November 2012 Archives

News Scan

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LA Probation Getting Mainly High-Risk Offenders: Abby Sewell of the Los Angeles Times reports a majority of the offenders being put on probation in Los Angeles County under AB 109 are at a high risk of reoffending. Of the 11,136 offenders placed on probation in the county in since Realignment began on October 1, 2011, 59 percent are high-risk, 40 percent are medium-risk, and 1 percent are low-risk. A Countywide Criminal Justice Coordination Committee also reports many are also classified as mentally disordered offenders. MDOs have mental illnesses which are considered dangerous. MDOs are being decertified. This downgrading places the offenders under county supervision rather than keeping them in state corrections.

Adult Criminal Numbers in 2011 Lowest in Decade:
Frederic J. Frommer of the Associated Press reports in 2011, the U.S. had the lowest number of adults incarcerated, on parole, or on probation since 2000. Nationwide, 6.98 million adults were under some form of supervision by the end of 2011 according to a report by the Justice Department's Bureau of Justice Statistics released Thursday. About 70 percent of those were on parole or probation, and 30 percent incarcerated. This is 98,900 less than in 2010.

Chinese Gang Enforcer Faces NV Death Penalty:
Ken Ritter of the Associated Press reports a jury convicted Chinese gang enforcer Xiao Ye Bai of murder, kidnapping, burglary, extortion, and conspiracy Monday. The same jury is deliberating whether he will get the death sentence. Bai stabbed his victim 32 times in a Las Vegas karaoke bar over a gambling bet in July 2009 and wounded two others. Bai is also accused of shooting and killing another outside of a karaoke bar in Southern California several months earlier.

The Dietz Mental State Interview

Dr. Park Dietz has an article in the current FBI Bulletin (November 2012), titled "Documenting a Suspect's State of Mind."

Many investigators have interviewed suspects who seemed to know exactly what they were doing but learned a year later that the individuals claimed insanity. Or, perhaps, officers have obtained confessions only to discover that the defendants subsequently claimed themselves incapable of voluntarily confessing.
What to do about it?  Should every suspect be promptly interviewed by a forensic psychiatrist?  That's probably not in the budget.  Fortunately, it is not necessary.  In a mental case, the defendant's mind is a crime scene.  Just like physical crime scene evidence, it is good to collect it promptly, before it decays or is contaminated, but it need not be analyzed at the same time or by the same person.

In the article, Dr. Dietz provides a protocol for an interview by an investigator, which should be video-recorded.

News Scan

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US Prisons May House Guantanamo Detainees: The Associated Press reports that if Guantanamo Bay closes, detainees may be integrated into six Defense Department and 98 Justice department prisons in the United States according to a Government Accountability Office study. Of the 166 detainees, many are accused of plotting terrorist acts. There are currently 373 prisoners who were convicted of terrorism in U.S. prisons.

Female Inmates Coming to Folsom Prison:
The CimRiders Blog for the California Correctional Peace Officers Association reports the last 400 female inmates at the Valley State Prison for Women will be moved to Folsom State Prison. The unused Folsom Transitional Treatment Facility is being remodeled and renamed the Folsom Women's Facility. The facility will be opened in two phased: the first in December and the second in January.

NYC Has Violent Crime Free Day: NBC News New York reports no calls came into police involving a victim who was shot, stabbed, or slashed Monday in New York City. Murders are down 23 percent, with 366 so far in 2012 compared to 472 in 2011. This is the lowest murder rate the city has seen since 1960. Overall crime in the city is up 3 percent due to an increase in tablet and smart phone thefts according to officials.

Mexican Mafia Running CA Street Gang From Prison: Steve Chawkins of the Los Angeles Times reports Martin Madrigal, part of the prison-based Mexican Mafia, was found to be running a Ventura County gang despite being locked up in an out-of-state prison. According to law enforcement officials, Madrigal was coordinating violent crimes, extortion schemes, and drug deals. He had Ventura County gang member Edwin Mora enforcing his decisions on the street. A 35-count grand jury indictment was released Tuesday naming 27 members.

Unicorns and Plain Error

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Adam Liptak has this article in the NYT on yesterday's Supreme Court argument in Henderson v. United States, No. 11-9307.

The Supreme Court heard an unfocused argument on Wednesday from a Louisiana lawyer whose fumble at her client's sentencing hearing was at issue in the case. The lawyer's halting presentation put the justices in a collaborative and lighthearted mood, as they tried to puzzle out for themselves whether the sentence must stand. Unicorns figured in their analysis.
The transcript is here.  The issue is the application of the Federal Rules of Criminal Procedure, not constitutional doctrine, so the holding will probably not make a binding precedent for state cases.  It will likely be persuasive authority in state courts, though, especially in states that have copied the federal rules.
The CBS News Bureau in San Francisco carries this report:

Oakland Crime Rate Soaring as City Loses Officers

OAKLAND (KCBS) - Burglaries are up a startling 43 percent in Oakland this year compared to last, part of an ever-growing crime problem in the city.

According to the latest numbers from the Oakland Police Department, more than 11,000 homes, cars or businesses have been broken into so far this year - translating to about 33 burglaries a day. The most popular targets have been cars with more than 5,700 burglarized so far this year.

One of the most likely reasons for the sharp uptick in crime - city officials said they believe it's the gradual loss of police officers from the force.

The city could be down to a little more than 600 officers by February, which would be 200 fewer than in 2008. Even with another 40 expected to graduate from Police Academy, they will be rookies and there is already talk of trying to contract with outside agencies for support.

In other words, when the government "saves money" by scrimping on keeping the citizens safe, the citizens lose money  --  and safety.  Not that this is a surprise; it's just something the Left tells us we're not supposed to think about when it touts its phony "smart on crime" proposals.  In Leftist lingo, you see, "smart on crime" means doing things we know in advance will increase crime.

News Scan

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CT Murderer Hogties, Strangles Prison Cellmate: Hilda Munoz of the Hartford Courant reports a jury convicted Connecticut prison inmate Jose Jusino of the 2009 murder of his cellmate Tuesday. Jusino was serving a 30-year sentence at the time of the killing. He had pleaded guilty to a murder in 2006. Jusino allegedly knocked his cellmate out with a punch to the head, hogtied him, then strangled him. Once dead, Jusino carved 'King Guala' into his cellmate's chest. 'King' refers to Jusino's desired gang and 'Guala' to his nickname. Despite Connecticut abolishing the death penalty last spring, Jusino is eligible because his crime took place before the law changed.

TX Murderer Attempts Prison Escape, Kills Corrections Officer: Michael Graczyk of the Associated Press reports convicted killer John Ray Falk Jr. may face the death penalty in Texas for a 2007 prison escape that cost corrections officer Susan Canfield her life. Falk and fellow inmate Jerry Martin, on death row for a 2009 murder, were in a work crew outside of the prison when they tried to escape. With Falk's help, Martin rushed a sergeant and took his revolver. Martin then gave the gun to Falk who held the sergeant at gunpoint. Martin and Falk then climbed the barb-wire fence. Once in the parking lot, Falk opened fire on Canfield who was on horseback. Falk subdued her and took her rifle. Meanwhile, Martin got a truck then rammed Canfield and her horse. She was thrown and hit the windshield then fell to the ground. She died of head trauma. Falk and Martin then drove off, dumped the truck, and carjacked a woman. Both criminals were apprehended within 4 hours.

VA Hitman Waives Appeals, Set for Execution: Michael L. Owens of the Bristol Herald Courier reports Virginia will execute Robert Charles Gleason Jr. on January 16. Gleason waived his appeals in two cases for which he was sentenced to death. Gleason, a hitman, was sentenced to life without parole for shooting a man to death in 2008 to coverup a methamphetamine ring. In 2009, Gleason became annoyed with his mentally impaired cellmate, and beat and strangled him to death. In 2010, he strangled a convicted carjacker in the yard at a supermax prison. Gleason says the killing will not stop until he is put to death. In Virginia, condemned murderers can choose whether to die by lethal injection or electrocution. Gleason has until January 1 to decide before the method defaults to lethal injection. In interviews, he has said he intends to choose electrocution as his research shows the method is quicker.     

AZ Mom Allegedly Murders Her Children, May Face Death Penalty: Kim Smith of the Arizona Daily Star reports Perla Morales will face the death penalty in Arizona if convicted. Morales allegedly shot her 4-year-old daughter and 17-month-old son to death on August 11. The day her boyfriend threatened to leave her, Morales shot her daughter three times in the torso, then her son twice in the torso and in the arm. She then called police and told the dispatcher she shot her children and slit her wrists. Upon arrival, responders found her son dead at the scene. Her daughter died an hour later in the hospital. Morales is set to appear in court December 17. 

Firing Up Old Sparky

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Virginia's death row "volunteer" Robert Gleason is scheduled for execution January 16, AP reports.  He has chosen the electric chair, an option still available there.

Gleason was serving a life term for murder at Wallens Ridge State Prison in May 2009 when he killed his cellmate, Harvey Watson Jr. After being transferred to the supermax Red Onion State Prison, Gleason strangled inmate Aaron Cooper in an outdoor recreation cage in July 2010.

Swift's Law Strikes Again

Totally off-topic.
The Ohio State Journal of Criminal Law will have a symposium issue on the 25th anniversary of McCleskey v. Kemp out soon.  The article by yours truly with the above title is available on SSRN.  Here is the intro:

The best models which Baldus was able to devise which account to any significant degree for the major non-racial variables, including strength of the evidence, produce no statistically significant evidence that race plays a part in either [the prosecutor's or the jury's] decisions in the State of Georgia.1
This is the least-known holding from the best-known case on race and the death penalty, a case that eventually went to the Supreme Court.2 It is very strange that this holding is so little known, given the prominence of the Baldus study in debates over race and the death penalty. Just this year, a report of the American Bar Association began its factual discussion of race and the death penalty with what the Baldus study supposedly "showed."3 Yet the report made no mention at all of the fact that the study had been thoroughly examined in a full trial, with expert testimony on both sides, and found to show nothing of the sort.

This skewed perception is not limited to the Georgia Baldus study. It extends across the field. Any "finding" by a study of any racial "disparity" is trumpeted as proof that the system of capital sentencing is deeply racist, even though it may be the product of flawed methodology, a biased source, or both. Meanwhile, contrary indications from other studies, or sometimes even within the same study, are buried and never brought to the public's attention.

Abandonment and Prejudice

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What kind of mitigating circumstances would it take to outweigh these aggravating circumstances?

The sentencing court found the following facts beyond a reasonable doubt. Stokley was convicted of murdering two 13-year-old girls over the July 4th weekend in 1991. Stokley is a person of above average intelligence. At the time of the crime, he was 38 years old. Stokley intended that both girls be killed. He killed one of the girls and his co-defendant killed the other. Before the men manually strangled the girls to death, both men had sexual intercourse with the victims. Both bodies "were stomped upon with great force," and one of the children bore "the clear chevron imprint" from Stokley's tennis shoes on her chest, shoulder, and neck. Both victims were stabbed in their right eyes with Stokley's knife, one through to the bony structure of the eye socket. The girls likely were unconscious at the time of the stabbing. The girls' bodies were dragged to and thrown down a mine shaft.
Schizophrenia on the same scale as the Tucson shooter, maybe.  Duress on the scale of being forced at gunpoint, maybe.  But Stokley has neither of those.

The case in the Ninth Circuit is Stokley v. Ryan, 09-99004.  Stokley was sentenced to death and denied relief all the way down the line.  The U.S. Supreme Court denied certiorari on opening day, October 1.  Now Stokley's attorneys claim he was "abandoned" within the meaning of Maples v. Thomas, thereby permitting reopening the case.  (See posts here and here.)  On November 15, the Ninth Circuit panel majority initially rejected that claim, convincingly I thought, on the primary ground that there was no abandonment and secondarily that there was no prejudice.  Stokley's "bad childhood" and "I behave when locked up" evidence, neither of which has any connection to the crime, is so weak as to not come remotely close to outweighing the aggravating circumstances in this case.  Curiously, on November 21, the panel majority withdrew the "no abandonment" holding and rested solely on the "no prejudice" holding.  Perhaps something in the rehearing petition convinced the majority this was the more solid ground.

Today the Ninth Circuit denied rehearing en banc, over numerous dissents.  The execution is scheduled for December 5.

Update (Dec. 1):  AP has this story on the certiorari petition to the US Supreme Court.

News Scan

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One of FBI's Ten Most Wanted Apprehended in Mexico: Brandon Lowrey of Reuters reports Jose Luis Saenz, one of the FBI's ten most wanted since 2009, was apprehended in Mexico and brought back to Los Angeles to face charges in four separate murders. Saenz allegedly killed a Los Angeles man over a drug debt in 2008. He is also being charged with shooting and killing two rival gang members in 1998, and kidnapping, raping, and killing the mother of his child when she threatened to turn him in for the killings. Saenz is an enforcer for a Mexican drug cartel and a gang member. If convicted, he is eligible for the death penalty.

RI Thrill Killer Will Be Paroled: The Associated Press reports convicted murderer Alfred Brissette will be paroled next month. Brissette pleaded no contest in Rhode Island for the 1999 thrill killing of a woman. According to State v. Girard, Alfred Brissette and Marc Girard killed their victim after luring her into woods with the promise of cocaine. Initially, Brissette hit the victim in the head with a lug wrench multiple times. Then, Girard persuaded her to remain calm and promised to take her to a hospital. The duo then struck her with a shovel, dragged her back to the car, repeatedly beat her with fists and the lug wrench, attempted to paralyze her by beating her in the spine, and ultimately Girard hit her in the head a last three times to 'put her out of her misery.' Brissette was sentenced to 35 years in prison and was not set for parole until 2034. However, with good behavior he shaved 20 years off his sentence.

Killer Gets 8 Years for Sending Judge Fake Anthrax Letter: Lawrence Buser of the Commercial Appeal reports U.S. District Judge Jon McCalla sentenced Marshall Dewayne Williams to eight years Monday for sending a fake anthrax letter to U.S. District Judge Daniel Breen in 2008. Williams did so in protest of the 109-year sentence he received for the 1984 killing of his stepfather with a pipebomb in Texas. Judge Breen had denied many of his appeals in the case. Williams wanted to get back into court before a jury to argue his case. He had been sentenced to five years in 2009 for the fake anthrax letter. His conviction had been upheld on appeal, but he was granted a new sentencing trial.

CA Using 5-Year-Old Recidivism Data to Justify Realignment:
Brian Joseph, Sacramento correspondent for the Orange County Register, reports California prison recidivism rates remain high despite a slight decline. The California Department of Corrections and Rehabilitation compares the rates from 2007-08 to 2006-07 to establish the decline, from 65.1 percent to 63.1 percent, respectively. Criminal Justice Legal Foundation President Michael Rushford is concerned that five-year-old data is being used to justify AB109. Rushford points to increases in crime all over the state in the last year to show "the state's formula ...  doesn't work."    

Ill. Husband's Who Killed Wife, Three Kids Sentenced:
Don Babwin of the Associated Press reports Christopher Vaughn was sentenced to four life sentences without the possibility of parole Tuesday. Vaughn was convicted this September of killing his wife and three children in 2007. He initially faced the death penalty, but Illinois since abolished capital punishment. He had killed his wife and young children because they stood in the way of his dream life of subsisting in the Canadian wilderness. Details of the murders are in this news scan.

SCOTUS Gathering No Moss?

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Associated Press reports:

Mick Jagger, Keith Richards, Charlie Watts and Ronnie Wood have an average age of 68 years and 297 days, while the Supreme Court justices' average is 66 years and 364 days. That makes the [Rolling Stones] one year and 10 months older than the members of the highest court of the United States.

Republicans a victim of safer streets

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WaPo editorial writer Charles Lane has this article with the above title.

Americans were unhappy about many issues as 2012 began. In one area, though, contentment reigned. By a margin of 50 to 45 percent, a Gallup Poll reported, the public felt "satisfied" with the nation's policies on crime.

It was a well-founded sentiment. In 2010, Americans were less than a third as likely to be victimized by violent crime as they had been in 1994; the murder rate had declined by roughly half. Today we are approaching the low murder rates of the 1950s.

For the Republican Party, this is a triumph -- and a disaster, as the 2012 election results proved.

It is a GOP triumph, because the enormous decline in crime over the past two decades coincided with the widespread adoption of such conservative ideas as "broken windows" policing and mandatory minimum sentences.

Whether such policies actually caused the crime decline is a separate, and much-debated, social-science question. The important thing is that many people believe that they did. As a result, conservative crime doctrine remains dominant in politics, with the two parties differing mainly over how to control and punish unlawful conduct most cost-effectively.

I agree with most of that, but I'm not so sure about the last sentence.  The great danger at present is that "tough on crime" is a political victim of its own success.  With crime rates way down, at least in part because of tough policies, too many people are falling for the claims that we can not merely be more cost-effective but rather go all the way back to the failed notions of the 60s that were such a disaster.  Too many people swoon over "evidence-based practices" of rehabilitation and fail to be sufficiently skeptical about "evidence" put forward by people with an ideological or financial interest in seeing the result come out a particular way.

In California, this danger has taken the form of the "realignment" program.  Too many people fell for the false claim that our prisons were chock full of harmless people locked up for possessing one joint, and we could move them to overcrowded county jails (with the inevitable result of many being moved to the street) with no increased danger to the public.  We are paying for this delusion in the blood of innocent people.  Yet public awareness has not caught up with reality yet, and the people rewarded the perpetrators of this scam by increasing their political power.
From the current issue of the Community Mental Health Journal comes the article Do Faith-Based Residential Care Services Affect the Religious Faith and Clinical Outcomes of Homeless Veterans?  The abstract has the details:

Data on 1,271 clients in three residential care services funded by the Department of Veterans Affairs was used to examine: (1) how religious-oriented programs differ in their social environment from secular programs, (2) how religious-oriented programs affect the religiosity of clients, and (3) how client religiosity is associated with outcomes. Programs were categorized as: secular, secular now but religious in the past, and currently religiously oriented. Results showed (1) participants in programs that were currently religious reported the greatest program clarity, but secular services reported the most supportive environments; (2) participants in programs that were currently religious did not report increases in religious faith or religious participation over time; nevertheless (3) greater religious participation was associated with greater improvement in housing, mental health, substance abuse, and quality of life. These findings suggest religious-oriented programs have little influence on clients' religious faith, but more religiously oriented clients have somewhat superior outcomes.

Kent pointed to a study that is making some waves which showed that people diagnosed with ADHD and who receive treatment were less likely to be convicted of crimes than those who abstained from treatment.  It's an interesting study authored by some very respected social scientists.   Many are assuming that the take away message of the study is that untreated ADHD is associated with a greater likelihood of criminality because people with ADHD are impulsive.  That may be true, but it's also quite possible that those patients who remain in treatment are simply more responsible or motivated in other areas of their life.  That's always the problem with these types of studies: the conclusions are never as obvious after careful contemplation.  For instance, what can we make of the fact that only 24% of the men and 25% of the women in the study who had ADHD were employed?

But I want to highlight another issue.  The primary treatment modality for ADHD is pharmacological.   The drugs of choice are a group commonly known as stimulants.  These include methylphenidate (aka, Ritalin) and the various amphetamine salts (e.g., Adderall).  These are both controlled substances because they have the propensity for addiction.  We know that people in the criminal justice system have extraordinarily high rates of substance abuse.  Likewise, stimulant drugs act by increasing the levels of dopamine in the brain (as does cocaine) and we know that raising dopamine levels in the brain is associated with aggressive behavior and paranoia.  For people with histories of violent behavior and substance abuse, the concern here is rather obvious.

None of this is to suggest that ADHD is not a real disorder (although it is overdiagnosed) nor that these medicines have no place with offender populations.  But every treatment comes with risks and often those risks are unforeseen.  In offender populations which are loaded with risk, we should be quite cautious in proceeding down the road of handing out these types of drugs without many additional studies.  

News Scan

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CA to Release First Third-Striker After Prop 36 Passed: The Associated Press reports Kenneth Corley will be the first inmate to be released from prison after California's November 6 adoption of Proposition 36. Corley has been in prison since 1996. He was a lifelong, nonviolent drug addict serving a 25 to life sentence for repeated burglaries in order to provide for his addiction. 

Death Row Inmate Claims He Killed Nicole Brown Simpson:
Alan Duke of CNN reports death row inmate Glen Rogers confessed to his brother Clay Rogers and criminal profiler Anthony Meoli that he, not O.J. Simpson, killed Nicole Brown Simpson and Ronald Goldman in 1994. Rogers says O.J. was waiting nearby. According to Rogers, O.J. hired him to break into Nicole's condominium and steal diamond earrings Simpson had given to Nicole. Allegedly, Simpson told Rogers, "You may have to kill the b*tch." After killing Brown Simpson and Goldman, Rogers went on a cross-county killing spree during which he may have claimed up to 70 female victims. He was arrested in Ohio in November 1995. Rogers is on death row in both California and Florida, and is awaiting execution in Florida and has exhausted all appeals. Los Angeles Police Department Commander Andrew Smith said detectives will investigate the claims.

NY Duffel Bag Triple Killer Arrested: Tom Hays of the Associated Press reports garment salesman Salvatore Perrone was arrested for three Brooklyn murders Wednesday. Perrone allegedly shot and killed three shopkeepers who were working alone in separate incidents. A duffel bag identified in surveillance footage was found in his girlfriend's apartment. The bag contained a sawed-off rifle used in the killings, with Perrone's fingerprint on them, ammunition, gloves, a bloody knife, bleach, and women's clothing. No motive has been established. Perrone will return to court Tuesday.

MI Man Charged With Four Murders: Ed White of the Associated Press reports James Brown was charged with four counts of first-degree murder in Detroit  Monday. Brown allegedly murdered four women suspected to be escorts, stuffed their bodies into trunks of abandoned cars and set them on fire. The victims were killed and dumped in pairs. The most Brown will serve if convicted in Michigan is life without parole.

ABA Journal Blawg 100

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The ABAJ is out with its annual law-blog ("blawg") list, and we are pleased to see that C&C is on it again.  This year, our blog blurb is a quote from a C&C reader:

"For a prosecutor or anyone else who believes that people are responsible for their own actions and that justice for victims is at least as important as mercy for criminals, this blog serves up the good news." --Dennis J. Skayhan, Berks County (Pa.) District Attorney's Office
Thanks, Mr. Skayhan.  Glad you like it.

As usual, readers can vote for their favorite blog by category.  (Registration is required and has to be renewed annually.  But it's free and easy.)  There are seven criminal law blogs, of which five are defense-oriented.

Searching for Searches

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One very useful technique in modern investigation is to find out what the defendant was searching for on her computer about the time of the crime.  Unfortunately, the prosecutors in the Casey Anthony case did not have important information, Tony Pipitone reports for WKMG in Orlando:

Consider what they appear to show happening online the afternoon of Monday, June 16, 2008, the day Caylee died:

  • At 2:49 p.m., after George Anthony said he had left for work and while Casey Anthony's cellphone is pinging a tower nearest the home, the Anthony family's desktop computer is activated by someone using a password-protected account Casey Anthony used;
  • At 2:51 p.m., on a browser primarily Casey Anthony used, a Google search for the term "fool-proof suffocation," misspelling the last word as "suffication";
  • Five seconds later, the user clicks on an article that criticizes pro-suicide websites that include advice on "foolproof" ways to die. "Poison yourself and then follow it up with suffocation" by placing "a plastic bag over the head," the writer quotes others as advising;
  •  At 2:52 p.m., the browser records activity on MySpace, a website Casey Anthony used frequently and George Anthony did not.
Any why didn't the prosecutors know any of this?  The investigators only checked the Internet Explorer history.  Casey Anthony had switched to Firefox.  And now she is living the "bella vita."  Caylee is not.

ADHD, Medication, and Criminality

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The New England Journal of Medicine has an article by Paul Lichtenstein et al. titled "Medication for Attention Deficit-Hyperactivity Disorder and Criminality."  The Conclusions paragraph of the preview is:

Among patients with ADHD, rates of criminality were lower during periods when they were receiving ADHD medication. These findings raise the possibility that the use of medication reduces the risk of criminality among patients with ADHD. (Funded by the Swedish Research Council and others.)
Access to the full article will set you back $15.  The full text of the preview and the cite info are after the jump.

Cert. Denied in Insanity Case

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Is an insanity defense, as such, constitutionally required?  Idaho has decided no, although it still allows a defense of a mental condition which negates an element of the offense.  Today the U.S. Supreme Court declined to review a claim that this is unconstitutional.  Justice Breyer, joined by Justices Ginsburg and Sotomayor, dissented from the decision not to take the case up (not necessarily with the merits of the state court's decision).  The case is Delling v. Idaho, 11-1515.

Which provision of the Constitution of the United States removes this decision from the legislatures of the states and assigns it to the federal judiciary?  Justice Breyer "would grant the petition for certiorari to consider whether Idaho's modification of the insanity defense is consistent with the Fourteenth Amendment's Due Process Clause."  Once again, the oxymoron of "substantive due process" rears its ugly head.  All the way back to Dred Scott, the term "due process," which quite obviously refers to process and not substantive law, has been used for the Court's most illegitimate decisions.  It's good that they passed on this one.

Digging up Richard III?

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Anthony Faiola reports in the WaPo on a new development in one of history's oldest murder mysteries.

Tyrant or hero? Rightful monarch or child-killer? Despotic hunchback or brave scoliosis sufferer? Now is the winter of our debate over one of England's most notorious villains: Richard III.

Underneath a drab parking lot 90 miles northwest of London, archaeologists have unearthed what may become one of this nation's finds of the century -- half-a-millennium-old bones thought to be the remains of the long-lost monarch.

Laughing killer sentenced to death

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Just two weeks after the people of California voted to retain the death penalty, we have a prime example of why that was the correct decision.  Demian Bulwa reports for the SF Chron:

An infuriated jury handed down the death penalty Tuesday for an unrepentant killer who gunned down his ex-girlfriend and her male friend at the Richmond-San Rafael Bridge toll plaza three years ago and then spent his trial laughing and cursing his victims.

The verdict prompted a final outburst by 49-year-old Nathan Burris, who turned in his chair and shouted profanities at family members of the victims - "They ain't coming back," he said - before bailiffs handcuffed him and led him out of the Martinez courtroom.

Afterward, those family members expressed relief that the trial was over and said Burris' cruel words no longer fazed them.

One juror said she wished Burris - who represented himself - could be put on a "fast track" toward execution.
No, not here.  David Stringer and Don Melvin report for AP that Britain is seriously considering leaving the European Union.  Among the grievances:

Such distrust is tangled with worries over the fallout from the European debt crisis and anger at the European Court of Human Rights -- castigated by British politicians for ordering Britain to give prisoners a vote in national elections, and preventing the U.K. from deporting terrorism suspects to countries with patchy human rights records.
If the UK does split from the EU, a declaration stating the reasons is in order.  Maybe it could begin something like this:

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another ... a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

News Scan

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AZ Cop Killer Will Be Parole Eligible: Felicia Fonseca of the Associated Press reports that the schizophrenic murderer of a deputy sheriff, Scott Curley, was sentenced to 25 years with the possibility of parole Tuesday in Arizona. Curley, 25, pleaded guilty to the ambush murder of a Kane County Deputy Officer during a four-day manhunt. Prior to the murder, Curley had broken into the home of a childhood friend and stole an assault rifle. He then held a school custodian hostage at gunpoint before fleeing into the wilderness. Curley pleaded guilty to theft, burglary, aggravated assault, and murder. His plea bargain avoided his going to trial on October 9 on ten counts of sexual exploitation of a minor. He could be released from prison after age 40.

Stanislaus County Jail Inmates Set Fires to Gain Release: Patty Guerra of the Modesto Bee reports Stanislaus County Honor Farm inmates set two separate fires in hopes of being released under AB 109. The first was set Tuesday, the second Monday. Arson without injuries is not eligible for prison as it is considered a nonviolent, non-serious, and non-sexual crime. By burning down the honor farm barracks and no room in the county jail, inmates hoped officials would have to release them back onto the streets in time to go home for Christmas. Stanislaus Sheriff Adam Christianson said, "This is a direct result of Realignment." 

Stockton Gold Chain Robberies Spike: Ron Jones of CBS13 reports Stockton, a city plagued with increased crime due to Realignment, has seen a spike in gold chain robberies in the last six months. Since April, about 250 gold chains have been stolen off persons, most in broad daylight. The peak hours are between 12:00 p.m. and 5:00 p.m. according to police. The most notorious case this year happened on September 17. Armando Pina, 60, was robbed and killed in the middle of the afternoon while taking a walk in a park. Stockton typically has one such robbery occur each day at minimum.

Letting It All Hang Out

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Neal Riley reports in the San Francisco Chronicle:

Undressing in public will likely no longer go unpunished in San Francisco, as the Board of Supervisors voted by the barest of margins Tuesday to ban public nudity.

Derided by nudity defenders as an attack on personal expression and supported by others who've had enough of seeing those who let it all hang out, the legislation bans genital exposure on all city sidewalks, plazas, parklets, streets and public transit.
As for the outdoor venues, I would have thought that San Francisco's permanently chilly weather would be a sufficient deterrent.  I wear a sweater there in August.  But some nudists are determined.

You know what comes next, of course:

News Scan

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CA Death Penalty Must Be Fixed: The Pasadena Star-News reports that since Proposition 34 was voted down, death penalty proponents argue the next step is to fix California's expensive and flawed state execution process. Two changes would streamline executions. The first is to limit the appeals process; the second is to adopt the one-drug lethal injection protocol and abandon the three-drug execution process. Since 1992, 13 inmates have been executed while 84 have died of natural causes. There are more than 720 inmates on death row, 14 of which have exhausted all appeals. Lengthy appeals and procedure could be clarified. Also, capital punishment qualifying special circumstances could be limited. In 1973, there were ten special circumstances; today there are 39. The three-drug method has been challenged, resulting in no executions carried out since 2006. Proponents argue adopting one-drug lethal injections would jump start executions, beginning with the 14 who have no appeals left. It is the same drug used to humanely euthanize family pets.

San Joaquin County Jail Out of Space: Jennie Rodriguez-Moore of the Stockton Record reports officials in San Joaquin County are considering options to add more beds to the Stockton jail. Since the implementation of AB 109, the added 400 inmates pushed the jail beyond its 1,213 capacity. The jail now houses 1,411 on average per day. Furthermore, state parolees are repeatedly committing technical violations and returning to the jail, some as many as 11 times since Realignment began. With prison no longer an option for violators, jails are exceeding capacity and fewer criminals are pleading guilty which is resulting in more trials.

CA Sentences Toll Double-Killer to Death: Demian Bulwa of SF Gate reports Nathan Burris was sentenced to death Tuesday for the 2009 murders of his ex-girlfriend and the man she was seeing at a toll plaza. Continued from this news scan. 

Tuesday SCOTUS Conference

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The US Supreme Court today held a conference and announced it was taking up two cases for full briefing and argument.  Both are civil cases.  Lyle Denniston has this post at SCOTUSblog.

The full conference list is available at the Cert Pool.  Most of the rest of the cases have been turned down, but a few will either be sent back to lower courts to reconsider or be relisted for consideration at a future Supreme Court conference.  We will find out Monday.


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Off-topic but interesting.
The heading of this post might be a bit surprising to some, since the Miller decision by its terms does not affect jurisdictions with discretionary sentencing of juveniles to life-without-parole for murder.  Indeed, footnote 10 of the Miller opinion expressly lists California Penal Code ยง 190.5(b) as one of the discretionary statutes that are fundamentally different from the mandatory scheme declared unconstitutional.

However, on October 12, a California Court of Appeal panel decided in People v. Moffett, A133032 that Miller does change California's system.  See prior post

Then on October 29, the U.S. Supreme Court vacated a California decision and remanded it to a different California Court of Appeal to reconsider in light of Miller.  The case is Mauricio v. California, No. 11-10139.  The correct answer upon reconsideration would be, "Huh? You expressly said Miller was about mandatory sentencing systems, and ours isn't one.  There is nothing to reconsider."  Lyle Denniston has this post at SCOTUSblog.

We hear through the grapevine that the Cal. AG will petition Cal. Supreme for review in the Moffett case.  The state high court should probably transfer the Mauricio case to itself as well.

Mich. App.: Miller Not Retroactive

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In a published decision, People v. Carp, No. 307758, the Michigan Court of Appeals has held that Miller v. Alabama, forbidding mandatory LWOP for juvenile murderers, is not retroactive to cases already final on appeal when Miller came down.  For new cases, Michigan courts will have to alter their procedures.

The court analyzes the retroactivity question under both the federal Teague rule and under the Michigan standard, which is essentially the same as the U.S. Supreme Court's old pre-Teague Linkletter/Stovall rule (still followed in a surprising number of states).  The conclusion section of the opinion is after the jump.

News Scan

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CA Should Adopt Single-Drug Executions: Paul Elias of the Associated Press reports California has 14 inmates on death row who have exhausted all of their appeals. More and more prosecutors, capital punishment proponents, and law enforcement officials are seeking to have the state abandon the three-drug execution protocol and adopt a single-drug lethal injection as six other states have done. Criminal Justice Legal Foundation President Michael Rushford explained that Washington resumed executions six months after adopting the single-drug process. California could do the same. Courts have ordered a halt in executions under California's three-drug protocol since 2006.

Fresno Double-Killer To Be Paroled:
Pablo Lopez of the Fresno Bee reports convicted killer Steven Sanchez will soon be paroled in California. Sanchez was convicted of two counts of first-degree murder in the shooting a pregnant woman and her 3-year-old niece in the head in 1985. He was sentenced to 26 years to life. A policy change adopted for the state parole board in 2008 discounts the severity of the crime and substitutes and evaluation of the murderer's current danger to the public as the deciding factor on which inmates serving indeterminate life terms can be released on parole after serving 85% of their sentence.

GA Supreme Court Overturns Death Sentence: UPI News reports the Georgia Supreme Court upheld Clayton Jerrod Ellington's convictions but overturned his death sentence Monday. Ellington was convicted of the 2006 beating murders with a hammer of his wife and their two-year-old twin sons. His case will receive a new sentencing trial.

Stockton Homicide Rate Increases: Michael Fitzgerald of the Stockton Record  reports Stockton had its 64th and 65th murders of the year Sunday. Stockton had 58 homicides total in all of 2011.

FedSoc Convention

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Regular readers of this blog surely noticed that there were few posts last week other than our News Scan feature.  Bill and I were both at the annual convention of the Vast Right-Wing Conspiracy, alias the Federalist Society.  The program, with links to video of many of the talks, is here.

News Scan

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TX Double Murderer Executed: Michael Graczyk of the Associated Press reports Preston Hughes III was executed by lethal injection Thursday evening in Texas for the 1988 murder of a three-year-old boy and his 15-year-old cousin. He was pronounced dead at 7:52 p.m. Update to this news scan.

CA Governor Seeks Prison Cap Delay:
Paige St. John of the Los Angeles Times reports California Governor Jerry Brown's administration asked federal judges Thursday for a prison population cap delay of six months. Alternative ways to handle prison overcrowding are being discussed. A three-judge panel ordered the state to have an alternative plan ready by January 7.

CA Will Release Kidnap Rapist Under Medical Parole Law: The Associated Press reports a California parole board has agreed to free quadriplegic rapist Steven Martinez under a medical parole law.  The Fourth District Court of Appeal in San Diego ordered his release in an October 25 ruling. The opinion is here. Martinez was sentenced to 157 years to life for kidnapping and raping a San Diego woman multiple times in 1998. He was paralyzed from the neck down when an inmate stabbed him in the neck a decade ago. His medical care has cost the state $625,000 annually.  Now San Diego County will pick up the tab.

News Scan

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TX Carries Out 14th Execution: Michael Graczyk of the Associated Press has this article updating this news scan. Ramon Torres Hernandez was executed Wednesday evening in Texas by lethal injection. Hernandez was convicted in the 2001 robbery, abduction, rape, and murder of a woman from a bus stop. He was pronounced dead at 6:38 p.m.

TX to Execute Double Murderer:
Michael Graczyk of the Associated Press reports Preston Hughes III is set to be executed in Texas Thursday evening. Hughes was convicted in the 1988 murders of a 3-year-old boy and his cousin, a 15-year-old girl. Hughes attacked his victims in a field behind the apartment complex he resided in. The boy was stabbed through the throat and found dead by police upon arrival. The girl, stabbed in the neck and chest.  Before she died at the scene, the girl was able to tell police that Preston attempted to rape her prior to stabbing her.  Hughes was on probation for the sexual assault of a child at the time. 

San Bernardino County Conducts PRCS Sweep:
Richard K. DeAtley of the Press-Enterprise reports on a sweep of 219 post-release community supervision probationers in San Bernardino County that began Wednesday evening.  Officers made 44 arrests and confiscated four handguns, one rifle, one homemade silencer, 1000 rounds of ammunition, other weapons, burglary tools, four pounds of marijuana, and four grams of methamphetamine.  Utilizing the most modern risk assessment instruments, the state of California asserts that only low-risk offenders are left in communities on PRCS.

CJLF has filed an amicus brief in the D.C. Circuit in the case of Cook v. FDA.  This is the case where convicted murderers got an injunction against the FDA allowing any more imports of thiopental, and the judge also order the FDA to "notify" the states that their continued possession and use of the previously imported thiopental is illegal.  The latter holding is remarkable in that it was issued without a single sentence in the opinion to support it and in a case where the entities most affected were not parties.  The Summary of Argument is after the jump.

News Scan

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CA Sex Offenders Violate Parole, Spend Only Days in Jail: Laura Cole of CBS News 13 reports California corrections supervisor Susan Kane, who worked with the California Department of Corrections and Rehabilitation for 30 years, said crime in the state is the worst she has seen. Kane tracks sex offenders in San Joaquin County. She explained that some sex offenders are released from jail and back on the street within a few days of violating their parole. She said, "Oh, it's absolutely crazy, when I look at a case and we put him in jail eight times in the last month and every time we put him in jail, he gets out the next day." In the county, there are more than 50 sex offenders had violated their parole and were released within days in the past two months; about 14 violated their parole more than once.

TX Set to Execute Repeat Killer: Michael Graczyk of the Associated Press reports convicted sex offender and killer Ramon Torres Hernandez is set to be executed in Texas Wednesday evening. Hernandez was one of three convicted for the murder of a 37-year-old woman in 2001. Hernandez, his pregnant girlfriend, and a friend were driving around San Antonio looking for someone to rob. His friend grabbed the victim's purse while she was waiting at a bus stop. When she wouldn't let go, he pulled her into the car. The trio then taped her mouth shut and used a towel to cover her head. They rented a motel room, where they then raped and killed the victim. Hernandez' girlfriend contacted police almost a week later and helped them locate the body. Hernandez was on parole for the rape and burglary of a woman at the time of the murder. DNA also linked him to the rape and murders of two girls, 12- and 13-years old in 1994. Hernandez is also a suspect in the 1994 murders of two 15-year-old girls.

CA Inmate Shot by Guard Identified: The Associated Press reports convicted killer Christopher Sanchez was identified as the inmate fatally shot by a guard at the High Desert State Prison in Susanville last week. Sanchez and another inmate refused to respond to orders from a guard to stop kicking and stabbing another inmate in the yard. Sanchez was serving an 85 year sentence for a shooting that killed one girl and wounded another man in 2009. The names of the other two inmates have not been released.

Law Firm Releases Prison Gang Assault Videos:
The KBOI News 2 Staff reports the law firm representing eight inmates in a lawsuit alleging gangs are running an Idaho prison have released videos of a prison attack. Continued from this news scan.

News Scan

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CA Parolees Removing GPS Monitors: Mike Luery of KCRA 3 reports 1,165 parolees at large in California are have removed required  GPS monitoring devices. Of those, 81% are sex offenders. Under AB 109, this parole violation results in a maximum sentence of 180 days in county jail. State prison officials support making the removal of a GPS monitor a felony, and crime victim advocates intend on taking an initiative to overturn Realignment to voters.

OH Executes Dismemberment Killer: The Associated Press reports Brett Hartman was executed by a one-drug lethal injection of pentobarbital Tuesday in Ohio. Hartman was pronounced dead at 10:34 a.m. Continued from this news scan.

ID Prison Inmates Sue, Gangs Control Prison: Rebecca Boone of the Associated Press reports eight inmates at a private Idaho prison have filed a lawsuit against the Corrections Corporation of America Friday. Officials at the Idaho Correctional Center have allegedly given some control of the prison to gang leaders in order to reduce staffing costs. Officials are said to be utilizing threats of gang violence and housing gang members together to allow for the use of fewer guards. Prison staffers and gang leaders are also allegedly negotiating the placement of new inmates and some guards are not enforcing certain rules out of fear for their own safety.

News Scan

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DNA Identifies Sacramento Roaming Rapist: Don Thompson of the Associated Press reports DNA has identified Derek Sanders as the Sacramento-areas 'roaming rapist'. Sanders victimized 10 girls and women between 14 and 42 from 1998 to 2003. Updated technology allowed law enforcement to match samples taken from victims to Sanders' brother, a convicted felon facing unrelated sexual assault charges. Investigators are working to identify cases linked to Sanders since 2003. Sanders faces 35 counts including kidnapping and the use of a gun during the commission of a rape. He could be sentenced to life in prison if convicted.

Suspect Arrested for LA Bus Rape: The Associated Press reports Kerry Trotter was arrested for the rape of a woman Wednesday on a Los Angeles bus during rush hour that lasted ten minutes. The 18-year-old mentally disabled victim has the mental capacity of a 10-year-old. Trotter has a criminal history of grand theft and possession of cocaine. He has also been investigated in the past for sexual assault.

Dozens in TX Aryan Brotherhood Gang Indicted: The Associated Press reports nearly three dozen Aryan Brotherhood of Texas gang members were indicted Friday, including four top leaders. 15 members were already in custody, 16 were arrested, and three have not yet been arrested. The charges include multiple counts of drug trafficking, assault, fire bombings, kidnapping, attempted murder and murder. 10 of the members face charges which carry a death sentence.

LA Crime Spikes: Ben Welsh and Thomas Suh Lauder of the Los Angeles Times report crime in 21 Los Angeles neighborhoods has increased significantly from October 30 to November 5. Data from the Los Angeles Police Department shows thirteen neighborhoods saw an increase in violent crime; eight saw an increase in property crime.

Dan Carrigan has this story with the above title for WHTM in Harrisburg, Pennsylvania.  After denying a Rule 60(b) motion by a murderer seeking to reopen his federal habeas petition (the common gambit now to evade Congress's 1996 crackdown on successive petitions), the judge issued a certificate of appealability.  However, he failed to specify the issues that warranted an appeal, in violation of the clear words of the statute.  The Third Circuit thought that was sufficient to warrant a stay of execution.  Allowing these kinds of ploys to halt an execution is certainly contrary to the intent of Congress in enacting the successive petition rule.  The Supreme Court needs to crack down on it and implement the intent of the statute.  It declined to do so in this case, however.

Ohio Injection Litigation

Andrew Welsh-Huggins has this article for AP (hat tip, SL&P) on the latest round in Ohio lethal injection litigation. 

A federal judge who has skewered Ohio over the way it carries out executions heaped unusually warm praise on the system and the state prisons director in a recent ruling.

The comments by U.S. District Judge Gregory Frost raise the possibility that successful challenges focusing on the process of putting inmates to death in the state could be coming to an end.

The opinion is quite long but worth reading for anyone involved in this type of litigation.  Frost recounts his earlier criticisms of the state officials, but he hammers the inmate's lawyers as well for playing games:

Second, counsel hopes to gain a strategic advantage by playing hide the ball.  Defendants' [the corrections officials'] counsel was frustrated by an inability to prepare for the specific arguments and evidence that Plaintiff would present at the hearing. Setting aside that Defendants could have sought discovery on these issues, the point here is that Hartman's actions were designed to keep his opponents in the dark until he could turn over his cards only at a time when it might be too late for Defendants to respond effectively. Hartman thus again sought to benefit from being obtuse by gaining a litigation advantage, making hearing preparation more difficult for Defendants and preventing them from fixing any constitutional problems he could have identified in the briefing by the time of the hearing. This Court is interested in getting to the merits of the issues involved, not in playing games.

Now that the single-drug method has eliminated the risk that was the main issue in Baze, murderers seeking to avoid execution claim an equal protection violation for any variation in the protocol.  This is the so-called "class of one" claim.  The Ninth Circuit dealt with that in the Towery case.  (See prior post.)  Frost deals with it at length in this opinion.

Update:  Welsh-Huggins has this story for AP on the completed execution.  "The Ohio Parole Board had unanimously denied Hartman's requests for clemency three times, citing the brutality of the Snipes' slaying and the 'overwhelming evidence' of Hartman's guilt."  The US Supreme Court stay denials are here, here, and here.  No dissent is noted.

It's the Welfare State, Stupid

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The title of this entry is the title of a column by economist Robert Samuelson writing in the Washington Post.  The thesis of the column is that our leaders, out of fear of the political consequences, won't even call the welfare state by its true name, making virtually impossible any discussion of, much less solution for, where it is leading us.

Samuelson points to some mind-numbing figures to show how programs originally intended as subsistence support to the very poor have ballooned out of all proportion to their purpose, not to mention our ability and willingness (other than through limitless borrowing) to pay for them.  I would add, however, two points particularly relevant to criminal law.

First, as discretionary spending gets squeezed by uncontrolled entitlement spending, we will see more and more pressure to release prisoners, shorten sentences and lay off or simply not hire police officers. You don't have to be a genius to figure out what this is going to do to (or should I say for) crime.  Already there are straws in the wind.  C&C has had a number of posts about crime increases in particular areas where California's "realignment" has begun to take its toll.

Even worse over the long run, in my view, is the cultural message of an out-of-control welfare state.  The message is that you aren't responsible for your life and behavior, the government is.  Of course that is a familiar refrain.  Any of us who have participated in a sentencing hearing have heard it.  It's the core of defense counsel's argument as to why his client deserves, not punishment, but a menu of expensive social services (to be paid for by us, although that part gets left out).  It seems to me, then, that those of us concerned about crime have a special stake in reining in the welfare state.  If we don't, we are headed for more crime and fewer consequences.

Veterans' Day

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Public safety is the principal reason we have government.  Most of the time on this blog we focus on the domestic aspect of public safety, protection from crime through law enforcement.  Today, though, let us pause to thank those who have served in the equally important function of national defense.  To all who have served in the defense of our nation and its freedom, our most sincere thanks.

SCOTUS Takes DNA, Ex Post Facto Cases

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The US Supreme Court announced today it has taken up four cases for full briefing and argument, two of them criminal.  Maryland v. King, 12-207, involves collecting DNA from arrestees not yet convicted for burglary or violent crimes.  Prior posts here and here.  The second case, Peugh v. United States, 12-62, has to do with retroactive application of changes to federal sentencing guidelines.

The big news, though, is a civil case, Shelby County v. Holder, 12-96.  Under the Voting Rights Act, people in some places in the United States (e.g., San Benito County, California) can make changes in their local government without prior approval of anyone, while others (e.g., Monterey County, California, right next door) have to go beg Washington for permission.  The difference is not based on anything they have done, but rather on what the people living on that turf 50 years ago did.  Lyle Denniston at SCOTUSblog says the case is "a challenge to Congress's power to protect [minority] groups' rights at the polls," as if this bizarre form of geographic discrimination were actually necessary.

News Scan

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CDCR Considers Discharging 10,000 Missing Parolees: Mike Luery of KCRA News reports the California Department of Corrections and Rehabilitation is reviewing 9,209 arrest warrants for missing parolees in the state in consideration for discharge from parole. CJLF President Michael Rushford said this is a way for the state to eliminate accountability for thousands of repeat offenders and lower recidivism rates. Sacramento County Sheriff Scott Jones predicts releasing these missing felons will cause a rise in the state's crime rates. Sacramento County District Attorney Jan Scully does not think the missing felons should be discharged from parole because the state has not been doing its job. Parole revocation responsibility will move from the Board of Parole to local courts July 1, 2013.

13th TX Execution of Year Carried Out: The Associated Press reports Texas executed Mario Swain by lethal injection Thursday evening. Swain was convicted of the brutal murder of a woman in her own home during the commission of a burglary on December 27, 2002. The woman was stabbed, beaten with a tire iron, and strangled to death. Swain then put her body in the trunk of her car, drove about 120 miles, then dumped her in an abandoned vehicle. He had a notebook with the names of women he intended to follow, rob, and attack. According to Prosecutor Lance Larison, Swain was a "serial killer in training." Swain, Texas' 13th execution this year, was pronounced dead at 6:39 p.m.

OH Execution Set for Dismemberment, Stabbing Killer:
The Associated Press reports Brett Hartman is set for execution in Ohio Tuesday. Hartman was convicted of the murder of 46-year-old Winda Snipes in 1997.  She was found with over 100 stab wounds, her hands cut off and her throat slit.  On Thursday Ohio Governor John Kasich denied Hartman's request for clemency.

SCJC Given Grants to Study Realignment: Natasha Weaser of the Stanford Daily reports grants totaling $650,000 were awarded to the Stanford Criminal Justice Center to research impacts of California's Realignment. Contributors include the U.S. Department of Justice, National Institute of Justice, Office of Justice Programs, Public Welfare Foundation, and the James Irvine Foundation. The four research projects include a review of approaches to realignment by all 58 counties, case studies of  selected counties, and judicial and prosecutor discretion.  SCJC research findings will be shared with policymakers by late summer or fall of 2013.

Studies Show ... Or Maybe Not

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Eric Jaffe has this piece in the Atlantic Cities, Do Foreclosures Increase Crime After All?

A few months ago our Emily Badger reported on a study that found no direct correlation between home foreclosures and crime. The researchers drew that conclusion from a thorough analysis of housing markets and crime statistics in 142 metro areas across the United States. "Moving forward, researchers should begin to think about why the foreclosure crisis is not directly linked to rates of violent and property crime," they wrote.

Before other scholars move forward too quickly, they might consider another study -- this one set to appear in the Journal of Urban Economics -- that reaches the opposite conclusion. The new work, led by Ingrid Gould Ellen of New York University, found that recent foreclosures in New York City led to a 1 percent increase in crime on the same block. The largest effects occurred when properties went all the way through the foreclosure process, either to auction or bank ownership.

Just as important as the foreclosure-crime issue is the lesson about overreliance on studies.  All studies involve assumptions and simplifications.  If they are well-written, these are detailed in the "Limitations" section.  Go there first, just like the footnotes in a financial disclosure.  That's where the bodies are buried.  Different researchers get different and sometimes conflicting answers to the same questions because they made different assumptions or simplifications or used different methods.

Far too often, the "bottom line" of a study is cited in a policy advocacy piece as if it were the definitive word without any indication the study has limitations.  Take such citations with a heavy dose of skepticism.  What "studies show" "ain't necessarily so."

News Scan

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PA Killer Granted Last Minute Stay of Execution: The Associated Press reports the 3rd U.S. Circuit Court of Appeals granted Hubert Michael Jr. a stay of execution Thursday. Michael's case is being sent back to a district court judge for further proceedings. Michael's crime is outlined in this news scan.

CA Double Murderer Faces Death Penalty: Demian Bulwa of the San Francisco Chronicle reports a remorseless Nathan Burris was convicted Wednesday of two murders in California. Burris killed his ex-girlfriend and her male friend with a shotgun at the toll plaza where she worked. He was convicted on two counts of first-degree murder, killing multiple victims, and lying in wait which make him eligible for the death penalty. Burris represented himself and often laughed and cursed at the family of his victims throughout the trial. His penalty hearing is set to begin Thursday.

AZ Shooter Gets 7 Life Sentences: The Associated Press reports Jared Lee Loughner was sentenced to seven consecutive life sentences Thursday. Loughner went on a shooting rampage in Arizona in 2011 that killed six and wounded 13. Loughner had previously pleaded guilty to avoid the death penalty. Discussion of Loughner's plea is here. Further case details are here. It is not yet known where he will serve his sentence.

CA Death Penalty Fixes May Be On Next Ballot: Sam Stanton and Andy Furrilo of the Sacramento Bee have this article discussing the likelihood of another death penalty proposition on the ballot in 2014. Proposition 34 lost 53-47% on Tuesday. Supporters of California's death penalty, including Criminal Justice Legal Foundation Legal Director Kent Scheidegger, are considering going to voters to resume executions in the state. Legislators and state officials could arguably speed up executions in the state easily, beginning with the 14 on death row who have exhausted all appeals.

News Scan

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OK Executes Daycare Killer: Steve Olafson of Reuters reports that Garry Thomas Allen was executed in Oklahoma Tuesday. He was pronounced dead at 6:10 p.m. by lethal injection. Allen had entered a blind guilty plea in the 1986 murder of the mother of his two children. After she arrived to pick up their two young children, Allen shot her four times to death in front of daycare employees. A drunk Allen, who officers found in an alley, attempted to steal the officer's gun and the officer non fatally shot Allen in the face. Allen lost his left eye and suffered some brain damage. Allen was the fifth inmate executed in the state in 2012.

Accused Murderer Attacks Attorney in Court: The Los Angeles Times has this article about accused murderer Rafael Mendoza who slashed the face of his attorney with a makeshift weapon as jurors entered the court Monday. Mendoza allegedly killed a woman whose body was found in 2010. After the attack, Judge Valeriano Saucedo declared a mistrial. Mendoza will face additional charges.

Looting Prompts NY Residents to Take Up Arms After Sandy: CBS New York reports increased looting and thefts in areas that were most affected by Sandy has caused residents to either take up arms or leave town to stay safe.

U.S. Soldier Faces Death Penalty: Bill Rigby of Reuters reports lead prosecutor Lieutenant Colonel Jay Morse is seeking the death sentence for Staff Sergeant Robert Bales. An armed Bales allegedly left his camp twice in one night and killed 16 Afghan villagers, mainly women and children. The hearing is expected to last about two weeks.
Statement of the Criminal Justice Legal Foundation on the defeat of Proposition 34:

The people of California have once again reaffirmed that the death penalty is fundamental justice for the worst murderers.  They did so despite a misleading campaign that massively outspent its opponents.  We had a vigorous debate, and the people have decided.

Prop 34, We Hardly Knew Ye

Prop 34 has been defeated by slightly more than 6%.  That margin is three or four times the national popular vote margin by which President Obama won re-election. Those claiming a mandate for him will have to, if they are consistent, be at least three times as emphatic in noting that California voters have issued  a mandate to keep the death penalty.

There are several things that make this victory even more noteworthy than it seems on the surface.  First, it shows that when the DP is put directly to the people, they want it. Recent repealers  --  for example, in New Jersey, Illinois and New Mexico  -- never went to the people directly, and were engineered by temporary anti-DP majorities in the legislature.

Second, retentionists prevailed while being outspent by probably a thousand to one. The retentionist forces had virtually no budget.  The abolitionist forces were, by contrast, amply bankrolled by, as President Obama is wont to say, millionaires and billionaires.

Third, the people rejected elite and establishment opinion and  --  guess what  --  thought for themselves.  The LA Times endorsed Prop 34, and did most or perhaps all of the big papers in the state (Kent will know the rundown on endorsements better than I).  Academia played its usual totally one-sided (and, fortunately, almost totally ignored) role.  In the end, the unwashed masses, sometimes known as the citizens and taxpayers, had their say notwithstanding the usual lectures from on high.

Fourth, this result came about in an overwhelmingly liberal and Democratic state in a good year for liberals and Democrats.  If abolitionists can't win in this environment, they can't win anywhere.  I strongly suspect they know this, although getting them to admit it will be a different matter.

Fifth, retentionists won despite the deceitful campaign for abolition and the deceptive wording of the initiative.  The idea that there would be any new requirement for inmate-killers to work, or that their doing so would result in any even marginally significant restitution for victim families, was a fraud.

Perhaps the most satisfying lesson to be drawn from Prop 34's not-so-close defeat is that, while people can have their heads momentarily turned by promises of big taxpayer savings, their hearts are still turned by justice. 

A big thank you and well done to California voters. 

Prop 34 Returns

As of 8:54 PST, with 14% of precincts reporting, the California death penalty repeal initiative is behind 43-56.  It's still early. The Secretary of State's web page on ballot measures is here.


9:05 p.m., 20.4% reporting, 44.0-56.0.  Pretty steady so far.

Hang In There, Nino

The next two and probably four years are going to look a lot like the last two.  The Republicans will have a majority of the House.  The Democrats will have a majority but not a filibuster-proof majority in the Senate.  Having established the precedent during the Bush Administration that it is okay to filibuster a judicial nominee simply because you disagree with his philosophy, they will not have standing to complain when Republicans do the same. They will anyway.  President Obama will push the courts in the direction of leftist judicial activism, but his ability to do so will moderated somewhat by the filibuster.

It is likely that Justice Ginsburg will retire during the term.  The fact that Barack Obama and not Mitt Romney will be nominating her successor is a lost opportunity, but the replacement will likely not alter the overall balance on the Supreme Court.  If Obama were to name a successor to Justice Scalia, however, that would be a major (and, IMHO, catastrophic) change.  Let us hope Justice Scalia, and Justice Kennedy as well, stick it out for another four years.  The same is true for persons of sense on the lower federal courts.  Postpone retirement a few more years, folks.
Between the last two elections, the Republicans should have picked up seats in Delaware, Nevada, and Missouri and held the one in Indiana.  They did not because of the nomination of poor candidates.  This year, the Missouri candidate melted down after making an idiotic comment about rape and pregnancy.  The Indiana candidate, after witnessing this meltdown, then made his own idiotic comment on the same subject, followed by a nonretraction, nonapology.

The result of this, pertinent to the topic of this blog, is that the Senate Judiciary Committee will remain in Democratic control, presided over by Patrick Leahy.  That is a huge loss for the cause of justice.  The people who supported these candidates in their primaries, against candidates who would have won the general election, have a lot to answer for.

The Voting Dead

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In the debate over Voter ID, opponents routinely claim that there is no voting fraud, and the ID requirements are just a Republican scheme to keep poor people from voting.* 

Saying there is no voting fraud that would be prevented by an ID requirement because we haven't seen the fraud is kind of like saying Saturn didn't have rings until Galileo looked through his telescope.  Just because you don't have the capacity to see something does not mean it isn't there and you shouldn't acquire the capacity to see it.

Fortunately, there is a way to check to see if one form of voter impersonation is occurring.  NBC Bay Area (San Francisco, not exactly a hotbed of Republican activism) did an investigation on the deceased.  Not only are lots of dead people still on rolls, but far worse than that:

NBC Bay Area found several other examples, too. People like Sara Schiffman of San Leandro who died in 2007 yet still voted in 2008, or former Hayward police officer Frank Canela Tapia who has voted 8 times since 2005, though he died in 2001.

County election officials are responsible for removing names from the voter rolls.

NBC Bay Area gave Contra Costa County Clerk and Recorder Steve Weir a list of more than 100 voters in his county who may have passed away. Around half a dozen of these voters have recorded votes since their death.

"This is embarrassing," Weir said. "This is something we should have caught."

It's more than embarrassing.  It's criminal.  In an election decided by the thinnest of margins, fraud could determine the outcome.  

CNN Story on Prop 34

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Aaron Smith of CNN has this election day story on Proposition 34

America's Choice

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Kent posted earlier today about the importance of the Presidential election in shaping the federal judiciary.  I could scarcely agree more, but there is, in my view, an even more compelling reason that America must make the right choice.

Law, and criminal law in particular, rests on a particular view of human nature:  That adults of sound mind are responsible for their lives and behavior.  Were it otherwise, punishment would be unfair.  If those who commit crime are mere vessels of adverse social forces, we have no business punishing them.  They would deserve, as the defense bar always reminds us, not punishment but service.  The real villain would be, not the criminal, but the rest of us, for having failed to see to it that the fellow who knocked over the gas station or embezzled the church fund or raped the 11 year-old didn't get all the "opportunity" that he "deserved" and thus was "forced" into his misdeeds.

The criminal, in modern left wing parlance, has become the "other"  --  the despised, downtrodden, and (let's not forget) "marginalized" creature against whom society has arrayed its bourgeois forces and anachronistic mores.

The welfare/grievance/nanny state rests on this same view.  The individual has no particular responsibility.  We're all instead a bunch of infants and children, ever in need of therapy, counseling and (of course) a goodly chunk of dough someone else earned  --  all to compensate for the inequities society inflicted on us.

The notion of just punishment will always be playing defense in a culture where that is the reigning narrative.  One candidate buys into that worldview, although he makes occasional attempts to pretend otherwise;  the other, for the most part, doesn't.

Make sure to vote tomorrow.

News Scan

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LA Gang Member Sentenced to Death: The Associated Press reports Superior Court Judge Ronald H. Rose sentenced Pedro Espinoza to death in Los Angeles Friday. Espinoza, a gang member, shot and killed a star high school football player execution-style because he was wearing a red Spider-Man backpack, which Espinoza believed tied the victim to a rival gang. The victim was, in fact, not associated with any gang. Espinoza had been arrested and released from jail on unrelated charges prior to the murder.

FL Jury Recommends Death Penalty:
The Associated Press reports that a Florida jury voted 11-1 last Friday in support of a death sentence for Kenneth Ray Jackson.  Jackson was found guilty of the kidnap, rape, and stabbing murder of a mother of three during her morning jog.  After killing the victim Jackson placed her body in a stolen van which he set on fire.

CA DA Cites Increase in County Crime Since Realignment: Marissa Pendergrass of KION News 46 reports that Monterey County District Attorney Dean Flippo believes crime in California has begun to rise since the implementation of Gov. Brown's realignment (AB109). Since October 2011 implementation of realignment,  Monterey County has received an additional 206 criminals from the state for supervision. According to Flippo, state funding to counties under AB 109 does not account for the costs of increased crime nor increased insurance rates caused by higher crime.  His department is cycling the same so called "low risk" criminals through the system as they commit new crimes upon release.

OK Jury Recommends Death for Killer of Mother, Two Children: The Associated Press reports a jury recommended the death penalty for Shaun Michael Bosse in Oklahoma Friday. Bosse was convicted of killing a mother and her two young children, 8- and 6-years old, in 2010. Bosse was found guilty of killing the mother by sharp-force trauma, before he stabbed the 8-year-old to death. He threw the 6-year-old in a closet and blocked the door, then set the house on fire.  The child died of smoke inhalation.  Bosse was also convicted of arson. Sentencing is set for Dec. 18.

U.S. District Judge Edward Garcia of Sacramento has announced his full retirement, Denny Walsh reports for the SacBee.  He has been on "senior status" for some time.

This is a timely reminder of what is at stake in tomorrow's election.  The President we choose will be choosing the judges of all federal courts for the next four years.  As important as Supreme Court appointments are, the wrong President can also cause grave damage through lower court appointments.  Jimmy Carter got no Supreme Court appointments, thank God and Potter Stewart, but he transformed the Ninth Circuit into the Ninth Circus, and we feel the pain to this day.

Let us hope the American people make the right choice.
Marcos Breton has this column in the Sacramento Bee with the above title.

I covered that story in 1996, when 8-year-old Michael Lyons of Yuba City was murdered by an already-convicted violent sex offender named Robert Boyd Rhoades.

All these years later and I still can't get a single image out of my mind: Michael's little footprints on the interior windshield of Rhoades' truck. The poor little thing frantically pressed his feet against Rhoades' windshield as he undoubtedly wailed and begged for his life while that monster did what he did to him and exerted complete power over Michael in the nightmare of his final hours on this earth.
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Modern DNA evidence has revealed the innocence of long-time death row prisoners in other states. How many of the 13 men executed in California have been found innocent by DNA evidence?


Do I believe it anymore when the California legislative analyst or others cite massive cost savings to issues as complex as repealing the death penalty?


Men like Rhoades, "Night Stalker" Richard Ramirez and others can't simply be put in the general prison population. You're still going to have to segregate them and pay extra for their quarters, whether you call it death row or not. You're going to have to pay for their health care and other expenses.

The pro-Prop. 34 people sound like those who believe that if we just legalize all drugs, that evil, vicious drug dealers will be neutralized. It's a pie-in-the-sky argument. Evil lives whether we want to believe it or not.

If we just distill this unseemly business down to cost savings, we will always be the better for it, right?

Consider the victims of offenders currently on California's death row: 255 children; 43 police officers, 235 people raped and murdered and 90 tortured and murdered.

Fewer than 2 percent of murders in California become death penalty cases. Instead of repealing the death penalty, the worst of the worst criminals in California could be put to death much more quickly and cheaply if the state simply switched to a protocol where one drug is administered by lethal injection. But that change in protocols has been locked up in the courts.

News Scan

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CA Jails Filling Up Under AB 109: Luke Money of the Signal reports county jails in California are expected to reach capacity soon as a result of Gov. Brown's Realignment. CJLF President Michael Rushford said levels of crime will increase with more inmates being transferred from state prisons to jails. Los Angeles County Assistant Sheriff Cecil Rhambo told supervisors that by October of this year, the volume of inmates moved to the county under AB 109 has pushed the population of county jails to 19,000 of the 22,700 capacity. The county receives about 600 transfers every month, and releases about 550 on parole. By the time Realignment is complete, another 8,000 prisoners will be in the county.

Prop 34 Will Reduce Chances to Overturn Convictions: Maura Dolan has this story in the Los Angeles Times discussing that death row inmates oppose Proposition 34 because they would be provided less legal assistance and would no longer be provided lawyers for habeas corpus petitions. Kent Scheidegger, legal director of CJLF, said inmates sentenced to death have a better chance of overturning their convictions than those serving life without parole. Since 1978, California has only executed 13 on death row. According to an informal survey of current death row inmates, many of them would rather gamble on being executed someday than have their attorneys that are provided by the state taken away. About 14 of the 735 inmates on the state's death row have exhausted all appeals.

OH Finds DNA Can Be Kept Indefinitely, Guilty or Not: Kate Irby of the Plain Dealer reports that on Thursday, the Ohio Supreme Court unanimously ruled DNA obtained from a suspect by the state can be kept indefinitely regardless of the suspect's guilt.  Dajuan Emerson was accused of raping the 7-year-old daughter of his girlfriend in 2005. Emerson provided a DNA sample but the seminal fluid found on the girl did not contain DNA that could be matched. Emerson did not seek to remove his DNA profile from the database. In 2007, a woman was found murdered, stabbed 74 times in the body, neck, and torso. DNA was found at the scene on a door handle that did not belong to the victim. The DNA was a match to Emerson. He tried to have the DNA evidence suppressed as an unreasonable search and seizure under the Fourth Amendment, but the court unanimously decided in this opinion that law enforcement officials did not need to obtain a warrant before obtaining a DNA sample. Emerson was sentenced to 25 years to life.

MI Murder Suspect Has History of Attacking, Killing Women: The 24 Hour News 8 Staff reports John White, arraigned Thursday in Michigan for first-degree murder, has an extensive history of hurting and killing women. White admitted he attacked and killed a woman in her trailer on Wednesday. He told police where the victim's body could be found. In 1981, White was convicted of stabbing his 17-year-old neighbor 14 times in her chest and back. He served 2 years of his 5-10 year sentence. In 1995, White pleaded guilty to involuntary manslaughter in the disappearance and death of the 26-year-old woman he was having an affair with. Her body, discovered six weeks after she disappeared, was so badly decomposed that no cause of death could be established. White said it was an accident, though he never explained what happened. He served 12 years for that killing. White is set to be back in court Nov. 8.

LA Times Letters on Prop 34

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The Los Angeles Times has letters to the editor reacting to the October 29 op-eds, noted here.  They include yours truly reacting to Jimmy Carter's article and Gil Garcetti reacting to James Ardaiz's article.

Garcetti claims, "The National Research Council found in April that capital punishment has had no demonstrable effect on murder rates over the last 30 years."  This statement is cleverly worded to mislead people into thinking the report concludes that deterrence has been disproved.  In fact, the report said the evidence does not prove the case either way because these kinds of studies are not capable of definitive proof.  This is a hugely important difference that most people would not pick up from the word "demonstrable" but which allows Garcetti to claim that his statement is not literally false.  In addition, the report plainly states right up front that the conclusions are only those of the individual authors.

Field Poll on Prop 34

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The latest Field Poll shows the "yes" vote on Prop 34 ahead of the "no" but still less than a majority.  This poll is something of an outlier, as all the other polls show the "no" vote ahead.  For results and links to the other polls, see our Polls category on this blog.

Update:  Don Thompson has this story for AP.

Evaluating the DSM

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Steve started off November with a post about the hazards of accepting the new DSM as Holy Writ.  Today's news shines an unflattering spotlight on what can go on in the practice of psychiatry.  And yes, it's not fair to judge the entire profession by the misbehavior of one.  At the same time, it's unwise entirely to ignore specific evidence that those who ooze with alleged concern for the mental health of their charges may have other things in mind.  Sometimes, it's painful to see how literally self-serving the Excuse Industry can be.

News Scan

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CA County Jail Sees Increase in Attacks: Paul Payne of the Press Democrat reports the Sonoma County jail has become more violent since Realignment according to Sheriff Steve Freitas. Inmates have been attacking correctional deputies 70 percent more often since AB 109 took effect. Fights between inmates have also increased. Of the 303 prisoners realigned to the county, 43 reoffended and are back in jail. There are 186 convicted felons who would have received prison sentences prior to Realignment that were sent to the jail, some serving as long as eight-year sentences. With more serious felons entering the jail, more criminals convicted of lesser offenses are being sent home with GPS ankle bracelets.

CA Juvenile Crime Hits Record Low: Rina Palta of KPCC News has this article on a report from the Center on Juvenile and Criminal Justice in San Francisco that shows youth crime was at its lowest in recorded history in 2011 in California. The state began tracking juvenile crime rates in 1954. The report found that in 2011 there were 3,483.1 arrests of offenders aged 10-17 per 100,000 youths in the state. In the mid-90s, there were about 11,000 juveniles incarcerated at any given time. In 2011, the number has dropped to 7,500.  The report's author opines that the relaxing of marijuana laws and fewer teens living in poverty caused the drop.  He said that improved policing and tougher sentencing had nothing to do with it.  Yea right.

SC Seeks Death Penalty: Karen Kissiah of the Cheraw Chronicle reports that South Carolina will seek the death penalty for murderer Nickolas Jermaine Miller. Miller allegedly followed 30-year-old Beverly Hope Melton from a convenience store, ran her car off the road then kidnapped, raped, and brutally beat the woman to death with a baseball bat. The victim's car was found still running on the side of a road. After her body was found, police identified Miller's car in surveillance footage from the store and stopped him. An officer spotted blood on his car and a blood-covered baseball bat in his back seat. Miller was charged with murder and kidnapping, criminal sexual conduct, and torture in the commission of a murder.

Spammer's appeal rejected by high court

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Bob Egelko has this story with the above headline in the SF Chron.

The U.S. Supreme Court has rejected a challenge to California's antispam law, turning down an appeal by a Redwood City advertising company that was assessed $7,000 in damages for sending seven unsolicited commercial e-mails that failed to identify the company as the sender.

The court denied review Monday of Trancos Inc.'s claim that the California law contradicts the federal spam law. The state law is still being challenged in lower federal courts in another case, however, and its status remains unresolved.
The high court is a bit behind the times in terms of electronic filing, but in this case that might be a good thing.  The spammer might have filed 100,000 electronic copies of its cert. petition.

How Good is the Forthcoming DSM?

The Diagnostic and Statistical Manual of Mental Disorders is the gold standard for diagnosing mental disorders in the United States.  It's had rocky days before, but the new edition which is forthcoming this spring looks particularly bad.  And that's not just some arm-chair speculating by yours truly, but from Allen Frances, M.D. who was the chairman of the previous iteration of the manual:

The $3 million DSM-5 Field Trials have been a pure disaster from start to finish. First, there was the poor choice of design. The study restricted itself to reliability -- the measurement of diagnostic agreement among different raters. Unaccountably, it failed to address two much more crucial questions -- DSM-5's potential impact on who would be diagnosed and on how much its dramatic lowering of diagnostic thresholds would increase the rates of mental disorder in the general population. There was no possible excuse for not asking these simple-to-answer and vitally important questions. We have a right to know how much DSM-5 will contribute to the already rampant diagnostic inflation in psychiatry, especially since this risks even greater overuse of psychotropic drugs.

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