October 2013 Archives

In August, Federal District Judge Shira Scheindlin issued an injunction in the stop-and-frisk case.  AP described the ruling as "a stinging rebuke to a policy [Mayor Bloomberg] and the New York Police Department have defended as a life-saving, crime-fighting tool that helped lead the city to historic crime lows."

Judge Scheindlin came in for a rebuke of her own today.  Not only did the Court of Appeals stay her order, it went on to say:

Upon review of the record in these cases, we conclude that the District Judge ran afoul of the Code of Conduct for United States Judges, Canon 2 ("A judge should avoid impropriety and the appearance of impropriety in all activities."); see also Canon 3(C)(1) ("A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned . . . ."), and that the appearance of impartiality surrounding this litigation was compromised by the District Judge's improper application of the Court's "related case rule," see Transfer of Related Cases, S.D.N.Y. & E.D.N.Y. Local Rule 13(a),1 and by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court.2

Accordingly, we conclude that, in the interest, and appearance, of fair and impartial administration of justice, UPON REMAND, these cases shall be assigned to a different District Judge, chosen randomly under the established practices of the District Court for the Southern District of New York. This newly-designated District Judge shall implement this Court's mandate staying all proceedings and otherwise await further action by the Court of Appeals on the merits of the ongoing appeals.

Whack!  The footnotes follow the break.
Yesterday, I noted Heather MacDonald's op-ed in the WSJ.  Today, a considerably expanded version is available in the City Journal, and no subscription is required to access it.
The Pew Charitable Trusts and the MacArthur Foundation have a report on prison health care spending.  As you would expect from these sources, the discussion of the causes of cost increases has a giant blind spot:  federal courts ordering more expensive health care than the Constitution actually requires.

California spends more than double the national median per inmate for health care.  Isn't that curious?  Shouldn't we examine why?  No, that might lead to a Politically Incorrect conclusion.  We mustn't confuse people with inconvenient truths.

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CA Realignment Law to Blame for Sentencing Delay: A Northern California man who pleaded no contest to a felony battery charge with a hate crime enhancement is waiting to find out whether he will serve his five-year sentence in state prison or a county jail under California's Realignment law.  Don Frances of the Daily Democrat reports that 20-year-old Clayton Garzon was scheduled to serve his sentence in county jail despite the fact that he committed a violent crime, which under  Realignment is supposed to result in a prison sentence.  After the prosecutor challenged the jail term, the Judge announced that he would reconsider where the criminal would serve his time.      

Convicted Sex Offender Could Face Death Penalty in Upcoming Murder Trial: A convicted sex offender facing trial for murdering three women and whose bodies were dumped in trash bags, pleaded not guilty to charges that could result in a death sentence.  CBS News reports that 36-year-old Michael Madison of Ohio was classified as a sex offender in 2002 after serving a four-year prison sentence for attempted rape.  In addition to the murders, the updated indictment announced on Tuesday now includes three counts of kidnapping and gross abuse of a corpse.

California Community Fights Relocation of Convicted Rapist: A Southern California community is outraged after a judge has decided to allow a serial rapist to live in their neighborhood after he is released from prison.  Fox News reports that serial rapist, Christopher Hubbart, has admitted to raping 38 women in California over an 11 year time period  and became known as the 'pillowcase' rapist due to his habit of placing pillowcases over his victims' heads.  An decision made in August by the California Supreme Court denied a Los Angeles County appeal to block Hubbart's release and relocation to their community.  

Woman Sues Dept. of Corrections After Violent Kidnapping and Rape: A Seattle woman is suing the Washington Department of Corrections based on the claim that she was kidnapped and raped by a known violent offender that should have been more carefully monitored.  Levi Pulkkinen of the Seattle Pi reports that while on court-ordered supervision, John Carter, a nine-time convicted felon, kidnapped and repeatedly raped his victim less than three months after being released from prison.  The lawsuit filed by the victim contends that the state failed to properly respond after Carter began abusing heroin and alcohol shortly after his release.  

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Man Accused of Killing 4 Violated Parole Repeatedly Without Punishment:  A parolee who repeatedly violated the conditions of his parole has been arrested in Tennessee as a suspect in a quadruple homicide.  Brian Haas of The Tennessean reports that Jacob Allen Bennett failed a drug test, did not pay his court-ordered fees, and did not show for a parole appointment a month before the murders, but parole officers did not issue a arrest warrant until after the bodies of the four victims were discovered near Bennett's home.  Tennessee's supervision of released felons has been under fire since a 2001  performance audit found it inadequate.

Rape Acquittals Spur Calls for Change in Law:  A sex offender accused of raping numerous Baltimore women has been acquitted for the fourth time by the Baltimore City Circuit Court, renewing a debate over whether the law should be changed.   Ian Duncan of the Baltimore Sun reports that victims testified against Nelson Bernard Clifford at each trial, but Clifford insisted  that each sexual encounter was consensual.  State law prohibits character evidence and a defendant's record of committing similar crimes from being admitted in trial.  These limits are being criticized for diminishing a rape victim's chance for justice. 

Prison Realignment May Cause Increase in Crime:  The shooting of a San Diego police officer last week by an ex-con, who was being supervised by California's prison realignment law, is prompting inquiry over whether realignment is causing an increase in crime.  Carlo Cecchetto of CBS News 8 reports that property crime has increased in the two years that realignment took effect.  Additionally, the law has caused overcrowding in local jails, often leaving parole violators in the streets.   

Washington Couple Sentenced to Prison for the Death of Adopted Daughter:  A Washington state couple were sentenced yesterday to decades in prison for the death of the 13-year-old girl they adopted from Ethiopia.  The Associated Press reports that the victim, Hana Williams, was found dead of hypothermia and malnutrition in the backyard of the family home in May 2011.  Carri Williams was sentenced to just under 37 years and her husband, Larry, received nearly 28 years.  Additionally, both were found guilty of assault for punishing their adoptive son, also from Ethiopia.  He testified to being beaten with belts and sticks, and sprayed with a water hose.  He the couple's six biological children have been placed in foster care.

"Once more unto the breach, dear friends, once more."  The California prisoner release litigation is headed back to the US Supreme Court for the third time.

The first time, a three-judge court composed of three of the most pro-criminal, anti-victim judges in the entire federal bench ordered massive reductions in California's prisoner-to-capacity ratio.  The Governator appealed, but the decision came down after Jerry Brown had retaken the office.  The Supreme Court affirmed in Brown v. Plata.  At the end of the opinion, though, the high court noted that the formula in the order was not carved in stone and should be reconsidered as needed.

The three-judge court ignored the latter admonition, ignored the progress California has made, and refused to modify its formula.  The state appealed again to the Supreme Court but got tripped up in the technical distinction between an appeal from an injunction and an appeal from a refusal to modify an injunction.  Jurisdiction for the latter lies in the Court of Appeals, not the Supreme Court, and the appeal was dismissed for lack of jurisdiction two weeks ago. See this post.

Depending on your point of view, California has already released either the most it can without endangering the public (Brown's view) or more than we safely can, having already endangered the public (my view).  See also this article in the WSJ by Heather MacDonald.  Pushing more prisoners on county jails will not work, as the realignment program has already filled the jails in many counties beyond capacity.  So the options to comply with order are to either expand capacity by using out-of-state placements or unleash dangerous criminals on the public.

In a breathtakingly astonishing act of judicial arrogance, the three-judge panel actually ordered the Governor of California not to enter into any contracts for out-of-state capacity, without citing any legal basis whatsoever for such a prohibition.  This is a new injunction, and should be within the Supreme Court's direct appeal jurisdiction.  The Governor has filed a notice of appeal. Just in case, he has also filed a protective appeal to the Ninth Circuit. I suggest the Governor also make a renewed motion to modify the underlying order and appeal the inevitable denial to the Ninth Circuit.

The case has not appeared on the SCOTUS online docket yet.  I will post a link when it does.
There was a strange hearing in the United States Senate regarding the "stand your ground" laws passed by a number of state legislatures.  Laurie Kellman has this story in the WaPo.  How was it strange?  Well, for starters, the star witness was Sybrina Fulton, the mother of Trayvon Martin, who testified:

"I just wanted to come here to . . . let you know how important it is that we amend this stand your ground, because it certainly did not work in my case," Fulton said, speaking without consulting prepared remarks. "The person that shot and killed my son is walking the streets today. This law does not work."
As we have noted here multiple times, the "stand your ground" aspect of Florida's self-defense law was completely irrelevant to that case.  The prosecution witness established that Martin had Zimmerman pinned on the ground at the time Zimmerman shot him.  "Duty to retreat," the point on which Florida's law differs significantly from the laws of a number of other states, is irrelevant when retreat is not an option.  See this post last July.  The relevant aspects of Florida self-defense law are fairly standard.  How can a law "not work in my case" when it has nothing to do with the case?

The hearing was strange, also, in that it was conducted before a legislative body with no authority to make the requested change in the law.  The circumstances in which a person can use deadly force in self-defense is a matter of state law, and nothing in the United States Constitution authorizes Congress to step in.  Section 5 of the Fourteenth Amendment does allow Congress to override some state laws that are used in a discriminatory manner, but despite all the race-baiting that has gone on in the Martin/Zimmerman matter, the claim that "stand your ground" laws are discriminatory is utterly unsupported.

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Ohio to Use New Combination of Execution Drugs: The state of Ohio will use two different drugs for an execution scheduled for next month after running out of its supply of pentobarbital.  Kim Palmer of Reuters reports that Ohio will use a combination of midazolam and hydromorphone.  The change was made after a Danish manufacturer of pentobarbital banned the sale of the drug for use in lethal injections.  The European Union, which is opposed to the death penalty, has been pressuring drug manufacturers to refuse to sell drugs for U.S. executions. Several states have been exploring alternative lethal injection drugs since the supplier of widely used sodium thiopental halted production two years ago.

Man Arrested After Killing Spree Leaves Five Dead: A Texas man is in custody after authorities say he murdered five people and burned down the home he shared with his mother before leading police on a high-speed chase.  Ryan Gorman of the Daily Mail reports that 36-year-old Charles Brownlow went on the killing spree with victims, including his mother, throughout different areas the town of Terrell, Texas.  Brownlow is described as a career criminal and has a criminal history dating back to 1990 that includes multiple felony weapons and burglary charges, as well as domestic violence and drug offenses.

Judge Sentences Convicted Murderer, Then Performs His Wedding: The family of a San Diego murder victim is demanding an apology after the judge presiding over the case performed a wedding for the convicted killer right after sentencing.  CBS News reports that shortly after sentencing Danne Desbrow to life in prison, Judge Patricia Cookson hurried the victim's family out of the courtroom, performed a wedding ceremony for the killer and his girlfriend, and presented them with a wedding cake that she had baked.  The family plans to file a formal complaint with the California Commission on Judicial Performance.  

Teen Sentenced 68 Years to Life for Brutal Attack: A Northern California boy has been sentenced 68 years to life in prison after being found guilty of brutally stabbing and raping a 13-year-old girl and her infant brother.  Jess Sullivan of the Daily Republic reports that 17-year-old Alexander Cervantes, who was only 14 at the time of the attack, woke his young victims up after breaking into their home, stabbed them multiple times, and repeatedly sexually assaulted them before falling asleep in the master bedroom of the home.  Defense attorneys for Cervantes asked for leniency for their client based on claims that he was drunk and high on psilocybin mushrooms at the time of the attack.
Gallup has released its annual poll on support for the death penalty. On the question that Gallup has asked since the 30s, "Are you in favor of the death penalty for murder?", there is a bit of further erosion, although support is still overwhelmingly "yes" to that question.

As I have noted before here, though, the traditional question is deficient in that it could be understood to be asking about the death penalty for all murders or the typical murder.  I would answer "no" to the question, so understood, myself.

Another question Gallup asks better reflects the actual policy question of whether we should impose the death penalty on the worst murderers:  "In your opinion, is the death penalty imposed -- [ROTATED: too often, about the right amount, or not often enough]?"  The sum of right+not enough constitutes support for the death penalty as it presently is or tougher.

By this measure, support is up a tad since 2011, the last time Gallup asked the question, and opposition is down a tad.  "Right" + "not enough" totals 70%, up from 67%, while "too often" slips from 25% to 22%.

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Convicted Felon Accused of Shooting San Diego Police Officer: 31-year-old Ignacio Canela, a convicted felon with an arrest record dating back more than ten years, has been arrested after allegedly shooting  a San Diego Police Officer multiple times.  Mari Payton of NBC San Diego reports that Canela seriously wounded the officer after firing seven shots at him during a vehicle pursuit last Thursday.  Canela, a known gang member, was on parole and had been released without bail for narcotics charges and violating parole in August.  Prior to Realignment he would have been held without bail and returned to prison for up to one year for the parole violation alone.  

Four Inmates Escape Through Shower Vent:  Four inmates who broke out of an "escape-proof" Oklahoma jail over the weekend, allegedly by crawling into a small opening over the shower and traveling through the vents.  Doug Stanglin of USA Today reports that the men broke free on Sunday at around 3 a.m. Police received a call from a witness who reported seeing four men in orange jump suits running down the street.  Three of the escapees were jailed on drug and burglary charges and were awaiting transfer. The other was awaiting trial on a gun charge.  Vehicle checkpoints have been set up and tracking dogs are being used in the effort to apprehend the inmates.

Six Officers Injured in Roseville Shootout: On Friday night, a shootout ensued in Roseville, CA, between law enforcement agents and a wanted parolee, left six officers injured.  NBC Bay Area reports that the suspect was identified as Samuel Nathan Duran, a gang member with a criminal record including charges of assault and carjacking.  The standoff began on Friday after ICE agents and police officers spotted Duran and tried to arrest him.  He fired shots at the officers and held up in a nearby home until surrendering early Saturday morning.  

Tuesday, November 5, is federalism day at the high court.  One case on the docket is Bond v. United States, No. 12-158, a rare criminal case where the defendant is right.  As I noted last January, Carol Bond deserves to be severely punished for her use of poison to get revenge on her former best friend for having an affair with her husband.  But that punishment should be meted out by the Commonwealth of Pennsylvania, not the United States.

The other case is a civil case that concerns a doctrine that often comes up in criminal cases.  That is the Younger doctrine, named for Evelle Younger, District Attorney of Los Angeles back in the turbulent 60s.  A criminal defendant filed suit in federal district court to halt an ongoing prosecution in state court.  The Supreme Court quashed that in Younger v. Harris (1971).  Younger had taken office as AG by the time the case was decided, but it bears his name anyway.

The case before the Supreme Court on November 5 is Sprint Communications Co. v. Jacobs, No. 12-815.  As you might guess from the title, it involves telecommunications regulation.  (Yawn.)  But wait, is the Supreme Court inclined to expand Younger or narrow it?  That might matter the next time a criminal defendant tries to go judge-shopping in federal court when the case belongs in state court. 

Scott Dodson has this preview at SCOTUSblog.  Sprint's main argument seems to be that because the case involves a federal question it should be decided in federal court.  But state courts have been competent to decide questions of federal law from the dawn of the republic.  Congress did not even vest the lower federal courts with "federal question" jurisdiction, as we now know it, until after the Civil War, and the exigencies of Reconstruction are now a fading speck in the rear-view mirror.  I will be rooting for the State of Iowa on this one.

Private Isn't Always Better

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For some of my friends of the libertarian ilk, it is nearly an article of faith that private businesses always perform any function better than government agencies.  I do not doubt that is true for a wide variety of functions, but not all.  Joel Millman has this story in the WSJ (subscription) on the growing disenchantment with privately run prisons:

Corrections policy is at a crossroads in Idaho as government officials decide how to staff the 2,060-bed Idaho Correctional Center now that the country's largest private prison operator has decided to quit the state.
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Lodi Man on PRCS Causes Multiple-Fatality Car Accident: Ryan Morales, a Lodi man released from prison early under AB 109, has been named as the driver responsible for causing a multi-vehicle accident that left five people dead.  Michelle Schultz of KCRA 3 reports that witnesses to the crash reported seeing Morales driving at 'freeway speeds' and possibly talking on his cell phone before plowing through an intersection and killing a father, pregnant mother, and three of their children.  The search warrant executed at Morales's home indicates that authorities were searching for empty alcohol bottles in the garage of the home after it was revealed by his mother that she had witnessed him drinking vodka prior to the crash.  Morales was released from prison just last month after serving time for recklessly evading a peace officer. 

Double Bunking to Blame for Violence:  A union vice president at Groveland Correctional Facility in New York is blaming the increase in prison violence and danger on the practice of double bunking, following a series of six assaults that occurred there last week.  Howard W. Appell of Livingston County News reports that there are nearly 10,000 inmates in double bunk situations in the state, and Governor Andrew Cuomo's announcement of four more facility closures in 2014, adding to the 9 others he has already closed, will only make matters worse.  Groveland Correctional Facility is currently at 93 percent capacity, consisting of violent inmates crammed into limited spaces together.

Ex-Doc Sentenced to Life in Hep C Case:  Dipak Desai, a former Las Vegas endoscopy clinic owner, was sentenced to life in prison with the possibility of parole after 18 years yesterday, following the 2007 hepatitis C outbreak that was traced back to his clinics.  ABC News reports that the outbreak, one of the worst in  the U.S., killed one man in 2012, and authorities suspect another death this year is also related.  Prosecutors say that Desai emphasized profits over safety, which lead to unsafe clinic and injection practices.  A former nurse-anesthetist from the clinic will also convicted of lesser charges and sentenced to seven to 21 years.

Female Prisoners to Serve Sentences Closer to Home:  In the UK, the Ministry of Justice plans to convert 12 of its 13 female prisons into 'resettlement prisons,' moving inmates to the jail closest to where they and their families live.  James Watkins of Law on the Web reports that this plan emerged in an effort to cut down on reoffending by making it easier for prisoners to stay in contact with their families and reintegrate back into society once they are released.  Other measures to improve women's recidivism rates will be introduced as well, including support for each prisoner for 12 months after their release and individualized help with drinking, drug addiction, and mental health issues.

Where's Al Sharpton When We Need Him?

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Rev. Al Sharpton was plently active whipping up a racial frenzy about the killing of Trayvon Martin.  Readers will remember that Martin, an unarmed black teenager, was shot to death by George Zimmerman, a "white Hispanic" (as the NYT called him).  The police initially did not arrest Zimmerman, apparently on the theory that he acted in self defense  -- or, at the minimum, that there was insufficient evidence that he did not so act. This provoked a storm of protest, resulting in the replacement of the original prosecutor, and by Zimmerman's indictment and trial.  He was acquitted, almost certainly because the jury believed just what the police did from the outset  -- that it could not be established that Zimmerman acted other than in self defense.

The acquittal sparked yet more protest.  I have never been able to pin down precisely why this was so, but it seems to have been to make the "point" that black people are perpetually in danger of getting gunned down by whites, and, in this racist society, nothing will be done about it.

My own view of it is that race has no place whatever in the criminal justice system, much less in prosecution decisions about individual cases.  Killers are no more or less culpable because of their race, and victims are no more or less dead. Race simply has no moral significance, and thus should have none legally either.  But I appear to be on the losing end of that argument, courtesy of activists like Rev. Al.

Query, then, why has he not chimed in on the story below?
Last month, you may recall, the FBI announced its final Crime in the United States report for 2012, showing an increase in violent crimes of 0.7% and a decline in property crimes of 0.9%.  (Press release here; prior post here.)  Today, the Bureau of Justice Statistics, a different branch of USDoJ, announced the results of its National Crime Victimization Survey (NCVS), showing violent crime increased 17.7% and property crime increased 15.0%. 

The press release is here.  The full report is here.  Percentage changes are in Table 9 on page 9.

What gives?  How can these two measures of "crime rates" produce such dramatically different results?  The devil is in the details.

The Consequences of Unseriousness, Part III

A little less than two weeks ago, I wrote of the gruesome consequences (the beating death of a toddler) of not taking seriously the killer's prior history of violence toward little children. Today, I see, right on the local D.C. news, yet more consequences of the same deadly complacency. The give-them-a-second-chance crowd never seems to want to get too explicit about what the second chance is for, and the following illustrates why:

A 29 year-old thug, Stephon Prather, shot a policeman in nearby Howard County, Maryland. He was taken into custody today.  Exactly ten paragraphs down into the story, we see this:

Prather has had trouble with the law before. In 2006, he faced a mountain of charges: six counts each of attempted murder, first-degree assault and second-degree assault. That was in addition to charges of use of a handgun in a crime and conspiracy to attempt murder.

The charges stemmed from a dispute between Prather and some family members.

Under a deal with prosecutors, he pleaded guilty to two counts of first-degree assault and and was set to serve five years.

But in late 2007, Prather's sentence was reconsidered. A judge agreed to turn Prather over to the Maryland Department of Health and Mental Hygiene for substance abuse treatment.

Court records show that by early 2009, Prather had been discharged by a nonprofit rehab program, Second Genesis, Inc.

Now is that cool or what?  Mr. Prather goes berserk in 2006, gets a sweet deal from some (fortunately for them) unnamed prosecutors, gets all of five years, then gets "reconsidered" by some (also unnamed) judge, is turned over to a "rehab" program, which promptly releases him because they don't give a good God damn were, I suppose, satisfied with his "progress."

Anyone care to take a guess about how much accountability there will be for the prosecutors, the judge, or the "rehab" people?

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Kennedy Cousin Convicted of Murder is Granted New Trial: Michael Skakel, the man convicted of a 1975 murder and a cousin of the Kennedys, has been granted a new trial after a judge ruled that Skakel's attorney failed to adequately represent him.  The Associated Press reports that Skakel was found guilty in 2002 for the golf club bludgeoning murder of 15-year-old Martha Moxley, who had spurned his sexual advances.  He was sentenced to 20 years to life in prison.  Now that a new trial has been ordered, Skakel's attorneys are planning to ask the judge to release him from prison on bond.

Canadian Sex Offender Commits Assault in US: 48-year-old Michael Stanley is in custody after police say he removed his court-ordered GPS monitor, fled Canada, and sexually assaulted a Seattle teen just days after coming to the U.S.  The Canadian Press reports that Canadian authorities chose not to issue an arrest warrant or ask for Stanley's extradition because his sex crimes there were not serious enough. Because of this, Stanley was allowed to cross the border into Washington and was instructed by local authorities to register as a sex offender.  Less than four days after registering, Stanley, who happens to be a U.S. citizen, was accused of sexually assaulting a 16-year-old boy.

Judge: Medical Marijuana OK on Probation: An Arizona judge has granted a motion on behalf of 43-year-old Jennifer Ferrell, allowing the woman to use medical marijuana while on probation.  Scott Orr of the Daily Courier reports that the motion was granted after Ferrell's attorney argued that the county could not restrict his client from using medical marijuana due to the fact that state law makes it legal.  Ferrell was given probation after being convicted of assaulting a police officer, resisting arrest, and DUI in October 2012. 

The Chickens Come Home

For years now, we have been told  --  no, we have been lectured  --  that we incarcerate "too many people for too long," as Eric Holder told his fan base at the ABA convention back in August. Those believing, as CJLF does, that the huge reduction in crime over the last 20 years was brought about in significant part by the large increase in imprisoning criminals have been laughed off.  Everything and anything else has been enlisted as an explanation, from abortion to the elimination of lead-based paint and gasoline.  We could safely release "low-level" (is there any other kind?) inmates, we have been told, and crime would not increase.  Indeed, it would decrease, because the inmates would no longer be "schooled" in crime while in prison, and would "return to be productive members of their communities." The punitive and Neanderthal sorts who thought otherwise needed to get with it, and learn to adopt "evidence-based" corrections policy.

OK, in the past three years, the prison population has indeed decreased, as several states, most notably California, have reduced their prison population.  So now, the evidence  --  the BJS figures released this morning  -- is in.

What does it say?

It says what we knew from the getgo:  That despite the other side's ceaseless and dishonest campaign, it remains the case that, when you put criminals in jail, you get less crime, and when you let them out prematurely, you get more.

Now we are getting more, as the BJS figures show.  Will our opponents take any responsibility for the additional crime  --  and thus the additional loss and suffering  -- their policies have helped create?  Or will they keep carrying the flag for criminals, despite the evidence they once claimed to value?

Rebooting Tennessee's Death Penalty

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Brian Haas reports for The Tennessean:

Tennessee's barely functioning death penalty is on the verge of revival after state officials finally settled on a new lethal injection drug and scheduled a man to die for the first time in more than a year.
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But last month, the state said it had solved its lethal injection drug problem by switching to pentobarbital, an anesthetic most commonly used to euthanize pets. State officials scheduled Nickolus Johnson, convicted of killing a policeman in Bristol in 2004, to die on April 22, 2014, at 7:10 p.m.
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But the switch to pentobarbital has opponents worried that the state's death penalty is gearing up yet again.

That's a good thing, said Michael Rushford, president of the Sacramento, Calif.-based Criminal Justice Legal Foundation, which supports the death penalty. He said compounding pharmacies could solve the ongoing supply problems.

"I think the compounding approach will probably be the new 'hip' thing to do. That will solve that problem," he said. "This may be the end of this kind of challenge."

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MS Reviewing Inmate's Release Eligibility:  Mississippi's Earned Release Supervision program, which lets inmates earn time off of their sentences by completing education courses, exercising good behavior, and participating in other programs, has allowed one inmate, sentenced to 20 years for manslaughter, to gain eligibility for release.  The AP reports that participation in the program depends upon behavior and work ethic, and once granted release, inmates remain under control of Corrections and are not permitted to leave the state.  In response to objections by family members of the inmate's murder victim, prosecutors are looking to amend the law to require that 85 percent of inmates' sentences are served.

State Defends its Treatment of Mentally Ill Inmates:  California launched its defense on Tuesday over its methods of handling mentally ill inmates, which included testimony of a California State Prison psychiatrist that stated prolonged restraint of prisoners and the use of pepper spray is sometimes necessary to save inmates' lives.  Denny Walsh and Sam Stanton of The Sacramento Bee report that earlier this month, the inmates' lawyers played a graphic video in court of the cell extraction of a particular inmate, hoping that the shocking footage would persuade the judge to impose limits on the staff's use of force.  However, the state continues to argue that the scenes displayed are not representative of the efforts made by staff members to prevent injury to patients and preserve life.

Advocates Seek Restoration of Felon Voting Rights:  Inmate advocates are pushing Kentucky lawmakers to restore voting rights to most non-violent felons once their sentences have been completed.  Mike Wynn of the Courier-Journal reports that Kentucky is only one of four states that permanently bars felons from voting, inadvertently impacting the disproportionately high number of African American ex-convicts.  Studies show that voting rights are related to reduced recidivism. 

Tougher Gang Laws Sought in South Carolina:  State lawmakers are moving legislation to reform state laws on gang violence and repeat offenders, in the wake of a recent shooting that left an 18-year-old college student paralyzed.  Zachary Treu of Greenville Online reports that the reforms include updating language regarding gang member recruitment, sentencing enhancements for gang-related crimes, and minimum bond requirements for gang-related crimes. Senate Bill 19 and House Bill 3051, are currently making their way through the state legislature. Legislators also announced that they will look at the records of judges up for reappointment and oppose those with a history of releasing individuals from jail who should remain incarcerated.

Arizona Scheduled to Execute 2nd Inmate this Month:  Robert Glen Jones Jr., convicted of the 1996 murders of six people in two armed robberies, is scheduled to be executed today in Arizona.  Walter Berry of the Associated Press reports that Jones was out on parole at the time of the crimes, after serving time for burglary and grand theft.  He will become the 36th inmate executed in Arizona since 1992 and the second inmate in the state to be put to death by lethal injection in the past two weeks.  Update:  The execution began at 10:35 a.m. MST, and Jones was pronounced dead at 10:52, Hipolito Corella reports in the Arizona Daily Star.

Missouri Switches to New Execution Drug: Missouri is the latest state to switch over to a new lethal injection drug after the governor announced nearly two weeks ago that he was halting executions until a new drug could be found.  Jim Salter of the Associated Press reports that Missouri will join a list of 13 other states by utilizing the sedative pentobarbital in future executions.  The state is also using a compounding pharmacy to produce the drug in order to alleviate supply problems. Missouri's first execution using the new drug is scheduled for November 20, 2013. 

Forcible Medication for Trial

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Ed White reports for AP:

A mentally ill man charged with placing a bomb outside a Detroit federal building can be forcibly medicated to try to make him competent to face trial, an appeals court said Tuesday.

Gary Mikulich, 45, has refused to take medication since his arrest in 2011, according to the government.

"While we should not take lightly the decision to medicate a defendant against his will, we also should not discount the government's interest in bringing an accused would-be terrorist to justice," said a three-judge panel at the 6th U.S. Circuit Court of Appeals.
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Mikulich, who has a degree in electrical engineering, has a history of schizophrenia and bizarre rants against the FBI. He may offer an insanity defense, his attorneys have said in court.

The opinion is here.  The primary Supreme Court precedent is Sell v. United States (2003).

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More Florida Inmates Forging Documents to Gain Early Release: Seven inmates in Florida's prison system have attempted to facilitate their early release by using forged documents.  Fox News reports that prison officials are attempting to gain control of the situation by verifying early-release orders with multiple sources prior to an inmate's release.  Last week, two inmates serving life-sentences for murder, were released ahead of schedule and on the run for more than a week after successfully forging release-documents.

California Gets Extra Month to Address Prison Overcrowding: A panel of federal judges has granted Governor Brown an additional month to reduce its prison population.  Don Thompson of Associated Press reports that judges pushed back the deadline requiring the state to reduce its prison population by nearly 10,000 inmates from January to February 2014.  Governor Brown has asked for a three-year delay in the court-ordered population reduction in order to allow proposed rehabilitation programs a chance to work.  

Florida Killer Given Execution Date: A Florida man who has been on the state's death row for nearly 40 years is now scheduled to die on December 3, 2013.  The Associated Press reports that Askari Abdullah Muhammad, formally known as Thomas Knight, was convicted of murdering a prison guard in 1980 while he was already on death row for two previous murders he committed six years earlier.  Despite being convicted in multiple murders, the death warrant signed by Florida Governor Rick Scott only refers to the case involving the murder of the correctional officer.

ATF Blows Grenade Walking Case: Photo evidence turned over to Congress earlier this week shows a stash of grenade parts and ammunition that was smuggled across the US/Mexico border by a man who was detained and questioned by ATF agents, and then released.  Sharyl Attkisson of CBS News reports that the ATF had been tracking Jean Baptiste Kingery, an alleged drug cartel arms dealer, and intercepted his massive grenade purchase and marked the weapons before delivering them to him in hopes of being able to follow him to his elusive weapons factory.  The ATF's plan failed, suggesting that the federal agency was more interested in making a big case than protecting public safety.  

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Georgia to Review Death Penalty Provision: Georgia, the first state to pass a law prohibiting the execution of mentally retarded death row inmates, is revisiting a requirement for defendants to prove their retardation beyond a reasonable doubt.  Kate Brumback of the Associate Press reports that while some states have a lower threshold for proving a mental retardation, others don't have any standards set.  Roch Golick, chairman of the House Judiciary Non-Civil Committee, affirms that a meeting concerning the issue, which is scheduled for Thursday and seeking input from the public, does not mean that the law will be changed nor that the state is moving towards abolishing the death penalty.

San Joaquin County Blames State for Early Release of Parole Violators: In San Joaquin County, dozens of parole violators are being released from jail early due to a dramatic change in California's parole revocation process.  Jennie Rodriguez-Moore of the Record reports that county officials are demanding that state parole agents process the necessary paperwork in 48 hours, which is not "physically possible" according to a Dept. of Corrections spokesman.  This has left parole departments unable to produce petitions in time for parolees' court hearings.  AB109, better known as Realignment, is playing a significant role in these parole revocation decisions because the jail population has been limited by a court order, leaving the county with no choice but to prioritize their cases and release parole violators.

High Court to Hear Murderer's Retardation Claim
: The Supreme Court justices will review a Florida Supreme Court ruling that upheld the death sentence for a man who scored just above the state's cutoff for mental retardation as measured by IQ tests.  Mark Sherman of the Associated Press reports that Florida law prohibits anyone with an IQ score of 70 or higher from being classified as mentally retarded, and thus ineligible for the death penalty.  The defendant in this case, Freddie Lee Hall, scored between 71 and 80 on three IQ tests.  Though Hall's sentence was upheld, it is acknowledged that there is no national consensus on how to determine mental retardation.  The high court will hear the case early next year.

A New Spokesman for Drug Legalization

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The campaign to get hip improve the county by getting blasted broadening our consciousness is starting to have a worn-out quality to it.  The drug legalization movement used to have some zip, but that was then.  Timothy Leary passed from the scene long ago, and most of us can't even find our love beads or bell bottoms anymore (this is for those readers old enough to have had love beads or bell bottoms).  Most of the people we hear now campaigning to legalize drugs are either (a) doctrinaire and usually academic libertarians, or (b) libertarian (or extremely liberal) politicians aiming to put some pizzazz in the fundraising base.  Look, next year is a big election!

Still, I'm pleased to see that at least one prominent figure is lending her considerable, uh, visibility to the fight to legalize drugs.  And give her credit for stepping up.  She's not doing the been-there-done-that spiel for pot as the undercard for the hard drugs. Nope, she's right out front, ready to tell us and, in her inimitable way, show us, that it's time to cut loose from all this Church Lady nonsense and get with the New Age.

So, without further adieu, the new leading light for drug legalization............

Miranda for Terror Suspects?

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Kent and I have blogged a number of times about the Administration's missteps in dealing with captured terror suspects and, in particular, whether and at what point they should be advised of Miranda rights  --  advice that is likely to bring to a halt whatever cooperation they might have been giving.

The Administration seems to have gone through fits and starts on this question, seemingly never able to reconcile (1) its ill-advised determination to view terrorism as a matter for standard civilian trials and the accompanying rules of domestic criminal procedure, with (2) the unwelcome but central fact that terrorism is the front line in a war, and captives we take are less criminals violating our law than enemies aiming to replace it.

A week ago today, I had the privilege of talking through this question with a large and eclectic audience at a Federalist Society event at Columbia Law School in Manhattan.  The conversation was not recorded, by my opening remarks are set forth after the break.
In 1976, the US Supreme Court allowed the resumption of capital punishment under revamped statutes, stating only a broad outline of the kind of statute required and approving three quite different systems as coming within that outline.  In the years that followed, the high court proceeded to micromanage the capital sentencing system, ultimately disapproving essential features of the Florida and Texas systems it had initially approved.

The result was a disaster.  Justice was badly delayed and in many cases ultimately denied as judgments that were valid when entered were overturned on the basis of rules conjured up out of blue sky years or decades after the trial.

In more recent years, the high court has stopped tinkering with sentencing procedure but has instead announced categorical rules of exclusion from the death penalty.  For persons under 18 at the time of the crime and for crimes where the victim survives, these rules at least have the benefit of clarity.  For the mental retardation exclusion, however, the court has attempted to draw a bright line in dry sand.  Intellectual disability is a continuum, and for anyone close to the line there will always be room for disagreement among experts.  Questions of procedure and definition may therefore make the difference between a person being eligible for the death penalty or not.

In the Atkins case, the court said states would have leeway in this area.  Will the court now break this promise and micromanage the retardation determination procedure, repeating its huge mistake of 1980s?  That is the question presented in Hall v. Florida, No. 12-10882, taken up by the high court today.

There is no need for micromanagement because there is no need for a categorical exclusion for anyone close to the line.  Under the preexisting rule of Penry v. Lynaugh (1989), capital defendants have been allowed to present any intellectual disability to the sentencer as a mitigating circumstance, regardless of whether it meets the DSM or other definition for a particular diagnosis.  If the defendant is not so clearly retarded that he would be found so under any reasonable procedure and definition, then he is not so impaired that the national consensus found in Atkins warrants removing the case from the discretion of the sentencer.
Niraj Chokshi has this article in the WaPo on the California Lt. Gov.'s drive to legalize marijuana.

The ACLU cast legalizing pot as a solution to overcrowding in the state's prisons, where the incarcerated population has exploded in recent decades. The per capita prison population in 2010 was nearly four times larger than that of 1980, according to official data compiled by the California Sentencing Institute.
Now that is an utterly irrelevant datum offered to support the argument.  The size of the prison population tells us nothing relevant unless we know what portion of that population is in for marijuana.

The most recent California prison census, June 30 of this year, is here.  The total prison population is 134,160.  How many for marijuana?

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Parolee Charged in Murder of Federal Investigator:    Oakland, CA police have charged 56-year-old Randy Alana, a career criminal and paroled sex offender, in the disappearance and murder of a federal investigator that occurred more than two months ago.  The Associated Press reports that Alana, who at one time dated the victim, has been in county jail since her disappearance after authorities arrested him for several parole violations.  Alana has been convicted of several crimes in the past including manslaughter, rape, robbery, and other sexual-assault crimes.  

Convicted Sex Offender Charged in Kidnapping and Torture Case: A South Carolina man has been accused of keeping a woman against her will for nearly three months, raping and beating her multiple times every day.  Kevin Conlon of CNN reports that Paul Rawl Jr. would force the woman to ingest Xanax every night before sexually assaulting her, and on several occasions threatened to kill her with a bow and arrow.  Rawl was convicted in 2000 of criminal sexual conduct in a case involving a 12-year-old girl.

Overwhelming Evidence Leads to Cold-Case Arrest: Ohio investigators have handed down a 293-page indictment against a man they believe raped and murdered women for almost two decades.  Emily Valdez of Fox Cleveland reports that in addition to the murder charges, 49-year-old Elias Acevedo Sr. has also been charged with 173 counts of rape and more than 100 counts of kidnapping.  Acevedo had been convicted of sexual battery in an unrelated case in 2003, which resulted in a prison sentence and  registration as a sex offender. 

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Killers Mistakenly Released From Prison:  Florida police are looking for two convicted murderers who were released from prison early due to forged court orders.  Kevin Conlon of CNN reports that the inmates, both serving lengthy prison sentences for murder, were able to walk away from a Florida penitentiary less than two weeks apart after forged paperwork led corrections officials to release them ahead of schedule.  Authorities are warning citizens about the two "escapees" and hope that they can be found before they commit additional crimes.

Juvenile Murder Suspect Had Felony Record: A 15-year-old Tennessee boy, who has juvenile convictions for felonies, including sex crimes, is now a suspect in the robbery and murder of a local contractor.  Sabrina Hall of CBS Memphis reports that 15-year-old Derek Cunningham is one of the teenagers being held on charges after he and two of his friends robbed and murdered a man for his cell phone and a few dollars.  Cunningham has a lengthy criminal record, which the judge will take into consideration when deciding whether or not to try him as an adult. 

Attorneys Claim Mental Health Crisis on CA Death Row: Attorneys for inmates on California's death row are arguing in federal court that mental health treatment is so inadequate that all the murderers housed there should be assessed and that a psychiatric center be developed to treat them.  Sam Stanton of the Sacramento Bee reports that, according to their attorneys, inmates suffering from mental illness are being unconstitutionally denied adequate access to treatment. The state of California maintains that the level of treatment for mentally ill inmates has increased dramatically over the last few years and is comparable to treatment received by private citizens.

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Teens Charged in Cyberbulling Suicide:  In Florida, felony charges have been brought against a 14-year-old and a 12-year-old girl for the cyberbullying suicide of a 12-year-old classmate last month.  Lizette Alvarez of the New York Times reports that the victim, Rebecca Ann Sedwick, who jumped to her death from an abandoned cement factory silo, was bullied and harassed for a year both on and offline by several female students.  The felony counts of the two "primary harassers" include aggravated stalking, a third-degree felony.  Both girls are being processed through the juvenile court system.

Gun Rights Law Reviewed by State Supreme Court:  The unintended consequences of the constitutional amendment approved by Louisiana voters last year to make gun ownership a fundamental right is being considered by the state Supreme Court.  The court will determined if the amendment trumps a statute which prohibits felons from possessing firearms.  Paul Purpura of the Times-Picayune reports that the issue arrived at the Supreme Court when a judge ruled that 21-year-old Glen Draughter, who was convicted of attempted burglary, could not have a gun under Revised Statute 14:95.1.  Draughter's attorney, Colin Reingold, argues that the felon firearm law should be "retroactively applied" and held to the strict scrutiny standard. 

Violent Drug Gangs Rule Rio's Shanty Towns:  Minutes from Rio de Janeiro's iconic tourist destinations are massive shanty towns called "favelas," where drugs can be freely purchased at open-air markets and crack addicts as young as 16-years-old walk the streets.  ABC News Nightline reports that these favelas are ruled by violent drug gangs, identified as "the source of the misery" in Rio de Janeiro.  The city is preparing to host millions of sports fans for the World Cup next year, followed by the 2016 Summer Olympics, so the city's police are "launching a war" to combat the gangs; but Rio's history of brutality and corruption within their police department casts doubt over whether such a war can be resolved anytime soon.

An Insane Proposal on Mental Evidence

Here is a fairly reliable indicator that an argument is not going well:

JUSTICE SOTOMAYOR: Mr. Katyal, assuming the incredulity of my colleagues continues with your argument, which way would you rather lose?
The US Supreme Court today heard oral argument in the case of Kansas murderer and meth dealer Scott Cheever.  The transcript is here.  The case is described in my preview post Monday and in my post last year after the Kansas Supreme Court decision.

The case involves a compulsory mental examination of a defendant who intends to offer a mental defense and put on expert testimony, based on the defense expert's examination, to support that defense.  Shouldn't the prosecution have a comparable opportunity to examine the "crime scene" of the defendant's mind to make an effective rebuttal?  Federal Rule of Criminal Procedure 12.2 says yes, as do similar rules in most states.

Defense attorney Katyal started off on narrow grounds, arguing that the prosecution expert went way beyond the permitted rebuttal into various other matters prejudicial to the defense.  That is a reasonable argument, and if the Kansas Supreme Court had actually ruled on that ground, this case never would have made it to SCOTUS.  That question is not properly presented to the high court.

Later, Katyal gets into an argument that would, if accepted, render FRCrP 12.2 and kindred state rules unconstitutional, and even the justices who most often side with the defense are astonished, prompting Justice Sotomayor's comment above.  On this point, the decision will likely be 9-0 or perhaps 8-1.

Follow-Up on Happ Execution

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Tonya Alanez of the Sun Sentinel (Fort Lauderdale) has this story on the execution of William Happ.

It took just 13 minutes to still the beating heart of a Lauderdale Lakes woman's killer by lethal injection Tuesday evening.

But in a jaw-dropping moment before he could say any more, the condemned man confessed, apologized and asked for forgiveness.

"For 27 years, the horrible murder of Angela Crowley has been clouded by circumstantial evidence and uncertainty," William Frederick Happ said. "For the sake of her family, loved ones and all concerned, it is to my agonizing shame that I must confess to this terrible crime."
Opponents of the death penalty say it does not allow for the possibility of redemption, but there is a kind of redemption in a killer confessing, apologizing, and taking his deserved punishment.  How often does a scene like this occur when the sentence is life without parole?

The usual suspects claimed that Florida's substitute drug in its three-drug protocol could result in extreme pain if it was not properly administered so as to put the inmate "under" before the second and third drugs.  Of course, but that was the issue with thiopental as well.  The simple answer is a consciousness check between the first and second drugs.  Justice Ginsburg's dissent in Baze v. Rees was based largely on the absence of such a step from the Kentucky protocol.  (Kentucky has since adopted a single-drug protocol, although an injunction remains in effect for no good reason.)  Florida has this safeguard, as described in the story.

Florida Execution

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AP reports:

STARKE, Fla. (AP) -- Florida has executed 51-year-old William Happ for the 1986 rape and strangulation of a woman he encountered by chance in a convenience store parking lot.

Officials say Happ was pronounced dead at 6:16 p.m. at Florida State Prison in Starke. He was executed by injection.

He had been convicted of the 1986 murder of 21-year-old Angie Crowley. She moved to South Florida from Oregon, Ill., just five months before her murder.

She was traveling to visit a friend in north Florida when she stopped in Crystal River to use a pay phone at a convenience store. Happ just happened to be there. He smashed the window to the car and kidnapped Crowley. He raped her then strangled her with her stretch pants and threw her body in a canal.

Presumably, Florida went ahead with its use of mizadolam.  At least DPIC won't be able to say it's never been used in an execution before.  Obviously, any time a new drug is used it must necessarily have a first use, yet papers print that meaningless objection as if it were profound.

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Alabama Lawmaker Proposes Bill to Castrate Sex Offenders: State Representative Steve Hurst is proposing what some believe to be a very controversial bill; castrating convicted sex offenders prior to release.  Melanie Posey of Fox Alabama reports that the bill would require convicted sex offenders to be surgically castrated prior to their release if their victim was 12-years-old or younger.  Hurst believes strongly in his bill, and is confident that he would have the support of Alabama citizens if they were given the opportunity to vote on it. 
Former CA Mayor Pleads Guilty to Felony Charges: Bob Filner, former Mayor of San Diego, has pleaded guilty to felony false imprisonment and two counts of misdemeanor battery less than two months after he was forced to resign from his political position.  Monica Garske of NBC San Diego reports that the maximum punishment for the crimes he has been convicted of is four years in prison and more than $10,000 in fines.  Filner, who was elected as mayor in 2012, has been accused by several women of sexual harassment while he was both Mayor of San Diego and a U.S. Congressman. 

Florida Police to use Cameras to Combat Prostitution: Police in Sanford, Florida will begin using cameras and written letters to suspected "Johns" in order to deter and prevent future incidents of prostitution.  WKMG Orlando reports that the cameras will record license plate information of drivers who frequent high prostitution areas, allowing police to get the vehicle owner's registration information and send the registered owner a letter voicing the department's concerns.  Police departments from around the country have utilized similar approaches in an effort to reduce prostitution in their communities.

Prison's Efforts Fail to Halt Homicides:  Overcrowding and under-staffing issues continue to plague the Toledo Correctional Institution in Ohio, the deadliest of the 28 institutions in the state prison system that has seen four murders in a 13-month period.  Mark Reiter of the Toledo Blade reports that various measures taken by the institution to reduce violence, including more employees working nights and weekends, a second investigator to look for problems, additional surveillance cameras, and the hiring of more officers, have had little impact.  Leaders of the prison employees union argue that more staff are needed to control the violence.

The US Supreme Court took a narrow view of its jurisdiction to hear appeals from decisions of three-judge district courts issuing prisoner release orders, dismissing the appeal of Gov. Jerry Brown in the California prison case.

In the Prison Litigation Reform Act, Congress added prisoner release orders to the small set of cases that must be heard by a three-judge district court.  District court decisions are normally made by one judge sitting alone.  A statute going back to the 1948 revamp of the judiciary code gives the Supreme Court jurisdiction to hear appeals from orders of three-judge district courts granting or denying injunctions.  See 28 U.S.C. §1253. A parallel statute for appeals of injunctions to the court of appeals expressly includes appeals of orders "refusing to dissolve or modify injunctions."  The prisoners argued that this difference in wording excludes from the Supreme Court's jurisdiction an appeal from an order refusing to modify a preexisting injunction as distinguished from an order granting a new injunction. 

The Supreme Court apparently agreed with this argument.  Its order dismissing the appeal contains only a terse citation to §1253.  Institutionally, the court has an incentive to construe its direct appeal jurisdiction as narrowly as possible.  Unfortunately, in this case, the result will be either massive expenditures by an already strapped state or release of dangerous prisoners resulting in the rape, robbery, and murder of victims who could and should have been protected.

The Supreme Court's order is purely procedural and does not imply endorsement of three-judge panel's intransigence.  Gov. Brown can and should continue to fight this order with every available means.

CJLF's press release is here.

Update:  Paige St. John has this story in the LA Times.

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School: Transgender Student's Rights Trump Privacy:  Female students at a Colorado high school have been threatened with disciplinary action if they continue to voice their concerns over being harassed by a male student who is allowed to use female restrooms on campus based on the claim that he is transgendered.  The Daily Mail reports that school administrators told concerned parents that the girls' right to privacy is not as important as the boy's right to be transgendered, and that if the girls continue to complain they may be removed from athletic teams or punished with hate crime charges.  School officials have suggested that female students possibly give up some of their restrooms on campus in order to accommodate their transgendered classmate and alleviate tensions.   

OK to Execute Child Rapists?:  The Ohio legislator, John Becker, has introduced House Bill 244 which would permit the death penalty for repeat sexual offenders found guilty of aggravated rape, aggravated sexual battery, or aggravated unlawful sexual conduct with a minor.  The Youngstown News reports that while such a bill would receive the moral support of many Ohioans, it would likely be held unconstitutional by the U.S. Supreme Court.  Other states which have adopted similar laws  have not utilized them or had them tested in court. 

Prisons Using Computer Algorithms for Parole Eligibility:  In an effort to cut costs at correctional facilities, prison parole boards in at least 15 states are turning to computerized risk assessments to weigh various factors and determine which inmates are most likely to commit new crimes while free on parole.  Jacob Kastrenakes of The Verge reports that the automated systems are showing signs of success - findings from 2011 point out a 3 percent decrease of re-incarcerated parolees since 2006.  The algorithms assess factors such as an inmate's age during their first arrest, fairness of their conviction, and level of education.

Legislation Targets Sex Offenders who Remove Tracking Devices: California's Governor Jerry Brown has signed legislation that will prevent paroled sex offenders who remove their court-ordered tracking device from being eligible for early release from county jail.  The LA Times reports that offenders arrested for removing their GPS device will be sentenced to a mandatory 180-day sentence in county jail.  The legislation is aimed at deterring sex offenders from violating their terms of release.  Under the Governor's Realignment law, offenders were often released from jail less than 24 hours after removing their tracking-device. 
"The claim by five convicted killers that Connecticut's death penalty law is racially biased was rejected on Friday, almost a year after a trial in Superior Court ended and more than eight years after the case began,"  Kelly Glista reports for the Hartford Courant.

During the trial, which ran for more than 10 days from September to December last year in a makeshift courtroom inside Northern Correctional Institution in Somers, the petitioners' case depended greatly on a study by Stanford Law School professor John J. Donohue III of the state's death penalty prosecutions.

[Judge] Sferrazza wrote that not only is the generic statistical information provided by Donohue insufficient to prove racial disparity under the state's requirements, but that Donohue's conclusions were "questionable and lacked probative value."

We've seen this movie before.  Three decades ago.  The notorious Baldus Study in Georgia supposedly "found" a racial "effect" regarding the race of the victim.  The Federal District Court found, after a full trial, that the study did not show what it purported to show.  To the extent it showed anything, it showed the opposite.  Yet the study is cited and the court adjudication ignored, even by people who should know better.  See my article last year in the Ohio State Journal of Criminal Law.  See also this post from 2011.

Update:  Judge Sferrazza's opinion is here, and very well done.

SCOTUS This Week

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The US Supreme Court has a two-day calendar this week, rather than the usual three-day, due to the Columbus Day holiday.  The orders list from Friday's conference will be issued Tuesday.

The most important case on the list is the California prisoner release case, Brown v. Plata, No. 13-198, challenging the three-judge court's order to reduce California's prisoner population to a level that even the notoriously soft-on-crime Gov. Jerry Brown asserts is dangerous.  This case is a mandatory direct appeal, rather than a discretionary writ of certiorari, but there is an odd jurisdictional question regarding whether the case actually falls within the high court's direct appeal jurisdiction.  Earlier, the Court turned down a stay application by Brown.  An amicus brief by yours truly on behalf of the four living former governors in support of that motion is here.

SCOTUSblog has other petitions to watch here.  The Cert Pool has the full list, with capital cases flagged, here.

The heavy news coverage this week will be on Schuette v. Coalition to Defend Affirmative Action, argued Tuesday.  It's off topic for the blog, but FWIW here are opposing opinion pieces in the New York Times and Wall Street Journal.

The two criminal cases are set for argument Wednesday.  Kansas v. Cheever involves a compelled psychological examination of a defendant who makes a mental defense but does not claim he is mentally ill.  CJLF's brief in support of the state is here.  An earlier post written after the state court decision is here.   Update:  Hurst Laviana of the Wichita Eagle has this story.

Also up Wednesday is Kaley v. United States, regarding whether an indicted defendant's allegedly ill-gotten gains can be frozen when he needs them to pay his lawyer.

The Consequences of Unseriousness, Part II

The problem is not that those campaigning for counseling over prison never learn. The problem is instead that the consequences of their persistent obliviousness get visited on other people, often including the defenseless. The most recent story involves the beating death of the toddler son of Minnesota Vikings running back Adrian Peterson (emphasis added): 

The suspect [Joseph Patterson] in the alleged beating death of NFL star Adrian Peterson's two-year-old son reportedly has a history of domestic violence against women and children....

Court records show Patterson was previously indicted in 2012 on counts of simple assault of a woman and her 3-year-old son, The Argus Leader reported....

The report says Patterson was sentenced to a year in jail for the charges and for violating a no contact order, but the sentence was suspended on terms that he undergo counseling.

I'm usually pretty good with words, but I can find no words to capture the mind-bending arrogance and callousness of those whose deliberate ignorance results in outrages like this  --  and who then insist that it's law-and-order types who lack compassion.

Propofol Execution Is Off Again

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Missouri Governor Jay Nixon has caved in to European pressure and called off the planned execution using the anesthetic propofol.  Jim Salter has this story for AP.

"As governor, my interest is in making sure justice is served and public health is protected," Nixon said in a statement. "That is why, in light of the issues that have been raised surrounding the use of propofol in executions, I have directed the Department of Corrections that the execution of Allen Nicklasson, as set for October 23, will not proceed."

Nixon, a Democrat and staunch supporter of the death penalty, did not specifically mention the EU threat in his brief statement. Nixon was Missouri's longtime attorney general before he was first elected governor in 2008. During his 16 years as attorney general, 59 men were executed.

The leading propofol maker, Germany-based Fresenius Kabi, and anesthesiologists had warned of a possible propofol shortage that could impact millions of Americans if any executions took place.

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Released by Overcrowding, Arrested Again:  Over 400 inmates accused of crimes have been released from the Washington County jail in Oregon this year due to overcrowding.  Amy Frazier of KOIN reports on this spike, which is significant when compared to the total of three inmates who were forced released in 2011 and 2012.  Of the 164 inmates who were released during the first half of 2013, 15 of them (about 9%) were arrested in the county for new crimes.  The sheriff's office plans to monitor these findings while they continue to search for more solutions to overcrowding.

Mexico Releases DEA Agent's Killer After 28 Years:  After 28 years in prison, drug lord Rafael Caro Quintero of Mexico walked free when a court overturned his 40-year sentence for ordering the 1985 kidnap and torture murder of US DEA agent Enrique Camarena.. Adriana Gomez Licon of the Associated Press reports that both the U.S. Department of Justice and Mexico's Attorney General expressed concern over the decision, but the DEA is committed to ensuring that Caro Quintero will face charges in the United States for his crimes.  Quintero is a founder of one of the earliest and largest drug cartels, and U.S. authorities suspect that collusion and bribery occurred within the Mexican court system which expedited his release.

Dallas County Begins Fast-tracking Domestic Violence Cases:  The Dallas County felony court is now fast-tracking cases of family violence and those with child victims in an effort to prevent future attacks.  Jennifer Emily of Dallas Morning News reports that as domestic violence cases get older, they become weaker and victims' trauma inevitably increases.  State judge Rick Magnis says that the county has an "optimistic goal" of moving defendants with a high risk for future family violence through the courts within six months of an indictment.

Prosecutors to seek Death Penalty for Inmate Murder: Missouri prosecutors will seek the death penalty for an inmate accused of murdering a fellow prisoner.  The Associated Press reports that 24-year-old Terry Volner murdered an elderly inmate after the men were moved into the same cell.  Volner was already serving a life sentence without the possibility of parole after murdering a 4-year-old boy in 2011 and dumping his body in a sewage lagoon.

Transparency for Thee, But Not for Me

The "ACS" stands for the American Constitution Society, a liberal-leaning group which was founded to be a sort of Federalist Society anti-matter.  It has its share of provocative speakers, which is all to the good as far as I'm concerned.

It was thus disappointing to read Ed Whelan's post about how our liberal friends at the ACS, who yelp every day about the need for transparency, seem to have decided that hiding the ball is the better option when transparency is going to open the door on just how radical some of their favorites are, including and especially favorites who have an eye on the bench. 

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Texas Executes Man Convicted of Murdering Parents: Texas has executed its 14th inmate so far this year, 43-year-old Michael Yowell.  Michael Graczyk of the Associated Press reports that Yowell killed his mother, father, and grandmother before setting fire to their family home on Mother's Day in 1998.  Yowell's attempt to delay his execution by appealing to the U.S. Supreme Court that he received "shoddy legal help" had been denied earlier this week.  See also Kent's post yesterday.

Ex-Detroit Mayor Sentenced to 28 Years in Prison: Kwame Kilpatrick, who at one time was the very popular Mayor of Detroit, has been sentenced to spend 28 years in prison after being convicted on several corruption charges.  Christy Strawser of CBS News reports that Kilpatrick was given the lengthy sentence after being found guilty on several counts of racketeering, bribery, extortion, and tax crimes.  Detroit's U.S. Attorney has also recommended that Kilpatrick pay $9.6 million to the city of Detroit for restitution.

Arizona Executes Oldest Person on its Death Row: An Arizona man sentenced to death almost 35 years ago was executed Wednesday evening after his final attempt at an appeal was denied.  The Associated Press reports that 71-year-old Edward Schad Jr. was charged and convicted of murder after killing a man during a robbery and then dumping his body along a highway in 1978.  Schad was out on parole at the time of the murder for a 1968 attempted murder charge for the strangulation death of his male partner.  See also Kent's post Tuesday.

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Convicted Sex Offender Accused in Another Sexual Assault: A California sex offender, with a criminal record dating back 20 years, is the suspect in yet another sexual assault that took place on the campus of Fresno State University.  Marc Benjamin of the Fresno Bee reports that 49-year-old Fidel Tafoya removed his court-ordered ankle monitor Monday night before heading to the campus library and allegedly groping a female student.  Tafoya has a lengthy criminal record, and has been in and out of prison due to multiple assault and attempted rape convictions.

New Jersey Town to Regulate Panhandling:
Beggars in a New Jersey town will now be required to obtain a permit before they will be allowed to ask other citizens in their community for money.  The Associated Press reports that the ordinance forbids panhandlers from 'aggressively begging', which includes blocking or obstructing pedestrians and vehicles, begging near an ATM, or in exchange for service.  Violators of the ordinance are subject to a $250 fine and possible jail time.

Fourth Inmate Fatality in 13 Months:  Toledo Correctional Institution in Ohio suffered its fourth fatal assault this week amid a rise in violence that started after the prison began to double-cell its inmates to deal with overcrowding.  The Associated Press reports that assaults jumped between 2010 and 2012 in a facility that already has the state's highest rates of staff turnover and prisoner homicides.  As the prison added hundreds of inmates beginning in 2011, inmate-on-inmate assaults significantly increased.

'Too Intoxicated' Murder Defense: 
In New York, three people convicted of murder in fatal car accidents urged the state's highest court to toss out their convictions, arguing that they were "too intoxicated" to be aware of the danger they posed.  Michael Virtanen of the Associated Press reports that the defense attorneys for the three convicted individuals argue that the prosecution's contention that they acted with "depraved indifference to human life" does not apply to these cases because their clients were too impaired to know what they were doing.  All three convictions were upheld by a midlevel court.  The decision by the Court of Appeals is expected next month.
The Fifth Circuit yesterday decided Whitaker v. Livingston, No. 13-70031.  A co-plaintiff in the case is Michael Yowell, a Texas triple murderer scheduled for execution at 6:00 p.m. CDT today. Walter Nett has this story in the Lubbock Avalanche-Journal.

The notion that getting execution drugs from a compounding pharmacy presents an unconstitutional risk of severe pain is speculative to start with.  It is negated to a near certainty if the state has the drug tested to ensure purity and potency, which Texas has done.  An excerpt from the opinion follows the jump.

The Consequences of Unseriousness

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Q:  What happens when crime gets discovered, but no serious punishment ensues?

A:  It gets repeated.

And what happens when it gets repeated?  Read the story and see for yourself.

Should any of us wait to hear from the defendants' counsel how, in the case seven years ago, they were protecting the "vulnerable" from the sinister forces of the state? Who exactly  --  the prosecution or the defense  --  is being compassionate here? 
A number of times on this blog, I have been critical of the way poll questions on the death penalty are worded.  See prior posts here, here, and here.  An internal poll taken for the folks who want to fix California's death penalty asked the question in a way that captures the real public policy question better than any I have seen:

Some people argue that the death penalty should be repealed because it is too complicated and rarely enforced. Regulations have cost taxpayers millions of dollars because inmates must be kept in separate cells, and the appeal process is long and costly. Life in prison will be cheaper for taxpayers.

Others say that we should keep the death penalty in California but reform it to reduce the number of frivolous appeals and lengthy delays. Death row prisoners should not get expensive special treatment, like private cells, and should be forced to work and make restitution to their victim's families. Instead of repealing the death penalty, we should fix the system so that it is enforced.

Which of these two views do you agree with more -- the first statement or the second statement?
The first statement is essentially the argument for Proposition 34, death penalty repeal, on last year's California ballot.  The second is the "mend it, don't end it" position.
Federal public defenders are screaming loudly across the country that the sequester has cut their budgets below what is necessary to perform their essential functions.  Yet some FPDs continue to squander public funds filing claims they should not be filing.

Edward Schad's long-overdue execution is scheduled for tomorrow in Arizona.  The US Supreme Court opinion affirming the judgment on direct appeal 22 years ago is here.

In addition to all the challenges to the court proceedings, the federal public defender filed an action attacking the executive clemency proceedings.  The primary US Supreme Court precedent on such an attack is Ohio Adult Parole Authority v. Woodard (1998).  This is a 4-4-1 split opinion, so we have to pick our way through two opinions to decide what has been decided and what is open.  Judicial review of executive clemency, a core function of a coordinate branch of government, is allowed either (1) never, or (2) only under extreme circumstances, such as decision by flipping a coin or cases of bribery.  Which of these alternatives is correct is unresolved, but the law is certainly no more favorable to the inmate than (2).

As is evident from the Ninth Circuit's opinion in Schad's case, nothing remotely close to alternative (2) is involved in this case.

So why were scarce resources, needed to perform the FPD's core functions, squandered on this patently meritless action? 

News Scan

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CA Governor Vetoes Bill That Would Allow Non-Citizens to be on Juries: Governor Jerry Brown has vetoed a bill that would have allowed non-citizens who are in the country legally to serve on a jury.  The Associated Press reports that the bill, which was passed by the Legislature earlier this year, would have made California the first state in the country to allow non-citizens to participate in jury duty.  Each year, approximately 10 million Californians are summoned for jury duty, about 4 million of those summoned are eligible for service.

Jury Convicts Inmate in Capital Murder Case: An Arizona jury has convicted John McCluskey with capital murder in the killings of an elderly couple a few days after he escaped from prison with two other fugitives.  The Associated Press reports that McCluskey escaped from prison in August 2010 and murdered the elderly couple after kidnapping and carjacking them at a New Mexico rest stop.  McCluskey is eligible for a death sentence or life without parole. 

Prior Felony Question Removed from Illinois Job Applications: The governor of Illinois has eliminated the question on  state-job applications that asks if an applicant has previously been convicted of a felony.  CBS Chicago reports that while applicants won't be required to disclose prior convictions in the beginning stage of the application process, state employers will still be allowed to conduct background checks and have access to criminal records later on in the hiring process.  The order, which has also been called "Ban the Box", will not require employers to hire ex-cons.

Eric Holder's 2014 Racial Politics

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Voting fraud is a crime, yet the nation's chief law enforcement officer continues to attack states for taking modest, innocuous steps to prevent it.  The WSJ has this editorial with the above headline.

Standing Up to Europe

In 1776, the United States of America declared that our people were going to "assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature's God entitle them."  Our forefathers then fought a long and bloody war to make that declaration a reality.

Among other things, that means we are not going to let Europe tell us whether we can give our worst murderers the punishment they deserve.

Alan Zagier reports for AP:

Missouri will move ahead with two planned executions despite efforts in Europe to block a common anesthetic from being used in the procedure, Gov. Jay Nixon said Monday.

German company Fresenius Kabi produces almost the entire supply of propofol, but the European Union is considering possible export limits as part of its anti-capital punishment policies. Missouri has enough to carry out it next two executions and one more, the first scheduled for later this month, but Nixon declined to say what the state would do if it is unable to get more propofol. The drug made headlines in 2009 when pop star Michael Jackson died of an overdose. The Missouri executions would be the first to use propofol.

Nixon said state and federal court systems, not European politicians, will decide death penalty policy in Missouri.

Peter Hall of The Morning Call (Allentown, Penn.), reports:

Three men sentenced as teenagers to life in prison without parole will have an opportunity to convince federal judges they should be resentenced following a U.S. Supreme Court decision saying that practice is unconstitutional.

The U.S. 3rd Circuit Court of Appeals ruled Thursday the men can file appeals to their state sentences to determine whether the Supreme Court's decision applies in their cases.
First, it should be noted that the Supreme Court did not "say[] that practice is unconstitutional."  It said that having that sentence mandated by law, without discretion in the sentencer to opt for a lower sentence on the individual facts of the case, is unconstitutional.

The decision Thursday involves an arcane bit of federal procedure and is easily misunderstood.  The Third Circuit has not decided that Miller v. Alabama applies retroactively on federal habeas corpus to cases long since final on direct appeal.

News Scan

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Execution Set for Wednesday, but Legal Issues Pending: Texas murderer, Michael John Yowell, is scheduled to be executed this week for the murder of his parents that took place 15 years ago, but legal issues could put a halt to the process. Walt Nett of the Lubbock Avalanche Journal reports that Yowell's final petition for review is pending before the U.S. Supreme Court, which began its term this morning.  Yowell's defense counsel is also asking a federal judge to block the execution in order to hear a challenge to the state's decision to use of a compounding pharmacy to make the execution drug pentobarbitol.  

Kansas Inmate Gets 22 Additional Years After Attacking Guard: A murderer doing hard time in a Kansas prison was sentenced to an additional 22 years on Friday for attacking and nearly killing a prison guard. The Associated Press reports that the additional time will have little effect on whether Dajuan Wilkerson ever leaves prison.  Wilkerson' was serving a 50 year sentence for murder and attempted murder when he attacked the guard. 

US Soldier Stabbed to Death in Possible Hate Crime: Washington police are searching for five black suspects in the weekend murder of a white US Soldier.  Authorities believe that the attack may have been racially motivated.  Jonathan Kaminsky of Reuters reports that the 20-year-old soldier was walking early Saturday morning with two friends when someone in a car driving by allegedly yelled a racist comment.  The car then stopped and the five occupants confronted the soldier, which witnesses report ended with the solider collapsing with multiple stab wounds.  

First Monday in October, 2013

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The US Supreme Court opened its October 2013 term today.  The orders list is here. As expected, no new cases were taken up for full briefing and argument.  A shorter list of cases taken up was announced last Tuesday, noted here,  here, here.  Today's list contains a number of "vacate and remand" orders where a case is sent back to a lower court to reconsider in light of a US Supreme Court precedent decided after the lower court's decision.  There are a bunch of unremarkable procedural orders, and then a very long list of cases turned down.

Among the capital cases previewed here September 26, the remaining prisoners' petitions were all denied.  Arizona's petition in Ryan v. Hurles, No. 12-1472, has been "relisted" to be considered again this Friday, October 11.
Alan Johnson has this story in the Columbus Dispatch. Ohio's revised policy, announced yesterday, permits the state to obtain lethal injection drugs from compounding pharmacies.

Ohio's policy also was modified to allow two other drugs, Midazolam, a sedative, and Hydromorphone, a strong opiate, to be used intravenously in case pentobarbital is unavailable. The two drugs previously were to be used only for direct intramuscular injection.
The head of the Ohio Pharmacists Association questions whether a pharmacist would be willing to be "willing to fill a prescription meant to kill a patient."  But of course this is not a prescription, and the murderer is not a patient.

Gun Control, Mars Edition

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Reasonable minds differ on the subject of gun control.  I know thoroughly sensible people in law enforcement who favor strict measures, on the theory that anything that stands even a chance of getting guns off the street makes life safer  --  and, in particular, makes life safer for them.

My own view is that the problem is less guns than the people who use them for criminal purposes.  I have never heard a persuasive rebuttal to the notion that, "if you outlaw guns, only outlaws will have guns."

But whatever one might think of it, some "gun control" measures must have been hatched on a different planet.  I knew academia was the home of some kooky ideas, but this one, from grade school no less, must be the all-time winner.

News Scan

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Prosecutors Seeking Death Sentence for Inmate:  An inmate at a high-security federal prison in Kentucky is facing a possible death sentence for the murder of a fellow prisoner. Brett Barrouquere of The Associated Press reports that the charged inmate, John Travis Millner, has a history of violence in and out of prison, and this is not the first incident of acting violently towards other inmates and prison employees. Millner is already serving a life sentence for another murder that took place in 2002. He is awaiting his arraignment on Tuesday.

UK Seeks to End Inmate Early Release:  New government plans are underway in the United Kingdom, plans which would eliminate the automatic early release of inmates jailed for child rape and certain terror offenses. The British Broadcasting Corporation reports that instead of being released automatically on license, the affected inmates who wish to be freed early must prove to the Parole Board that they are no longer a danger to society. Though lawfully sound, some critics are worrisome of the burden such a policy would place on an already overwhelmed Parole Board.

Attitude Shift 20 Years After Death of Polly Klass
:  Twenty years after the kidnap and murder of 12-year-old Polly Klaas, public attitudes concerning stranger abductions and the three strikes law are reportedly softening. Kevin Fagan of SF Gate reports that a 50 percent drop in the crime rate against children since 1993, as well as a feeling from some members of society that the three strikes law was too severe are among the reasons for this evident shift in attitudes. Proposition 36 has ended life sentences for offenders whose third strike was not violent or serious, which has shown to lower the rate of reoffending compared to other newly freed prisoners; but some individuals, including Polly's father Marc Klaas, are still proponents of the law's original policies that sentence any third-time felon to life in prison.

News Scan

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Unmonitored Parolee Accused of Murder: An Illinois man released from prison early and put on parole has been accused of murdering a man before authorities were able to fit him with a court-ordered ankle monitor.  John O'Connor of the Associated Press reports that 28-year-old Joshua Jones, who was released from prison five months early, was ordered to wear an electronic ankle monitor for six months after his release from prison, which authorities now reveal never happened.  Jones was released under Illinois' new early-release program that allows nonviolent offenders to have their sentence shortened in an effort to encourage and reward inmates that display "good prisoner behavior behind bars."

Illegal Immigrants Allowed to Apply for CA Driver's Licenses: Governor Jerry Brown has signed a bill that will allow illegal immigrants in the state of California to apply for a driver's license.  Amy Taxin of the Associated Press reports that the licenses will not be considered as a federal form of identification and will appear differently than licenses issued to US citizens. The licenses are expected to be issued beginning January 1, 2015.

Texas to Replace Expired Execution Drug: The state of Texas has enlisted the help of a compounding pharmacy in order to replace the drug they have been using to carry out lethal injections, pentobarbital.  The Associated Press reports that drugs manufactured in compounding pharmacies are custom-made and aren't mandated or scrutinized by the federal government.  The Texas Department of Criminal Justice has purchased eight vials of pentobarbital from the pharmacy, which is just enough to carry out the next four scheduled executions.

NRA to Sue the State of California: The National Rifle Association has announced it will sue the state of California if Governor Brown signs a bill that will ban the future sale of most types of semi-automatic rifles.  Fox News reports that the bill, which has already been approved by state lawmakers, would alter the definition of an assault weapon by including semi-automatic rifles that are able to hold more than 10 rounds.  The deadline to either sign or veto the bill is October 13.

Midazolam Hydrochloride

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From the Sunshine State comes the latest candidate for a lethal injection drug. Steve Bousquet reports in the Tampa Bay Times that Florida is switching to this drug for the first drug in its three-drug method, now that it is no longer able to obtain pentobarbital.

The new drug is midazolam hydrochloride, a sedative that legal experts say has no track record of effectiveness on death row because it has never been used in an execution in the United States.
Well, of course not.  Any new drug, by definition, will have no track record in executions.  And who is the legal expert?  You guessed it -- Richard Dieter, an advocate for the anti-death-penalty side, not identified as such in the story.

But we don't need a track record in executions.  We know from experience in surgical use what dose is sufficient to put someone "under" so he doesn't feel pain, and that is all that is necessary.

For medical use, safety and effectiveness of a drug is demonstrated in trials with volunteers.  There aren't a lot of volunteers for executions, but Florida apparently has one.

Bringing Dishonor to an Honorable Calling

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Being a prosecutor is in some ways easy and in some ways hard.  It's easy because just about all your defendants are guilty as sin, and there's plenty of evidence to prove it.  It's also easy because, when you go home at night, you do NOT have to explain to your 12-year-old why you did your darndest to fox the jury into acquitting a child molester so he could go home and do it again to someone else's 12-year-old.

It's hard because, as a result of your efforts, you'll get branded in academia, the ACLU, the NACDL and NAMBLA  —to name several dissimilar organizations united in their contempt for prosecutors— as a sleazy, heartless thug without a wisp of compassion.  It's also hard because there is the occasional very, very bad apple in the barrel.

One obvious case we've discussed is Mike Nifong, a politically-motivated, anti-white thug (not to put too fine a point on it).  Another is Bill Killian, an Obama-appointed U.S. Attorney who all but threatened to jail anyone who had something unpleasant to say about Muslims (although trashing Christians and Jews seemed to be OK).

Today, Scott Johnson at Powerline tells the story of yet another Obama-appointed U.S. Attorney, James Letten, who either oversaw, or turned a blind eye toward, long-running, scandalous misconduct by his First Assistant and another high ranking AUSA during a very high-profile trial.  Fortunately, their shenanigans were discovered by some alert defense lawyers, brought to the court's attention, and now there will be, as there should be, hell to pay.

Letten, I should note, resigned shortly after the story broke and has become a dean at Tulane Law School.  He has also apparently become unhinged, as you'll see if you play the tape in Scott's story.
As noted in yesterday's News Scan and my post, Marshall Gore was finally executed in Florida yesterday.  And his final words?  None.

David Ovalle has this story in the Miami Herald:

"I thought that was quite ironic, that he had nothing to say at the end," said retired Miami-Dade Detective Dave Simmons, who investigated Gore's slew of rapes. "He played the system for years faking insanity, saying outlandish things to judges and witnesses, and in his moment of truth, he had nothing to say for himself. He was the ultimate coward in the end."
Read more here: http://www.miamiherald.com/2013/10/01/3662498/miami-killer-gore-to-be-executed.html#storylink=

News Scan

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CA Governor Brown Signs Revenge Porn Bill: California Governor Jerry Brown has signed a bill outlawing revenge porn, a move that could result in possible jail time for people who post naked photos of their exes after a breakup.  The Associated Press reports that the bill makes it a misdemeanor to post nude photos of someone on the internet without their permission, and is punishable by up to six months in jail and a $1,000 fine.  The ACLU opposes the new legislation, believing it is a violation of free speech rights.

Florida Executes Convicted Murderer: A Florida man convicted of murdering two women was executed Tuesday evening after spending 23 years on death row.  The Associated Press reports that 49-year-old Marshall Gore had been nine death sentences plus an additional 110 years for his role the murders of two women and the attempted murder of a third.  Gore's execution had been postponed on three separate occasions this year after claiming that he was part of a conspiracy theory, and that the only reason he was being executed was so that elite and wealthy people could harvest his organs. 

Sentencing Reforms to Affect Oregon Prison Population:  Sentencing reforms in Oregon are expected to drop the state's prison population by more than 500 inmates in the next two years. Les Zaitz  of Oregon Live reports that the decrease in population could save millions, and the savings could be contributed to local governments who will, in turn, utilize it to reduce recividism among non-violent offenders.  If the reforms reduce the population as predicted, the Corrections Department will be able to shift their focus on rehabilitating serious, violent offenders.

No, No, No, No, No

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On the U.S. Supreme Court's "orders list" page, there are five "miscellaneous orders" dated today, October 1.  [If you are reading this on or after the start of the term, October 7, the page will have been moved to a "prior term" page.  See the orders index page.]

The one on the bottom is the list from the long conference, noted in the two posts this morning.  The court has since issued four more orders denying relief to Florida murderer Marshall Gore.  Death penalty defense lawyers evidently think they are doing the right thing by burying courts in these floods of last-minute paper.  I don't think so.  Gore is guilty as sin.  The penalty is thoroughly deserved.  His claim of mental incompetence has been heard and rejected on the merits.  The Supreme Court only needs one petition to decide whether to take the case up.  Nothing is gained by this kind of paper blizzard.  Absent any claim of innocence, what is wrong with a lawyer saying he gave it his best shot, and now it's over?

The execution was carried out as scheduled, Tamara Lush reports for AP.

News Scan

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Convicted Rapist Carries out Duplicate Attack Upon Release: A man convicted and sentenced to five years in a British prison for the rape of a teenage girl has committed an identical attack on another teenager less than three years after being released.  Suzannah Hills of the Daily Mail reports that 28-year-old Ashad Arif was labeled as a high-risk offender prior to his release, and had been visited by police only a week before committing his most recent rape.  The Reading Crown Court has given Arif a life sentence, but he will be eligible for release after serving at least 6 ½ years of his sentence.

Prosecutors Seek Death Penalty in Brutal Murder: Prosecutors in Missouri are seeking the death penalty for a man accused of shooting his girlfriend several times in the face before leaving her to die.  Anthony Kiekow of Fox St. Louis reports that 63-year-old Terry Culberson had been arrested and convicted for assault with the intent to kill prior to murdering his girlfriend.  Prosecutors are aiming for a death sentence in the case despite a ruling that has halted all executions in the state due to a lawsuit filed by death row inmates.

Convicted Rapist Found Guilty in Cold Case Robbery: A convicted rapist already serving a life sentence has been given a second life sentence after being convicted in a cold-case robbery that took place three years before his first conviction.  Michael Dumas of al.com reports that 24-year-old David Hicks was found guilty less than 15 minutes after jurors in Mobile, Alabama deliberated for his roll in a 2008 assault and robbery of an elderly kindergarten teacher.  Prosecutors were able to charge him with robbery after DNA left on a beer can in the woman's stolen car was identified as belonging to Hicks.

Is Conspiracy a War Crime?

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Jess Bravin reports in the WSJ (subscription required):

The Obama administration on Monday pressed a federal appeals court to rule that the U.S. can prosecute foreigners before military commissions for conspiracy even though international law doesn't consider the offense a war crime.

Seeking a reversal of earlier court rulings that threw out convictions at the U.S. military base at Guantanamo Bay, Cuba, the government argued that under an "American common law of war" the military could try defendants for conspiracy.
Friday, I previewed the capital cases on the list for the U.S. Supreme Court's "long conference" yesterday. None were taken up in the short orders list released today.  Denials of certiorari (i.e., the Supreme Court declining to take the case and letting the lower court judgment stand) usually come out in the long list released when the Court formally convenes for its new term, the first Monday in October.

There was one exception to the denials-later practice today.  The Court turned down the case of Florida murderer Marshall Gore.  As noted in the prior post, Gore's claim of mental incompetence has been found to be "patently a fabrication."  He is scheduled for execution today.

The other capital cases will probably be denied Monday, although one or more might be "relisted" to be considered again at a future conference.

The case of a traffic stop based on an anonymous call is described in a separate post.

The Court also took up the case of United States v. Castleman, No. 12-1371, another variation on the federal statute barring gun possession by people with certain convictions, in this case a "misdemeanor crime of domestic violence."  This appears to be a pure statutory interpretation argument, not involving the constitutional question of whether Congress has the authority to micromanage who is allowed to possess a gun.

Traffic Stops and Anonymous Tips

The U.S. Supreme Court has taken up the case of two marijuana dealers who were busted when someone called in to report their reckless driving.  The California Court of Appeal summarized the case in People v. Navarette, A132353 (unpublished) (footnotes omitted):

Appellants Lorenzo Prado Navarette and Jose Prado Navarette (collectively, Appellants) were detained by officers of the California Highway Patrol (CHP) and subsequently arrested for transportation of marijuana and possession of marijuana for sale (Health & Saf. Code, §§ 11359, 11360). The marijuana was discovered in Appellants' pickup truck during a traffic detention after the officers received a report from an unidentified citizen that the vehicle had been observed driving recklessly. Appellants' motion to suppress the evidence seized from their truck was denied, and they pled guilty to transportation of marijuana (Health & Saf. Code, § 11360).

Citing People v. Wells (2006) 38 Cal.4th 1078 (Wells), Appellants contend that the evidence against them should have been suppressed because the anonymous tip received by police was insufficient to provide reasonable suspicion of criminal activity justifying an investigative stop of the vehicle, where the officers directly confirmed only significant innocent details of the tip but did not directly observe any illegal activity. We conclude that the totality of the circumstances in this case justified the traffic stop. We also reject an argument that the Harvey-Madden rule required the police dispatcher who originally received the call to personally testify at the suppression hearing. Because the detention was supported by reasonable suspicion, Appellants' suppression motion was properly denied and the judgments are affirmed.

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