November 2013 Archives

News Scan

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Illegal Immigrant Murders Cellmate in Order to Stay in Prison: An illegal immigrant being held in an Arizona prison admitted to authorities that he killed his cellmate out of fear that his release date was approaching and he wanted to stay in prison.  SneJana Farberov of the Daily Mail reports that 43-year-old Roberto Venegas-Fernandez has been charged with first-degree murder after prison officials say he choked and stomped his cellmate to death out of fear that he would be deported back to Mexico and have no place to stay if he was released from prison.  Venegas-Fernandez, a Mexican citizen, had been convicted of a sex crime in the U.S. and was set to be released in a few months.    

Judge Denies OJ Simpson's Bid for Retrial: OJ Simpson will remain behind bars after a Nevada judge denied his request for a retrial and upheld his conviction on kidnapping, robbery, and other charges.  Greg Botelho of CNN reports that Simpson's defense team requested a retrial based on the claim that his original attorney had a conflict of interest, improperly advised him not to testify, and failed to inform him of a plea offer made by the prosecution.  Simpson, who was sentenced to 33 years in prison in 2007, is eligible for early release, but still has at least four more years of time left to be served behind bars.

Teenage Hitman Leaves Mexican Prison for the U.S.: An American-born teenager who has spent the last three years in a juvenile detention facility in Mexico has been released and deported back to the United States by Mexican authorities.  Simon Gardner of Reuters reports that 17-year-old Edgar Jimenez was hired by the South Pacific drug cartel at the age of 14 and carried out serious crimes, including several murders, kidnapping, torture, and trafficking cocaine. Jimenez will be taken to a rehabilitation in Texas upon his release.

News Scan

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Convicted Murderer Attacks Correctional Officer: For the second time in less than a week, a correctional officer at California's prison facility in Sacramento has been attacked and severely injured by an inmate.  Bill Lindelof of the Sacramento Bee reports that the most recent attack took place Saturday evening when an officer was attempting to search the cell of a convicted murderer and was attacked, leaving the officer with multiple facial fractures and a laceration that required stitches.  This was the second attack on an officer in less than a week, the first occurred on Monday after a guard was slashed in the back of his neck by an inmate housed in a maximum-security unit.

Accused Murderer Had History of Domestic Violence: An Oregon man accused of murdering a young mother and holding her 2-year-old daughter hostage had been arrested and convicted of felony domestic violence crimes just two months prior.  Dan Cassuto of KATU News reports that Dustin Bryant had been charged with the domestic violence crimes after an attempted assault against the young woman and was sentenced to 36 months of probation, 20 days in jail, and ordered to stay away from her.  However, just a few weeks after being released, Bryant violated his parole by returning to the woman's apartment where he shot her in the head and took her daughter hostage for eight hours until SWAT officers could rescue her.

Court Rejects Murderer's Sentencing Appeal: The Nevada Supreme Court has once again rejected convicted murderer and death row inmate William Castillo's petition to overturn his death sentence.  Sean Whaley of the Las Vegas Review-Journal reports that Castillo is challenging his sentence based on the claim that two of the four aggravating circumstances found by the sentencing jury were invalid based on a previous Supreme Court ruling.  Castillo was convicted and ultimately sentenced to death after murdering an 86-year-old woman and setting her home on fire. 

Woman to Plead Guilty in Ricin Case: A Texas woman who authorities say mailed ricin-laced letters to both President Obama and New York Mayor Mike Bloomberg has agreed to plead guilty to the federal indictments she has been charged with in exchange for an 18-year maximum sentence.  The Associated Press reports that 36-year-old Shannon Guess Richardson contacted authorities after mailing the letters in an attempt to frame her husband and implicate him in the crime, a plan that ultimately backfired and resulted in her own arrest.  In addition to pleading guilty, Richardson also plans on telling the government the names of the other individuals involved in the crime.

SCOTUS Takes Qualified Immunity Case

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The U.S. Supreme Court took up four civil cases today.  The crime-related case is Wood v. Moss, No. 13-115. The Questions Presented, as framed by the Solicitor General, are:

1.  Whether the court of appeals erred in denying qualified immunity to Secret Service agents protecting the President by evaluating the claim of viewpoint discrimination at a high level of generality and concluding that pro- and anti-Bush demonstrators needed to be positioned an equal distance from the President while he was dining on the outdoor patio and then while he was travelling by motorcade.

2.  Whether respondents have adequately pleaded viewpoint discrimination in violation of the First Amendment when no factual allegations support their claim of discriminatory motive and there was an obvious security-based rationale for moving the nearby anti-Bush group and not the farther-away pro-Bush group.
All the press coverage will be on the birth-control insurance cases.

Update: Not quite all.  Robert Barnes has this story in the WaPo.

As the Justices were prepping for the conference, the heavy news coverage was of the 50th anniversary of the assassination of President Kennedy.  All but Justice Kagan are old enough to remember that day.

Going to Prison Will Ruin Your Life

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...or so say those who urge less prison and more resort to "community based programs"  a phrase that means, roughly translated, "Let them run wild while we pretend to monitor them and then profess shock at their next murder."

Still, trying to take this seriously, is it the case that going to prison will ruin your life? Well, it's going to create complications, you bet.  If you're honest, you'll have to tell prospective employers about it.  The time you spend there will be time subtracted from your career. Your treatment, everything from diet to clothing to medical care, is not going to be optimal (unless you demand a sex change, in which case you get transferred to the Ritz). Sometimes the treatment can be worse than substandard; it can be abusive.

So does going to prison ruin your life?  Ask Ms. Alice Herz-Sommer.  And remember her story the next time a defendant or defense lawyer tells you that incarceration is the death knell of a productive future.

The Root Causes, and So On....

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We are often lectured about the "root causes" of crime.  They turn out to be numerous, but have one thing in common:  It's never the fault of the guy who did it.  It was someone or something else's fault:  Fell in with the wrong crowd, was off the meds,  neglectful parents, racism, poverty, bad schools, the One Percent, brain lesions, too many Twinkies, not enough Twinkies, lead paint, "urban survival syndrome," you name it.

And some of those may, from time to time, have had something to do with it.  But the main proximate cause of crime is right in front of our eyes: The criminal's blanked-out attitude toward his fellow creatures  --  a simple, if sometimes breathtaking and violent, indifference to the fact that other people have feelings just like he does.

This was seldom on better display than in the aftermath of an armed robbery in Ohio. The robber apparently was on his second escapade of the month (he was out on bond for the first).  This time a store customer shot him.

His parents' reaction was something less than contrition.  Perhaps this particular young man would have done better with less attention and more neglect from his doting parents, who seem to have little knowledge about their son's activities and even less interest in finding out.

It's also a lesson about how thoroughly we're in the grasp of the culture of victimization. It's a mistake to think that such a culture will permanently content itself to serve as the prop for criminal defense.  Its next step  --  and it's a logical step --  is affirmatively to strike out against The Privileged and the Callous, roughly meaning everyone who leads a normal life and tries to be responsible for himself.  Or even just someone who wants to make a trip to the Dollar Store.

News Scan

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Death Row Inmate Suspect in Another Murder:  An Ohio man recently sentenced to death for murdering a 23-year-old mother and her two young children is now the focus of an unsolved 1994 murder that investigators have reopened.  SF Gate reports that inmate Curtis Clinton used to live in the same neighborhood as 73-year-old Ida May Franklin and frequently visited her prior to her death.  In April 1994, Franklin's body was discovered under a mattress propped against a couch, strangled and with her throat slit.  Similarly, in September 2012, Heather Jackson's body was found between a mattress and a box spring; she and her two children had also been strangled.  Jackson and her children were killed seven months after Clinton was released from prison for a 10-year sentence of involuntary manslaughter, also involving the strangulation death of a woman.

Criminal Who Inspired Three Strikes Released on PRCS:  The man whose lengthy criminal history inspired California's three strikes law is out of prison and living in Fresno after being released under the state's prison realignment law.  CT Post reports that because Realignment defines Douglas Walker's last crime was non-serious, he has been released on post-release community supervision, rather than state parole.  In 1992, Walker received a nine-year sentence for robbery, attempted robbery, and accessory charges in the shooting death of 18-year-old Kimber Reynolds.  His most recent conviction was for grand theft.  The author of the three strikes law believes Walker will commit another crime.

Details Surrounding Sandy Hook Shooting Released: Connecticut authorities revealed today that they have yet to establish a motive behind last December's deadly Sandy Hook Elementary shooting that resulted in the deaths of 20 first-graders and six adults.  Fox News reports that the 44-page summary released today by the state indicates that suspected gunman, 20-year-old Adam Lanza, had a fascination with mass-shootings and collected newspaper articles detailing similar shootings from around the world.  It was also revealed that Lanza suffered from 'significant mental health issues', but refused to seek treatment or medication.

The Follow-Up You Won't Hear About

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A few days ago, Ms. Cyrstal Mangum, a one-time "exotic dancer," was convicted of second degree murder in the stabbing death of her boyfriend.

Now that's not much of a story.  There are thousands of murders every year.  But we have visited with Ms. Mangum before.  Her story, recounted here, reminds us again of the astonishing rot, mendacity and, to be honest, hate that runs rampant in academia.

For anyone wondering why the Left was rooting, for once, for prosecutors to win out (in the George Zimmerman trial) even though the state obviously failed to meet its burden, and anyone wondering why the Knockout Game gets pushed to the back of the papers, wonder no more.  It all started years ago.
There are few counties in the country as solid liberal as Marin County, California, on the north end of the Golden Gate Bridge.  The county voted 74-23 for Obama v. Romney.

Yet even here, there are some crimes and criminals so horrific that a jury will unanimously find death to be the appropriate punishment.  We know from polls that when you focus people on the murders at the upper end of the heinousness scale, support for the death penalty rises even among those otherwise ambivalent.  Gary Klien reports for the Marin Independent Journal:

Calling him "an evil and disturbed man," a Marin County judge sentenced convicted serial killer Joseph Naso to death Friday for the murders of six women over a span of nearly two decades.

Judge Andrew Sweet said the evidence proved that Naso inflicted "abhorrent and repugnant levels of suffering and cruelty" on the victims, and humilitated them even more by meticulously documenting the crimes in his diaries and photographs.

The case is also Exhibit A for search conditions on probationers and parolees.  See United States v. Knights (2001).

News Scan

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Man Serving Life Sentence for Murder Found Guilty in 1974 Homicide:  A man already serving a life sentence for a 1983 double-murder was found guilty yesterday in the 1974 killings of an Ohio couple and their four-year-old daughter.  Glenn Stevens of WFMJ reports that James Ferrara's fingerprints matched the three that were lifted from the crime scene 39 years ago when they were resubmitted to a computerized database in 2009.  Prosecutors state that the fingerprint evidence against Ferrara are stronger than DNA evidence.  At trial, they offered no motive for the slayings.

Convicted Sex Offender Accused of Rape and Kidnapping: A Texas man has been arrested after failing to register as a sex offender and has been named as the primary suspect in an alleged kidnapping and rape of a 30-year-old woman.  Grand Lake News reports that the woman reported to authorities that she was knocked unconscious, forced into a vehicle, and taken to a mobile home where she was raped.  The man accused, Terry Stanfill, recently moved to Missouri after serving a 25-year sentence in Texas for an unrelated aggravated sexual assault charge. 

Missouri to Carry Out More Executions With New Method:  After successfully carrying out its first execution in almost three years on Wednesday, the state of Missouri is expected to start proceeding with more executions utilizing their new supply of pentobarbital made by a compounding pharmacy.  Chris Blank of the Associated Press reports that the courts have given Missouri a green light to go ahead with their scheduled executions, and the state Supreme Court has been urged to set the dates for 17 death row inmates.  Allen Nicklasson is the next murderer scheduled to die on December 11, 2013, for the 1994 murder of a businessman who stopped to assist Nicklasson with his broken down vehicle along Interstate 70.

Parole Sought for Dying Inmate Sentenced to Life as a Juvenile:  A female inmate dying of stage four breast cancer, once the youngest lifer in Iowa's prison system, was resentenced this week and recommended for parole by a Polk County District Court judge.  Grant Rodgers of the Des Moines Register reports that if Kristina Joy Fetters is granted parole, she will become the first juvenile lifer in the state of Iowa to be released after the U.S. Supreme Court ruled that LWOP sentences are unconstitutional for juveniles.  In 1995, at the age of 15, Fetters was convicted of first-degree murder of her great-aunt, who died when Fetters struck her in the head with a skillet and stabbed her five times.

Crime of the Century

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Fifty years ago today was one of those moments in history when everyone old enough to be cognizant of public affairs remembers exactly where he was when he heard the news.  I qualify for this one, barely.  It was also the first and last time I saw a newspaper "extra."

A curious note on federalism and criminal law:  Had he lived, Oswald would have been prosecuted for murder by the State of Texas.  Despite multiple past assassinations, assassinating the President was not a federal offense.  18 U.S.C. §1751 was enacted in 1965.

David Bernstein had this post yesterday at the Volokh Conspiracy on the strangeness of the press coverage.

Opening Argument at Nuremberg

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Sixty-eight years ago today, chief prosecutor Robert H. Jackson (TDY from the Supreme Court) delivered his opening argument at the Nuremberg trials.  John Q. Barrett writes an email list with lots of biographical information about Justice Jackson, although his opinions while on the Supreme Court are curiously absent, even when highly relevant to current controversies.  Today's entry is on the Nuremberg argument.  It will later be archived here, but it's not there as of this writing, so I have taken the liberty of copying it after the break.

News Scan

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CA Releasing Inmates to Save on Prison Costs: A federal court decision ordering the state of California to reduce prison overcrowding and improve the health and living conditions of inmates has resulted in elevated crime rates in cities across the state.  Michael Tremoglie of Main Street reports that also in the mix are the third strikers which have been released by Proposition 36, which made some 3,000 previously life-sentenced convicts eligible for release. Claims by the 2012 measure's proponents that recividism among the 1,000 third-strikers released so far has been remarkably low have been met with skepticism.  CJLF President Michael Rushford and Legal Director Kent Scheidegger both contributed to this article.

CA Man Sentenced for Murder and Courtroom Assault: A Northern California man has been sentenced to 50 years to life in prison murdering the mother of his children and stabbing his lawyer during the trial.  Lewis Griswold of the Fresno Bee reports that 30-year-old Rafael Mendoza had been on parole for domestic violence when he stabbed the mother of his children multiple times in the face and throat in 2010, and while on trial for the murder, stabbed his defense attorney repeatedly in the face using a weapon he made while in jail.  He pled no contest to murder, mayhem, and being an inmate in possession of a weapon. 

Realignment Offender Fit to Stand Trial: Jerome DeAvila, a Stockton man accused of raping, robbing, and murdering his grandmother in February, has been found competent to stand trial after doctors say he has been responding well to psychiatric medication.  Jennie Rodriguez-Moore of the Stockton Record reports that criminal proceedings had been put on hold earlier this year based on the claim that DeAvila's mental illness, which prosecutors dispute, made him unable to assist in his own defense.  DeAvila, a Realignment offender, had been released just days before the murder of his grandmother because the local jail was 'too full.'

Court Rejects Texas Killer's Appeal: The Texas Court of Criminal Appeals, the state's highest criminal court, has rejected an appeal from a convicted killer who contends that he was sentenced to death based on his race.  The Associated Press reports that 50-year-old Duane Buck, who was sentenced to death for a 1995 double homicide, believes the jury in his case was unfairly influenced by his own expert witness, a psychologist who testified during the punishment phase of his trial that 'black people were more likely commit violence.'  Buck, who currently does not have a scheduled execution date, plans to take his case to the U.S. Supreme Court.  

Do You Like Stephen Reinhardt?

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I sure hope you do, because you're about to get lots more judges just like him.

Today, the man who endlessly prattles about civility and bi-partisan cooperation, Majority Leader Sen. Harry Reid, with the backing of the (current) Democratic membership in the Senate, changed the filibuster rule for judicial nominees below the Supreme Court.  In doing so, he broke precedent that I believe has been in effect in the Senate for about 200 years. To their credit, three Democratic Senators, Levin, Manchin and Pryor, voted with all Republicans against the change.

Why, you may ask, is this happening now?  As usual in Washington, and particularly with this hyper-political Administration, it has to do with raw power (remember, e.g., that we got Obamacare on a Democrats-only vote, critically facilitated by what we now know was a flagrant lie about whether Americans could keep their own policies if they liked them).

In particular, President Obama has three candidates for the DC Circuit who have been unable to clear the filibuster hurdle as it stood until today.  Among them is the cordial but ideological Georgetown Law Prof. Cornelia Pillard, who has been described as "Reinhardt in a skirt but less moderate."  The Administration has an ambitious regulatory agenda it can't get through Congress because the opposition party controls the House.  It thus plans to push through what it wants via executive orders and administrative agency rules, all of which will be challenged in court.  And the court that will decide those challenges will be none other than the DC Circuit.  My goodness!

Dr. Frankenstein Nukes His Monster

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Filibustering of judicial nominees was virtually unknown until the Democrats began regular filibusters during the previous administration.  The WSJ has this Q&A on the "nuclear option," changing the rules of the Senate to prevent filibusters of presidential nominees to executive and judicial positions. 

In 2005, Republican senators threatened to [do the] same in the face of Democratic opposition to former President George W. Bush's judicial nominations. In 2008, Mr. Reid himself swore that as long as he was leader, he would never turn to the nuclear option, saying it would be a "black chapter in the history of the Senate."
Today the Senate did just that, passing the rule amendment 52-48.

Also in the WSJ is this story by Janet Hook and Kristina Peterson:

Democrats say the filibuster has been abused as a weapon of obstruction rather than a last-resort vehicle for principled opposition. Republicans have "turned 'advice and consent' into divide and obstruct,'' Mr. Reid said.
But Republicans didn't "turn" anything.  They continued straight down the trail that Reid himself had blazed when the shoe was on the other foot, although treading it somewhat more often.  Republicans have some degree of hypocrisy in their rhetoric as well, of course, but Reid takes the prize.

So for the next year, President Obama will be able to fill vacancies on the federal bench with judges who share his viewpoint to a much greater degree that President Bush was able to.  Whether that continues into the last two years of his tenure depends largely on the outcome of the next election.  It would take a pretty hefty Republican sweep to change things, but gains for the out-of-White-House party are the norm for second-term mid-term elections.

For the next four years after that, if the American people follow their usual post-WW II practice of turning over the White House every eight years (well, almost every), today's vote will result in a Republican President having a freer hand.  Hopefully the people will continue with their traditional wisdom.  Political parties are like compost piles; if you don't turn them over once in a while they start to stink.

Follow-up on Vacating the Franklin Stay

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Several posts in the last two days have noted the case of Joseph Franklin in Missouri:  the stays of execution, the Eighth Circuit's action vacating the stays, and the Supreme Court's refusal to reinstate them.  I have found the Eighth Circuit's orders in the case.  Here is the order vacating the one of the stays:

Having reviewed the parties' briefs and the record in this expedited appeal, we conclude Joseph Franklin has not met his burden under 28 U.S.C. § 2254(d) to present sufficient evidence to warrant interference with the judgment of the Missouri courts nor has Franklin proffered sufficient evidence to show a likelihood of success on the merits to support a stay of execution. See Panetti v.  Quarterman, 551 U.S. 930, 946-47, 956-57, 961 (2007). Determining the district court abused its discretion, we reverse the district court's stay of execution.

Well that's pretty short and sweet, probably due to the time pressures.

News Scan

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Stalker Released From Jail to Kill ex-Girlfriend: A Northern California woman was shot and killed Monday by an ex-boyfriend who had been stalking her. 32-year-old Renne Pinkston was shot and killed as she sat in her vehicle in downtown Winters on Monday morning.  Pinkston leaves a young daughter.  Lauren Keene of the Daily Republic reports that the suspect, 30-year-old William Carl Gardner III, was allowed to repeatedly post bail and be released back into the community despite a lengthy history of failing to appear in court and repeatedly violating the terms of his probation related to a separate domestic-violence involving another woman.  Pinkston had gotten a restraining order to prevent his continued and sometimes violent harassment. Gardner had been released from jail on a no bail warrant last Friday.  An alert sent out Friday to warn Pinkston of Gardner's release was not received until Monday, at about the time she was killed.  Gardner is still at large. 

Jury in Cop Killing Case Recommends Death Sentence: A Florida man convicted of killing two Tampa police officers in 2010 must now wait for a judge's final penalty decision after the jury presiding over his case unanimously recommended a death sentence.  Beau Zimmer of CBS Tampa Bay reports that the defendant, 28-year-old Dontae Morris, an habitual criminal,  was convicted earlier this year for a murder he committed just 30 days before killing the two Tampa officers.  In Florida, a judge has the final say when it comes to sentencing an individual to death, but is required to give great consideration of the jury's recommendation.

Mandatory Testing for Drug Felons on Welfare:  Residents of St. Louis County, Minnesota who receive state welfare benefits and who have been previously convicted of a felony drug crime are now required to take a mandatory drug test in order to receive benefits.  John Myers of the Duluth News Tribune reports that those drug felons receiving benefits will be subject to a random urinalysis prior to their eligibility reviews every 6-12 months. A positive test will result in a sanction under the state Department of Health and Human Services policy.  A second failure requires disqualification from receiving benefits. About 4 percent of the 4,616 individuals in St. Louis County receiving welfare benefits have been identified as convicted drug felons.

Serial Killer Executed in Missouri: Convicted serial killer Joseph Paul Franklin was put to death Wednesday morning after the U.S. Supreme Court lifted two stays that were granted Tuesday evening seeking to delay his execution.  Karen Brooks of Reuters reports that Franklin was the first Missouri inmate to be executed under the state's new execution protocol which allows the Department of Corrections to use pentobarbital created in a compounding pharmacy rather than in an FDA approved pharmaceutical factory.  Franklin was the 35th death row inmate in the U.S. to be executed this year.

Obstruction Sausage, Meet SCOTUS Grinder

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Kent noted yesterday that an exceptionally vile murderer, Joseph Paul Franklin, had been granted a stay of execution by a federal district judge in Missouri in order, so it was claimed, to allow the judge time to review Missouri's new execution drug protocol.  As Kent put it:

I don't have the actual ruling, but from the story it appears that the judge might believe that litigating the method of execution is the new normal, a permanent additional phase to capital litigation, and every inmate has to be allowed that challenge.  It shouldn't be.  A single-drug execution with pentobarbital is so far from the risk of extreme pain required under Baze that there normally should not be any basis for a stay.

The Supreme Court should listen to Kent more often.  I'm delighted to say that it appears to have been listening last night.  It upheld the Eighth Circuit's overturning of the lower court's stay (there were two of them, actually).  The execution has now been carried out, as recounted in this Washington Post story.

For the reasons Kent suggested, the Court's action is potentially very important. Many states have adopted new (usually single-drug) protocols post-Baze.  Defense lawyers were licking their chops, ready to file boatloads of speculative claims about the supposedly excessive risk of severe pain that the new, "untested" protocols might bring about.  The Supreme Court's refusal to indulge yet more delay on account of such claims is, at the least, a hopeful sign that this obstructionist tactic will be stillborn.

[Editor's Note:  Orders are here and here.  No dissent noted.  Scalia recused.]

The Affordable Care Act and Fraud

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The federal anti-kickback statute is a criminal statute that prohibits the exchange (or offer to exchange), of anything of value, in an effort to induce (or reward) the referral of federal health care program business. It is an essential law in combating fraud, waste and abuse of precious federal healthcare dollars.  When a patient visits a doctor, there is a tremendous financial incentive for relationships to be established between various healthcare providers to refer and provide additional healthcare tests and procedures, many of which are often unnecessary.  One of the worst offenders of the spirit of the statute is the widespread use of "pod labs" by dermatologists, urologists and other physician groups.  Pod labs are usually backroom, unaccredited pathology laboratories in which the referring physician has a financial interest.  It is obvious to even the layperson to understand that such arraignments are ripe for abuse.  If the referring physician can make more money depending on how many pathology specimens he or she refers to her own laboratory, the temptation for fraudulent charges becomes immense.   Unfortunately, the average patient has no knowledge of these insidious arraignments nor the fact that their specimens are being analyzed in an unaccredited laboratory, often by a less than stellar pathologist.

One would expect that the Affordable Care Act would constitute a "federal health care program" and therefore would be covered by the anti-kickback statute.  But one would apparently be wrong.  The Pathology Blawg has the story:

[T]he Department of Health and Human Services (HHS) has determined the federal health care exchanges and health insurance subsidies for low income individuals under the Affordable Care Act (ACA) do not constitute a "federal health care program" and therefore the federal Anti-Kickback Statute (AKS) will not apply.

Thus, it seems that fraud prevention is not high on the list of imperatives for the Affordable Care Act.  This is of course strange insofar as healthcare costs are always touted as one of the primary reasons why we need healthcare reform.  Although as Robert Radick mentions in Forbes,"the precise logic behind Secretary Sebelius's decision is not yet clear."


The Real War Against Women

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"War Against Women" is a political catchphrase used by Democrats to attack Republicans for the latter's generally more conservative views on the availability of abortion, pay "equity", government financial assistance to families, and several other questions.

There was a time when the word "war" was thought to connote violence.  None of those issues involves that; they're about other things, from religion and religiously-influenced social values to views about the size and role of the welfare state.

There is one issue, however, that very much involves violence against women  --  rape.  As to that, there really is a war being waged against women, but it's not being waged by Republicans.  It's being waged by liberal judges who seem to view rape as no big deal.

That's the only explanation I can think of for the state judge who imposed a sentence of rehabilitation and counseling  --  and not a day in jail  --  for a defendant who raped the victim three times.  The story is here.  But I should probably add that it's a little misleading for me to characterize it as a "war against women." A "war against girls" is more like it:  The victim was 14 at the time of the first attack, and 18 at the time of the last two.

Can we look forward to Chairman Leahy's demanding strong, mandatory minimum sentencing laws to prevent such mind-bending travesties in federal jurisdiction? Uh, guess not.

Buyer's Remorse

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Judicial appointments are seldom a voting issue that makes much difference.  Items like the economy, unemployment, debt, and similar pocketbook issues tend to tell the tale. When crime is on the rise, as it was, for example, in 1968 and 1972, it too can become a voting issue.  Richard Nixon didn't win because of his charm. 

Still, it makes a nice parlor game for us legal types to wonder what judicial appointments might have been under a President Romney.  The game got more interesting yesterday, in light of a Washington Post poll that found Romney would win the election if it were held now.  He would prevail by almost exactly the same margin by which Mr. Obama did a year ago.

Some of Obama's appointments have been exceptionally bright and fair-minded lawyers; others, not so much.  But few of them share the judicial outlook and approach to law that Romney and most Republicans take, and one must wonder if cases like Laffler would have come out the same way with Romney appointees on the Supreme Court.  And there is the fact that Obama has three years to go, while Justices Scalia and Kennedy are not spring chickens.

A Little Honesty, Thank Goodness

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The movement to dramatically scale back incarceration almost always assures us that those to be released will be merely "low-level, non-violent" offenders.  This promise, much like, "If you like your health insurance, you can keep it, period," is necessary to any hope the movement has of succeeding:  If people were told up front that the release of relatively less dangerous criminals is merely the prelude to the release of thousands of thugs any sane person would fear, the movement would be stillborn.

It was thus refreshing to see the other day an op-ed by two of the movement's leaders, Prof. David Cole of Georgetown and Mr. Marc Mauer of the Sentencing Project, that had the honesty to admit what most of their cohorts prefer to keep hushed up:  It's not about releasing just the supposedly harmless inmates.  It's about releasing the lot of them, including the most hardened, violent and sadistic.

Don't believe me?  I don't blame you, but read it for yourself.

P.S.  While the authors deserve credit for finally spilling the beans on what the agenda really is, they are not uniformly so forthcoming.  Thus, in the middle of their piece, they say, "As the prison population has expanded, however, whatever impact incarceration may have had on crime has confronted the law of diminishing returns." Conspicuously absent, of course, is any disclosure of what the impact of incarceration on crime actually is.  There might be a reason for that


Clarence Thomas, National Treasure

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Kent and I posted about some of the events at the recent Federalist Society National Convention.  The highlight, for my money, was the sit-down discussion with Justice Clarence Thomas.

Years ago, Joe Biden and Ted Kennedy led a dishonest and under-the-table-racist campaign to discredit Thomas and deny him a seat on the Supreme Court.  I will not rehash the details of that campaign; suffice it to say that it got much of its mileage out of the silent assumption, shamelessly peddled by Thomas's opponents, that black men have uncontrollable sexual appetites.  I have seen some appalling spectacles in Congress, but Thomas's confirmation hearing takes the cake.

The real reason for opposing him had nothing to do with Anita Hill's egged-on fabrications. The real reason was that Thomas insisted on being his own man and a powerful, independent intellect in the law.  He remains so today, for which the country can be proud and grateful.  He also remains a man of authentic humility and graciousness  --  a rarity in any part of Washington, DC.

The interview is about 50 minutes, and is here.
Jim Salter reports from St. Louis for AP:

A federal judge in Missouri on Tuesday granted a stay of execution to white supremacist serial killer Joseph Paul Franklin just hours before his scheduled death, citing concerns over the state's new execution method.
I don't have the actual ruling, but from the story it appears that the judge might believe that litigating the method of execution is the new normal, a permanent additional phase to capital litigation, and every inmate has to be allowed that challenge.  It shouldn't be.  A single-drug execution with pentobarbital is so far from the risk of extreme pain required under Baze that there normally should not be any basis for a stay.

Disciplining Ineffective Lawyers

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We often hear complaints that convictions and sentences may be overturned on the ground that the trial lawyer provided ineffective assistance, but the bar never disciplines the lawyers.

Well, not quite never.  Steve Fry of the Topeka Capital-Journal has this story on the lawyer in the Kansas case of Phillip Cheatham.

Should we see more such proceedings?  Bear in mind that it is now considered mandatory in capital appellate defense culture to savagely attack the trial lawyer regardless of how good a job he actually did.  When was the last time you saw an initial collateral review petition in a capital case that did not allege ineffective assistance?  I can't think of any offhand.  And of course for a judge or panel itching to find an excuse to overturn the sentence, IAC makes a juicy target.  The claims are so "fact bound" that a grant of relief is less likely to be reversed on discretionary review further up the chain.

If bar discipline proceedings regularly follow IAC reversals, and if such reversals are frequently made even if the lawyer did, in fact, do a good job, then lawyers may shun capital cases at trial.

On the other hand, if bar discipline proceedings are common, lawyers would have a stronger incentive not to fall on their swords in the collateral review proceeding.  They would have an incentive to do what civil lawyers do to protect themselves from accusations of malpractice.  They would document as they go along to protect themselves from potential claims and come out with guns blazing when wrongly accused.
The US Supreme Court today denied an application to vacate a stay issued by USCA5 in Planned Parenthood v. Abbott, No. 13A452. The decision of the Court is one sentence, but Justice Scalia wrote a concurring opinion, joined by Justices Thomas and Alito, and Justice Breyer wrote a dissent, joined by Justices Ginsburg, Sotomayor, and Kagan.

CJLF takes no position on the underlying question, the Texas abortion law.  I note the case here for the material it provides regarding granting and vacating stays.  Our readers who work on capital cases may find it useful.

A New Game for the Fun-Loving

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In cases like Graham v. Florida and Miller v. Alabama, we heard a good deal about the inability of younger people to discern the difference between right and wrong.

Watch this CBS tape and judge for yourselves whether anyone over the age of ten could possibly have any doubt whether the thuggish, cowardly attacks it depicts are right or wrong.

Then wait for Al Sharpton and the Trayvon Martin crowd to lecture us about the problem of white racism.  There is white racism in some (fast shrinking) quarters, for sure.  And there is also rampant, mindless, for-fun violence disproportionately among black teenage boys and young men.

That is not a popular or politically correct thing to say.  It is, however, true.  We can ignore it out of fear of being branded racists, or we can push past the intimidation and understand that it is victims, and not just victimizers, who deserve justice.  We can also quit pretending that people don't understand what they're doing simply because they're adolescents. 

P.S.  While we're waiting for Al Sharpton, we can also wait for Eric Holder to move effectively to condemn the new "game" (as he was eager to condemn incarceration in his August ABA speech).  I have a feeling we'll be waiting a long time.

Florida's New Lethal Injection Protocol

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Yesterday, as noted in today's News Scan, the Florida Supreme Court granted a stay of execution in one of the oldest capital cases, that of Thomas Knight, a.k.a. Askari Abdullah Muhammad.  The order is here.  Two justices dissent.

Knight/Muhammad challenges Florida's new injection protocol, which substitutes midazolam hydrochloride for the first drug of the three-drug protocol that was standard until the last few years.  The protocol includes a check for consciousness after the first drug, the safeguard that Justice Ginsburg found critically missing from the Kentucky protocol upheld by a majority in Baze v. Rees.

The usual constitutional test in prison medical cases is "substantial risk of serious harm."  As the Baze plurality indicated, in the lethal injection context that translates to a substantial risk of severe pain during the execution.  The Florida Supreme Court majority concludes that Muhammad "has raised a factual dispute, not conclusively refuted, as to whether the use of midazolam hydrochloride in Florida's lethal injection protocol will subject him" to such a risk.  So they send the matter to the trial court for an evidentiary hearing, followed by a rapid briefing schedule, and oral argument, if necessary, on December 18.  The stay expires in a little over a month, December 27.

On the merits, the dissent is probably right.  As a practical matter, I think the court's action is for the best.  The stay is brief.  With an evidentiary hearing, findings of fact, and a state court opinion on the merits, the resulting judgment should be close to bulletproof when (not if) the attack is made in federal court.  When these steps are missing or inadequate, the federal courts are more likely to step in, and the overall delay is likely to be longer.

News Scan

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Florida Execution Put on Hold: The Florida Supreme Court has ordered the state to hold off on the execution of Askari Muhammad, scheduled for December 3, in order to address claims that the three-drug cocktail used in lethal injections may cause unnecessary suffering.  The Orlando Sentinel reports that defense attorneys requested the delay after an execution that took place last month left the inmate conscious for "an unusually long time."  Muhammad was sentenced to death for the 1980 murder of a state correctional officer.

Illegal Alien Sentenced in Murder of Border Patrol Agent: A Mexican national, who was on supervised release by U.S. authorities when he participated in the murder of a U.S. Border agent, has been sentenced to 56 years in prison. Brandon Darby of Breitbart reports that in 2009, Marcos Rodriguez-Perez, along with three other Mexican nationals, murdered the agent at an unsecured area of the U.S./Mexico border in order to steal his night-vision goggles.  Rodriquez-Perez had been on supervised release after his conviction of smuggling other illegals into the U.S. 

Teen Sentenced to Life for Brutal Killing: A Colorado judge has sentenced 18-year-old Austin Sigg to life in prison for the October 2012 kidnapping and murder of a 10-year-old girl.  Jordan Steffen of the Denver Post reports that Sigg kidnapped the girl as she was walking to school and dismembered her body after sexually assaulting and murdering her in his family's home.  Sigg, who declined to speak during his two-day sentencing hearing, was not eligible for the death penalty due to the fact that he was 17 years old when he committed the vicious crime.

Judicial Overrides in Death Penalty Cases

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The US Supreme Court decided no cases today and did not take up any additional cases for decision on the merits.  There were a few opinions of individual justices commenting on the cases the court did not take.  One involves judicial overrides of jury sentence recommendations in capital cases.

More on the FedSoc Convention

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As Bill notes, the Federalist Society is posting video of its annual convention.  The full list is here.

Along with the two events Bill mentioned, the annual Rosenkranz Debate was between Randy Barnett and Judge Harvie Wilkinson on judicial deference to the legislature.  Having heard both of them speak on this subject, I expect I will agree much more with Judge Wilkinson.

Judicial activism -- giving the Constitution an interpretation different from its original understanding in order to advance the judge's political, ideological, or policy preferences -- remains a far greater danger than its opposite.  For want of a better term, I call the opposite "judicial refractivism."  That is when a statute really does violate the Constitution as originally understood but the judge declines to so hold, either because he agrees with the statute and disagrees with the Constitution, or because he is excessively deferential to the legislature.

Judicial refractivism is a problem when it occurs, but it is both less common and less serious than judicial activism.  It is less common because of the natural human tendency to lean in the direction of enhancing one's own power.  It is less dangerous because genuinely unconstitutional statutes can be repealed through political action far more easily than wrongly stricken statutes can be resurrected through constitutional amendment.

I look forward to viewing this debate when the video is posted.

News Scan

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Texas Man Sentenced to Death for Baby-Sitter Murder: A Texas man has been sentenced to death after police believe he murdered his children's baby-sitter in order to prevent her from testifying that he raped her.  The Associated Press reports that Franklin Davis waited for the young girl outside of her school and lured her into his vehicle before shooting her and dumping her body in a river.  Davis admitted to murdering the 16-year-old girl, but insisted that he did it out of revenge and hatred rather than as an attempt to prevent her from testifying in the upcoming sexual assault case against him.

Man Convicted in Eight Murders Scheduled to Die Wednesday: The Missouri State Department of Corrections is set to execute Joseph Paul Franklin, a self-proclaimed racist and admitted murderer, for his role in the death of bar mitzvah guest outside of a St. Louis synagogue in 1977   Nolan Clay of NewsOK reports that Franklin has been convicted in seven other deaths across several states throughout the late 1970s, all of which included interracial couples or racial minorities.  Franklin is also the man responsible for paralyzing Hustler publisher Larry Flynt after becoming angry with him for putting images of an interracial couple in his magazine.

Riverside County DA Admonishes Realignment:  California's public safety realignment law is being skewered by Riverside County Deputy District Attorney Mike Hestrin, who regards the impact the law has had on the county as "disastrous."  David James Heiss of the Record Gazette reports that three out of every four criminals released early under the law are re-arrested, contributing to the state's 75 percent recidivism rate.  In Riverside county alone, homicides are up by 25 percent, robberies are up by 12 percent, and forcible rapes are up as well.  Proposed solutions to counter the negative impact realignment has had on the state include building new jails and utilizing remote camps for rehabilitation of low-level offenders.

Criminal Law Enforcement vs. the Free Press

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The Federalist Society had its usual excellent national convention last week.  Among the panels was one on "Criminal Law Enforcement vs. the Free Press."  It was moderated by the brilliant Judge Ray Randolph of the DC Circuit, and featured extremely knowledgeable speakers including Eugene Volokh of the "Volokh Conspiracy," Adam Liptak of the New York Times, and former Attorney General Michael Mukasey.  The latter did a superb job of pointing out the hypocrisy, and the danger, of the current Administration's high-minded talk about the need for robust (to say the least) NSA surveillance, combined with its leaking numerous, very sensitive items of national security information to improve its own sagging political standing.

The panel is here.

A second event very much worth watching is the discussion with Justice Clarence Thomas. Thomas confirmed what those of us with the privilege to be acquaintances of his have long known, to wit, that his intellect is surpassed only by his character.

The tape of the conversation is not yet available, but I'll post it when it is.

JFK--Casualty of the Cold War

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James Piereson of the Manhattan Institute has this article on the crime of the twentieth century, 50 years ago next week.

The widespread feeling that disreputable elements in American culture contributed to Kennedy's death--fed by liberal media figures and politicians--encouraged an anti-American attitude that was a pronounced aspect of the radical and countercultural movements of the 1960s. In the process, the real assassin, his political coloration and likely motives were airbrushed from history.

Update: Mary O'Grady has this article in the 11/17 WSJ on the Castro connection.

Rebooting Missouri's Death Penalty

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When a jurisdiction resumes executions after a gap, it is good to begin with a murderer who is exceptionally depraved even by death row standards.  The execution of Timothy McVeigh, for example, was the first in the federal system in 48 years.

Missouri's recent gap has been considerably shorter, only two years, but nonetheless they have an exceptionally appropriate miscreant set for next Wednesday.  Jim Salter reports for AP:

No one knows exactly how many atrocities Joseph Paul Franklin committed as he crossed the country more than three decades ago, fueled by hatred of blacks and Jews. Along the way he bombed a synagogue, robbed banks, shot and wounded a porn icon -- and killed, by his own account, nearly two dozen people.

Even among the hard-core criminals on Missouri's death row, Franklin is perhaps the most notorious, a cunning killer who picked out victims at random, using marksman skills to murder and maim from a hidden spot in a vacant building, a grassy field and a highway overpass.

Missouri has given up on using propofol for executions and has evidently secured a source of pentobarbital, which is the best one to use if they can get it.  It's use in animal euthanasia is very well established, and it has been used in numerous executions since thiopental became hard to get.

Qualified Immunity and Reasonable Force

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The US Supreme Court today took up a case on qualified immunity for police officers who are sued for using force claimed to be excessive. The case is Plumhoff v. Rickard, No. 12-1117.  The Questions Presented page from the certiorari petition of Officer Plumhoff follows the break.
The Washington Supreme Court has reversed another trial judge who overrreached in second-guessing the prosecutor's decision to seek the death penalty.  In most states, this would be an executive decision not directly reviewable by the judiciary at all, although there may be other mechanisms for a trial judge to preclude the death penalty before trial.  The case is State v. Monfort, 88522-2, Nov. 14, 2013.  See also prior post on the McEnroe case.  The conclusion of yesterday's decision is:

We make four holdings. We hold that a county prosecutor may consider the facts of a crime as a mitigating circumstance or lack thereof under RCW 10.95.040(1). We hold that a county prosecutor does not have to complete an exhaustive investigation of mitigating circumstances before filing a death penalty notice. We hold that the county prosecutor in this case properly exercised his discretion to file a death penalty notice. And we hold that the trial court improperly intruded upon that subjective determination when it held the prosecutor to a higher standard. Accordingly, the death penalty notice against Monfort is reinstated, and the matter is remanded to the trial court for proceedings consistent with this opinion.

News Scan

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Effort to Amend Stand Your Ground Law Fails:  The effort to amend or repeal Florida's Stand Your Ground law received a setback last week.  An editorial in the Miami Herald reports that protests following the acquittal of neighborhood watch volunteer George Zimmerman last year convinced Florida House Speaker Will Weatherford to hold a hearing on the law this fall.  Activists, and the Herald's editorial board apparently believe that the law prevented Zimmerman's conviction for the death of Trayvon Martin.  On November 7, a five-hour hearing was held in Tallahassee, where the House Criminal Justice Subcommittee voted 11-2 to keep the law exactly the same.  

Court Overturns Murderer's Death Sentence:  A Tennessee man sentenced to death for the rape and murder of a nurse was granted a new sentencing hearing yesterday after a federal appeals court ruled that statements associating the defendant with the devil may have influenced the jury.  Brett Barrouquere of the Associated Press reports that Ronnie Cauthern and another man entered the home of Patrick and Rosemary Smith in 1987, put Rosemary in a closet, killed her husband, raped her twice, and then strangled her death.  At the 1995 re-sentencing hearing, the then-Assistant Attorney General made  comments associating Cauthern with the devil, but lower courts held that this would not have influenced the jury.  A three-judge panel of the federal Sixth Circuit Court of Appeal disagreed, vacating the sentence. This will be the third re-sentencing hearing for Cauthern, unless the decision is overturned by the full Sixth Circuit or by the Supreme Court.

Felon Shot by Police at Children's Hospital:  Yesterday, police officers responded to a tip that a wanted felon was at the Children's Hospital of Wisconsin, igniting a standoff and a two-hour lockdown of the facility.  Gina Barton, Crocker Stephenson, and Don Walker of the Journal Sentinel report that 22-year-old Ashanti Hendricks, a wanted felon, was visiting his baby at the hospital when he was approached by officers.  Hendricks put down the baby and ran.  He was caught with a .40 caliber Glock handgun as was shot in the wrist during a struggle. Hendricks has several felony convictions dating back to 2009, most of which are drug-related. 

Aurora Theater Killer Claimed 'Too Mentally Ill' for Execution: Attorneys for accused Aurora, CO movie theater gunman James Holmes claim that results from a recent psychiatric evaluation indicate that he is too mentally ill to be executed.  John Ingold of the Denver Post reports that the motion filed to exclude the death penalty from Holmes' upcoming case was one of five motions brought forth by the defense as both sides make final preparations for the 2014 trial.  Holmes' attorneys have also requested that the jury only be allowed to hear victim impact statements after they have sentenced Holmes in order to prevent emotional bias.  Holmes is charged with the murders of 12 people during a July 2012 shooting spree at a Century Theater.

Maintaining Academic Monovision

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Why do people have two eyes (as do nearly all animals above the insect level)?  There are several reasons, but one of them is depth perception.  One eye sees a two-dimensional image.  Two eyes with different perspectives, even if only slightly different, provide cues for the brain to figure out the third dimension.

Among the many problems with American academia today is a deficiency of perspective.  To a deplorable degree, our young people are being fed an unbalanced academic diet of a single viewpoint.  The result is a lower quality education.

David Bernstein at Volokh Conspiracy has this post on how blogs can expand the range of discourse.  But a comment he makes in passing confirms what I have long suspected.  The lack of diversity of viewpoint in academia is not only a result of which people choose academic careers versus going into the "real world."  That is part of it, to be sure, but another part is active employment discrimination for the specific purpose of censoring Politically Incorrect viewpoints out of the academic discourse.

The faculties at elite law schools are able to define what was "mainstream" in constitutional law simply by who they hire to join them. And Yale, to take just one example, has not hired a conservative or libertarian professor to teach constitutional law in my lifetime. According to an informed source at the law school, this is not a coincidence, as some of Yale's constitutional law professors make it their business to block any right-of-center candidates.

News Scan

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Condemned Ohio Killer's Execution Delayed: An Ohio murderer set to be executed by lethal injection this afternoon has been given eight more months to live after it was decided that officials needed more time to look his offer to have his organs donated to members of his family.  The Daily Mail reports that convicted child killer Ronald Phillips made the organ donation request after exhausting all of his appeals and being denied clemency by the state's governor.  Phillips insists that his last-minute organ donation request is not a ploy to further delay his execution, and is willing to donate organs to individuals outside of his family as well.  

Texas Executes Convicted Murderer: Texas has performed its 15th execution of 2013 with the lethal injection a convicted rapist and murderer Tuesday evening.  United Press International reports that 49-year-old Jamie McCoskey, was put to death after spending 22 years on the state's death row and the U.S. Supreme Court declined further review of his case.  McCoskey was found guilty of kidnapping a couple, then raping the pregnant woman and stabbing her boyfriend to death.

Convicted Mob Boss Gets Two Life Terms: 79-year-old convicted Boston gangster, James "Whitey" Bulger, has been sentenced to two life sentences plus five years for crimes he committed dating back to the 1970's.  Ray Sanchez of CNN reports that Bulger, who at one point was referred to as one of the most notorious fugitives in the country, was convicted in August on 31 counts including racketeering, money laundering, drug dealing and murder.  In addition to the life sentences, Bulger has also been ordered to pay $19.5 million in restitution to his victims' families and $25.2 million to the U.S. government. 

Delaware Execution Delayed: A Delaware judge has stayed the execution of a former Air Force sergeant convicted of murdering his wife.  The Associated Press reports that the federal judge granted a request made by public defenders to delay the execution pending a ruling on a habeas corpus appeal filed earlier this year.  49-year-old Gary Ploof was convicted of shooting his wife as she sat in the parking lot of a Wal-Mart in 2001.   

News Scan

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Florida Inmate Executed for 1991 Killing:  The state of Florida executed convicted murderer Darius Kimbrough Tuesday evening for the 1991 slaying of 28-year-old Denise Collins.  Tamara Lush of the Associated Press reports that Kimbrough is the second inmate to be executed with a new mix of drugs (midazolam and hydromorphone); and, records state that the execution went smoothly "with no apparent movements or unusual activity" exhibited.  In 1991, Kimbrough used a ladder to break into Collins' Orlando apartment, then attacked and killed her.  Blood and semen samples taken from Collins' bed matched with Kimbrough's, who was then convicted and sentenced to death in 1994.

Prosecutors, Prison Guards Could Carry in Gun-Free Zones:  Legislation approved yesterday by Michigan's House would permit county prosecutors, assistant prosecutors, prison guards, retired corrections officers, parole and probation officers, as well as some federal law enforcement officers to carry concealed pistols in gun-free zones.  Jonothan Oosting of MLive reports that the three-bill package will allow these various individuals with the responsibility of locking up and punishing some of the country's worst offenders to protect themselves and their families from future retaliation.  Michigan Open Carry Inc., a gun-rights group who has lobbied for the elimination of all weapons-free zones, believes that the relaxed gun laws should not only be applied to those who are "politically connected."  The bills now face review by the Senate.

New Courtrooms in Fresno Could Ease Overcrowding:  A proposal for two new courtrooms has been introduced in Fresno County in an effort to relieve jail overcrowding.  John Ellis of the Fresno Bee reports that the new so-called "arraignment court," would handle lower-level criminal cases, plea agreements, and sentencing for offenders who cannot be sentenced to prison.  A pilot program is being designed at a cost of about $1.5 million to test the proposed court's effectiveness.  Presently, 69% of inmates in the county jail are awaiting trial, but the new arraignment court is predicted to take almost a third of the cases out of the seven "home" courts and into the new one.

Death Sentence for Murderer of  84-year-old Widow:  Yesterday, a 29-year-old man was sentenced to death for raping, torturing, and stabbing an 84-year-old widow to death after breaking into her home in Anaheim, California.  Adolfo Flores of the Los Angeles Times reports that Anthony Darnell Wade broke into Bessie Whyman's home in January 2010, raped her, bound her hands and feet, beat her, and killed her by attacking her with a saw and a kitchen knife.  Wade was apprehended after he attempted to use Whyman's credit card at a store he had driven to in the victim's car.  Wade was found guilty of multiple counts on September 6, and the jury recommended the death penalty on October 7.

Legalization Will Limit Pot to Adults Only

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Haha.  Fooled ya!

"Adults only" legalization of marijuana was just as likely to limit pot to those over 21 as "adults only" legalization of alcohol was likely to keep beer away from teenagers.

Anyone who wants to see how that's working out can check out any high school or college frat party.

The Colorado sales pitch that legalization would not increase pot use among the young was the biggest whopper since, "If you like your insurance, you'll be able to keep it, period."

The story is here.  As it notes:

"We have seen a sharp rise in drug-related disciplinary actions which, anecdotally, from credible sources, is being attributed to the changing social norms surrounding marijuana," said Janelle Krueger. Krueger is the program manager for Expelled and At-Risk Student Services for the Colorado Department of Education and also a longtime adviser to the Colorado Association of School Resource Officers.

Krueger said school officials believe the jump is linked to the message that legalization (even though it is still prohibited for anyone under 21) is sending to kids: that marijuana is a medicine and a safe and accepted recreational activity. It is also believed to be more available.


What a surprise!


News Scan

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Condemned Ohio Killer Seeks to Donate Organs: A convicted child killer set to be executed later this week has asked that his organs be donated to his ailing mother and sister.  Andrew Welsh-Huggins of the Associated Press reports that Ronald Phillips, who was sentenced to death for the 1993 rape and murder of a 3-year-old girl, is asking that his kidney and heart be donated to members of his family in an effort to make a final "gesture for good".  The spokeswoman for the Ohio State Prison agency has declined to comment on the situation .

Thousands of L.A. County Probationers Unaccounted For: Los Angeles County has lost track of roughly 2,000 probationers released under Realignment, a rate that is relatively higher when compared to other Southern California counties.  Beatriz Valenzuela of the Long Beach Press-Telegram reports that county probation officers have been left with an overwhelming number of felons they are now responsible for watching, a job which prior to Realignment was handled by the state.  After Realignment was passed in 2011, Los Angeles set aside money in order to hire 470 additional probation officers, but as of today, only two-thirds of those positions have been filled.    

Death Row Inmate Denied Clemency: An Oklahoma man convicted and sentenced to death for the rape and murder of two elderly women has been denied clemency, and is scheduled to be executed next month.  Tim Talley of the Associated Press reports that 53-year-old Ronald Lott viciously attacked his victims more than 26 years ago, and was denied clemency by the Oklahoma Pardon and Parole Board by a 4-1 vote.  Lott, who is scheduled to be put to death on December 10, will be the fifth Oklahoma inmate to be executed this year. 

New York Expands Sex Offender Registry: New York's sex offender registry will now display multiple photos of convicted sex offenders in an effort to make them more recognizable to both the public and law enforcement officers.  Matt Gryta of The Buffalo News reports that the expansion to the digital database will allow law enforcement to better monitor the 36,336 sex offenders currently registered in the state.  Previously, only one photo per offender was displayed on the state's registry website.  

This Day in Supreme Court History

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In further proof that God loves the United States, on this day 38 years ago, Justice William O. Douglas retired from the Supreme Court.  Ed Whelan, quoting Judge Richard Posner, describes Justice Douglas thusly:

In his 2003 New Republic review of a biography of Douglas (Wild Bill:  The Legend and Life of William O. Douglas, by Bruce Allen Murphy), Seventh Circuit judge Richard A. Posner offers this succinct summary of Douglas's judicial career:  "For Douglas, law was merely politics."  Here's Posner's colorful fuller assessment:  "Apart from being a flagrant liar, Douglas was a compulsive womanizer, a heavy drinker, a terrible husband to each of his four wives, a terrible father to his two children, and a bored, distracted, uncollegial, irresponsible, and at times unethical Supreme Court justice who regularly left the Court for his summer vacation weeks before the term ended.  Rude, ice-cold, hot-tempered, ungrateful, foul-mouthed, self-absorbed, and devoured by ambition, he was also financially reckless--at once a big spender, a tightwad, and a sponge--who, while he was serving as a justice, received a substantial salary from a foundation established and controlled by a shady Las Vegas businessman." 

As Posner acknowledges, one can, of course, "be a bad person and a good judge, just as one can be a good person and a bad judge."  By the evidence, Douglas was both a terrible person and a terrible judge.


I might add that Douglas, for all his flaws, did not join Marshall and Brennan in believing that the death penalty is a per se violation of the Eighth Amendment. Ironically, he was succeeded by a far better man and a better (on most things) judge, John Paul Stevens, who, maddeningly, got this fundamental point wrong.

Let's Talk About Something Else

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Last spring, a Jihadist mass killer, Dzohhar Tsarnaev, and his older brother (now deceased after a gun battle with police) planted two bombs near the finish line of the Boston Marathon, killing three people, including an eight year-old boy, and wounding more than 260 others.  

To my knowledge, no sensate person doubts that Tsarnaev did the deed, did it intentionally out of hatred for the West and America in particular, and was of sound mind (at least to the extent anyone can be of sound mind and still decide to kill complete strangers).

So in a rational world, this should be an easy case, right?  We know we have the right guy, and we know he was sane.

However, we no longer live in a rational world, at least as respects capital cases (Eric Holder has not yet indicated he will seek the death penalty, although most informed people believe he will).

The killer's multiple lawyers, taking full advantage of our loss of rationality, want to change the focus of the case to talk about something else.  This is the latest:

Veterans Day

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To all who have served in defense of our country and the cause of freedom, thanks.

News Scan

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Tougher Sentencing for Sex Offenders Considered:  The proposed discharge of a serial rapist from the Minnesota Sex Offender Program has prompted public officials to call for longer prison terms for sex offenders.  Chris Serres of the Star Tribune reports that Thomas Duvall was convicted of separate violent sexual assaults on three teenaged girls after he was released from prison.  Legislators and law enforcement officials asking whether public safety would be better served if violent sex offenders were treated while in prison, rather than being committed to a treatment center.   A three-judge panel will hear arguments today over whether to hold an in-depth hearing to discuss Duvall's release.  If released, he will be only the second individual discharged from the center in 20 years.

Alleged Murderer Violated Parole Multiple Times:  A New York man suspected of torturing and killing his former roommate was released from prison one month before the crime occurred with no supervision, despite violating his parole twice in three years.  Matt Porter of WBNG reports that spokeswoman for the Department of Corrections and Community Supervision asserts that the law required Nigel Saunders to be released without further supervision because he had served "every possible day under parole supervision in accordance with the law."  Saunders and another suspect broke into the home of Saunders' former roommate on October 4, tied him and his pregnant fiancee up in their basement, stabbed them, doused them with lighter fluid, and set them on fire, killing the roommate.  The fiancee managed to escape during the attack, and her and her unborn child are expected to survive.

Lifetime Registration for Juvenile Sex Offenders Deemed Unconstitutional:  A Pennsylvania law that imposed lifetime registration requirements on juvenile sex offenders has been ruled unconstitutional by a York County judge.  The ruling held that the law fails to acknowledge the unique attributes and considerations of juvenile offenders. The judge noted that the law did not take into account studies showing that juvenile sex offenders have a greater capacity to reform than adults. Matt Miller of Penn Live reports that the Sexual Offender Registration and Notification Act, was passed in 2011 to comply with federal law and prevent the loss of federal funding.  The judge's decision is being reviewed by the county prosecutor for a possible appeal to the Supreme Court. 



Back to the Future NY Film Festival

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New York voters have forgotten their crime-ridden history and voted to condemn themselves to repeat it.  For a crystal-ball glimpse of the future via the past, Michael Anton in the City Journal has some movie suggestions.

News Scan

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Federal Judges Dismiss Death Penalty Challenge: A pair of federal judges has thrown out challenges filed on behalf of seven Florida death row inmates who are arguing that the state's new death penalty drug constitutes as cruel and unusual punishment.  Derek Kinner of the Associated Press reports that the ruling is not final, and the judges have given the inmates and their attorneys 60 days to file a new complaint.  The state of Florida was forced to switch to a different lethal injection method after their supply of the previously used execution drug, pentobarbital, expired. 

Sex Offenders to pay Annual Registration Fee: Michigan Governor Rick Snyder has signed a bill requiring sex offenders to pay a $50 annual fee when registering in order to offset costs for maintaining the state's registry website.  Jonathan Oosting of M Live reports that the Michigan State Police spend roughly $1.2 million each year running the site, and with help from the new annual fee, that price is estimated to drop by $700,000.  Prior to the bill, sex offenders were charged a one time fee of $50 when registering for the first time, which generated roughly $150,00 annually.   

Judge won't Block Ohio Child Killer's Upcoming Execution: A federal judge has denied convicted child killer, Ronald Phillips, request that his execution be halted due to concerns over the state's new lethal injection method.  Andrew Welsh-Huggins of the Associated Press reports that the judge ruled against a claim from Phillips' attorneys which argued that the announcement of its new lethal injection policy was delayed in order to prevent them from investigating it.   Phillips, who is scheduled to be executed on November 14th,  was sentenced to death for the rape and murder of his girlfriend's 3-year-old daughter.  The protocol changes are described in this post on October 5.

A Stab in the Dark?

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Stop the presses!  Research indicates there are more muggings after dark!  The abstract from the November 2013 issue of the Journal of Research in Crime and Delinquency (50(4)) is here and copied after the break.

Broken Glass in Cal. Supreme

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Yesterday and today, the California Supreme Court heard oral arguments for the first time in the newly restored Stanley Mosk Library and Courts Building in Sacramento.*  Howard Mintz reports  for the San Jose Mercury News on a bar admission case with a notorious background.

Disgraced journalist Stephen Glass may have to choose a vocation other than the law to complete his road to redemption.

The California Supreme Court on Wednesday showed no signs of sympathy regarding Glass' bid for a license to practice law, hammering his journalistic past and suggesting his infamous history of fabricating dozens of magazine stories and public lies disqualifies him from joining the profession.

During an hour of arguments in Sacramento, all seven justices were skeptical of Glass' position that he is not the same person who tarnished the journalism world 15 years ago.

"Here is my problem," Justice Carol Corrigan told Jon Eisenberg, Glass' lawyer. "They say character is what you do when no one is looking. Mr. Glass' history ... when no one is looking has been pretty abysmal."

Added Justice Kathryn Mickle Werdegar: "Being admitted to practice law is a privilege. Our task is to certify that his moral character is such today that he can with integrity be a member of the bar."

The Latest Re-Entry Program

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Kent has noted today's Senate hearing at which a couple of witnesses were sufficiently impolite to point out that incarceration works better to tamp down crime than a stern lecture and rehab (see, as to the latter, any number of posts I wrote about Ms. Rehab, Lindsay Lohan).

Still, at some point almost all inmates will be released, and we need to find constructive things for them to do.  The Administration has found one.  Here are the first few paragraphs of the story:

Health and Human Services Secretary Kathleen Sebelius admitted Wednesday that it was possible convicted felons could be hired as ObamaCare 'navigators,' giving them access to personal information like Social Security numbers and addresses of anyone signing up for the program.

Sebelius made the admission in an exchange with Sen. John Cornyn, R-Texas., during a Senate Finance Committee hearing. It was the second time in a week Sebelius was on Capitol Hill, forced to defend the problem-plagued ObamaCare website.

"Isn't it true that there is no federal requirement for navigators to undergo a criminal background check," Cornyn asked her.

"That is true," Sebelius answered. "States could add in additional background checks and other features, but it is not part of the federal requirement."

Cornyn pressed, "So a convicted felon could be a navigator and could acquire sensitive personal information from an individual unbeknownst to them?"

Sebelius answered, "This is possible."


I trust our readers do not include Puritanical dorks who might object to a felon's getting their Social Security numbers.  Don't you people believe in second chances?



Opposing the Drive to Repeat History

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The Urban Institute has been a leader in the drive to forget the history of the failed soft sentencing policies of the Age of Aquarius and to condemn America to repeat them.  Today, the U.S. Senate Judiciary Committee held a hearing on Oversight of the Bureau of Prisons & Cost-Effective Strategies for Reducing Recidivism.  The Urban Institute representative said the usual stuff.

What was unusual in today's hearing was testimony noting the deficiencies in UI's Pollyanna pronouncements by Dr. Matt DeLisi of Iowa State University and Dr. Jeffrey Sedgwick of Keswick Advisors.

DeLisi testified, "The Urban Institute proposal to potentially release 36,000 inmates over the next 10 years would produce an estimated 540,000 to 612,000 new Index crimes."

Sedgwick testified, "To summarize the lessons from the crime decline of the 1990s (which has continued, though at a much slower rate, up until 2010), one would fairly say that, among the criminal justice policies proffered as causes, the case for effectiveness is stronger for incarceration than for crime prevention or intervention programs. And yet there are those who still earnestly advocate a redistribution of criminal justice funds from incarceration to its alternatives."

News Scan

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Bill Would Return 17-year-olds to Juvenile System: Wisconsin's, "Second Chance" bill was passed by the Assembly Corrections Committee last week on a unanimous vote. The Green Bay Press Gazette reports that the bill would return first-time, nonviolent 17-year-old offenders to the juvenile justice system.   It is reported that 17-year-olds who spend time in the adult system show significantly higher recidivism rates compared to both younger and older age groups. Both houses of the Legislature will face a vote on the bill this fall.

Georgia Inmates Using Cell Phones to Commit Crimes
: A Channel 2 investigation reveals that inmates in Georgia are  victimizing the public from behind bars by using smuggled cell phones to orchestrate crimes. Kerry Kavanaugh of WSB-TV reports that the Department of Corrections is trying to address this growing problem, with more than 5,100 cell phones confiscated in the first six months of this year. One has been to incorporate a "managed access system" which blocks unauthorized calls and texts. Mississippi Corrections Commissioner says that over 5 million calls and texts have been intercepted since the system was put in place.

Even with Changes, U.S. Prisons May Remain Overcrowded: A report released on Tuesday suggests that the severe overcrowding in federal prisons could persist for years, even if Congress were to implement changes to reduce the number of people incarcerated. David Ingram of Reuters reports that federal prisons would still be operating at 20 percent above capacity in 10 years in spite of cutting in half mandatory minimum sentences for drug crimes. The increase in inmates has occurred because of mandatory minimum prison terms enacted during the 1980s and 1990s, as Congress got tough on criminals. Witnesses are testifying today before the Senate Judiciary Committee about a prison overhaul, which would also include changes to the budget.

A Squeaker in the Old Dominion

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The day-after results in the Virginia Attorney General's race, with 100% of precincts reporting, are:

Obersham (R):    1,101,073
Herring(D):          1,099,904

That is, in John Fund's memorable phrase, within the margin of litigation.

Note: the numbers above are as of the time of the original writing of this post.  Click on the link for later numbers.
The New Hampshire Supreme Court today rejected a constitutional challenge to the state's death penalty law in the case of cop-killer Michael Addison.  The case is State v. Addison, No. 2008-0945.  The opinion is 243 pages, plus appendices, and I haven't read it all yet.  Here are a couple of quickly gleaned nuggets:

Given that, at the time the State Constitution was adopted, capital punishment was a sanctioned penalty for specified crimes and that the plain language of the constitution anticipates its use, the framers could not have considered capital punishment to be "cruel or unusual." We agree with the trial court that "[l]ooking at the language of the New Hampshire Constitution and the circumstances of its adoption, the framers undoubtedly anticipated that the death penalty would be imposed for many crimes."
*                                                   *                                           *
As the trial court found, "[g]iven how frequently the death penalty has been debated, and how consistently the representative branches of government have upheld it, . . . capital punishment does not offend general community standards of decency in this State." We agree with the trial court that "[t]he legislative history of capital punishment in this State demonstrates that a consensus has not been reached that capital punishment is cruel or unusual."  We presume the validity of "a punishment selected by a democratically elected legislature" and conclude that the defendant has not met the "heavy burden [that] rests on those who would attack the judgment of the representatives of the people." Deflorio, 128 N.H. at 316 (quotation omitted). Accordingly, we hold that the defendant has not established that the death penalty statute facially violates Part I, Article 18 or Part I, Article 33 of the State Constitution.

Man Bites Dog

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Some crime stories are too good to pass up.
Matthew Burns and Laura Leslie report for WRAL:

In the latest move to resume executions in North Carolina, Secretary of Public Safety Frank Perry has approved a single-drug protocol for carrying out lethal injections.

On Oct. 24, Perry signed a 20-page execution protocol using a single drug, pentobarbital, a sedative commonly used to euthanize animals.

Opponents, naturally, vow to continue obstructing justice.  They plan to use the Racial Justice Act, despite the fact the legislature has repealed it, and challenges to the new protocol, despite the fact that the method is now routinely used in multiple states without problems.
My friend Will Haun, a clerk for U.S. District Judge Claude Hilton of the EDVA, has co-authored with another friend, Prof. John S. Baker, an article in "Engage," the magazine of the Federalist Society.  As Will writes in a note to friends and colleagues:

The article explains how the growing federal criminal code facilitates the erosion of criminal intent requirements, and the problems this raises for the legitimacy of criminal law.  

The essay notes that:

[E]ven some experts reluctant to embrace the general goals of many
overcriminalization advocates consider federal mens rea erosion an "obvious
problem" - it "break[s] the link between punishment and intentional
misbehavior that most contemporary thinkers, not to mention the Founders'
generation, found indispensable to the government's" legitimate authority to
punish. See William G. Otis, Remarks on the Federalization of Criminal Law
Panel at the Federalist Society's 2013 National Student Symposium, in 36
Harv. J.L. & Pub. Pol'y (forthcoming fall 2013).

Will and John are correct in pegging me as at least a mild skeptic about the overcriminalization movement, but their article makes legitimate and important points about the serious dangers that lurk in the merger of criminal law with the regulatory state.

News Scan

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FL Corrections Seeks to Re-Open Facilites: The Florida Department of Corrections is asking the state Legislature for $59 million in order to re-open prison facilities that has been closed in an effort to save money. CBS Miami reports that despite decreasing crime rates, the Department of Corrections is experiencing an increase in admissions to the prison system which the state believes will result in a demand for more than 1,000 extra prison beds by 2014.  In all, the Department of Corrections is asking for the state to re-open nine facilities; two prisons, five work camps, and two reentry centers.

No Decision on Death Penalty for Boston Bomber: Federal prosecutors have declined to say whether or not they have recommended the death penalty for accused Boston Marathon bombing suspect, Dzhokhar Tsarnaev.  Erin Baldassari of Wicked Local Cambridge reports that prosecutors set a self imposed deadline of October 31st to make the call, however, US Attorney General Eric Holder may wait until January 31st to decide whether or not to pursue a death sentence.  Seventeen of the 30 charges filed against Tsarnaev carry a possible death sentence. 

Repeat Offender Arrested in Violent Attack: A Northern California woman, who authorities say was released from custody just six weeks ago,  has been arrested in an attack that left an elderly man dead and his wife in critical condition.  Kim Minugh of the Sacramento Bee reports that 36-year-old Shauna Burton had been sentenced in July to 120 days for a domestic violence charge, a crime considered non-serious under Realignment, but was released only 53 days later and put on light-supervision under PRCS (Post-Release Community Supervision).  Burton, who has an arrest record dating back to 1997, was arrested Monday on suspicion of murder, robbery, assault with a deadly weapon, car theft, and violation of probation.
The Supreme Court of Louisiana has held that Miller v. Alabama, which requires that a sentencing judge have discretion to sentence an under-18 murderer to something less than life without parole, is not retroactive to cases that were already final on direct appeal when Miller was decided.

Louisiana follows the rule of Teague v. LaneMiller is a procedural rule, not a substantive one, and it does not fall within the small (extinct?) class of precedents deemed "watershed" rules.

The case is State v. Tate, 2012-OK-2763.
When Burt v. Titlow was argued October 8, most observers had little doubt the state would prevail.  That is, the Supreme Court would reverse the Sixth Circuit's grant of habeas relief and reinstate Vonlee Titlow's conviction for murdering Don Rogers.  See, e.g., this post by Rory Little at SCOTUSblog.

The high court did just that today.  Opinion here.  The judgment is unanimous.  Justice Alito's opinion is joined by all except Justice Ginsburg, who wrote a brief opinion concurring in the judgment.  Here are a few notes on the opinion:

1.  The Court declines to clarify the relationship between AEDPA's two provisions on state findings of fact, §2254(d)(2) and §2254(e)(1).  My take is in CJLF's brief in Wood v. Allen, where the Court also ducked it.

2.  On state court decisions of questions of law, Justice Alito delivers a ringing endorsement of the principle of federalism, the competence of state courts to independently decide federal questions, and the strong standard of Harrington v. Richter.  By the way, federal district and circuit judges,  " 'there is no intrinsic reason why the fact that a man is a federal judge should make him more competent, or conscientious, or learned . . . than his neighbor in the state courthouse.' Stone v. Powell, 428 U. S. 465, 494, n. 35 (1976) (internal quotation marks omitted)."  So don't get too big for your britches.

News Scan

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Supreme Court Rules in Favor of CA Officer: A California police officer who was sued after chasing a suspect onto private property without a warrant has won his appeal after taking the case to the Supreme Court.  Bill Mears of CNN reports that the issue brought before the court was whether or not a homeowner's "expectation of privacy" trumps an officer's ability to pursue a suspect without a warrant.  The case involves a woman who sued the officer for injuries she sustained after being hit in the face by a privacy fence door that the officer knocked down while in hot pursuit of a suspect.  The Supreme Court's ruling is here.

Stanford Study on California's Realignment Law:  A study conducted by the Stanford Criminal Justice Center on  California's two-year-old prison realignment law recommends several changes to alleviate the burden on California counties.  Reza Gostar of the Desert Sun reports that two of these recommended changes include limiting county jail sentences to a maximum of three years and sentencing parole violators to state prison rather than county jail. The study reveals that the state's realignment law, which focused on reducing prison overcrowding, has left thousands of hardened criminals who violate parole in counties instead of sending them prison and supervision on state parole.  

LAX Shooting Rampage Suspect May Face Death Penalty:  The shooting rampage at LAX last Friday which left one TSA agent dead and five others wounded could carry a death sentence for the suspect.  The Associated Press reports that the suspect, 23-year-old Paul Ciancia, told authorities upon his arrest that he acted alone. A note found in Ciancia's duffel bag  discussed killing TSA agents in order to "instill fear" in their "traitorous minds."  Ciancia faces charges of murdering a federal officer and committing violence at a United States airport, both eligible for the death penalty.  He is currently being treated at an L.A. hospital for wounds he sustained during the shooting.

Systematic Problems Found in Arkansas Parole System:  The results of an administrative investigation into the Department of Community Correction conducted by the Arkansas State Police were released by Governor Mike Beebe on Monday.  The Governor cited "detailed and systematic problems within our parole system."  Gavin Lesnick of NWA Online reports that the investigation was ordered after a criminal with a lengthy history of parole violations was arrested for the kidnapping and murder of a teenager just days after being released from prison.  The policies to correct some of the problems, include requiring parolees awaiting a revocation hearing or felony charges to remain behind bars, and requiring jail time for parolees who repeatedly fail to report to a parole officer.

Stephen Reinhardt as Old Faithful

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Q:  What happens when the phrase "unanimous per curiam reversal" appears in a story about a Supreme Court opinion?

A:  You know that Stephen Reinhardt and the Ninth Circuit are not far behind.

It happened again today, in a case about qualified immunity for the police.  Ed Whelan has the story.

Whinerism Scores a Touchdown

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What is called "bullying" is much in the news these days.  This seems to be part of the "sensitivity movement," in which any action, or even just speech, that "offends" someone, or makes for an impossible-to-define (and thus never very precisely defined) "unwelcoming environment," is subject to sanctions.

There have been cases in which bullying in school, or on the Internet by, say, a teenager's classmates, has even resulted in criminal charges.  There is one case going on now in which the bullying is alleged to have caused a 13 year-old girl's suicide.

I'm no fan of rancid and cruel behavior, not by teenagers and not by anyone.  I have put up more than my share of posts about the decline of standards of behavior and the ominous things it augers for the country.  

But teaching our kids how to think of themselves as victims instead of how to be resilient and handle the rough spots in their lives is, in my view, just as much a prescription for cultural decay as bullying.  Kids, and adults for that matter, need to learn to cope, fend for themselves and overcome, not how to whine.  What happens when this lesson goes unlearned is illustrated in a story that broke over the weekend.

Stop, Frisk, and the New York Election

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Is yesterday's ruling in the "stop and frisk" case, noted here, sufficient to dissuade New Yorkers from forgetting history and condemning themselves to repeat it?  Will they really vote to return to the horrifically high crime rates that preceded the policing reforms of Mayor Giuliani and Bloomberg by electing Bill de Blasio, who has made opposition to effective policing the centerpiece of his campaign?

The Republican candidate, Joe Lhota, is doing his best to head that off.  Jonathan Lemire and Colleen Long have this story for AP. 

The bad news is that Lhota has a forty percent deficit to make up.  If he pulls it off, it will be one of the greatest come-from-behind victories in American history.

The Returning Citizen

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What is a "returning citizen"?

1)  Someone who just came back to earth from space (see, e.g., the movie "Gravity").
2)  Someone who just came back to the USA from his junior year abroad.
3)  Someone who just came back from crossing the ocean in a canoe. 

Sorry, you all got it wrong.  The answer is none of the above.
On Wednesday, the Pennsylvania Supreme Court decided Commonwealth v. Cunningham, on the question of whether the U.S. Supreme Court decision in Miller v. Alabama is retroactive to cases already final on direct appeal before Miller was decided under the principles established by the Supreme Court under Teague v. Lane.

The court correctly decides that the answer to that question is no.  Under the Teague rule, new procedural rules such as Miller apply to cases still on direct appeal, but not to cases where the judgment is final on appeal.

An item originally in today's News Scan, which I have since deleted, summarized a news article that got the key date wrong.  It said Miller would not be retroactive to anyone sentenced before the date of that decision.

State courts can extend retroactivity in state collateral review further than Teague, the Supreme Court said in Danforth.  The Pennsylvania Supreme Court indicated that it was not deciding that question because the defendant did not ask it to.

News Scan

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Parolees and Probationers Filling Idaho Prisons:  In the state of Idaho, over 40% of prison beds are being occupied by returning probationers and parolees, according to researchers from the Center for Justice and the Pew Charitable Trusts.  Betsy Z. Russell of the Spokesman-Review reports that the inmates who do return to prison will stay there for an average of two more years.  Idaho's return-rate is much higher compared to that of other states which may explain why its crime rate is far below the national average and that of most other states.  But some see it as a problem and have proposed solutions including major reforms to the state's supervision systems and sentencing laws.

Judge Finds Panhandling Restrictions Violate of Free Speech:  An Arizona law, which made begging and panhandling in public places a crime, has been deemed by a federal judge to be unconstitutional, violating the First Amendment. Linda Kor of the Arizona Journal reports that communities embraced the law because it reduced vagrancy. The judge's ruling allows beggers to sit on the sidewalk with cardboard signs asking for help, but will treat aggressive panhandling as a crime.

Teen Sentenced in Murder of his Father: A 13-year-old Southern California boy has been sentenced 40 years to life in prison for murdering his neo-Nazi father as he slept in 2010.  Leticia Juarez of ABC Los Angeles reports that the judge presiding over the case ordered the boy, who was tried as juvenile, to begin serving his sentence at a juvenile detention facility.  With good behavior, he could be eligible for parole in as little as five years. 

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