August 2013 Archives

Berman v. Otis on Mandatory Minimums

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I will have the pleasure and the challenge of debating Prof. Doug Berman of the Ohio State University in a Federalist Society teleforum to begin at 2 pm EDT on Tuesday, the day after Labor Day.  The subject will be mandatory minimum sentencing, and particularly Eric Holder's August 12 speech on that subject.  I do not yet have the call-in number, but will post it when I do.

Each of us will speak for 8 - 10 minutes to start off, then take questions from listeners for the remainder of the hour.

In brief, Prof. Berman thinks judges should have maximal discretion in sentencing, and I think Congress is wise to circumscribe it for some offenses.  Should be a lively discussion.

UPDATE:  The call-in number is 888-752-3232.

FURTHER UPDATE:  The recorded debate is accessible here.  I confess having a degree of self-interest, but I thought the discussion was the most thoughtful and informed I have seen on this subject since the AG's speech.  Many thanks to Doug Berman for his superb contribution, rich in both detail and the long view.

News Scan

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Georgia Teen Found Guilty in Baby Shooting: A Florida man who shot and killed a 13-month-old baby as he was sleeping in a stroller has been found guilty of felony murder.  Graham Winch of HLN News reports that 18-year-old De'Marquise Elkins shot and killed the baby after the boy's mother refused to give him her purse.  Elkins faces a possible life sentence, and will be spared from the death penalty due to the fact that he was 17 at the time of the murder.  

Admitted Serial Rapist set to be Released: California's Supreme Court has denied a Los Angeles County prosecutor's request to block the release of a serial rapist from a state mental hospital.  Joshua Miller of Fox News reports that Christopher Hubbart, a serious sexual predator who has admitted to sexually assaulting over three dozen women, could be released within a few weeks.  Hubbart, who has been in and out of the California criminal justice system since 1972, will be required to wear a GPS ankle monitor and submit to regular polygraph testing.      

Teens Sentenced in School Bus Beating: Three Florida teenagers have been sentenced to indefinite probation after pleading guilty to beating one of their classmates while riding home on the school bus.  Fox News reports that the teenage boys attacked their classmate after he told school officials that one of the boys tried to sell marijuana to him.  As part of their probation, the boys will be required to complete community service hours, wear GPS ankle monitors, and attend anger management classes.

Foie Gras and the Eleventh Amendment

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The Ninth Circuit today upheld California's foie gras ban in Assoc. des Eleveurs de Canards v. Harris, No. 12-56822.  The relevant part for this blog is when a Governor or Attorney General has Eleventh Amendment immunity against a claim based on their duty to enforce a challenged law.

The Limits of Inmate Self-Reports

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An argument we hear all the time in sentencing policy debates is that our prisons are chock full of harmless drug users, especially marijuana, and we can safely save piles of money by just letting them out.  The people making these arguments seem to have severely distorted pictures of how many drug "offenders" in state prisons are users rather than traffickers and how many are in for marijuana offenses rather than far more dangerous drugs.

Looking around for hard data on the latter point, I found a question in the Bureau of Justice Statistics' Survey of Inmates in State Correctional Facilities that seemed to fill the bill.  They just asked the inmates who were in on drug charges which drug it was.  (Question S5Q13a, variable V0884.)  Great.  We're golden.  Here are the results from a sample of 3,686 questionnaires in the most recent survey available (2004):

Don't know:   2
Refused:       5
Blank:    3,679

News Scan

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Judge Stands by 30-Day Sentence for Convicted Rapist: A Montana judge is standing by his decision to sentence a former teacher convicted of raping a 14-year-old student to only 30 days behind bars.  The Associated Press reports that Stacey Rambold was sentenced to 15 years, but will only spend 30 days in jail after the judge suspended the rest of the sentence.  During the sentencing hearing the judge mentioned that the victim, who committed suicide before the trial began, was "older than her chronological age" and was in control of the situation she engaged in with Rambold.  

Couple Charged with Kidnapping and Torture: A Seattle couple has been arrested and charged with kidnapping and assault after allegedly torturing the man's 13-year-old brother for the past three months.  Melissa Gray of CNN reports that the boy, who is from Atlanta but was staying with his brother for the summer, escaped after chewing duct tape off of his hands and running away from the home.  The boy was tortured on several occasions, and was frequently locked in a basement for days at a time without access to food or water. 

Man Arrested After Shooting Marijuana-Arrow into Jail: A Washington state man has been arrested after shooting an arrow with a bag of marijuana attached to it over a fence and into the county jail's recreation area.  The Associated Press reports that David Jordan told deputies he had been aiming at a squirrel, but had no explanation as to why the arrow he was using had a bag of marijuana attached to it.
Yesterday, I noted that Gov. Brown's involvement of Republicans, a victims' advocate, and law enforcement at his press conference on prison policy was in sharp contrast to the way he handled Realignment.  Two years ago, he rammed that ill-convinced fiasco through the Legislature like Vlad the Impaler, with no trace of bipartisanship and no chance for public evaluation and input.

Why the dramatic change?  This time there is a schism on the left side of the aisle, and he actually needs the support of persons of sense.

Last month, the U.S. Bureau of Justice Statistics released its advance figures on prison populations.  This is a census of prisoners in state and federal prisons, not county jails.*  The total state prison population declined by 29,223 from year-end 2011 to year-end 2012.  California alone accounted for 51% of the drop, while California and Texas together accounted for 71%.

In California, the drop is primarily due to the Realignment program shifting convicted felons to county jails.  In theory, it was not supposed to reduce the total persons incarcerated, although the hydraulic pressure on overcrowded jails has done that.

So who is left in California's prisons?  Let's compare the most serious offense of commitment of California prisoners versus the 50-state total:

State Prisoners by Commitment Offense - 2012 (%)
Offense Type California All States
Violent 69.8 53.0
Property 14.5 18.3
Drug 9.1 16.8
Public Order 6.5 10.6
Other/unspec. 0.1 1.4

News Scan

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Nidal Hasan Sentenced to Death: Former Army psychiatrist and convicted Ft. Hood murderer Nidal Hasan has been sentenced to death.  The Associated Press reports that the jury that found him to be guilty of 13 counts of first-degree murder last week was left with two sentencing options; death or life without parole.  Hasan may become the first American soldier to be executed since 1961.

CA Governor Proposes Controversial $315 Million Plan to Reduce Prison Overcrowding: Jerry Brown's answer to a federal order requiring him to alleviate prison overcrowding involves a $315 million plan that will reduce prison capacity by leasing space from county jails and other prisons around the country.  Dan Whitcomb of Reuters reports that his plan, which was met with immediate resistance by liberal advocacy groups, will comply with the original demand to reduce California's prison capacity to 137.5% without releasing thousands of inmates back into the community.  In addition to the initial $315 million price-tag for this year, the plan will cost an additional $415 million for the next two years. 

Woman Brutally Beaten in 'Racially Motivated' Attack: A Pittsburgh woman is recovering from injuries she sustained after being attacked by a group of black teenagers who allegedly beat her while calling her racial slurs.  WPXI News reports that the victim, Ginger Slepski, was beaten after confronting a group of teenage girls who threw a bottle at her car.  The group of teenagers allegedly involved have all been charged with robbery and ethnic intimidation.  

Study Reveals no Correlation Between Gun Control and Fewer Violent Crimes:  A study conducted by Harvard University has found that having stricter gun control laws doesn't necessarily result in lower death rates or fewer instances of violent crime.  Awr Harkins of reports that the study, "Would Banning Firearms Reduce Murder and Suicide?", compared European country's gun ownership numbers to the amount of gun-related homicides and found that less guns doesn't always mean less death.  Norway, for example, had the highest household gun ownership rate (32%) in Western Europe while also holding the title of having the lowest murder rate. 

Correct Sentence for Hasan

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We've had several items on this blog lately about inadequate sentences.  Here is a refreshing change.  Billy Kenber reports in the WaPo:

Nidal Malik Hasan was sentenced to death Wednesday for killing 13 people and wounding 32 others in a 2009 shooting spree at Fort Hood, Tex., the worst mass murder at a military installation in U.S. history.

Dressed in Army fatigues, Hasan, who turns 43 next month, listened impassively as the death penalty was handed down by a panel of 13 senior military officers in a unanimous decision. If even a single panel member had objected, Hasan would instead have been sentenced to life in prison.

The jury deliberated for a little more than two hours.

Two hours strikes me as rather short for a penalty phase deliberation, but folks who do capital trial work and are more knowledgeable about that are invited to comment.

Judgment, Character, and Color

"I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character."

Today is the golden anniversary of the 1963 March on Washington for Jobs and Freedom and Martin Luther King's famous speech. These are, by far, the most important words Dr. King ever spoke.  They are the most important for the same reason that the Declaration of Independence is the most important document Thomas Jefferson ever wrote.  These are words that transcend the individual author.  They were embraced by the nation as the distillation of the idea that motivated a great movement, a leap forward in the cause of freedom.

If you visit the MLK memorial in Washington, don't bother looking for these words among the many engraved quotations.  They aren't there.  They have been banished by Political Correctness.

Q: What Happens When You Combine...

...a debauched culture with Racial Whinerism?

A:  You get this essay.

For years, we have seen increasingly strained and belligerent efforts from one group and another to portray themselves as unjustly deprived.  In the setting of criminal law, such efforts (e.g., "Capitalism has never given people like me our fair share!") get enlisted to manufacture defenses, and, if that doesn't work, at least to cobble together excuses to try to mitigate the sentence.  

The race to claim victimhood has taken root in so many influential institutions  --  academia, the press, and entertainment  --  that it has now become a cultural pox. The idea is to seize the moral high ground, and effectively extort concessions from those consigned to the low ground, by claiming that, no matter what your behavior  -- including your criminal behavior  --  society owes you a debt, not the other way around.

The essay I have linked, a racially seething rant written in reaction to Miley Cyrus's remarkable MTV performance, makes the point about reaching out to claim victimhood more graphically than I ever could.

Having read the essay, I have a confession to make:   If I said at some point that defense lawyers were the best I'd ever seen at manufacturing victimhood, I take it back.

UPDATE:  My friend Paul Mirengoff at Powerline undresses the essay, as it were, one garment at a time, until it's wearing less than Miley herself.
California Governor Jerry Brown is holding a press conference, along with legislative and law enforcement leaders, announcing plans to comply with the order of the three-judge Plata court without releasing any additional prisoners.

He isn't giving a lot of details, presumably we will get that later, but the plan evidently involves use of vacant capacity within the state as well as increased use of out-of-state, presumably private, prison facilities.

Involving Republican legislative leaders and law enforcement is a sharp contrast with his handling of the Realignment bill in 2011, rammed through the legislature in a single day with no attempt whatever at cooperation.

The Speaker of the Assembly and the Republican (minority) leaders of both houses are on board.  The Senate President Pro Tem is absent.

News Scan

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California Loophole Allows for Rapist to Get Shorter Sentence: Thanks to a legal loophole, a California man convicted of sexually assaulting his disabled stepdaughter will only be required to serve an 11-year prison sentence.  Mike Luery of KCRA News reports that if Carlos Mesinas would have used some sort of weapon during the attack, he would have faced a possible sentence of 25 years to life in prison.  Since no weapon was used, or necessary since his victim was severely disabled and unable to move, Mesinas was only eligible to receive a sentence of 11 years.

Mexico City Experiences Increase in Violent Crime: Mexico City's violence and crime rate are now on the rise due in large part to an increase of local gangs seeking to control the drug market not only in Mexico, but in the United States as well.  Nicholas Casey of The Wall Street Journal reports that recent high-profile murder cases have elevated fear levels in the city despite several attempts made by elected officials to reduce crime rates and increase the number of police officers.  Just last week, authorities discovered a large grave in a Mexico City suburb containing 13 bodies, five of which belonged to a group of young people kidnapped from a night club last May.   

Convicted Sex Offender Sent to Prison After Sneaking into Jail: Matthew Matagrano, a convicted sex offender who was out on probation, has been sentenced to 10 years in prison after authorities discovered he had been sneaking into a New York jail.  Rick Couri of KRMG News reports that Matagrano used a fake corrections department badge to sneak into the jail in order to spend time with the inmates, who he viewed as nice people who made him feel important.  Authorities believe he handed out cigarettes to the inmates, and during one visit in February, he assaulted an inmate and stole a $2,500 walkie talkie.  

The website Opposing Views regularly puts out emails with headlines that sound outrageous, designed to get a rise out of readers.

The email I received this morning says, "Florida taxpayers will end up footing the bill for George Zimmerman's legal fees after his recent acquittal in the death of teenager Trayvon Martin."  Really?  Florida provides attorneys' fees to acquitted criminal defendants?  That would be highly unusual, if true.

News Scan

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Man Attempts to Evade Police on His Tractor After Murdering His Mother: A 29-year-old Southern California man was shot and killed by police after he killed his mother, set her home on fire, and then shot at people in his neighborhood while fleeing the scene on a tractor.  The Associated Press reports that authorities were called by Ryan Carnan's brother, alerting them that Carnan called to inform him that he had just shot and killed their mother.  Carnan had no prior arrest record, but had been contacted by police before for mental-health related issues.

8-Year-Old Boy Shoots and Kills Elderly Caregiver: Authorities in Louisiana believe an 8-year-old boy intentionally shot and killed his 87-year-old caregiver after playing a violent video game.  Lauren Russell of CNN reports that the victim, Marie Smothers, was shot in the back of the head while watching television in her living room Sunday night.  The boy won't face any charges due to a Louisiana law that prohibits children younger than age 10 from being held criminally responsible. 

Florida Man Beats Young Girl in Public Restroom Stall: A Florida man was arrested after allegedly luring and attacking a 9-year-old girl in a Best Buy restroom in what authorities believe to be a random attack.  USA Today reports that 29-year-old James Tadros lured the girl away from her mother and into a restroom stall where he allegedly assaulted her repeatedly before putting a plastic bag over her head and sticking her head inside a toilet.  Tadros has been charged with attempted murder, false imprisonment, and criminal mischief.

Little Interest in Those Murdered by Illegal Immigrants: A Texas mother is seeking to gain attention on the American victims of illegal immigrants by telling the traumatic story of her son's murder in 2010.  Tony Lee of reports that Laura Wilkerson's 18-year-old son was beaten and strangled to death then doused with gasoline and lit on fire after offering a ride to an illegal immigrant.  The man, who would have been eligible for citizenship under the DREAM Act, was sentenced to life in prison for the murder earlier this year.  Maria Espizona, director of the Remembrance Project that honors Americans killed by illegal immigrants, believes that crimes such as this one would be 100% preventable if our country's immigration laws were strictly enforced. 

Filner Update

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Julie Watson reports for AP:

SAN DIEGO (AP) -- Mayor Bob Filner agreed Friday to resign on Aug. 30, bowing to enormous pressure after lurid sexual harassment allegations brought by at least 17 women eroded his support after just nine months on the job.

Filner was regretful and defiant during a City Council meeting as he explained the "the toughest decision of my life." He apologized to his accusers but insisted he was innocent of sexual harassment and said he was the victim of a "lynch mob."

False accusations are made sometimes.  That is why we have the presumption of innocence.  So if it's an accusation by one person or two, we should definitely reserve judgment until a full case can be presented.  When seventeen women come forward, though, the protest of innocence is pretty incredible.  That would take one helluva conspiracy.

Filner apologized to the city but demanded the city pay his legal bills in return for his resignation.  How about that, an apologetic blackmailer.

And finally we get to the part I have wanted to know all along, and why it is on-topic for this blog:

Filner's troubles may also not be over. The San Diego County Sheriff's Department has interviewed the mayor's former communications director and opened a hotline to field any complaints about Filner. Investigators will deliver their findings to California attorney general's office to consider any possible criminal prosecution.

A Cellmate for Private Manning

Since it seems to be unclear whether Bradley/Chelsea Manning is a boy or a girl, there's going to be a problem at the Bureau of Prisons about who should be his/her cellmate, or even whether he/she goes to a men's or a women's prison.

The one thing that's sure to happen is that BOP will get sued.  If they put him/her in a men's prison, Private Manning will sue.  If they put him/her in a women's prison, the women will sue.

I'd think offhand that the women would have the better case, since, by the typical anatomical standards, the preponderance of evidence is that he/her is a he not a her. Still, on the theory that it's better to avoid inviting any more of the zillions of inmate suits than we have now, let me float a solution:

Build Private Manning his/her own cell, removed from the prison proper, and insert the roommate pictured after the break, a recent international celebrity of sorts who also appears to be of indeterminate gender.  This has the added benefit of being the roommate Private Manning has earned.  (Caution: the picture is pretty gross).

Another Inadequate Sentence

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Greg Johnson reports for AP:

JOINT BASE LEWIS-MCCHORD, Wash. (AP) -- The U.S. soldier who massacred 16 Afghan civilians last year in one of the worst atrocities of the Iraq and Afghanistan wars was sentenced Friday to life in prison with no chance of parole -- the most severe sentence possible, but one that left surviving victims and relatives of the dead deeply unsatisfied.

"We wanted this murderer to be executed," said Hajji Mohammad Wazir, who lost 11 family members in the attack by Staff Sgt. Robert Bales. "We were brought all the way from Afghanistan to see if justice would be served. Not our way -- justice was served the American way."

Mandatory Minimums -- The Battle Rages

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There continue to be reverberations about Eric Holder's speech last week, in which he announced that he was ordering federal prosecutors in most cases to deep-six omit from indictments drug amounts that would trigger a mandatory minimum sentence.

Courtesy of the Associated Press, Julie Stewart, President of Families Against Mandatory Minimums, and I, debate the question. 

News Scan

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Brown Considers Private Prisons to Alleviate Overcrowding: In order to avoid releasing thousands of prisoners back into California communities, Governor Brown is considering a plan that would involve working with a private prison corporation in order to expand the California prison system and reduce overcrowding.  Saki Knafo of the Huffington Post reports that the new plan would have the country's largest private prison corporation, Corrections Corporation of America, leasing one or more of its prisons to California and have the facility be staffed and run by the state's prison guards and other public employees.  Transferring California inmates to these new facilities would allow Governor Brown to be in compliance with a federal order handed down earlier this year demanding the release of thousands of inmates due to overcrowding.    

Teenagers Beat WWII Vet to Death: One juvenile has been arrested while police continue to search for another teen suspect in the beating death of a WWII veteran earlier this week in Spokane, Washington.   Ed Payne of CNN reports that 88-year-old Delbert Belton was beaten and left for dead by two teenagers in what police believe to have been a random attack.  The male suspect in custody has been charged with first-degree murder and robbery.

"Why the Manning Verdict Was a Mistake": UC Berkeley law professor John Yoo provided insight on a video interview seen here about the recent sentencing of Bradley Manning, convicted of leaking thousands of classified files to foreign countries.  Manning was sentenced to 35 years in prison, a punishment Yoo believes was not harsh enough to fit the serious nature of the crime he committed.  Rather, Yoo believes Manning should have been convicted of aiding the enemy, a charge that is death penalty eligible, in order to send a message to other people and hopefully deter future harmful acts against our national security.

"Allahu Akbar"

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So shouted Maj. Nidal Hasan as he mowed down 13 of his fellow soldiers at Ft. Hood, Texas, a little less than four years ago.  In Arabic, it means, "God is great." But he's not a terrorist  --  the Obama administration continues to classify this Jihadist massacre as "workplace violence."

Today, the guilt phase of his court martial ended with his being found guilty on all charges. It took longer for this to happen than for the United States to declare war on and defeat Imperial Japan in WWII.  By far the most litigated question in the case had nothing to do with the crime.  It was whether Maj. Hasan could have a beard on his face.  And no, that is not a joke.  (Well, actually, it is a joke, just not the usual kind).

In one of the few remaining signs of sanity in the military justice system, the prosecution is asking for the death penalty.  I believe the penalty phase starts on Monday.

The story surrounding today's verdict is here.
How often have we heard libertarian zealots insist that drugs should be legalized because they are "victimless," and the state has no legitimate power to decide what a person puts into his own body?

Will they learn anything from today's Washington Post story?  The basics are that a druggie hoodlum knifed to death a college student who had stopped to give him a lift. Particularly interesting is this passage:

Defense attorneys acknowledged that Blanco Garcia was the killer. But they said he had not intended to harm Pham. In his closing argument, attorney David Bernhard reiterated a phrase the defense used again and again to describe the crime: a "perfect storm of tragedy."

Defense attorneys said Blanco Garcia had smoked PCP that Sunday and planned to steal TVs from stores. But as he set out with his daughter, he became sick from the drug and got off the bus at Fairfax Plaza Shopping Center. They said he was in distress, and asked Pham to take him to the hospital.

As they were driving, defense attorneys said, Pham made a wrong turn, and Blanco Garcia became paranoid. He pulled a butcher knife from his backpack and stabbed Pham as his daughter sat nearby, they said.

Under the Supreme Court's post-1937 view of the Commerce Clause, Congress has the power to regulate intrastate activity if it affects interstate commerce.  That includes a farmer growing wheat for use on his own farm, the high court decided in my least favorite opinion by my favorite justice, Wickard v. Filburn (1942).  What's good for wheat is good for weed, the court said in Gonzales v. Raich (2005).

Today, the Ninth Circuit decided Montana Shooting Sports Assn. v. Holder, No. 10-36094.

The Montana Legislature passed the Montana Firearms Freedom Act ("MFFA" or "the Act"), which declares that a firearm or ammunition "manufactured . . . in Montana and that remains within the borders of Montana is not subject to federal law or federal regulation, including registration, under the authority of congress [sic] to regulate interstate commerce." Mont. Code Ann. § 30-20-104. It purports to authorize the manufacture and sale of firearms within the state, but imposes certain requirements for a firearm to qualify under the Act, notably that the words "Made in Montana" be "clearly stamped on a central metallic part." Id. § 30-20-106.
Will that dog hunt?  No.

Sex Reassignment in Prison

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Will Bradley Chelsea Manning be entitled to sex reassignment treatment at taxpayer expense?

Last year, a federal district court in Massachusetts held that the Eighth Amendment required that state to provide not only hormone treatment but also surgery.  See   Kosilek v. Spencer, 889 F.Supp.2d 190.  The appeal was argued in the First Circuit on April 2 and is presently pending, No. 12-2194.

Stay tuned.

Update:  David Dishneau has this story for AP.

Ask Not What Your Country Can Do for You...

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...unless, that is, you're a member of the armed services, have been convicted of the largest dump of classified material in the nation's history, have (luckily for you) been given a lenient 35-year sentence, and then announce that your "gender confusion problems," which you've known about for years, need to be resolved by............ready now............dunning the taxpayers for exotic and really expensive "medical" treatments while you're in the slammer.

All hail Mr./Ms. Bradley/Chelsea Manning, a new-and-improved model for the previously exhausted narrative of defendant-as-victim.

We used to think that a convicted criminal owed a debt to society. Well you can forget that! Society, you see, owes the debt to him.  Get your mind right, people!  And the debt, in particular, is to shell out God knows how much so he can be a woman!!!

The guy/girl gets convicted of espionage, is lucky not to have been convicted of aiding the enemy, tells us he's not really responsible because he had, ya know, sex problems (without any very detailed explanation of why sex problems would make a person want to become the intelligence arm for al Qaeda), and now wants to transmogrify taxpayers into his field hands, to labor on the plantation of his misfit psyche.

The whole thing is parody.  Or more worrisome, as Kent noted recently, maybe it isn't.

Did She Really Say That?

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Not being without a certain element of vanity, and also wanting to improve my performance for future events, I went back to the tape of the MSNBC "Hardball" show on which I appeared last week to discuss Eric Holder's decision to effectively deep-six mandatory minimum sentencing.

The opposing view was explained by Ms. Laura Murphy, an experienced and thoroughly professional representative of the ACLU.

People can make up their own minds about who "won" the overall exchange, but what I want to point to now is something Ms. Murphy said near the end of the segment.  She starts her last word at about 7:20 on the tape, and at 7:27 she says this: "Most of the people who go to prison do so because they have inadequate counsel."

When the ACLU represents itself on a widely watched national TV show through a person who tells us that most prisoners are incarcerated because of inadequate counsel, you have just heard all you need to know about the mind-boggling need on the Left to deny the importance, if not the existence, of evidence.

It's not so much that the statement is laughably false; it's that it's so wonderfully revealing about the magical powers defense lawyers seem to think they have:  Get the right lawyer, and the evidence goes pooooooooooooooooof.

The Therapy Dodge Fails

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San Diego Mayor Bob Filner is despicable for the way he treated women under his supervision, but also for his invocation of that sickening therapy dodge we see so often these days.  A person caught in egregious misconduct says, "I'm sick.  I need therapy."  No, Mayor Filner, your actions were not those of a sick person in need of therapy.  They were the actions of an arrogant jerk abusing a position of authority.

With Filner's political position eroding faster than a beach in Superstorm Sandy, he has thrown in the towel.  NBC 7 in San Diego has this story.  It's good that Filner is gone, and it's good that his therapy dodge failed so miserably.

BTW, the law firm representing Filner is named Payne & Fears.

News Scan

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Jury Deliberations in Ft. Hood Murder Trial set to Begin: Army Maj. Nidal Hasan, the man accused of murdering 13 people on a Texas Army base in 2009, will only send one piece of evidence into the jury room when deliberations begin later today; an evaluation from a former boss describing him as a good soldier.  The Associated Press reports that Hasan, who is acting as his own attorney in his defense, rested his side of the case yesterday without calling upon any witnesses or testifying in his own defense.  In order for Hasan to be sentenced to death, the jury must unanimously agree upon a guilty verdict and death penalty decision.  

Murder Charges Dropped Against Elderly Woman: The murder charges against an elderly New Jersey woman were dropped after multiple doctors and experts determined she was not fit to stand trial due to her dementia.  Laura Ly of CNN reports that 78-year-old Fredricka Rosa was charged with first-degree murder after allegedly shooting her husband in July of last year.  An additional charge of unlawful possession of a weapon was also dismissed. 

Florida man Found Guilty of Brutal Murder: A Florida man faces a possible death sentence after being convicted on Tuesday in a vicious murder of a 15-year-old boy.  Barbara Liston of Reuters reports that 21-year-old Michael was convicted of first-degree murder along with four co-defendants after being found guilty of shooting and dismembering their victim after luring him to home via text message.  The four co-defendants previously accepted plea deals and were given life sentences for their roles in the murder.  

November SCOTUS Arguments

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The US Supreme Court has announced its calendar of oral arguments for November. Criminal cases include:

Nov. 5:  Bond v. United States, on the authority of Congress to make a federal case out of poisoning in order to implement a treaty, back for a second look.

Nov 12:  Rosemond v. United States, yet another case on sentencing for gun use in the course of a drug crime.

Also Nov. 12:  Burrage v. United States, a case on mens rea and causation when a drug dealer's product kills the consumer.

Nov. 13: Fernandez v. California, the latest episode in the continuing saga of police being allowed in by one occupant over the objection of another.

Hollywood has been criticized for making too many sequels lately, but it seems SCOTUS has caught the bug as well.

News Scan

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Bradley Manning Sentenced to 35 Years in Federal Prison: Former Army soldier and WikiLeaks informant, Bradley Manning, was sentenced to 35 years in prison and dishonorably discharged from the Army after being convicted of leaking more than 700,000 government files.  Charlie Savage of the New York Times reports that Manning's 35 year sentence is the longest sentence ever to be handed down in a case involving government secrets being leaked.  Manning will be eligible for parole after he serves roughly eight years of his sentence.  John Malcolm and Hans von Spakovsky at Heritage Foundation call the sentence disappointing.

California's 'Alphabet Killer' Convicted of Four Murders: Joseph Naso, a 79-year-old Northern California man, was convicted yesterday in the murders of four young women many years ago.  Paul Elias of the Associated Press reports that prosecutors referred to Naso as a serial killer, noting that he selected his victims based on the alliteration of their first and last names.  The jury that found him guilty will also decide his fate at a sentencing hearing next month.  Jurors will have the option of sentencing Naso to either death or life in prison. 

Hostage Shoots and Kills Escaped Inmate: Authorities say Rodney Long, a man who escaped from an Iowa prison on Sunday, was shot and killed by a homeowner after the man broke into his home and tried to take him and his wife hostage.  The Associated Press reports that Long broke into the home and cut the couple's phone line after shooting an Iowa state sheriff earlier that day.  Long was serving a prison sentence for a burglary and was expected to be released next year. 

Convicted Killer Murders Cellmate
: A Minnesota man convicted of murdering a fellow inmate in 1997 has been accused of murdering his cellmate, this time at a state penitentiary in Oregon.  Evan Sernoffsky of KGW News reports that Craig Bjork was serving three consecutive life sentences in Minnesota for the 1982 murders of his children and girlfriend when he murdered a fellow inmate and threatened to kill several more.  Bjork was sent to the Oregon State Penitentiary in January of this year on an interstate transfer from Minnesota.

Stop-and-Frisk Decision "Poorly Reasoned":  Professor Eric Posner of U. Chi. Law critiques Judge Shira Scheindlin's opinion on the New York stop-and-frisk policies in this article at Slate.

Culture Rot and the Oklahoma Murder

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In past notorious killings in the last few years, there has been a rush to find cultural influences that may have contributed to seemingly inexplicable acts.  Past killings have quickly and erroneously been attributed to influences such as talk radio, the Tea Party, and a Sarah Palin illustration.  The real reason, in Tucson and Aurora, was simply schizophrenia.

In the murder of Australian exchange student Christopher Lane in Oklahoma, in contrast, there is solid reason to believe that gang culture is a strong influence contributing to this senseless killing.  Carmel Melouney has this article for the Herald Sun of Melbourne, Australia.  James Johnson believes that his son was the intended next target:

"They threatened to kill my son because they are in a gang, the Crips, and were trying to get my son in it and I wouldn't let him do it.

"I told him he couldn't run with those boys. He's a little terrified."

Mr Johnson said the Crips, a predominantly African American street gang that began in Los Angeles in 1969 and had been in Duncan for the past few years.

The Herald Sun also has this article on the social media posts of the alleged killers.

Culture rot, the worst aspect of which is the glorification of gangs and crime, is a major contributing factor in too many young people's disastrous choices to take the wrong path and end up in prison or dead.  It does not get nearly enough attention.

Update, 9/22:  The WSJ has this editorial, making a similar point.

Campaigning on a Platform of Legalizing Pot

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One of the Democratic candidates for Mayor of New York City, Comptroller John C. Liu, has proposed legalizing pot. The Washington Post story is here.  Prof. Doug Berman had this to say about it:

I think this story is notable and significant not only because a notable NYC politician is making a public case for marijuana legalization, but also because it seems likely to get this mayoral candidate a lot more media attention in the weeks and months ahead. And if this pot legalization advocacy not only improves Liu's media hits, but also his overall standing in the mayoral [polls], lots of other politician are sure to take note.

OK, that's cool.  So let's take a look at Mr. Liu's polling these days.
For better or worse, the trial of George Zimmerman is among the most talked-about and written-about of modern times.  (Mostly worse, IMHO.)  Shouldn't the general public have a transcript of this high profile public event, so that discussion can cite exactly what the testimony was?

Surprisingly, there isn't one available to the public.

If Barack Obama Had a Son...

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...would he look like Chris Lane?

No, he wouldn't, because Chris Lane was guilty of walking while white.  His for-kicks murder by a couple of black hoods is therefore snooze material for our ostensibly ever-so-compassionate  --  but actually not-all-that-compassionate-at-least-if-you're-white  --  Liberal Elite, starting right at the top with Mr. Smooth.  

The story I put up in my last entry has an eerie and discomfiting echo of the Trayvon Martin case.  That, you will remember, was the locus of a huge amount of still-percolating anger. The anger ignited because a white/Hispanic man killed an unarmed black teenager, but was acquitted after he made a perfectly plausible case of self-defense the state failed to rebut. 

Today's story of two blacks fatally shooting a white man in the back features no whisper of a legitimate defense; it was ambush murder, plain and simple. By any neutral standard, then, it has to be more reprehensible than the Trayvon Martin homicide.  But you'll hear not a mummer of outrage from those who (drum roll here) Demand An Honest Discussion about Race.  The Demand, you see, hoves into view only when it's time to stage a combo Morality Play&Tupperware Party to "oooooohh" and "aaaaahh" over the eighteen zillionth depredation of the White Devil. 

Just so we'll understand:  Our liberal masters want that honest discussion about the implications of inter-racial murder only up to the point that it actually IS honest, after which you better shut your mouth.

Why Roper v. Simmons Was Wrong

Let me just give you three paragraphs of today's story.  It doesn't require a lot of explanation:

James Francis Edwards Jr., 15, and Chancey Allen Luna, 16, were charged with murder. A third teenager, Michael Dewayne Jones, 17, was charged with being an accessory to murder after the fact and with firing a weapon. All were charged as adults, according to the Stephens County District Attorney's Office.

The charges were unveiled at a hearing in Duncan, Okla. The ballplayer, Christopher Lane, was visiting the town, where his girlfriend lives, the police chief told The Associated Press. He passed a home where the teens were staying and was gunned down at random, the chief said....

They saw Christopher go by, and one of them said: 'There's our target,'" the chief, Danny Ford, told the AP. "The boy who has talked to us said, 'We were bored and didn't have anything to do, so we decided to kill somebody.'"

Yes, Justice Kennedy, I'm sure these guys, being juvenile, had no clue that murdering a person chosen at random, and out of boredom, is wrong.  Brain development, dontcha know.

News Scan

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California Inmates Participating in Hunger Strike May Be Force-Fed: As a statewide prison hunger strike enters its seventh week, a federal judge has approved a request from California officials to force-feed inmates if necessary.  Don Thompson of the Associated Press reports that 130 of the original 30,000 hunger strikers are still refusing meals in 6 of the 33 state's prisons.  The ruling, which allows prison officials to feed inmates, who are deemed to be in failing health, goes against a previous prison policy that would allow inmates to starve to death if they had signed a do-not-resuscitate request.

Realignment Increases Workload for LAPD Officers: California's prison Realignment bill, aimed at reducing prison overcrowding, has forced dozens of Los Angeles police officers to leave their regular patrol duties in order to monitor newly paroled ex-cons.  Joel Ruben of the LA Times reports that, since the implementation of Realignment, the LAPD has had as many as 170 officers assigned to units responsible for monitoring felons after their release from state prison--a shift that has cost the city an additional $18 million in payroll.  The LAPD has arrested roughly 3,100 of the 5,400 ex-cons brought to the Los Angeles area through Realignment.

Detroit Looks Into Utilizing Stop-And-Frisk Policy: With violent crimes on the rise in Detroit, police are looking to implement a policy generating a lot of controversy in New York:  stop-and-frisk searches.  Maurielle Lue of Fox 2 reports that the policy allows for officers to stop and search citizens behaving in a suspicious manner without requiring probable cause.  Last week, a federal judge ruled that New York's stop-and-frisk policy was unconstitutional based on her belief that the stops were the result of racial profiling.

Oklahoma College Student Murdered for the "fun of it": A 22-year-old Australian exchange-student studying at an Oklahoma university on a baseball scholarship was gunned down by a group of three teenagers who allegedly shot the man because they were "bored" and "decided to kill somebody".  Fox News reports that the three boys in custody, ages 15, 16, and 17, will appear in court later today where they will most likely face first-degree murder charges.  The teens can be tried as adults, and if convicted, face a maximum sentence of life in prison.

One Step Forward and Two Steps Back

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One step forward:  One of the most air-headed federal judges in the history of the Republic is leaving.  So long, Rosemary Barkett.

Two steps back:  She's going to the international court that resolves claims arising from the Iranian seizure of the American embassy, thus giving Iran one more vote; and Barack Obama will name her replacement.

News Scan

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Ohio Lawmaker Wants to Expand Death Penalty Charges: An Ohio lawmaker is seeking to expand the state's death penalty law to include some sex-related crimes after the case of Ariel Castro--who held three women captive for more than ten years--made national headlines.  The Associated Press reports that the proposal, which was filed on Friday, would allow an individual to be sentenced to death in cases of rape, sexual battery, and sexual contact with a minor if the suspect has been previously convicted of a sex crime.  Ariel Castro was sentenced earlier this month to life in prison, plus 1,000 years for kidnapping and repeatedly raping the three women over the span of ten years.

California Bill Would Give Juvenile Offenders A Second Chance: Inmates who were convicted of serious crimes prior to turning 18 will have a chance to be released from prison early if California bill SB260 is passed by the Legislature.  Don Thompson of the Associated Press reports that the bill would allow inmates convicted of serious crimes to be eligible for parole after serving 15 years of their sentence unless they are believed to be a threat to public safety.  Roughly 5,700 of California's 133,000 adult inmates are currently incarcerated for crimes they committed as juveniles.  

NY Mayor Defends Stop and Frisk Policy: New York City Mayor Michael Bloomberg defends his city's police department and claims to have the safest big city in the country in an opinion article written in today's Washington Post.  Bloomberg stands by his city's police officers and explains that out of the several million stops conducted by the NYPD over the last decade, only 19 of them were found to be unjustified.  Last week, a federal judge ordered the NYPD to implement changes in their stop and frisk policy based on her belief that stops were being conducted as a result of racial profiling.

Lethal Injection Drug Shortages

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Rick Lyman has this article in the NYT on the problems obtaining the drugs needed for lethal injection.

Habeas Corpus and Obamacare

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Huh?  How can those two things be related?

Georgetown Law Professor Nicholas Rosenkranz has this op-ed in the WSJ contrasting President Obama's suspension of the Obamacare's employer mandate with President Lincoln's suspension of the writ of habeas corpus in the Civil War.

Article I, section 9, second clause of the Constitution says, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

This is a prohibition, not an authorization.  Who does have the power to suspend the writ when the substantive requirement is met (as it surely was in 1861)?  There was a great constitutional controversy during the first two years of the Civil War as to whether the President could suspend the writ by executive order or whether it required an act of Congress.  Congress finally got around to it in 1863 and mooted that controversy.

There was a constitutional showdown over this between President Lincoln and his old nemesis, Chief Justice Roger Taney, author of the Dred Scott decision.  A Confederate sympathizer named Merryman was charged with treason and held by the military in Fort McHenry, the defense of which had moved lawyer Francis Scott Key to poetry a half century earlier.
Sean Gardiner has this article in the WSJ.
Jennie Rodriguez-Moore has this story in the Stockton Record:

In a case that has drawn the attention of critics of AB109, California's prison realignment law, the son and daughter of an elderly Stockton woman who was allegedly raped and murdered by her grandson are suing the state and San Joaquin County, saying he should have not have been released from county jail.

According to the lawsuit filed Aug. 8, parole employees supervising Jerome Sidney DeAvila knew he was a danger and "were aware that on numerous occasions, he had stated his intent to harm, kill, and/or rape his grandmother," Racheal Renee Russell.

The body of the 76-year-old woman was discovered late February inside a wheelbarrow in the backyard of her South Golden Gate Avenue home.

DeAvila's case drew the attention of critics of AB109, which has parolees serve their revocation sentences at county jails instead of state prison.

Parole violators are routinely released and are usually the first to go early in San Joaquin County, because the jail has to meet a court-ordered population cap to avoid overcrowding.

And some overcrowded jails in the state are not booking them at all.

I doubt that a suit for damages has much chance.  However, the state's criminal justice system certainly did fail Mrs. Russell.  All the preening pseudosophisticates congratulating themselves on how "smart" they are on crime can go home to their safe, leafy neighborhoods, while the consequences fall on people like Rachael Russell.

Professor Michael Yelnosky of Roger Williams U. Law has this article in the WaPo on the ABA's judicial selection committee.  His thesis is that the committee is biased in favor of business interests, but in the process of making his case he reveals a typical academic blind spot.

Five of the six new members work for some of the country's largest law firms and regularly represent some of this country's biggest corporations. The sixth represents businesses defending against claims for which they have liability insurance -- "insurance defense" cases. On the committee, they will join four other lawyers who work at large corporate firms, four who represent businesses in smaller law firms and one who specializes in defending lawyers sued for malpractice.

Not one of the lawyers on the committee for 2013-14 regularly represents individuals who bring lawsuits alleging they were harmed by the actions of corporations or other business entities, and not one represents individuals charged with anything other than white-collar crimes.

Okay, so there are criminal defense lawyers on the committee, and Yelnosky is all upset that they are all white-collar defense lawyers as opposed to lawyers who defend murderers, etc. (red-collar?).

Why is the good professor not upset that all of the criminal law practitioners are defense lawyers and not prosecutors?

News Scan

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Two Men Sentenced in High School Gang Rape Case: Two California men were sentenced for the role they played in a 2009 gang rape case that occurred at Richmond High School after the annual Homecoming dance.  The Associated Press reports that one of the men was sentenced to 33 years to life and the other, who was a juvenile at the time of the incident, was sentenced to 29 years to life.  The victim, who was a minor at the time and has gone by Jane Doe during the trial, was beaten, robbed, and sexually assaulted by multiple individuals over the span of two hours.  Two other defendants had already accepted plea deals in the case, and two other defendants are waiting for their trial to begin.

Ohio to Decide how to Carry out Future Executions: The state of Ohio's supply of pentobarbital, the drug used in lethal injections, will run out by the end of September leaving the Ohio Department of Corrections to decide which method they will utilize to carry out future executions.  Ryan Gorman of The Daily Mail reports that other states are dealing with pentobarbital shortages as well.  Missouri is considering returning to lethal gas for executions since it is still legal in that state.  A judge has ordered the state of Ohio to present their new execution procedure by October 4.

Feds Arrest 263 Gang Members: A nationwide sweep focused on MS-13, one of the most dangerous street gangs in the country, has resulted in hundreds of arrests.  CNN reports that some of the gang members were facing charges such as murder, sexual assault, and kidnapping.  The FBI describes MS-13, which operates in 42 states across the country, as being one of the most dangerous criminal gangs in the world.

When I read or listen to the anti-death-penalty crusaders, I often wonder how the victims enter into their mental schema.  Death penalty attorney Andrew Love has this candid article on the SF Chron's website (not sure if it was in the hard copy paper).  The first sentence is quoted in the title. The topic is the murder of Sandra Coke, an investigator for the federal public defender's office in Sacramento.
One of the most remarkable things about Eric Holder's speech to the ABA was his statement that the criminal justice system in this country is "ineffective and unsustainable." Many times before the speech, he and other liberals have claimed the system is "broken." That of course is a metaphorical word: What, specifically, does it mean to say the system is "broken," and more generally, how should we measure its success or failure?

These are particularly acute questions for at least two reasons.  First, it was astonishing that the Attorney General would fret that the criminal justice system is "ineffective" at the very time we have achieved a 50% reduction in crime from the levels of a generation ago. Second and more generally, the AG's remarks starkly remind us that what we use as the measure of success will strongly influence, if not control, the kind of changes we think the system needs.

My friendly adversary, Prof. Doug Berman of Ohio State, and I had an exchange that illuminates this question.  

News Scan

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Murder trial set to begin for boy who killed abusive Father: A 14-year-old boy accused of murdering his father four years ago will finally face a jury when his trial begins later this month.  The Associated Press reports that the boy, who was only 10 years old when he shot and killed his allegedly abusive father, will be tried in juvenile court and if convicted, faces being placed in state custody until he turns 21.  Only 13 states have minimum age requirements for children to be tried in juvenile court, New Mexico has no such age eligibility law. 

Texas murderers to be released from prison due to loophole: Hundreds of convicted murderers and other violent criminals are set to be released from Texas prisons due to a loophole in the law.  Geetika of ABC News reports that inmates convicted between 1977 and 1987 will be released after the number of days they have spent incarcerated and the number of days they have displayed "good behavior" equals out to one-third of their original sentence.  The law was changed in 1987 to only apply to offenders convicted of non-violent crimes, but the new rule only applies to those inmates convicted after 1987.

Realignment creates a revolving door for sex offenders: California governor Jerry Brown's prison realignment plan has resulted in a revolving door of sorts for parolees who have come to realize that the punishment for violating parole is only a night spent in county jail before getting released the next day.  Anderson Cooper of CNN reports that the prison realignment program has left county jails overwhelmed with inmates, forcing them to release for criminals, including registered sex offenders, who violate parole a few hours after their arrest.  This new policy has sent the message to parolees that their are no real consequences for breaking the rules.   

The Widely Read USA Today...

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...mostly applauds the Attorney General's decision to finesse mandatory minimum sentencing by executive fiat.  The USA Today editorial is here.

The paper was gracious enough to ask me to write a dissent, and I was happy to oblige, here.

I will note only a few things.  First, the paper acknowledges that the idea of mandatory minimum sentencing was and is sound  --  that the legislature has every right and reason to establish a floor beneath which a judge cannot go for certain very serious offenses.

Second, while USA Today uses the example of Texas as one jurisdiction that has succeeded (so far) after a few years of tamping down on the use of imprisonment, it does not question that, for 40 years and across 50 states, more imprisonment has meant less crime, and less imprisonment has meant more crime.

Third, the paper does not dispute my point that "non-violent" drug offenses  --  to which the AG has said his new, look-the-other-way policy will principally apply  -- can be harmful and, hundreds or thousands of times each year, fatal (e.g., overdose deaths).

Although I disagree with the paper's conclusions, I'm grateful to see, for once, some balance in the media about this issue.

Panhandling and the First Amendment

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The U.S. Court of Appeals for the Sixth Circuit today struck down Michigan's c.1929 statute against "begging" in Speet v. Schuette, No. 12-2213.  The Supreme Court has held that various forms of solicitation are protected speech.  It has also upheld various restrictions on solicitation.

CJLF did some work in this area 20 years ago.  We filed an amicus brief in International Society of Krishna Consciousness v. Lee (1992).  The Supreme Court allowed the New York airports to forbid solicitation by the Hare Krishnas, although in a parallel case the Court struck down a prohibition against handing out literature.  The latter didn't matter, of course, as it was all really about the money.

The opinion of the Court in that case was based on a conclusion that the airport was not a public forum.  Justice Kennedy thought it was, but he thought that in-person solicitation for the immediate payment of money was not protected speech.  That was also the position of our brief.  To date, however, there still is no Supreme Court precedent on point.

Some of our friends on the other side of the aisle think it is really important to let people confront others on the street and ask for money.  They also think it is awful when people don't want to go downtown and instead go to suburban shopping malls which, as private property, can kick the bums out.  They don't seem to see any connection.
Orin Kerr at the Volokh Conspiracy has this post on the implementation of Davis v. United States (2011) in the lower courts.

News Scan

Wisconsin Teenagers Sentenced to Life in Prison for Murder: Two 14-year-old boys were sentenced to spend the rest of their lives in prison for the brutal murder of one of the boy's great-grandmother in 2012.  Ryan Gorman of The Daily Mail reports that the victim, Barbara Olsen, was murdered after both boys took turns beating her with a hatchet and hammer nearly 30 times in an attempt to steal money from her.  The judge has decided that both boys will be eligible for parole at the age of 50.

Jesse Jackson Jr. Sentenced to Prison: Former Illinois Democratic congressman, Jesse Jackson Jr., has been sentenced to spend 30 months in prison after pleading guilty to spending $750,000 worth of campaign funds on personal items.  The Associated Press reports that both Jackson and his wife have admitted to spending thousands of campaign dollars on items such as fur coats, expensive restaurant tabs,  and a Rolex watch.  Under federal sentencing guidelines, Jackson Jr. faced up to 57 months in federal prison. 

Convicted Murderer Accused of Killing Again: Scottie Thompson, an Illinois man convicted of murder and released from prison 20 years early, has been arrested and charged in the brutal murder of a 20-year-old man.  Lauren Trager of News 4 reports that Thompson was on parole and wearing an ankle monitor when he beat 20-year-old Dakota Jones to death and dumped his body in a lake over the weekend.  Recently, Illinois has adopted a "truth in sentencing" law which will require murderers to fulfill their entire sentence prior to being released.      

Stop and Frisk Ruling May Jeopardize Safety: A ruling made by U.S. District Judge Shira Scheindlin ordering the New York Police Department to alter its stop and frisk policy based on allegations of racial profiling could put pubilc safety at risk in many of the state's high-crime neighborhoods.  Heather Macdonald of the City Journal writes that Judge Scheindlin made the ruling based on her belief that the number of individuals stopped should reflect racial population ratios.  In the high-crime New York neighborhood of Fort Greene Blacks and Hispanics were responsible for 99 percent of all violent crime and over 93 percent of all crime in general.  This suggests that the majority of people stopped would be Black or Hispanic, a factor that Judge Scheindlin neglected to consider when handing down her ruling on Tuesday.
Sean O'Sullivan has this story in the News-Journal in Delaware, headlined "US Supreme Court ruling on attorneys could cost Delaware millions":

Because of an obscure, difficult to understand ruling from the U.S. Supreme Court in March 2012, poor defendants in Delaware now have a new right to a taxpayer-funded attorney to appeal their convictions, a change that seems poised to cause legal gridlock in state courts and cost Delaware taxpayers millions.
*                       *                       *
Rep. Melanie George Smith, D-Bear, co-chair of the Joint Finance Committee, described the ruling as an unfunded mandate from Washington.

"I'm not one to second-guess the U.S. Supreme Court, but I do have a philosophical disagreement with the decision in this case," she said, in that the court in the Martinez case ends up "telling the state how to allocate the state's resources."

The decision is Martinez v. Ryan, and the "appeal" is postconviction review.  I do not dispute that Martinez is difficult to understand in some aspects.  Compare Justice Breyer's majority opinion with Chief Justice Roberts's dissent in Trevino v. Thaler.  On this aspect, though, there is no difficulty.  Prior cases held explicitly that there is no constitutional right to counsel on collateral review, and Martinez did not alter that rule.  Instead, it decided a much narrower question about which claims will be considered by federal courts in federal habeas corpus.  There is no mandate on the states.

Even so, the Delaware Supreme Court went ahead and amended Superior Court Criminal Rule 61(e)(1) to provide state-paid counsel in every case for the initial collateral review, and Martinez is getting the blame.

Whether the state wants to fund these appointments in every case is a judgment call for the legislature to make.  Ironically, Arizona, where the Martinez case is from, does provide counsel in every case.  Let no good deed go unpunished.  If the Delaware legislature decides it is a bad policy, it should go ahead and abrogate the rule change.  Nothing in Martinez prevents it from doing so.

News Scan

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Arizona Seeks to Expedite Death Penalty Appeals: Arizona Attorney General Tom Horne has filed a notice of appeal in order to gain backing for his request to expedite federal court review of death penalty cases in his state.  The Associated Press reports that the state is asking the Justice Department to allow them to participate in a program that would enforce faster federal court action in death penalty appeals.  On average, death penalty appeals in the western U.S. take almost 20 years to be resolved before an execution can take place.  See also Kent's post earlier today.

Michigan Ends Life Without Parole Sentences for Juveniles: Juveniles convicted of murder in Michigan will now get the chance of being paroled after the state's previous mandatory life sentence for convicted murderers, regardless of their age, was overruled by a federal judge.  The Associated Press reports that the issue now, is whether or not Michigan will apply the law retroactively or limit the ruling to future cases.  Last year, in Miller v. Alabama the U.S. Supreme Court ruled that mandatory life terms murderers under 18 was cruel and unusual punishment.

Florida Death Row Inmate Declared Sane for Execution: Despite an attempt to avoid death by lethal injection due to insanity, the Florida State Supreme Court has approved the execution of Marshall Lee Gore.  Jim Saunders of The News Service of Florida reports that the court found Gore, who was convicted of murdering two women in 1988, was pretending to believe he was being executed so that the state could harvest his organs.  Gore's attorneys filed a brief last month claiming that his execution would be unconstitutional based on the Eighth Amendment.   

Tough on Crime Policies Beginning to Fade Away: Two developments yesterday, one involving the Attorney General's announcement on mandatory federal drug sentencing laws and the other a federal judge's decision to block New York's stop-and-frisk policy, may be an indication that tough on crime policies in the U.S. are beginning to dissipate.  Charlie Savage and Erica Goode of The New York Times report that while the timing of both announcements yesterday was a coincidence, it is a sign that legislators are seeking several different avenues in order to alleviate prison overcrowding throughout our country.  CJLF President Michael Rushford, and law professor and former federal prosecutor William Otis were guests on KQED Radio this morning, and can be heard here giving their opinion on the Attorney General Eric Holder's announcement yesterday to avoid enforcement of federal mandatory drug sentencing laws. 

Bill on Hardball

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Bill Otis has been a much-sought guest on talk shows in the wake of the Holder announcement.  He was on MSNBC's Hardball Without Chris Matthews earlier today, with Laura Murphy from the ACLU.  The show will be replayed at 7ET/4PT today.  The segment begins at about 13 minutes after the hour and runs about 10 minutes.

Speaking of Radioactive Decisions...

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The DC Circuit today decided In re Aiken County, No. 11-1271, a case involving the Yucca Mountain nuclear waste repository in Nevada. The case involves executive discretion regarding enforcement of the law and the limits on that discretion.

The court decided that the Nuclear Regulatory Commission can no longer drag its feet on this controversial question, as it has been doing for years.  Kind of like DoJ has been doing on the AEDPA fast track.  This is illegal.  An administrative agency cannot nullify an Act of Congress just by sitting on its rump, and a court should issue a writ of mandamus when necessary to move it.

The court distinguishes prosecutorial discretion: 

One of the greatest unilateral powers a President possesses under the Constitution, at least in the domestic sphere, is the power to protect individual liberty by essentially under-enforcing federal statutes regulating private behavior - more precisely, the power either not to seek charges against violators of a federal law or to pardon violators of a federal law.
When this authority is abused, the remedies are political and not judicial.

Judge Kavanaugh wrote the opinion of the court.  Judge Randolph concurred.  Judge Garland dissented.

Moving Forward on the Fast Track

Last April, I noted that Arizona Attorney General Tom Horne had taken the momentous step of applying for certification for the "fast track" in federal habeas corpus for capital cases that Congress authorized back in 1996 but which has been obstructed ever since.

Arizona's initial application went to the U.S. Attorney General, as the statute requires, but the Attorney General is the one who has been intentionally stalling a process that Congress passed for the specific purpose of speeding things up.

The USAG's response was predictable dithering, so Arizona has begun the process of taking the issue to the U.S. Court of Appeals for the D.C. Circuit.  Congress provided that the court's review would be de novo (i.e., from scratch without any deference to what the AG said), so it really does not matter that there is no AG decision to review.

Update:  The petition is now available here.  The case is Arizona v. Holder, No. 13-1237.

The Big News of the Day...

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... in criminal sentencing was the Attorney General's speech in San Francisco.  In it, he outlined plans to instruct federal prosecutors ordinarily to refrain from writing indictments that specify an amount of drugs that would trigger a mandatory minimum.

I have been running around all day, and have done interviews with Politico, the New York Times, CBS, CNN and PBS. Let me tell you, that is a full day.  Tomorrow, I'll have the pleasure of appearing with CJLF's Mike Rushford on the Dave Iverson show on KQED radio.  I think we kick off at 9 a.m. Pacific Time.  Today's PBS clip is here.  Judy Woodruff is a good interviewer, inquisitive without being aggressive or partisan, and allowing the participants to complete a point.

I will make no attempt to summarize the arguments on their merits.  I will just say very briefly that the AG's action seems to take root in a jaundiced view of our criminal justice system, a system that, certainly in the view of its inmates, is a failure.  

My major point was that the inmates' view is an odd and a skewed test.  The view that ought to count is less what's happening with imprisonment and more what is happening with crime.  By that measure, the system is not only not a failure, it is a nearly unique success in social policy.  At a tiny fraction of the cost of entitlement programs, stern sentencing has helped drop the crime rate 50% in 20 years, thus contributing to thousands if not millions of crimes that were never committed, and thousands if not million of potential victims who were not abused, beaten up, molested, swindled and robbed.

May all our social policies be that "broken."

[Editor's update:  KQED audio is now available -- KS]
The Oregon Supreme Court on July 25 rejected an attack on that State's rape victim shield law in State v. Macbale, No. S060079:

This is an original proceeding in mandamus. The issue presented is  whether the state or federal constitution requires that a hearing to determine the admissibility of a rape victim's past sexual conduct be open to the public, notwithstanding that a statute mandates that that hearing be held outside the presence of the public.

Relator is the defendant in a criminal action in which he has been charged with various sex crimes. Defendant claims that the alleged victim made false allegations against him so that she can later bring a civil action against him for money damages. He seeks to offer evidence at his criminal trial that the alleged victim falsely accused men of raping her on two previous occasions and that she did so for the purpose of financial or other gain....

For the reasons set forth below, we hold that the exclusion of the public from hearings under OEC 412(4) to determine the admissibility of evidence of a sex crime victim's past sexual behavior under OEC 412(2) does not violate Article I, section 10 or 11, of the Oregon Constitution or the First or Sixth Amendment to the United States Constitution.

Bill Otis on Holder's Announcement

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Watch PBS or CBS news tonight, and you may get to see our blogger Bill Otis reacting to Eric Holder's statement on sentencing.  I understand he was on Wolf Blitzer's show on CNN earlier today, but I haven't yet got video to link.

News Scan

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Obama Administration to Change Drug Sentencing Laws: The Justice Department is set to announce a policy change that will eliminate mandatory minimum prison sentencing laws for some drug offenders.  Fox News reports that the new policy will help to reduce prison overcrowding, and will apply to drug offenders with no ties to large-scale organizations, gangs, and no history of violence.  Federal prisons are currently operating at almost 40 percent above capacity, with nearly half of the inmates serving a sentence for drug-related crimes.

Judge Finds Stop-And-Frisk Policy to be a Violation of Rights: A federal judge has determined that the stop-and-frisk policy adopted by the New York Police Department violated the rights of minorities.  Joseph Goldstein of the New York Times reports that Judge Scheindlin ruled that officers were often times stopping innocent people without any probable cause to believe they were guilty of any wrongdoing, and has ordered a number of remedies aimed at addressing the issues with the policy.  City officials have not yet commented on the ruling or discussed plans of a possible appeal. 

Verdict Reached in Boston Mob Boss Trial:  After hearing testimony from 72 witnesses and seeing over 800 exhibits, a jury has found onetime Boston mobster James "Whitey" Bulger guilty of federal racketeering and conspiracy.  Fox News reports that Bulger's 32-count indictment included 19 murders, extortion, money laundering, and weapons violations.  Bulger, who is 83-years-old, faces a possible sentence of life in prison.  

Homeless Sex Offenders no Longer Being Tracked in Colorado: Law enforcement is worried that a new law that no longer requires them to track homeless sex offenders may result in more offenders flying under the radar.  The Associated Press reports that the law was originally intended to prevent police from spending their time trying to locate offenders who frequently move or no longer have a home.  As of last week, the Colorado Bureau of Investigation reported that there were 722 homeless adult and juvenile sex offenders.

Where to Cut the Deficit

Probably the most frequently made argument nowadays for releasing prisoners early is that we simply don't have the money for the amount of incarceration we undertake.  

The argument is baloney for a variety of reasons the media generally refuse to discuss.  For example, how much do we hear about the expenses saved by people who do not become crime victims because the fellows who would do the victimizing are in the slammer instead?  Another fact discussed in very quiet tones, if at all, is that the amount available for debt reduction from cutting back prison spending is less than a drop in the ocean of red ink, as demonstrated here.  It's a little like insisting that you can save on your yearly car maintenance expenses by not putting a 10-watt bulb in the glove compartment.

Of course the whole thing is a fairy tale anyway.  What this administration does when it wants to fund something it actually cares about (i.e., expanding dependency on government) is borrow to the hilt, or raise taxes, or print it, or all three.  For a true priority item, the money is always there, one way or the other.  All the angst about fiscal constraint can be and is shelved when an administration priority hoves into view.

One such priority, and I use that word advisedly, is deluxe military transportation for the first dog, Bo, who got his own helicopter ride and Secret Service escort to Martha's Vineyard for the President's non-Motel 6 vacation.

Being President is a very hard job, and no one should begrudge Mr. Obama his vacation, including with the family dog. But with money so tight that criminals have to be released   --  so it is said  --   couldn't Bo have just settled for First Class and a bunch of pretty stewardesses?  It's better than I do.

The Coming Scam

Prof. Doug Berman reports that the Department of Justice has commissioned a study to determine why crime has so dramatically decreased over the last 20 years.  The report notes that the head of the assemblage doing the study has said: 

At our next meeting [of a group consisting mostly of academics], which will also be in Washington...we will focus on the 'lead hypothesis,' that the removal of lead from paint and gasoline resulted in crime declines some years later and may largely explain the crime drop.

For those of you not experienced in the ways of Washington, let me give a short translation:

The fix is in.

What do you think the chances are that the "lead hypothesis" is going to get dislodged by, say, the notion that increased use of imprisonment has had something to do with it?
Dan Morain has this story in the Sacramento Bee on the California prison hunger strike and its high-profile supporters:

More than a month into the action, almost 200 inmates are refusing meals, and lately have gained succor from Jay Leno, Susan Sarandon, Noam Chomsky, Gloria Steinem, Jesse Jackson and 60 other celebrities and civil libertarians and prisoner-rights attorneys who declared in a letter:

"We stand together against these shameful practices and consider them extensions of the same inhumanity practiced at Abu Ghraib and Guantánamo Bay. In defense of the U.S. Constitution and the Universal Declaration of Human Rights, we, the undersigned, call on Governor Jerry Brown to end this torture at Pelican Bay and all California prisons immediately."

What blinders they wear in their rarefied world. Ashker, 50, went to prison at age 19 for burglary, after many crimes committed as a juvenile. On the inside, he has killed one inmate, assaulted other prisoners and guards, has been caught with weapons and drugs, and tried to escape four times. He and other gang leaders fomenting the hunger strike want out of security housing because their isolation limits their ability to conduct gang business, prison officials say.

"They have no idea how dangerous this guy is," [Defense attorney Philip] Cozens said of Ashker's outside supporters.

During his trial, Ashker conceived a plan to cause a mistrial by having another inmate called as a witness smuggle a shank in his rectum and stab someone.  The prosecutor was the target of choice, but when he proved out of reach the defense lawyer would do.  Cozens survived but still has the scars.

What Not to Post on Facebook

The obsession of some people with posting absolutely everything about themselves online never ceases to amaze me.  Suzette Laboy and Kelli Kennedy report for AP on a post by Derek Medina of South Miami:

On Thursday, Medina's Web-based persona took a nefarious turn: First he apparently posted a message on his page in which he confessed to killing his 26-year-old wife, Jennifer Alfonso. Moments later, a gruesome photo appeared on the page: a woman wearing black leotards slumped over on the floor with blood on her face and arm, her knees bent and her legs bent back behind her.

Several hours later, Facebook officials had taken down the page and Medina had turned himself in to police. In a police video released late Friday, Medina is shown walking into the police station Thursday at 11:31 a.m. with another man. Medina, wearing jeans and tank top, walks up to the counter, then seconds later sits in a chair to wait.

The Therapy Dodge

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Mental defenses in criminal trials are usually "the last refuge of the scoundrel" who has been nailed so clearly that he has nothing else to argue.  There are, to be sure, genuine cases of a psychotic split from reality, but they are the exception and not the rule.

The political equivalent for scandal-nailed politicians seeking refuge is the "I am sick and need therapy" dodge.  Tony Perry reports for the L.A. Times that San Diego Mayor Bob Filner has completed his therapy earlier than expected.  How wonderful.  Except there never was a need for therapy in the first place.  Being an overbearing, arrogant jerk who exploits his position of authority over women for sexual purposes is evil, not sick, and there is no "treatment."

The good news is that it doesn't seem to be working.  Filner's political allies are tossing him overboard.  The last two members of the City Council and Senator Barbara Boxer have joined the call for him to resign.

Will Filner be criminally prosecuted for his misdeeds?  The DA is in an awkward position, as she ran against Filner for the mayor's slot in an early round of the process.  If the DA recuses, it's up to the AG.

How's That Reset Going?

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Remember when candidate Obama was blasting George's Bush's wahoo, cowboy, blunderbuss handling of foreign relations?  Russia was the prime example. According to Obama, Bush was alternately a sycophant or a bully.  All this was going to change when Mr. Smooth took office.  As Powerline notes:  

Remember the good old days when the Obama administration promised "smart diplomacy?" Hillary Clinton mocked the Bush administration for not cozying up sufficiently to Vladimir Putin's Russia, and presented the Russians with a "reset" button to demonstrate that from now on, things would be better. Right.

Now the administration is feuding with Putin over Edward Snowden. It is a bad sort of feud, because the Russians hold all the cards, in the person of Snowden. Whatever Snowden knows they can easily learn, and at this point there is nothing we can do about it.

I bring this up not to stick my tongue out at Mr. Obama (well, OK, I confess), but because it presents a serious criminal law issue.  Russia is harboring a fugitive from grave charges  --  specifically charges that he stole and published extremely sensitive national security secrets.

My purpose here is not to attempt to try Snowden in a media entry instead of a court.*  My purpose is to wonder just what Obama plans to do to get him to court. A country that commands power and respect would have a chance of doing that, Russian intransigence notwithstanding.  Instead, it seems like it will take us longer to get Snowden into court than it took to litigate the length of Maj. Hasan's beard. Could the reason that justice for Snowden will be so long in coming, if it comes at all, be related to the President's enthusiastic world apology tour?

Ain't nostalgia grand?  The humbly bowed Presidential head seemed like such a good idea before we roused ourselves to the unpleasant if persistent reality that what advances America's interests in the world  --  including its interests in justice  --  is not the downcast "America-as-contrite-bully" stance so popular in the faculty lounge, but big-time power and no crippling hesitation to use it.

*  Not that the Administration is unwilling, in the right circumstances, to conduct a trial in the media.  That's exactly what's going on with the President's and the Attorney General's alternately moping and seething reactions to the Trayvon Martin verdict.  Mr. Holder has been sufficiently crass to suggest that George Zimmerman just might be indicted on federal civil rights charges, even though DOJ has known for weeks that it has no case.

Cal. Prison Case to SCOTUS, Again

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Don Thompson reports for AP:

Against growing odds, Gov. Jerry Brown formally asked the U.S. Supreme Court late Friday to intervene once again in California's yearslong battle with federal judges over control of the state's prison system.

The Democratic governor filed his formal appeal asking the justices to overturn a lower court decision requiring the state to reduce its prison population by nearly 10,000 inmates by the end of the year to improve conditions.

By "formal appeal" he presumably means the jurisdictional statement.  The notice of appeal was filed in the district court some time ago.  The docket for this case is not yet online at the Supreme Court, so I can't check it there yet.

For the small subset of cases that can be appealed directly to the Supreme Court, the procedure is to file a "jurisdictional statement" rather than a certiorari petition.  Since the Court has no choice but to take the case if they have jurisdiction, in theory, the purpose of this document is nominally just to convince them they have jurisdiction.

In reality, though, the appellant must convince the Supreme Court to accept full briefing and argument rather than affirm summarily.  For this reason, the jurisdictional statement is more like a certiorari petition in practice that it would appear to be on the face of the rules.

A while back, California Governor Jerry Brown announced the prison overcrowding crisis was over, and the use of private prisons expanded by the Governator could be wrapped up.

Well fuhgeddaboudit.  The U.S. Supreme Court's denial of the stay of the crowding-reduction order issued by the three-judge court (erroneously, IMHO), forces California to either make use of such prisons or unleash a new horde of even more dangerous criminals on the public. 

Paige St. John reports in the L.A. Times:

Gov. Jerry Brown's administration is discussing deals to lease more than 4,600 private and publicly owned prison beds in California, inching the state toward compliance with federal court orders to reduce crowding in its own lockups.

Proposals include a 2,400-bed prison operated by Corrections Corp. of America in the Mojave Desert, 1,200 beds at two low-security prisons owned by GEO Group, and room for some 1,000 more inmates in jails in Alameda County and a city-owned prison in Kern County.

News Scan

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Biased Reporting on Crime:  Mark Hemingway of the Weekly Standard has this piece on the media's double standard when it comes to politically motivated crime.  The article focuses on last year's shooting at the Family Research Council's Washington office by an ultra-liberal radical who admitted he wanted to kill everybody there because the group opposes gay marriage.  The heroism of building manager Leo Johnson, who took a bullet as he disarmed the fanatic to prevent a massacre, was only briefly mentioned in the news.  The facts that the assailant was a white liberal, who targeted the council for an attack after finding it on an internet "hate map" posted by the Southern Poverty Law Center, and that the victim was a Christian black man were of little interest to reporters.  Hemingway contrasts this with the reporting surrounding the shooting of Democrat Congresswoman Gabrielle Giffords, which the mainstream media blamed on Sarah Palin's map targeting Giffords' district for a possible GOP victory.  He makes a similar comparison to the Zimmerman case, which has been and is still reported as a hate crime.   

Driving on Medical Pot a DUI in AZ:  Medical Marijuana users stopped by police in Arizona risk a DUI prosecution according to this story in The Arizona Republic by J.J. Hensley.  Prosecutors say that any trace of pot in a driver's blood is enough for a DUI under Arizona law.  The state adopted a medical marijuana law in 2010 but did not establish the blood level at which a driver would be considered impaired.  The story notes that a 10-year study in Sweden concluded that "Scientists have found it virtually impossible to agree upon the concentration of a psychoactive substance in blood that leads to impairment in the vast majority of people."  Other medical marijuana states have set levels for legal impairment but they appear arbitrary.   Michigan's blood level, for example, is twice the limit in Colorado.

JessicaFunk.jpegIn March 2012, the body of 13-year-old Jessica Funk-Haslam was found in the dugout of a baseball field in a community park in Sacramento, California.  She had been beaten, choked, and stabbed in the neck.

On June 13 this year, the Supreme Court held in Maryland v. King that states may provide by law for the DNA testing of persons arrested on probable cause for a serious offense.

Recently, 23-year-old Ryan Douglas Roberts of Sacramento was arrested on charges not yet publicly released.  His DNA was obtained and tested, and it matched the evidence from the murder of Jessica.  He has been rearrested for murder.

CBS13, Sacramento, has this story.

This is why these cases are important.

FedSoc Interview with ABA President

The current issue of the Federalist Society's ABA Watch has a Q & A with the incoming ABA President.  On the key question, he predictably gives the same inadequate stock answer the ABA has been giving for years.

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Border Agents Accuse U.S. Politicians of Helping Drug Cartels:  An open letter signed by three retired U.S. Border Patrol agents, all who held leadership positions, cite policies pushed by Congress and local politicians as assisting foreign drug cartels to expand their operations throughout the country.  Breitbart Journalist Matthew Boyle reports that, according to the retired agents, "Members of these vicious transnational crime syndicates are already well established in more than 2,000 American cities and their numbers are increasing.."  The agents note that sanctuary cities "encouraged by Congress and a disinterested mainstream media" are providing a safe haven for the cartels.  They are asking Congress to abandon efforts to grant amnesty for illegal immigrants in favor of protecting American citizens. 

NY Police Warn of "Sliders":  CBS News reports on an outbreak of thefts from vehicles that occur while the owner is pumping gas.  New York police are calling these thieves "sliders" because they move in quickly to snatch items from a car right under the victim's nose.  Surveillance cameras have caught thieves snatching a purse from a car in 19 seconds, without the owner noticing. "A vehicle is not a secure location for your property," said one official.    

Trading with the (former) enemy

Nothing sends our friends on the left side of the aisle into ecstasy quite like warming up relations with former enemy nations that remain communist.  Those of us who are old enough remember the China-mania that followed ping-pong diplomacy and the Nixon trip.  Later, there were the media rhapsodies over the soon-to-collapse Soviet Union that Rush Limbaugh called "Gorbasms."

So this story from AFP suggests a fruitful new basis of expanded trade with Vietnam that should make our friends delirious.

Vietnam executed its first prisoner by lethal injection on Tuesday, state media said, after a two-year hiatus in carrying out capital punishments due to problems procuring the chemicals.

The communist country stopped using firing squads in July 2011 in favour of "more humane" lethal injections but was unable to import the necessary drugs due to a European Union export ban.

In May this year, Vietnam amended the law to allow locally-produced chemicals to be used, a move which was widely expected to bring about a resumption of executions.

On Tuesday the first death row prisoner, convicted murderer Nguyen Anh Tuan, was administered three injections "for anaesthesia, paralysing the nervous and muscle system, and stopping the heart", according to an online report in the Thanh Nien newspaper.

We will probably have some FDA issues to clear out first.  But then let's start placing orders.
I think NPR is hard up for guests, because last night it called to ask me to appear this morning of the Diane Rehm show.  I understand the show is syndicated around the country.  Here in Washington, DC, it will be on at 10 a.m., on WAMU  88.5.  The blurb introduces the program like this:

Mandatory minimum sentencing has existed throughout the country's history, at one time used to punish mostly treason and murder. But in the1980s, Congress saw mandatory minimums as a way to tackle a different kind of crime--drug offenses. As part of the "war on drugs", there was bi-partisan support for tough sentences, rather than rehabilitation. Now, today, the pendulum might be swinging in the other direction. With a prison population soaring and budgets tightening, lawmakers from both parties are supporting ways to reform these sentences. And Attorney General Eric Holder is weighing in. Diane and her guests discuss the debate over mandatory minimum sentencing.


William Otis

former federal prosecutor and former special White House counsel for President George H.W. Bush

Devlin Barrett

reporter covering security and law enforcement, The Wall Street Journal

Paul Butler

professor at Georgetown Law School.

Mary Price

vice president and general counsel, Families Against Mandatory Minimums

[Editor's Note:  The show is available here.]

AP reports:

A gang leader who helped organize a massive hunger strike in California state prisons has been named as an unindicted co-conspirator in federal indictments aiming to disrupt the Mexican Mafia prison gang and a Mexican drug cartel.
*                                   *                                  *

[Arturo] Castellanos is serving a life sentence without the possibility of parole and has been housed in the notorious Security Housing Unit since 1990.

But he still controls the street gang, the indictment contends. He issued written "reglas," or rules for gang members, from his prison cell in 2004, and decided which senior gang members would become gang leaders on the streets, the indictment alleges.

*                                   *                                  *
Jeffrey Beard, secretary of the California Department of Corrections and Rehabilitation, claimed in an interview with The Associated Press this week that the hunger strike is couched as a human rights protest but is really an attempt by gang leaders including Castellanos to gain more control.
The special master has delivered his report in the case of Missouri death row inmate Reginald Clemons.

This proceeding is a state habeas corpus petition filed after the usual state postconviction review and the federal habeas corpus have been completed.  In substance, then, it is like a successive habeas petition.  Missouri law apparently follows the pre-AEDPA federal successive habeas petition law of McCleskey v. Zant (and current federal procedural default law).  The petitioner must satisfy a "gateway" test of either "cause and prejudice" or actual innocence before the merits of the petition will be considered.

Clemons may win the case on a fairly routine basis -- a nondisclosure claim under Brady v. Maryland with passage through the gateway via "cause and prejudice."  The special master recommended in his favor on that claim.  (Page 102.)

The case is nationally notorious, though, because of Clemons's claim he is actually innocent.  The master rejects this claim.  A few excerpts follow the jump.

DUI, Blood Draws, and Warrants

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Michael Bulzomi, legal instructor at the FBI Academy, has this article in the current FBI Law Enforcement Bulletin on the Supreme Court's decision in Missouri v. McNeely regarding when a warrant is required to draw the blood of a DUI suspect without his consent.

News Scan

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Sex Offenders Being Steadily Released from California Jails: In an effort to alleviate prison overcrowding, California sex offenders are being recycled in and out of county jails despite several violations of their parole.  Writers with CNN's Special Investigation Unit report that two years ago county judges lost their authority to send convicted felons back to prison after violating their parole, forcing them instead to send them to county jail.  State parole agents say that the most common parole violation being committed by sex offenders is illegally tampering with their GPS monitoring devices.    

DOJ Files Charges in Benghazi Attack: Members of Congress are urging President Obama to arrest Benghazi suspects in order to hopefully prevent further attacks and protect American citizens.  Fox News reports that the Obama administration is staying relatively quiet about the situation, and only said that their investigation is "ongoing."  The September 11, 2012 attack (involving armed assaults on the U.S. Consulate and a nearby CIA annex) left four Americans dead and several others injured.

Ft. Hood Murder Trial Halted Amid Death Penalty Discussion: The military court-martial case for accused Ft. Hood mass murderer Maj. Nidal Malik Hassan was recessed earlier today after backup defense attorneys said Hassan was "encouraging" the death penalty.  Elizabeth Chuck of NBC News reports that backup attorneys were set in place to ensure the case is handled properly after Hassan elected to represent himself.  The trial was halted after a motion was made by the defense team seeking to reduce their role in the case after the courtroom behavior of Hassan led them to believe he is trying to get a death sentence.
Virtually never.  I have my problems with both the ethos and the tactics of defense lawyering as currently practiced, but the majority of defense lawyers are good people trying to do what they view as the right thing.  We just disagree on what "the right thing" means.

Today, however, brought an episode in which it seems that, in one narrow but revealing way, the terrorist came out on top.  Today was the first day of the murder trial of Maj. Nadal Hasan, who gunned down 13 people at Ft. Hood, Texas and seriously wounded many more.  Hasan, who is no lawyer (he is  --  get this  --  a psychologist), is representing himself.

His opening statement did not mince words:  "The evidence will clearly show that I am the shooter."  He made no excuses; to the contrary, he seemed to embrace, rather than want to wriggle away from, the murders he committed.

Am I the only one who finds it refreshing to hear, from the defense side, not a boatload of whining or some shake-and-jive junk science about how it was all a product of this newly minted "syndrome" or that, but just straightforward truth-telling?

John Hinderaker at Powerline has an appropriately acid take on the story here.

Misrepresenting "Stand Your Ground"

I got an email from in the name of the parents of Trayvon Martin. Regrettably, they have abandoned the high road and are now campaigning against "stand your ground" laws with some serious misrepresentations.

Last year, our son Trayvon Martin was stalked, chased down and killed by George Zimmerman, and Zimmerman received no punishment whatsoever. That's in large part because Florida is one of at least 21 states with some form of 'Stand Your Ground' law which enables people like George Zimmerman to claim self-defense.
That is simply not true.  As we have noted on this blog earlier, the "stand your ground" portion of Florida's self-defense law was rendered irrelevant by the testimony of the prosecution's witness that Martin had Zimmerman pinned on the ground.  The verdict was based on the portion of Florida's self-defense law that deadly force is justifiable in response to a threat of great bodily harm, which is substantially the same as the law throughout the country.

Why Can't I Get a TV Outside My Office?

I think the reason I can't get a TV is that I haven't killed anyone.

The NBC News affiliate in Seattle reports that accused mass murderer Michele Anderson  has requested a TV (and radio) outside her cell, I guess so she can keep up with the latest, even while not saying a whole lot about having offed six members of her family, including two children.

She is being held in solitary, probably (although I don't know this) for her own protection.  Her psychiatrist has testified that solitary confinement could well damage her precarious health  --  this notwithstanding that he hasn't seen her for a few years. His testimony looks to me as if it could have been copied out of a Psych 101 book.

Yes, solitary confinement is bad news for the inmate, and yes, a boring life gets better with a TV to watch, but (as Sixties liberals might say) can you imagine a world in which people took responsibility for their actions, and even feel remorse, rather than complaining that taxpayers don't fork over enough?

[Editor's update:  The story linked above has been updated and now indicates the judge denied the request. -- KS]

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Florida Executes Convicted Mass Murderer: A Florida man convicted of murdering eight people and sentenced to death in 1978 was executed last night despite last-minute pleas from his attorneys claiming that he was insane.  David Adams of Reuters reports that John Ferguson shot six people during a drug-related home robbery in July 1977, and then killed two teenagers six months later.  The U.S. Supreme Court denied a stay of execution for Ferguson after a panel of psychologists determined he was mentally competent.

What's Really Behind the CA Prison Hunger Strike: The inmates leading the California prison hunger strike will have you believe that their living conditions and "solitary confinement" is a violation of their rights, but prison officials are telling a much different story.  In an LA Times OpEd, Jeffrey Beard, head of the California Department of Corrections and Rehabilitation, reports that the prison gang leaders running the strike are doing so in an attempt to be put back into the general prison population to further their violent gang agenda.  Inmates living in segregated housing units have daily access to television and radio, weekly access to law libraries, and are allowed visitors every weekend.

Amber Alert Issued for Two California Children: An Amber Alert has been issued for two California children taken by a man who police believe murdered their mother.  Fox News reports that authorities were alerted to a house fire and found the bodies of the children's mother and another child in a detached garage on the man's property.  The suspect, James DiMaggio, was in a "close platonic relationship" with the children's mother and may be traveling to Canada or Texas.

Amazon's Bezos Buying WaPo

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As long as we are talking about newspapers, it is worth noting that Amazon's Jeff Bezos is buying the WaPo.  Paul Farhi has this story in, well, you know.

Does this portend any change in the WaPo's editorial policies regarding crime issues?  The paper has generally leaned toward the defense, but it hasn't been nearly as bad as the NYT, noted earlier today.

I went to the Washington Public Disclosure Commission website to see what causes and candidates Bezos has contributed to.  Yes on same-sex marriage.  Yes on charter schools.  No on a state income tax.  He contributed to Gary Locke and Christine Gregoire for governor, both Democrats.

Not too much enlightenment there for our issues.

Editorial Errors

Every day in newspapers across America, editorial writers express opinions that many of their readers disagree with.  That is necessarily how it must be, because editorials opine on controversial subjects, and any opinion one expresses on such a subject will meet with disagreement from many people.

The New York Times editorial page, however, repeatedly does something quite different.  In the process of expressing its monotonically Politically Correct opinions, the NYT regularly misleads its readers regarding the facts of the issue in question.  Yesterday's editorial on the Ferguson execution, noted earlier in Bill's post and mine, is an exemplar of how not to write an editorial.

For the actual facts and history of the case, as distinguished from NYT fiction, see the opinion of the U.S. Court of Appeals for the Eleventh Circuit.

NYT:  "Once again, a state is attempting to put to death a man who is clearly ineligible for execution under the Constitution."

The ineligibility in question here is mental competency to be executed.  Care to guess how many people have determined that Ferguson is competent, contrary to what the NYT thinks is "clear"?

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Ohio Murderer Kills Himself Prior to his Execution: Billy Slagle, an Ohio man sentenced to death for stabbing his neighbor, was found hanged in his cell Sunday morning just days prior to his scheduled execution date.  Thomas Sheeran of the Associated Press reports that Slagle was found in his cell alone, and authorities don't believe there were any other inmates involved in his death.  Prior to his suicide, the parole board had denied a stay of execution for Slagle despite a rare plea from the prosecution to sentence him to life without the possibility of parole.

Police Search for Motive After Deadly Hit-and-Run Attack: A Los Angeles man is being held in lieu of $1 million bail after he walked into the police station and admitted to being involved in a hit-and-run attack that left one woman dead and 11 others injured.  Fox News reports that 38-year-old Nathan Campbell surveyed the Venice Beach boardwalk area prior to getting into his vehicle and intentionally driving around security barriers and into a crowd of hundreds of tourists.  Police have yet to determine a motive, but have revealed that they don't believe it was an act of terrorism.  

Inmate Murderer Leading California Prison Hunger Strike: A California prison hunger strike  that started on July 8 with 33,000 inmates involved has dwindled down to 499 inmates as of Thursday.  SF Chronicle columnist Debra J. Saunders notes that the hunger strike, which is aimed at protesting the use of "solitary confinement" in California prisons, is being led by Todd Ashker, a member of the Aryan Brotherhood, convicted of stabbing another inmate to death in 1987.  The California Department of Corrections stands by their policy of isolating roughly 3% of the prison population in order to keep the rest of the inmate population safe from potentially violent gang activity.    

SCOTUS Denies Stay to Ferguson

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The US Supreme Court has denied a stay of execution to Florida murderer John Ferguson.  No dissent is noted.  Chief Justice Roberts was recused.

The high court's action would be incomprehensible if the NYT editorial's description of the case were accurate.  However, it is a work of fiction.  See also Bill's post earlier today.

More Nonsense from the NYT

An editorial yesterday in the NYT criticizes the pending execution of John Errol Ferguson in Florida.  At least the Times for once describes the crime, however briefly:  "Mr. Ferguson, who brutally murdered eight people in 1977 and 1978, has sat on Florida's death row for 34 years."

The point of the editorial is that the execution would be unconstitutional, because, so says the Times (as ever along with defense-hired "experts"), Ferguson is insane. This sort of stuff is old hat, and my point here is not to rehash whether the Times' editorial board knows the law better than the numerous state and federal judges who have approved the execution after a painstaking inquiry into Ferguson's mental state. Instead, my point is to take on one particularly absurd argument I see all the time from abolitionists.  As the Times puts it:

Both Mr. Ferguson's and Mr. Hill's crimes were unquestionably horrific; the crimes of death-row inmates almost always are. But to focus on the crime obscures the central moral dilemma of capital punishment. As Sister Helen Prejean, the death-penalty opponent, has put it, the question is not whether someone deserves to die but whether we deserve to kill him.

What hogwash.  First, the question, in death penalty cases, as in all others, most certainly is what the parties deserve.  Although the Times seems to have missed this, the whole point of the justice system is to give the parties what they deserve.  Does the Times have some other purpose the system ought to be pursuing?

But putting that to one side, if "we"  --  i.e., the duly empowered organs of democratic government  --  cannot, after years of the most probing deliberation, give a multiple murderer what he deserves, who does the Times recommend for the job?

It's just astonishing what sophomoric baloney abolitionists want to palm off as "wisdom." 

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Supreme Court Denies Request to Delay Release of Thousands of California Prisoners: A divided Supreme Court rejected Governor Brown's request to delay a federal judge's order to release 9,600 prisoners in an effort to reduce inmate overcrowding.  Paige St. John of the LA Times reports that so far, the state has only been able to identify 1,205 inmates that are deemed as nonviolent offenders and able to be released.  Due to today's ruling, the state is forced to release offenders with a history of serious and violent offenders back into California communities. 

Texas Running Out of Execution Drug: The most active death penalty state in the country is running out of its lethal injection drug, and the limited supply they do have expires next month.  Michael Graczyk of the Associated Press reports that Texas has executed 11 inmates so far this year, and has plans to execute seven more in a few months.  Texas switched to a one-drug sedative last year after one of the drugs in the popular three-drug execution method became difficult to acquire.

Rap Lyrics Lead to Arrest in 2007 Double Murder: Police in Virginia were able to crack a cold case after tips came in that the man responsible for a double homicide in May of 2007 included details of the crime in his rap lyrics.  Andrew Rafferty of NBC News reports that Antwain Steward was arrested after several witnesses came to police about the song and offered clues about the killings being gang related.  Steward is being held on two counts of felony murder, unlawfully discharging a firearm, and two counts of using a firearm in the commission of a felony.

Grandmother Admits to Killing and Dismembering her Granddaughter: The case of a 14-year-old Michigan girl who disappeared 15 years ago has finally been solved after her grandmother confessed to her murder.  Gary Ridley of M Live News reports that 73-year-old Lois Janish has been charged with murder after admitting to detectives that she hit her granddaughter over the head with a hammer and then scattered her remains after dismembering her body.  Janish has named her boyfriend, who has since died from alcoholism complications, as an accomplice to the crime.

News Scan

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Texas Executes Road-Rage Killer: Douglas Feldman, a Texas man convicted of a double-homicide in 1998, made a very bizarre statement about sentencing his victims to death right before he was executed by lethal injection.  Joe Kemp of the New York Daily News reports that Feldman, a former financial analyst, was found guilty of murdering two truck drivers in what police believed to be a road-rage inspired killing.  Feldman was said to be a very violent man, and racked up over 130 disciplinary cases while incarcerated.

Nevada Supreme Court won't Consider Death Penalty Challenge: The Nevada Supreme Court has decided not to hear an inmate's challenge asserting that the death penalty amounts to cruel and unusual punishment.  The Associated Press reports that Antoine Williams was attempting to question the legality of untrained prison officials being allowed to administer the three-drugs used during lethal injections.  Williams was sentenced to death in 1994 for the murder and robbery of an elderly Las Vegas couple.

Young Boy Beaten to Death for Wetting his Pants: An Alabama couple has been arrested and charged with capital murder after they allegedly murdered a five-year-old boy for wetting his pants.  Fox News reports that the boy's mother and her boyfriend beat the young boy until he was unconscious last Friday, and he later died that evening at the hospital.  The mother's boyfriend has also been accused of abusing his 7-year-old daughter and was already in jail when he was served with a warrant for the boy's death.    

What Repentance Actually Looks Like, Part II

Ariel Castro was sentenced today to LWOP plus 1000 years  --  an inadequate punishment, but probably the best that could be done given the difficulties of proving a capital crime, and of the very understandable reluctance of the three victims to recount their ordeal at Castro's hands.

The Wall Street Journal recounts part of Castro's sentencing:

Mr. Castro apologized and told the court he's addicted to pornography, but he claimed that most of the sex with the women was consensual. "These people are trying to paint me as a monster," he said. "I'm not a monster. I'm sick."

I heard a lot of appalling stuff in court, but that might take the cake.  The sex was actually consensual (it was so consensual he had to turn his house into a dungeon to keep them there) and he's just sick.

The main problem, of course, is not that Castro is claiming sickness as an excuse. The problem is that sickness has become the mantra of criminal defense.  Indeed, the legal profession has become so degraded and vulgar that it may well be malpractice for a criminal defense attorney to go through a sentencing and not claim his client was just "sick."

Well, yes, something is sick alright, but it's not the client.

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