December 2012 Archives

Most Interesting Book of 2012

'Tis the season for end-of-year assessments, so my contribution is the most interesting book I read in the last year.  It is Jonathan Haidt's The Righteous Mind: Why Good People are Divided by Politics and Religion.

Haidt explores through the lens of evolutionary psychology why people have such fundamentally different views of right and wrong.  The basic thesis is that we are mostly self-centered beasts, competing with other individuals for survival of the fittest, but there is also a streak of loyalty to our group that sometimes transcends self-interest.  This, too, is a product of evolution, as groups that have such loyalty have a competitive advantage over groups that do not.

In Haidt's Moral Foundations Theory, there are six elements of the moral matrix:  care/harm, liberty/oppression, fairness/cheating, loyalty/betrayal, authority/subversion, and sanctity/degradation.  He then explores how people of different political orientations place differing emphasis on these elements.  Haidt is a liberal, and he unabashedly states that the motive for his research was to help liberals win elections.  He was distressed by John Kerry's dismal campaign in 2004.
You probably think no one would be crazy or perverse enough to name a school after a murderer, right?  Certainly not after the massacre of 20 children at their school became one of the biggest, and most horrible, stories of 2012, right?

But that would only be because you haven't wised up to the imperatives of Entitlement Culture Grievance Mongering.  A California school has, indeed, been duly named for a murderer and outlaw.  This is because he was, dontcha know, "the inspiration for Zorro."

Think I'm making this up?  Get your lesson in the new reality here.
The intentionally provocative title of this post may cause some readers to think that I'm about to go after white prosecutors for ignoring rape in black communities. I'm not. I'm aware that it's often said that prosecutors devalue the lives of black murder victims by seeking the death penalty against their killers less frequently than they seek it when the victim is white (Kent has debunked this claim). I don't think, however, that I've heard a similar claim made about rape cases (I'm all ears if readers know of some).

This is not to say that race-mongering has been absent from the national discussion of rape.  One of the most prominent rape prosecutions in years featured race-mongering on steroids  -- the infamous Duke Lacrosse rape case.  That episode, egged on by seething anti-white bigotry in a depressingly large segment of the faculty at Duke University (the Gang of 88), saw several white students charged with the aggravated rape of a black stripper performing at their frat house.  

The whole thing was a hoax.  It's not just that the players were innocent; it's that there never was a rape.  The episode was made up.  It was given life by a thoroughly crooked white prosecutor, Mike Nifong, who was in a hotly contested Democratic primary for his job and felt like it would be a good idea to play to the considerable race-mongering sentiment then (and now) rampant in his chosen Party.

But I digress.  What occasions my discussion of rape and racism today is the news that our friend, Tawana Brawley, is back.  Can Al Sharpton be far behind?  Or is he too busy receiving plaudits at President Obama's White House?

Subway Suspect's Past

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Pervaiz Shallwani reports in the WSJ:

Long before Erika Menendez was accused of pushing a Queens man to his death on the subway tracks, her mother had called police at least five times over the past seven years to report erratic, sometimes violent behavior related to her daughter's mental health, a law-enforcement official said.

There have been many suggested responses to the Newtown massacre.  Generally, they involve more stringent gun control, improving our ability to commit mentally unstable people, and posting armed guards or police at schools.  All merit discussion, although I have no great faith that, in anything resembling a free country (and probably not a dictatorship either) any of them will work.  The occasional triumph of evil in this world is a part of life we are required to accept.

There is one suggested response, however, that merits no discussion beyond ridicule. Thus I bring you this headline from the Associated Press:  Connecticut Attorney asks to sue state after shooting  Here's the story:

A New Haven attorney is asking permission to sue the state for $100 million on behalf of a student who survived the mass shooting at a Newtown school.

The Hartford Courant reports that attorney Irving Pinsky filed notice Thursday with Claims Commissioner J. Paul Vance Jr. The state has immunity against most lawsuits unless permission to sue is granted.

Pinsky said the 6-year-old student, identified as "Jill Doe," was in her classroom at Sandy Hook Elementary School on Dec. 14 when "the horrific confrontation" with Adam Lanza came over the loudspeaker.

Pinsky said the student has been traumatized by the killings, and accused the state of failing to protect students from "foreseeable harm."

The actual foreseeability of a student's being attacked in a mass school shooting is considerably less than the foreseeability of being struck by lightning on the playground.  Maybe Mr. Pinsky should sue thunderstorms, too.

[Editor's update note -- see follow up post.]

Liberals and, especially, libertarians, have unending heartburn about imposing criminal punishment for non-violent, regulatory offenses.  One particular provision that gives them fits is the federal false statements statute, 18 USC 1001, which makes it a felony for a person to make a false or deceptive statement  to any department or agency of the United States in any matter within the agency's jurisdiction.

Having some libertarian sympathies, I can understand, at least, the misgivings about criminalizing such statements.  I am not alone in this.  The most prominent example of judicial willingness effectively to circumvent the false statements statute lay in many courts' acceptance of the "exculpatory no" doctrine, in which an interviewee's simple, though false, denial of wrongdoing in response to an investigator's question was held to be outside the statute.  (The "exculpatory no" doctrine was brought to an end in 1998 in Brogan v. United States).    

It is true that Section 1001 is potentially subject to abuse by prosecutors.  On the other hand, it would be hard to find a statute that is not "potentially" subject to abuse.  It seems to me to be very much an overdrawn conclusion that potential abuse outweighs the damage to legitimate governmental functions that can be caused by lying.  I also think libertarians focus on the perils of excessive government to the unhealthy exclusion of understanding the moral rot, and the damage, created by our present culture of deceit. That, however, is a subject for a post of its own.

For the moment, I want to return to the question posed by the title of this post, namely, whether we should criminally punish non-violent, regulatory offenses. I would simply ask readers to decide for themselves.

Gallup Poll on Gun Control

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Lydia Saad of Gallup reports on a post-Sandy Hook poll.  The most striking result is the question on banning handguns, which Americans now oppose by a whopping 74-24.  Asked if laws governing sales should be made more strict, less strict, or kept the same, 58% said more, 34% same, and 6% less.  When asked if they prefer stricter enforcement of current laws or passing new laws, respondents were almost equally divided.

Gallup gets a round of raspberries for this confusing question:  "Are you for or against a law which would make it illegal to manufacture, sell, or possess semi-automatic guns known as assault rifles?"  A great many people do not know that so-called "assault rifles" are only a subset of semi-automatics, and the question compounds the confusion.  Among the confused people is the person who wrote the captions for the graphs in this report.  The graph for the above question is captioned:  "Support for Ban on Semi-Automatic Guns."  Um, no.  The result, for what it's worth, is 51% no and 44% yes.

News Scan

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National Prison Population Declined in 2011: Statisticians E. Ann Carson and William J. Sabol of the Bureau of Justice Statistics report prison populations in 26 states declined in 2011. The largest decline of 15,493 inmates occurred in California due to Governor Jerry Brown's "Public Safety" Realignment (AB109). The policy accounted for 72 percent of the national prison population decline of 21,614. This decline, offset by 6,591 new prisons entering the system, resulted in 15,023 fewer prisoners incarcerated in the U.S. in 2011 overall. In Florida, Michigan, New Jersey, New York, and Texas, the prison populations declined by about 1,000 convicts last year.

Oakland Officials Hire Consultants After Violent Crimes Surge: Terry Collins of the Associated Press reports Oakland city officials announced Thursday they hired Bill Bratton to help with developing strategies to reduce murders and violent crime in the city. In 2012, Oakland homicides increased to 127 from 110 the previous year. Violent crime increased 23 percent in the same time period.  Bratton was the former Los Angeles police chief from 2002 to 2009, and New York City police commissioner from 1994 to 1996. He is an expert in fighting gang violence, reducing violent crime, and strengthening police-community relations. Joining Bratton is police strategist Bob Wasserman, who heads the Strategic Policy Partnership based out of Boston. Wasserman is already reviewing the entire Oakland Police Department. Bratton will join him early 2013.  

CT Geneticists to Study School Shooter DNA: Shushannah Walshe of ABC News reports University of Connecticut geneticists will be studying the DNA of school shooter Adam Lanza. The geneticists were approached by Connecticut Medical Examiner H. Wayne Carver. They will be looking for mutations or abnormalities that could be linked to violent behavior and aggression. This is the first time a DNA study has been done on a mass killer.

NYC Homicides at Record Low in 2012: The Associated Press reports New York City anticipates a record-low number of homicides for 2012. Homicides in the city declined 19 percent from last year. There were 414 homicides in 2012, compared to the previous record low of 471 in 2009. Shootings have also declined by 8 percent. Mayor Michael Bloomberg and Police Commissioner Raymond Kelly give credit to the stop and frisk tactic adopted by the city in the mid-1990s. According to Kelly, the stops take about 8,000 weapons, 800 of which were illegal, off the streets annually. While 237 of the homicides in 2012 were shooting deaths, the number declined 20 percent from 2011. The police commissioner said, "We're preventing crimes before someone is killed and before someone else has to go to prison for murder or other serious crimes."

Chicago Homicides Spike: Jeremy Gorner and Peter Nickeas of the Chicago Tribune report Thursday's shooting brought Chicago's annual death toll to 500, the highest since 2008. Homicides in Chicago are up 17 percent in 2012. Shootings are up 11 percent. Within the first three months of the year, homicides in the city were already up 60 percent compared to 2011.

Senate Passes FISA Renewal 73-23

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Ellen Nakashima reports in the WaPo:

Congress approved a measure Friday that would renew expansive U.S. surveillance authority for five more years, rejecting objections from senators who are concerned the legislation does not adequately protect Americans' privacy.

The bill passed the Senate 73 to 23. The House approved it in September and President Obama is expected to sign it before the current authority expires on Monday.

The lopsided Senate vote authorized a continuation of the government's ability to eavesdrop on communications involving foreign citizens inside the United States without obtaining a specific warrant for each case. The surveillance has been credited with exposing several plots against U.S. targets, but also drawn fire from civil liberties advocates.

News Scan

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NY Ex-Con Sets House Ablaze, Shoots Firefighters: The Associated Press reports ex-convict William Spengler set his home on fire then shot two responding firefights to death in New York on Monday. One of the victims was a police lieutenant and volunteer firefighter. Police believe the charred remains found in the home is Spengler's sister. He had been convicted of killing his grandmother with a hammer in 1980. After serving 17 years, he was released and was not to possess weapons. Despite this, Spengler used an assault rifle to murder two firefighters before killing himself on a nearby beach, where his body was found. He also non-fatally shot two more responding firefighters. He left behind a suicide note explaining his enjoyment of killing people. Seven more homes also caught fire. Residents of the neighborhood had been evacuated, and returned Tuesday.

FL Has Most Death Sentences in 2012:
Rafael Olmeda of the Sun Sentinel reports Florida sentenced 21 inmates to death in 2012, more than any state nationally. The state executed three people last year, including rapist and murderer Robert Waterhouse, former police officer Manuel Pardo who killed nine in 1980, and David Alan Gore, a serial rapist who confessed to killing six people. Last year, California came in second with 14 put on death row. Texas sentenced nine to death and executed 15 inmates. Arizona, Mississippi, and Oklahoma executed six each. Delaware sentenced just one to death. There were 14 states who did not send anyone to death row last year. There are 33 states who have the death penalty in the nation.

CDCR Reviewing SHU Inmates: Paul Elias of the Associated Press reports California Department of Corrections and Rehabilitation officials will be reviewing case files of thousands of inmates in secure housing units to determine transfer eligibility. According to the CDCR, SHU prisoners are dangerous and must be isolated in order to stop them from running gangs and dealing drugs outside of prison. System-wide, about 6,000 inmates went on a hunger strike to bring attention to the poor living conditions of the units. The transfers would be back into the general prison population. Since October, 88 cases have been reviewed with lighter regulations; 58 will be transferred, and 25 are eligible to work toward reintegration. Prior to October, 63 SHU inmates were transferred in 2012. The new regulation will remain in effect until October 2014, at which point it will be reworked then become permanent.

CA Governor Grants 79 Pardons for Convicted Felons: The Associated Press reports the California Governor's Office announced Monday that Governor  Jerry Brown granted pardons to 79 convicted felons. They had been convicted of crimes including drug offenses, robbery, theft, and driving under the influence. They had served their sentences and had not re-offended in at least a decade following their convictions. The pardons restore the right to own a firearm if the felon was not convicted of a crime involving a deadly weapon. Their criminal record will not be erased.  
Kevin Cooper is on death row in California, convicted of four murders and one attempted murder.  Three of the victims, including the survivor, were children.  Cooper has sought and obtained post-conviction DNA testing of evidence in the case, which further confirmed his guilt. See prior posts here and here.  He continues to demand further testing.

California has a statute on DNA testing, Penal Code § 1405.  The state court found Cooper did not qualify, finding among other things that the tests Cooper wants would not be any better than the ones already done.  Instead of seeking review up the appellate chain, Cooper ran over to federal court and filed a civil rights suit under 42 U.S.C. §1983.  Can you use a federal civil suit as a de facto appeal from a state court decision in this manner?  No, the Ninth Circuit decided yesterday in Cooper v. Ramos, No. 11-57144.

The Rooker-Feldman doctrine instructs that federal district courts are without jurisdiction to hear direct appeals from the judgments of state courts. Congress, in 28 U.S.C. § 1257, vests the United States Supreme Court, not the lower federal courts, with appellate jurisdiction over state court judgments. Lance v. Dennis, 546 U.S. 459, 463 (2006) (per curiam). Accordingly, "[r]eview of such judgments may be had only in [the Supreme] Court." District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983). The doctrine bars a district court from exercising jurisdiction not only over an action explicitly styled as a direct appeal, but also over the "de facto equivalent" of such an appeal. Noel v. Hall, 341 F.3d 1148, 1155 (9th Cir. 2003).

The opinion is by Judge McKeown, with Judges Gould and Tallman concurring.

Update:  Richard DeAtley has this article in the San Bernardino Press-Enterprise.
We have noted controversies over harvesting organs from executed inmates in posts last year (here and here). Taiwan has actually done this, Agence France-Presse reports, so apparently the practical problems are manageable.

Criminal Lecturing

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Can it be a crime to give a lecture?   Has the FDA enforced the FDCA that way?  Harvey Silverglate has this op-ed in the WSJ:

Peter Gleason was a psychiatrist who devoted much of his professional life to caring for what government officials call "underserved populations." He would have been thrilled to learn that on Dec. 3 in New York, a three-judge panel of the U.S. Court of Appeals for the Second Circuit issued a ringing opinion that vindicated the conduct for which he was indicted and arrested in 2006.

Unfortunately, Gleason did not live to see this welcome reversal of the federal government's crusade against him and the promotion of Xyrem--a drug widely used by physicians, including Gleason, to treat a number of medical conditions beyond what the federal Food and Drug Administration approved it for. Hounded for years, he saw his career and finances ruined by the relentless war waged against him by FDA bureaucrats and Justice Department prosecutors. Gleason committed suicide on Feb. 7, 2011.

Silverglate neglects to mention that the panel was actually divided 2-1.  The opinion is here.  The majority's concluding paragraph reads:

Accordingly, even if speech can be used as evidence of a drug's intended use, we decline to adopt the government's construction of the FDCA's misbranding provisions to prohibit manufacturer promotion alone as it would unconstitutionally restrict free speech. We construe the misbranding provisions of the FDCA as not prohibiting and criminalizing the truthful off-label promotion of FDA-approved prescription drugs. Our conclusion is limited to FDA-approved drugs for which off-label use is not prohibited, and we do not hold, of course, that the FDA cannot regulate the marketing of prescription drugs. We conclude simply that the government cannot prosecute pharmaceutical manufacturers and their representatives under the FDCA for speech promoting the lawful, off-label use of an FDA-approved drug.
The opinion strikes me as narrower and less "ringing" than one would gather from Silverglate's description.  Nonetheless, it does move the ball in the direction of less regulation, and less criminalization, of commercial speech.  Given the importance of the subject and the fact that the panel was divided, further review en banc or in the Supreme Court is a substantial possibility.

Merry Christmas To All

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We will take a break from our usual topics today and wish all our readers a merry Christmas and a happy and prosperous new year.

News Scan

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TX Killer Set for Execution, Again: Renée C. Lee of the Houston Chronicle reports Texas death row inmate Larry Swearingen is set to be executed February 27, 2012. Swearingen was convicted in 2000 of the December 8, 1998 kidnapping, sexual assault, and strangulation of a 19-year-old girl. Her body was dumped in a forest and found on January 2, 1999. A reprieve from the state appeals court was issued before he was to be executed on August 18, 2011. This is the fourth execution date set for Swearingen in the last five years.

US Marshals Capture One of 15 Most Wanted in FL: The U.S. Marshals Service reports Felipe Torrealba, one of the agency's 15 Most Wanted, was captured Thursday in Florida. Torrealba was wanted for questioning in the 2012 murder of a 42-year-old man. He also had outstanding warrants for possession and intent to sell cocaine, oxycodone trafficking, aggravated assault with a firearm, resisting officers with violence, aggravated battery of an officer, and unlawful flight to avoid prosecution. He has an extensive, violent criminal history which began in 2000. Torrealba had eluded capture at least three times, including January, April, and August. He was placed on the Most Wanted list in October.

NRA Calls For Armed Security at Schools: Philip Elliot of the Associated Press reports that National Rifle Association head  Wayne LaPierre told a Washington news conference Friday that every school nationally needs armed police officers to be posted to protect students and faculty. The statement was in response to the Connecticut school shooting last Friday, covered in this News Scan, which claimed the lives of 26 staff members and young students. The shooter also killed his mother before going to the school, and lastly himself. The NRA will have former U.S. Rep. Asa Hutchison (R-Ark) lead a program to devise a school security plan which utilizes armed volunteers.

Searching For Motive

Tim Craig reports in the WaPo, "State police officials said Thursday that it will take months to determine why Adam Lanza massacred students and staff at Sandy Hook Elementary School, as investigators struggle to assess his mental state prior to the shootings."  Among other problems, Lanza attempted to destroy his hard drive, so it will take some special techniques to get any useful information from it.

This is just one more way that this case contradicts our initial thoughts.  Some in the media, both old and new, were saying immediately afterward that the media should not mention Lanza's name, show his picture, or ask about him, because postmortem infamy is what motivates killers in these kinds of cases.  Yet it appears in this instance that Lanza tried to conceal, rather than promote, whatever it was that motivated him.

Charles Krauthammer has this column, also in the WaPo.  He has no problem in principle with gun control but notes that the last assault weapons ban did not work and the new legislation being proposed will not work, either.  Lanza would have killed just as many children if he had been armed with a weapon that was not classifiable as an "assault weapon."  Psychiatrist Krauthammer notes the problem with involuntary commitment laws and how stronger ones might have allowed Jared Loughner to be committed, but as Steve pointed out on this blog, it is unlikely that would have made a difference in Lanza's case.

More generally on the search for solutions, Debbie Dingell has this op-ed:

Still Here, But You Need to Watch the Weather

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The Original Originalist

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Adam Freedman has this article in the City Journal:

With the passing of Judge Robert Bork at 85, America has lost one of its most influential legal scholars. Though media obituaries tend to focus on Bork's unsuccessful nomination to the Supreme Court in 1987, Bork's legacy is one, not of failure, but of enormous success.
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No Supreme Court nominee today dares disavow originalism or declare his or her sympathy with a "living Constitution" philosophy. When Elena Kagan faced Senate confirmation for the Supreme Court in 2010, she went out of her way to praise originalism as an interpretive method. As the future justice explained: "Sometimes [the framers] laid down very specific rules. Sometimes they laid down broad principles. Either way, we apply what they say, what they meant to do. So in that sense, we are all originalists."

Indeed we are. And for that, we should thank Robert Bork.

In constitutional criminal procedure, the Supreme Court has largely embraced originalism in its interpretation of the Confrontation Clause.  If we can extend that to Fourth Amendment remedies (not including exclusion of evidence) and to the Witness Against Himself Clause, we can make some real progress.

Notice I did not say "Self-Incrimination Clause."  There is no such clause in the Fifth Amendment.

Still Here

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The end of the world would be news, but the fact that the world did not end on a given day shouldn't be.  It is, though, because the world contains a disheartening number of unbelievably flaky people.  Vanessa Gera has this story for AP.  Prior post here.

As long as we are on calendar predictions, though, I will stick my neck out and boldly predict that days will be getting longer in the Northern Hemisphere for the next six months.  See also this post by Justin Grieser at the WaPo.

Non-Indian Defendants and Tribal Courts

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When a non-Indian defendant is accused of a crime on tribal land, in what court should that case be tried?

There is a provision in the Violence Against Women Act reauthorization bill for certain crimes to be prosecuted in tribal courts.  House Majority Leader Eric Cantor is against that.  Jonathan Capehart at the WaPo has this over-the-top post contending that Cantor's position is "trying to protect white men from prosecution." 

Basically, right now, if you are a non-Native American man who beats up, sexually assaults or even kills a Native American woman on tribal land, you'll get away with it. That's because tribal courts do not have jurisdiction to prosecute non-Indian defendants. In addition, federal and state law enforcement have limited resources and might be hours away from a reservation.
That's a pretty far-fetched accusation.  The statement about law enforcement is irrelevant, because the dispute is not about the investigation of the crime but the prosecution of it.  It is not at all unusual for a crime to be investigated by law enforcement officers of one jurisdiction and prosecuted in the courts of another.  It happens all the time in drug cases, for example, when local police bust the drug operation and the U.S. Attorney takes the prosecution to federal court.

Capehart cites the percentage of cases declined by federal prosecutors to support his claim that lack of tribal court jurisdiction means the perpetrator gets away with it.  But the report he cites notes that the most common reasons for the declinations are weak evidence, "witness problems," no federal offense, or "suspect to be prosecuted by other authorities."  The last category obviously does not mean he gets away with it, and the next-to-last often does not.  The others mean reasonable doubt of guilt.  Is Capehart suggesting we dispense with the reasonable doubt requirement?

If these cases are being insufficiently prosecuted, that is a problem that needs to be addressed.  But Capehart has not made the case that the problem exists, and expanding jurisdiction of tribal courts to non-Indians is not necessarily the optimum answer.  Capehart's hyperbolic attack on Cantor is unwarranted.

News Scan

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Judge Awards Over $700K to Transgender Killer's Attorneys: Milton J. Valencia of the Boston Globe reports Chief U.S. District Judge Mark L. Wolf announced Thursday he will award the lawyers of convicted killer Michelle Kosilek more than $700,000 in legal fees. Kosilek is transgender, and sued the state to be given sex reassignment surgery. As reported in this News Scan, Judge Wolf had granted Koselik's request for the operation. The decision was appealed by the state of Massachusetts.  (USCA1 No. 12-2194.)  As this News Scan explains, the surgery would cost taxpayers about $20,000. Kosilek, known as Robert at the time of the killing, was convicted in 1990 of murdering his wife. He has since undergone hormone treatments and currently lives in an all male prison as a woman. The state Department of Corrections argued the hormone treatment is adequate, so his Eighth Amendment right is not being violated.

AZ Jury Recommends Death For Father That Killed His Kids: The Associated Press reports the jury in the case of Andre LeTeve recommended the death penalty in Arizona Thursday. The same jury convicted LeTeve of the March 31, 2010 shooting his two sons, ages 1 and 5, to death.  LeTeve also attempted to commit suicide before calling the police to report the killings.  He was going through a divorce and facing financial ruin at the time of the murders.

UT Company's Bulletproof Backpack Sales Skyrocket: CBS Los Angeles reports a Utah-based company called Amendment II has sold out of bulletproof Ballistic Backpacks for girls, boys, and teen/young adults following the Connecticut school shooting last Friday. The demand by customers on the online store has actually caused the company's site to crash multiple times. The backpacks have a carbon nanotube lining.  They cost $300 a piece and are slightly heavier than a regular backpack. The company also sells children's tactical vests and adult designer armor.

The Lowest of Scammers

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Christina Rexrode and Robert Ray have a story for AP that makes me hope that Dante's vision of The Inferno is somewhere close to correct and that there is a special place in it for these perpetrators:

NEWTOWN, Conn. (AP) -- The family of Noah Pozner was mourning the 6-year-old, killed in the Newtown school massacre, when outrage compounded their sorrow.

Someone they didn't know was soliciting donations in Noah's memory, claiming that they'd send any cards, packages and money collected to his parents and siblings. An official-looking website had been set up, with Noah's name as the address, even including petitions on gun control.

Noah's uncle, Alexis Haller, called on law enforcement authorities to seek out "these despicable people."

Robert Bork

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Bill noted earlier today the passing of Robert Bork.  As an advocate of judicial restraint, Bork has an important place in American jurisprudential thought.  Courts have, in fact, exercised will instead of judgment, substituting their pleasure for that of the legislative body.  (Cf. Federalist No. 78.)  The Supreme Court has done that from Dred Scott v. Sandford (1857) to United States v. Alvarez (2012) and many times in between.

I did not agree with Bork on everything, though.  To this day, I shake my head when I read his words from 1971, "Constitutional protection should be accorded only to speech that is explictily political. There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary or that variety of expression we call obscene or pornographic."  Porn is one thing, but to say that Congress could declare an official dogma on, e.g., global warming and forbid expression of a dissenting view is more than one bridge too far.

That said, Bork was an important force moving constitutional jurisprudence in the direction it needed to move.  Judicial activism was and remains a far greater danger than its opposite, which for want of a better term I call judicial refractivism.  Excessive deference to the legislative authority -- upholding acts that really are contrary to the Constitution as originally understood -- does happen, but it is far less common than judicial activism, striking down a constitutional law because the judge disagrees with it.  Judicial activism remains the principal danger, and we lost a strong voice against it today.
Ted Barrett reports for CNN:

Sen. Barbara Mikulski, D-Maryland, will step up to the helm of the Senate Appropriations committee, three Democratic sources told CNN....

Her assignment to that committee comes after Sen. Patrick Leahy said earlier Wednesday he would not take the post. He chairs the Senate Judiciary Committee and became the most senior Democrat in the Senate after the death this week of Sen. Daniel Inouye of Hawaii, who previously chaired the Appropriations committee.

Sen. Dianne Feinstein, D-California, who was planning to take over the Judiciary Committee if Leahy vacated the chairman's job, will instead remain the chairman of Senate Select Committee on Intelligence, according to Feinstein who spoke to CNN.

See Bill's earlier post.

New Cal. Prison Chief

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On December 8, 2008, in a trial in which prison inmates sought to force the State of California to release prisoners, an expert witness on behalf of the inmates was Jeffrey Beard, the head of the Pennsylvania prison system.

Four years later, Gov. Jerry Brown has chosen Jeffrey Beard to head the California prison system.  David Siders has this post at the SacBee Capitol Alert blog.  I will reserve judgment for now, but that is not a good sign.

One thing I want to know from Mr. Beard.  Will you, unlike your predecessor, use the authority you have under the law to invoke an exception to the Administrative Procedure Act, put into immediate effect an execution protocol that will meet the requirements imposed by the federal court, move to lift the stay, and get executions promptly restarted?

Click your ruby slippers three times and say, "single drug, operational need."

News Scan

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CO Gunman Kills 3, Himself Hours After Jail Release: Dan Elliott of the Associated Press reports Daniel Sanchez murdered three people before killing himself Tuesday in Colorado. The victims include Sanchez's ex-girlfriend, her sister, and her sister's husband. On Saturday, Sanchez was arrested and put in jail on domestic violence, kidnapping, and false arrest charges for holding his ex-girlfriend against her will following their break up. He made bail and was released Monday night. He drove to his ex-girlfriend's sister's house six hours later, used a handgun to gain entry, and killed the couple in one bedroom. Then, while his ex-girlfriend was on the phone with 911 reporting gunshots, Sanchez killed her. He then got on the phone and told the dispatcher he killed three people and will be killing himself. One last gunshot was heard. Police found Sanchez and his ex-girlfriend in the same room.

Gun Sales Surge After CT School Shooting:
Matt Townsend of Bloomberg News reports gun sales and prices have surged following the Connecticut elementary school shooting last Friday. Walmart stores in five states are said to be sold out of several kinds of semiautomatic rifles. Some gun retailers are seeing record-breaking sales nationwide. On Ebay, the prices for handgun magazines have doubled and, in some online auctions, tripled. President Barack Obama Wednesday said he endorses restricting military-style assault rifle and high-capacity magazines. His administration is expected to present proposals next month in an effort to reduce gun violence in the nation.

DNA Bill Passed in House, Awaiting Senate: Kitty Felde of KPCC News reports Katie's Law passed in the House of Representatives Tuesday. The bill, introduced by California Congressman Adam Schiff (D), would provide funding to states for DNA collection from anyone arrested for a felony. This includes murder, kidnapping, aggravated assault, sexual assault, and burglary. About half the states in the nation already collect DNA from all felony offenders. A Senate version is awaiting a floor vote. If it is not passed in the Senate by December 31, Katie's Law will be reintroduced in the new Congress in 2013. More information about the bill can be found here.

KS 'In Cold Blood' Duo Exhumed: The Associated Press reports the bodies of executed Kansas killers Richard Hickock and Perry Smith were exhumed for DNA samples and reburied Tuesday. Hickock and Smith were hanged for the November 15, 1959 murders of the Clutter family in Kansas, the focus of Truman Capote's true-crime novel, In Cold Blood. The duo is also suspected in the murders of a Florida family on December 19, 1959. Investigators will test whether DNA collected from the exhumation may link the killers to the Florida killings. Continued from this News Scan.

Update on Two Military Cases

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AP reports:

The U.S. Army said Wednesday it will seek the death penalty against the soldier accused of massacring 16 Afghan villagers during pre-dawn raids in March.

The announcement followed a pretrial hearing last month for Staff Sgt. Robert Bales, 39, who faces premeditated murder and other charges in the attack on two villages in southern Afghanistan.

*                                     *                             *

Bales' defense team has said the government's case is incomplete and outside experts have said a key issue going forward will be to determine whether Bales, who served tours of duty in Iraq and Afghanistan, suffered from post-traumatic stress disorder.

Meanwhile, back in Fort Hood, AP reports

The Army psychiatrist charged in the deadly Fort Hood shooting rampage apparently will be allowed to keep his beard during his military trial, after a new judge indicated Tuesday that she won't force him to shave.

The previous judge's order requiring Maj. Nidal Hasan to be clean-shaven or be forcibly shaved before his trial had tied up the case for more than three months, but an appeals court ousted that judge earlier this month.

Both crimes warrant the death penalty.  In Bales's case, PTSD is not remotely close to a mitigating circumstance sufficient to outweigh the aggravating.  In Hasan's case, it was preposterous to hold up the trial for three months over the military's beard-phobia.  Get on with the trial, expedite the review, and actually carry out the sentence.  Military justice is supposed to be swift, remember?

Execution Numbers Steady in 2012

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The number of executions in the United States was steady this year.  There were 43, exactly the same as last year.  So how do you spin that into the narrative that America is supposedly turning away from the death penalty?  The ever-creative Death Penalty Information Center manages.  Andrew Ramonas has this story in the National Law Journal.  To his credit, he identifies DPIC right up front as "an anti-death penalty group."  (For years after DPIC emerged, they had the press referring to them as a neutral group.)

"But the number of executions has dropped by 56 percent since 1999."  This is DPIC's favorite tactic, cherry-picking the reference point to show a dramatic change when the reality is far less dramatic.  The full table of number of executions from 1930 to 2010 is in the Sourcebook.  The last two years are both 43, as noted above.  Congress passed a major reform of federal habeas corpus in 1996 (AEDPA), the most immediately effective portion of which was a strict limit on successive petitions.  As a result, there was a spike in the years following that enactment, with 98 executions in 1999 being the peak.  There were 45 in the year AEDPA was enacted, 56 in the year before that, and all of the years from the restoration of capital punishment through 1994 were below this year's total.  More recently, the average number of executions for the period 2007-2010 is 44.25.  So actually the number has settled back from the post-AEDPA spike to a plateau in the neighborhood of pre-AEDPA levels, and this year's number is essentially unchanged from the numbers of recent years.

Choosing as your reference point a year in which the number was unusually high or low due to a special event is deeply dishonest, a prime example of how to lie with statistics.  I could say that this year's numbers are an infinite percentage increase over 1972, but I won't.

Well, That's Different

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A psychiatrist in France has been convicted of manslaughter for failing to recognize the "grave risk" posed by one of her patients who later brutally murdered an elderly man.   

A court in Marseilles said Daniele Canarelli, 58, had committed a "grave error" by failing to recognize the public danger posed by Joel Gaillard, her patient of four years.

Gaillard hacked to death 80-year-old Germain Trabuc with an axe in March 2004 in Gap, in the Alps region of southeastern France, 20 days after fleeing a consultation with Canarelli at Marseilles's Edouard Toulouse hospital.

Canarelli was handed a one-year prison sentence and ordered to pay 8,500 euros to the victim's children, in the first case of its kind in France. Defense lawyers said the ruling would have serious repercussions for treatment of the mentally ill.

I'd like to know more details about the case, but this seems on its face a bit heavy handed (what happened to the United States being the overly-aggressive, prosecutor-oriented bad guy?)

Robert H. Bork, 1927-2012

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Judge Robert H. Bork died this morning at age 85.  As noted by Carol Liebau in

Although he was best known by the public for the contentious Supreme Court hearings that resulted in his nomination to the Supreme Court being defeated -- and because the...lies about his views purveyed by the likes of Ted Kennedy created the term "Borking" -- he held a significant place in American public life for a long time.

He was an antitrust scholar, a Yale Law School professor, Solicitor General, Acting Attorney General and a judge on the DC Circuit. He was also the author of fine books including Slouching Toward Gomorrah and The Tempting of America.

By all accounts, he was a man of great intellect and personal integrity -- who refused to tailor his views to prevailing notions of political correctness. He paid a price for that.

Our Congress has had any number of disgraceful episodes, but few were as disgraceful, or as damaging to the country, as its rejection of Bork's Supreme Court nomination.  The jurist eventually confirmed for the Court, Justice Anthony Kennedy, has cast decisive votes in watershed criminal cases that almost certainly would have gone the other way had Judge Bork been in that seat.

I knew Judge Bork slightly; my wife knew him better.  His intellect was astonishing. We will miss him, and the law will miss him.

Well That Didn't Take Long

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Last month, Washington state legalized (as a matter of state law) the recreational use of marijuana.  Earlier this week, we saw what the "recreation" looks like, as reported on a Fox TV station.  As the story notes, "Police believe this is the first deadly crash involving the drug since it became legal in the state of Washington."

Some caveats:  There were of course deadly crashes involving pot before it became "legal."  And the pedestrian here appears to have been partly to blame.  There is no indication that the driver was smoking pot simply because it had become legal; he might have been smoking it for years, so far as the story reveals.

But none of that is the point.  The point consists of several facts:  (1) that, as everyone knows, marijuana decreases percipient ability, reaction time and reflexes; (2) therefore, if you drive while impaired by pot, you are, not to put too fine a point on it, a menace; (3) that legalization reduces the risks and costs of using that which is legalized, and sends a signal of official acceptance; and (4) when that happens, usage will increase and, inevitably, more people will be driving around stoned.  None of this is rocket science, and all of it was or should have been known before the referendum.

The bottom line is that increasing the easy availability of dope will increase its use, and increased use is going to get more people killed.  That seems, to me at least, to be too high a price to pay for a "freedom" as frivolous and juvenile as the "freedom" to get blasted.
Apparently not.  Although the state foolishly  --  and now, in light of the grotesque Newtown chlid massacre, embarrassingly  --  abolished its death penalty in April, Connecticut citizens are still ready to hand it out to those who've worked hard to earn it.  Thus, Azibo Aquart, a veteran drug dealer, was sentenced to death in a Connecticut courtroom yesterday for killing three people by bludgeoning them with a baseball bat.  The New York Times has the story.

Readers might be wondering how a death sentence can be imposed in Connecticut after the state abolished capital punishment.  The answer is (and no, this is not a joke):  Thank goodness for the Obama administration.  DOJ brought federal murder charges in federal court, which is not bound by state law.*  DOJ is free to seek the federal death penalty nationwide.

The death penalty is less popular with Democrats than with Republicans, so DOJ, and Assistant Attorney General Lanny Breuer in particular, are to be congratulated for having the determination to persist in seeking the only justice that fits a venal and gruesome multiple murder like this.

*Potheads in Colorado and Washington might do well to remember this fact.

News Scan

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CT Triple Killer Sentenced to Death in Federal Court: The Associated Press reports United States District Court Judge Janet Bond Arterton sentenced Azibo Aquart to death in Connecticut Monday. On August 24, 2005, Aquart and three accomplices bound three victims with duct tape then beat them to death with baseball bats. Aquart's attorney will be filing an appeal.

US Executed 43 in 2012: Mark Sherman of the Associated Press reports four states carried out more than 75 percent of the executions in the nation in 2012. Nationally, 43 death row inmates were executed this year. Of those, Texas executed 15, while Oklahoma, Arizona, and Mississippi each executed six. The remaining nine states, Ohio, Florida, South Dakota, Delaware, and Idaho, executed ten inmates combined. In 2011, 43 people were executed, compared to 98 in 2000.

MA Quad-Killer Sentenced: My Fox Boston News reports Dwayne Moore was sentenced to four consecutive life sentences Tuesday in Massachusetts. Moore was convicted Monday of killing four people during a drug-related robbery on September 28, 2010. He killed two men, 21 and 22, a woman, 21, and her son, 2-years-old. Moore dragged some of the victims naked into the street before shooting them. A fifth man was left paralyzed. Moore's attorney will be filing an appeal.

Guns, Mental Illness and Newtown

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That's the title of David Kopel's editorial in yesterday's WSJ, which includes this observation:

A second explanation is the deinstitutionalization of the violently mentally ill. A 2000 New York Times study of 100 rampage murderers found that 47 were mentally ill. In the Journal of the American Academy of Psychiatry Law (2008), Jason C. Matejkowski and his co-authors reported that 16% of state prisoners who had perpetrated murders were mentally ill.

In the mid-1960s, many of the killings would have been prevented because the severely mentally ill would have been confined and cared for in a state institution. But today, while government at most every level has bloated over the past half-century, mental-health treatment has been decimated. According to a study released in July by the Treatment Advocacy Center, the number of state hospital beds in America per capita has plummeted to 1850 levels, or 14.1 beds per 100,000 people.

Moreover, a 2011 paper by Steven P. Segal at the University of California, Berkeley, "Civil Commitment Law, Mental Health Services, and U.S. Homicide Rates," found that a third of the state-to-state variation in homicide rates was attributable to the strength or weakness of involuntary civil-commitment laws.

It's important to keep in mind that the vast majority of people with mental illness do not commit crimes or engage in violence.  But the popular refrain that there's no link between mental illness and violence is simply wrong

Don't Try This If You Are Not Santa

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Ellen Huet posts at SFGate:

A 33-year-old man had to be rescued by firefighters early Monday after he became stuck in the brick chimney of his home in San Francisco's Pacific Heights neighborhood, authorities said.

Texas Voter ID On Fast Track to SCOTUS

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Lyle Denniston at SCOTUSblog has a post on the Texas voter ID case.  This case falls into that very limited class of cases governed by the old rules going back to the Judiciary Act of 1789.  The trial court is a three-judge court, and the nonprevailing party can get review in the Supreme Court by an appeal, not a writ of certiorari.  The difference is not merely technical.  If the Supreme Court decides it has jurisdiction, it has to take the case for decision on the merits.  For the bulk of cases reviewed on certiorari, the high court turns down ~99% without a decision on the merits.

Texas wants its case reviewed before state elections in May and September of 2013.  I doubt that May is possible.  Maybe September.

Potential Good News at Senate Judiciary

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The death of Senator and WWII hero Daniel Inouye will shake up the Senate committee chairmanships.  Inouye, as the most senior member of the majority party, had been chairman of the powerful Appropriations Committee.  That spot might now be filled by Senator Patrick Leahy, currently chairman of the Judiciary Committee, so reports Roll Call.   If that happens, the new Chairman at Judiciary would be the senior Democrat, Senator Diane Feinstein of California.  (Senator Herb Kohl of Wisconsin is currently next in line to Leahy, but Kohl decided not to seek re-election).

This will be a welcome change.  Leahy is an outspoken liberal and a dead-end partisan.  For example, while both he and Ms. Feinstein voted against the confirmation of Justice Alito (as did the hefty majority of Democrats), Leahy voted to filibuster the nomination while Ms. Feinstein voted to invoke cloture.  

In addition, Leahy supports a nationwide moratorium on the death penalty; Feinstien does not, and has spoken publicly in support of the view that the death penalty is a deterrent.  She also voted against allowing the use of racial statistics in death penalty appeals.  Feinstein is said to have a good relationship with Senator Chuck Grassley, the ranking Republican on the Judiciary Committee.

O. Kay Henderson has this story for Radio Iowa:

The parents of three children who were kidnapped, then murdered in Iowa met with Governor Branstad today to talk about reinstating capital punishment in Iowa. Drew Collins is the father of Elizabeth Collins, the girl who went missing this summer in Evansdale. Her body was found by hunters earlier this month.

"Every time it happens, we hear it on the news and we just go, 'Oh, that's too bad. That's terrible,' but we've done nothing to change what's happening," Collins says. "To me, it's criminal that we don't protect our children. I mean, if we don't protect our children, I mean, what are we as a society?"

Collins says he's always supported the death penalty. His wife, Heather, used to oppose capital punishment, but her daughter's brutal death has changed her mind.

*                                       *                                     *

For about 30 years Governor Branstad has supported reinstating a limited form of capital punishment in Iowa, applicable in cases of kidnapping and murder, but Branstad has said the "political reality" is the bill won't pass the senate.

News Scan

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FL Car Lot Rapist, Killer Sentenced to Death: The Associated Press reports William Roger Davis III was sentenced to death in Florida on Monday. Davis was convicted of kidnapping, raping, and murdering a 19-year-old woman from a car lot where she was employed. He had forced her into her car, drove to his SUV nearby, took her to his home and raped and killed her. He then drove around multiple counties after putting her body back in the car for several hours. Her body and severed head were found in his SUV, which he purchased from the same car lot. Continued from this News Scan.

2 KS Officers Shot to Death, Gunman Dead:
John Hanna of the Associated Press reports David Tiscareno was killed in an armed standoff after shooting two police officers to death Sunday in Kansas. Officers had responded to a tip at a grocery store parking lot about drug activity. The officers ordered the occupants in a car to exit the vehicle. That is when Tiscareno got out and shot two of the three officers present in the head. He then got back in his car and drove off.  On Monday a tip led police to a house where Tiscareno was hiding. After officers fired tear gas into the home, he came out wielding a gun and reportedly fired a shot. That is when officers returned fire. He was later pronounced dead at a hospital. Tiscareno had pleaded no contest to theft in April 2009. He was placed on supervised probation for 12 months, which was revoked in January 2010. He was convicted of criminal use of weapons in September 2010 and was on 12 months of unsupervised probation.

NJ Crime Increases, Officers Decrease: Christopher Baxter of the Star-Ledger's Statehouse Bureau reports crime in New Jersey increased 3 percent in 2011, the same year that the state lost 6 percent of its officers.  Vehicle theft and burglary were up 6 percent statewide, robbery was up 8 percent, murder, rape, and theft remained steady, and assault was down by 6 percent. The value of property stolen had increased 10 percent. Also, police solved one percent fewer crimes in 2011. Specifically, 16 percent fewer murders, 10 percent fewer assaults, 6 percent fewer vehicle thefts and robberies, and 3 percent fewer rapes were solved. However, 11 percent more burglaries were solved.

First Thoughts on Newtown, CT

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As Kent notes, there seems to be two issues in the Newtown case that has everyone talking:  access to firearms and mental illness.  I'll leave it for others to debate the merits of gun control, but I wanted to make a few comments about the role of mental illness and violent crime.

First, as Kent noted, the issue of involuntary commitment looms large in these discussions.  It is true that the legal standard for involuntary treatment has changed considerably over the years to the present state where it is exceedingly difficult to involuntarily commit someone for a prolonged period of time. For the most part, our nation has adopted an outpatient mental health treatment model, know often as the hospital without walls, that simply fails to provide the appropriate amount of care because it cannot do so: there's only so much that mental health providers can do in an outpatient setting.  Many people with serious mental illness do not believe that they are sick and consequently do not want help.  Since our modern commitment standards operate primarily under the rubric of the state's police powers instead of the parens patriae model, commitment is reserved for those individuals who are deemed dangerous not sick and in need of treatment.  The focus is wrong and needs to be changed.

But even if the laws were different it is not clear that the results would have been much different with Adam Lanza.  Details are still sketchy and much of what is supposedly known is mere speculation, but if it holds true that Mr. Lanza's sole mental health problem was Asperger syndrome, it's unlikely that even a broad civil commitment standard would have captured him.  The link between Asperger's syndrome and grave disability - the broader commitment standard - is remote.

Kent also mentions access to mental health services.  It is true that access is often trotted out in these tragic cases as examples of why our nation should increase funding for mental health services.  In many of these cases it's not self-evident that access to more services would have brought a different result.  Services are underutilized because many people with serious mental illnesses do not believe they are sick and therefore do not want treatment.  But it is also a question of priorities.  Our nation spends a lot on what can reasonably be said is a vast overdiagnosis of ADHD and even Autism at the expense of adequate funding for programs that deal with severe mental illness.  As a mental health professional I can attest to the fact that this segment of our mental health services is indeed vastly underfunded.

Whether that would have made a difference in the case of Adam Lanza is unknown.  But every year there are preventable tragedies that could be avoided if our public mental health funding had different priorities and our approach to civil commitment was more rationale given what we know about serious mental illness.   The defining issue when it comes to civil commitment shouldn't be dangerousness but illness and its need for consistent, effective treatment.

Mass Murder, Guns, and Mental Health

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Robert Leider of U. Pa. has this op-ed in the WSJ.  He calls for breaking the stalemate on gun-control legislation by both sides yielding a bit.

Leider also notes:

In addition to guns, the common denominator in most of these mass shootings has been mental illness. Seung-Hui Cho (Virginia Tech), Jared Lee Loughner (Tucson, Ariz.), James Eagen Holmes (in the Aurora, Colo. theater), and now Adam Lanza all had significant mental health problems. As the country turns its attention to overhauling its health-care delivery system, we must discuss improving access and delivery of mental health care to those who need it. As part of this conversation, we need to update federal firearm laws as they relate to persons with mental illness--laws that currently are primitive and rooted in stereotypes.
True as far as it goes.  However, as the Lanza case indicates, a mentally ill person need not personally purchase the firearms.  Leider says, "Gun owners (especially close relatives of such persons, such as Adam Lanza's mother) should also be obligated to store unused firearms safely so that potentially dangerous persons and minor children do not gain easy access to them."  How would you enforce that?  Home inspections?

The mental health issue in greatest need of attention is the standard for involuntary treatment.  The legal hurdle of dangerousness is simply too high, given the difficulty of predicting and proving dangerousness.  This is the classic case of yesterday's reform being today's problem.  America overreacted to the "Cuckoo's Nest" problem and swung too far in the other direction. 

The problem is not, as is commonly asserted, underfunding of community mental health clinics.  Those clinics are not turning away seriously mentally ill people for lack of funding.  Quite the contrary, they often overdiagnose mental illness in people who actually just need counseling just to get the government money flowing.  And flow it does.  The problem is that the people in greatest need of treatment do not volunteer for it.  The very illness that needs treatment prevents them from making a rational decision whether to seek it.  That problem should be the first priority.

"Dating Game Killer" Pleads in NY

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When does anyone plead guilty and get a life sentence in a state with no enforceable death penalty?  Not as often as in states that do have a death penalty, but it does happen.  Like, for instance, when a serial killer is already subject to a death sentence in another state.  That happened Friday in New York, Laura Italiano reports for the NY Post:

He killed the heiress. And he killed the flight attendant, too.

Serial sex killer Rodney Alcala took a surprise guilty plea in Manhattan this afternoon to taking the life of two women, both age 23, from 1971 and 1977.

The so-called "Dating Game" killer, 67, admitted to the 1971 murder of TWA flight attendant Corelia Crilley and the 1977 murder of Ellen Hover, daughter of a Hollywood nightclub owner.

Under his plea, the pony-tailed monster will be sentenced next month to 25 years to life in prison -- a legally irrelevant term given that he will now be returned directly to death row in San Quentin Prison in California.

For background on the California cases, see Alcala v. Superior Court, 43 Cal. 4th 1205 (2008).  Alcala's current death penalty appeal is case S181535.  Nothing has happened on it since shortly after the judgment in 2010.  Alcala's first death sentence was overturned by the state courts.  The second one was affirmed by the state courts but overturned by the federal courts.  The 1996 act of Congress limiting federal court second-guessing of state court judgments did not apply because Alcala filed his petition before that act.

How Do We Prevent It?

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The title of this post is the question of the day.  How do we prevent the next school massacre?

This, I think, is close to the bitter truth, from an article in NRO:

To shout "do something" or "ban guns" is the facile suggestion, and nonchalantly to content oneself that laws passed in a faraway city will fix society's problems is the comforting conviction. My judgment, by contrast, is the terrifying one: To realize that there is very little that one could have done to stop [the Newtown] abomination is to understand that we are sometimes powerless in the face of evil, however much we shout about it.

In anything that even resembles a free country, and certainly a free country with a Second Amendment as part of its Bill of Rights, there won't be, and shouldn't be, the amount of government control that would be needed to stop an Adam Lanza.  So far as is known to date, Lanza had no criminal or mental health record.  He was a loner and socially maladept, and that's about it.  He got the guns from his mother, who had obtained them legally in a state with already strict gun control laws.  A country that makes being an awkward loner a basis for government control is not a country any sane person would want to live in.

So is there anything at all we can do?  John Hinderaker of Powerline makes a suggestion.

Beyond Belief

In my previous entry, I asked politicians to quit with their nonstop, sentiment-laden and gruesomely trite expressions of what they advertise (and advertise and advertise) as their personal feelings about the Newtown massacre.  We don't need more politicians' feelings.  We need to find out what happened and then act.  

It's already clear that one action due is immediate reinstatement of the death penalty in Connecticut, undoing the repeal bill adopted earlier this year.  I simply don't believe a sensate person could think that a prison sentence, no matter what its length, is proportionate to this degree of evil.  And yes, thank you abolitionists, I realize the killer this time is dead.  But the next one is still out there.

My view that immediate reinstatement is due is only reinforced by the headline I just read.  

I was a federal prosecutor for a long time, and saw some really bad things.  But I never saw anything like this:    Children in Connecticut Rampage, all 6 and 7, shot repeatedly.

All twenty child corpses, six and seven years old.  The Reuters story is here.   

Please Stop Talking

Why is it that every politician in America thinks he has to run his mouth about the child massacre in Connecticut?  If they had something original to say, or even slightly helpful, that would be one thing.  But they don't, not a one of them.  So I wish they would stop.  Democrat, Republican, conservative or liberal.  Just stop.

If they aim to act, get moving and go do it.  I proposed one such act  --  immediate reinstatement of the death penalty in Connecticut.  While we're t it, this would be a good time to reinstate capital punishment in the other states that have legislatively repealed it in the last few years (Illinois, New Mexico and New Jersey).

But we've had the discussion, ladies and gentlemen.  You can listen to your TV all you want (or can stand).  You won't hear a thing you haven't heard before.  Much of it is phony.  It's not there is nothing genuine here; quite to the contrary.  It's that anything genuine does not need to be staged in front of a camera.  Virtually everything that goes on in that setting is a study in platitudes.  None of it represents thinking a normal adult couldn't do for himself.

So, politicians, stop.  Just stop.

Any Second Thoughts Today?

A little more than seven months ago, the Governor of Connecticut, with much fanfare about how advanced it all was, signed into law a bill repealing the death penalty for murder committed after the law's passage.

Today, for either kicks or revenge, a 20 year-old man, apparently the son of a teacher at an elementary school in Newtown, Conn.,went to his mother's place of employment and murdered 20 children, all between five and ten years old, and six adults.  Earlier, he killed his mother at home. 

What will happen now is that we'll hear a good deal of blather about how we need a "national conversation" about this "senseless tragedy" and some deep "introspection" about what an awful, violent place America is.  We are also certain to hear the standard-issue statements on gun control.

We can do without it.  Is there anything being said now that hasn't been said a thousand times before? There is, however, something to do:  The Connecticut legislature should have the decency to reinstate the death penalty tomorrow morning.

News Scan

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CT School Shooting Claims 20 Children and 8 Adults, Including Gunman: John Christoffersen of the Associated Press reports gunman Adam Lanza, 20, killed 20 children, from ages five to 10, and six adults Friday morning in a Connecticut elementary school before killing himself. Another adult was found dead at a second crime scene. No further details have been released. Lanza entered the school and opened fire in two classrooms. He was the son of a teacher at the school, Nancy Lanza. CBS News reports his mother was killed in the shooting. Some of the children killed were his mother's students. The shooters older brother, Ryan Lanza of New Jersey, is being questioned. This is the second-deadliest shooting the nation has ever seen, the first being the 2007 Virginia Tech massacre, with 33 dead.

IA May Reinstate Death Penalty: Kayleigh McCollough of WHO-TV News reports Iowa Governor Terry Branstad will be discussing reinstating the death penalty in limited circumstances in the state. He will be meeting with several families of kidnapped and killed children on Monday. State Senator Kent Sorenson has been preparing legislation for the January session. Iowa has not had the death penalty since 1965.

MA Reevaluates Releasing Low-Risk Sex Offender Names: Jim Morrison of the Sun Chronicle reports Massachusetts lawmakers will be reevaluating a bill introduced last year by Governor Deval Patrick that would publicly release the names of Level 1 sex offenders. Currently, Level 3 offenders are listed in a searchable online database, and the names of Level 2 offenders can be provided by local police departments. The bill has gotten new attention stemming from the case of John Burbine, a Level 1 sex offender. Burbine is charged with more than 100 counts of sexually abusing 13 infants and toddlers over a two-year period at his wife's unlicensed children's daycare facility. He was convicted in 1989 of indecent assault and battery on a child. Laurel J. Sweet of the Boston Herald reported Burbine pleaded not guilty to rape of a child by force, posing a child in a state of nudity, posing a child in a state of sexual activity, possession and dissemination of child pornography. His youngest victim was only eight days old.

OK Man Pleaded Guilty to Murdering Parole Officer: KOCO News reports Lester Kinchion pleaded guilty Thursday to the May killing of an Oklahoma parole officer. Kinchion beat the officer unconscious then shot him with him own firearm. Kinchion will serve 10 years for the illegal use of a firearm, life for shooting with an intent to kill, and life without parole for murder. The court recommended he receive treatment for schizophrenia.

MS Double Murderer Charged with AL Killing:
Candace Murphy of Fox 10 TV reports convicted double-murderer Dennis Hicks was charged Thursday with the murder of a 23-year-old man in Alabama. In September 2011, Hicks allegedly decapitated and dismembered his victim while on parole. The skeletal remains were found dumped in a wooded area. Hicks was convicted of a 1979 double-homicide in Mississippi. He was sentenced to serve two life sentences but was paroled after 25 years. Hicks was arrested on September 9, 2011 for theft but made bail. He was arrested again on November 30, 2011 for a parole violation.

McCleskey at 25 Symposium

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The Ohio State Journal of Criminal Law has a symposium issue on the 25th anniversary of McCleskey v. Kemp.  My contribution can now be cited as Kent Scheidegger, Rebutting the Myths About Race and the Death Penalty, 10 Ohio St. J. Crim. L. 147 (2012).

Doug Berman wrote the intro to the issue.  He begins, "The Supreme Court's 1987 ruling in McCleskey v. Kemp was widely condemned when first handed down, and the passage of time has hardly softened the critical appraisal."  He moves in different circles than I do.  The decision was and continues to be "widely condemned" on the political left and in academia, the latter being close to a proper subset of the former.  Among those fighting for justice in the worst murder cases, the opinion is regarded as both necessary and correct.

Clemency for Ineffective Assistance?

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Andrew Welsh-Huggins reports for AP:

A condemned Ohio inmate who weighs 450 pounds should be spared based on claims raising doubts about his legal representation, not because he says he's so fat he can't be humanely executed, the Ohio Parole Board ruled today.

The board rejected arguments made by attorneys for Ronald Post that he deserves mercy because of lingering doubts about his "legal and moral guilt" in a woman's death, but it said it couldn't ignore perceived missteps by lawyers in his case.

The board's recommendation, by a vote of 5-3, goes to Gov. John Kasich, who has the final say. Post is scheduled to die Jan. 16 for killing Elyria motel clerk Helen Vantz in a 1983 robbery.

In my view, ineffective assistance as such should not be considered on executive clemency.  The courts have already considered that on collateral review of the judgment.  Clemency should be granted if (1) there remains a genuine doubt of guilt of the offense, considering all available evidence regardless of its admissibility at trial, or (2) the case is a clearly mitigated case, well below what warrants a death sentence, again considering all available evidence of aggravating and mitigating circumstances, regardless of legal admissibility.

Clemency decisions should go straight to the substance, without regard to the procedure.  In that way, clemency is complementary to appeal and habeas corpus, where a judgment may be overturned on procedural grounds even though correct in substance, and conversely a defendant's claim may be rejected on procedural grounds without considering the substance.

Update:  The clemency decision is here.

Update 2 (12/17): Gov. Kasich didn't see it my way.  Aaron Marshall has this story in the Cleveland Plain Dealer.
Memo to corrupt officials: do not send e-mails from your work computer to your spouse implicating yourself in bribery and extortion.  The Fourth Circuit has held that the defendant's acceptance of the office "nonprivacy" policy waived the privilege.  The opinion in United States v. Hamilton, No. 11-4847, is here.  Mike Scarcella has this story for the NLJ.
Cliff Kincaid of Accuracy in Media has this commentary on the Proposition 34 death penalty repeal battle in California, one of the few bright spots in a generally dreary election.

The outcome was extraordinary in view of the fact that the measure's backers vastly outspent opponents by millions of dollars. The backers were led by the American Civil Liberties Union, which contributed more than $700,000, while the grass-roots opposition to Proposition 34 was described in news reports as "cash-strapped."

In an extraordinary video recorded in April of 2010, Ann Beeson, then-Executive Director of U.S. Programs for the Soros-funded Open Society Institute, spoke in detail about the campaign to abolish the death penalty. Beeson, a former Associate Legal Director of the American Civil Liberties Union, described to a sympathetic audience how the "death penalty movement" was "underfunded" and "haphazard" in 2005 but with the support of George Soros and other big funders by the end of 2007 had developed "a comprehensive campaign to abolish the death penalty in the United States by the year 2025." The strategy was based on a "sophisticated" document, she said, which included as one of the key claims that the death penalty was just too costly to implement.
The Onion reports:

In a unanimous 9-0 ruling Friday, the Supreme Court upheld a controversial federal law allowing licensed judges to carry concealed gavels in public. "It is the opinion of the court that any judge, magistrate, or justice found to be of legal age and sound mind who so desires to carry in secret an adjudicating mallet on his or her person, provided such gavel is properly permitted and registered within the local jurisdiction, shall face no legal encumbrances--federal, state, or otherwise--preventing them from so doing," Chief Justice John Roberts, an outspoken pro-gavel advocate, wrote for the majority. "Whether such an arbitrating implement be used to conclude trial proceedings, commence an adjournment, for self-defense, or purely for sport, the right of any and all judicial officials to harbor a concealed gavel, and the lawful use thereof, is wholly and fundamentally protected under the Constitution of the United States." Under the terms of the ruling, all varieties of gavel--even automatic or sawed-off models like the ones used in several recent high-profile mass bonkings--will remain legal for judges to carry.
The Onion is, of course, a satire publication.  See this post.

News Scan

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VT Killer Planned to Kill Pop Star: Russell Contreras of the Associated Press reports convicted killer Dana Martin devised a plan to kill four individuals, including pop-star Justin Bieber and his bodyguard, and to castrate the other two. Martin, who is serving two life terms for the 2000 killing a 15-year-old girl in Vermont, is infatuated with Bieber.  After receiving no answers from his many letters to  Bieber, Martin recruited a man he met in prison and his nephew to kill the singer. The pair, Mark Staake and Tarrer Ruane were on their way to New York when they made a wrong turn in Vermont and ended up in Canada. Staake had an outstanding warrant and was arrested. Investigators found details of the plot and a drawing of Bieber in Ruane's vehicle. Staake and Ruane are facing multiple charges, including conspiracy to commit aggravated battery with a deadly weapon and conspiracy to commit first-degree murder.

CODIS IDs 10,000 Suspects in TX Cold Cases: Maurice Chammah of the Texas Tribune reports 10,000 suspects in cold cases have been identified in Texas using the FBI's Combined DNA Index System database. In Texas, all juveniles, sex offenders, and felons must provide a DNA sample. DNA in new cases is then run through CODIS and investigators are alerted if the DNA is a match to anyone who has been previously convicted of a crime. Since 1996, CODIS has analyzed more than 660,000 samples of DNA.

In FL About 1M Can Carry Concealed Weapons: Michael Peltier of Reuters reports almost one million Florida residents have active concealed weapon licenses. Florida has the most registered gun owners of any state in the nation. More than two million have been issued since 1987, with only 0.3 percent revoked.

What Else Government Spends Money On

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Public safety is the primary reason we have government in the first place.  But California's government, we are told, is too broke to lock up the bad guys and execute the worst guys.  And we can't cut other expenditures, because they have already been cut to the bone.

Oh, really?  Dave Siders reports in the SacBee:

State officials overseeing construction of the new San Francisco-Oakland Bay Bridge agreed this year to pay a public relations company nearly $10 million for services the Brown administration says it knew nothing about, including hundreds of thousands of dollars to conduct tours and to produce a video and commemorative book.

FDA Thiopental Suit Set for Argument

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The murderers' suit against the FDA for allowing importation of the sodium thiopental used in lethal injections has been set for oral argument in the D.C. Circuit March 25.  The panel is Judges David Sentelle, Judith Rogers, and Douglas Ginsburg. 

Prior posts:

The FDA and Thiopental
South Dakota AG Defies Thiopental Seizure Effort
Another Great Plains AG With Backbone
State AGs to Holder: Appeal Beaty v. FDA
FDA Appealing Thiopental Ruling
Calif. defies order to turn over execution drug
CJLF Files Brief in Imported Thiopental Case

News Scan

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Los Angeles Getting Dangerous Parolees Under Realignment: John North of ABC 7 reports Los Angeles County Supervisors will be getting more information about the parolees released into the area. The quadruple murder that occurred in Northridge, see this News Scan, was carried out by Ka Pasasouk. Despite a long history of violent crime convictions, Pasasouk was labeled a non-serious, nonsexual and nonviolent offender due to his most recent drug conviction in accordance with Governor Jerry Brown's 'Public Safety Realignment'. Realignment does not look into a criminal's entire history, only their most recent conviction. According to Supervisor Mike Antonovich, since AB 109 was implemented on October 1, 2011, 8,000 so-called triple nons have been rearrested and put into jail in LA County. The new ordinance, introduced by Antonovich, will allow County Supervisors to exert more control over parolees.

Baltimore Sees Reduced Shootings, More Deaths:
Justin Fenton of the Baltimore Sun discusses a Wall Street Journal article that reported gun violence has increased nationally, while homicides have decreased due to improved medical care for gunshot victims.  The trend does not seem to include Baltimore, where the number of execution-style shootings has dramatically increased from 35 percent in 2004 to 59 percent in 2009, back down to 47 percent in 2011. Fenton thinks this may be a reason more gunshot victims are dying in Baltimore compared to the national average. A bullet to the head is very difficult to treat. A quote from our Kent Scheidegger is included from this post. Our Steve Erickson also reported on the WSJ article in this post.

OR Mall Shooter Kills 2, Himself: Rachel La Corte and Jonathan J. Cooper of the Associated Press report gunman Jacob Tyler Roberts killed two shoppers and himself in an Oregon mall Tuesday. Tyler was wearing a mask and was armed with a stolen semiautomatic rifle. He entered the mall through Macy's then opened fire in the food court. He killed a 54-year-old woman and a 45-year-old man. A woman whose age has not been confirmed was seriously injured. Police found Tyler dead of self-inflicted wounds. The rest of the mall was searched and officers confirmed no others shooters were involved. No clear motive has been established. The mall will remain closed Wednesday.  

NJ Police Department Gets Surveillance Tower: CBS New York reports The Jersey City Police Department announced Tuesday it got a three-story high policing tower. The tower, called the "Eye in the Sky," has streaming surveillance cameras with a 360-degree view covering high crime areas. Many police departments all over the nation are using similar technology to aid in policing.
No matter what happens, we can count on the hilariously named "Death Penalty Information Center" to come up with some story telling us that the "death penalty is dying."  This happens so often that I don't keep track of it anymore.  It's usually based on some survey it has paid for, or on a press release from an allied group like Amnesty International, or, of late, on the assertion that the number of executions in any given year was less than the year before.

They'll have to use something else this year.  With tonight's execution of Manuel Pardo for not fewer than nine murders, the number of persons executed this year (43) equals the number executed last year.  There might be one or two more executions to come this year, but I don't know that.  Even if one is scheduled, it can always be postponed based on the killer's sudden discovery that he has the IQ of a carrot. 

The DPIC's own figures put the lie to the claim that, over the last few years, executions are fading away.  The 43 executions this year are equal to the 43 last year, slightly less than the 46 in 2010 and 52 in 2009, but slightly more than the 37 in 2008 and the 42 in 2007.  If anything is dying  --  or at least badly crippled  --  it's not the death penalty, but the opposition to it.

Root Causes and the Welfare State

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The debate about the "root causes" of crime seems never to end.  Some think it's poverty and/or racism.  Some think it's a culture of dependency and excuse-making  --  the culture, in a word, of the welfare state.  I'm sure four dozen other reasons have been suggested at one time or another.

From a surprising source comes an account that links poverty and the culture of dependency as feeding on one another to deprive people  --  children in particular  --  of the opportunity for a better, more wholesome and productive life.  The article does not directly attribute crime to this noxious mix, but for those us who've been writing in the field, the link is obvious and telling.

I don't agree with everything in the article, not by a long shot, but it's bracing and refreshing to have longtime progressive Nicholas Kristof, writing in the New York Times, of all papers, take an honest look at how the welfare state can incentivize the very attitudes and behaviors that liberals maintain help breed crime.

Pardo Execution

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The US Supreme Court denied two petitions for a stay of execution and a petition for writ of certiorari in the case of Florida serial killer Manuel Pardo (here and here).  No dissent is noted.  Earlier today, David Ovalle had this story on the case in the Miami Herald.  The execution was originally scheduled for 6:00 p.m. EST, but it was delayed for the SCOTUS decision.

Update:  The execution was completed at 7:47.  Jon Silman has this story in the Gainesville Sun.

News Scan

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PA Triple Killer May Face Death Penalty: The Associated Press reports Shawn James Hamilton may face the death penalty in Pennsylvania if convicted of a triple murder. Hamilton and his 16-year-old half brother allegedly shot and killed two men, ages 21 and 17, and a 15-year-old girl in a robbery. Both pleaded not guilty Monday.

Man Sentenced for IL Cold Case: Don Babwin of the Associated Press reports ex-police officer Jack McCullough was sentenced to life in prison Monday in Illinois for the 1957 murder of a 7-year-old girl. The death penalty was abolished in the state last year. In September, McCullough was convicted of grabbed the young girl and choking and stabbing her to death in an alley in 1957. Her body was found dumped in a forest more than 100 miles away the following April. The case got federal attention, with daily investigation updates provided to both President Dwight Eisenhower and FBI Director J. Edgar Hoover. McCullough is eligible for parole in 20 years. His attorneys will be filing an appeal.

100+ Inmates Riot in CA Prison: Stephanie Sanchez of KSWT News reports a riot involving more than 100 inmates took place in the Calipatria State Prison Saturday. One inmate started the riot by stabbing a group of prisoners with a toothbrush made into a weapon. Another fight immediately broke out in the dining hall involving 90 inmates using anything they could break and use as a weapon. Nine inmates are in the hospital. No guards were injured. The prison is on lock down until further notice.

Stokley Execution

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Last week, justice was finally carried out for the murder of Mandy Meyers and Mary Snyder, both 13, 20 years earlier.  I previously discussed the Ninth Circuit's decision in this post, and our News Scan feature reported on the Supreme Court action and the execution.

On Dec. 6, Kim Smith had this story in the Arizona Daily Star, providing more detail on the victims' families and the execution itself.

In states that use the three-drug method, the reason given for the paralytic pancuronium bromide was to prevent convulsive movements that might be disturbing to witnesses even though the inmate is not in any actual pain.  In this case, using the single-drug method:

The pentobarbital rendered Stokley unconscious five minutes after the first dose was administered. The second dose was then given.

At 11:03 a.m. Stokley's body convulsed one time. He was pronounced dead nine minutes later. He never looked at the crowd watching from the other side of the glass.

[Patty] Hancock[, Mandy's mother,] said Stokley should have apologized to the families but wasn't surprised he did not. "What do you expect from a heartless man with no soul?" she asked.
Convulsions happen with the single-drug method, but they are not that big a deal.  The witnesses can be briefed on what to expect and what it actually means.  Preventing convulsions is certainly no reason to litigate the three-drug method for years while justice is further delayed.

More on Jeffrey MacDonald

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Last week Bill had this post on the Jeffrey MacDonald case, prompted by this story by Gene Weingarten in the WaPo Magazine. Today Weingarten had an online chat at the WaPo discussing the case further.  Weingarten's bioblurb identifies him as the "humor writer," but of course there is nothing funny about this tragic story.

Making Something Out of Next to Nothing

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CJLF takes no position on the legalization of marijuana.  I'm opposed to it for a variety of reasons, including that legalization is sure to increase usage, which will lead to more health problems for users and more accidents and injuries to non-users, from impaired driving and other causes.  Simply because we tolerate the bad effects of alcohol and tobacco hardly strikes me as a good reason to make it a trifecta by adding pot to the list.  To the contrary, I believe we should be more circumspect, not more carefree, before we pave the way for more public health problems.  I also worry about the complacent message this will send to teenagers, who I assure you are listening.

But the purpose of this post is not to make the anti-legalization argument.  It's to point out that the whole thing is a tempest in a teapot.  Much is being made, for example, of the referenda legalizing pot, as a matter of state law, in Washington and Colorado (legalization was roundly rejected in Oregon, something you don't hear nearly as much about).  See, e.g., the heated discussion on Sentencing Law and Policy.

What gets missed in all the hullabaloo is that the referenda will effect almost no change in what actually goes on, either in court or in daily life.  The reason for this is that the new state rules include restrictions that seldom get reported, but are actually quite important in determining what state enforcement will look like from now on.

News Scan

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Iowa Senator Seeks to Reinstate Death Penalty: The Associated Press reports Iowa State Sen. Kent Sorenson (R) announced he plans on introducing legislation to reinstate the death penalty in January. The move was prompted by the discovery of the bodies of two young girls, 8- and 10-years-old, who had been missing since July. Currently in Iowa, the most serious cases of kidnapping or rape, like murder, allow for a life sentence. Sorenson argues the state needs a more severe punishment to deter criminals from killing their victims. The state repealed the death penalty in 1965.

FL Set to Execute Ex-Officer Turned Killer:
The Associated Press reports ex-police officer Manuel Pardo is set to be executed Tuesday night at the Florida State Prison. Pardo was convicted of killing nine people during a crime spree that lasted three months. Pardo was fired from the Florida Highway Patrol in 1979 for falsifying traffic tickets.  He was fired from another Florida police agency in 1986 for lying to a court in the Bahamas for a colleague on trial for drug smuggling. After being fired, Pardo went on a crime spree killing six men and three women during a series of robberies. He argued that he was doing society a service by killing his victims, most of whom were involved in drugs. 

AR Killer Strangles Cellmate: Justin Lewis of KATV News reports that convicted murderer Robert Holland used a bed sheet to strangle his cellmate to death Friday in Arkansas. Holland was serving a life without parole sentence for murder since November 1991. His victim was serving 48-months for failing to register as a sex offender, and would have been parole eligible on March 15. 

DNA Links IL Inmate to Unsolved Murder:
Frank Main and Jon Seidel of the Chicago Sun-Times report inmate Michael Escort has been charged with murder in Illinois. Escort allegedly raped, beat, and strangled a woman to death in an abandoned building in 1989. His DNA was matched last week to a sample taken from the victim at the crime scene. Escort was convicted of kidnapping and sexual assault in 1991, and was eligible for parole Dec. 23. 

No Death Sentences in NC  This Year: The Associated Press reports no murderers have been sentenced to death in North Carolina in 2012. Despite the state sentencing 400 to death and executing 43 since adopting a death penalty law in 1977, this is the first time no one was sent to death row in any given year. The state has sentenced 24 murderers to death since 1999.  Executions have been on hold since 2006 due to a pending lawsuit challenging the role of doctors in executions.

What Torture Actually Looks Like

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It is a commonplace for the Left to accuse the Bush administration of rationalizing, condoning and conducting torture.  The most urgently and frequently pressed accusations are of waterboarding, an excruciating practice that simulates drowning (but produces no permanent injury).  It is said (although never by the Left) to have resulted in a huge amount of actionable intelligence from the otherwise recalcitrant Khalid Sheikh Mohammed.  Some of that intelligence helped the Obama administration, which had relentlessly demagogued the torture issue in 2008, on the path toward killing Osama --  undoubtedly the single most popular act in the President's first term.

I'll accept arguendo the idea that waterboarding is torture.  I shall also reserve for another time the question whether the use of torture can be justified in extreme circumstances, cf. Dershowitz,  "The Case for Torture Warrants."  For the moment, I want only to point out that the criticism of torture seems to be quite selective.  The fact that torture, not to mention rape and murder, is being practiced this very day by the reigning Islamic Brotherhood in Egypt, seems to be invisible to those otherwise so sensitive to it.  If anyone has heard of the ACLU, etc., yelping about it (as opposed to, say, creches) please let me know.

That torture by Islamic thugs seems to be invisible now to Usually Very Sensitive People does not mean, however, that it is actually invisible.  It's been seen, alright. The grisly story is here.  (Warning:  It starts with a graphic picture). 

Moral of story:  When torture is practiced in the fight against mass-murdering terrorism, it's an outrage.  When it's practiced by those ideologically in sync with terrorists, hey, it's time to look at the ceiling. 

Grassroots Federalism

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The American people are nearly evenly divided on whether marijuana should be legal, according to the Gallup Poll.  (Article by Frank Newport here; questions and data here.  Caption on the data file is incorrect.)  The "no" is slightly above the "yes" at 50-48, within the 95% confidence interval for sampling error.

On the question of whether the federal government should enforce its prohibition in states where marijuana is legal under state law, the result is overwhelmingly against (64-34).  Among people who oppose legalization generally, 43% nonetheless oppose the feds overriding the state's choice.

Monday SCOTUS Orders

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The US Supreme Court's regular orders list has no new grants of certiorari, as expected.  No action was taken on the Bond case, regarding whether Congress can make use of chemicals in an otherwise personal assault a federal offense.  One opinion was released today, a civil case regarding which court a federal employee's complaint should be filed in.  It is normal that the earliest opinions of the term are the noncontroversial ones with no dissents.
The title of this post recounts the incessant refrain of those who want to de-fund building prisons, allegedly in the name of using the money for the wiser and more humane "investment" in education.

It's a head fake, and has beans to do with wise investments.  What is has to do with is turning up the volume of the crescendo that we have to reduce sentences and indulge in willy-nilly early release of criminals because  --  guess what  --  we don't have enough prison space.  It's also about laying the predicate for suits like Plata, the Mother of Unearned Early Release.

But let's do a thought experiment, and suppose that the cry really is about conserving money for education.  Is that what really happens?  Take a look.  What actually happens is profligacy on a mind-bending scale.  Far from benefiting,  the students whose welfare is supposedly being served are being mortgaged to a gargantuan debt they couldn't pay off if they all became Stanford Ph.D.'s  --  which, given the quality of the dumbed-down education they actually get, isn't about to happen anyway.

And this is not to mention the recently built half-billion dollar high school.  But don't get me started.
Today's Wall Street Journal has a fascinating article (paywall) about gun violence and the homicide rate:

In Medical Triumph, Homicides Fall Despite Soaring Gun Violence

The number of U.S. homicides has been falling for two decades, but America has become no less violent. 

Crime experts who attribute the drop in killings to better policing or an aging population fail to square the image of a more tranquil nation with this statistic: The reported number of people treated for gunshot attacks from 2001 to 2011 has grown by nearly half.

"Did everybody become a lousy shot all of a sudden? No," said Jim Pasco, executive director of the National Fraternal Order of Police, a union that represents about 330,000 officers. 

"The potential for a victim to survive a wound is greater than it was 15 years ago." 

In other words, more people in the U.S. are getting shot, but doctors have gotten better at patching them up.  Improved medical care doesn't account for the entire decline in homicides but experts say it is a major factor.

Luckily, the overall crime rate continues to fall despite this curious development. 

[I see Kent also has a post up]
As we have noted numerous times on this blog, crime has been dropping overall in this country over the past two decades.  The reasons why are the subject of hot debate.  Among the problems of determining causation are that there are multiple causes and the data that would help us sort them out are often sketchy.

Gary Fields and Cameron McWhirter have an article in the WSJ with the above title.  One of the factors in the drop in homicide rates is improved medical care, in large part using methods developed in the battlefield.

[Note:  Steve and I were independently posting at the same time on the same article.]

Making the Most of Victory

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The results of the recent election were a mixed bag at best, but not without good news.  By far the best was California's not-that-close rejection of the massively funded, if dishonest, attempt to repeal the death penalty  --  an achievement I celebrated here.  Kent followed up by explaining how we should build on our victory by mending the DP  --  not by more layers of pointless review, but by, among other things, eliminating the ones that exist now.

The death penalty did not win a direct victory on the East Coast, but the results in North Carolina can be highly useful.  As the Wall Street Journal notes, the state elected pro-death penalty Governor, Republican Pat McCrory, and heavy Republican majorities in the state legislature.  This makes possible the wholesale repeal of North Carolina's notorious "Racial Justice Act."  The Act's stated purpose was to redress alleged racism in capital cases, but its actual purpose (and effect) was to abolish the death penalty without ever having to say so  --  or, thus, be politically accountable for the result.

With the help of some courageous Democrats, the outgoing legislature partly repealed the Racial Justice Act.  Now, however, North Carolinians no longer have to settle for that half-measure.  The new legislature should repeal what remains of the Act.  Indeed, it should go further by, at the minimum, declaring that race may not be considered in any way in deciding whether to impose a death sentence.  As Chief Justice Roberts once said (in a different context), the way to stop discriminating on the basis of race is to stop discriminating on the basis of race.  The only way to achieve true racial justice is to put the consideration of race where it belongs  --  on history's junk heap.

Jeffrey MacDonald, Still At It

I'm guessing that fewer than half the readers of this blog are old enough to remember one of the most notorious and gruesome murder cases of the 1970's, the murders of Captain Jeffrey MacDonald's wife and two young daughters on the night of February 17, 1970.  Two old buddies of mine from the Justice Department, Brian Murtagh and Mike Moore, had roles in the case.  Brian was the lead prosecutor; Mike drafted the Supreme Court brief in one of MacDonald's appeals and attended the SCOTUS argument, which MacDonald, out on bail, also attended.  The government prevailed, 6-3.

Under the Constitution, acquittals are final.  Under the current legal culture, convictions seem never to be.  Now, 42 years after the murders, MacDonald, still in jail, is being permitted to argue yet another suit alleging his innocence.  A long but really interesting and spectacularly well-written article in the Washington Post Magazine has the story.

I got a feeling for criminal law as a result of that case.  Mike Moore was a wonderfully fair-minded, bright and balanced man.  He would later become Solicitor General of Tennessee, where he served 17 years until his untimely death two years ago.  The SCOTUS argument was held on a cold day in December, but when Mike came back from it, he was sweating profusely  --  through his suit  -- and seemed to be struggling for breath.  He was a big guy, an athlete, and I was alarmed.  I asked if he was OK. His answer has stayed with me ever since.

He said he had been seated next to MacDonald, and had never before been in the presence of pure evil.

Even for those of us used to debating the death penalty, the MacDonald murders stand out for their violent and grotesque character.  I wonder if our adversaries ever take the time to come to terms with what they are really defending. 

Odin in the Slammer

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Odin.jpgWhen Congress passed the Religious Land Use and Institutionalized Persons Act, it had in mind such things as Jewish prisoners getting kosher meals.  Those of us with some familiarity with the realities of prisoner litigation knew it was ripe for exploitation.  The standard joke was that prisoners would form the Church of the Daily Steak, whose mandatory sacrament is a USDA choice filet mignon, medium rare, with mushroom sauce.  If the prison serves them USDA prime instead, that is a violation of RLUIPA.

One problem with satire is that it needs to be one step more ridiculous than reality, and reality has a nasty habit of catching up.

Wisconsin prisoner Derek Kramer and his prison group claim to worship Odin.  That's right, Thor's Hammer and all that.  Their sacraments do not include the Daily Steak, but they do include the Annual Pork Feast.  No, I'm not making this up.

The district court granted summary judgment on Kramer's claim for damages based on qualified immunity, and the Seventh Circuit affirmed that ruling.  On injunctive relief as to the Pork Feast, however, dismissal for nonexhaustion was a misstep, and the Seventh sent the case back for further proceedings.  The opinion is here.

News Scan

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NBC Sued Over Edited Zimmerman Police Call: Erik Wemple of the Washington Post reports George Zimmerman's lawyers filed a civil complaint against NBC Universal Media on Friday. The suit alleged NBC edited a 911 audiotape to portray Zimmerman as a racist targeting Trayvon Martin. The 911 call was aired on March 27 on NBC's Today Show. The splicing of words and disparate sections of the recording made Zimmerman appear as if he was racially profiling Martin, according to his attorneys. The suit alleges NBC aired edited versions of the audio on four more occasions. Zimmerman's attorneys do not foresee the case settling, and are preparing to defend their claim in court.  

TX Burglar Calls Police on Gun-Wielding Homeowner: James Rose of Fox News 4 reports Christopher Lance Moore chose to burglarize the wrong Texas home Tuesday. When homeowner James Gerow awoke to find someone in his home, he grabbed his gun and followed the man, Moore, outside. Gerow told his wife to call 911. While waiting for officers, Moore called officers while in his truck and told them some man had him at gunpoint out in the country. Upon arrival, officers arrested Moore for burglary of a habitation.

DNA Solves 1984 Murder:  ABC news reports that the Baton Rouge Police cold case unit has utilized DNA evidence to solve the 28-year-old murder of fast food executive Gary Kergan.  Kergan, who was flashing jewelry and cash before his disappearance,  was last seen leaving a local night club with exotic dancer Leila Mulla on November 29. 1984.  Days later Kergan's Cadillac was found abandoned with blood in the trunk while suspects Mulia and her boyfriend had left for Las Vegas.  A police search of Mulla's apartment also turned up blood, but technology at the time could not definitively match the blood as belonging to Kergan.  Earlier this year DNA testing found that the blood samples matched and Mulla and her former boyfriend Ronald Dunnagan were arrested.  Both have been charged with murder. 

SCOTUS Conference

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The US Supreme Court issued an order list after its conference today taking up five cases, all civil. John Malcolm and Elizabeth Slattery have this post at Heritage.  The regular list next Monday will likely be a long list of denials, some administrative orders, and possibly a summary decision or two, but no cases taken up for full briefing and argument.

F-bombs In Court

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When a judge makes a ruling you don't like, the usual response is a motion to reconsider, an appeal, or a writ petition.  Saying "Tell Judge Currie get the f--- off all my cases" is contraindicated.  That was the course chosen by pro se civil litigant Robert Peoples in a federal court in South Carolina.  Mike Scarcella has this story for the NLJ (free registration required).

This resulted in a trial for criminal contempt at which Peoples (no longer pro se) was convicted.  The Fourth Circuit affirmed.

Peoples has filed a certiorari petition in the Supreme Court, Peoples v. United States, No. 12-7544.  Along with the law of contempt, the SC FedPD makes a First Amendment argument, citing Cohen v. California, 403 U.S. 15, 26 (1971), the notorious "F___ the Draft" jacket-in-the-courtroom case.  "If Cohen is correct and the mere use of such a profane word cannot be made a crime, it logically follows that its use may not constitute the reason for criminal contempt."

That "if" would be a good issue for the Court to take up.  As much as I admire Justice Harlan for his many fine opinions, I think he got it wrong on that one.  Freedom of speech does not need to include the freedom to say anything anywhere.  Society can and should insist on a basic level of decorum in its government proceedings.  Cohen et al. can take their protests outside.
If you are a prosecutor, you should not go online and post anonymous comments about a target of your office's investigation.

Obviously, you say?  Everybody knows that.

The United States Attorney in New Orleans resigned today.  The scandal involves top assistants doing exactly that.  Amazing.

Sari Horwitz has this story in the WaPo.  Gordon Russell has this story in the New Orleans Times-Picayune.
The San Francisco Chronicle has this editorial on a bill that is too far out even for the City by the Bay:

California is getting its first nonstarter idea for a new legislative session: a "Homeless Persons' Bill of Rights" that targets curbs on behavior and conditions on cash welfare payments to people living on the streets.

The bill, introduced by Assemblyman Tom Ammiano, a San Francisco Democrat, is an absurd reaction to restrictions on homeless conduct and tough-love ideas such as San Francisco's "Care Not Cash" program that substitutes housing and counseling services for welfare checks.
John Marzulli has this story for the New York Daily News on the expense of the retrial of Ronell Wilson for the murder of two NYPD detectives.  The title above is a quote from "a source close to the case."

Among the expenses is the tab for this:  "Six shrinks, whose travel and lodgings were paid for by the government, testified for Wilson."


In Ake v. Oklahoma, 470 U.S. 68, 83 (1986), the Supreme Court held, "that, when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense."  (Emphasis added.)

What part of "a" does the judge in the Wilson case not understand?   A = 1.

(Hat tip, SL&P.)

News Scan

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CA Quad-Shooter's Probation Should Have Been Revoked: Susan Abram and Eric Hartley of the Daily News report that Ka Pasasouk is the lead suspect in a quadruple shooting murder that took place Sunday in Northridge, California.  Passasouk had missed a court hearing and nearly had his probation revoked three weeks earlier. However, since he showed up later in the day, the judge let him remain free. He had missed two prior check-ins with his probation officer this year. He was placed on probation for a methamphetamine charge in September. After serving only two weeks in jail, the judge let him go under the condition that he was not to come into contact with any firearms. Passasouk has an extensive criminal history, including two convictions of the unauthorized taking of a vehicle in 2004, robbery in 2006, and a felony theft conviction in 2010. Three others are also implicated in the murders.

AZ Double-Killer Executed: The Associated Press reports Richard Dale Stokley was executed in Arizona Wednesday. Stokley and an accomplice had been convicted of raping and murdering two thirteen-year-old girls in 1991. Continued from this news scan.

CA Jury Deliberates Death Sentence for 'Sweetheart Murders': CBS 13 has this article discussing the prosecution's argument for the death penalty for Richard Hirschfield in California. Hirschfield was convicted of the 1980 'Sweetheart Murders' which took place in Davis. He kidnapped a college student couple, both 18-years-old. He sexually assaulted the female and slit both of their throats. The couple's bodies were found two days later about 30 miles away. DNA from semen on a blanket in the boyfriend's trunk was linked to Hirschfield in 2002.  The jury will return to court for deliberations Thursday.  Update:  The jury returned a verdict of death after deliberating 2 1/2 hours, Andy Furillo reports for the Sacramento Bee.

OH Death Sentence Upheld for Cemetery Killer: The Associated Press reports the Ohio Supreme Court upheld 6-1 Phillip Jones' conviction of the 2007 rape and strangling to death of a woman. Jones argued the murder had been an accident that occurred during rough, consensual intercourse in a cemetery.
Greg Risling reports for AP in LA:

While behind bars for three decades, a convicted murderer and member of the Mexican Mafia controlled a network of Los Angeles street gangs that sold drugs, committed killings and robbed students at the University of Southern California, authorities said in an indictment unsealed Thursday.

Investigators believe Danny Roman used his 23-year-old daughter Vianna Roman and her husband, Aaron Soto, to relay orders to gang members who ran criminal activities in neighborhoods and received protection from the notorious prison gang if they entered the penal system.

The 110-page indictment illustrated the havoc wreaked by the Mexican Mafia from maximum security prisons by "taxing" street-level gang members.

Among the crimes tied to the 56-year-old Roman in the documents were the May murder of a gang member and the gunpoint robbery last December of three USC students.

Thom Mrozek, a spokesman for the U.S. attorney's office, said Roman wasn't indicted because he's currently serving a life prison sentence without the possibility of parole for a 1984 first-degree murder conviction. Mrozek declined further comment.
I think some further comment is in order.  We do have a federal death penalty, and a person who commits murder after previously committing murder should be first in line.  (Personally, I think that circumstance warrants a mandatory death penalty, but SCOTUS didn't see it that way.)

End of the World Update

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Previous posts on this blog noted the previously scheduled end of the world on May 21, 2011 and October 21, 2011. The end of the world is currently scheduled for December 22, 2012, a little over two weeks from now, due to the end of the Mayan calendar.  The calendar on my refrigerator, from my local car parts store, ends nine days later, but no one seems to think that is the end of the world.

Yesterday, I received in the mail an offer from my local credit union, generously offering what lawyers call a "force majeure clause," also known as an "Act of God clause." In the event the world ends due to a catastrophic event on December 22, the credit union will waive the balance due on a new car loan.  Decent of them.

On the Legalization of Drugs

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Theodore Dalrymple has this interesting article at the City Journal, with the above title.

Emancipation Anniversary

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Seven score and seven years ago, our forefathers fixed the number one problem in the Constitution bequeathed to them by their forefathers.

The Constitution is indeed a "living document," in the sense that it changes.  The process by which it legitimately changes is set forth in Article V.  Let us raise a glass today to the most important of those changes.

News Scan

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FBI Releases Confession of Serial Killer:  An AP story Rachel D'Oro reveals evidence that Israel Keyes, arrested earlier this year for the kidnap and murder 18-year-old Anchorage woman Samantha Koenig, may have killed at least seven other people.  Keyes, who committed suicide in his cell on December  2, told the FBI the gruesome details of Koenig's murder, and also confessed to killing a couple in Vermont in 2011, four people in Washington state, and another victim, possibly in New York.  Keyes, a 34-year-old loner who traveled extensively, was arrested in Texas last March after using Koenig's debit card.  While in  custody he also confessed to raping his first victim years ago, a teen-aged girl in Oregon whom he intended to kill, but let go.  

Turning Over Illegals Optional in CA:  In a press conference  reported by Chronicle writer Bob Egelko, California Attorney Kamala Harris announced that local police departments are not required to comply with federal requests to hold illegal immigrants, who have been arrested for crimes, for deportation.  Under current federal policy, the fingerprints of arrestees are routinely sent to the FBI and the Department of Homeland Security.  If they are determined to be illegals the local police are notified to hold that person.  Attorney General Harris has determined that too many illegals arrested for minor offenses are being held, although the Obama administration recently announced last summer that it has refocused on deportations of only serious offenders.  The Attorney General's response is, just let them go.   

Judge Ousted in Fort Hood Case:  The Associated Press reports that the judge presiding over the trial of Fort Hood shooter Nidal Hasan has been replaced by the U.S. Court of Appeals for the Armed Forces, the military's highest legal authority.   The decision appears to be based on the previous judge's order that Hasan shave his beard, which the Court of Appeals concluded was biased.  Hasan is being tried for the unprovoked 2009 shootings that killed 13 and wounded more than two-dozen on the Texas army post.  The Court's order replaces Col. Gregory Gross, with Col. Tara Osborn. 

The Guilty Mind

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Traditionally, most crimes require both a guilty act and a guilty mind.  "Even a dog distinguishes between being stumbled over and being kicked," Justice Holmes famously said.  Professor John Baker of LSU Law has this article in the BNA Criminal Law Reporter on the erosion of the "mens rea" requirement.  Here is the concluding paragraph (footnotes omitted):

Fifty years after promulgation of the MPC in 1962 is an appropriate point for a serious debate about and assessment of the adequacy of the MPC's framework on culpability. The MPC's elements of culpability are analytically advanced but are not necessarily easily understood. A recent empirical study indicates that jurors have difficulty distinguishing ''knowingly'' from ''recklessly.'' More importantly, as discussed in this article, the MPC's operating premises and radical changes to the common law may have been contributing causes--not the solution--to the erosion of the requirement that all crimes require culpability. It may be a good time to reconsider the MPC's ''radical change in the law of mens rea, one of the core principles of the common law [that] drew little criticism from commentators'' other than Professor Hall. The erosion of mens rea since the advent of the MPC suggests the need to embrace Hall's insistence that the particular rules reflect the primacy of the principle of mens rea in criminal law.

I agree that mens rea is an important element of culpability, and we should resist and in some cases reverse its erosion.  As Justice Holmes's comment implies, though, the mental states involved are quite rudimentary.  The notion that a human being can be too drunk to form intent while still engaging in clearly goal-directed behavior is nonsense.

Stay Denied to Oklahoma Murderer

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Francisco Morales and Maria Yanez were murdered in their Oklahoma City home in 1993, with three of their young children present, during a home invasion.  The US Supreme Court today denied a stay of execution to one of the murderers, George Ochoa.  No dissent is noted.

AP had this story yesterday, following the denial of a stay by the Federal District Court and Tenth Circuit Court of Appeals.

Update (Dec. 5):  Rachel Petersen has this post-execution story for the McAlester News-Capital.

News Scan

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Quad-Killer Duo May Be Exhumed for DNA: Alyssa Newcomb of ABC News reports DNA may link already executed Perry Smith and Richard Hickock to the murder of a Florida family. The two were featured in Truman Capote's  book "In Cold Blood" detailing the  quadruple murders of a Kansas family for which they were convicted and executed.  Smith and Hickock had been investigated but ruled out as suspects in the Florida murders after passing a polygraph test. The duo is suspected of the 1959 shooting and killing of the Walker family, including both parents and two toddlers. Sarasota County Sheriff's investigators are awaiting approval from a judge to exhume the killers' bodies.

SCOTUS Weighs AZ Death Row Inmate's Appeal: The Associated Press reports the U.S. Supreme court will decide whether to grant Arizona death row inmate Richard Dale Stokley a new hearing on sentencing evidence. Stokley and an accomplice were convicted of the 1991 murders of two 13-year-old girls. He is set to be executed Wednesday.  See also Kent's post on the Ninth Circuit decision.  Update:  Stay, certiorari and habeas corpus denied.  Orders are here and here.  No dissent is noted.

Cops, Poverty, and the "Root Causes" of Crime

In recent days, a remarkable story has started to, as they say, "go viral."  A New York City operative of the occupying fascist army policeman gave a shoeless beggar a pair of boots.

This episode itself says something the country needs to hear about the police.  On a fat majority of criminal law blogs, the main thing said about them is that they pick on minorities, plant evidence, and beat up helpless people who are minding their own business.

There are indeed episodes like that, but they are nowhere near as frequent as one would be led to believe. They seem frequent only because of the ACLU's (and similar organizations') highly selective megaphone.

The countering evidence, exemplified by the cop giving the homeless man boots, is thus worthwhile in its own right.  But even more illuminating is the follow-up article, which says a good deal about an even bigger story  --  the supposed "root cause" of crime, poverty.  Apparently, it's not what it seems.
Psychologist Gary Marcus writing in The New Yorker has a succinct essay on the problems inherent in our cultural obsession with everything neuroscience.  As he observes:

The real problem with neuroscience today isn't with the science--though plenty of methodological challenges still remain--it's with the expectations. The brain is an incredibly complex ensemble, with billions of neurons coming into--and out of--play at any given moment. There will eventually be neuroscientific explanations for much of what we do; but those explanations will turn out to be incredibly complicated. For now, our ability to understand how all those parts relate is quite limited, sort of like trying to understand the political dynamics of Ohio from an airplane window above Cleveland.

It's an a good observation, but I'm not so sure that neuroscience will someday provide explanations for most of what we do.  Or rather, I'm not sure that's even the right way to approach the issue.  In the end, my sense is that neuroscience explanations just ring hollow because they really don't tell the human experience.  It's been said that humans are unique above all animals because only humans can provide reasons for their actions.  And while neuroscience offers reasons, they just don't cut it in the final analysis.  There's something more, something quite valuable, in the human condition beyond firing synapses and the brain alight with deoxygenated blood.  It's the human narrative that inexorably needs to be told.

Did Justice Sotomayor read the same opinion I did in Hodge v. Kentucky?  The Kentucky Supreme Court opinion described in her dissent today has little relation to the one that court actually handed down.

The Hodge case involves a scenario that is not unusual in capital cases.  The crime is an utterly despicable and callous one.  The defendant had a terrible childhood.  The defense trial lawyer failed to present that evidence.  But should the judgment be overturned as a result?

News Scan

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TX Prison Murder Rate Surges: The Associated Press reports murders among inmates in Texas prisons are at a 15-year high. In 2012, 11 inmates were killed while incarcerated. This is the highest rate since 10 were killed in 1997. All other violent crimes and the number of weapons confiscated in 2012 have declined. 

DNA of Executed Killer May Solve Cold Cases: The Associated Press reports the Cook County Sheriff's Department in Illinois has created DNA profiles of prolific killers who have been executed to help solve cold cases. According to the article, Illinois will only send DNA profiles of known felons to the FBI for inclusion in the database if they were convicted after enactment of the state's DNA testing law, but the profiles of homicide victims may be sent in regardless of time.  So they sent in the profiles of the executed murderers as "victims" of a homicide, although a justified one.  The database is shared with law enforcement agencies all over. One example of an inmate entered into the database is John Wayne Gacy who killed numerous young men. Cook County sheriffs are hoping other departments will add the DNA of their executed murderers to the database.

NY Jury Finds Model Sane, Guilty of Murder:
Colleen Long of the Associated Press reports that Portuguese model Renato Seabra was convicted in New York Friday of castrating and murdering his male lover. The jury did not accept Seabra's not guilty plea by reason of insanity. Seabra's victim was a 65-year-old Portuguese writer and TV personality. Seabra was found guilty of choking the victim, beating and stomping his face, and stabbing him with a corkscrew in the face and groin. Seabra will be sentenced December 21. He is facing life in prison.

Committed Defense Counsel

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One of the advantages of criminal appeal practice is that you can write a brief from just about anywhere, as long as you have a computer and Internet access.  Eric Dexheimer has this story in the Austin American-Statesman on a defense lawyer with an unusual address.

Monday SCOTUS Orders

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The US Supreme Court's Monday orders list is here.  No new cases were taken up for full briefing and argument.  That is not surprising, because the Court issued an order Friday after the conference taking up two cases, both civil.

Justice Sotomayor dissents from denial of certiorari in Hodge v. Kentucky, No. 11-10974.  This is a capital case in which the defendant claims ineffective assistance of counsel from failure of the trial lawyer to bring up "bad childhood" evidence with no connection to the crime. 

While the absence of a connection to the crime does not render such evidence irrelevant under the rule of Lockett v. Ohio, I think a court is entirely correct to give it reduced weight in making its "prejudice" determination under Strickland v. Washington.

The DSM-5

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As Steve noted yesterday, the DSM-5 was formally approved over the weekend.  Melinda Beck has this story in today's WSJ.

After more than a decade of discussion and often heated debate, the Board of Trustees of the American Psychiatric Association voted in Arlington, Va., over the weekend to approve the fifth edition of the group's "Diagnostic and Statistical Manual for Mental Disorders" or DSM-5, the official guide to classifying psychiatric illnesses.
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The exact criteria for each disorder won't be made public until the tome itself is published, both online and in print, next spring. But the major proposals have been available for public comment for months and many have been field-tested with patients and clinicians, although that hasn't quelled bitter disputes in some areas.
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Another hotly debated change creates a new diagnosis of disruptive mood dysregulation disorder (DMDD), for children who have frequent behavioral outbursts. Proponents hope it will offer an alternative to diagnoses of pediatric bipolar disorder, which has risen dramatically in recent years along with prescriptions for antipsychotic medication.
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The APA anticipates updating electronic versions of the DSM-5 frequently to reflect the pace of psychiatric research. "It's important to recognize that this is a living document," Dr. Kupfer said.
Well, at least they dropped the Roman numerals, unlike the Super Bowl.

For Better or Worse

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The new iteration of the Diagnostic and Statistical Manual for Mental Disorders has received final approval by the American Psychiatric Association.  Psychiatrist Allen Frances has his thoughts:

This is the saddest moment in my 45 year career of studying, practicing, and teaching psychiatry. The Board of Trustees of the American Psychiatric Association has given its final approval to a deeply flawed DSM 5 containing many changes that seem clearly unsafe and scientifically unsound. My best advice to clinicians, to the press, and to the general public - be skeptical and don't follow DSM 5 blindly down a road likely to lead to massive over-diagnosis and harmful over-medication. Just ignore the ten changes that make no sense.

If only it was that easy.

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