deportation, the penalty for which can be up to two years incarceration in a federal penitentiary.

North Carolina Terrorist Pleads Guilty: Justin Nojan Sullivan, 20, plead guilty this Tuesday to charges of conspiracy to commit a terrorist act in the United States. Anna Giaritelli at the Washington Examiner reports that Nojan was indicted earlier this year in connection with alleged communication with a member of the Islamic State in Syria with the intent to coordinate a terrorist attack on U.S. soil. Nojan also faces capital charges for the robbery and murder of his neighbor. Nojan admits to having committed the crime in hopes to attain the funds necessary to purchase a firearm with which to perpetrate a mass shooting.  Following a plea deal on the terrorism charges, Nojan will serve life in prison.

Charlotte Officer Cleared of Charges: It was announced that Officer Brentley Vinson, the Charlotte police officer involved in the recent shooting of Keith Lamont Scott, has been cleared of all charges regarding the shooting. According to
Two weeks ago, the U.S. Supreme Court summarily dumped a case brought by Visa, Inc. et al. because the petitioners got the court to take the case up saying it was about one issue and then relied on a different argument once they reached the merits stage.

It's not nice to bait-and-switch the nation's highest court.  Yet lawyers for a habitual criminal who blew the head off a store clerk during a robbery may get away with doing exactly that.  Capital defense lawyers are special, you see.  Rules don't apply to them.

Here is the Question Presented as drafted by lawyers for Texas murderer Bobby James Moore:

Whether it violates the Eighth Amendment and this Court's decisions in Hall v. Florida, 134 S.Ct. 1986 (2014) and Atkins v. Virginia, 536 U.S. 304 (2002) to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.
See any issue there about whether the Texas standard of Ex parte Briseno ever conformed to the subsequently "outdated" standards in the first place?  Nope.  It's not there.  But today's oral argument was nearly all about that.  The Chief Justice was not pleased, but he may not have a majority.
LifeZette, a new on-line magazine, is a breath of fresh air in Washington, DC. Instead of the weary, threadbare cliches from the liberal Establishment that have been driving the conversation inside the Beltway for decades, it presents a frankly conservative perspective.  

I was grateful to be able to contribute mine this morning, "Trump Can Reverse the Deadly Spike in Violent Crime."

Flag Burning

President-elect Trump has raised the issue of criminalizing flag-burning in a tweet.  The constitutional question is closer than many might think.  In 1989, Texas v. Johnson was decided by a bare 5-4 majority.

The justices did not divide on liberal/conservative lines in that case.  "Conservative" Justice Antonin Scalia provided the fifth vote to overturn the statute.  "Liberal" Justice John Paul Stevens was in the dissent.

Should the question be considered closed as a matter of respect for precedent (stare decisis)?  Some of our friends on the left think that precedent is a ratchet.  All precedents favoring their view are sacrosanct, while any precedents they disagree with are constantly subject to reexamination.  Justice Thurgood Marshall sadly ended his tenure on the high court with one of the most hypocritical opinions I have ever seen, excoriating his colleagues for overturning a relatively minor (and, in my view, clearly wrong and unjust) Eighth Amendment precedent while Marshall himself had obstinately refused to accept a far more important (and clearly correct) Eighth Amendment precedent for 15 years.

On the merits, I think that flag burning has to be considered "protected speech" as long as we consider "speech" to extend beyond the literal meaning of the word into nonverbal expression.  Anti-flag-burning statutes target content rather than "time, place, or manner."  To authorize such statutes within a coherent body of free-speech jurisprudence, we would have to tear up far more than Johnson itself, and that is enough to let the sleeping dog lie. 

Of course, we can and should exercise our own right of free speech to denounce the flag-burning scum in the most vigorous terms, but the government cannot punish them unless they violate some other, non-expression-directed law.  Burning someone else's flag without permission is a crime.  Burning a flag at a gas station ought to be a crime, if it isn't already.

News Scan

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OSU Attacker Identified:   The man who drove his car into a group of Ohio State University students and then stabbed several of them with a butcher knife before he was shot and killed by a police officer has been identified as 18-year-old Somalian immigrant Abdul Razak Ali Artan.  Aamer Madhani of USA Today reports that, prior to the attack, Artan had posted a rant on Facebook saying that he had reached a "boiling point" about America's interference with Muslim communities.  He also referred to lone wolf attacks, and described radical Muslim cleric Anwar al-Awlaki as a hero.  According to news reports police are still searching for a motive.  

Is Twitter-Stalking Free Speech?  A Dallas man in jail on charges of felony stalking, claims that the threatening Twitter posts he made against a judge who presided over his previous conviction for tweeting threats to kill his brother-in-law are protected by the First Amendment.  The Dallas Morning News reports that 46-year-old Babak Taherzadeh used up to 10 separate Twitter accounts to stalk the judge and his family and threaten their safety.  While some legal experts insist that hate speech is protected by the Constitution, there is a line when a person's safety is threatened.   In its 2014 ruling in Elonis v. United States, the Supreme Court declined to find targeted threats of murder on social media serious enough to constitute a felony.  The CJLF brief in that case is here.
Although this CBS story refers to Dylann Roof as the "suspect" in the Charleston church massacre, I'm not sure why.  No sane person I've ever heard of has any doubt that Roof is the killer.  Saying that he's the "suspect" in the murders is like saying Fidel Castro was "suspected" of being the dictator of Cuba.

But I digress.  Roof asked for, and today was granted, the right to represent himself. I of course have no idea what the defense will be but, like the judge, I think this is a strategically poor decision.  It's unlikely that Roof will be anywhere near as creative, or as smooth a talker, as an experienced criminal defense lawyer would have been.

Roof's choice does have at least one advantage for those of us who think the death penalty should be imposed, without manufactured delay, on defendants unquestionably guilty of grotesque murders:  The knowing choice to represent one's self after having been frankly warned by the court of its perils is a waiver of an ineffective assistance of counsel claim on appeal.  When you buy the package knowing the defects of what's inside, you give up the right to complain that the merchandise was rotten. 

I can't say there's a lot I admire about Dylann Roof, but I respect his decision to take on his own defense.  In its own odd and revolting way, it's likely to be more truthful than the slicker version he put aside.

White Cop Guns Down Another Young Man of Color

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The story is here.  It's everywhere else tonight, as well.

Remember this the next time you see a statistic about how many "white cops gun down young men of color."  If the source isn't telling you the circumstances of the shooting, then it's telling you nothing.  It is, however, engineering a smear.

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