September 2013 Archives

Changing v. Stable Views on Issues

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Gallup Editor-in-Chief Frank Newport has this brief video on how the public's views change drastically on some issues and very little on others. Of all the issues Gallup polls on, Newport chooses the death penalty as the example of an issue with very stable polling results.  The "yes" answer to Gallup's basic question was 59% in 1939, 63% last December.  Interracial marriage, in contrast, has gone from near-unanimous rejection to overwhelming approval in about half a century.

The anti-DP propaganda machine wants you to think that public support for the death penalty is collapsing.  The people who poll as a profession don't think so.

As I have explained previously, Gallup's basic question understates actual support for the death penalty.  It is useful for examining long-term trends, though, simply because of the length of time Gallup has been asking it.

News Scan

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Released Parolee Accused of Murder: A 35-year-old Michigan man has been arrested on parole violations after being accused in the murder of a 23-year-old woman. Kyle Feldscher of reports that Stanley Harrison had been released from prison three days prior to the murder after serving between three and 30 years for an unarmed robbery conviction.  Harrison has not yet been arraigned on the murder, but is the only suspect in the case. 

Convicted Cop Killer Sentenced in Unrelated Murder: A New Jersey man already serving a life sentence for murdering a police officer has been given another life sentence in an unrelated murder he committed in 2010.  The Associated Press reports that 21-year-old Jahmell Crockham pleaded guilty to murder charges stemming from a 2010 unsolved homicide, resulting in an additional life sentence without the possibility of parole.  Crockham was previously convicted of murder in 2012 after he walked up to an officer's police cruiser and shot him three times at point blank range.

Death Row Inmate Receives 4th Execution Date: A Florida man sentenced to death for a murder he committed in 1988 has been given his fourth, and hopefully final, scheduled execution date.  The Associated Press reports that Marshall Gore, who has already been scheduled to die three times this year, has avoided execution by making claims that he is both delusional and too insane to execute. Gore's final appeal for a stay of execution was denied last Friday, he is scheduled to die by lethal injection tomorrow evening.  See also this post on today's Supreme Court conference.

Police to Use Computer Algorithms to Predict Crime:  The Metropolitan Police in England are looking into a new technology which aims to help them stay one step ahead of criminal offenders by using computer algorithms to generate crime maps indicating where offenders are likely to strike next.  Francesca Infante of the Daily Mail reports on this futuristic idea, noting that the policing depicted in the movie Minority Report has resulted in a significantly increased success rate by the department.  While the tactic is not an ultimate solution to apprehending criminals and deterring crime, it serves to better appropriate resources in areas that need them most.

Criminal Defense, the Bracket Game

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No, I did not say, "Criminal Defense, the Racket Game."  That wouldn't be very nice.

Nor, to be honest, would it be fair.  The old fashioned criminal defense ("I didn't do it") has all but disappeared.  It's been displaced by, "OK, well, maybe I did do it, but you should let me off because I have ___ mental problem."  

You can put pretty much anything you want in the blank, because you can always hire a shrink to come up with something or other out of the Diagnostic and Statistical Manual. And if nothing there fits, just invent something. This will, in addition to enhancing the shrink's fee from the defense lawyer, get him invited to some academic symposium, where, despite the odds that otherwise would be imposed by common sense, he can get taken seriously. 

No, the Bracket Game is literally a bracket game.  In this game,competing "disabilities," real and fabricated, compete with one another to see which can glean you the Most Intimidating Claim to Moral Superiority, and thus the right to bully anyone who thinks the defendant might actually have some responsibility for what he does.  It's even more fun than the "I have ___ mental problem game."

Why Abolition Will Never Succeed

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Let's be honest.  Those seeking to abolish the death penalty have had their share of success in recent years, as executions have gradually declined since the turn of the century  --  this despite the fact that, as Gallup has found, public support for the death penalty remains strong and stable at 2-1 in favor.  And despite the fact that California, a very blue state, voted by no small margin to keep capital punishment when it rejected Prop 34 just ten months ago.  This was despite an abolitionist campaign that outspent retentionists by 20-1.

But with the long-term trend of declining executions, is there any good reason to think retentionists will wind up winning in the end?

Yes.  For one thing, after the Boston Marathon mass murder this past spring, public support for executing the killer registered at 70-27 in favor.  This is but one illustration of the thing abolitionists can't make disappear, despite their eager attempts to do so.

The thing is reality.  Another episode of it has emerged in the mall massacre in Nairobi, Kenya. The behavior of the terrorists is more mind-bendingly gruesome than I care to describe; it's set forth here, however.  If you have a strong stomach, you should read it.

Kenya has capital punishment and continues to sentence killers to death, although no one has actually been executed there since 1987.  My guess is that this de facto moratorium is about to end. Reality does have a way of intruding.

The Living Hell of Federal Prison

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Yesterday, Judge Jack Weinstein was publicly bellyaching that he'd been caught with his pants down (as it were) by the Second Circuit, as it turned back his attempt to mangle the Eighth Amendment beyond recognition.  See my post here.  In the course of berating the higher court for its savagery, he observed that sending the defendant  --  a pornography distributor and admitted child molester --  to jail for five years rather than two and a-half was the equivalent of "human sacrifice."  Go look at his memorandum; you won't have to read far.

Just this afternoon, by coincidence, the Wall Street Journal is carrying the story of another "non-violent offender" who was sent to federal prison for about the same amount of time the pornographer, a man now in his early twenties, will be serving. The now ex-prisoner is former QWest CEO Joe Nacchio.  

Nacchio orchestrated a breathtaking swindle, but that's not the point here.  The point is that, at age 59 or 60, he was sent to the slammer.  This makes him a bit less than 40 years older than the pornography defendant will be when he enters.  How did Nacchio do trying to survive the equivalent of human sacrifice?  

News Scan

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Convicted Murderer Offers Advice Prior to Execution: A Texas man sentenced to death for a murder he committed 14 years ago decided to give some advice to the younger generation right before his execution; "Think about it before you do drugs."  Kieran Corcoran of the Daily Mail reports that 37-year-old Arturo Diaz admitted to authorities that he was both drunk and high on drugs when he murdered a man and attempted to steal his vehicle.  While incarcerated, Diaz was sentenced to an additional 94 years behind bars after being convicted of sexually assaulting a fellow inmate.

State Auditors Give Warning About Realignment: A California state audit has labeled Governor Brown's realignment policy as a "statewide high-risk issue."  The Sacramento Bee reports that realignment was placed on the audit based on the fact that county jails are being overwhelmed by the amount of inmates being moved from state prisons to their facilities.  The audit mentions that realignment will continue to be considered a high-risk issue until its effectiveness and efficiency are proven.

Attempted Murderer Chose Victims Based on Race: A North Carolina man has been indicted on four counts of attempted murder after police say he shot at multiple people simply because they were white.  The Associated Press reports that 23-year-old Lakim Faust, who happens to be black, had more than 100 rounds of ammunition on him when he began targeting white people in a shopping-center parking lot. A search of Faust's home computer indicated that he had planned the attack and wanted to shoot a large number of people.

"Let Judges Be Judges".........NOT

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One of the most frequent objections to determinate sentencing  --  binding guidelines and mandatory minimum statutes  --  is that we should "let judges be judges."

Within limits, that's hardly a bad idea; judges must perforce have a considerable degree of discretion.  But without limits, it's a prescription for debasing law  -- debasing it with will, temperament, ideology, half-baked political trends and whatever else is floating through the judge's head on any given day.

An apt illustration came yesterday with Judge Jack Weinstein's almost instantaneous reaction to the Second Circuit order unanimously reversing his lawless sentencing of a child porn distributor.  What the reaction ostensibly does is direct the defendant to appear for re-sentencing.  What it actually does is, shall we say, give an unfortunate hand gesture to Weinstein's bosses on the Court of Appeals, whom Weinstein all but brands as brain-dead barbarians.  For example, it takes Weinstein all of three paragraphs to lament that the sentence he must now impose  --  30 months longer than the original  --  renders the defendant's punishment the equivalent of human sacrifice

The order is, in its own way, educational, even important.  It makes clear how utterly willful, obdurate, and frankly arrogant, federal district judges  --  the ones who do the sentencing  --  can be.  It's not just that Weinstein views Congress's statute as the pygmy dwarfed by His Giant Intellect.  And it's not just that he twists the Eighth Amendment beyond recognition, as the Second Circuit surgically demonstrates. It's Weinstein's apparently complete failure to recognize that he is, not a candidate running for political office, not the PR guy for the NACDL, and not a Supreme Court Justice, but a judge on an inferior court who has been ordered by the higher court to correct his mistake.

This is what we know is lurking out among the districts.  It's not just Jack Weinstein.  And it's a stark illustration of why we should keep mandatory minimum sentencing  --  to avoid the fickleness, lawlessness and arrogance of "letting judges be judges."

Judge Weinstein Makes the Case, Part II

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Yesterday, I wrote about the Second Circuit's takedown of Judge Jack Weinstein's love letter to a young adult convicted of child pornography.  One thing I neglected to mention is that the defendant admitted before sentencing to three episodes of actual child abuse, with his eight year-old half-sister.  That is unusual; most distributors of CP have not personally abused a kid. The great majority of sentencing judges would view such behavior as ominous, and would tend to enhance the sentence because of it.  Not so  -- to say the least  --  with Judge Weinstein, who saw even the rock-bottom statutory minimum sentence as far too harsh.

The Second Circuit's assessment of Judge Weinstein's effort has received some attention, although not as much as it deserves.  My friend Prof. Orin Kerr at the Volokh Conspiracy had this to say:

There are a lot of debates about "judicial activism" in which some question whether the term has real meaning. Fortunately, there is always Jack Weinstein, whose activism is so over-the-top that it easily quiets the debates. The latest contribution to the Second Circuit's reversal docket is a 400-page sentencing opinion from earlier this week, United States v. C.R..

I ended my snarky post with this line: "One thing is for sure: When the Second Circuit reverses Judge Weinstein, they will do it in fewer than 400 pages."

The Second Circuit handed down its reversal today in United States v. Reingold. The page count: 50 pages for the majority, with a 6-page concurrence.

Texas Execution and Ohio Change

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Michael Graczyk reports for AP:

A South Texas man was put to death Thursday for a slaying 14 years ago in which the victim was bound with shoelaces and strips of bedding, stabbed 94 times and robbed of $50.

The execution of Arturo Diaz, 37, was carried out after the U.S. Supreme Court refused a last-ditch appeal to block his lethal injection. It was the 13th execution this year in Texas, the nation's most active capital punishment state.

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Texas Department of Criminal Justice officials have used pentobarbital as the single execution drug for more than a year, but Diaz became the first in the state given the sedative procured from a vendor or manufacturer the prison agency has declined to identify.

The expiration date of the department's existing inventory passed this month, possibly diluting its potency. Like other death penalty states, Texas officials needed to go to nontraditional sources because the usual suppliers bowed to pressure from capital punishment opponents and refused to make their product available.

Meanwhile, Ohio has a change coming.  We will find out what it is at the next hearing before Judge Frost, October 4.  Ohio has been a national leader in achieving justice.  They took the step to switch to the single drug protocol, an obvious choice to end litigation over the second and third drugs, when no one else wanted to be first.  They also led the switch from thiopental to pentobarbital when the former became unavailable.

Capital Cases in the Long Conference

Monday is the U.S. Supreme Court's annual "long conference" in which they consider certiorari petitions (i.e., requests to take up cases decided in lower courts) that have built up over the summer.  The very valuable Cert Pool has the full list, 2127 cases as of this writing.

There are 68 capital cases on the list.  I extracted them into an Excel spreadsheet.  The cases include:

Cunningham v. Chappell:  Albert Cunningham is slated to be the 16th person in California to complete all normal appeals but not be executed because of CDCR's needless foot-dragging.

Scott v. Ryan:  Scott assisted James Styers as he took 4-year-old Christopher Milke, the son of Styer's girlfriend Debra Milke, on a trip that was supposed to be to the mall to see Santa Claus.  Instead, they took him out into the Arizona desert where Styers put three bullets in the back of his head.  Scott confessed it was a plot among the three of them, Milke included, to kill Christopher for a $5000 insurance policy.  Unlike in Milke's case, the confession is untainted.  Unfortunately, it is not admissible against Milke, who is being portrayed as innocent in Europe.  The Ninth Circuit opinion in Scott's case is here.

News Scan

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Poll: Californians Are Concerned About Crime: A poll conducted by Public Policy Institute of California reports that the public is concerned about the amount of crime in their communities, 18 months after the implementation of Realignment. Jim Miller of the Press Enterprise reports that 61% of CA residents were concerned about crime rates, which may be the result of thousands of  felons being released into local communities which have overwhelmed local police and probation departments.  Realignment shifted the responsibility for property felons and drug dealers from the state to the counties, resulting in county jails having no choice but to release many because of overcrowding. 

Teen Arrested for Murder of Mother and Brother: A 16-year-old Nevada boy has been arrested after police believe he stabbed his mother and 9-year-old brother to death last week.  Aaron Barker of Fox 5 Las Vegas reports that authorities found the bodies of the boy's mother and brother in the family home last Friday after conducting a welfare check and at one point feared for the boy's safety when they were unable to locate him.  Police revealed a few days after discovering the bodies that the 16-year-old was the lone suspect in the murders, he has since been apprehended and charged with two counts of murder.

Sex Offenders get 'Halloween Victory': Registered sex offenders in a California town have settled a legal battle after an ordinance requiring them to post a sign on their front door for Halloween was repealed.  ABC News reports that the ordinance, which was passed in 2010, required registered sex offenders to post a sign on their door stating "No candy or treats at this residence".  Despite the repeal, registered offenders will still be banned from decorating their home and are restricted from answering the door to any children who are trick or treating.  

The three-judge court's latest injunction ... like the court's other recent actions, disregards the law and the role of the judiciary. The three-judge court ignored this Court's [the U.S. Supreme Court's] mandate in Plata, this Court's cases governing modification of injunctive relief, and the public safety implications that the [Prison Litigation Reform Act] requires it to consider.....

The three-judge court's latest injunction underscores that its orders no longer have anything to do with ensuring that inmates in two discrete classes receive health care that satisfies the Eighth Amendment--which is what these cases should be about. Nor are they concerned with meeting the 137.5% of prison design capacity population cap, which purportedly is designed to cure care that violates the Eighth Amendment. Rather, the court's interest appears to be in legislating criminal justice policy by reducing the prison population through outright releases of inmates that it--and Appellees' counsel [footnote citing L.A.Times article quoting Don Specter]--do not believe should be incarcerated. See Appellants' Supp. App. 2-3 (agenda for meet-and-confer includes discussion of releases of certain categories of inmates the State already has shown would present public safety risks). [Emphasis added.]

Whew!  Reads like something Bill Otis might have written.  Who did write it?

Judge Weinstein Makes the Case

On August 12, Eric Holder gave his dishonest speech to the ABA, claiming the criminal justice system  --  the one that has seen crime come down by 50% in 20 years  --  is "ineffective."  In that same speech, he ordered line prosecutors to airbrush indictments to slip around mandatory minimum sentencing.  At roughly the same time, Sens. Leahy and Paul introduced their bill to effectively nullify every mandatory minimum sentence in federal law. Ever since then, it seems that I have been the voice in the wilderness arguing the other side.

Today I was displaced by Judge Jack Weinstein of the Eastern District of New York, with a big assist from a unanimous judgment of the Second Circuit.

Two and a-half years ago, Weinstein gave a repeat distributor of the grossest sort of child pornography a 30-month prison sentence.  The statutory exposure was at least 20 years; the guideline range was 14-17 years, and the mandatory minimum was 5 years.  Judge Weinstein was not impressed.  Blowing by the mandatory minimum, and entranced by his own 400-plus page opinion veritably bulging with excuses, he found the mandatory minimum, well, just too mean.

In a unanimous judgment (with a concurring opinion) that blows the doors off Weinstein's mind-boggling high-handedness, the Second Circuit reversed and remanded, directing Weinstein to re-calculate his rigged guidelines score and, at the very least, to impose the mandatory minimum.

Were it not for that settled statutory floor, it's beyond obvious that Weinstein, using what is facetiously called his "discretion," could and would go right back to the travesty of a sentence he gave originally.  I thank Judge Weinstein for illustrating better than I ever could why statutory minimums are essential to rein in what is, in some judges, an apparently limitless ability to use sentencing to sing a love song to felons.

Defense Bar Shoots at Puppy, Misses

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One of our readers, notablogger, is a supervisory attorney at a big city prosecutor's office. One of her colleagues prosecuted a defendant who cruelly and ruthlessly, and over an extended period of time, exploited a mentally disabled man. The defendant betrayed the victim, wiped him out financially, and treated him as if he had no value as a human being. The story of the defendant's callousness is hard to believe, even for those of us who have been at the business a long time.  It's all set out in the Washington Supreme Court opinion filed today.

The victim has the functioning and vulnerabilities of an elementary school-age child. Accordingly, during his testimony, and at the prosecution's request, he was accompanied by a dog, which helped keep him less anxious and more composed than otherwise would have been possible.

The defendant's cruelty, however, persisted right into the trial, so an objection was made to the dog's presence  --  the defendant preferring, I guess, to effectively disable the victim from telling his story or, if nothing else, just to add to his misery while he struggled to get it out.

After conviction, the defendant continued complaining, right into the state's highest court, which, I am delighted to report, entered a unanimous judgment for the prosecution. Notablogger argued the case.  Judging from the court's excellent opinion, she did a spectacular job.

Hearty congratulations and thanks to her.  Her work will now give us all an unanswerable reply when the defense bar gets on its high horse about who is for, and who is against, compassion for the vulnerable.
Kent has asked some good, and notably unanswered, questions about the court's authority to block California's plan to relieve overcrowding by out-of-state prisoner placements.  I want to take his point a step farther.  Assuming arguendo that the court had proper authority, why is it entering an order that blocks what would certainly seem to be a common sense, and quickly available, solution?

The gravamen of the original judgment was  --  remember  --  that medical conditions were constitutionally unacceptable because of overcrowding.

There are several ways to relieve overcrowding. One is to release criminals to take up where they left off (which is what most of them do, given the >50% recidivism rate). That would seem less than optimal, unless one is of the view that more crime more quickly is a good idea.

A second would be to build more prisons. This would cost a lot of money. Since California borrows to a fare-thee-well for things the governing party there views as important, such as transfer payments to its don't-work-for-a-living constituencies, borrowing would seem to be an option. But we are told (very selectively, that is) that borrowing, at least for new prisons, is a no-no. In any event, it's unlikely to happen, and even if it does, the opening of those prisons is years off.

A third option -- the one the court blocks -- is sending inmates to other, less crowded facilities. Why any sensible person would view this as a bad idea is mystifying. The answer to overcrowding is to get less crowded, no?

So what's going on?  

Barring Out-of-State Prisoner Placements

When the lawyers for the California prisoners in the Plata case were arguing against a stay of the three-judge court's order in the U.S. Supreme Court, they said, "More fundamentally, Appellants do not have to release any prisoners; they have wide latitude to substitute other methods for reducing overcrowding....  For example, Appellants could 'reassign prisoners to leased jail space,' without any impact on public safety whatsoever."

With the stay denied, Gov. Brown proposed to do exactly that, which necessarily includes out-of-state facilities, as there is only so much capacity within the state.

Today, as noted in the News Scan, the three-judge court extended the deadline by a measly four weeks and ordered the parties to "meet and confer."  Okay, but then there is this provision in the order:  "During the meet-and-confer process and until further order of the Court, defendants shall not enter into any contracts or other arrangements to lease additional capacity in out-of-state facilities or otherwise increase the number of inmates who are housed in out-of-state facilities."

Excuse me, your honors, but exactly by what authority do you order California's executive officials, and thereby effectively order the State of California, not to employ additional out-of-state capacity to house its prisoners?

News Scan

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Convicted Cop Killer Executed: An Ohio man convicted of murdering two men in a 1994 shooting rampage at his apartment complex was executed this morning by lethal injection.  The Associated Press reports that 61-year-old Harry Mitts Jr. yelled out racial slurs before murdering his neighbor's boyfriend and then proceeded to shoot and kill a police officer who was responding to the scene.  Mitt's execution resulted in the state of Ohio using its last dose of pentobarbital, the sedative used in lethal injections, state officials plan to announce their new execution method next week.  

California Granted Prison Overcrowding Extension: A panel of federal judges has granted Governor Brown a 30-day extension on their order to reduce prison overcrowding by almost 10,000 inmates.  Paige St. John of the Los Angeles Times reports that Governor Brown originally asked for a three-year extension in order to address the issue, but was instead given only a month to collaborate with attorneys representing prisoners and find a solution to the issue of overcrowding.  The deadline to reduce overcrowding has been moved back from December 31 to January 27, 2014.  

Woman Arrested After Killing Suspected Pedophile: A Colorado woman has been arrested after admitting to police she murdered a man because a child had accused him of sexually abusing her.  The Associated Press reports that 30-year-old Forsythia Owen went to the alley where the man slept and beat him to death with a baseball bat, resulting in a skull fracture and multiple broken bones.  The victim, 42-year-old Denzel Rainey, had no previous or pending charges related to sexual offenses at the time of his death. 

Colorado Parole Policies Jeopardizing Public Safety: Efforts made by Colorado prison officials to keep parolees out of state prison facilities in an attempt to control prison population has left city police frustrated and concerned about public safety.  The Associated Press reports that a program implemented in 2011, known as the Colorado Violation Decision Making Process, addresses risk factors for each parolee and utilizes a point-based system to determine the proper punishment for the particular violation.  Police report that violations such as stealing, skipping out on mandatory drug tests, and possession of a dangerous weapon are examples of crimes that don't necessarily result in the parolee being sent back to prison.  

National Punctuation Day

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That is today, according to this website.  "A celebration of the lowly comma, correctly used quotation marks, and other proper uses of periods, semicolons, and the ever-mysterious ellipsis."  Let's not forget the apostrophe, easily the most misused punctuation mark in the land.

News Scan

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California Bill Would Prohibit Deportation of Illegals: Governor Brown has been presented with a bill that will prohibit police officers from helping to deport some of the state's illegal immigrants.  William La Jeunesse of Fox News reports that the Trust Act applies to illegal immigrants arrested for minor crimes, and would bar the police from reporting the crimes to Immigration officers.  Those not in favor of the bill, which must be either signed or vetoed by October 13, believe the law puts citizens in danger and is a violation of federal law.

Lawyers for Boston Bomber Ask for More Time to Prepare Defense: Lawyers for accused Boston Marathon bombing suspect Dzhokhar Tsarnaev asked for more time in order to develop a proposal aimed at blocking prosecutors from seeking a death sentence.  The Associated Press reports that federal authorities are planning on announcing their decision on whether or not to seel the death penalty by the end of October.  Tsarnaev has been charged with 30 counts for his role in the bombings, 17 of the charges are eligible for the death penalty.

Los Angeles Homicide Rate May Increase: Los Angeles County saw ten homicides over the weekend, leading some to believe this may be the first year since 2005 that the homicide rate has been higher compared to the previous year.  Patrick Healy of NBC 4 reports that Los Angeles County has seen increases in both violent and property crimes after experiencing decades of declining crime rates.  Counties across the state have reported increases in crime rates since the implementation of Realignment in 2011.

When Prosecutor Turns Thug

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Professor R. Michael Cassidy of Boston College Law School had a long and, so far as I know, distinguished career as a Massachusetts prosecutor.  He has been teaching law for the last 17 years.  He has recently written a piece, which can be found here on SSRN, in which he takes the view that prosecutors have an ethical duty as, in effect, "ministers of justice," to support (if not campaign for) what he terms "sentencing reform."

By that phrase, Prof. Cassidy means something specific:  He means that prosecutors are ethically obligated to support an end to many or perhaps most mandatory minimum sentencing statutes.  In the SSRN abstract, the argument is made that the prosecutor's ethical responsibilities (emphasis added):

...compel her to join in the effort to repeal mandatory minimum sentencing provisions for most drug and non-violent offenses.  Not only are mandatory sentences in most instances unduly harsh, coercive, and inefficacious, but they allow for an arbitrary and discriminatory application that is essentially unreviewable by courts.  The author distinguishes this argument against mandatory minimum penalties from the so-called "Smart on Crime" movement, by grounding a prosecutor's duty to promote sentencing reform in ethical reasoning as opposed to pragmatic or cost-savings considerations.

When a prosecutor has an ethical duty and breaches it, he should be and is subject to discipline  --  a reprimand, suspension from practice or, in severe cases, disbarment. Unless I am missing something, then, a prosecutor who does not speak out to support Prof. Cassidy's views on mandatory minimum sentencing should, by the Professor's logic, be punished, perhaps severely.

Does anyone see anything wrong with this? 
As amended in 2006, the Antiterrorism and Effective Death Penalty Act requires the US Attorney General to certify if a state has provided counsel for indigent death row inmates for their state collateral review.  If so, the state gets the benefit of streamlined review in federal court.  The 2006 amendment also requires the AG to promulgate regulations for the procedure of this review, not the substance.  DoJ has dragged its feet for an astonishing and inexcusable seven years, derelict in its duty to implement a law that was passed to speed things up.

Last April, Arizona Attorney General Tom Horne got tired of waiting and applied without the regulations.  See this post.  After DoJ refused to decide until it finished its foot-dragging on the regulations, Horne took the case to the DC Circuit for review.  See this post.  That proceeding is still in its preliminary stages.

That was apparently the incentive necessary to get DoJ off its institutional duff.  On Friday night, when things are done in Washington that the doers don't want in the paper, the regs came out on the Internet.  They are in today's printed Federal Register here.  My comments from last March are here.

In the pattern typical of the Obama Administration, the regs defy the law where DoJ doesn't like what the law says.

News Scan

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Paroled Murderer Charged in Cold Case Killing: A man convicted of second-degree murder and paroled after spending only eight years behind bars has been arrested in the cold case murder of a Utah girl.  The Associated Press reports that 46-year-old Joseph Simpson was arrested and charged with aggravated murder after authorities were able to find a DNA match on a cigarette butt at the scene left over 18 years ago.  17-year-old Krystal Beslanowitch was murdered in December of 1995, only eight months after Simpson had been paroled for his second-degree murder charge. 

California Signs Contract with Private-Prison: The state of California has signed a contract with a private prison contractor to lease cell-space for 1,400 inmates in an effort to alleviate the issue of overcrowding.  Paige St. John of the Los Angeles Times reports that the deal includes two lower-security privately owned prisons in California, and will begin receiving inmates by the end of the year.  Governor Brown has asked a panel of federal judges to delay the court-ordered release of 9,600 inmates for three years, and is expected to hear their ruling by Friday.

Death Row Inmate Loses Appeal: A man convicted in the quadruple-murder of an Alabama family and sentenced to death for the crime has lost his latest attempt at an appeal.  Kelsey Stein of reports that 35-year-old Michael Samra accompanied and participated in the murders of his friend's father, step-mother, and her two daughters after the man refused to let his son borrow his truck.  Samra is appealing his death sentence due to the fact that his co-defendant, who was 16 at the time of the murders, had his death sentence commuted to life in prison after a Supreme Court''s 2005 ruling in Roper v. Simmons which announced that the Eighth Amendment prohibited the execution of murderers under the age of 18.

You Can't Cheat an Honest Man...

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...but apparently it's not that hard to con a con artist.

Liberal hero Jesse Jackson, Jr. looted several hundred thousand bucks from his campaign funds to buy all manner of goodies, including a Rolex watch or two.  After his conviction and jail sentence, his ill-gotten gains were forfeited to the government, which was preparing to auction them off.  Only there's a hitch.  As the Marshals Service now says:

The U.S. Marshals Service today cancelled the auction of forfeited assets from the Jesse Jackson, Jr., case before the U.S. District Court for the District of Columbia. After receiving legitimate concerns about the authenticity of the guitar purportedly signed by Michael Jackson and Eddie Van Halen and out of an abundance of caution, the Marshals Service will conduct a secondary review of all the assets. Once the review is complete, a decision will be made whether to repost any assets for sale by auction. 

If you were planning go get a Rolex for yourself from this auction, you might want to rethink that plan in favor of buying a truly authentic one from the guy who comes up to your car window while you're in the grocery store parking lot.

News Scan

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Texas Executes Former Gang Member: A Texas man convicted of murdering four women in 2002 was executed last night after being sentenced to death in 2003.  Karen Brooks of Reuters reports that Robert Garza, along with three other men, were carrying out a gang hit when they shot a vehicle carrying six women more than 60 times, leaving four of the women dead.  The three other men involved were also convicted in the murders and are currently awaiting execution. 

Chicago Declared as the Nation's Murder Capital: The FBI's recent release of crime statistics has led them to declare Chicago as the nation's murder capital, bumping New York City down a spot to second.  Jennifer Cruz of reports that Chicago saw 500 murders in 2012 as opposed to 431 the year prior, while New York had 419 compared to 515 in 2011.  Nationwide  there were more than one million violent crimes reported in 2012, which include crimes such as homicide, rape, and aggravated assault.

Woman Given Life Sentence After Torture Conviction: A Northern California woman who tortured her fiancé's daughter while he was in prison has been convicted of torture and sentenced to life behind bars.  Andy Furillo of the Sacramento Bee reports that Duewa Lee was convicted of torture and 10 other felony counts after abusing the girl almost to the point of death over a two-month period.  The girl, who was 12 at the time of the abuse, had been whipped with electrical cords, burned with an iron, thrown down stairs, and repeatedly kicked in the stomach before escaping her home and alerting strangers to what had been happening to her.  

Can America Survive Its Corroded Culture?

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Peggy Noonan in the Wall Street Journal has a disturbing column this morning about America's prospects for the future.  Since the Syrian crisis and Obama's not-so "red line" appeared, the question has come front and center:  What, any longer, is America's role in the world?

You might be wondering what specifically that has to do with crime.  Stay tuned.

Ms. Noonan reports that, having listened to some wise and experienced people, the question is not whether America is any longer a great military power. We are.  The question is whether we are any longer a great nation.  Ms. Noonan continues:

The world knows a lot about us, and in ways removed from specific military actions. Their elites come here, and increasingly their middle class. They know our unemployment problem--it's not a secret. They take the train from New York to Washington and see the abandoned factories. They know about our budget problems, they know who holds our bonds. They read about the kids who are bored so they killed the visiting Australian baseball player, and the kids so bored they killed a World War II veteran. They read about the state legislator who became a hero because she tried to make sure babies can be aborted at nine months--they see the fawning interviews. They go home with the story of the guy who spent his time watching violent videos and then, amazingly, acted out his visions of violence at the Washington Navy Yard. They notice our mass killings are no more than two-day stories.

Some Convictions Stick Better than Others

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Liberals were all atwitter when Tom DeLay, the former House Republican Majority Leader, got convicted of money laundering in Texas state court and sentenced to three years imprisonment.  If I recall correctly, the NYT wrote an editorial all but cackling about DeLay's looming time behind bars.


The conviction was overturned today by the Texas Court of Appeals, which apparently entered an outright acquittal, meaning that no retrial is possible.

I did not follow the case in detail.  I know that the prosecution's theory was novel and the evidence skimpy (insufficiency of the evidence was the basis of the reversal). Cases of this nature are hard to prove, as we saw in the John Edwards prosecution.

I wonder if this is going to get entered in the Innocence Project's file under "Exoneration." Somehow, I'm guessing not.

Debate on Miller v. Alabama Retroactivity

The New York Times's Room for Debate feature has this debate on retroactivity of Miller v. Alabama, with yours truly holding up one side versus four others.  Our pieces were limited to 300 words.

Update:  Rereading William Baude's piece after seeing his comment to the original post, perhaps I should say there were three on the other side and one neutral.

Update 2:  Will has a post on the debate at the Volokh Conspiracy.

News Scan

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Jury in Serial Killer Case Recommends Death Sentence: The jury for a California man known as the 'alphabet killer' has recommended the death penalty for his role in the murders of four women between 1977 and 1994.  CBS San Francisco reports that the murders were labeled as cold cases until 2009 when a routine probation search of Joseph Naso's home turned up a considerable amount of evidence linking him to the unsolved cases.  The judge overseeing the case still has 20 days to confirm the sentence, and maintains the option of handing down a life sentence instead.

Convicted Murderer Kills Again: A California inmate serving a life sentence for first-degree murder is the lone suspect in the murder of his cellmate.  The Associated Press reports that 40-year-old Steven Brenneman, who was serving an 18-year-sentence for forcible rape, was found dead in his cell earlier this week from fatal stab wounds and blunt force trauma to the head.  Brenneman's cellmate is being held in isolation while authorities continue to investigate the murder.

Mom Charged in her Children's Murders Asks for Death Sentence: A woman accused of murdering her two children over the weekend has asked a judge to sentence her to death.  The Associated Press reports that 42-year-old Marilyn Edge appeared in front of a judge via live-video for her arraignment, and when asked if she wanted her arraignment postponed, Edge replied "Only if you promise me the death penalty."  Edge, who had just recently lost custody of her two children, allegedly murdered her children in a Southern California hotel room during their vacation to Disneyland.  

Justice Scalia gave a talk at George Washington University yesterday.  He emphasized the structural aspects of the Constitution, including federalism and the bicameral legislature, as underappreciated factors in the preservation of freedom.  Alex Hopkins has this story at the Washington Times.  Tony Mauro has this post at BLT.

Elizabeth Wydra of the Constitutional Accountability Center has this post on the speech, giving us a fine example of the straw man fallacy.  She discusses the fact that the Constitution was drafted to make a federal government more robust than the anemic Articles of Confederation government.

Of course, conservatives like Justice Scalia might not like this part of our constitutional story so much, because it helps to refute the claim that the Constitution is a document that is primarily about limiting government.
Huh?  What "conservatives like Justice Scalia" make such a claim?

News Scan

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California asks for Prison Extension: California officials have asked a federal court to grant them a three-year extension in order to move prisoners to new facilities rather than releasing them back into California communities.  Sam Stanton of the Sacramento Bee reports a Senate bill signed last week by Governor Brown will allow $315 million to be spent on a variety of methods being considered to reduce the overcrowding issue in the state's prison facilities.  The extension will allow the state to move 8,500 inmates to facilities both in and out of the state rather than releasing them.

Connecticut Death Penalty Case Sparks Debate: Jury selection has begun in a triple-murder case out of Connecticut where prosecutors are seeking the death penalty, but there is one problem that may stand in their way; the state voted to abolish of the death penalty in 2012.  Dave Collins of the Associated Press reports that Richard Roszkowski was convicted and sentenced to death in 2009, but an error took place before jury deliberations and the judge ordered a new penalty phase.  Connecticut's repeal of the death penalty was supposed to apply to murders committed after April of 2012, however, Roszkowski's attorneys believe that eliminating the death penalty for some people and keeping it for others in unconstitutional. 

California Governor Allows Early Parole Hearings for Juveniles: Governor Brown signed a bill late Monday night allowing inmates who committed serious crimes as juveniles but were tried as adults to apply for early parole.  Anthony York of the Los Angeles Times reports that the new law will allow eligible offenders to have their cases reviewed for parole as early as 15 years into their mandated sentence.  The law will affect the more than 6,500 inmates in California prisons serving sentences handed down when they were juveniles.  

A More Perfect Union

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We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

On this date 226 years ago, George Washington et al. signed the proposed Constitution and sent it to Congress with a recommendation to submit it to the States for ratification.

FBI Releases Final 2012 Crime Stats

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The FBI has released the final statistics for its annual Crime in the United States reports.  Press release is here.

In prior posts (here and here), we examined preliminary data for indications of whether California's "realignment" program, effective October 2011, may have resulted in an increase in crime.  For the final data, as with the preliminary, all we can say is that the data are consistent with that hypothesis but definitive proof is not possible at this time.

With the FBI final data, we can compare statewide totals across states.  California's property crime is up 6.8%, compared with a national decline of -0.9%.  Property crime is the type most likely to be affected by realignment, as the program is not supposed to have any effect on the sentencing of violent criminals.  (It has more than advertised, but that is another topic.)

Other states that have significant rises in property crime are mostly small-population states:  South Dakota, Montana, Nevada, Alaska, West Virginia, Vermont, and North Dakota, in that order.  (California would come after Nevada in the ordered list.)  What's with the increases in the small states?  It could be that statistics are simply more volatile there.  Montana, West Virginia, and Alaska bounced back up from significant drops the year before, so this could just be "reversion to the mean."  Something else may be at work in the Dakotas.  South Dakota's property crime rate is up to a level not seen for 10 years.  Could be the oil boom.

Among medium and large states, California stands out.  Oregon's property crime increase is a shade more than half of California's.  Colorado's is lower.  Washington's is only a third.  And it's sharply downhill from there.  Texas is down -3.2%.  Florida and Ohio notched -7.0% and -7.1% drops, respectively.

News Scan

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California Prison Guard Murder Sparks Death Penalty Challenge: The 2008 murder of a California prison guard has sparked  the latest challenge to the federal death penalty as cruel and unusual punishment.  Michael Doyle of the McClatchy Washington Bureau reports that the Supreme Court will hear the petition from one of the two inmates charged with the murder arguing a death sentence would be unconstitutional because the inmates involved were intoxicated and the murder wasn't premeditated.  The defense contends that although the victim was stabbed 27 times, his client did not intend to kill him and regrets his actions.

Mass Shooting at Washington Navy Yard: A shooting this morning at the Washington D.C. Navy Yard has left at least 12 people dead, including one of the suspected shooters.  The Los Angeles Times reports that authorities are continuing to look for two other potential suspects who witnesses say were dressed in military-style clothing.  So far, police have not identified a motive but don't believe it was related to terrorism. 

Man who Murdered NY Police Officers Sentenced to Death: A former gang member was sentenced to death in federal court  for his role in the execution-style murder of two New York City policemen.  The Associated Press reports Ronnell Wilson was originally sentenced to death in 2007, but won a retrial based on an error during jury instructions.  During the retrial, the prosecution noted several instances of misconduct by Wilson, describing him as a "bad candidate for a life term."

News Scan

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Illegal Immigrants in California to get Driver's Licenses: California's Legislature has sent a bill to Governor Jerry Brown that will allow illegal aliens to get driver's licenses.  Christopher Cadelago and Jeremy White of the Sacramento Bee report that illegals will be allowed to apply for the license as long as they can show some type of an approved form of  identification to the Department of Motor Vehicles.  The governor has indicated that he supports the bill and will be signing it into law. 

Alabama Supreme Court Decides how Juvenile Murderers can be Sentenced: The Alabama Supreme Court issued a ruling earlier today holding that judges may now elect to give juvenile murderers a sentence of life in prison with or without the possibility of parole.  Kent Faulk of reports that prior to the ruling, Alabama law required a mandatory sentence of LWOP for juveniles convicted of aggravated first degree murder.  The Supreme Court ruled that the mandatory LWOP for juveniles was unconstitutional and has said judges must have sentencing discretion.

Man Murders his Niece to 'End her Misery': An Illinois man has been charged with murder after police say he slit his niece's throat and stabbed her multiple times in the heart.  Willis Robinson of the Daily Mail reports that 22-year-old Justin DeRyke told authorities the young girl fell on a stick and impaled herself, so he decided to slit her throat to "end her suffering."  The girl's autopsy showed defensive wounds on her hands leading authorities to believe she fought for her life, contradicting the uncle's version of the story.

True But Misleading

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Is making a statement to a grand jury that is literally true but misleading a violation of 18 U.S.C. §1503, obstruction of justice?  The Ninth Circuit so held today in United States v. Barry Bonds, No. 11-10669.

On its face, the statute seems to be about bribing or intimidating jurors and other court officials, not about making false statements, much less about misleading ones.  We have other laws for people who lie in court.  See 18 U.S.C. §§1621-1623.
Following up on Bill's post yesterday, the WSJ has this video.  "Editorial writer Allysia Finley on how a rule change removing criminal job application questions helped an embezzler return to California's state payroll."
Swallowing whole the absurd assumption that we should follow the "example" of what is breezily referred to as "the rest of the civilized world," death penalty abolitionists admonish us that only the wahoo, cowboy, bloodlusting USA continues the practice of capital punishment.

Now if I were to play the race-huckstering game so in vogue these days, I would point out the implicit racism in that admonition, since it tacitly accuses areas that have an active death penalty (the Orient, Africa and the Mideast among them) of being uncivilized  -- uncivilized, that is, in contrast to the more refined (and considerably whiter) folk in Europe. But I won't.  Race-huckstering is a sleazy and dishonest game when others play it, and I decline to join in.

I will point out, however, the inconvenient truth our adversaries want to ignore, a truth illustrated by today's story about justice in a fully civilized, if non-white, country:

An Indian judge sentenced four men to death for the gang rape and murder of a 23-year-old student last year, sending a stern message in a case that transfixed India as the country struggles to curb widespread violence against women.

The whole story is carried in the Wall Street Journal, here.

Commit a Crime, Get a Job

Now you might think that if you're a convicted killer or a child rapist, that could count against you with a potential employer.


As Kent noted in this post, Martin Luther King's dream was that individuals be judged based on the content of their character.  Intentional behavior is, of course, the best indicator of character, which is otherwise inchoate.  Intentional criminal behavior would seem to be among the more telling clues to a person's character, and very serious criminal behavior, all the more so.

The idea that character is unimportant in a job is beyond preposterous.  Honesty, a commitment to non-violence, reliability, trustworthiness, willingness to give a day's work for a day's pay, are all not merely useful but essential characteristics of every employee.

But not to this Administration, which sees judgment on the basis of demonstrated character, not as the fulfillment of MLK's dream, but of a Fascist Plot to Oppress the Helpless.

Don't believe me?  I don't blame you.  Most unfortunately, Paul Mirengoff at Powerline spills the beans here.  This is one more instance in which Racial Whinerism becomes the Petri dish of, and then the spoils system for, crime.

News Scan

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California Bill Changes Penalties for Sex Offender Parolees: The California Legislature has passed a bill which purports to increase the penalty for paroled sex offenders who remove or tamper with their GPS tracking device.  The Associated Press reports that the bill would allow the parole board to levy a six-month sentence in county jail for removing the device, however, the bill does not require that the punishment be fulfilled in actual custody.  This means that in California counties where jails are  overcrowded, the sex offender can be released on house arrest, or even back to parole.  The original version of the bill, SB57, made the removal of a GPS device a new felony, and doubled the penalty for a second offense. The legislature's amendments reduce this to a parole violation with the possibility of no consequences, no matter how many times it happens.  

Bizarre Murder Plot Leads to Arrest: A Massachusetts man who planned to kidnap children and lock them in a dungeon before raping and eating them will face a sentencing hearing next week after pleading guilty to multiple serious and violent crimes.  Lateef Mungin of CNN reports that authorities arrested 40-year-old Geoffrey Portway after finding more than 4,000 images and videos of child pornography, including images of children being cooked and prepared to eaten, on his home computer.  Authorities also discovered a locked basement in Portway's home that contained a child-sized coffin, a steel cage, and butchering kits.

ICE Launches App to Catch Sex Predators:  The Federal Immigration and Customs Enforcement agency has announced the launch of an app for mobile devices that seeks public help in identifying criminals involved in child pornography and sex abuse.  Stephen Dinan of the Washington Times reports that the Operation Predator App is currently available on Apple iTunes and will soon expand to other smartphones. The app shares images of people involved in child sex crimes and allows the public to anonymously report information on a suspect's identity and location.

What Punishment for this Crime?

A few years ago, Evan Broderick was convicted of possessing a stolen gun.  He was sentenced to three years in prison.  He was moved to the high security prison in Tehachapi after attacking another inmate.  No angel, to be sure, but we can all agree he did not deserve death.

But death is what he got.  Travis Frazier stabbed him to death in the exercise yard.

A year earlier, Travis Frazier had been sentenced to life in prison without parole for another murder.

Anyone who thinks Frazier should not be sentenced to death is invited to explain in the comments what sentence should be imposed and why that would be sufficient punishment for the crime.

BTW, Frazier was, in fact, sentenced to death today, reports.  Background on Broderick is provided in this story in the Santa Rosa Press Democrat in 2009.

The Truth Optional System

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Yahoo News carries the story of a fellow, Matthew Cordle, who made a widely circulated YouTube confession that he killed a man in a drunk driving collision. He said at the time that he took full responsibility and would plead guilty.


When he made his appearance today, no such luck.  He pleaded "not guilty," notwithstanding the fact of his (extremely) public confession.  So what gives?

His attorneys told ABC News that it's a common maneuver to get the legal ball rolling, and that they planned on changing the plea to guilty immediately....Judge Lynch said that Cordle's attorneys are trying to game the system. Under Ohio law, entering a guilty plea locks in the judge -- in this case Lynch. She said that she believes Cordle's team got spooked after she told them she didn't know how she'd sentence Cordle, who faces anywhere from two to eight and a half years in prison.

Here's the explanation:

ABC News Chief Legal Affairs Anchor Dan Abrams said that these factors can all make a difference in sentencing.  "It seems pretty clear he's going to plead guilty," Abrams said. "Once you commit to pleading guilty, there are only one a few questions left: What's going to be the sentence? And who determines that? The judge -- and which judge you get -- can make a big difference."

It's Up to You, New York, New York

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New York had its primary election yesterday.  Policing will be front and center in the general election for mayor.  Mary Kissel interviews New York Post editorial writer Robert George on the election in this video at

News Scan

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California Drug Raid Nets Dozens of Arrests: A Southern California drug task force concluded their undercover drug operation on Tuesday after arresting 65 suspects.  Kristy Wolski of Fox 5 San Diego reports that officers recovered over 150 pounds of methamphetamine, cocaine, and heroin, along with more than 70 guns and a live hand grenade.  Some of the individuals arrested will face federal drug trafficking charges which could result in a life sentence.  Under California law drug dealing is a non-serious crime punishable with a county jail sentence.

Oklahoma Executes Death Row Inmate: An Oklahoma man convicted of first-degree murder was executed Tuesday evening by lethal injection.  The Associated Press reports that 61-year-old Anthony Banks was already serving a life sentence for a previous homicide when DNA evidence linked him to the 1979 murder of a 25-year-old woman for which he was eventually sentenced to death.  Banks became the fourth person executed by the state of Oklahoma this year.

Inmate Charged After Attacking Guard: A North Dakota inmate already serving a life sentence for kidnapping and murder has been charged with attempted murder after attacking a prison guard with a homemade knife.  The Associated Press reports that 43-year-old John Bridges was sentenced to life plus 20 years after pleading guilty to the kidnapping and ax murder of another man.  Prior to the attack on the guard, Bridges was being held in the prison's administrative segregation unit.

Senators Recalled Over Gun Control Support: Two Colorado Democrats were recalled from the state senate yesterday due to their support of tougher gun control laws.  Joseph Weber of Fox News reports that Colorado voters recalled the state's senate president and another senator based upon their votes in support of 15-round limits on ammunition magazines and tougher background checks during private gun sales.  This is the first time in Colorado history that state lawmakers have been recalled.

The Real Heroes Are Dead

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Twelve years ago our country suffered the largest mass murder in its history.  In any sane discussion, that would have put an end to the view that there is never a case that warrants the death penalty.  Of course that hasn't happened because, among other things, a sane discussion is not all that often to be had with those who believe that America (or "Amerika") brought it upon itself, that cold-eyed killers are really victims, and all the rest of the swill that passes in academia, among numerous other places, as high-mindedness.

It's easy to despair of the degraded culture that is the Petri dish for this kind of thinking. And there's no use in denying that the culture we have now has slid a long, long way down the hill.  Cynicism, deceit and racial huckstering from the Attorney General himself are only a microscopic part of it, as bad as they are. 

But there is still room for hope.  The culture still produces heroes.  Not phony "heroes" of the kind we hear about all the time.  Real heroes.

Scott Johnson at Powerline tells the story of one of them today, the anniversary of his death. 

The Unwilling Petitioner

Yesterday, Howard Mintz of the San Jose Mercury-News reported on the case of David Allen Raley, one of the 15 California death row inmates who have completed all the usual reviews of their cases.  "Armed with a new order from the California Supreme Court, Raley has revived his appeals with a claim that he was mentally retarded at the time of his 1985 crime -- a finding that would spare him from execution under a 2002 U.S. Supreme Court decision."

Today, Mintz reports it is not Raley making the claim after all.  It is the lawyers appointed to represent Raley, over his vehement objection.

Death row inmate David Allen Raley on Monday asked a Santa Clara County judge to fire the court-appointed lawyers arguing that he should be spared execution because he is mentally retarded.

But it appears Raley's defense team will be allowed to press forward with the legal argument, whether the condemned killer likes it or not.

After clearing the courtroom to hear from Raley, Superior Court Judge Linda Clark, without commenting on the representation issue, moved forward with a special hearing to determine if Raley should be given a reprieve under a 2002 U.S. Supreme Court ruling that bars the execution of the mentally retarded.
The situation here is a bit murky.  We don't know what happened in chambers between the judge and Raley.  We don't know if this is the first time he raised his objection.  We don't know if his lawyers gave him notice of the claim they were making on his behalf so as to enable him to object earlier.

If a mentally competent inmate wants to fire his lawyers and dismiss his petition, he should be allowed to do so.  If this motion is made for the first time at the last minute, though, it may be just as well to proceed with the hearing, given that the preparation has been done, and the testimony will shed light on whether Raley is indeed competent to make the decision. 

If the day Raley was brought from Big Q for the hearing was the first day he knew that his lawyers were claiming he is retarded, they have some explaining to do.

News Scan

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Florida Cannibal Sentenced to 60 Years: A Florida man who ate the brains and eyes of a man he murdered with an ax has been sentenced to spend 60 years in a maximum-security psychiatric hospital.  The Associated Press reports that a panel of three judges found 36-year-old Tyree Smith not guilty by reason of insanity in July after several witnesses testified that he posed a significant threat to the community.  Smith will be committed to a psychiatric hospital in Connecticut to fulfill his sentence.

Mississippi Begins Releasing Inmates with Electronic Monitors: The Mississippi Parole Board has begun releasing inmates convicted of nonviolent crimes under one condition; they must wear an electronic monitoring ankle device.  The Associated Press reports that releasing inmates and electronically monitoring them is saving the state money since they no longer need to pay for their housing, food, and medical expenses.  In the month of August, 60% of the 715 inmates that applied for early release were granted their request.

Fatal Gang Rape Trial Ends in Guilty Verdict: The high profile gang rape of a young female student on a bus last December in India is finally coming to an end after a judge found four men guilty.  Fox News reports that the men were found guilty on several counts of rape and murder and face a possible death sentence when they are brought before a judge tomorrow.  Another man, who was also involved in the attack, hung himself in his jail cell prior to the beginning of the trial.

A Conservative Win Down Under

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The conservatives won Australia's election over the weekend.  The coalition of the Liberal and National Parties ousted the Labor Party.*

Crime was not the central issue, but I was curious what the new government's approach would be.  The coalition's crime policy is here.  The overall tone is a tough-on-crime one.

News Scan

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Youthful Offenders to get a Second Chance: California inmates serving life sentences handed down to them when they were juveniles may have a chance at parole thanks to a new bill recently passed by the state Assembly.  The Associated Press reports that SB620 would require juvenile offenders prosecuted as adults and given life sentences to serve a lengthy minimum sentence before appearing in front of a parole review board to prove they have been rehabilitated.  The bill will now head to the state Senate for a final vote.

Inmate on the run After Stabbing Officer: A Michigan inmate is on the run after authorities say he stabbed a sheriff's deputy, took another officer hostage, and carjacked a motorist outside of a Detroit courthouse.  Fox News reports that 25-year-old Derrick White attacked the deputy and stole his uniform while he was being moved from a courtroom to a holding cell.  Prior to his escape, White was in a court hearing related to a previous robbery charge. 

Former Principal Sentenced to Six Life-Sentences: A former high school principal from Florida has been sentenced to six life sentences plus thirty years after taking a plea deal that allowed him to escape the death penalty.  AP reports that Anthony Giancola went on a rampage in 2012 stabbing four people in a group home, attacking two people with a hammer at a separate location, and ran over a 13-year-old boy on a bicycle.  Giancola pled guilty to two murders, four counts of attempted murder, and two counts of aggravated battery.

A Deal on California Prisoners

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Cal. Gov. Jerry Brown and Senate honcho Darrell Steinberg have announced a deal to end the Moonbeam v. Moonbats fight on prisoners I noted a couple weeks ago.

Steinberg's rendition of the deal is here.  The deal calls for a request to the three-judge panel to delay the December 31 deadline for getting down to the panel's completely arbitrary population figure.  If the judges say no, then Brown's plan to expand capacity goes into effect.  Steinberg's release does not say that dismissing the pending appeal in the U.S. Supreme Court is part of the deal.

There is funding for increased rehabilitation programs.  I was struck by this paragraph (emphasis added):

Changes the funding formula for SB 678 (2009), which was affected by realignment in a way that dramatically reduced how the savings to probation were calculated. SB 678 provides performance-based grants to counties who have established programs that successfully reduce the number of felony probationers who return to prisons. With this change, probation's continued success with the felony probation offender population will result in approximately $100 million more for evidence-based probation practices under the new formula.
Steinberg defines "success" as the probationer (parolee?) not returning to prison.  We at CJLF define rehabilitation success as not committing any more crimes.  Those are not the same thing.  If a "success" rate can be boosted, with a resulting flow of money, by letting a probationer or parolee commit new crimes and get nothing but a slap on the wrist wave of a disapproving finger, then such public-endangering dispositions are going to become more common.  (We mustn't slap anyone; that would be violence.)

The reality is that major reductions in recidivism through rehabilitation programs are not going to happen.  Here and there a program may help someone go straight who otherwise would not have, but most releasees will either go straight or stay crooked on their own regardless of what the programs they are subjected to.

Directing the flow of funding to programs that have been proved successful is a basically good idea, but the devil is in the details.  Success must be carefully defined and validly measured.
Last February, I noted that "incredibly, a trial judge in Seattle has held that the prosecutor acts improperly in considering the strength of the case for guilt in deciding whether to seek the death penalty...."  I also wrote a follow-up post in May.

Last Thursday, the Washington Supreme Court unanimously reversed:

The King County prosecuting attorney followed the statutory requirements when he considered whether mitigating circumstances merited leniency and when he determined that they did not. The fact that he also considered the strength of the case is inconsequential. Indeed, holistic assessments that take into account various mitigating circumstances, the facts of the case, and the strength of evidence are just the type of individualized determinations we require of our prosecutors. Without a flexible weighing of various factors, prosecutors likely would make standardless decisions that violate equal protection principles. For these reasons, we reverse the trial court and remand this matter with instructions to reinstate the notices of special sentencing proceeding so that the capital prosecutions against McEnroe and Anderson may finally proceed to trial.

News Scan

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Man Free on Probation Charged in Double Murder: An Ohio man out on probation has been charged with the murder of two men found last week in a burning car.  John Futty of The Columbus Dispatch reports that Nicholas Roseberry was released from jail eight weeks ago after he struck a deal with a prosecutor and agreed to testify in an upcoming murder trial in exchange for his release.  Prior to his release, a judge overseeing the case told Roseberry that he didn't think he would succeed on probation and that he would be monitored closely.

Woman on Death Row Set Free While Awaiting Retrial: An Arizona woman who was convicted of arranging the murder of her 4-year-old son and was sentenced to death will be released and allowed to remain free until her retrial begins.  The Associated Press reports that a federal appeals court overturned Debra Milke's conviction due to concerns over the validity of her alleged confession after the murder.  Prosecutors have said they will be seeking the death penalty when Milke is retried later this year.

Gang Member Sentenced to Death: A Los Angeles County judge has sentenced 44-year-old gang member Charles Ray Smith to death after his conviction for multiple murders.  Jack Leonard of the LA Times reports that Smith was responsible for the murders of a 10-year-old boy, the boy's uncle, and a teenager in 2006.  Although none of the victims had any known gang ties, prosecutors believe the murders were in retaliation for the killings of Smith's fellow gang members.

Ariel Castro Failed By System

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The Onion reports:

ORIENT, OH--In yet another glaring indication of the nation's broken criminal justice system, Ohio correctional officers discovered the body of inmate Ariel Castro, a Cleveland man serving a life sentence on rape and kidnapping charges, hanging from his jail cell Tuesday night, prompting strong calls for action from reformers looking to correct America's failed correctional policy.

News Scan

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Teen Charged with Murder After School Stabbing: One 17-year-old boy is dead and another is charged with his murder after a fight at their Texas high school turned deadly.  The Houston Chronicle reports that an early morning fight in the cafeteria ended with one student dying and three others being wounded after the suspect pulled out a knife and began stabbing his opponents.  The suspect, 17-year-old Luis Alfaro, has been charged with murder and is being held in county jail.

CA Bill to Help Realignment Felons: A California bill being considered by the state Senate would allow people convicted of realignment crimes (non-violent, non-serious, non-sexual) to request that a judge expunge their felony convictions.  Erika Auilar of SCPR reports that the bill would allow ex-cons convicted of property felonies, or drug dealing to check the 'no' box on job applications when asked if they have ever been convicted of a felony.  A felony conviction that has been expunged can disappear from someone's criminal record after ten years if the individual isn't convicted of an additional crime.

California Inmates End Hunger Strike: A two-month long hunger strike taking place in prisons across California has ended after lawmakers agreed to listen to complaints concerning the treatment of inmates.  KTVU and the Associated Press report that the hunger strike, which at one point involved more than 30,000 inmates, began over concerns of the use of solitary confinement.  The hearings will begin later this fall, and will address complaints surrounding the solitary confinement of prison gang leaders. 

Colorado Teen Accused of Stabbing Mom 79 Times: A Colorado teenager is facing murder charges after allegedly stabbing her mother 79 times in the face and neck in the bathroom of their home.  Katherina Cavazini of HLN reports that 18-year-old Isabella Guzman is being held without bond in a Colorado jail on first-degree murder charges.  Guzman was scheduled to be arraigned earlier this morning, but the hearing was postponed after she refused to leave her cell.

The Case for Mandatory Minimums

I don't want to beat this horse to death, but there have been a few requests for my opening statement in my Tuesday, September 3 Federalist Society debate with Prof. Doug Berman. Our discussion concerned the Attorney General's new directions to federal prosecutors about mandatory minimums and, more generally, balancing judicial versus legislative power in sentencing.

My remarks follow the break.

News Scan

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Kansas Lawmakers to Rewrite 'Hard 50' Law: Members of the Kansas Senate will vote today on changes being made to the state's 'Hard 50' law; a state law that automatically imposes a 50-year sentence on convicted murderers with aggravating circumstances.  John Milburn of the Associated Press reports that the push to amend the law came after the Supreme Court struck down a similar law in Virginia and ruled that only a jury, not a judge, should be able to hand down such a strict sentence.  Some of the aggravating circumstances that could lead to a 'Hard 50' sentence include prior felony convictions, murder for hire, and murder to avoid arrest or prosecution. 

Lawyers in Aurora Massacre Want DP Ruled Unconstitutional: Lawyers for James Holmes, the man accused in the Aurora movie theater murders, filed several motions in an effort to have Colorado's death penalty law ruled as unconstitutional.  Greg Campbell of the Daily Caller News reports that a total of 21 motions were filed by Holmes' defense team yesterday, including a request that would require jury members to visit death row and an execution chamber prior to sentencing.  The trial is set to begin early next year. 

Marijuana Use in America on the Rise: A nationwide survey, involving 70,000 people 12 and older, has revealed that more Americans are using marijuana.  Donna Leinwand Leger of USA Today reports that marijuana use has been steadily increasing over the past five years, and the number could increase even more now that states are beginning to legalize the drug.  Just last week, Attorney General Eric Holder announced that the federal government would no longer prosecute marijuana users in the 20 states that have legalized small amounts of medical and recreational marijuana.   

Cleveland Kidnapper Found Dead in Jail Cell: Ariel Castro, the man convicted of kidnapping three Ohio women and holding them captive for almost a decade, was found dead in his cell last night after what authorities believe to be a suicide.  Fox News reports that corrections officers found Castro hanging in his cell and attempted 'life-saving measures' before he was pronounced dead at a local hospital.  Due to the high-profile nature of his case, Castro was being kept in protective custody and was checked on by officers every thirty minutes.

News Scan

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Texas Father Won't be Charged in Beating Death: A Texas man who found a man raping his 5-year-old daughter and then proceeded to beat him to death will not face homicide charges.  James Nye of the Daily Mail reports that the father was alerted by his older son that a man had taken the young girl against her will to a secluded shack on the property and began to sexually assault her.  Under Texas law, deadly force is justified if used in an attempt to stop a sexual assault. 

Dangerous Inmates Released Early in LA County: Los Angeles County inmates are being released after serving only fractions of their sentences due to an increase in prisoners and an ever-growing lack of space.  The Associated Press reports that offenders convicted of both violent and sexual crimes are being released before serving even half of their sentence.  Just this year, more than 23,000 inmates have been released early by the Los Angeles County Sheriff's Department.

Delaware Women Gang Raped by a Dozen Juveniles: Authorities are investigating a case involving two women who were allegedly gang raped in a Delaware park by a group of juveniles.  Fox News reports that the women were sitting in the park in the early evening when they were approached and attacked by a group of 10-12 black juveniles.  The police have yet to identify any suspects, and are asking those involved to come forward.

More on the Harmlessness of Drugs

This story is getting weary, but needs to be told as long as the drug legalization crowd keeps telling us that drugs are harmless or nearly so.  It's just point-blank false.  And it's no excuse to say that people freely choose to put them into their own bodies.  The choice is not truly "free" when the consumer is too young to know what he's doing, is addicted, or has been misled about the supposed "safety" of these things  --  a myth to which legalizers themselves give currency, even when, for fig-leaf purposes, they decline to endorse it directly.

The latest is here.  How ironic that the account appears in Rolling Stone.

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