May 2012 Archives

Some stories are too much to pass up.  I had to note this one, recounting that the girlfriend of a fellow who chewed off 80% of a man's face (before being shot and killed by a policeman) only did it because, no kidding, he was on drugs or under a Voodoo curse.

Now I'm no fan of legalizing drugs, but analogizing them to Voodoo.........

News Scan

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Kentucky to Change Execution Method: Brett Barrouquere of the Associated Press reports the Kentucky Justice Cabinet filed notice today that it will propose new regulations to its execution method, which currently calls for a single drug or combination of drugs, by July 24. In its last execution the state used a combination of  sodium thiopental, pancurionium bromide, and potassium chloride. The motion does not say what changes will be made. As reported in a News Scan in April, Franklin Circuit Judge Phillip Shepherd gave Kentucky 90 days to make changes to its execution method or defend it at trial. Shepherd ruled that a switch to a one-drug execution will render moot any cruel and unusual punishment arguments raised by death row inmates in a lawsuit.

Pennsylvania Governor Signs 3 Death Warrants: Yvonne P Mazzulo of reports Pennsylvania Governor Tom Corbett signed execution warrants for three men on Wednesday. Darien Houser is scheduled to be executed on July 24. He was sentenced to death in 2006 for killing Philadelphia Warrant Officer Sgt. Joseph LeClaire in 2004 as LeClaire was attemtping to serve Houser a warrant for failing to appear at his trial on rape charges. Houser killed LeClaire and wounded two other officers after opening fire on them. John Koehler Jr. is scheduled to be executed July 25 for pursuading William Curley to kill Koehler's girlfriend and her 9-year-old son in 1995. Koehler told Curley he would kill him if he didn't kill the victims. Willie Clayton is scheduled to be executed July 26. He was sentenced to death in 1986 for killing two drug dealers in their apartments during separate robberies two months apart in 1980. 

Judge Proposes Gradual Transition of CA Prison Oversight: Don Thompson of the Associated Press reports U.S. District Judge Thelton Henderson on Wednesday ruled California is not yet ready to completely retake control of the medical care systems in its prisons, and ordered the federal receiver J. Clark Kelso to continue a gradual transition of his responsibilities to the state Department of Corrections and Rehabilitation. Earlier this month, Governor Jerry Brown's administration and attorneys representing inmates submitted conflicting recommendations to Henderson for ending the receivership. Henderson wants both sides to comment on his transition plan by July 20.

Indiana Judge Considering Constitutionality of Sex Offender Facebook Ban: Charles Wilson of the Associated Press reports a federal judge heard arguments Thursday in the ACLU of Indiana's challenge to an Indiana law that bans registered sex offenders from using social networking sites that can be accessed by children. The ACLU of Indiana says the law violates sex offenders' free speech rights, and argues its unconstitutional to ban sex offenders from sites like Facebook if they are no longer incarcerated or on probation. Judge Tanya Walton Pratt says she plans to rule within a month.

CA Assembly Passes Bill to Protect Domestic Violence Victims: The Associated Press reports the California Assembly unanimously approved legislation that would allow judges to order defendants who have had a restraining order issued against them in a domestic violence case to wear a GPS device. The bill now goes to the Senate. The most recent version of the bill is here.   

Reaore here:

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Age of Entering School and ADHD

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The always informative blogger Neuroskeptic has an interesting post on several studies examining the "immaturity hypothesis" that posits that the birth month of a child is associated with the likelihood of receiving a diagnosis of ADHD.  The post begins:

Earlier this year a major study of almost one million Canadian children found that rates of diagnosed ADHD - as well as use of ADHD medications like Ritalin - were higher in kids born later in the year.  This is strong support for the "immaturity hypothesis" - the idea that some children get a diagnosis of ADHD because they're younger than their classmates at school, and their relative immaturity is wrongly ascribed to an illness.

Romney and Judicial Nominations

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Jerry Markon and Alice Crites have this article in the WaPo on Mitt Romney's record on judicial appointments as Governor of Massachusetts.  Romney came into office believing that an independent judicial screening commission was the way to clean up the appointment process, but he later changed his mind.

In my view, that is a case of learning the hard way that proposed reforms are not always all they are cracked up to be.  In fact, they rarely are.  "Independent" nominating commissions are a failed model.  They typically result in a transfer of nominating power from elected officials to whoever chooses the commission, which all too often means bar organizations.  Instead of eliminating politics, it substitutes bar politics for general politics.  Bar politics is the worse of the two by far, as the general public has no say in the process.

The other big problem is judicial activism -- the tendency of courts to usurp to themselves decisions that the constitution actually vests in the elected branches.  The bar loves judicial activism.  It makes the legal profession enormously powerful relative to everyone else.  The more influence the bar has on judicial selection, the more judicial activists you are going to get.   Legal academics love activism too.  Courts pay a lot more attention to what they think than legislatures do.

It is, of course, a natural human tendency for government officials of all types to interpret vague boundaries in a way that expands their own turf.  Judges sometimes drift to a more activist view of the role of the judiciary and rarely drift the other direction.  To counteract this tendency, appointing authorities need to constantly use the appointment power to steer the judiciary away from activism.  It is like driving a car with misaligned wheels.  It naturally veers to one side, so the driver must apply constant pressure to the steering wheel in the other direction to keep it going straight.  Failure to do that, so that the car runs off the constitutional road, is dereliction of duty.  A commission that nominates the candidates the organized bar and academics rate highly is not going to apply the needed correction.

It appears Mitt Romney has learned this lesson, and I am very glad to know that.

News Scan

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CA Administrative Office of the Courts Criticized in New Report: Howard Mintz of San Jose Mercury News reports a 298-page report by an 11-judge committee released over the weekend criticizes California's Administrative Office of the Courts, and says the "dysfunctional" statewide court bureaucracy headquarters should be relocated to a less expensive, smaller offices in Sacramento. The committee took particular interest in the size of the AOC staff and the number of employees earning more than $100,000 a year. Chief Justice Tani Cantil-Sakauye had appointed the committee in March 2011 to examine the agency's operation and costs in response to increasing criticism of the AOC recently. She says the state Judicial Council will now consider the recommendations. The article includes a link to the report. 

Child Molester on CA Death Row Found Hanged: Mike Reicher and Chris Megerian of the Los Angeles Times report James Lee Crummel hanged himself at San Quentin State Prison on Sunday, authorities announced Tuesday. He was on death row for killing a 13-year-old boy who was on his way to school in 1979. Authorities say Crummel kidnapped, sexually abused, and then murdered him. The boy's body wasn't found until several years later, and Crummel wasn't sentenced to death for the crime until 2004. He was in prison for other crimes at that time. Crummel had also been convicted of sex crimes in four states dating to the 1960s. "He was the most evil person I had ever had contact with," said Randy Lawton, a Newport Beach police officer who investigated the case. "May all his victims, known and unknown, now have peace."

Another Case for DNA Collection Upon Arrest: Marlene Naanes of reports Derrick Chestnut was arrested on May 23 on charges of aggravated sexual assault, kidnapping, and criminal restraint for a rape that occurred almost 12 years ago after he was arrested recently on a charged that requires a DNA sample from offenders. The rape occurred in 2000, when a woman walking home from the bus was approached from behind by a man, dragged to a secluded area, and sexually assaulted. Evidence collected from the rape did not yield any results until DNA taken from Chestnut during his most recent arrest was matched to evidence from the rape that had been submitted to the state police's Combined DNA Index System. "The CODIS system really worked in this case. It's a testament to this system," said Detective Sgt. Robert Bracken. Chestnut who had served three years in prison on theft by deception and bad checks charges, was released in 2005.
The Ninth Circuit decided a habeas case involving lab techs and the Confrontation Clause today in Flournoy v. Small, No. 11-55015.  

The case is a good illustration of how a case that would be difficult and close on direct review becomes easy and straightforward under AEDPA.  After going through Crawford, Melendez-Diaz, and Bullcoming, the court notes that key issues relevant to Flourney's case remain open even today.  That's all a court needs to decide that the state court decision (preceding both Melendez-Diaz and Bullcoming) was not contrary to clearly established federal law. 
The Senate has unanimously confirmed Roy McLeese to the DC Court of Appeals.  Todd Ruger has this post at BLT.

A former law clerk to Justice Antonin Scalia, McLeese was an assistant to the solicitor general from 1997 to 1999, arguing four cases before the U.S. Supreme Court. More recently, he temporarily served as the acting deputy solicitor general, filling in for Michael Dreeben while Dreeben taught at Duke Law School.
We at CJLF had the pleasure of working with Roy during his ASG stint, and we congratulate him on his confirmation.

Note:  The name of the court has been corrected since the original post.  Thanks to commenter "dccircuitreview" for pointing this out.

News Scan

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Brothers Condemned in Different States: Kristi Eaton of the Associated Press has this piece about brothers Roger and Rodney Berget, sentenced to death in different states for crimes separated by more than 25 years. "The siblings' journey from the poverty of their South Dakota childhood to stormy, crime-ridden adult lives shows the far-reaching effects of a damaged upbringing -- and the years of havoc wrought by two men who developed what the courts called a wanton disregard for human life," Eaton writes. In 1985, Roger and a friend carjacked a man at gunpoint in Oklahoma City and put him in the trunk of the car. They drove the car to a deserted spot and shot the victim in the back of the head and neck. Roger was executed by lethal injection in 2000. In 2011, while serving a life sentence in South Dakota for attempted murder and kidnapping, Rodney and another inmate killed a prison guard in a failed attempt to escape. Rodney's execution is scheduled for September.

Brazil President Signs DNA Legislation: PR Newswire reports the country of Brazil has passed into law legislation requiring DNA from convicted criminals to be included in the national Brazilian DNA database. Brazil's President, Dilma Rousseff, signed the legislation on May 28. The article says Brazil is the 56th country, and the third in South America, to pass DNA database legislation. Tim Schellberg, the president of a firm that consults globally on DNA law and policy, says he now excepts other Latin American countries to follow the lead of Brazil amd create similar legislation.

Shortage of Lethal Injection Drug Holding Up Executions in Vietnam: The Associated Press reports Vietnam's Vice Public Security Minister Dang Van Hieu told a newspaper Tuesday executions have been on hold in the country due to a shortage of the drug used in lethal injections. The drug was not named, but has to be imported, which Hieu said has "proved to be difficult." Last July, Vietnam changed its execution method from firing squad to lethal injection, and no inmates have been executed since.

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Sufficiency of the Evidence

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Once again, the U.S. Supreme Court has unanimously and summarily reversed a grant of habeas corpus by a circuit divisible by three, a grant that followed denial of the claim by every court to consider it.  Once again, the case involves the sufficiency-of-the-evidence rule of Jackson v. Virginia.

In Harrisburg, Pennsylvania, Taraja Walker was murdered by Corey Williams.  The jury found, beyond a reasonable doubt, that Lorenzo Johnson was an accomplice.  Was the evidence sufficient to sustain that verdict?  The trial judge thought so.  The Pennsylvania intermediate appellate court thought so.  The Pennsylvania Supreme Court denied review.  The federal district court denied habeas.  The Third Circuit disagreed with all the prior courts, and today the Supreme Court reversed that decision.

The jury in this case was convinced, and the only question under Jackson is whether that finding was so insupportable as to fall below the threshold of bare rationality. The state court of last review did not think so, and that determination in turn is entitled to considerable deference under AEDPA, 28 U. S. C. §2254(d).

Affording due respect to the role of the jury and the state courts, we conclude that the evidence at Johnson's trial was not nearly sparse enough to sustain a due process challenge under Jackson. The evidence was sufficient to convict Johnson as an accomplice and a co-conspirator in the murder of Taraja Williams.

The case is Coleman v. Johnson, No. 11-1053.
In 1996, Congress cracked down hard on successive habeas petitions, i.e., filing a new habeas petition to attack a conviction and sentence after a prior petition was denied.  This was the one immediately successful reform of the habeas chapter of the Antiterrorism and Effective Death Penalty Act of 1996, and the increase in executions in the years that followed was partly due to this.  (The other important reforms have taken longer, and one remains unimplemented.)

The capital defense bar has been trying to evade this restriction ever since.  Instead of filing successive petitions, they now routinely file motions to reopen the old petition in the district court under Federal Rule of Civil Procedure 60(b)(6), with mixed results.

Arizona murderer Daniel Cook tried something analogous in the Supreme Court itself, filing a petition for rehearing on a certiorari petition denied three years ago, No. 08-7229.  The Court considered this petition in three conferences, but it finally denied it today.  The orders list is here.

There were no opinions in argued cases or grants of certiorari in criminal cases today.  There was one per curiam opinion.

The Last Full Measure

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English: Picture of graves decorated with flag...

Arlington National Cemetery on Memorial Day 2008. (Photo credit: Wikipedia)

This Memorial Day, let us all take a moment to remember those who gave their lives in defense of our freedom, "the last full measure of devotion."
...unfortunately, however, the victims of the defined-away crime do not go out of existence.  Instead, their numbers increase.

This is the lesson (as if it should need to be a "lesson") of this appalling story from Florida:

Florida's incidences of children who died from child neglect dropped 30 percent in 2010 over the previous year. So what changed? The definition of "child neglect." Florida news outlets are reacting in shock and anger at the recent reveal that Florida's Department of Children and Families limited what "dying by neglect" included. Before, drowning in a swimming pool, being smothered while sharing a bed with a sleeping parent, or being tended by parents too drunk or high to supervise were considered child neglect. But in June 2010 the DCF creatively re-interpreted a death from child neglect to mean "a willful act by the caregiver" that "with intent, allowed the child to be placed at risk." Um, isn't a "willful act" the opposite of neglect? 

Jean Valjean, Call Your Office

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Jean Valjean is the saintly hero of Victor Hugo's immortal novel, "Les Miserables."  He stole a loaf of bread to feed his sister's starving family, and was sentenced in pre-Revolutionary France to cruel imprisonment.  His soul was rescued from a lifetime of bitterness by the loving act of a bishop, who, after Valjean's release, had given him a night's shelter, only to have Valjean sneak away before dawn with the bishop's silverware.  The ensuing story of the bishop's candlesticks is the most poignant and moving passage of fiction I have ever read. 

The defense bar routinely tries to portray each rapacious, thieving client as Jean Valjean.  But even the defense would have some problems with Ms. Lonneshia Shafaye Appling.  A news report notes:

The Georgia woman, 26, was so determined to shoplift beer, bacon, cheese, and chicken wings from a Piggly Wiggly that she punched, spit at, and pepper-sprayed store workers who confronted her as she tried to flee the supermarket Wednesday afternoon, according to cops....

Appling kept [pepper-]spraying as several workers tried to keep her from fleeing. The 340-pound Appling also allegedly punched [a store employee] in the face and spit on the 28-year-old employee. As she successfully bolted from the Athens store, Appling "was dropping beer cans out of her purse."

But really, how fast can she be at 340 pounds?  Still, this was the kicker:

While in police custody, Appling told a cop to add whatever charges he wanted
because she was going to plea bargain and half of the charges would be dropped anyway," according to the report. She also asked Officer Nathaniel Franco if her arrest would make the police blotter, requesting that the cop make his report "more interesting so that her arrest would make" the department's compendium of notable incidents.

You can't make this stuff up.

Large and Small Misbehavior

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Professor Dan Ariely of Duke U. has an article in the WSJ titled Why We Lie.  It's fascinating stuff.  For the participants in Ariely's experiments, the cost-benefit analysis of reward of cheating versus prospect of getting caught is irrelevant.  Lots of people cheat just a little, up to the point where it would threaten their self-image. "Except for a few outliers at the top and bottom, the behavior of almost everyone is driven by two opposing motivations. On the one hand, we want to benefit from cheating and get as much money and glory as possible; on the other hand, we want to view ourselves as honest, honorable people."  Manipulations that increase the conscience consequences of cheating actually worked.  Even with self-declared atheists, swearing on the Bible reduced cheating to zero.

I think Ariely may be over-generalizing his results, though.  The "outliers" are few in the participants of his studies, but are those participants representative of society as a whole?  This is a newspaper essay and not a journal article, so he doesn't go into detail on the selection methodology, a critical component for determining how much a study's results reflect the real world.  At one point he briefly mentions that the subjects are "usually college students."  Ouch.  That is a very common problem in academic studies.  College students are a very convenient source for researchers, but not at all representative of population as a whole.

The student-subject problem is particularly acute for studies that touch on crime.  College students, on the whole, are young people with good prospects for making it into the upper-middle class at least.  They are people who have mostly obeyed society's major rules to that point.  You won't find many who have been convicted of a felony.  People with a fundamentally irresponsible outlook on life are far less likely to make it to college, and those with a fundamentally responsible outlook are far more likely to make it there.

For the chronically irresponsible, I suspect that cost-benefit considerations play a much larger role in the decision to commit a crime than Ariely's results indicate.  For mostly responsible people, I do not doubt that he is correct.  But it's the chronically irresponsible who commit most of the serious crime, and experiments like Ariely's don't tell us much about serious crime.
Paul Elias has this story for Associated Press:

California on Friday joined other states in defying a federal government order to turn over a key execution drug.

At issue is the drug sodium thiopental, one of three drugs California and dozens of other states use in lethal injections. It puts the inmate to sleep before fatal doses of two other drugs are delivered. California and others have been purchasing the drug oversees since the United States' sole manufacturer ceased production of the anesthetic in 2011.

U.S. District Judge Richard Leon in March ruled that the Food and Drug Administration erred in allowing the prisons to import the foreign-made drug. The judge ordered the FDA to confiscate all foreign-made sodium thiopental and to warn prisons that it was now illegal to use the drug. The FDA followed the Washington D.C.-based judge's order and sent demand letters to prisons. But beginning with Nebraska on April 20, more than a dozen states have refused to comply with the FDA order.

On Friday, California joined the protest in a letter sent to the FDA. With 725 Death Row inmates, California has the highest number of condemned prisoners.

California Department of Corrections and Rehabilitation lawyer Benjamin Rice and the other states with foreign-bought sodium thiopental contend they aren't bound by the ruling made by a federal judge in Washington D.C. They also argue that the judge was wrong and urged the FDA to appeal.

We noted in this post on Tuesday that the letter was signed by 15 AGs, not including Kamala Harris.  Better late than never.

"The CDCR is unaware of any laws or imperative that would require it to return the thiopental in question," Rice wrote Domenic Veneziano, director of the FDA's import operations. Rice wrote that subjecting lethal injection drugs to the same regulations designed to prevent illegal sales of controlled substances is a "strained interpretation" of the law.

That paragraph refers to a different letter, dated May 1 although I hadn't seen it or any reference to it in the press until now.

The story also discusses the L.A. motion, noted here.

FDA Appealing Thiopental Ruling

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Tom Schoenberg reports for Bloomberg:

The U.S. Food and Drug Administration is appealing a federal judge's order that banned the importation of sodium thiopental and its use in executions.

The FDA, which filed a notice of appeal today in the federal court in Washington, is seeking to overturn a ruling in March favoring 21 death row inmates who challenged the agency's use of sodium thiopental, an imported drug given as anesthesia before a lethal injection is administered.
Desmond Hatchett, who recently made news by asking the taxpayers to help him out with court-ordered child support for his 30  --  that's THIRTY  --  kids, did not have a record likely to inspire confidence in his sense of responsibility.  Indeed, according to one report,  he has a "very long and serious criminal history" that includes "multiple assaults, multiple thefts, aggravated assault, multiple evading arrests, and several driving assaults," according to a probation violation report. He has also been collared on narcotics charges and has shown "contempt for the rules of probation and of the court." In fact, his rap sheet runs 14 pages.

But not to worry.  It's not like our "draconian" criminal justice system thought that a 14-page rap sheet might merit keeping  a fellow in jail for his assigned sentence.  Instead,

Hatchett had been sentenced to six years in prison for aggravated assault, but had the majority of that term suspended in lieu of "enhanced probation." He quickly violated his probation terms by getting arrested for domestic violence, violating curfew, and lying about his whereabouts to his probation officer.

We're constantly being lectured about how we need to save on costs by putting criminals on probation instead of in the slammer.  One has to wonder how much the taxpayers saved by having the ever-active Mr. Hatchett out on "enhanced probation."

It sort of reminds you of "Animal House's"  double secret probation, and with about the same impact on the probationer's social life.
Today marks a substantial step forward in the effort to restart executions in California and stop the foot-dragging that has held up executions for six years.

As noted in my prior post, the District Attorney of Los Angeles has asked the Superior Court there to order that two murderers, Mitchell Sims and Tiequon Cox, be executed using the single-drug method.  The federal district court hearing the lethal injection litigation has twice determined that California can go ahead if it simply adopts the single-drug method (now in use in Ohio, Washington, and Arizona).  The Administrative Procedure Act does not permit enforcement of the underlying law to be held up by APA litigation.  If the implementing regulation is not valid under the APA, courts must go ahead and direct enforcement.  See Tidewater Marine Western, Inc. v. Bradshaw, 14 Cal. 4th 557, 577 (1996).

Today, the Superior Court issued an order to show cause to CDCR to proceed or show cause why it cannot.

In other action, the LA DA has also moved to intervene in the federal lawsuit of Morales v. Cate, asking the court to modify its previous order to clarify that only three-drug executions are enjoined.

News Scan

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Execution Dates Set in Mississippi: Jeff Amy of the Associated Press reports the Mississippi Supreme Court on Wednesday set execution dates for Henry Curtis Jackson Jr. and Jan Michael Brawner. Jackson is set to be executed June 5, and Brawner on June 12. Jackson was convicted of stabbing two young nieces and two nephews at his mother's home in 1990. He was also convicted of stabbing another niece and his adult sister, who both survived. Brawner was convicted of killing his 3-year-old daughter, ex-wife, and former father-in-law and mother-in-law in 2001. Trial testimony showed he went to his former in-laws' after he learned his ex-wife planned to stop him from seeing their child. Mississippi Attorney General Jim Hood also requested an execution date for Gary Carl Simmons Jr., but the court ordered Hood's office to reply to Simmons' claims that his original lawyers were ineffective at trial and that his later lawyers were never good enough to point out shortcomings. Simmons was convicted of shooting and dismembering a man in 1996 who had gone to his home to collect on a drug debt. Police said Simmons and his co-defendant kidnapped the victim and his female friend, later assaulting the woman and locking her in a box. Parts of Wolfe's body were found at Simmon's house, in the yard, and in a nearby bayou.

Washington's "Swift and Certain" Law to Take Effect June 1: Paul Suarez of The Columbian reports Washington state's new "swift and certain" law, which will send offenders to jail for one to three days for minor probation violations, officially takes effect statewide on June 1. The law is based on Hawaii's project HOPE, and officials say the change should save the Department of Corrections money.

DNA Links Serial Rapist to Another Attack: Ruby Gonzales and Brian Day of the San Gabriel Valley Tribune report Earnest Pettway, currently serving time for two rapes in California, was linked to a third attack in the Los Angeles area with DNA. He was recently sentenced to 15 years in prison for the 1995 rape and kidnapping in Glendora, which he will serve consecutively with his prior sentences of 25 and 46 years. In 1995, Pettway raped a female jogger at gunpoint in Santa Monica, and detectives then linked him to a similar attack in Los Angeles. Pettway was convicted of both cases in 1997. In 2010, a DNA match to Pettway was found by a program running cold case DNA through a state data bank, and detectives re-opened the case. "Pettway denied being involved, however a comparison DNA sample obtained by Glendora detectives from Pettway was an exact match to the evidence collected from the sexual assault in 1995," a police statement said.

News Scan

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California AG Will Not Appeal Release of Convicted Murderer: Bob Egelko of the San Francisco Chronicle reports Lynda Gledhill, a spokeswoman for California Attorney General Kamala Harris' office, said the office will not appeal last week's ruling by a state appeals court in San Francisco that Carl Wade is entitled to "compassionate release." Harris' office could have asked the state Supreme Court to review the case. Wade was convicted of first-degree murder in 1989 for the 1986 shooting death of a fellow woodcutter who shared his trailer home. He was sentenced to 32 years to life in prison. Wade was classified as totally disabled in 2007, and diagnosed as terminally ill last summer. His lawyer says Wade will be freed from a state prison in Vacaville within days to live with his sister and her family in Chico.

Unabomber Submits Update to Harvard Alumni Book: Denise Lavoie of the Associated Press reports Unabomber Ted Kaczynski, a Harvard University graduate, was invited to submit an entry for the 50th class reunion report. In the alumni directory, Kaczynski lists his occupation as "prisoner" and says his awards are "Eight life sentences, issued by the United States District Court for the Eastern District of California, 1998." The alumni association says it now regrets allowing his update to be published. "While all members of the class who submit entries are included, we regret publishing Kaczynski's references to his convictions and apologize for any distress that it may have caused others," the Harvard Alumni Association said in a statement. A Harvard spokesman said the update was submitted by Kaczynski, though did not say how that was confirmed.

Shermantine Admits Involvement, Says Tries Not to Think About It: Koula Gianulias of CBS13 reports California death row inmate Wesley Shermantine, who has blamed all of the murders he was convicted of on Loren Herzog since his arrest in 1999, admitted some responsibility for the crimes that spanned two decades. In an interview, Shermantine said, "I had an active role." Shermantine wouldn't say any names, and said he's going to reveal everything in a book. He said he was inspired to confess after so many years after one of his son's stopped speaking to him, which Shermantine said caused him to think about how the families of victims must have felt. He also said in the interview, "to think about the stuff that I did, I try not to. I would have nightmares."

Judge Orders Mediation Talks in Idaho Execution Policy Suit: Todd Dvorak of the Associated Press reports U.S. District Judge Edward J. Lodge on Thursday ordered mediation talks between Idaho prison officials and the 17 news organization that filed a lawsuit this week challenging the state's policy that limits public access to lethal injection executions. The order requires the parties to begin nonbinding mediation on or before June 1 under the supervision of Magistrate Judge Candy Dale.  

Execution by Propofol

Jim Salter has this story for AP on Missouri's announcement that they will be using propofol for their new single-drug protocol.  (Prior post is here.)

Last week the Missouri Department of Corrections announced it was switching from its longstanding three-drug method to use of a single drug, propofol. Missouri would be the first state ever to use propofol as an execution drug.

"This is very, very concerning with a drug that we don't know, and seeing the problems of the one-drug method," said Kathleen Holmes of Missourians for Alternatives to the Death Penalty.

Now if we assume that the antecedent of "this" is the statement immediately preceding (and I have to hedge because out-of-context quotes do happen), that's a strange position.  Obviously somebody has to be first.

A drug we don't know?  Propofol's properties are very well known.

As for the "problems of the one-drug method," we should remember that this is the opponents' proffered alternative method in their attacks on the three-drug method, just as lethal injection generally was their proffered alternative to the gas chamber and electric chair.

That's not to say that propofol is problem-free.  I've been told that some patients scream when the injection begins, and that would certainly be bad PR in an execution.  Personally, I'm not concerned that an inmate being executed feels an amount of pain that is small enough that it is not considered a big deal in a medical treatment context.  But witnesses might interpret this as more painful than it really was, and unlike a surgery patient the executed inmate won't be able to tell us afterward.  A state going to propofol would do well to take precautions to insure this doesn't happen.

Chloe Beardsley reports for KION TV, Salinas, California:

MORGAN HILL, Calif. -- In the case of missing Morgan Hill teen Sierra LaMar [15], the man facing charges for kidnapping and murdering her isn't talking. One tactic investigators said they use in cases like this one, is the death penalty.

For example some investigators offer to pull the death penalty punishment off the table, in return for information, but a new ballot measure could eliminate that tactic completely.

"It would certainly remind a suspect during an interview it is a capital case, a person could possibly face the death penalty which might serve as an inducement to cooperate with law enforcement," said Dan Payne. 

Deadlock and Double Jeopardy

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The US Supreme Court decided Blueford v. Arkansas this morning, deciding 6-3 that a jury's informal report that it had voted unanimously against the higher degree offense and was deadlocked on the lower degree was not an acquittal of the higher degree for purposes of the double jeopardy clause.  The report lacked the finality needed for a verdict.  Opinion by Chief Justice Roberts; dissent by Justice Sotomayor joined by Justices Ginsburg and Kagan.

Next day for opinions is Tuesday (because Monday is a holiday).

The Budget for Science

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A bit off-topic for C&C, but the always insightful Tom Smith at The Right Coast has a reflective commentary on public funding for science.  Professor Smith states:

But anyway, I'm not all that sympathetic to the moans and groans of physicists who say, we must have more billions of dollars, else we shall not come to understand the deep nature of universe.  Even as to astronomers, though I am enthusiastic about astronomy, I feel the same way.  The problem is in the coercive taxation of people to pay for Big Science.  Sure, it's less of a waste than other things government wastes our money on.  In Libertarian Paradise, I might even donate some money to the Big Science Fund so they could look for bosons.  But honestly, my current budget doesn't allow for a lot of pure research on stuff I don't understand and is unlikely to benefit me.  Yeah, I admit that makes me a limited sort of altruist.

I agree with the professor's sentiment in many ways.  On the one hand, of all things we spend public money on, science seems worthy, particularly health science.  After all, spending money on health science has a great public benefit.  Yet it is also true that given the fiscal realities of our time, some adventures in science just might need to wait.  Perhaps all of those studies on postmodern addictions could wait a bit.

News Scan

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News Media Sues Idaho to Open Entirety of Executions to Public: Rebecca Boone of the Associated Press reports the Associated Press and 16 other organizations sued the state of Idaho on Tuesday, arguing that the news media and public have a First Amendment right to view all the steps of the state's lethal injection procedure. After the execution of William Bonin in California, the California First Amendment Coalition sued, saying the limited viewing access of executions violated the public's first amendment right. In 2002, the 9th U.S. Circuit Court of Appeals rejected the argument from California officials that the restrictions were necessary to preserve the identity of the execution team. Idaho state officials said the decision did not apply to their procedures.

First Amendment Coalition of Arizona Wants to See Execution Preparation: Michael Kiefer of the Associated Press reports the First Amendment Coalition of Arizona was given "amicus" status in a federal lawsuit filed by several Arizona death row inmates that challenges the state's lethal injection procedures. The First Amendment Coalition of Arizona will argue the public has the right to witness executioners inserting the IV lines that deliver the lethal injection drugs to inmates.

15 States Urge Feds to Intervene in Lethal Injection Drug Ruling: Bill Mears of CNN reports 15 states on Monday called on the Food and Drug Administration to appeal a federal judge's decision in March to block the importation of thiopental, saying upcoming executions are being undermined. Judge Richard Leon also ordered state corrections departments to return their supply of thiopental to the FDA. The states called it a "flawed decision," and said, "If the (court) decision is not overturned, we as state attorneys general will be forced to take actions to ensure execution by lethal injection remains a viable option."

Lifers Could Qualify for Parole Sooner Under Louisiana Law: Ed Anderson of The Times-Picayune reports a bill that won final passage Tuesday and now heads to the Louisiana Governor will allow some non-violent, non-sex-crime offenders serving life sentences to be eligible for parole sooner, after serving a certain amount of their term. Inmates sentenced to life between the ages of 18 and 25 who have been model prisoners, are deemed low-risk if released, have completed 100 hours of pre-release programs, have obtained a GED or literacy certificate, and have completed drug rehabilitation if required, would be eligible for parole after serving 25 years of their life sentence. Those who meet the same conditions and were sentenced between the ages of 25 and 35 must serve 20 years of their life sentence. If sentenced between the ages of 35 and 50, offenders who meet all of the other conditions must serve 15 years of their sentence. Offenders sentenced to life at age 50 or older must serve at least 10 years and meet all of the other requirements.  
... and you can't refuse to turn over a prisoner to the United States government because you don't like the possibility he might get a thoroughly deserved death penalty.

Sheri Qualters reports in the NLJ (registration required):

Rhode Island's attempt to delay transferring a state prisoner who could face the death penalty in federal court has been rebuffed by the en banc U.S. Court of Appeals for the First Circuit.

In a 3-2 order issued on May 21 in U.S. v. Pleau and In Re Pleau, the court denied a request by the state of Rhode Island and defendant Jason Wayne Pleau to block the transfer. The court also denied the federal government's request to expedite the process.

Bill's prior post on this case is here.

Update:  Gov. Chafee's SCOTUS application for a stay, 11A1113, is here.  Interestingly, he is represented by Akin Gump, not the Rhode Island Attorney General.
Megan Brooks at Medscape (free registration) has the details:

Early adolescent cannabis use may contribute to the development of symptoms of schizotypal personality disorder (SPD) in adulthood, according to new data from a longitudinal cohort study.

"The uniqueness of this study lies in the demonstration of an association between early cannabis use and subsequent schizophrenia-like symptoms that persisted into adulthood and that was not explained by early anxiety or depressive disorders, or exposure to other drug and cigarette use," study author Deidre M. Anglin, PhD, assistant professor of clinical psychology, City College and Graduate Center, City University of New York, told Medscape Medical News.

"In addition, this study adds to the literature by demonstrating that this association...was not only limited to those already exhibiting higher levels of these symptoms during childhood and adolescence," she added.

There is now a respectable amount of research demonstrating a link between marijuana use and severe mental illness, particularly psychosis.  In many ways this is unsurprising: we've long known that marijuana use is associated with perceptual and cognitive anomalies during use and persisting for some time after cessation of use.  Psychotic disorders are defined by disturbances in perception and cognition. 

To be sure, the research literature has a long way to go in quantifying and understanding the overall risk. Lots of people use marijuana and don't develop mental illness.  But it's worth keeping in mind that no drug is harmless and there is likely some risk involved in marijuana use.

The Immorality of Sex Addiction

Ann Marlowe at the Weekly Standard (subscription needed) has a great book review of David Ley's book, The Myth of Sex Addiction.  The current hype in popular psychology these days, of course, is that all bad behavior is not a product of personal choice but indicative of some psychopathology.  Who needs personal responsibility?  Even better, the academic journals are filled with articles with fancy pictures of brains gone awry, ostensibly explaining away personal responsibility.  Nowhere is this more in fashion that in discussions of addictions - those non-traditional ones: sex, food, suntanning, cell phone use. 

Here's an excerpt from Ms. Marlowe's review:

David Ley gets at the philosophical heart of the matter: the dualism inherent in the idea that "sex addiction" overrides a person's good impulses and makes them do bad things that aren't really in their nature. "We are what we do," Ley responds. He is squarely in the cognitive psychology camp, urging, "if you want to change how you feel, change what you do." Ley points out that the argument that pornography causes rape, and particularly that the use of Internet porn leads to sexual violence, gets things backwards. Sexual violence has dropped by half since 1993, when web browsing became widely available, and even teen sex, teen pregnancy, and venereal disease rates have fallen. As should be intuitively obvious, people who spend most of their time panting over porn on their computers are less likely to be out in the real world getting in trouble.

News Scan

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Canadian on Death Row in Montana Denied Clemency Recommendation: Matt Gouras of the Associated Press reports Ronald A. Smith, believed to be one of only two Canadians on death row in the United States, received a recommendation of no clemency from the Montana Parole Board on Monday. In 1982, Smith marched two young men into the woods near a highway and shot them both in the head with a rifle. Montana Governor Brian Schweitzer could grant or deny him clemency, or take no action at all before leaving office at the end of the year, leaving the decision to his successor.

New York City Bans Junk Food in Jails: Reuven Blau of New York Daily News reports a proposal is in place to ban popular junk food items from the  commissary snack bars at all city jails. Junk food in vending machines on Rikers Island that are accessible to staff and visitors may also have junk food removed from them. Some officials worry that the change will anger inmates and lead to increased violence. Other officials hope the move could help reduce the rising costs of medical care for inmates.

Juvenile Conviction Still Counts as Strike: Bob Egelko of the San Francisco Chronicle reports the U.S. Supreme Court on Monday denied review of DeShaun Staunton's challenge to California's three-strikes law, specifically the part in which some juvenile convictions are counted as a strike. Staunton was convicted at age 16 for the robbery of an ice cream vendor. He pleaded guilty to residential burglary in 2010, and was sentenced to twice the normal term because of his first strike. Serious or violent felony convictions in juvenile court at ages 16 or 17 qualify as a strike, according to the state law. A state appeals court in San Jose upheld Staunton's sentence last year. The U.S. Supreme court previously rejected an appeal in another San Jose case from a 2009 state Supreme Court ruling that reached the same conclusion.

Texas Killer's Execution Delayed: The Associated Press reports the scheduled June 6 execution of Bobby Lee Hines has been delayed. Hines was convicted of killing 26-year-old Michelle Wendy Haupt in 1991. She was strangled and stabbed with an ice pick. At the time, Hines was on probation for a burglary conviction. Dallas County prosecutors asked a judge to withdraw the execution date because results of additional DNA testing won't be available by then. The request was approved by District Court Judge Don Adams in Dallas on Friday.

Read more here:

Read more here:

Fifteen state attorneys general have signed this letter to US AG Eric Holder, asking him to appeal the atrocious decision of the US District Court in DC in Beaty v. FDA.  This suit is an attempt to use the drug importation provisions of the Food, Drug,and Cosmetic Act, of all things, to try to choke off the supply of drugs for lethal injection.  This suit is focused particularly on thiopental.  See prior post.  The purpose of the FDCA is, of course, to ensure that medical patients have drugs that are safe and effective for medical treatment.  The FDA has long taken the position, correctly IMHO, that the Act has no application to lethal injection. See Heckler v. Chaney, 470 U.S. 821 (1985).  In this context, "safe" and "effective" are mutually exclusive.

The signers are the attorneys general of Oklahoma, South Dakota, Alabama, Arkansas, Colorado, Florida, Georgia, Idaho, Louisiana, Mississippi, Missouri, Nebraska, South Carolina, Virginia, and Washington.

The California Department of Corrections and Rehabilitation has a substantial stock of the thiopental at issue in the suit and was depending on it for its ability to carry out executions.  The Attorney General of California, Kamala Harris, is not among the signatories on the letter.  Update:  See subsequent post of May 25.  California has since joined the letter.

It's All for Medicine. Honest.

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California leads the way in at least four categories I can think of off the top of my head:  Looming bankruptcy, the number of governors nicknamed "Moonbeam," the number of law-free federal circuit judges, and pot.  I invoke my Fifth Amendment privilege as to whether any of those things is related to any other.

As to pot, recreational use, though pushed hard in the 2010 elections, took a beating, losing by nearly 700,000 votes, or 7%.  Thus, pot remains legal under California law only for allegedly (but not actually) well-regulated "medicinal" purposes.

I think someone currently looking for what must have been a large but not very reliable barge must have missed the memo.

Judge to Gays: Drop Dead

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On October 30, 1975, the New York Daily News posted an immortal headline:  "Ford to City: Drop Dead." The story was that President Ford had vowed the previous day to veto any federal bailout of the then virtually bankrupt New York City.

Today, a New Jersey state judge, Glenn Berman, more-or-less sent the same message by "imposing" a joke of a sentence on Dharun Ravi, the former Rutgers student who secretly took a video of his roommate, Tyler Clementi, making out with another man.  Ravi later held a viewing party at which a few select friends could get their chuckles by watching the show.  When Clementi, then all of 18, found out he had been thus humiliated, he killed himself, as reported here

Judge Berman, carefully noting that Ravi "was not convicted of a hate crime, he was convicted of a bias crime, and there's a difference," handed down a sentence of 30 days, 300 hours of community service and a $10,000 fine.  The judge did note that Ravi never once apologized, and apparently neither did his parents, who gave statements at sentencing that addressed, so far as I have been able to discover, only the suffering of their son.  If Mr. Clementi or his parents or brother did any suffering, the Dharun family must have missed it.  Ravi himself sat in silence at the sentencing hearing.

How much of the 30 days Ravi will ever serve is a matter of conjecture.  If he were Lindsay Lohan, it will probably be in the neighborhood of 45 minutes.

I have my doubts about either "hate crimes" or "bias crimes."  But I have no doubts that a gross invasion of privacy and cruel indifference to the well-being of a fellow creature, with such irreversible and catastrophic results, warrants more than a stern talking to and a "sentence" Ravi could "serve" standing on his head.

The prosecutor says he will appeal.  Godspeed.

News Scan

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Study Claims 2,000 Exonerated in 23 Years: Pete Yost of the Associated Press reports a national database compiled by the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law claims more than 2,000 people have been exonerated for serious crimes in the U.S. in the past 23 years. The database compiled and analyzed really only contains information on 873 exonerations that have the most detailed evidence, with researchers saying they are aware of nearly 1,200 other exonerations, for which they don't have as much data. Nearly half of the 873 exonerations were homicide cases, and DNA evidence led to exoneration in about one-third of those 416 homicides. The researches estimates that there are nearly a million felony convictions in the U.S. a year, making that 873 exonerations out of 23 million felony convictions in the past 23 years.

Missouri Supreme Court Urged to Set Execution Dates or Explain Why Not:
Jim Salter of the Associated Press reports Missouri Attorney General Chris Koster filed a motion Thursday seeking execution dates for nine men, and asking the Missouri Supreme Court why 10 others whose execution dates had been requested previously were not yet set.  Koster has noted a change in 'political sentiment' in regards to the death penalty, causing the reluctance in moving forward in cases. However, Koster argues, "the political world doesn't affect the carrying out of these sentences until legislatures act...I have an obligation to strictly follow the letter of the law. The Supreme Court does as well."

Federal Survey Shows Drug Use in Over 60% of Males Arrested in 2011: Fred Lucas of CNS News reports over 60% of the males arrested in 2011 in 10 major cities for felony and misdemeanor crimes used drugs, according to a report released Thursday by the White House Office of National Drug Control Policy. The cities include Atlanta, Charlotte, Chicago, Denver, Indianapolis, Minneapolis, New York, Portland, Sacramento, and Washington, D.C. The drugs tested for include marijuana, cocaine, opiates, amphetamines/methamphetamine, Darvon, PCP, benzodiazepines, methadone, and barbiturates. Alcohol was not included. Marijuana was the most commonly detected drug, with an average of 45% of males arrested using it, and cocaine second at about 25% in most of the cities. 

Terminally-Ill Convicted Murderer May Be Released: Bob Egelko of the San Francisco Chronicle reports a state appeals court in San Francisco Thursday reversed a Lake County judge's decision last November to keep convicted killed Carl Wade in prison in California. In 1986, Wade shot a fellow woodcutter with whom he shared his trailer in Lake County. Wade was convicted of first-degree murder with a sentence of 32 years to life in prison. State doctors have said that Wade is terminally ill and wheel chair bound, needing continuous infusions of oxygen to breathe. Prison officials and the Board of Parole Hearings recommended Wade be released under  the state's compassionate-release law. California Attorney General Kamala Harris' office must now decide whether to release him or appeal the decision to the state Supreme Court.

California Lawmakers Consider Bills to Help Ex-Felons Find Jobs: Hannah Drier and Don Thompson of the Associated Press report three bills are being considered by California lawmakers which would make it easier for ex-convicts to find jobs after release. Two of the bills are in the Assembly, and one in the Senate. SB1506 would make possessing drugs for personal use a misdemeanor rather than a felony, and the maximum sentence reduced to one year behind bars rather than three. This would not extend to drugs possessed for sale. AB 1831 would prohibit cities and counties from requesting criminal background information on job applications. After determining initial qualification for a position, local governments could still run a background check. This would not extend to applications for law enforcement positions, nor those which involve working near children, the elderly, or the disabled. AB 2263 would allow judges to expunge the criminal records of felons who were sentenced to county jail under realignment upon completing their probation.


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No decisions or grants of certiorari in criminal cases out of the U.S. Supreme Court this morning.

In criminal-related cases, the high court decided Holder v. Martinez Gutierrez, No. 10-1542, a case related to the immigration consequences of a criminal conviction.  The court also took up the case of Clapper v. Amnesty International USA, No. 11-1025, on standing to challenge surveillance of foreign nationals outside the U.S.

Two Three habeas cases have been relisted for next week:  Pennsylvania's petition in Coleman v. Johnson, No. 11-1053, involving Jackson v. Virginia sufficiency of evidence issues, and Michigan's petition in Howes v. Walker, No. 11-1011, involving among other issues the continuing question of the interrelation of AEDPA's two provisions on state court findings of fact, 28 U.S.C. §2254 subdivisions (d)(2) and (e)(1).  Both cases also involve questions of the federal court contradicting the state court on questions of state law, generally a no-no.  Update: Kentucky's petition Parker v. Matthews, No. 11-845, has also been relisted for next week.  This will be the fifth conference for this case.  It also involves issues of Jackson v. Virginia and issues of state law.  Thanks to Ian Sonego for the tip.  Erroneous applications of Jackson by the federal habeas courts are particularly bad because a decision on this basis precludes retrial.

Also, Tony Mauro has this article at NLJ on "opinion season" at the high court.  (Free registration required.)

The strange rehearing petition in Cook v. Schriro, No. 08-7229, attempting to get around the successive petition rule by reopening a certiorari petition denied three years ago, has also been relisted for next week.
Each of the federal circuits has an annual conference.  They are held mostly so that everyone on board, the circuit judges, district judges and court personnel, gets to know one another in a relaxed setting.  Often a few prominent attorneys practicing in the circuit will be invited as well.

In a time of tight budgets, when some of these very courts are ordering prisoner releases (the Ninth Circuit in particular, in the notorious Plata case), one can reasonably question whether conferences of this sort are worth the candle.  My personal opinion is that they are.  Some of the issues courts are now called upon to resolve are so contentious, and arouse such strong feelings, that it's best for the judges to have the chance to know one another as something other than the hothead down the hall who fires off bizarre memos and hires weird clerks.

Still, one must wonder why the Ninth Circuit felt it necessary to convene in the Hyatt Regency Maui Resort and Spa.  The travel costs alone are quite steep; maybe Burbank would do better.  Plus some might view this as having a tin ear, given the recent GSA frolics in Las Vegas.  

Not every circuit is so lavish.  As the article notes, "Others aim to keep costs low by holding conferences at lower cost venues. For the Washington D.C. Circuit, that means Farmington, Penn., where they can stay in $110 per night accommodations."

(Full disclosure:  My wife and I will be attending the D.C. Circuit conference, shelling out our own expenses.)

CORRECTION:  I thank reader federalist for reminding me that the Plata decision was rendered to start with by a three-judge district court that was doing its best Ninth Circuit imitation, but not the Ninth Circuit itself.

UPDATE:  Roll Call notes that a few prominent senators have also taken an interest in the Ninth Circuit's Hawaii conference, and have some questions for Chief Judge Alex Kozinski.

Justice at Last

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The convicted murderer of 270 lost souls, Abdel Baset al-Megrahi, has died, according to news reports. The death of a human being is never a thing to cheer, but this comes as close as it gets.    al-Megrahi was the Libyan Intelligence chief who plotted the 1988 bombing of Pan Am Flight 103 over Lockerbie, Scotland, killing 259 people in the air and another 11 on the ground.  

The al-Megrahi case was a scandal from beginning to end.  If ever a person earned the death penalty, this was the guy.  But Scotland is too "civilized" to impose the punishment due, and sentenced him (in 2001, 13 years after his crime) to life imprisonment.  Only "life imprisonment" meant no such thing, as a crooked and hidden deal resulted in al-Megrahi's release eight years later, in August 2009, on the grounds that his death from cancer was imminent.   "Imminent" turned out to be the better part of three years. 

Compassion, dontcha know.  

It's unfair, sort of, to blame the usual rote and mindless pleas for "compassion" for the disgrace this episode turned into.  But it's instructive to remember that compassion was trotted out as pretext for the skullduggery actually afoot, and that the whole "life imprisonment" gig was a lie.  

Compassion per se is a virtue.  Compassion as a refuge for cruelty without consequence is worse than appalling.  We need to learn the lessons of the al-Megrahi scandal, and remember, next time, that compassion belongs with the victims, not the cut-throats.

Brandy Marie Arreola is 21 today, but there is no party.  She lies in a coma in San Joaquin General Hospital in California.  Jordan Guinn has this story in the Stockton Record.  The subhead of the story reads, "Sitting beside a hospital bed, Diana Muñoz focuses on love and hope. In private, she rages at the man and law she says put her daughter there."

"Hi, baby, what do you want momma to get you for your birthday?" Muñoz said as she stroked Arreola's raven hair and kissed her forehead during a visit Tuesday evening. "I love you. I'm here."

When Muñoz asks her daughter if she can hear her, the only response is the automated clicks and hisses of the machine removing fluid from Arreola's lungs.

Muñoz cycles from grief for her daughter to rage at the suspect in custody to contempt for California's prison realignment plan, which she believes also is to blame for the attack.

A Dubious DP Study in Delaware

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Sean O'Sullivan has this story in the News-Journal.

The study includes the usual bleating about the fact that black perpetrator-white victim crimes have a higher rate of death sentences, and the authors can't think of any reason but racism to explain that.  Actually, Joseph Katz documented the legitimate reason for that statistical quirk decades ago in the McCleskey litigation.  The social reality in America is that black perpetrator-white victim crimes are far more likely to be predatory crimes -- crimes where the victim is unknown to the perpetrator and selected simply because he or she has something the perpetrator wants -- money, a car, or in sex crimes the victim herself.  Those are the crimes the death penalty is more likely to be imposed for, and rightly so. 

Black victim-black perpetrator murders are more likely to be crimes in the heat of passion arising from arguments between people who know each other.  Also, a large number of black-victim crimes, regrettably, arise from gang rivalries.  One gangster killing another is less likely to result in a death sentence, and rightly so.  In addition, gang-related crimes are more difficult to prosecute.  Witnesses are less likely to cooperate and more likely to be impeachable with criminal records of their own.

The absence of any race-of-defendant effect, documented in study after study done by the opponents themselves, proves that racial discrimination is not the reason for disparities in the statistics.  If racism were the casual factor, it would show up most clearly in this effect, but the effect is not there.  We need to look elsewhere for the explanations.  Studiers whose motive is simply to attack the death penalty don't want to look elsewhere, though.

Repeat Offenders in Ohio

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Theodore Decker and Alan Johnson report in the Columbus Dispatch:

Backed by a new study showing that a small group of repeat violent offenders is responsible for a third of all violent-crime convictions, Attorney General Mike DeWine will propose legislation to keep such felons behind bars much longer.
*                                        *                                      *

The study was done at DeWine's request by Deanna L. Wilkinson, an associate professor in the Department of Human Development and Family Science at Ohio State University. Wilkinson tapped crime statistics from the Bureau of Criminal Investigation database and the Ohio Department of Rehabilitation and Correction for 1974 to 2010.

She found that 230,288 people, or 2.62 percent of all Ohioans, were charged with violent felony offenses in Ohio over 36 years.

People convicted of three or more violent offenses accounted for less than 1 percent of the population but 33 percent of all violent-crime convictions over nearly four decades, Wilkinson's study found.

It will be interesting to see what kind of "three strikes" law DeWine comes up with based on research.  Regrettably, California's three strikes law had to be rammed through in the wake of a horrific crime.  That's all you can do when your legislature is run by the thug-huggers.

Remorse and Restitution

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Unlike the sociopaths discussed in a prior post, most regular folks do feel guilt over the out-of-character offenses they commit.  In Valley Springs, California, 13-year-old Jack Hayre shoplifted a box of .22 cartridges from a store.  He felt bad about it, though, and later bought another box to return and make restitution.

Eighty-three years later.

Dana Nichols has this story in the Stockton Record.

News Scan

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Virginia Governor Signs Voter ID Law: Steve Contorno of The Washington Examiner reports Virgina Governor Bob McDonnell on Friday signed bills that will require those who don't bring a valid form of identification to the polls to fill out a provisional ballot, and return to the polling place with an ID or send it in before their vote can be counted. He also issued an executive order to give all eligible Virginia voters a voter card. Before, voters who did not have an ID could sign an affidavit swearing under penalty of perjury that they are who they claim to be.

Grand Jury Says Realignment Making Jail Overcrowding Worse: Patti Piburn of KCOY-TV reports the San Luis Obispo County Grand Jury says realignment is contributing to over-crowding at the county jail. The Grand Jury's Annual Jail Inspection report, released today, says realignment adding to an already crowded situation is one of its main concerns. The report says the crowded conditions at the county jail have resulted in a reduction of inmate services. The report also says the jail doesn't have enough housing units, beds, and blankets, especially for the women housed there, and that many inmates have to sleep on plastic beds on the floor.

AG Says Texas Prison Officials Must Disclose Execution Drug Details: Michael Graczyk of the Associated Press reports the state attorney general's office ruled on Thursday Texas prison officials have to disclose information about the suppliers of the lethal drugs used for executions and how much of the drugs the Department of Criminal Justice currently has. The opinion came in response to public information requests filed by the Austin American-Statesman and the British newspaper The Guardian. Under state guidelines, the prison agency has 30 days to comply, or to challenge the opinion in court.

Anatomy of a Non-Epidemic

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Psychiatrist E. Fuller Torrey has this review of Robert Whitaker's popular book, Anatomy of an Epidemic: Magic Bullets, Psychiatric Drugs, and the Astonishing Rise of Mental Illness in America, which begins:

In 2010 Robert Whitaker published Anatomy of an Epidemic: Magic Bullets, Psychiatric Drugs, and the Astonishing Rise of Mental Illness in America (New York: Crown Publishers). The book has circulated widely, in large measure due to Marcia Angell's surprisingly uncritical review of it in the New York Review of Books (Angell, 2011). In its 396 pages Whitaker got many things right, including criticism of the broad DSM diagnostic criteria for mental illnesses; the reckless prescribing of psychiatric drugs for children; and the prostitution of many psychiatric leaders for the pharmaceutical industry. Indeed, regarding the last, Whitaker may have understated the problem, based on recently released court documents detailing how the pharmaceutical industry secretly controlled the Texas Medication Algorithm Project. 

When it came to schizophrenia and antipsychotic drugs, however, Whitaker got it mostly wrong.

The review is well worth reading for those interested in the topic of schizophrenia, psychopharmacology and outcomes. 
Clayton Cramer has this article in the current issue of Engage.

Deinstitutionalization played a substantial role in the dramatic increase in violent crime rates in America in the 1970s and 1980s. People who might have been hospitalized in 1950 or 1960 when they first exhibited evidence of serious mental illness today remain at large until they commit a serious felony. The criminal justice system then usually sends these mentally ill offenders to prison, not a mental hospital.

The result is a system that is bad for the mentally ill: prisons, in spite of their best efforts, are still primarily institutions of punishment, and are inferior places to treat the mentally ill. It is a bad system for felons without mental illness problems, who are sharing facilities with the mentally ill, and are understandably afraid of their unpredictability. It is a bad system for the victims of those mentally ill felons, because in 1960, a mentally ill person was much more likely to have been hospitalized before victimizing someone else. It is a bad system for the taxpayers, who foot the bill for expensive trials and long prison sentences for the headline tragedies, and hundreds of thousands of minor offenses, instead of the much less expensive commitment procedures and perhaps shorter terms of treatment.

Deinstitutionalization of the mentally ill was one of the truly remarkable public policy decisions of the 1960s and 1970s, and yet its full impact is barely recognized by most of the public. Partly this was because the changes did not happen overnight, but took place state-by-state over two decades, with no single national event. While homelessness received enormous public attention in the early 1980s, the news media's reluctance to acknowledge the role that deinstitutionalization played in this human tragedy meant that the public safety connection was generally invisible to the general public. The solution remains unclear, but recognizing the consequences of deinstitutionalization is the first step.

Michael Graczyk of AP reports on two more people who are not convinced by Liebman's claim that the executed Carlos DeLuna was innocent.  (See prior post here.)  The two are the lawyers who tried the case on both sides, the prosecutor and DeLuna's own lawyer.
Article II, section 4 of the California Constitution provides:  "The Legislature shall ... provide for the disqualification of electors while mentally incompetent or imprisoned or on parole for the conviction of a felony."

Clear enough, right?  Traditionally, people sentenced to imprisonment for a felony went to state prison, while those sentenced to imprisonment for misdemeanors went to county jail.  With California's "realignment" fiasco, the lower level felons are going to county jail, but they are obviously still "imprisoned ... for conviction of a felony."

Well, it wasn't obvious to the ACLU and various other groups who thought they saw an opportunity to increase the number of people who will reliably vote for soft-on-crime candidates.  They asked the Court of Appeal for the First District (SF region) to order the Secretary of State to let the "realigned" felons vote.  They urged the court not to interpret the Constitution and laws "literally," i.e., to mean what they plainly say.

The court didn't buy it.  Yesterday it summarily dismissed the case, All of Us or None v. Bowen, A134775.

Is the Exclusionary Rule Dead?

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No, says Indiana University law professor Craig Bradley in an article in the current issue of the Journal of Criminal Law and Criminology.

This Article reviews Hudson, Herring, and Davis, as well as the court of appeals cases that have applied Herring. It suggests that the Supreme Court has not eliminated the exclusionary rule and argues that the rule should still be applied in cases of "substantial" as opposed to "simple isolated" negligence--that is, when negligence has substantially interfered with a suspect's privacy rights, such as through an illegal arrest or an illegal search of his car or house. It notes that none of the three cases decided by the Court involved such a substantial intrusion. It concludes, through a careful reading of the three cases, as well as examination of successful defense appeals in the courts of appeals, that the exclusionary rule, though limited, is neither dead nor unacceptably constrained.
The "show-me" state is poised to show the rest of the country how to get around Lundbeck's conspiracy to choke off executions via restraint of trade in pentobarbital.  Mike Lear reports at Missourinet:

The state Department of Corrections has approved a new drug for use in lethal injections to carry out the death penalty.

In a statement, the Department says it has adopted a one-drug protocol [download PDF] using propofol, otherwise known as Diprovan. This replaces a three-drug method used previously.

The state had to look for a new method for lethal injections after the only company that made one of the three drugs used in that procedure stopped producing it. Sodium thiopental was used to put the subject of an execution to sleep before two other drugs were injected to stop breathing and the pumping of the heart.

The Missouri Attorney General has asked the Missouri Supreme Court to set execution dates for nine murderers.  Release here.  Motion is here.  With the ten already requested, that is a total of nineteen.

Thanks to Carol Angelbeck for the tip.

AP has a story on a release of evidence in the Martin/Zimmerman case.  Oddly, the article emphasizes that Martin had THC in his system, which strikes me as one of the less important facts.  (If he had been using a drug that tends to make people violent, that would be more salient, but he wasn't.)

More important is the statement of a witness to the fight.  Also, there are some unflattering statements of two acquaintances of Zimmerman.

Update:  This post originally linked to an AP story on the WaPo site, but now the link goes to the WaPo's own story by Sari Horwitz and Stephanie McCrummen.  On page 2 is the disappointing answer to the question I've been asking:

A police report also concluded that the voice screaming in the background of a recorded 911 call placed by a resident was Zimmerman, "who was apparently yelling for help as he was being battered by Trayvon Martin."

But an FBI audio analysis of that crucial call could not determine whether it was Martin or Zimmerman who was screaming, because of the poor quality of the recording and the "extreme emotional state" of the person screaming, an FBI report said.

A new AP story by Kyle Hightower and Mike Schneider is here, emphasizing that the evidence is "a mixed bag."

News Scan

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Death Warrant Signed for Idaho Inmate: Rebecca Boone of the Associated Press reports Judge Jon Shindurling on Thursday signed the death warrant for Idaho inmate Richard Albert Leavitt after the U.S. Supreme Court on Monday declined to consider Leavitt's appeal. The death warrant orders Leavitt to be executed by lethal injection within the next 30 days, on June 12. Leavitt was convicted in the brutal 1984 murder of 31-year-old Danette Elg. Prosecutors said Leavitt repeatedly stabbed her with force, then cut out her sexual organs. Leavitt was one of four Idaho death row inmates to sue the state in April over its new execution procedures. The lawsuit is still active.

Justice Department Announces New Regulations to Stop Prison Rape: Jesse J. Holland of the Associated Press reports the Justice Department on Thursday ordered federal, state, and local officials to adopt new zero tolerance regulations for prison rape. Agencies with confinement facilities, like the Department of Homeland Security, are required to have a similar protocol in place by this time next year. Federal prisons are immediately bound to the new regulations. States that don't comply could lose a percentage of their Justice Department prison money.

House to Vote on Changes to Defense Authorization Bill: The Wall Street Journal has this piece about the upcoming vote in the House on a measure that would change policies put in place since 9/11. According to the article, what this means is that if al Qaeda operatives "happen to make it to the U.S., they will have to be handled like your neighborhood burglar." The article says this comes at a time when "political battles over terrorist detention were finally calming down," and says it's a "misguided wing of the tea party [that] is giving political cover to the left to revive this fight."

Read more here:

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There is a lot of buzz about a case from Corpus Christi, Texas.  Lifelong anti-death-penalty advocate James Liebman claims he has proven that Carlos DeLuna is innocent of the crime for which he was executed.  As with the Willingham case, the view from the local scene is very different from what you read in national media.  Michelle Villareal has this story in the Corpus Christi Caller Times.

CORPUS CHRISTI -- A study released Tuesday may have sparked debate about the death penalty but those closest to the case say researchers aren't raising new questions about the 1983 capital murder case and execution.

The 400-page study, "Los Tocayos Carlos," in the Columbia Human Rights Law Review argues that Carlos DeLuna wrongfully was executed in 1989.

DeLuna was convicted of fatally stabbing Wanda Lopez on Feb. 4, 1983, during a robbery of a Corpus Christi convenience store. He testified at his trial, claiming a man named Carlos Hernandez killed Lopez.

The Columbia study asserts that Hernandez committed the crime and DeLuna was innocent.

Paul Rivera, a Corpus Christi police investigator who transported DeLuna between city and county jails, said the study's researchers asked him years ago to reread the DeLuna case.

Rivera said he took his time combing through the investigation reports and transcripts. In the end, he drew the same conclusion.

"I know exactly what happened," he said. "DeLuna stabbed Wanda Lopez when she was on the phone and she was screaming for help."

Rivera, who investigated more than 200 murders in Corpus Christi, said at least nine of those people were on death row and no one questioned his investigations or methods before DeLuna's case.

DeLuna received the appropriate punishment, he said.

How Appealing

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Tony Mauro interviews Howard Bashman at NLJ (registration required).

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Stay of Execution Issued for Arizona Inmate: Michael Kiefer of Arizona Republic News reports the Arizona Supreme Court late on Tuesday stayed today's scheduled execution of Samuel Lopez, who was sentenced to death in 1987. Lopez was convicted of first-degree murder, kidnapping, two counts of sexual assault, and burglary in the 1986 killing of 59-year-old Estefana Holmes. The victim was found gagged and blindfolded in her apartment. She had been raped, sodomized, and stabbed more than 20 times before Lopez slit her throat. A new execution date was set for June 27 to allow issues raised about recent appointments to the state's clemency board to be worked out. 

Gang Member Convicted of Murder After DNA Match: Richard Winton of the Los Angeles Times reports Kevin Bernard Smith Jr., 36, a Rolling 20s gang member whose moniker is "Jazzy," was convicted this week in the 1994 murder of a man and attempted murder of the man's wife after DNA linked him to the crime scene. Smith was convicted of first-degree murder with the special circumstance allegations that the murder was committed during the course of a burglary and robbery in the 1994 killing of 73-year-old Rupert "Rudy" Thompson. Smith was also convicted of the premeditated attempted murder of Thompson's wife. Two bloodstains from the crime scene were matched to Smith through the state DNA database. At the time, Smith was serving a prison sentence in Mississippi on an unrelated drug sales charge.

Judge Grants Class Action Status to NY Frisk Suit: Larry Neumeister of the Associated Press reports U.S. District Judge Shira Scheindlin in Manhattan on Wednesday granted class action status to a 2008 lawsuit that accuses the NYPD of discriminating against blacks and Hispanics with its stop-and-frisk policies. The lawsuit claims the police department purposefully concentrated its stop-and-frisk activity on black and Hispanic neighborhoods based on their racial composition, and that officers are pressured to meet quotas as part of the program. Mayor Michael Bloomberg said, "Nobody should ask [Police Commissioner] Ray Kelly to apologize -- he's not going to and neither am I -- for saving 5,600 lives. And I think it's fair to say that stop, question and frisk has been an essential part of the NYPD's work; it's taken more than 6,000 guns off the streets in the last eight years, and this year we are on pace to have the lowest number of murders in recorded history. ... We're not going to do anything that undermines that trend and threatens public safety."
When a high profile defendant is arrested in some scandal and, after a lifetime of craving and getting publicity, won't say beans to the media, what do we hear from defense counsel?

"We are not going to try this case in the press.  The Constitution provides for trials so the facts can come out through legal process.  It's wrong to draw any conclusions before my client has had his day in court.  We eagerly look forward to our opportunity to tell the whole story in the proper setting; don't be misled by this bunch of half-truths the government has loaded into the indictment."

And then what happens?

We found out today in the John Edwards trial.  Mr. Edwards, it should be remembered, is a multi-millionaire former senator and the 2004 Democratic candidate for Vice President.  He made his fortune as the Golden Boy trial lawyer of North Carolina.  Few, it was said, could speak to a jury as persuasively as he.

This is what he had to say today.

Brown Backs Off Closing DJJ

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Now here's something different.  California Governor Jerry Brown comes up with a plan to save the state money, and people who actually understand how things work are horrified and say it will be a disaster.  Okay, nothing new there.  What's different this time is that Brown actually listened and backed down.

Some years back, California had a huge number of juveniles in the state Department of Juvenile Justice.  That number has been dramatically reduced, sending most of them to local facilities instead.  But what do you do with the very worst?

Karen de Sa reports in the San Jose Mercury-News that in the Governor's original budget, he proposed closing the DJJ entirely.  It is now wrong-sized for the number of wards it has, with a staggering cost of $200,000 each. Most of the usual suspects applauded, but persons of sense were horrified.

Counties, already struggling with an influx of adult prisoners shifted to their watch under other state budget reforms, simply couldn't handle these most-difficult youths, they argued. Prosecutors warned that without state-run youth lockups, more juveniles would be sent to adult prisons.

"Often the ones going to DJJ are the most significant risk to public safety," said Karen Pank, executive director of the Chief Probation Officers of California.

In the "May revise" of the budget, the governor has backed off.
CJLF's single-subject suit against the death penalty repeal initiative got some press coverage.  Howard Mintz has this story for the San Jose Mercury News.  David Siders has this post at the SacBee.  AP has this story.

The initiative supporters, naturally, are adamant that their initiative has only one subject, but they don't seem to have coordinated with each other before talking with the press.

From the Bee:  "Former San Quentin Warden Jeanne Woodford said in a prepared statement that the ballot measure is 'about one thing and one thing only: ensuring that those who commit the most serious crimes in our state are caught and held accountable. Every aspect of the initiative is connected to that goal.' "

From AP:  "Backers of the proposition say the measure is solely about abolishing the death penalty."


Read more here:

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Repeat Offender Sentenced to 6 Years Serves 81 Days: KGET TV 17 News reports Israel Iglesias, a six-time DUI offender, was sentenced to 6 years in jail in Kern County, but was released after serving just 81 days. "It's a break I guess, and I'm taking full advantage of that," said Iglesias. Chief Deputy Kevin Zimmerman of the Kern County Sheriff's Department said they try to save beds for the most serious offenders, and Iglesias was released early because he is considered a non-violent, non-serious, and non-sexual offender. "Since my 18th birthday I've been in and out of prison every single year for one thing or another," Iglesias said. The Kern County Superior Court website shows Iglesias has had 23 different criminal cases, and has been through at least three substance abuse programs in the last four years.

Stay of Execution Issued in Texas: Michael Graczyk of the Associated Press reports the Texas Court of Criminal Appeals on Monday gave a reprieve to Steven Staley, who was scheduled to be executed by lethal injection Wednesday for the 1989 shooting death of a restaurant manager during a botched robbery. Staley, who escaped from a halfway house in Denver, had implicated himself in the slaying in a written statement. In his appeal to the court, Staley's attorney said he was only deemed competent for execution because a state judge had ordered Staley be given drugs to make him competent. In its 8-1 ruling, the court said it had determined that Staley's execution should be halted "pending further order by this court," and gave no other reason.

Mississippi Requests 3 Executions on Consecutive Days: The Associated Press reports Mississippi Attorney General Jim Hood's office on Monday asked the state Supreme Court to set execution dates for three men on consecutive days in June after the U.S. Supreme Court refused to hear the appeals of Henry Curtis Jackson Jr., Gary Carl Simmons Jr. and Jan Michael Brawner. Tara Booth, a spokeswoman for the Mississippi Department of Corrections, said the department is capable of conducting three consecutive executions. Mississippi state law says that the state Supreme Court must set an execution date within 30 days after appeals are exhausted. 

They are not like us

One of the most persistent errors of people who set out to reform criminal law is the idea that the people who have committed the most horrible crimes are just like us down deep.  The Quakers created the "penitentiary" way back in the late eighteenth century believing that criminals, if confined, would be penitent and reflect deeply and remorsefully on what they had done.  After all, that is what the good Quakers would do if they had deeply sinned.

Well, they aren't like us, and they don't reflect deeply and repent.  John Christoffersen has this story for AP from Connecticut:

The Connecticut killer who once called himself one of the most hated men in America said in a death row interview that he tries not to think about the murder of a suburban mother and her two daughters, suffers no nightmares and has nothing to say to the only survivor of the brutal 2007 attack.

Joshua Komisarjevsky told The Associated Press in his first interview since he was convicted that there isn't anything he could say to Dr. William Petit "that will restore the lives lost."

He also declined an opportunity to express remorse for the killings.

"I guess my reaction is not the reaction society expected," Komisarjevsky said.

It's exactly the reaction I expected.

News Scan

Crime Down Under New York Frisk Policy:  The widely criticized "stop, question and frisk" policy which has been implemented in New York over the past several months has been credited for increasing the confiscation of illegal guns by 31%  and contributing to a 21% drop in the homicide rate so far this year.  A CNN story reports that everyone is not happy with the policy.  A spokesperson for the New York Civil Liberties Union called the practice "unlawful and racially biased."  This in response to police figures showing that of those stopped and frisked, 93% were males, 54% were African American, 33% Hispanics, 9% while and 3% were Asian.  The Police Commissioner noted that 90% of murder victims last year were African American or Hispanic. 

Mexican Drug Gangs Continue Bloody War:  Luis Ochoa of Reuters reports that the brutal Mexican drug gang Zetas is claiming responsibility of 49 headless corpses discovered Sunday along a highway outside of Monterrey, the country's most affluent city.  The hands and feet of the victims has also been cut off presumably to make identification more difficult.  Last week 18 decapitated bodies were found near Guadalajara, Mexico's second largest city.  A week earlier the bodies of 9 people were found hanging from a bridge and 14 others found dismembered in Nuevo Laredo, just across the border from Laredo, Texas.  Security analyst Alberto Islas credits much of the recent violence to a fight between two drug gangs over control of cocaine from South America.  "They're fighting across the whole country with complete impunity," he said. 
CJLF has filed a challenge to the "Savings, Accountability, and Full Enforcement for California Act" initiative.

What is that, you ask?  Given the title, you will probably be surprised to learn it is the initiative to repeal the death penalty.  And that is a prominent feature of our argument.

The California Constitution provides, "An initiative measure embracing more than one subject may not be submitted to the electors...."  This initiative combines death penalty repeal with an unrelated provision to transfer $100M from the state general fund to a special fund under the control of the Attorney General.  Neither the proponents nor the Attorney General have been able to come up with a title that embraces both provisions, a strong indication they are separate subjects within the meaning of the constitutional provision.

The lead petitioner is Phyllis Loya.  Her son, Officer Larry Lasater, was murdered in the line of duty in 2005.  One of the perpetrators is on death row.

Our petition in Loya v. Bowen, C071040, is here.

SCOTUS Order and Opinion Day

The US Supreme Court issued only one opinion today, in a tax/bankruptcy case, Hall v. United States.

The orders list had one vacate and remand "in light of the position asserted by the Solicitor General" in Garcia v. United States, 11-8728.  The Fifth Circuit's unpublished memorandum opinion is here.  The issue has to do with giving a defendant a longer sentence for the purpose of rehabilitating him, related to the issue in Tapia v. United States, 131 S. Ct. 2382 (2011).

No other grants of certiorari.  All of the cases listed as capital on the Cert Pool's list were denied.

Is Gay Bullying a Crime?

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This blog is not about social issues, and I'm not going to touch with the proverbial ten foot pole the swirling controversy about gay marriage and President Obama's recent change of position.  But issues related to homosexuality are much in the news, from gay bullying in middle school to the notorious case of a Rutgers student, Dharun Ravi, who was convicted on 24 (of 35) counts of secretly recording his roommate erotically kissing another male.  Ravi thereafter had a "viewing party," inviting a few buddies over to laugh at his lovelorn roommate.  The roommate, Tyler Clementi, didn't take it so well.  Overcome by the shame and humiliation Ravi intended to produce, he killed himself.

It's highly unlikely that Ravi could have anticipated such a horrible outcome  --  but that's not the point.  The invasion of privacy and the go-to-hell attitude  --  anywhere from mind-numbing callousness to outright malice  --  is recognizably criminal.  Ravi is facing up to ten years, but the prosecutor has not asked for that much, saying merely that Ravi deserves a period of incarceration.

Some on the defense side have said that, in all likelihood, no criminal case would have been brought at all absent the suicide.  I'm in no position to evaluate that claim, as I do not know the local prosecution standards.  One may assume it's true, and still believe, as I do, that when you laughingly assume the risk of such gratuitous and cruel damage to a fellow creature, you assume the risk of jail for yourself.  And if that's where Ravi winds up, no one should lose any sleep.  

Sometimes a Little Math Helps

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Christopher Glazek has this piece over at n+1 that makes this astounding claim:

Crime has not fallen in the United States--it's been shifted. Just as Wall Street connived with regulators to transfer financial risk from spendthrift banks to careless home buyers, so have federal, state, and local legislatures succeeded in rerouting criminal risk away from urban centers and concentrating it in a proliferating web of hyperhells. The statistics touting the country's crime-reduction miracle, when juxtaposed with those documenting the quantity of rape and assault that takes place each year within the correctional system, are exposed as not merely a lie, or even a damn lie--but as the single most shameful lie in American life.

Now if Mr. Glazek is willing to limit his claim to the prevalence of sexual assault, it might be credible.  It is easily conceivable that sexual assault is both frequent and under-reported in correctional facilities.  But his claim is broader:  Crime has not fallen despite large increases in incarceration - rather it's merely been transferred to the world of "hyperhell" prison cells.

But the data simply does not support this assertion.

In 1991, there were 24,703 homicides in the United States.  In 1999, there were 15,522 - a decline of 9,181 (pdf).  In 2009 there were 23 homicides in the nation's jails and 55 in the nation's state prisons for a grand total of 78 (pdf).  Additionally, the Bureau of Justice Statistics reports that between 2001 and 2007 the jail inmate mortality rate declined by 13%.  

No serious person could deny that crime - including violent crime - occurs in correctional facilities and that it is wrong and abhorrent.  But the notion that the crime rate has not fallen in the United States is simply false and the data backs that assertion up quite easily. 
Rudy Giuliani has this article in the City Journal.

Wilson's idea [Broken Windows, with George Kelling] was a revelation and a reversal of the conventional wisdom up to that point. The dominant liberal theories told us that if we provided more social services to the poor, perhaps crime would get better. But Wilson suggested that instead we turn our attention to providing a better and cleaner place to live, raising the expectations of the community by improving the quality of life--and that then crime would decline.
And it did.

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Human Trafficking and Sex Offender Initiative Qualifies for CA Ballot: Torey Van Oot of The Sacramento Bee reports a California initiative titled "Human Trafficking. Penalties. Sex Offender Registration." has qualified for the November ballot. The initiative increases penalties for human trafficking violations, and requires sex offenders, which includes those convicted of human trafficking crimes, to report information about their online accounts. The full text of the initiative is here.

DNA Links Serial Killer to 5 More Deaths: Tom Hallman Jr. of The Oregonian reports Randy Woodfield, dubbed the I-5 Killer, has been linked for five more murders - three in the Portland area and two in Shasta County in California. Woodfield preyed on people in towns along a 500-mile stretch of Interstate 5 in the late 1970s and early 1980s. He was sentenced to life in prison in Oregon in 1981 for the execution-style murder of one woman and the attempted murder of another. In 2001, Woodfield's DNA was linked to the 1980 murder of a 29-year-old woman. New DNA technology used by the Oregon State Police Crime Lab called Magnetic Bead Extraction linked Woodfield to two more Portland murders in 2009. Woodfield was also linked to the murder of a teenager in Oregon, and the slaying of a mother and her 14-year-old daughter in Shasta County. However, a joint decision was made among multiple district attorney's offices to not prosecute Woodfield. Rod Underhill, a senior deputy at the Multnomah County District Attorney's Office, said it made no sense to spend resources prosecuting a man already sentenced to life in prison.

Nail Scrapings Tie Killer to Third Murder: Helen Freund and C.J. Sullivan of the New York Post report James David Martin was arraigned this week in Bronx Criminal Court on murder, rape, and sodomy charges for the strangling of a 14-year-old girl in 1998. Martin is currently serving a prison sentence for strangling his live-in girlfriend and leaving her body in a shopping-center dumpster. Fifteen years before, at age 17, he choked to death a 15-year-old boy at his high school to steal the victim's shoes. DNA collected from the victim's nail scrapings retrieved from evidence storage linked Martin to the crime. "He just turned 40," the victim's foster mom said of Martin. "And he already has killed three people. They need to bring the electric chair back and fry him."

CA Man Already on Death Row Receives Another Death Sentence: Bill Hetherman of City News Service reports Raymond Oscar Butler, already on death row in California for shooting two students in the back of the head in a grocery store parking lot in 1994, was sentenced to death again by Los Angeles Superior Court Judge Ronald Coen for killing a fellow jail inmate while awaiting trial for the double slaying. This was also the second time Butler was sentenced to death for the stabbing death of Tyrone Flemming. His original conviction and death sentenced for Flemming's murder was reversed by the state's highest court, which ruled a judge had erroneously decided Butler could not act as his own attorney. He represented himself during his retrial. Deputy District Attorney David Barkhurst said Butler has had multiple run-ins with fellow inmate and has had a number of weapons recovered from his cell. He has also unleashed containers with human waste at prison guards.

Read more here:

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Justice Department Sues Arpaio: Walter Berry of the Associated Press reports the U.S. Justice Department filed a lawsuit Thursday against Arizona Sheriff Joe Arpaio and his Maricopa County office over allegations of civil rights violations and racial profiling. Federal officials said in the 18-year history of the DOJ's police reform efforts, only once before has the agency filed a lawsuit against a police department that they failed to reach an agreement with. The lawsuit means a federal judge will now rule on the matter.

Condemned California Serial Killer to Face Murder Charges in New York: Jennifer Peltz of the Associated Press reports the California Supreme Court on Wednesday cleared the way for death row inmate Rodney Alcala to be extradited to New York to face charges in two 1970s killings. Alcala was sentenced to death for strangling four women and a 12-year-old girl in Southern California - killings that prosecutors say were accompanied by sexual abuse and torture. The Manhattan district attorney has charged Alcala with murdering two 23-year-old women. A conviction in New York wouldn't affect Alcala's death sentence in California, but a conviction would be insurance in case Alcala won an appeal in his death sentence case.

Arizona Death Row Inmate Sues Governor: Bob Ortega of The Republic reports attorneys for Samuel Villegas Lopez, who is set for execution in Arizona next week, has sued Arizona Governor Jan Brewer over three newly appointed members to the state's Board of Executive Clemency. Lopez claims that Gov. Brewer's appointees guarantee that clemency will never be granted in any controversial or high-profile case.  Lopez was sentenced to death in 1987 for the murder of Estefana Holmes, whom he raped, sodomized and stabbed than 20 times before slitting her throat. If Superior Court Judge Joseph Kreamer grants the petition, the board's actions in more than 60 other cases it has considered could be nullified, and Brewer would be forced to start the appointment process over again, causing significant delays in other clemency hearings. The petition asked Kreamer to send a request for a stay of execution to the Arizona Supreme Court.

Dear Governor Chafee...

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Never one to abjure taxpayer financed grandstanding, Gov. Lincoln Chafee apparently plans to seek Supreme Court review of the First Circuit's en banc decision that Rhode Island must hand over to federal authorities Jason Pleau, the fellow accused of gunning down a gas station manager in 2010.  Chafee had previously refused to do so on the theory, I guess, that Rhode Island's "states rights" ought to be used to make the state over into a sanctuary for murder.  (The federal prosecutor may seek the death penalty, which is not available in Rhode Island). 

What an odd position for a state that fought for the Union in the Civil War.

Not everyone is happy.  The victim's sister makes the following plea:

Dear Governor Chafee,

My brother was murdered by Jason Pleau.

Our family is hoping for justice for David. It is time for you to stop wasting taxpayers money on this attempt to protect a murderer from being properly prosecuted by the federal system.

It has not been decided whether he will or will not receive the death penalty.

You are obstructing justice.

If your son Caleb was shot in the head, in broad daylight while doing his job you would be horrified, as we were!

We were relieved when all of these thugs were caught. Never in our wildest dreams did we think that the Governor of our state, would get on his own bandwagon to protect a career criminal! You have made a terrible situation much worse for our family! We should have never had to go through all this! He would have been arraigned a long time ago, if it wasn't for your agenda.

Please stop this now! Enough is enough.


Deborah Smith

Hat tip to Adamakis.
Rachel Weiner has this post at the WaPo's political blog.  It was so wild I had to double-check to make sure I wasn't actually reading The Onion.

Keith Judd, who is serving a 17 1/2-year prison sentence for extortion at the Federal Correctional Institution in Texarkana, Texas, took 41 percent of the vote in West Virginia's Democratic primary Tuesday night -- 72,000 votes to Obama's 106,000. He would qualify for convention delegates, if anyone had signed up to be a Judd delegate. (No one did.)

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Twitter Fights Prosecutors' Attempt to Access Occupy Protester's Tweets: The Associated Press reports Twitter filed court papers Monday asking a judge to dismiss a subpoena in which the Manhattan district attorney ordered the company to produce now-deleted tweets posted by Malcolm Harris, who was arrested during an Occupy Wall Street protest last fall. Prosecutors say the tweets might show whether Harris was aware that police had ordered protesters not to march across the Brooklyn Bridge. The argument is whether Twitter or Harris owns the posted tweets.

Appeals Court Rules Illegal Immigrants Can't Have Guns: The Associated Press reports the 10th U.S. Circuit Court of Appeals ruled Monday that illegal immigrants don't have a right to own firearms, and have only limited protection, under the U.S. Constitution. The ruling came in the case of Emmanuel Huitron-Guizar of Wyoming, who pleaded guilty to being an illegal immigrant in possession of firearms and was ordered held by immigration authorities. An attorney for Huitron-Guizar appealed the case, saying illegal immigrants should have the same rights to buy a gun for hunting and protection as U.S. citizens, and that illegal immigrants were not specifically excluded from possessing firearms like felons and those who are mentally ill. Huitron-Guizar's says he plans to appeal to the U.S. Supreme Court.

Changes to Canadian Prison Policies Announced: Carys Mills of The Globe and Mail reports Canada's Public Safety Minister, Vic Toews, announced on Wednesday new prison measures that he says will save a total of $10 million a year. Among the changes are charging some inmates more for their stay in prison, eliminating "incentive pay" for meeting production quotas for certain inmate jobs, and ensuring offenders pay for their phone calls.

Sheriff Says Realignment is Straining Santa Barbara County: Lara Cooper of Noozhawk reports Santa Barbara County Sheriff Bill Brown and Probation Chief Beverly Taylor told their Board of Supervisors Tuesday the county has seen 24 percent more state prisoners than originally expected, and the department is continuously releasing offenders early due to lack of space in the county's jail. With AB109, "we end up getting people that cannot be released," Brown said. "We're running out of people who are good bets to push out early." In March, one man was given a sentence of 23 years to be served in the Santa Barbara County Jail.  

The Senate has confirmed District Judge Jacqueline Nguyen of Los Angeles for elevation to the Court of Appeals for the Ninth Circuit.  Todd Ruger has this post at BLT.

Because the Ninth Circuit's dismal record on habeas corpus, especially in capital cases, is a major problem, we at CJLF are particularly interested in a nominee's views on this subject.  I checked Judge Nguyen's decisions in the area when she was first nominated.  They all appeared to be routine denials of meritless claims.  Not terribly enlightening, but not a cause for concern either.

The Ninth is better than it used to be.  The judges appointed by President Clinton have -- on average with notable exceptions -- been better than those appointed by President Carter.  President Bush made generally good appointments though not uniformly so.  It's too early to say anything about President Obama's appointments as a whole.  Let us hope that we make further progress toward bringing this court out of the wilderness and back to the mainstream.

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Border Patrol Announces New National Strategy: Elliot Spagat of the Associated Press reports the U.S. Border Patrol agency announced on Tuesday its new strategy to target repeat border crossers. The new strategy, which took more than two years to develop and is the agency's first in eight years, focuses on ending the revolving-door policy of sending people back to Mexico with no other punishment. Border Patrol will begin imposing more serious consequences on most people it catches. Chief Mike Fisher also said the agency is moving towards more mobile surveillance, like unmanned aerial vehicles and helicopters. The new strategy also makes identifying corrupt agents a top priority.

CA Judge Talks About Reality of Early Releases: Tim Daly of News10/KXTV reports
Judge Richard Guiliani of San Joaquin County said due to realignment and a court order that limits the number of people allowed in the San Joaquin County jail system, he has to decide every day whether to keep or release those on technical parole violations and those who have committed new crimes. Guiliani also said that parole violators have figured out how to get back onto the streets quicker. If they ask for a full hearing before a judge they are kept in jail during that process, but if they accept the maximum sentence, their stay in jail will actually turn out to be much shorter. "Everybody knows if they accept 150 days, that means they're out immediately, almost," said Guiliani.

Federal Appeals Court Rules Rhode Island Inmate to Face Federal Prosecution: Laura Crimaldi of the Associated Press reports the U.S. 1st Circuit Court of Appeals ruled Monday Rhode Island Governor Lincoln Chafee must surrender Jason Pleau to federal authorities so he can stand trial in federal court. Rhode Island does not have the death penalty, and Chafee said prosecutors want to try Pleau federally so a death sentence could be possible. Pleau is accused of fatally shooting a gas station manager outside of a bank in 2010. Chafee refused a request to surrender Pleau to federal authorities in June, 2011. Pleau is currently serving an 18-year sentence in state prison in Rhode Island for violating his probation in another case.

CDCR Asks for Prison Medical Care Oversight to End in 30 Days: Julie Small of KPCC reports attorneys for California Corrections officials on Monday filed a 43-page plan to end the federal oversight of prison medical care. They asked U.S. District Judge Thelton Henderson, who seized control of the state's prison healthcare system nearly a decade ago, to relinquish control in 30 days. The press release from the CDCR, which includes a link to a copy of the report, is here.

San Bernardino County DA Speaks Out Against Death Penalty Initiative: Mike Cruz of the San Bernardino Sun reports
San Bernardino County, CA  District Attorney Michael Ramos says fighting a ballot initiative that would end the death penalty in California is his priority right now. Ramos said the title of the SAFE California Act is misleading and proponents are taking advantage of the tough economic times California is experiencing. He pointed out that the nonprofit RAND Corp. found no objective data regarding the true cost of the death penalty. Ramos said statewide, 41 death row inmates killed police officers, 141 killed children and 135 sexually assaulted and raped their victims. He does think the death penalty system needs to be fixed to prevent appeals just for the purpose of delay, and believes a single injection method should be used. "It's a humane way," he said. "It basically puts them to sleep. I will tell you this, our victims didn't have that choice. They didn't get to say goodbye to family members."

Litigating for Terrorists: John Yoo had an opinion piece last week in The Wall Street Journal with the same title about being sued by a convicted American al Qaeda operative. A San Francisco trial judge had ruled José Padilla, who was convicted and sentenced in 2007 for running U.S. terrorist cells, had the right to sue Yoo for his legal advice that the Constitution allows Americans who join al Qaeda to be detained. When Yoo decided to go forward with an appeal, the Justice Department withdrew as his legal counsel. A three-judge panel of the Ninth Circuit Court of Appeals unanimously agreed last week that Padilla could not sue Yoo, who discusses the nation's future of fighting against enemies in a post-9/11 world.  "If we are to prevail in this unprecedented war, those elected and appointed to office must show that they will protect those who fight. Worrying about future lawsuits will distort official decision-making, which should balance the costs and benefits to the national interest and not worry about personal liability. No one will ever sue a government official for doing nothing, even as dangers loom," he wrote. The case is Padilla v. Yoo.   

The DEA and Prescription Drug Death

The DEA is controversial mostly because the war on drugs is controversial, particularly among libertarians.  Very occasionally, DEA earns the heat it gets.  In one recent shocking case, it left a young man in a holding cell for five days without food, water or access to a toilet.  Fortunately he survived, and the DEA is going to take a fully justified hit. 

A story more typical of the DEA's work, though one much less publicized, concerns the takedown of a lethal pill mill of astounding size and greed.  When I was Counselor to the DEA Administrator (2003-2007), I thought the abuse of legal, prescription drugs was the biggest problem we were facing.  Many people need pain medication, and the huge majority of doctors prescribing it are perfectly legitimate. But it's a big money business, and thus occasionally attracts the venal.

MSNBC.COM has a story about one such operation.  The obliviousness of the people running it to basic human decency defies easy description.  The article begins:

The prescription painkiller business was booming in 2009, making millionaires of Chris and Jeff George, twin brothers who operated several pain clinics in South Florida. Unfortunately for them, their customers had a tendency to die, and not always in a subtle fashion.

In November of that year, three customers were on their way to a George brothers' clinic when the driver tried to weave her Toyota Camry through the lowered arms of a train crossing. The car was struck by commuter train going 79 mph. The driver and a passenger were ejected from the vehicle and died at the scene. The third occupant died six months later.

An associate of the Georges who read about the accident in the paper called Chris George to break the news. "Did it say they were pain clinic people?" George asked.


South Florida -- and the Georges, in particular -- were the vanguard of what the Centers for Disease Control and Prevention calls an "epidemic" of oxycodone addiction and death -- one that had attacked America more suddenly than any drug has before.

In 2008, prescription painkiller overdoses killed 14,800 Americans. In 2009, when the George clinics were at their peak, opioid abuse propelled a ghastly rise in the number of drug-related deaths nationwide. That year, 37,485 Americans died from narcotics overdoses -- a figure that for the first time surpassed the number of deaths from car accidents.

It's a long article, but those skeptical of DEA's work might reconsider by the time they get to the end. 


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CA Bill Would Allow Offenders to be Housed in Contiguous County: John Ellis of the Fresno Bee reports Assembly Member Henry T. Perea introduced a bill, AB 1393, encouraged by Fresno police, that would change state law, allowing police to book suspects in counties other than the county in which they were arrested. While the bill would apply to any county in the state, Perea is not certain if any other counties besides Fresno and Madera counties would be affected by the bill. According to Fresno police Chief Jerry Dyer, between 2009 and 2011, over 30,600 inmates have been released from jail early due to overcrowding. The current concern is who would pay for the incarceration if the bill passed. A full copy of AB 1393 can be found here.

Sex Offender's Failure to Report Change of Address OK'd as 3rd Strike: Bob Egelko of the San Francisco Chronicle reports the Ninth U.S. Circuit Court of Appeals in San Francisco decided Friday, in the case of Courtney Crosby, that failure by a sex offender to report a change of address to police within 5 working days justifies a life sentence under the California three-strikes law. By contrast, a federal appeals court in 2008 ruled failure by a sex offender to report to police once a year was only a technical violation and too minor to justify a life sentence under the state's three-strikes law.

Smell of Marijuana Not Enough for Police to Enter Without Warrant: Bob Egelko of the San Francisco Chronicle reports the CA Second District Court of Appeals ruled 3-0 Wednesday that merely smelling marijuana is not enough for police to enter a residence without a warrant. While there are some circumstances when an emergency warrantless search is appropriate,   possession of marijuana is not a serious enough offense to make it allowable. The justices stated smelling marijuana only enabled police to discern that someone in the room was burning marijuana.  However, the justices failed to mention the U.S. Supreme Court's decision in Kentucky v. King in 2011. In  that case, the court ruled 8-1 that police who smelled marijuana outside of a residence were justified in forcibly entering a residence without a warrant to prevent the destruction of evidence. In this case, the Supreme Court did not mention any distinction between crimes which were punishable by imprisonment in contrast to a fine. Kentucky v. King is not expected to affect the California Second District Court of Appeal's decision. The California attorney general's office is currently reviewing the ruling. The full ruling can be found here.

Ex-Death Row Inmate Going Back to Prison for Threatening Judge:
The Associated Press reports Ken Richey, an ex-death row inmate from Scotland, was sentenced Monday to the maximum sentence of three years after pleading guilty to a retaliation charge. Richey left a threatening voice mail for Putnam County Judge Randall Basinger, who prosecuted Richey's original case, saying he was "coming to get him." Judge Basinger said Richey made many threats against him, as well as others. Richey was released four years ago after a federal court ruled his lawyers mishandled his case and overturned his conviction of starting a fire that killed a 2-year-old girl in 1986. Richey was ordered to stay away from the northwest Ohio county and anyone involved in the case, Basinger included. Judge Basinger said Richey "has never taken responsibility for any of his actions, has blamed others for the crimes that he commits, and consistently misrepresents the events of his criminal activity."

The Washington Post features an article describing defense counsels' antics at the military commission trial of Khalid Sheik Mohammed and his confederates for plotting 9-11.  The story thus far is, perhaps not surprisingly once you think about it, somewhat standard fare:  Counsel want to talk about everything except what their clients were up to.  That's routine stuff for criminal defense.  For all you could tell from counsels' interviews with the press, they might as well be talking about knocking over the gas station.  The enhanced opportunities for street theater are not that far off, however.

Still, there was one gem in the story.  It seems that the defense is not all that happy with the attire of one of the lady prosecutors:

[Defense lawyer Cheryl] Bormann also asked in court that a female member of the prosecution team dress more modestly, saying her clothing was a distraction for the defendants and might cause them to "commit a sin" by looking at her. Three women on the prosecution side wore knee-length skirts.

You really have to love it.  KSM and the boys plot the biggest mass murder in American history, don't deny it  --  indeed brag about it  --  and the problem we're having, more than ten long years after the fact, is the length of an assistant prosecutor's skirt.

UPDATE:  My friend John Hinderaker at Powerline shows what a farce this is.  And we have only just begun.

That Pesky First Amendment

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The Citizens United case has riled the Left at least since President Obama gave his on-high, if not particularly accurate, scolding to the Supreme Court  -- or at least those members of the Court having the misjudgment to think they could attend the State of the Union speech without being lectured like a bunch of misbehaving first graders.

On the Chicago-politician theory that you don't get mad, you get even, the President's friends in Congress have introduced legislation that would once again criminalize political speech when undertaken  by human beings who have organized into the heretofore legal groups known as corporations.

If some off-the-wall hick who wanted publicly to burn Korans had pulled this stunt, Keith Olbermann's head would explode.  As it is, it's left to George Will to expose those who gushingly praise the First Amendment when used to protect dirty pictures and flag burning, but think it's not such a hot idea if it just might be used to disrupt their monopoly on the public megaphone.
The Supreme Court recently heard oral argument in the Dorsey case, in which it will resolve a 3-3 circuit split on whether the Fair Sentencing Act, known in some parts (to wit, my files) as the Crack Dealers Bonanza Act, will apply retroactively to those who committed their offenses before the Act was signed in August 2010, but were sentenced thereafter.

My view is that, if the Court is to apply Section 109, known as the Saving Statute, as Congress wrote it, and for the purpose Congress plainly intended, retroactive application will be denied.

Nonetheless, on the we-report-you-decide theory, I want to present a thorough and full informed assessment written by my good friend, Rachel Paulose, formerly US Attorney for the District of Minnesota and a distinguished graduate of Yale Law School.  Rachel's take is a must-read for those particularly interested in this case.  I particularly took note of her concluding paragraphs about what the decision may mean for the future of retroactivity analysis:

The courts and Congress alike will use the Court's decision in this case as a guide in determining the retroactivity of future ameliorative legislation. The government has acknowledged the FSA contains no explicit directive to impose its more lenient penalties retroactively. The interpretative question in this case, and for others to come, is how greatly a court must strain to find implicit support for retroactive application of an ameliorative statute.

If the Court reads any of the possible indicia of implicit support for retroactive application of the FSA § 8, § 10, the legislative history, or public policy as grounds to interpret the FSA as petitioners suggest, future courts will likely be more amenable to finding implicit support for retroactivity in the legislative history of ameliorative legislation. Conversely, if the Court affirms the Seventh Circuit decision, it will set an expectation of clearly expressed intent for both Congress to articulate in drafting and courts to consider in interpreting ameliorative statutes.

Adam Liptak has this story with the above title in the NYT.  Oral arguments are the visible part of the Supreme Court's decision process, so they get the most attention.  But are they the most important?  No, not by a long shot.

"Oral arguments are in any event far less important than the written briefs."

The story is prompted by the oral argument in the health care case, in which the advocate for the "liberal" side got beaten up while the advocate for the "conservative" side had a smooth trip.  The basic principle, though, has long been known.

Years ago, Tony Mauro began his end-of-term summary with a statement to the effect that the term had shown us some stunningly bad oral arguments and how stunningly little that matters.  The lawyer called on carpet by C.J. Rehnquist won his case, as did another who had had a very rough time.

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Ohio Senate Approves Parole Notification Law: Rebecca McKinsey of The Colombus Dispatch reports the Ohio Senate voted unanimously on Thursday to approve Roberta's Law, which would create a mandatory notification system to victims and their families when the offender in their case is being released or having a parole hearing. The law is named after Robert Francis' daughter Rebecca, who was 15-years-old when she was raped and beaten to death by Paul Raymond Saultz in 1974. Saultz had just been released from a state mental hospital for molesting a 12-year-old girl. He was paroled after serving 30 years for his crime against Rebecca, and two years later he molested another girl. Francis did not know Saultz had been paroled until he read about it in the newspaper. Current law allows victims and families to voluntarily enroll in a notification system. Roberta's Law would automatically inform victims and families unless they opt out of the system. The measure would apply to offenses punishable by a life-imprisonment sentence.

Oklahoma in Need of Execution Drugs: Andrew Knittle of the Oklahoman reports the Oklahoma Corrections Department has only a single cocktail of drugs left in stock for executing inmates. Corrections Department officials and the state attorney general's office say there is no firm plan in place if pentobarbital or a suitable replacement cannot be found, but options are being explored. There are currently no more executions scheduled in the state for the rest of the year.

Significant Questions Arise Over DNA Sampling Laws: Lyle Denniston of SCOTUSblog has this piece about Maryland officials preparing to appeal to the Supreme Court regarding the right to collect DNA samples from those who have been arrested but not yet convicted of a crime, if the state's highest court does not reconsider its decision partially banning that procedure. Denniston points out six of the most significant constitutional issues that have arisen over similar DNA sampling laws. Maryland's attorney general said the decision by the Court of Appeals could affect the use of evidence that could help solve "190 unsolved cases."

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Montana Board Hears Mercy Case for Canadian on Death Row: David Murray of the Great Falls Tribune reports convicted murderer Ronald Smith, who has admitted to being the gunman in two 1982 murders, had his clemency hearing before the Montana Board of Pardons and Parole Wednesday, asking to have his death sentence commuted to life without the possibility of parole. In August of 1982, Smith and two friends illegally crossed into the U.S. from Canada, armed with a sawed-off .22 caliber rifle. After befriending two Blackfeet men, they marched the men a few hundred yards off the side of a highway, and shot them in the head at point blank range. During court proceedings in 1983, Smith said he had wanted to feel "what it would feel like to kill someone." He rejected a plea agreement and requested the death penalty, and was sentenced to death in 1983. But Smith changed his mind a few weeks after sentencing, and has been challenging his death sentence since. "It is not our intent here today to in any way minimize the significance or severity of the crimes committed by Mr. Smith," said attorney Ron Waterman. "Simply, it is a request for mercy." Relatives of the victims said the murders have forever scarred their families, and the dragging on of the case continues to cause them anxiety. A decision will be made within 30 days.

Missouri Legislature Approves Changes to Probation Policies: Virginia Young of the St. Louis Post-Dispatch reports the Missouri Legislature on Wednesday passed a measure with the goal of saving the state money by reducing its prison population and increasing community supervision. Probation officers can sentence offenders to short jail stays for minor violations, such as failing a drug test, as long as the county jail has space. The state will pay counties $30 a day to house these types of inmates. More serious violations could result in a 120-day sentence in state prison, an option judges would be required to try before revoking probation. Also, for every 30 days of compliance, an offender will have their supervision period shortened by 30 days. These new policies will only apply to those convicted of certain drug offenses and lower-level C and D felonies. Those convicted of certain felonies such as aggravated stalking and sexual assault are excluded.

Case for a Citation Against Holder Distributed to Committee: CBS News reports a briefing paper and 48-page draft citation, laying out the case for declaring Attorney General Eric Holder in contempt over the Fast and Furious "gunwalking" operation, were distributed to members of the House Oversight Committee Thursday. The documents allege the Justice Department has issued "false denials, given answers intended to misdirect investigators, sought to intimidate witnesses, unlawfully withheld subpoenaed documents, and waited to be confronted with indisputable evidence before acknowledging uncomfortable facts."

Manure Used to Stop Protests at Santa Monica College: KTLA News reports students from Santa Monica College are accusing school officials of laying fresh manure on the grass and then watering the campus lawns to prevent protesters from gathering. Students had planned to camp out on campus Monday night. The school's director of facilities, J.C. Saunders-Keurjian, said the manure was a "coincidence." Santa Monica College spokesman Bruce Smith said the manure was a non-issue anyway, since the city of Santa Monica prohibits camping on public property.   

The Los Angeles District Attorney has filed a motion in LA Superior Court to set execution dates for two murderers -- Mitchell Sims and Tiequon Cox -- and to direct that the execution be carried out with a single-drug protocol.  The DA's press release is here.

The legal theory in this motion is, in part, the same as in CJLF's petition for writ of mandate, noted in this post.  The California Department of Corrections and Rehabilitation has a duty to execute these sentences.  While that department has broad discretion on the specifics, continuing to litigate the enjoined three-drug protocol for years after the federal court has given the go-ahead to resume executions with a one-drug protocol is an abuse of that discretion.

The other problem is the Administrative Procedure Act.  California Supreme Court precedent is clear that APA litigation cannot be used to block enforcement of the underlying law.  Even if the implementing regulation is invalid, the court can and should enforce the underlying statute, even if the court's decision is the same as the APA-noncompliant regulation.  Judicial action is not subject to the APA.

There are 14 California murderers who have completed all the normal reviews of their cases.  The crimes and cases are described in this document.

Update:  Dan Whitcomb of Reuters has this article on the motion.  He quotes Richard Dieter of the Death Penalty Half-Truth Center expressing skepticism and saying, "It's not as simple as just changing to one drug."  Of course it's not as simple.  There is the Administrative Procedure Act question, but the motion addresses that.  I suspect Dieter was reacting to a one-line summary without reading the actual motion, tempting but always dangerous.
The US Supreme Court today denied a stay of execution to Anthony Bartee, who murdered David Cook in San Antonio 15 years ago just because he wanted Cook's Harley.  No dissent is noted.  Michael Graczyk has this earlier story for AP.  Update:  Michele Mondo at the San Antonio Express-News has this story on a last-minute stay by a federal district judge for yet more DNA testing.  Update 2:  Michael Graczyk has this follow-up story for AP.

Over at the loony lefty Daily Kos, a blogger by the handle of laserhaas writes:
A couple quick notes on Ninth Circuit decisions this morning.

Arizona murderer David Scott Detrich hit the quinella in the selection of his Ninth Circuit panel.  With Judges Pregerson and Paez, he had two votes to overturn his death sentence if any halfway plausible justification could be found.  The Supreme Court vacated and remanded for reconsideration in light of Cullen v. Pinholster.  Today the panel decided, 2-1, that their decision on IAC in the penalty phase stands despite Pinholster.  Given that dissenting Judge McKeown is closer to the Ninth's present center of gravity, this one might actually be corrected en bancUpdate:  Kim Smith has this story in the (Tucson) Arizona Daily Star.

In another case, another panel decided unanimously that former terrorism detainee Jose Padilla (subsequently convicted on other charges) can't sue former DAAG John Yoo, who gets qualified immunity.

I will not have time to review these decisions in depth today, but they are sufficiently newsworthy that I wanted to note them here.

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Oklahoma Execution Carried Out: Tim Talley of the Associated Press reports Michael Bascum Selsor was pronounced dead at 6:06 p.m. in Oklahoma yesterday. Selsor shot 55-year-old Clayton Chandler eight times during an armed robbery in 1975. One of Chandler's daughters, Debbie Huggins, said, "This was much kinder what we did to him today than what he did to my dad." After waiting almost 37 years for justice in her father's death,  "Today we got that justice," she said. "We're glad that it's finally over. Be at peace. The race is finally over."

CA Woman Who Killed Firefighter in Fatal DUI Avoids Jail Time: Corey Pride of the Los Banos Enterprise reports Amie Chick, who pleaded guilty to one count of felony vehicular manslaughter and was sentenced to a year in jail, will not serve any jail time. According to Deputy Tom MacKenzie, a Merced County Sheriff's spokesman, under AB 109, Chick was eligible for a house-arrest program and will serve her sentence at home, wearing an electronic monitoring device. MacKenzie said Chick was sent home because there is an effort to lower the combined daily population of Merced County Main Jail and the John Latorraca Correctional Center. "Obviously, if (certain inmates) fall under the AB 109 guidelines because of housing issues, we have to let them go," MacKenzie said. "Unfortunately, we have to keep the worst of the worst, and let the best of the worst go."

GOP House Leaders Seek to Hold Holder in Contempt Over Fast & Furious: Matt Zapotosky of The Washington Post reports Maryland Attorney General Douglas Gansler says he plans to challenge with the U.S. Supreme Court the state's Court of Appeals ruling from last week that prohibits DNA collection from those charged but not yet convicted in violent crimes if the state judges do not reverse the decision themselves. Gansler filed a motion on Tuesday asking the court to stay and reconsider its decision that taking DNA samples from criminal suspects after they are charged is a violation of the suspects' constitutional rights. "In my view, the only invasion of privacy in this case was when the defendant broke into the home of a 53-year-old woman and raped her at gunpoint," Gansler said. In his motion, Gansler argues the state court's decision runs counter to what other courts nationwide have held on the same issue.
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Some conservatives and libertarians have bemoaned what they call the criminalization of everything, with particular emphasis on the growth of federal criminal investigations.  For the most part, I have been somewhat skeptical of these concerns.  While it's true that the criminal law, like every aspect of government, seems to know nothing except how to get bigger, I have thought that the answer to this problem is for people simply to behave as they were taught by their parents: Don't steal stuff, don't lie to those with legitimate authority, don't try to get money by hardcore or softcore deceit, stay away from drugs and settle your differences without violence.  It's not that hard.

Nonetheless, many of my friends who share these values remain alarmed by the extent to which the government, and the federal government in particular, seems to want to criminalize hitherto legal conduct, and to stretch into areas traditionally, and more wisely, left to state and local measures.  Today I saw a story giving unsettling credence to their concerns.  

It seems that the Department of Justice is going to launch a probe of rapes in that hotbed of crime, the campus of the University of Montana at Missoula.   Attorney General Holder says he is disturbed by the incidence of rape and the way rape investigations have been handled (or not handled).  But

Local authorities said the incidence of rape in Missoula, a western Montana city of 86,000 people, is on par with similarly sized college towns, and the county's chief prosecutor questioned the justice department's rationale for its inquiry. 

The investigation comes in the midst of an election year in which women's issues have moved to the forefront as candidates seek to burnish their credentials among female voters.

The justice department probe will examine the inner workings of the university's public safety office, the Missoula Police Department and the Missoula County Attorney's Office.

Rape is an awful crime and, in the most extreme instances, should be death-eligible, our Supreme Court notwithstanding. But why rape in Missoula, Montana warrants federal intervention is something of a mystery  --  a mystery, that is, unless one recalls that Mr. Holder's boss is trying to make the fictitious "War on Women" a political issue for November's showdown.

Maybe DOJ should bring in another liberal huckster who wanted to enlist rape to help him win re-election.  Mike Nifong, your career's not quite over. 

The Occupy Movement Branches Out

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The Occupy Movement has a basic theme in common with the soft-on-crime Smart-on-Crime crowd:  Major elements of both subscribe to the America Stinks theory. Under the America Stinks (sometimes "Amerika Stinks") theory, much unfairness is created by capitalism, especially that nasty one percent who pay a grossly disproportionate share of taxes hog all the goodies.  Thus, the Occupy Movement thinks it's only just to throw bricks through the windows of banks and corporations, while the Smart-on-Crime crowd thinks that those who steal from such places should be, not prosecuted, but forgiven, since they are the dispossessed victims of said corporations (at least when they are not being the victims of the latest "syndrome" or of over-consumption of Twinkies).

Kent and I have documented various assorted crimes undertaken by members of the Occupy Movement, but today there's word of some Occupiers who wanted to take it to, shall we say, a different level.  From the story:

The federal probe that resulted last night in the arrest of five purported anarchists for allegedly plotting to bomb an Ohio bridge began last year at an Occupy Wall Street rally in Cleveland that was infiltrated by an informant who was directed to attend the event by his FBI handlers.

It was at the October 21 OWS event that the informant first met Douglas Wright, 26, who reportedly confided details of his group's planned attacks "against corporate America and the financial system," according to court filings.

....Wright eventually served as the informant's bridge to the four other men busted in the bombing plot--despite the fact that the quartet was "unsure" about the snitch for whom Wright vouched. Of the five men arrested, four were involved in the Occupy Cleveland movement, according to their Facebook profiles, a news story, and a federal criminal complaint.

Those who told us that the Occupiers were just a bunch of idealistic kids longing for a better world,  when not seeking a handout, might want to reconsider.

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Stockton Man Released From Jail Early Arrested Weeks Later for Attempted Murder: Tim Daly of News10/KXTV reports Raoul Leyva was arrested last week for allegedly trying to kill his girlfriend after serving only 2 days of a 100-day parole violation sentence a couple weeks earlier. On April 9, Leyva was given a sentence of 100 days in county jail for a parole violation, but was released on April 11. He was arrested for attempted murder on April 26. San Joaquin County sheriff's Deputy Les Garcia said Leyva was released just two days into his 100-day sentence because his office was following a court order to reduce overcrowding. San Joaquin County Superior Court Judge Richard Guiliani, who confirmed his order for that release, said counties don't have a choice because of how many prisoners the state has shipped to the county level. The victim's family says she has been in a coma after the beating and is not expected to survive. 

Execution in Oklahoma Tuesday Night: The Associated Press reports Michael Selsor is scheduled to die by lethal injection tonight in Oklahoma for the 1975 murder of Clayton Chandler during a robbery. Chandler was shot eight times. When Selsor was arrested, he complained to detectives about the amount of money he netted during the robbery. "The damn guy held back the twenties or I would have had $800," he said during an initial interview. One of Chandler's co-workers also received multiple wounds but survived. Selsor told detectives he and his co-defendant didn't want to leave any witnesses who could identify them later.

Molestation Law Clarified by California Supreme Court: Bob Egelko of the San Francisco Chronicle reports the California Supreme Court ruled Monday that a 2006 law that imposed a sentence of up to life in prison for having sex with a child "10 years of age of younger" includes any case in which the victim has not turned 11, meaning the victim's most recent birthday was their 10th. The ruling came in the case of Michael Cornett, who was convicted of molesting his two stepdaughters in 2007, one of whom was 10 years, 11 months old at the time. The ruling will not affect Cornett, but other cases in which the victim is between 10 and 11 years old.
Feds to Seek Death Penalty in Somali Yacht Hijacking: Brock Vergakis of the Associated Press reports federal prosecutors will seek the death penalty against three Somalis who killed four Americans aboard a hijacked yacht in February of last year. 22 of the 26 charges they face are death-penalty eligible. Twelve others involved have already been sentenced to life in prison for their roles in the case.

Story of Couple Attacked by Mob Goes Unreported: Michelle Washington, an editorial writer for The Virginian-Pilot, has this piece about two reporters at the paper who were attacked by a group of at least 30 people while they were stopped at an intersection in Norfolk, VA. The story wasn't reported in the paper for two weeks, and the responding officer had coded the incident as a simple assault. On Twitter the next day, one post about the attacked made a reference to Trayvon Martin. Washington writes, "We cannot allow such callousness to continue unremarked."
Intelligent life has been sighted at the Huffington Post.

Former New York Mayor Ed Koch has this ultimately Politically Incorrect piece at the bastion of all things Politically Correct, responding to an NYT editorial.  Wonder how that got through the screen.

Koch notes that the lack of an effective death penalty law in New York is the result of a judicial decision plus legislative gridlock, not a repeal bill actually passing the legislative process.  He also discusses deterrence, just deserts, and the chilling effect of unwarranted accusations of racism.

Meanwhile, at the WaPo, Charles Lane notes the Norwegian case of Anders Brevik.

Norway has suffered deeply because of Breivik, and I don't mean to add insult to injury. But this situation illustrates what's wrong with banning the death penalty in all cases. If executing an innocent man is the worst-case scenario for proponents of the death penalty, then threatening Breivik with prison is the reductio ad absurdum of death-penalty abolitionism.

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