January 2013 Archives

News Scan

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CA Prison Gang Leader May Face Death Penalty: Henry K. Lee of the San Francisco Chronicle reports a Nuestra Familia prison gang leader, Henry Cervantes, has been charged in California with two Oakland murders. Cervantes has been charged with murder in the aid of racketeering and conspiracy. On September 11, 2011, two bodies were found in an apartment building which had been set on fire. The victims, a 73-year-old man and 56-year-old woman, were both fatally stabbed according to autopsies. Allegedly, Cervantes recruited three gang members to get rid of any evidence of the murder committed by Cervantes the day prior. Seven other defendants are also listed in his indictment in the U.S. District Court in Oakland. Cervantes has been charged with murder in the aid of racketeering and conspiracy. In 2004, he was convicted of racketeering and conspiracy and served about six years of a ten-year sentence. By 2011, he was overseeing criminal activities of the gang's Oakland unit. If convicted, Cervantes may face the death penalty.

Fort Hood Mass Shooter Still Faces Death Penalty: The Associated Press reports mass shooter Maj. Nidal Hasan will still face the death penalty if convicted for the November 5, 2009 Fort Hood shooting in Texas. According to Hasan's attorneys he wishes to plead guilty on 13 counts of premeditated murder and 32 counts of attempted premeditated murder. Judge Col. Tara Osborn has stated that Hasan's motion will be heard next month, but Army regulations do not allow judges to accept a guilty plea in cases where capital punishment is a consideration. Instead, a commanding general makes the decision on whether or not the death penalty will be sought. In such a case, plea-bargaining is prohibited. Hasan's attorneys have indicated that if his guilty plea is rejected, the plea will instead be for unpremeditated murder, a charge that does not warrant the death penalty. According to experts in military law, even if such lesser pleas are accepted, Hasan will still face the death penalty if the prosecution moves forward with the trial and convicts him of the original charge. The date of the trial has not yet been set. Continued from this News Scan.

Alleged NC Cop Killed May Face Death Penalty: Scott Hamilton of the Winston-Salem Journal reports alleged cop killer Scott Sica may face the death penalty in North Carolina if convicted. Sica and two accomplices were charged with the Oct. 5, 1996 shooting of police officer Sgt. Greg Martin. One accomplice testified Wednesday that Sica shot and killed Martin when the officer had stopped them for a minor traffic violation after a botched robbery at a local restaurant. Sica's previous record of a bank robbery conviction added strength to the prosecution's bid for the death penalty. Judge Edgar B. Gregory ruled that the argument met the necessary requirements for capital punishment. Beyond the first-degree murder charge, Sica and his accomplices have been charged with several other crimes connected to Martin's slaying. Some of these charges include attempted robbery, conspiracy to commit armed robbery, and two counts of possession of stolen goods. Judge Gregory set a review hearing date of June 3.

TX Killer's Execution Delayed Yet Again:
Renée C. Lee of the Houston Chronicle reports the February 27 execution date for convicted killer Larry Swearingen was again postponed in Texas Wednesday. Swearingen was convicted of the 1998 murder of 19-year-old college student Melissa Trotter. He maintains his innocence. Since his conviction in 2000, Swearingen's attorneys have unsuccessfully filed three motions for DNA testing. DNA evidence found at the crime scene, his lawyers argue, would prove Swearingen's innocence. Recently, a motion was filed by the New York-based Innocence Project, heard Wednesday, arguing a 2011 Texas law, found here, established that DNA tests should be conducted in cases where it could prove innocence. Montgomery County Judge Kelly Case gave the prosecution and defense in the case 60 days to respond to the pending motion. Continued from this News Scan.

IL Police Oppose Parole for Cop Killer: CBS News reports convicted cop killer Clifton Hill is attempting to be granted parole in Illinois. In December 1976, police officer Charles Pollard, not in uniform, was found murdered in an alley behind his home. The victim's weapon and watch were missing, and his wallet emptied. Hill and an accomplice were charged in the killing. Chicago police officers oppose Hill being released into the community.

Is Gun Control the Answer?


The Obama Administration says it is.  Personally, I confess I don't know.  I have almost no acquaintance with guns.  My instinct tells me that gun control is not the answer; control of criminals is.  Yet it certainly seems that those most in favor of controlling guns are the same people least in favor of controlling criminals.

But let's assume that the Obama Administration is correct, and that gun control is the answer.  That would not demonstrate, however, that we need more gun control laws.  It might more peruasively suggest that we should do a better job of enforcing the ones we have.

But guess what.  Under President Obama, gun prosecutions are down by between 25% and 50% from the Bush Administration.  This little known fact was discussed today by two of the Senate's brightest members, Jeff Sessions and our friend Ted Cruz.

Powerline has the story

Help Wanted

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The US Supreme Court has this job announcement.

The Outrageous Heckling That Wasn't

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"A lie can travel halfway around the world while the truth is putting on its shoes." *

What kind of sleazoid would heckle the father of a victim of the Sandy Hook shooting?  None did, despite what you may have read in supposedly reputable news sources.  James Taranto has the sordid story at WSJ.

People tend to pass on information that fits our templates without critically examining it, and we tend to scrutinize incoming information that conflicts with our pre-existing notions.  It takes discipline and self-awareness to resist that natural tendency and subject all incoming information to equal scrutiny.  News professionals should be particularly vigilant in policing themselves in this regard.

Regrettably, we see this effect, and the failure to self-police, all the time in debates on criminal justice issues:
The three-judge court that ordered massive prisoner reduction in California has issued an order delaying the deadline for reaching the prisoner population goal by six months and ordering further briefing.  Understanding this order takes a bit of background.

A Symbol for the Abolition Movement Reappears

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Death penalty opponents have, one must grant, a variety of distinguished spokesmen.  Sister Perjean, Desmond Tutu and the enitre editorial board of the New York Times come to mind.

Today, one of their most important spokesmen was in the news, a man of public stature and uncompromising moral conviction.  As it happens, however, moral conviction was not the only kind.

Separation Between Church and State, Except...

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...when you're an Islamic terrorist doing time for your role in helping to kill Americans.

Our friends in the ACLU get all huffy about anything remotely Christian or Judaic hanging out at a school or other public place that even vaguely suggests religion.  This is because they want, or say they want, a "wall" of separation between church and state.  To be fair, they have won their share of Supreme Court cases on the subject.

But, my, how the courts' attitude changes when we're talking about accommodating Jihadists.  Thus I bring you this Wall Street Journal piece today, aptly titled, A Courtroom Victory for the 'American Taliban'.  The subhead is, "John Walker Lindh gains prison privileges by citing the Constitution he fought to destroy," and that description is all too accurate.  The basic story is that Lindh now has special privileges to pray five times a day with his fellow Muslim inmates.  This is because his religion "requires" it.  I guess the next thing it will require will be filet mignon five times a day.  Dietary rules, dontcha know.

I have often posted about how a sensible justice system cannot thrive, or even exist for long, in a dumbed-down culture that lacks the moral confidence to treat criminals as criminals.  The courts' genuflecting to newly-discovered "religious" devotion embraced by wannabe terrorist killers is one, and a particularly galling, aspect of this dumbing-down.  We saw it before in the months-long judicial hand-wringing about Major Hasan's beard, see Kent's post here and mine here.

We can either be serious about defeating terrorism, or we can allow terrorists to play games with us and our courts, but we can't do both.

News Scan

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California Crime Spikes After Realignment: Dan Weintraub of the Orange County Register reports crime in California increased in the first six months of 2012 following a 20-year decline. The overall crime rate dropped 56 percent from 1991 to 2011. Since 1992, violent crime decreased 63 percent. Property crime had been on the decline since 1980. In 2011, the state's crime rate was below the national average. In the first six months of 2012, violent crime in California's major cities climbed 4 percent while property crime increased by 9 percent. However, the number of people going to prison has significantly decreased since the passing of Governor Jerry Brown's Realignment. In 2010, 58,700 people were convicted of crimes and went to prison; only 33,900 got a prison sentence after AB 109 passed. Realignment is shifting inmates whose crimes are defined as nonserious, non-violent, and non-sexual to county jails rather than state prisons. From the year prior to the first year of AB 109, prison admissions for drug and property crimes declined from 58 percent to 37 percent respectively.

News Scan

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CA Killer, Arsonist Sentenced to Death: Phil Willon of the Los Angeles Times reports Rickie Lee Fowler was sentenced to death Monday by California Superior Court Judge Michael A. Smith. Fowler was convicted in August of setting a fire on October 25, 2003 in San Bernardino that killed five and destroyed about 1,000 homes. More than 80,000 had to be evacuated. The devastation triggered fatal heart attacks in all five victims. Fowler is a meth addict with a violent history of raping two of his ex-girlfriends. One was pregnant with his child at the time. He also repeatedly sodomized a cellmate in jail. Fowler's suspected accomplice in setting the fire was fatally shot in 2006.

IA Senator to Introduce Death Penalty Legislation: Mike Wiser of the Journal Des Moines Bureau reports Iowa Senator Kent Sorenson (R) will introduce legislation to reinstate the death penalty in the state. The death penalty measure is part of a five bill package and would allow a death sentence in cases where the defendant is convicted of both first-degree murder and first degree sexual abuse of or kidnapping of a minor.  The other bills would; eliminate good-time sentence reductions for serious sex offenses; require chemical castration for sex offenders convicted of a sexual crime against a child of 12 or under;  require electronic monitoring of sex offenders; and require immediate notification of hunters when a child goes missing.  Iowa's death penalty was abolished in 1965.

Long Beach Property Crime Surged in 2012: Richard Winton of the Los Angeles Times reports overall crime in Long Beach, CA went up 7 percent from 2011 to 2012; the first increase in five years. While overall violent crime declined 5.3%, the lowest it has been since 1972, rape and murder both increased in 2012. However, residential burglaries surged 19 percent, garage burglaries skyrocketed by 46.2 percent, and vehicle thefts jumped 19.1 percent.  

Dude, Where's My Car?

California's "realignment" program assures felons and potential felons that they will not go to state prison if they do not commit felonies classified as sex offenses, violent felonies, or felonies on a specific list unfortunately labeled "serious felonies."  The latter label is unfortunate because every crime properly designated a felony is serious.

One of the "nonserious" felonies is auto theft.  It's pretty serious to the victims, especially those of limited means who can't afford comprehensive insurance and need their cars to get to work.  Auto theft is a "regressive" crime.  It falls harder on people on the lower rungs of the economic ladder.  But it is not on the "serious felony" list.  So with a guarantee of no state prison by law, and with county jails overcrowded so only a fraction of sentences there are actually served, car thieves might get the impression that it is now open season on Californians' cars.

The FBI released its preliminary data for the first half of 2012 recently.  These data only include cities over 100,000 population, but nonetheless the 2012 v. 2011 comparison is interesting.  Because realignment took effect on October 1, 2011, the comparative first-half data give us a clean before-and-after comparison.

Auto theft increased by 1.7% nationally.  In California, the increase was 12.8%.  California's greater increase works out to an additional 4485 people's cars stolen.

News Scan

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As CA Crime Rises, Realignment Debate Continues:  Paige St. John of the Los Angeles Times reports California's significant crime increases may be linked to Governor Jerry Brown's AB 109, Public Safety Realignment. CJLF's analysis of FBI data for January to June 2012 shows crime spiked in the state after Realignment's implementation; homicides alone increased 7.6 percent statewide. Grand theft auto and burglary increased in the double digits. Despite the undoubted increase in both violent and property crimes across the state, the Center on Juvenile and Criminal Justice continues to deny any connection. The CJCJ does agree that 40 of the 69 cities in the state saw spikes in both violent and property crime. However, CJCJ senior researcher Mike Males says the non, non, nons of Realignment do not pose a public safety risk.  Major crimes committed by non, non, nons are documented on the realignment section of the CJLF website.  

CO Bill Would Set Pot DUI Limit:  CBS Denver reports that Colorado Rep. Mark Waller (R) will introduce a bill to establish a limit for driving under the influence of marijuana. According to data, in 2011, 13 percent of fatal vehicular accidents involved drives who were under the influence of the drug. The bill will set the limit at five nanograms of THC, the psychoactive element of cannabis. Testing to establish a driver's limit will be conducted by blood test; there is no way to establish THC levels via a breathalyzer. Colorado's Marijuana Legalization Initiative, Amendment 64, became law in November 2012. The executive order signed by Colorado Governor John Hickenlooper legalizing marijuana can be found here.

KS Murderer Pleads Guilty to Avoid Death Sentence:  Glenn E. Rice of the Kansas City Star reports hatchet killer Quintin P. O'Dell pleaded guilty in Kansas Thursday, avoiding a jury trial and the possibility of a death sentence. On June 1, 2011, O'Dell murdered his coworker, 22, on her day off while she was out fishing. He hit her in the back of the head with a hatchet he had found along the bank, knocking her to the ground. As she lay face up, he continued to repeatedly strike her in the head until she was dead. He then dragged her into the river. On December 26, 2011, O'Dell sexually assaulted and nonfatally disemboweled a 21-year-old woman.  He was sentenced to life without parole for the murder, and life for the assault.  

A New Reason to Avoid the Death Penalty


About three and a half years ago, an Islamic terrorist, Maj. Nadal Hasan, shot and killed 13 people at Ft. Hood, Texas.  He has been charged with 13 counts of premeditated murder and faces the death penalty.

His defense attorneys are seeking to take capital punishment off the table.  The reason du jour is not innocence, insanity, cost, racism, capitalism, militarism (I guess they couldn't really go for that one), or any of the usual shake-and-jive.  No, this is the reason:

Defense attorneys argue that Hasan should be spared a possible death sentence because his rights have been violated -- including by the former judge who ordered that Hasan's beard be forcibly shaved. Hasan first showed up in court in June with a beard, later saying it was required by his Muslim faith, but facial hair violates Army rules.

Not that his beard actually got shaved off, mind you.  Only that, at one point, he was ordered to shave it off.

The story is here, and my hat is off, I guess, to whatever defense lawyer thought of this one.

Picking Judges

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Collin Levy has this column in the WSJ (emphasis added):

Problems with the so-called Missouri Plan for judicial selection have become increasingly evident in the states that use it, prompting several to consider revising or abandoning it altogether. The next wave of changes may be coming in Kansas, where lawmakers are considering reforms to the way the state picks its judges.

Under Kansas's current version of the plan, to fill any vacancies on the Kansas Court of Appeals and the Kansas Supreme Court, the Governor must choose among a slate of candidates selected by a judicial nominating commission. The nine-member commission is made up of five members of the state bar association and four non-lawyers chosen by the governor, making it the only state which gives its bar association the power to choose a majority of the commission.

Nominating commissions have routinely pushed state courts to the left, and Kansas has been no exception. In a hearing in the state legislature this week, two of the commission members criticized the process. Commission member Felita Kahrs said that during her tenure, conservative judicial candidates were met with "disdain" by the commission and that discussions of them became "extremely heated and sometimes even hostile."

Every state with a nominating commission should get rid of it.  Unless a state has contested elections (which I do not favor), the executive appointment power is really the only effective way to restrain the courts' natural tendencies to veer in the direction of judicial activism.  Nominating commissions seem to always end up in the control of people who favor judicial activism, usually of the left-leaning variety.

Along with action through the democratic process, Gov. Brownback also wants the U.S. Supreme Court to hold that his state's judicial selection process is unconstitutional under the "one-man-one-vote" cases.  I am not in favor of that.  The federal constitution leaves these kinds of structural decisions to the states and their people.  The nominating commission should leave through the same door it entered.

Stop-and-Frisk in NY

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Meanwhile, back in New York, Heather MacDonald has this article in the City Journal on the ACLU's court campaign against effective policing.

Ligon v. New York challenged a decades-long program that authorizes New York police officers to patrol private buildings for trespassers and other lawbreakers. The Trespass Affidavit Program (TAP) tries to give low-income tenants in high-crime areas the same protection against intruders that wealthy residents of doorman-guarded buildings enjoy. According to the New York Civil Liberties Union (NYCLU), however, police officers routinely abuse their power under TAP by stopping and arresting minority residents and their guests on suspicion of trespass without any legal justification.

The NYCLU didn't come close to proving its case. But the litigation's most disturbing failure was its blindness to the realities of inner-city crime.

Debbie McBride has nothing but contempt for the ongoing litigation. McBride is a street-hardened building superintendent in the heart of the South Bronx zone targeted by the NYCLU. When asked about TAP, also known as the Clean Halls program, she doesn't mince words. "I love it!" she roars. "I'm serious, I love it. Me being a woman, I feel safe. I can get up at 4 AM and start working."

Bratton in Oakland

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The city of Oakland, California has hired Bill Bratton, former police chief in LA and NY, as a consultant.  Naturally, the usual "activists" are up in arms.  Matthai Kuruvila and Justin Berton report for the SF Chron:

Famed lawman William Bratton was pilloried by hundreds of Oakland activists who fear he will bring "stop-and-frisk" tactics to the city.

But they're already here.

In fact, the practice is widely used by police across the country and hardly new: The U.S. Supreme Court affirmed its legality nearly a half century ago.

That case, BTW is Terry v. Ohio, an opinion by CJ Earl Warren.

News Scan

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California Crime Spiked According to FBI Data: Tom DuHain of KCRA News reports total crime in California increased in the first six months of 2012 compared to the same period in 2011. In Sacramento, violent crime increased 7 percent. Car thefts in the city also jumped a significant 21 percent. A study from the Council of State Governments Justice Center released Tuesday found that 30 percent of the new crimes in Sacramento were committed by parolees and probationers. In other Central Valley cities, violent crime also increased. In Stockton, violent crime rose 25 percent, it jumped by 22 percent in Modesto, and it went up by 8 percent in Fairfield. CJLF's Press Release on the rise in crime in California, mentioned in the article, is here.

CA Appeals Court Rules Against Ethnic Privilege Restrictions: The Associated Press reports a three-judge panel of the California Court of Appeal ruled unanimously Wednesday that Pelican Bay State Prison authorities were wrong in implementing long-term race-based privilege denials. However, the appeals court ruled ethnic classification restrictions could be used during times of riots and emergencies. In 2010, inmate Jose Morales filed a lawsuit alleging certain privileges were denied to him solely based on his ethnicity. For three years following a riot between two rival Hispanic groups, Pelican Bay authorities denied privileges to all Hispanic inmates. The privileges included outside exercise, religious services, and family visits. The California Department of Corrections and Rehabilitation may take the case to the Supreme Court for review.  

PA Killer Holds Mentally Disabled Victims Captive, Kills Two: The Crimesider Staff of CBS News reports federal prosecutors indicted Linda Ann Weston of Philadelphia on charges of holding mentally disabled victims captive over a decade, which resulted in two deaths. Weston collected her victims' Social Security payments, about $212,000. Her charges include murder in the aid of racketeering, kidnapping, forced human labor and hate crimes. Four victims were found confined in the basement of her apartment in October 2011 by her landlord. Between 2001 and 2011, Weston allegedly held six adults and four children who were mentally disabled captive in closets, attics, and basements in multiple states. While in Texas and Florida, two female victims were forced into prostitution. In 2008, a disabled woman living with Weston in Philadelphia died of meningitis and starvation. In 2005, Weston fatally drugged a woman whom she held captive in a laundry room. Three decades ago, Weston was convicted in Philadelphia in the starvation death of a man that she held captive in her apartment. Also indicted were four accomplices, including three men and her daughter. Weston may face the death penalty if convicted.

Alleged Killer of Pregnant Teen May Face OH Death Penalty: Jen Steer of News Net 5 reports alleged killer David Stoddard could face the death penalty in Ohio if convicted in the murder of a 16-year-old pregnant girl. On January 6, Stoddard fatally shot the pregnant teen to death in a home while looking for his ex-girlfriend. He also nonfatally shot a 19-year-old girl in the head. His gun jammed when he attempted to shoot another man. Police also linked Stoddard via DNA to an October home invasion. The homeowner's dog bit him, and Stoddard shot the dog to death. An officer obtained a DNA sample from the dog's mouth. Stoddard was indicted Wednesday for murder, attempted murder, felony assault, robbery and burglary.

Slow News Day, Corrected

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As noted in this post, Justice Thomas's comment from the bench in Boyer v. Louisiana earlier this month was news on what was evidently a slow news day.  The Court has now posted a revised transcript.  From page 42:

The GOP and the City

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Edward Glaeser has this article in the City Journal with the above title and the subhead: "Conservative policies have greatly benefited urbanites. Why won't Republicans seek their votes?"  One passage deals specifically with crime:

Some of our greatest cities, including New York and Los Angeles, are much safer today than they were 20 years ago, thanks to Republican leaders, such as former Gotham mayor Rudy Giuliani. Forty years ago, conservatives and liberals disagreed about how to fight crime. Conservatives looked to more effective policing; liberals, believing that poverty caused crime, bet on redistributive social policies. The past decades have overwhelmingly vindicated the conservatives. The expansive government programs of the liberals' Great Society coincided with rapidly rising urban crime rates. Cities became safe again only when they embraced tougher--and smarter--policing.

News Scan

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Kern County DA Credits Realignment For 2012 Crime Rise: Angela Chen of Eyewitness News reports the Kern County Sheriff's office released statistics showing crimes increased in the county in 2012.  Total crime spiked almost 21 percent from about 8,500 in 2011 to 10,270 in 2012. Almost all categories of crime increased in 2012, with grand theft auto with the greatest surge. Of the individuals released from prison into the county, 44 percent have reoffended. According to officials and Kern County District Attorney Lisa Green, realignment is to blame. Green says the rise is no coincidence. Realignment is, in her words, "the proverbial revolving door." Offenders are going to prison, serving part of their sentence, being released into the county, and so on in a vicious cycle. The District Attorney's office had gotten about 1,000 more cases in 2012 than it did in 2011, to 8,000 cases from 7,000 respectively.   Our analysis of preliminary 2012 statistics released last week by the FBI support this conclusion.  

SCOTUS Rejects AZ Death Row Inmate's Plea: Howard Fischer of Capitol Media Services reports that the U.S. Supreme Court rejected Arizona death row inmate Scott Nordstrom's plea for a new sentencing Tuesday. Nordstrom argued that the judge erred in denying him the ability to introduce supposed innocence-establishing evidence from his original trial. This argument was previously rejected by the Arizona Supreme Court.  In 1996, Nordstrom and his accomplice shot and killed two men during a robbery. They killed four more people during another robbery two weeks later. Both men received the death penalty. In 2002, the U.S. Supreme Court ruled in another case that if a defendant objects to a death sentence imposed by a judge, the defendant is entitled to argue against the sentence in front of a jury. Nordstrom got such a hearing, and in 2009 the jury resentenced him to death.

NYPD Gets Scan-and-Frisk Technology: Rocco Parascandola of the New York Daily News reports the New York Police Commissioner Raymond Kelly announced Wednesday that the New York Police Department will begin utilizing a device that can scan for concealed weapons soon. The machine is small and is able to be fitted in police vehicles and on street corners where gun crimes have occurred. The device is expected to evolve traditional stop-and-frisks into scan-and-frisks. 

Defending Coleman v. Thompson

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The 1991 decision in Coleman v. Thompson is one of the most important protections for the finality of criminal judgments in U.S. Supreme Court jurisprudence.  Without it, there could be an endless stream of collateral attacks on a judgment, with each lawyer claiming the supposed ineffectiveness of the lawyer before as "cause" for the earlier default of the claim.  Coleman drew the line on such "ineffectiveness as cause" claims at the first appeal.

California has not followed Coleman for state habeas corpus, and the result has been a disaster.  Even though successive petitions are very rarely granted, they are filed in nearly every case.  They regularly claim ineffectiveness of the first habeas lawyer as cause for default, and the "ineffectiveness" generally consists of nothing more than the first lawyer not bringing a claim the second lawyer wants to bring.  The California Supreme Court put some limits on these petitions last August in In re Reno, but not enough yet.  See this post.

The U.S. Supreme Court made two narrow exceptions to Coleman last term.  Maples v. Thomas made an exception for clients actually abandoned by their lawyers, fortunately a rare occurrence.  Martinez v. Ryan made an exception for states that actually bar all ineffectiveness claims from direct appeal, an odd little rule that a state should quickly jettison.

Now in Trevino v. Thaler, petitioner seeks to expand Martinez into an exception that swallows the rule.  That would be a disaster, as the California experience demonstrates.

Today CJLF filed an amicus brief opposing this change.

Equitable Tolling

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Today's lone Supreme Court decision, Sebelius v. Auburn Regional Medical Center, relates to Medicare and SSI funding.  However, the specific question is equitable tolling of a limitations period, an issue that comes up a lot in habeas corpus cases.  So I thought I would note it here for the benefit of anyone researching a tolling issue.

No more opinions are likely until the February argument calendar, after the Washington's Birthday holiday.

Micro-Symposium on Kerr's Theory of Law

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Last year, Orin Kerr published a brief article in the tongue-in-cheek Green Bag.  The article was titled A Theory of Law and provided a high-toned citation for anything a law review author had no other citation for.  A micro-symposium of comments on Kerr's article is now available on SSRN, including a cyber perspective from a long-time computer programmer (moi), titled Cursing Recursion.

News Scan

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CA Inmate Kills Cellmate: Chelcey Adami of the Imperial Valley Press reports an inmate at the Calipatria State Prison was killed by his cellmate Monday. His cellmate slashed him in the neck with that prison staff believe was a razor blade from a disposable razor. The victim was serving 68 years to life for second-degree robbery. His cellmate was serving 40 years to life for second-degree murder. The names of the inmates have not yet been released.

CA Police Capture Escaped Prisoner: The Associated Press reports escaped California convicted Jose Ochoa, 42, was captured last week in the state. Ochoa escaped from prison in 1996 while serving a sentence for possession of a controlled substance for sale. He was found living in the basement of a home in Colton.

In a recent Sunday news show, NBC's David Gregory held up an empty ammunition clip to demonstrate to his guest, an NRA spokeman, the dangerousness of allowing people to possess a clip that can hold many (I think it was ten) bullets.  As it happens, it was a clear violation of DC gun control law for Gregory to have the clip, empty or not.  There ensued a heated debate about whether Gregory should have been prosecuted.

Many on the pro-Second Amendment side (a side I generally agree with) thought that he should have been charged.  They mocked the gun control crowd's flaunting the laws they so eagerly foist off on others.  They derisively noted that Gregory got a free pass from the DC Attorney General, Irv Nathan, wondering whether Nathan, the same sort of liberal Democrat that Gregory certainly seems to be, would have been similarly deferential to, say, a pro-gun rights TV talk show host on Fox News who held up the same ammo clip.

On the well-known conservative blog Legal Insurrection, I agreed that Nathan should have recused himself from the decision whether to prosecute Gregory.  In my view, however, Nathan's substantive decision not to prosecute was correct.  This provoked a firestorm of criticism from some of my fellow law-and-order conservatives.  But, as I explain after the break, their criticism partakes of exactly the prosecution-as-politics ethos that, in the gun control debate as elsewhere, they correctly decry.    

News Scan

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CA Double-Killer Sentenced to Death: The Associated Press reports Contra Costa County Judge John Kennedy sentenced convicted double-killer Nathan Burris to death Friday. In August 2009, Burris used a shotgun to kill his ex-girlfriend and a friend who Burris thought was romantically involved with her.  The murders occurred at the San Francisco Bay-area toll booth where his ex-girlfriend. Burris represented himself in court, repeatedly admitting his guilt during the trial. He also told the court that execution by lethal injection in California was meaningless due to all the legal obstacles. Continued from this post by Kent Scheidegger.

AZ Single-Drug Executions May Show CA the Way: Howard Mintz of Mercury News reports Arizona has earned itself the title of second busiest execution state after switching a to single drug execution protocol. The state currently has 128 death row inmates. In 2012, Arizona executed six inmates with the single drug protocol. In 2011, the state executed 11 inmates; the same amount California has executed since restoring the death penalty in 1978. No executions have been carried out in California over the past seven years.  Between 2001 to 2010, only one Arizona murderer was executed as challenges to the state's three-drug lethal injection process dragged through the courts. Executions for the 14 California death row inmates who have exhausted all appeals, are currently delayed after years of similar challenges.  The adoption of the single drug protocol mooted these challenges in Arizona, Washington, and Ohio.  Once California does switch to the single drug method, the 9th Circuit's decisions allowing resumed executions in Arizona would apply.  CJLF Legal Director Kent Scheidegger said a resolution to the issue should not take too much longer.   

So Far, No 2013 Homicides in Stockton: Andrea Menniti of CBS 13 reports that as last Friday, Stockton, CA had no murders during 2013.  According to the Stockton Police Department, the city experienced three murders in the same time period last year. During the last six months of 2012, a community response team of 22 officers was implemented by the Stockton Police Department. The team had arrested about 300 felons and removed 168 guns off the streets. The city also got help from the California Highway Patrol in the last few months of 2012. Last year, Stockton set a record with 71 homicides, 21 of which occurred between October through December.

Execution Date for Tri-State Murderer

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The Dyersburg (Tennessee) State Gazette has this story on Steven Ray Thacker.

Thacker kidnapped, raped, and murdered Laci Dawn Hill in Oklahoma two day before Christmas, 1999.  He fled to Missouri where he burglarized houses.  He killed Forest Boyd, who returned home during one of the burglaries.  Crossing into Tennessee, his car broke down, and tow truck driver Ray Patterson answered the call.  Thacker killed Patterson after a confrontation over his use of a stolen credit card to pay for the tow.

Thacker is sentenced to death in Oklahoma and Tennessee and to life-without-parole in Missouri.

Oklahoma has set an execution date of March 5.

A Cold Case of Cold-Blooded Murder

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Sheila Weller has this article in the NYT on the long-overdue sentencing of the man who murdered her cousin, Ellen Hover, in 1977.

The man is Rodney Alcala.  He won't do time in Sing Sing.  He heads back to San Quentin to wait out the appeals from his third death sentence for killing 12-year-old Robin Samsoe in California.

Over the years Rodney Alcala's lawyers managed to twice overturn, on technicalities, his conviction for the murder of Robin Samsoe. He aggressively fought the use of DNA evidence against him, but ultimately lost. Finally, in February 2010, a jury re-re-convicted him of the murder of Robin Samsoe, along with the other four California women. He has not stopped fighting his execution sentence and suing the state for things like failing to provide him with a low-fat diet.

Since Ellen was killed, both of her parents have died; her brother has died; her aunt, my mother, has died. In all those years, Rodney Alcala was never charged with her murder. Many of Ellen's friends and family members felt a measure of justice when he was convicted in California in 2010 -- at least we felt it was the best we could ask for. We acted as if those acknowledged victims included Ellen: we wrote one another e-mails with exclamation points and thanked the Orange County prosecutor, Matt Murphy. But there was no trial for Ellen, and I don't think anyone ever expected there would be. I certainly didn't.
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News Scan

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WY Bill Would Eliminate Life Without Parole: Ben Neary of the Associated Press reports on proposed legislation by Wyoming Senator Bruce Burns, introduced Thursday that would eliminate life without parole sentences in Wyoming. This would apply to future cases and would grant the governor the option to shorten sentences for inmates currently serving LWOP. Wyoming inmates serving this sentence are first-degree murderers and/or repeat sex offenders. Burns argues that the LWOP prison population is aging, and the state will be responsible for the higher cost for their medical care. His plan is "basically get rid of the state's responsibility for these people." Cheyenne District Attorney Scott Homar opposes the bill, noting that for some offenders, particularly repeated sex offenders, life without parole is the only appropriate sentence. Wyoming has the death penalty.

NY Passes Gun Laws, Overlooks Officers: Michael Virtanen of the Associated Press reports on a new gun control bill passed Friday in New York. The bill passed in the Senate 43-18 Monday night, and cleared the Assembly 104-43 Tuesday. New York Governor Cuomo had issued a special waiver so the bill could be passed without the usual three days for lawmaker and public review in order stop the gun buying spree in the city. The law reduces maximum magazine capacity from ten to seven rounds and reclassifies some previously legal semiautomatic rifles as illegal but allows owners who had the previously legal guns to keep them if they register with police within a year. However, Jim Hoffer of Eyewitness News reports the new law neglected to exempt most NY law enforcement officers who handguns have a 15 round capacity. In March, it will be illegal to have a gun that holds more than seven rounds. The Patrolman's Benevolent Association President said Friday that changes to the law to provide both active and retired officer exemptions are in the works. State Senator and former New York Police Department Captain Eric Adams is seeking an amendment to implement the exemptions next week. Continued from this News Scan.

Ex-New Orleans Mayor Indicted for Corruption: The Associated Press reports that former New Orleans Mayor Ray Nagin (D) was indicted Friday on 21 counts of corruption. Among the charges are bribery, conspiracy, filing false tax returns, money laundering, and wire fraud. Nagin was first elected Mayor in 2002, then reelected in 2006.  In a speech a year after Hurricane Katrina, Nagin predicted New Orleans would become a "chocolate city" and that the hurricane was a result of God being mad at America.  During his second term, rebuilding after the disaster was painstakingly slow and violent crime increased across the city. During the rebuilding, a City Hall corruption investigation began. To date, two former city officials and two businessmen have pleaded guilty to charges of corruption. 

Retroactively Dumping DimCap

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Can a state retroactively abolish a defense, even a "partial" defense such as diminished capacity?  If it is purely a legislative change, clearly not.  That is the heart of the constitutional prohibition of ex post facto laws.  A statute enacted after the crime that makes previously legal conduct criminal or increases the punishment of previously illegal conduct cannot be applied.

But how about a court's reinterpretation of a previously enacted statute?  Tougher question.  The Supreme Court has found a due process protection against court-made changes to substantive criminal law, but it is not exactly congruent with the ex post facto rule for statutes.

The Michigan Legislature passed a law in 1975.  Burt Lancaster [no, not that one] killed his wife in 1993.  The Michigan Supreme Court decided in 2001 that the 1975 law had abolished diminished capacity, a much-criticized doctrine under which a mental problem is claimed to negate the capacity to form a mental state such as "malice," typically reducing murder to manslaughter despite otherwise objective indicia of malice.  Lancaster's first conviction was overturned on habeas, and on retrial the trial court precluded the diminished capacity defense. 

The state court of appeals was okay with that.  Federal judges split 2-2, with two judges on the court of appeals panel saying the state court decision was both wrong and unreasonable.  The third member of the panel and the district judge disagreed.  Panel opinion is here.  Today, the Supreme Court took up the case as Metrish v. Lancaster, No.12-547.

Diminished capacity, BTW, is often known as the "twinkie defense."  The term comes from the notorious manslaughter verdict for Dan White, who killed San Francisco Mayor George Moscone and Supervisor Harvey Milk.  Twinkies were not actually part of the defense, but the term has stuck, and the low reputation of the defense is entirely justified.

Bond Returns

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Carol Bond, that is.  She is a despicable person who may just be right on the legal question.

She is not the only despicable person in the story.  Her husband and best friend had an affair, resulting in the friend's pregnancy.  Bond was certainly justified in being angry and taking action, but poison was over the top.  That is a crime for which she should have been prosecuted and punished -- by the Commonwealth of Pennsylvania.  The question is whether Congress has the authority to make a federal case out of it.  The high court previously decided she had standing to raise this objection.  (Opinion here, prior post here.)

Today the Court took up the substantive question.  Orders list is here.  Rick Pildes has this guest post at the Volokh Conspiracy.  Lyle Denniston has this post at SCOTUSblog.

News Scan

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VA Executes Killer in Old Sparky: Frank Green of the Richmond Times-Dispatch reports that convicted killer Robert Charles Gleason Jr. was executed by electrocution in Virginia Wednesday night. He was pronounced dead at 9:08 p.m. While serving a life sentence for a 2007 murder, Gleason killed two inmates, earning him a death sentence. In 2009, he bound, beat, and strangled his cellmate Harvey Gray Watson Jr. at the Wallens Ridge State Prison. In 2010, Gleason strangled  inmate Aaron Alexander Cooper at the Red Onion State Prison. He had pleaded guilty to Cooper's murder, which he carried out as a favor to another inmate. He also refused to appeal his death sentence, saying that was the only way to stop him from killing again. Virginia has executed 110 people since resuming executions in 1982. Gleason was the seventh person to die by the electric chair since 1995 when the option between that and lethal injection became available. Gleason's former lawyers had filed a stay of execution. The U.S. Supreme Court denied it Wednesday. The order is here.

Oakland Named Third Most Dangerous City 2012: A Los Angeles Police Officer, under the pseudonym Jack Dunphy, reports in City Journal that Oakland, CA was ranked third among Forbes ten most dangerous U.S. cities of 2012. As of December 16 of last year, the Oakland Police Department reported an increase in murders by 21 percent, robberies by 23 percent, assaults by 11 percent, and burglaries by a whopping 44 percent from 2011. Due to financial trouble the city laid off 80 police officers and 21 cadets in 2010 and the number of officers has continued to dwindle. Former Los Angeles police chief and New York City police commissioner Bill Bratton has been hired to develop crime fighting strategies and police reforms. Bratton will report to U.S. District Court Judge Thelton Henderson.

Oakland Police Elaborate on Violent Crime Statistics: Demian Bulwa of the San Francisco Chronicle reports the Oakland Police Department walked back Chief Howard Jordan's Monday statement that an estimated 90 percent of the violent crime in East Oakland since last summer has been retaliatory. Jordan linked most of  the uptick to a gang feud that stemmed from the August 8, 2012 murder of 16-year-old Taiteanna Turner. His statement is discussed in this News Scan. From August 13 to December 31, Oakland had 57 murders and 1,784 robberies. Jordan's figure would mean about 51 of the murders and 1,600 robberies stemmed from Turner's death. Jordan's chief of staff, Sgt. Chris Bolton, says 58 percent of the city's murders were from East Oakland. Of those, about 65 percent were linked with gangs. So, while the murder was not the cause of 90 percent of the violent crime, Bolton said  it was responsible for a high percentage.

The President's Gun Control Proposals

The President has issued his gun control proposals, summarized here by the NYT.  I have not fully assimilated them, so I don't want to take a position right now.  Offhand, it looks as if some are sound, while others overreach. 

My focus instead is on how the President presents them.  My views are summarized wonderfully by Peter Wehner in Commentary.  His piece begins:

Even when I agree in substance with the president, as I do in this instance, I find his combination of self-righteousness and demagoguery to be off-putting. In his remarks earlier today, for example, the president once again took to the task of demonizing his opponents, something he does more promiscuously than any president I can recall.

For Mr. Obama, it's never about honest differences over policies. His political opponents have to be painted as morally obtuse, cruel and motivated by the basest considerations. (The president, of course, is always portraying himself as hovering far above politics, a man of stainless integrity and motives that are pure as the driven snow. Which is quite a feat for a man who ran a billion-dollar campaign of unusual ruthlessness and dishonesty.)

In this instance, Mr. Obama posed the choices this way: Are members of Congress doing what it takes to "get an A grade from the gun lobby that funds their campaigns? Or giving parents some piece of mind when they drop their child off to 1st grade?" It's not that his critics believe his proposals will be worthless or even wrong. No, their motivation is to "gin up fear or higher ratings or revenue for themselves."

The whole piece is very much worth your time.  I bring its opening to your attention because, among other things, it reminded me of how our opponents behave in the death penalty debate.  It's not that retentionists are mistaken.  It's that they're savage, barbarian and sadistic.  And that's on their good days.

This from the side that endlessly whines about the absence of civility.

News Scan

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PA Seeks Death Penalty for Ransom Killer: Brad Segall of CBS News reports prosecutors are seeking the death penalty for Raghu Yandamuri in Philadelphia. Yandamuri allegedly killed a ten-month-old girl and her grandmother October 2012. He stabbed the grandmother to death, then kidnapped the infant and suffocated her, dumping her body in the same building. CBS News previously reported Yandamuri left 10 copies of a ransom note for 50,000 dollars in the apartment.  

Court Denies IN Quad Killer's Appeal: The Associated Press reports a federal court judge denied Indiana death row inmate Joseph Corcoran's sentence appeal last week. Corcoran was convicted in 1999 of shooting his brother, his sister's fiance, and two other men to death with a semiautomatic rifle in July 1997. His case has been reviewed by the Indiana Supreme Court five times, a federal court twice, and the U.S. Supreme Court twice. His attorneys plan to file another appeal. He has also bragged while in prison about shooting his parents to death with a shotgun in 1992. He had been charged but acquitted in that case.

Four IL Double Homicide Suspects Arrested: The Associated Press reports four people appeared in court Monday in Illinois for the murders of two men. Allegedly, Alisa Massaro, 18, Adam Landerman, 19, Joshua Miner, 24, Bethany McKee, 18, lured the victims, two 22-year-old men, to Massaro's home. They then robbed the victims, killed them, and attempted to dismember them. Three of the suspects were arrested at the home, where police found the bodies Thursday; one was later apprehended.

FBI Releases Early 2012 Crime Statistics: The FBI has this preliminary report for the first six months of 2012. According to the report, violent crime went up 1.9 percent compared to the first half of 2011. Nationally, murder dropped 1.7 percent, rape declined 1.4 percent, robberies increased by 2 percent, and assaults went up by 2.3 percent. Property crime increased 1.5 percent nationwide. All categories of property crimes went up, theft by 1.9 percent, vehicle thefts by 1.7 percent, and burglary went up 0.1 percent. In the West, violent crime is up 3.1 percent and property crime by 4.7 percent. In the Midwest, violent crime increased 2.5 percent, and property crime by 1.3 percent. In the Northeast and South, property crime increased by 1.1 percent. However, the northeast experienced a 4.0 percent increase in property crime, while it declined 1.4 percent in the South.

Oakland Violent Crime Wave Continues: CBS San Francisco reports four separate people were shot to death on Friday in Oakland in six hours. The murders are believed to be a gang retaliation for the murder of a woman in Summer 2012. Oakland Police Chef Howard Jordan explained in a news conference Monday that an estimated 90 percent of the violence in the city since last summer has stemmed from the gang feud. Oakland city officials have hired former Los Angeles police chief  and New York City police commissioner Bill Bratton to help develop strategies to handle the crime wave. Details in this News Scan.

Search for More John Wayne Gacy Victims: Don Babwin of the Associated Press reports a search for more victims of Illinois serial killer John Wayne Gacy will be carried out. Gacy was convicted in 1980 of killing 33 young men. Investigators had located 29 bodies in the crawlspace and yard of his home in the 1970s. A judge approved a warrant to search for bodies underneath his late mother's apartment complex. According to witnesses, he had been a handyman for the property. Gacy was executed in 1994.

Justice Thomas's Yale Joke

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Tom Goldstein has this earwitness account of Justice Thomas's joke in oral argument yesterday that seems to be big news.  Goldstein begins, "Wow, slow news day."  Second the motion.

Risk Assessment

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Phillip Matier and Andrew Ross have this column in the SF Chron:

What do Charles Manson, Sirhan Sirhan and Scott Peterson have in common besides murder?

They are all classified as "low-risk" repeat offenders by the California Department of Corrections and Rehabilitation.

The "low-risk" appraisals are based on everything from their age (in Manson's case, 78) and conduct behind bars to the number of years since their last arrest.

Luckily, an inmate's risk score isn't the only criterion for parole, says Corrections spokeswoman Terry Thornton. "It only predicts the likelihood of reconviction of a felony upon release," she said.

The terms "low risk" - and "non-serious" - and the public's perception of what the terms mean - have become central to the politics and public relations of prison overcrowding.

Rhode Island Rebellion Over?

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Rhode Island Governor Lincoln "Stand in the Jailhouse Door" Chafee has reached the end of his legal rope.  The Supreme Court denied writs of certiorari to Chafee and the man he is trying to help, accused murderer Jason Pleau, in cases 12-223 and 12-230.  Prior post, with links to earlier posts, is here.

Will Chafee actually resist the order?  What would the President do if he did?  Looking at history, we see an exponentially descending degree of force used against recalcitrant state governments:

President Lincoln sent a large army that fought for four years.
President Eisenhower sent one division, the 101st Airborne.
President Kennedy sent his brother and a few marshals.
Maybe President Obama could send Michelle.

Culture, Criminal Law and Lying

Lance Armstrong was America's most famous cyclist.  He won the Tour de France seven times.  The feat was remarkable, to say the least.  Indeed, it was so remarkable that he was widely suspected of doping.  For years, he adamantly if not snarlingly denied that he had done any such thing.  He pointed the the fact that he had taken dozens of doping tests and passed all of them.

It was all a pack of lies.  He was doping all along.  He had devised a method to scam the testing.  Eventually the mass of evidence against him was so overwhelming that he was stripped of his victories and banned from competitive cycling for life.

Q:  What to do?  A:  What else?  Go on Oprah Winfrey to "confess."

The Armstrong case and his decision to give an interview to Oprah (who to the best of my knowledge knows zip about cycling) tells us something.  It's not directly about criminal law (not yet, anyway, although who knows what criminal fraud cases lie ahead.  Armstrong made a great deal of money by cheating).

What it tells us is that we live in a culture of deceit that gets hugged and sobbed over on Oprah Winfrey, but not punished.  I have posted about this before, albeit in a different context.

The successful operation of our courts depends, at bottom, on a culture that condemns  --  I mean actually condemns  --  lying.  This one doesn't.  The amount of lying that goes on every day and in every medium is astounding, but attempting to hold liars accountable is snoozingly dismissed as old-fashioned, Puritanical hectoring.

Made-up Constitutional doctrine like the "analyses" in Miranda and Lafler represent a threat to the criminal justice system, but nothing compared to a culture that shrugs its shoulders at lying.

News Scan

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Poll Shows National Support for Death Penalty: JoAnne Viviano of the Columbus Dispatch reports a 2012 USA Today/ Gallup poll shows 63 percent of Americans support the death penalty. About 1,000 adults were polled by phone from December 19-22, 2012. The margin of error is plus or minus 4 percent.  Among those surveyed 80 percent of the Republicans and 51 percent of the Democrats supported the death penalty. Self-identified conservative respondents were 75 percent in favor, with liberals at 47 percent. In 2011, 61 percent of respondents were in favor of the death penalty compared to 64 percent in 2010.

NY Legislature to Vote on Gun Control Bill: Michael Gormley of the Associated Press reports the New York Legislature will vote Monday on whether to enact a gun control measure. The bill would add further restrictions to the ban on assault rifles, limit magazines to seven bullets from ten, and increase background checks for firearm purchasers. Crimes involving firearms would receive additional mandatory sentences. Illegal gun trafficking and mental health issues are also addressed. State funding for schools to protect against school shootings are expected to be included as well.

MS Inmate Pleads Guilty in Fatal Riot: The Associated Press reports inmate Yoany Oriel Serrano-Bejarano will plead guilty to participating in a May 2011 Mississippi prison riot which cost one correction officer his life. Twenty others were injured. Serrano-Bejarano, an illegal immigrant convicted in the U.S.,  assaulted a guard then helped more inmates climb onto the prison roof. On the roof inmates beat 24-year-old guard Catlin Carithers to death. The riot took place at the Adams County Correctional Facility, a private prison housing 2,500 illegal immigrants, most of whom were convicted of re entering in the U.S. after deportation.

More on the Stanworth Case

Paul Elias of AP has done some more digging on the question of how Stanworth ever got released.  The long version of his article in on the Seattle Post-Intelligencer site. (Some other sites are carrying truncated versions.)

Stanworth's biggest break came in 1972 when the state Supreme Court struck down California's death penalty as cruel and unusual punishment. As a result, Stanworth, Charles Manson, Sirhan Sirhan and 104 other Death Row inmates had their death sentences converted to life in prison.

At that time, however, the harshest penalty for first-degree murder was life with the chance of parole, rather than life without parole. So Stanworth was allowed to apply for parole, which he did unsuccessfully four times between 1974 and 1978.

Then in 1979, he hit pay dirt. The state's parole board gave Stanworth a date for release, saying he could leave prison sometime in 1990 after serving 23 years, four months and nine days. The board said he was entitled to release for five main reasons, according to yet another Supreme Court ruling in 1982 considering his parole:
In the famous (or notorious) case of Miranda v. Arizona, the Supreme Court required police officers to warn arrestees before questioning, "You have the right to remain silent."  Actually, the Constitution says a defendant in a criminal case has a right not be compelled to be a witness against himself, which is not the same thing.  Today, the Court took up the case of Salinas v. Texas, No. 12-246.  The Court of Criminal Appeals opinion is here, and it begins:

The appellant was convicted of murder. The Fourteenth Court of Appeals affirmed the conviction. We granted the appellant's petition for discretionary review on one ground: whether the Court of Appeals erred in holding that the Fifth Amendment right against compelled self-incrimination does not apply to pre-arrest, pre-Miranda silence used as substantive evidence of guilt in cases in which a defendant does not testify. Holding that such silence is admissible, we will affirm the Court of Appeals's decision and uphold the appellant's conviction....

Houston police officers discovered two homicide victims on the morning of December 18, 1992. An investigation led to the appellant, and he voluntarily accompanied officers to the police station for questioning. For approximately one hour, the appellant answered every question asked. Then, when asked whether shotgun shells found at the crime scene would match a shotgun found at his home, the appellant remained silent, and, according to the interrogating officer, demonstrated signs of deception. A ballistics analysis later matched the shotgun with the casings left at the murder scene. Subsequent investigation led police to a witness who stated that the appellant had admitted murdering the victims. On March 4, 1993, the appellant was charged with murder, though police could not locate him at the time.

I think that is correct.  The Supreme Court decided in Dickerson that it would keep Miranda as a matter of precedent.  Even so, as an original matter, the decision was an extreme case of judicial overreaching, and it should not be extended, even by a fraction of an inch.  The applicability of Miranda has always depended on custody, there is no compelling reason to extend it to noncustodial interrogations, and the Court should not aggravate a dubiously legitimate exercise of judicial power by extending it to new territory.

The Court also took up a couple of federal cases on extortion law and application of sex offender registration requirements to old convictions.

News Scan

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DNA Solves 1980 Murder Case: The Associated Press reports convicted sex offender Michael Allan Halgren was charged Wednesday with murder in Washington state. Halgren was linked by DNA to the April 23, 1980 murder of a 19-year-old woman. In 2012, His DNA was profiled at a special commitment center as part of an updating process for a number of civilly committed sexually violent predators. Halgren had been convicted of a 1989 kidnapping and raping of a woman in Washington.

Execution Dates Set for 3 PA Killers: Larry Alexander of the Intelligencer Journal reports execution dates were set Thursday for Abraham Sanchez Jr., Freeman May, and Orlando Maisonet in Pennsylvania. May, 55,  will be executed March 5. He was convicted of stabbing a 22-year-old woman to death. She was reported missing on September 4, 1982, and her remains were located dumped in a wooded area in 1988. In December 1982 , May had brutally stabbed two women, ages 15 and 19, raping one of the victims. The girls survived to identify May as their attacker. Maisonet, 54, will be executed March 6 for his participation in the stabbing murder in September 1982.  Sanchez, 24, who will be executed March 7, shot a man to death during a robbery attempt in May 2007. All three killers will be executed by lethal injection.

President Signs Katie's Law:
Melissa Masatani of Pasadena Star-News reports that President Barack Obama signed the Katie Sepich Enhanced DNA Collection Act, H.R. 6014, into law Thursday. The law would allow states which collect DNA from felony arrestees to apply for funding. The funding is limited to $10 million from 2013 to 2015 and will come from the Debbie Smith DNA Backlog Reduction Act. About half of the states in the nation already collect samples from felony arrestees. The samples are given a numeric ID which can be matched to the ID in other cases. Personal information is not recorded with the sample. The bill was introduced by Rep. Adam Schiff, D-Burbank, in 2010. It was named for murder victim Katie Sepich, who was raped and killed in 2003 in New Mexico. Her killer's DNA was not matched to DNA collected from Sepich until 2006. More information on her case and the law can be found here.

Loophole for OR Sex Offenders: Kate Cagle of KPTV News reports all sex offenders, regardless of the seriousness of their offenses or criminal history, can register as transients in Oregon. Homeless sex offenders can list a street corner as their home address. They are in compliance with state law as long as they sleep within a seven to ten block radius of that location. This poses a significant public safety risk for citizens.

News Scan

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CA Gov. Seeks Return of Prison Control to State: Debra J. Saunders of the San Francisco Chronicle reports on California Governor Jerry Brown's Tuesday news conference announcing that he wants the federal courts to return control of the prison system back to the state. Brown argues that reducing the current prison population of 119,213 to the mandated 110,000 by June 2013 as ordered would put public safety at risk. He suggested that to comply, dangerous criminals, including murderers, would have to be released.  The 110,000 inmate population cap is based on a design capacity of one inmate per cell.  Saunders also reports that CJLF President Mike Rushford asked why Brown did not address the prison overcrowding by building more prisons. While the Governor says there is no money for new prisons, Rushford points out that unspent bond-funding allocated for prisons in 2007 could be used. Apparently, building a high-speed train from Merced to Bakersfield costing six billion dollars is justifiable, but building prisons to keep dangerous offenders who victimize innocent Californians off the streets is not.

LA Crime Increased in 2012: Richard Winton of the Los Angeles Times reports overall crime in Los Angeles increased in 2012, despite a slight decline in murders. Last year, the city had 166 homicides committed, compared to 170 in 2011; a 2.3 % drop. This is the lowest the city has seen since 1970. However, gang-related homicides increased by 10.5% in the same time period. Shootings involving deputies increased to 49 in 2012. There were 37 the previous year. Overall crime from 2011 to 2012 went up 3%. Violent crime rose 3.5%. This includes rape, murder, assault, and robbery. Serious crime went up 4.2%. Property crimes rose to 4.3%.

Alleged 9/11 Attackers Will Not Face Conspiracy Charges: Jess Bravin of the Wall Street Journal also reports that on Wednesday the Defense Department moved to drop conspiracy charges against alleged September 11, 2001, terror attacks planner Khalid Sheikh Mohammed and four co-defendants. In October, the DC Circuit threw out Salim Hamdan's 2008 conviction. Hamdan was Osama Bin Laden's driver during the time of the 9/11 attacks. He was arrested in November 2001, but his offenses were not classified as war crimes until 2006. As a result the conviction applied the law ex-post facto.  This same reasoning is said to apply to the conspiracy charges against Mohammed. The Obama administration will decide by Friday whether to appeal the appeal court's decision in Hamdan or seek a rehearing.   

Attempted Car Bomber Argues Entrapment: Joel Millman of the Wall Street Journal reports the trial for Mohamed Osman Mohamud will open Thursday in Portland, Oregon. He pleaded not guilty to the attempted use of a weapon of mass destruction. In November 2010, Mohamud, 19 at the time, allegedly tried to set off a car bomb at downtown Portland's Christmas tree lighting ceremony. According to the FBI, the plan was part of a terrorism sting. The actions of Mohamud were coordinated by the FBI. The radical Islamists that Mohamud was in contact with were government operatives. The defense will argue the sting entrapped Mohamud. No such entrapment argument has worked since 2001. 

Criminal Blogging

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This post is critical of the government of Vietnam.  That is a criminal offense for which I could get a long prison sentence if I were in Vietnam.  Thank God I am not.  James Hookway has this article in the WSJ with contribution by Nguyen Anh Thu.

Although the Cold War is a fading memory, a substantial portion of the Earth's population still lives under communism.  We should never forget how thoroughly evil it is.
How long does an ill-advised court decision cause harm?  A very long time, sometimes.  Forty-one years ago next month, the California Supreme Court wrongly declared capital punishment to be a violation of the state constitution.  Four months later, the U.S. Supreme Court wrongly wiped out all the existing capital punishment laws in the other states.

Yesterday, Nellie Turner Stanworth, 90, was killed.  Her own son called police and said he had done it.  If his correct sentence for his prior crime had been carried out as it should have been, this killing would not have happened.

Henry Lee has this story in the SF Chronicle.
And if you hadn't already heard, you would never guess who is heading it.  The WaPo's Reliable Source bloggers Roxanne Roberts and Amy Argetsinger have this post.

For a generation of liberals, legalization of marijuana has become a harmless -- if not inevitable -- issue.

Not for Patrick Kennedy. The former Rhode Island congressman and scion of the famed Democratic dynasty has taken a surprising turn to the right in this debate.

"Marijuana destroys the brain and expedites psychosis," he told us Tuesday. "It's just overall a very dangerous drug."
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After 16 years in Congress, Kennedy, 45, left Washington two years ago and began traveling the country to see how legislation he spearheaded on mental health is being implemented. He's become convinced that marijuana ("the biggest single threat to the cause I care so much about") is as destructive as alcohol and tobacco and just launched Project SAM (Smart Approaches to Marijuana) to shift the debate from legalization to prevention and treatment -- despite what appears to be a growing social acceptance of the drug.

On the SAM website, I note that Mr. Kennedy et al. share my view that a legal industry that promotes pot the way tobacco has been promoted is a nightmare.

Holder Holding, For Now

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Steven Mufson and David Nakamura report in the WaPo:

"The reshuffling of President Obama's Cabinet gained speed Wednesday when Labor Secretary Hilda Solis announced her resignation, but White House officials said three others, including Attorney General Eric Holder, would remain in their jobs."

"People familiar with Holder's thinking said he does not expect to stay in office for Obama's entire second term, and perhaps for as little as a few months."

Much of the article is devoted to tallying everyone's sex and ethnicity.  Shouldn't we be past that at this point?
Lydia Saad reports for Gallup:

Americans' support for the death penalty as punishment for murder has plateaued in the low 60s in recent years, after several years in which support was diminishing. Sixty-three percent now favor the death penalty as the punishment for murder, similar to 61% in 2011 and 64% in 2010.
The "diminishing" is relative to the all-time high in 1994.  Almost any quantity one cares to measure is "down" if the all-time high is chosen as reference point. "Americans' support for the death penalty has varied widely over the 77 years Gallup has measured it, and now stands at 63%, which is about average for the full trend."

The death penalty retains majority support across all party identifications, all age brackets, both sexes, all regions, and all education levels.  A majority of self-identified conservatives and moderates support it, with a slight edge for opponents among liberals.  On racial lines, Gallup gives numbers only for "whites" and "nonwhites," which is not particularly helpful given that opposition has generally been stronger among blacks than other minorities.

Saad concludes, "The future course of public support for the death penalty may depend as much on the impact of unforeseen tragedies such as the Oklahoma City bombing or Newtown shootings, as it does on political campaigns by death penalty supporters and opponents. However, for now, views appear to be at a standstill, with just over six in 10 Americans in favor, essentially unchanged since 2010."
California Governor Jerry Brown was nominally the losing party when the Supreme Court decided Brown v. Plata a year and half ago, affirming an order of a three-judge court for drastic reductions in California's prison population.  In reality, it was a case of B'rer Rabbit being thrown into the briar patch.  The decision gave Brown the political cover he needed to ram through the Legislature the ill-considered and dangerous prison "realignment" bill.  CJLF has a section of its web site devoted to the damage caused by this law.  My day-of-decision post on the Supreme Court case describes some of the problems in the path to that decision.

Yet California is still not down to the levels ordered by the court.  If we release criminals in ascending order of dangerousness, then the further we go in the process the more innocent blood is spilled per inmate released. 

B'rer Rabbit no longer needs the briar patch, and he wants out.  In a motion filed Monday, Brown asserted that the reductions made so far and the improvements made to prison health care have corrected the constitutional violations.

Because the State has established quality medical and mental health care systems, and has reduced the prison population to levels at which it no longer interferes with the timely delivery of effective health care, the Court must discontinue prospective enforcement of the population reduction order and end federal-court supervision over the State's legislative, fiscal, and policy decisions under basic principles of federalism.

Withdrawal from Conspiracy

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The US Supreme Court today decided Smith v. United States, No. 11-8976:

Upon joining a criminal conspiracy, a defendant's membership in the ongoing unlawful scheme continues until he withdraws. A defendant who withdraws outside the relevant statute-of-limitations period has a complete defense to prosecution. We consider whether, when the defendant produces some evidence supporting such a defense, the Government must prove beyond a reasonable doubt that he did not withdraw outside the statute-of-limitations period.
Answer: no.

Having joined forces to achieve collectively more evil than he could accomplish alone, Smith tied his fate to that of the group. His individual change of heart (assuming it occurred) could not put the conspiracy genie back in the bottle. We punish him for the havoc wreaked by the unlawful scheme, whether or not he remained actively involved. It is his withdrawal that must be active, and it was his burden to show that.
Justice Scalia delivered the unanimous opinion.

News Scan

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IA Man Kills Two Days After Prison Release: David Pitt of the Associated Press reports Kirk Levin, 21, allegedly stabbed his mother to death kidnapped a woman in Iowa just two days after he was released from prison. On January 3, Levin went to the home of a 21-year-old woman he knew and asked her for a ride to his home. Upon arrival, Levin tied the woman up and put her in the trunk. He then allegedly went into the house and stabbed his mother to death. Levin came back to the car and put the woman in the backseat. While driving, ice caused him to skid into a ditch, where he took off on foot, leaving the woman in the car. A passing driver stopped and called police. Levin had served two years in prison since 2010 for third-degree burglary.

"Dating Game Killer" Sentenced in NY: The Associated Press reports serial sex killer Rodney Alcala was sentenced Monday to an additional 25 years to life in New York. He pleaded guilty to killing two women in Manhattan, both 23, one in 1971 and the other in 1977. Alcala will be returned to California's Death Row. He was convicted in 2010 of killing four women and a 12-year-old girl in the 1970s in Southern California. Continued from this post by Kent Scheidegger.

IN Dismemberment Killer Back in Prison: Laura Lane of the Herald Times reports convicted killer Robert Evan Lee was returned to prison in Indiana to serve the last 16 years of his sentence following a parole violation. On November 18, a woman stopped and asked Lee for directions to a work release center. Lee was walking to the community re-entry center where he lived, located on the same site. Although the conditions of his parole restricted him from riding in a car with a woman,  Lee hopped in directed her to the center.  Lee was on parole after serving 26 years for murder. He was convicted of the 1985 killing and dismemberment of a 31-year-old woman. While several body parts were found scattered on her property, her head and hands were never located. The parole board will reconsider his case in one year.

News Scan

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Teachers Flock to Gun Training Classes:   Kim Palmer and Jim Forsyth of the Hartford Courant report that over 900 Ohio teachers and school employees are signing up for a new three-day gun training program.  In Texas, 400 spots in a concealed handgun course offered to teachers filled immediately, forcing the school to offer another class.  In Utah, 200 teachers underwent free firearm instruction just days after the mass shooting at Connecticut's Sandy Hook Elementary School.  Critics say arming teachers is a foolhardy idea which will increase danger in classrooms.  Supporters disagree.  "What we know is that these spree killers are looking for the highest death toll possible.  They look for no-gun zones like schools," said the co-founder of Texas' Buckeye Firearms Association.  "It doesn't make sense that we guard our gold with guns and we guard our kids with hope."

The 4th Amendment & Blood Tests:  The Supreme Court will hear argument Wednesday in a case challenging a forced blood test from a DUI suspect who refused to blow into a breathalyzer.  Warren Richey of the Christian Science Monitor reports that state courts are divided on the issue presented in Missouri v. McNeely.  The Supreme Courts of Wisconsin, Minnesota and Oregon have held that an unwarranted blood test is justified by the rapid dissipation of alcohol in a suspected drunk driver.  The highest courts in Iowa, Utah and Missouri have ruled that the Fourth Amendment requires a warrant.  The defendant, McNeely,  who had two prior DUI convictions, was pulled over in 2010 by a Missouri Highway Patrol officer who observed his pickup speeding and weaving.  After failing the field sobriety test, McNeely refused the breathalyzer.  On the way to the station, the officer stopped at a hospital and had an attendant draw blood from the handcuffed suspect.  The blood tested nearly twice the legal limit.  

Not Too Crazy for Habeas

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In the capital appellate defense playbook, to delay is to win.  If review of a capital case can be dragged out so long that the inmate dies of natural causes, that is a de facto commutation to a life sentence and hence a victory.

A gambit the defense side has been running for a while is to claim that the petitioner/inmate is too crazy to assist his lawyer in the habeas proceeding.  Hence, that proceeding must be stayed indefinitely, while the stay of execution remains in place.  This argument has been accepted in the notorious 9th Circuit and "9th upside down" 6th Circuit.

Today, the Supreme Court unanimously reversed both circuits in Ryan v. Gonzales, No. 10-930, joined with Tibbals v. Carter, No. 11-218.

These two cases present the question whether the incompetence of a state prisoner requires suspension of the prisoner's federal habeas corpus proceedings. We hold that neither 18 U. S. C. §3599 nor 18 U. S. C. §4241 provides such a right and that the Courts of Appeals for the Ninth and Sixth Circuits both erred in holding that district courts must stay federal habeas proceedings when petitioners are adjudged incompetent.
Justice Thomas delivered the opinion of the Court.  There are no separate opinions.
Paul Egan reports for the Detroit Free Press:

Michigan Supreme Court Justice Diane Hathaway announced today she will retire from the bench Jan. 21 after the Judicial Tenure Commission filed a formal complaint calling for her immediate suspension from the bench for alleged "blatant and brazen violations" of judicial conduct rules the commission said were "unprecedented in Michigan judicial disciplinary history."

Among the charges in the complaint is that Hathaway submitted false answers to the Judicial Tenure Commission during its recent investigation of private real estate transactions by Hathaway which are the subject of an FBI investigation.

The complaint gives the most detailed account to date of alleged efforts by Hathaway and her husband, attorney Michael Kingsley, to misrepresent their net worth so they could qualify for a short sale on their home in Grosse Pointe Park.

The Butterfield Fallacy

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James Taranto, who writes the snarky Best of the Web feature at WSJ, has long had fun ridiculing NYT reporter Fox Butterfield.  Butterfield was repeatedly puzzled about prison populations going up when crime was going down, apparently incapable of grasping that crime might be going down because more bad guys were being locked up.  Today's BOTW is quoted after the jump.

News Scan

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Death Penalty Sought in Kidnap, Murder of Young Girl: The Associated Press reports Zachary Dwayne Holly pleaded not guilty Monday to the November 2012 kidnapping, rape, and murder of six-year-old Jersey Bridgeman.  If convicted, Arkansas prosecutors intend to seek the death penalty. Holly and his wife had been babysitting Jersey and her 2-year-old sister on the night she disappeared and Holly had helped the mother take the girls home. The next morning Holly's mother found Jersey missing from her bed.  Police later found the girl's body in a vacant house next door to Holly's home. She had been raped and strangled to death. Holly was arrested days later. He will return to court on February 28. 

NV Alleged Serial Killer May Face Death Penalty: Francis McCabe of the Las Vegas Review-Journal reports prosecutors will seek the death penalty for alleged serial killer Nathan Burkett. DNA and other evidence have linked Burkett to  the 1978 murder of a 22-year-old woman, and two separate 1994 murders of women. All three victims were strangled and found near his apartment in Las Vegas. Burkett's criminal history includes two cases of manslaughter; one victim was his mother.

TX Set to Execute Two Murderers: Michael Graczyk of the Associated Press reports convicted killer Kimberly McCarthy is set to be executed by lethal injection January 29 in Texas. McCarthy stabbed and bludgeoned a 71-year-old woman to death during a robbery in 1997. On Monday, the U.S. Supreme Court refused to review her case. Texas currently has ten women on death row. Three have been executed since capital punishment was resumed in 1982.  The AP also reports that Ricky Lynn Lewis is set to be executed on April 9. Lewis shot and killed a 45-year-old Texas man in 1990. He also raped the victim's fiance and stole her car.  Lewis' federal appeal claiming he was too mentally impaired for execution was rejected in November.

DNA Links CO Inmate to Murder:
The Associated Press reports Colorado inmate Robert Baillie was linked by DNA to the 1976 murder of a hotel employee. Baillie was serving a sentence for sexual assault and was eligible for parole January 2014.

Murders Spiked in Some CA Cities in 2012: The Associated Press reports 131 victims were killed in Oakland in 2012. That is the highest murder rate the city has seen in six years; 21 more than in 2011. Violent crime increased 23 percent from 2011. In nearby San Francisco with homicides up from 50 in 2011 to 68 in 2012. San Jose experienced its highest murder rate in 20 years with 46 homicides. The Oakland murder rate and action to address the situation are discussed in this News Scan.

ID Inmate Sues 10 Alcohol Companies: KCRA News reports on Idaho inmate Keith Allen Brown's December lawsuit against ten beer and wine companies. Allegedly, the companies did not inform the inmate of the risks of becoming addicted prior to his becoming an alcoholic. Brown claims that If it was not for his alcoholism, he would never have committed his crimes. Brown, joined by four co-plaintiffs, is seeking one billion dollars in compensatory and punitive damages.

SCOTUS Clerk Retiring

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Marcia Coyle reports at BLT:

William K. Suter, the clerk of the U.S. Supreme Court, will retire at the end of August after 22 years of service.

Suter, the 19th person to serve as clerk, joined the Court in 1991. Before taking that position, he was an Army judge advocate who retired with the rank of major general. While in the Army, he served in numerous positions around the world, including, appellate judge, deputy staff judge advocate of the U.S. Army in Vietnam, staff judge advocate of the 101st Airborne Division, commandant of the JAG School, and the assistant judge advocate general of the Army. His military awards include the Distinguished Service Medal, the Bronze Star Medal, and the Parachutist Badge.

Suter, 75, joined the Army in 1962 and last year marked his 50th year in public service. He will step down as clerk on August 31.

The clerk's office at the US Supreme Court has been uniformly professional and helpful during Gen. Suter's tenure (which is most the time I have been practicing in that Court).  We at CJLF thank him for his exemplary administration of that office and wish him well in his retirement.

JLWOP in a Discretionary System

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As noted earlier today and last November, a California Court of Appeal decided that Miller v. Alabama does impact juvenile life-without-parole sentencing in California, even though the sentence is discretionary, and the US Supreme Court has sent two cases back for reconsideration.

Last Thursday, the California Supreme Court granted review of that Court of Appeal decision.  The case is People v. Moffett, S206771.

Permanent Punitive Segregation

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One of the strongest arguments for the death penalty is that life imprisonment is simply not sufficient punishment, and therefore not justice, for the worst of the worst.  Charles Manson, Richard Speck, and other beneficiaries of the 1972 abolition did not sufficiently pay for what they did.  Jeffrey Dahmer, serial murderer and cannibal in state with no death penalty, was not sufficiently punished by the state, although another life prisoner (possessed of a 00 license to kill in a state with no death penalty) did the job.

Robert Blecker of New York Law School (one of the very few academics who supports the death penalty) has this article in City Journal on an alternative for those states that have unwisely abolished:

For 25 years, doing research, I've spent thousands of hours inside maximum-security prisons in seven states. What I've seen has appalled me. Convicted murderers play softball, volleyball, and Ping-Pong. Vicious men who raped and murdered children watch soap operas on color TVs. Serial killers who tortured their victims to death munch on snacks that they "shopped" for at prison commissaries.

Monday SCOTUS Orders

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The US Supreme Court orders list is here.  See prior posts Thursday and FridayNew Mexico v. Herring was turned down, but there was no action on the other cases mentioned in Thursday's post.

The Court sent a juvenile LWOP case back to California courts for reconsideration in light of Miller v. Alabama.  There should be nothing to consider, since Miller by its terms applies only to mandatory sentencing systems and California's is discretionary.  However, one California Court of Appeal has misapplied Miller to California law (see this post), and this is the second time SCOTUS has sent a California case back for equal opportunity to be erroneously decided.

Furry Smuggler

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AP reports:

Guards thought there was something suspicious about a little white cat slipping through a prison gate in northeastern Brazil. A prison official says that when they caught the animal, they found a cellphone, drills, small saws and other contraband taped to its body....

[A] prison spokesman told the paper that "it will be hard to discover who is responsible since the cat does not speak."

Becker on the Drug War

Finally, Gary Becker and Kevin Murphy have this article on the drug war.  Becker is a Nobel-prize winning economist who pioneered the use of economic methods to the study of crime.  Becker and Murphy make the case that decriminalization would be a net positive.

The critical question, of course, is whether a legal drug market would result in an increase or decrease in drug use and particularly the number of people becoming addicted to drugs.  Becker and Murphy argue:

The lower drug prices that would result from full decriminalization may well encourage greater consumption of drugs, but it would also lead to lower addiction rates and perhaps even to fewer drug addicts, since heavy drug users would find it easier to quit. Excise taxes on the sale of drugs, similar to those on cigarettes and alcohol, could be used to moderate some, if not most, of any increased drug use caused by the lower prices.
I'm not so sure about the lower addiction rates.  Increased consumption would come not only from lower prices and removal of criminal sanctions but also from the marketing that a seller of a legal product has a constitutional right to engage in.  We have seen that with alcohol and even more so with tobacco.  And the increased consumption of drugs would be a major societal problem even without increased addiction.  More people on drugs means fewer people being productive in a society where declining work ethic is already a huge problem.  I respect Becker's views, but the question is a closer one than he and Murphy portray it.

Apes, Humans, and Violence

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Jane Goodall (the famous chimp researcher), Richard Wrongham, and Dale Peterson have this article in the WSJ.  Here is the first paragraph:

Where does human savagery come from? The animal behaviorist Marc Bekoff, writing in Psychology Today after last month's awful events in Newtown, Conn., echoed a common view: It can't possibly come from nature or evolution. Harsh aggression, he wrote, is "extremely rare" in nonhuman animals, while violence is merely an odd feature of our own species, produced by a few wicked people. If only we could "rewild our hearts," he concluded, we might harness our "inborn goodness and optimism" and thereby return to our "nice, kind, compassionate, empathic" original selves.
The article proceeds to explain why that is baloney.  The "conservative estimate[]" of violent death among chimps is 271 per 100,000, which is over 57 times the 2011 U.S. homicide rate, and the U.S. is high among developed nations.  The article concludes:

Learned Hand

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There are several interesting items in the Weekend WSJ today.  Adam White has this review of a collection of Judge Learned Hand's correspondence, edited by his granddaughter Constance Jordan.  White notes, "Only one jurist has condemned Brown [v. Board of Education] without losing his reputation, and he accomplished that feat only because he had established himself as one of the greatest judges in American history."  Hand was one of the foremost advocates of judicial restraint in the first half of the twentieth century, and he maintained his opposition to judicial activism even as the pendulum swung from results he opposed to results he favored.

California Law Blamed for Crime Rise

Vauhini Vara has this article in the WSJ with the above title:

Property crime has been rising in California, and some law-enforcement officials blame the state's October 2011 sentencing overhaul that has kept thousands of low-level criminals out of prison.

California saw a year-over-year increase of 4.5% in property crime in the fourth quarter of 2011, immediately after the overhaul, marking the first rise since 2004, according to a report from the state attorney general this fall. In contrast, property crime, which includes burglary, auto theft and larceny, fell 2.4% in the nine months before the sentencing changes stemming from a U.S. Supreme Court decision.
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Evil vs. Crazy

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In the WaPo's op-ed section is one of those articles that may be more important for who says it than for any originality in what is said.

Since the massacre of innocents at Sandy Hook Elementary School, calls have rung out for improving "mental health services." This deflects from actions that would save lives. Such calls blur the distinction -- and I now dispense with the euphemisms -- between what is crazy and what is evil. Further, they compound our national reluctance to face facts about what can and cannot be changed.

In modern scientific parlance, the label "crazy" centers on delusions, hallucinations and bizarre beliefs. More commonly used technical terms are "insane," "psychotic" or "schizophrenic." While less precise, crazy is no more or less pejorative than the scientific terms.

Rape by False Pretenses

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Wednesday's decision by the California Court of Appeal in People v. Morales, B233796, has gotten a lot of attention.  Bob Egelko has this story in the SF Chronicle.  Under Penal Code §261(a), the crime of rape is committed when consent to intercourse is negated in a number of different ways, the most common being force.

The Morales case arises from an incident where the victim's boyfriend left the room, she fell asleep, Morales entered, he began having sex with her, possibly while she was still asleep, she continued consensually believing he was her boyfriend, and he knew that.  She says, and he denies, that he continued by force after she realized who he was and pushed him away.  The problem arises from some nineteenth century language still in the statute.

News Scan

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Tennessee Looks for New Execution Drug:  Brian Haas of the Tennessean reports that his state is looking for a replacement drug for its lethal injection process after its stock of sodium thiopental was confiscated by the federal government.  The confiscation was the result of a federal judge's March 2012 order announcing that the drug has been illegally obtained by states which use it as part of their three-drug execution protocol.  The ruling in Cook v. FDA (formerly Beaty v. FDA) has been appealed to the DC Circuit as reported in earlier posts available here.  Death penalty opponents were pleased with the ruling because it has delayed executions in some states.  The state is considering switching to the more widely available drug pentobarbital, which is in use in a single drug execution protocol is several states.   

Get Your Pot from a Vending Machine:  NBC news writer Jeff Black reports that California-based Medbox is gearing up to install vending machines dispensing marijuana for recreational users.  The company, which already has machines in Arizona, Massachusetts and Connecticut for "medial marijuana" users, is negotiating with officials Colorado and Washington, which recently legalized pot for recreational use.  A spokesman for Washington's Liquor Control Board said that their law requires that marijuana be sold within the confines of a retail outlet.  McDonalds, Wal Mart, Rite Aid?
As predicted, the US Supreme Court issued a brief orders list following its conference today.  The one criminal case taken up is United States v. Davila, No. 12-167.  The Question Presented as stated in the government's certiorari petition is:

Whether the court of appeals erred in holding that any degree of judicial participation in plea negotiations, in violation of Federal Rule of Criminal Procedure 11(c)(1), automatically requires vacatur of a defendant's guilty plea, irrespective of whether the error prejudiced the defendant.
As this is an FRCrP question rather than a constitutional question, it will likely have little direct impact on state criminal cases.  The Eleventh Circuit's opinion is appended to the certiorari petition, linked above.

Lead as a Cause of Crime

Kevin Drum has an article in Mother Jones arguing that lead in the environment is the best explanation for the rise and fall of crime.  He states:

Put all this together and you have an astonishing body of evidence. We now have studies at the international level, the national level, the state level, the city level, and even the individual level. Groups of children have been followed from the womb to adulthood, and higher childhood blood lead levels are consistently associated with higher adult arrest rates for violent crimes. All of these studies tell the same story: Gasoline lead is responsible for a good share of the rise and fall of violent crime over the past half century.

It's an interesting theory and one I haven't heard before, but I remain skeptical of any singular theory regarding the cause of crime. Drum states that "more prisons might help control crime, more cops might help, and better policing might help. But the evidence is thin for any of these as the main cause." At this point, I don't think anyone can seriously discount the effect of incarceration on crime rates, even though it is not the exclusive explanatory variable in the mix.  Like all things in life, there are a variety of factors that likely account for the rise and fall of crime.  But putting recidivists behind bars is one of the big ones because despite calls to the contrary, the best predictor of future behavior really is past behavior

SCOTUS Conference Tomorrow

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The US Supreme Court meets in conference tomorrow to decide, among other things, which cases to take up.  SCOTUSblog's "Petitions to Watch List" is here.  The Cert Pool has the full conference list here.

Cases on the list include Kentucky v. King (hot pursuit) and Bond v. United States (federalism and poisoning) back for a second look.  Rhode Island Governor Lincoln "Stand in the Jailhouse Door" Chafee makes his last-ditch effort to refuse to hand over a prisoner for federal prosecution merely because he disagrees with Congress's decision on the maximum sentence.  (See posts here, here, and here.)  New Mexico v. Herring is a follow-up to Berghuis v. Thompkins on silence and implied invocation of Miranda rights.

Butt v. Utah is an obscenity case, testing the extent to which the high court still chooses cases on the basis of their names.  (Earlier cases in the series include Loving v. Virginia (1967) on interracial marriage, Heart of Atlanta Motel (1964) on desegregating public accommodations, and my favorite, Sheriff Screws v. United States (1945) on police brutality.)

Burt v. Titlow is a Michigan habeas case in which the state seeks further clarification of the confused remedy holding in Lafler v. Cooper, among other issues.  Michigan has had a remarkably high grant rate in recent years.

There is still time to get cases briefed for argument in the current term, so it is likely we will get a short list of cases granted tomorrow and a long list of cases denied Monday.

The Future of the Exclusionary Rule

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Orin Kerr has a Q & A post at SCOTUSblog with Tracey Maclin, author of The Supreme Court and the Fourth Amendment's Exclusionary Rule.  The post is titled "Ask the author: Tracey Maclin on the Court and the Fourth Amendment."  But it's not about the Fourth Amendment.  It's about the exclusionary rule, a judicial invention conjured up almost a century after the ratification of the Fourth Amendment.  Here is the question on the future of the rule:

Based on my reading of your book, it sounds like you expect the Justices to narrow the exclusionary rule in the future so that it will apply only in egregious cases - the kinds of cases that would not trigger qualified immunity. Can you elaborate on where you think the exclusionary rule is headed?

I believe four of the Justices (Chief Justice John Roberts, and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito) want to abolish the exclusionary rule. Justice Scalia's majority opinion in Hudson v. Michigan has prepared the foundation for that result. If abolition is unobtainable, the Court will confine exclusion to cases of deliberate and culpable forms of illegal searches or seizure. Chief Justice Roberts's majority opinion in Herring v. United States has already achieved that result, although many of the lower courts have yet to follow suit. (By the way, my view of Herring and its impact on the rule was reaffirmed in Davis v. United States. I explain all of this in Chapter 8 of the book.)

Let's hope so.

Senate Judiciary Committee

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As Bill predicted this morning, Sen. Ted Cruz will join the Judiciary Committee.  Todd Ruger has this post at BLT.  He takes the seat vacated by Tom Coburn, who is moving to the Intelligence Committee.  Sen. Jeff Flake of Arizona takes the seat vacated by retired Sen. Jon Kyl.  On the Democratic side, as previously announced, Sen. Mazie Hirono of Hawaii takes the seat vacated by retired Sen. Herb Kohl.

Laughing Gas

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People determined to get high can do so with a variety of legal substances as well as illegal ones.  Andy Furillo has this article in the Sacramento Bee on a lawsuit involving the sale of nitrous oxide (N2O), also known as laughing gas.

On Halloween night 2010, Jason Starn had just returned home from a local head shop in Modesto after buying more nitrous oxide "laughing gas" canisters when "my brain kind of froze."

News Scan

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Realignment Forces Release of 6,000 Inmates:  Dave Downey of the San Diego Union Tribune reports that as of mid-November Riverside County had released more than 6,000 criminals early from jail due to overcrowding caused by California's Realignment law.   The law requires counties to keep parole violators, property criminals and most drug dealers in local jails or treatment programs instead of sending them to state prison. Local officials believe that by the end of 2012 the number could grow to nearly 7,000.  The county's five jails were at 85% capacity when Realignment took effect in October 2011.  By New Years Day 2012, the jails were full and the sheriff was forced to let inmates out early at a pace that continued all year.  The state has promised $100 million to increase local jail capacity, but at the article notes, that's a long-term project with a 2017 completion date.

Detroit Sets Homicide Record:  Fox News reports that 2012 was the second deadliest year in Detroit history.  While local officials report that overall crime was down by 2.63%, the city had 411 homicides for the year, the highest since 1987.  In a statement Mayor Dave Bing said that there was a "need to improve conflict resolution and other anti-crime initiatives."  Ya think?

India to Seek Death Penalty for Gang Rapists:  Officials in New Delhi will seek death sentences for five men who participated in the Dec. 16 gang rape and brutal beating which resulted in the death of their 23-year-old victim two weeks later.  LA Times writers Tanvi Sharmi and Alex Rodriquez report that law enforcement authorities have established a fast-track court to speed prosecution and sentencing of the men charged with murder, rape and kidnapping.  "A serious message needs to be sent in dealing with such heinous crimes," said Indian Cheif Justice Altamas Kabir.  The victim and a male companion had just boarded a bus to return from a movie when the five men and a 17-year-old juvenile attacked them, repeatedly raping the woman and beating them both with iron rods.  After several hours the victims were thrown, naked and unconscious, onto the roadside.  The woman, who had suffered major internal injuries, died in a Singapore hospital on December 29.  

Loons Running Schools

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When you were a kid, did you ever point your finger like a gun and say "pow"?  I certainly did, lots of times.  Donna St. George reports in the WaPo:

The parents of a 6-year-old Silver Spring boy are fighting the first-grader's suspension from a Montgomery County public school for pointing his finger like a gun and saying "pow," an incident school officials characterized in a disciplinary letter as a threat "to shoot a student."
More and more, it seems, people with truly bizarre notions are in positions of authority, making decisions that affect lots of other people.  The weird is becoming mainstream, and the prospects for our country and our culture are not good.

The story also discusses schools' overuse of suspensions as a discipline measure, which is also a huge problem. 

New Sheriff in Town

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Last night I had the opportunity to attend a reception for Senator-elect Ted Cruz, about whom Kent and I blogged.  Ted had all his usual energy and enthusiasm.  He has not forgotten the values that brought him to public service, and will be an outstanding Senator and fighter for issues that matter to C&C and its readers.  He is an exceptionally bright and accomplished person I have had the pleasure of knowing for more than 20 years.

I also had the opportunity to talk to Ted's new colleague, senior Texas Senator John Cornyn.  He tells me that there is a good chance Ted will wind up serving with him on the Judiciary Committee, which would an extra helping of good news.  This is especially true since Patrick Leahy will be returning as Chairman.

Ted is charismatic as well as learned, and connects with people.  I predict he'll have a future in national politics, a future that, fortunately for the country, begins with his Senate swearing-in today.
Zoe Tillman has this post at BLT on something I would like to see more often -- attorneys' fees paid by the plaintiff to a prevailing defendant in a civil case.  This case is not crime-related (it is ASPCA against Barnum & Bailey), but issues of attorneys' fee awards often come up in suits against law enforcement officers and agencies.

Two-thirds is a minority?

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Maura Dolan had this article on the California death penalty over the weekend.  The subhead read (and as of 11:45 am PST Jan. 2 the online version still does), "California's recent vote to continue the death penalty keeps it in the minority of states with capital punishment still on the books."  As we have noted on this blog more than once, headlines are not written by the reporters who write the articles.  (See, e.g., here.)

While errors in headlines are often eyeball-rollers, this one is particularly egregious.  In fact, about 2/3 of the states have capital punishment "on the books."  An overwhelming majority of the states retain capital punishment as a legally available punishment, as California does, and yet the Times tells its readers their state is in the minority in this regard.  How far back do you have to go to find a more factually false headline?  "Dewey Defeats Truman"?

The Times will publish a correction.

Update:  A runner-up in the innumerate headline category has been brought to my attention:  "'We hate math,' say 4 in 10 -- a majority of Americans"

What Not To Wear

Opposing Views has this photo gallery of mug shots with T-shirts that, in retrospect, were poor choices.
A follow up to Bill's post -- Michael Mayko reports in the Stamford Advocate:

Just days after filing a $100 million lawsuit claiming the state failed to adequately protect the students at Sandy Hook Elementary School, a New Haven lawyer has withdrawn it.

But that doesn't preclude a future filing, Irving Pinsky said.

"I received new evidence on security at the school, which I need to evaluate," Pinsky said Monday.

Once that happens, Pinsky said he may re-submit the paperwork to J. Paul Vance Jr., who as the state's claims commissioner has the authority to determine if a claim is justified and requires hearings. Vance must approve any claim before a state agency can be sued.

Emancipation Sesquicentennial

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Stephen Mansfield has this article at Fox News.

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