December 2013 Archives

Some Really Bad News

The relationship between cultural decay and crime is more intricate than I have either the knowledge or the space to describe, but I've been around long enough to know this:  A robust criminal justice system with the self-confidence and character needed to impose consequences on criminal behavior and make them stick is not going to survive for long in a culture like this.  

When the culture starts broadly to accept one behavior as just as good as the next, and to view "tolerance" not as a valuing the basic dignity and equality of our fellow creatures, but simply as license for narcissism, entitlement and vulgarity masquerading as "provocative ideas," we are headed for big, big trouble.

Some Really Good News

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Except for people who have unhinged hatred for the police  --  which unfortunately is quite a few  --  this has to be seen as a wonderful development.

The Brew Made Me Do It

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Sheri Qualters reports for the National Law Journal (registration required):

A pro se federal lawsuit by a group of prisoners blaming eight brewers for their life of crime was the most ridiculous lawsuit of 2013, according to the U.S. Chamber of Commerce's Institute for Legal Reform.

The list was based on votes cast throughout the year via a dedicated web site, The cases were filed in state and federal courts, some pro se and others by lawyers.
The Idaho Statesman had this story on the suit when it was filed almost a year ago.

Keith Allen Brown shot a man to death in Priest Lake five years ago, leading to a 15-year prison sentence. But the 52-year-old says his problems started long before that, when he was just a boy and tasted alcohol for the first time.

Brown and four other inmates at Idaho's Kuna facility are suing major beer companies, blaming their crimes on alcoholism and claiming that the companies are responsible because they don't warn consumers that their products are addictive.

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AZ Supreme Court Upholds Conviction, Death Sentence in Brutal Murder: The Arizona Supreme Court upheld the conviction and death sentence for a man found guilty of murdering five people in order to prevent them from testifying at his upcoming arson trial.  Walter Berry of the Associated Press reports that 36-year-old William Craig Miller was challenging his sentence and seeking a new trial based on the claim that he was deprived of his right to a speedy trial.  Authorities believe Miller murdered five members of an extended family after he discovered that two of the individuals were working as police informants and would be testifying against him at his upcoming arson-for-hire trial.   

LA County Sex Offenders Given Faulty GPS Monitors: An audit conducted by the state of California has revealed that one in four GPS monitoring devices used to track convicted criminals in Los Angeles County are faulty, allowing felons to go undetected sometimes for days at a time.  The Associated Press reports that in addition to faulty monitoring devices, the audit also revealed that some probationers had been released without tracking devices because the city had run out of functioning equipment.  LA County uses the devices primarily for repeat sex offenders, violent gang members, and for individuals who have violated terms of their restraining order.

New Boston Mayor, Police Clash Over Proposed use of AR-15's: Officials with the Boston Police Department and the city's new Mayor-elect, Martin Walsh, are clashing over a proposal by the police department that would allow a limited number of officers to be armed with high-powered rifles.  Fox News reports that the Police Department made the proposal in light of recent mass shootings.  The Department believes that the addition of AR-15's would give officers a "fighting chance" against suspects that often are better armed than police.  Under the proposal, the city would buy 33 AR-15's and would issue them to two trained officers in each of the city's 11 districts.  The Mayor-elect opposes the plan. 

Do "Alternatives to Incarceration" Work?

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In a word, no.

We should have learned this decades ago, in the Sixties and Seventies, when the legal world was awash with "alternatives to incarceration" and crime skyrocketed by well over 300%, as shown here.

In the new push to reduce the prison population, fueled ostensibly (but not actually) by cost considerations, we have repeatedly been told that public safety will not by harmed, and might indeed be improved, by giving "low level" (have you ever heard of any other kind?) offenders early release.  "Technocorrections" will keep tabs on them, and they'll "re-integrate" to become productive members of society (for the first time, but no one seems to get around to mentioning that).

And how well do "technocorrections" actually work?  About as well as any honest person would have expected.  My friend Doug Berman, in his SL&P post here, spills the beans from today's LA Times story.

More on Florida Lethal Injection Case

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Governor Rick Scott has scheduled an execution for repeat murderer Askari Abdullah Muhammad, formerly known as Thomas Knight, for January 7, News Service of Florida reports.

On December 19, the Florida Supreme Court affirmed the circuit court decision rejecting Muhammad's attack on Florida's new lethal injection protocol.  See prior post of Dec. 2.

Knight was already on death row for two other murders when he stabbed and killed corrections Officer Richard James.

News Scan

Armed Citizens Patrol Streets in Cash-Strapped Oregon County: Residents in Josephine County, Oregon have formed armed patrol groups to protect their community after severe budget cuts limited the sheriff's department response to only "life-threatening situations."   Stephanie McNeal of Fox News reports that 70 percent of the land in Josephine County is owned by the U.S. government, and most of the budget came from recently terminated federal timber subsidies.  Without the subsidies the sheriff's department was virtually eliminated.  As a result, a group of 12 citizens have formed an armed "response team" to respond to any call that the sheriff's office is not able to handle. 

Suspect in 'Knockout' Attack Charged with Hate Crimes: A 27-year-old man from Houston has been charged with a federal hate crime after authorities say he video taped himself punching an elderly black man in the face while playing 'knockout'; a disturbing new trend that encourages people to assault unsuspecting pedestrians.  Michael Graczyk of the Associated Press reports that the suspect was caught after showing the video to an off-duty arson investigator at a local restaurant, who then notified the police of the violent attack.  The assault left the victim with a severely broken jaw and a four-day hospital stay.

Root Causes

I apologize in advance for the woefully tiresome eight zillionth post on root causes, but I thought I'd try my hand at designating the actual root causes, as opposed to the usual menu served up by academia and the defense bar, to wit:  America's capitalist inequities, Klan-driven attitudes, male dominance, militarism, wahooism, frontier brutality, know-nothingism, and Disrespect for Our Betters in Europe, that being all of them.

I was in the prosecution business for a long time, and I can tell you without having taken a single sociology course what the root causes are:  Greed, lack of empathy for the feelings and rights of others, extremely bad impulse control, and the view that rules are for suckers.

I will swear to all of that in court.

For those seeking a somewhat more in-depth discussion of the matter, however, let me recommend today's Powerline entry, in which the brilliant Paul Mirengoff discusses the outlook of the equally brilliant Michael Barone.

Split of Authority on NSA Phone Program

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Jennifer Smith reports for the WSJ:

The National Security Agency's bulk collection of data from phone companies is legal, a federal judge has ruled, dismissing a significant court challenge to the practice and setting the stage for a bigger legal battle over secret surveillance programs.

U.S. District Judge WIlliam H. Pauley III in Manhattan sided with the government in his decision Friday, calling the collection program a "vital tool" to combat terrorism and deeming it "the Government's counter-punch."

The ruling stands in conflict with a decision issued earlier this month in a separate case by a federal judge in the District of Columbia who said the program "almost certainly" violated the Constitution.

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Massachusetts Eliminates Life Without Parole for Juveniles: The Massachusetts Supreme Judicial Court has ruled that sentencing juveniles to life without the possibility for parole is unconstitutional.  Ray Sanchez of CNN reports that the decision comes just one year after the U.S. Supreme Court ruled that two men who were convicted of murder at 14 and sentenced to life without parole were given a "cruel and unusual punishment" in violation of the 8th amendment.  In 2005, the Supreme Court decided that juveniles are not eligible for the death penalty, and juveniles found guilty in non-homicide crimes could not be sentenced to life without parole. 

Convicted Sex Offender Accused of Rape: A convicted sex offender has been arrested after police say he sexually assaulted a woman Sunday morning in a popular Seattle park.  King 5 News reports that 25-year-old Coty Kelly, who had a warrant for his arrest after failing to register as a sex offender, tackled the woman from behind and sexually assaulted her along a walking trail.  Kelly faces a possible second-degree rape charge and had his bail set at $500,000.

Montana Judge Delivers Odd Sentence: A Montana judge who gained national attention after sentencing a rapist to only one month in prison is once again in the spotlight after ordering a man who assaulted his girlfriend to write "Boys do not hit girls" 5,000 times.  The Associated Press reports that in addition to the mandatory writing assignment, District Judge G. Todd Baugh also sentenced the man to six months in jail.  The man has until May 23 to complete the written portion of his sentence and have it mailed to Judge Baugh.  

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Serial Killer to Face Another Death Penalty Trial: Federal prosecutors have decided to seek the death penalty for Gary Lee Sampson, a convicted serial killer who has managed to avoid capital punishment after 10 years worth of appeals.  Milton J. Valencia of the Boston Globe reports that Sampson was sentenced to death in 2003, but the sentence was vacated eight years later after it was revealed that one of the jurors had past encounters with law enforcement.  Prosecutors want to empanel a new jury to decide whether Sampson, who has been involved in several violent altercations while in prison, should be executed.

Convicted Killer May Avoid Execution: An Ohio man sentenced to death for the 1983 murder of a 19-year-old girl may avoid execution after DNA evidence revealed that he didn't rape his victim.  The Associated Press reports that 54-year-old David Steffen was convicted and sentenced to death for the rape and murder of the girl; however, after DNA disproved the rape conviction, Steffen's attorneys believe he is no longer eligible for execution.  Steffen, who admitted to the murder, will have his appeal heard in March 2014.

Woman Arrested Nearly 400 Times: Authorities in Chicago, Illinois say that a woman has been arrested for the 397th time, the newest offense occurred just weeks after her most recent release from prison.  CBS Chicago reports that 52-year-old Shermaine Miles was arrested last Wednesday after police say she stole a set of keys from an elderly man and was involved in a physical altercation while drunk in public.  Miles has been committing crimes for the past 30 years and has been arrested for a multitude of different crimes, including prostitution, battery, and armed robbery.

News Scan

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San Francisco D.A.'s Initiative Would Turn Felonies into Misdemeanors: A initiative proposal made by San Francisco District Attorney George Gascon would reduce nonviolent felonies including drug possession and theft, from felonies to misdemeanors.  Marisa Lagos of the San Francisco Chronicle reports that Gascon believes that making these crimes misdemeanors, will save the state money allowing more to be spent on crime prevention and treatment programs for mental health and substance abuse.  If adopted the initiative would shift more inmates out of state prison and into local county jails, which are already overcrowded and becoming a more dangerous environment due to Governor Brown's Realignment law.  

Judge Considers CA Inmate Isolation Practices:  In light of recent controversies surrounding the solitary confinement issue, a federal judge is pondering whether placing mentally ill inmates in solitary is a violation of their civil rights.  Don Thompson of the Associated Press reports that U.S. District Judge Lawrence Karlton, one of the tribunal that has already ordered massive inmate releases, has already ruled that mentally ill inmates on death row lack adequate care and the treatment.  Judge Karlton is also reviewing the use of force by prison guards, which encompasses the issue of prolonged segregation.  Currently, about 9 percent of California's prison population are held in isolation units. 

More Violence Reported in Arkansas Jail:  A spokeswoman for the Washington County Detention Center in Arkansas says that the jail sees about two to three fights per week, which officials believe is the result of the growing inmate population. Shain Bergan and Katelynn Zoellner of 5News reports that the 710-bed facility houses 581 detainees, 238 of whom have been convicted and are awaiting transfer to a state prison.  Though not at full capacity, the numbers of inmates are up and continuing to rise, and the need to separate certain inmates from one another presents a challenge.  In the past six months, 63 attacks have occurred on officers and other detainees. 

California Changes Parole Policy for Lifers:  A legal settlement approved this week by a state appeals judge requires  California's Board of Parole Hearings to set the minimum time that should be served before an inmate is released.  The state agreed to the deal as a way to release murderers and others serving life sentences sooner.  Don Thompson of the Associated Press reports that the shift in policy will have the parole board setting the minimum term at the inmate's first parole hearing, rather than setting the minimum terms after determining if an inmate is eligible for parole.  The new policy will lead to earlier parole dates for inmates, which would inevitably reduce prison overcrowding.  However, corrections experts are skeptical that the change will actually shorten the prison terms of thousands of inmates, and legal director Kent Schiedegger of the CJLF concurs that it is "too soon" to say what, if any, effect the policy may have.

Should Juveniles Always Get a Free Ride?

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The law tends almost always to draw a bright line between juvenile and adult sentencing (indeed, in juvenile law, the disposition is often not even called a "sentence").

Whether this one-size-fits-all-under-18 rule makes any sense is a different matter. Don't we have courts precisely to judge cases on their individual facts, rather than make assumptions about maturity and judgment  --  issues critical to deciding criminal responsibility  --  that will sometimes be right, and other times be dead wrong?

The head of the Federalist Society chapter at Ole Miss Law School, Ms. Katie Ryan Van Camp, has an article up on SSRN.  The abstract follows the break.  It seems very much worth the read.

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'Soldiers of Allah' Found Guilty in Brutal Murder: A jury in a London courtroom has found two Muslim men guilty in the vicious murder of a British sodlier.  Fox News reports that 25-year-old Fusilier Lee Rigby was returning to his barracks when he was run over, stabbed to death, and nearly decapitated in the brutal attack.  The two men, self identified as "Soldiers of Allah",   pled not guilty but never denied involvement in the crime.  They were captured in a video shortly after the attack justifying their actions as 'revenge.'  The pair will be sentenced January 2014.

Convicted Killer Sentenced to Life may Become a Free Man: A California man sentenced to life in prison 20 years ago, for a murder he committed as a minor, may one day have a shot at parole and become eligible for release.  CBS Los Angeles reports that Edel Gonzalez will be the first California inmate re-sentenced under the new California Sentencing for Youth Act, also known as SB 9.  The new law allows inmates who were given life sentences as minors to petition for parole after serving a minimum of 15 years.

Obama Commutes Sentences for Crack Users: President Obama has commuted the sentences of eight federal inmates who were convicted of crack cocaine offenses.  Charles Savage of the New York Times reports that each of the inmates has spent at least 15 years behind bars, and six of the eight had been given life sentences.  This is the first time retroactive sentencing has been applied to inmates who, under today's sentencing laws, would have received significantly shorter jail terms.    

One of the major themes of the pot legalization movement is that pot is OK.  Tobacco is bad; booze is bad; but pot  --  well, look, hey, your parents did it, and they didn't fall off the edge of the world, right?  And it's medicinal, too!  So how bad can it be?

Few in the movement say point-blank that pot is healthy, but all the body language is that it's only fuddy-duddies, cops and the Church Lady who have tight undies about it.

The problem with telling our kids this stuff is that sooner or later, they'll believe us. Sooner seems to have arrived.  This is what the National Institutes of Health has found, according to Time Magazine:

A new survey from the National Institutes of Health (NIH) shows that marijuana use among young people is on the rise.

The NIH 2013 Monitoring the Future Survey measures drug use and opinions among eighth, 10th and 12th graders in the U.S. This year, the major finding shows that the number of high schoolers who think marijuana is dangerous has continued to drop over the past decade. The data shows that teens are using it more often than they have in the past. And according to the researchers, such lax attitudes about pot will likely continue to lead to increased use.

This year's survey polled 41,675 students from 389 public and private schools, and found only 39.5% of 12th graders thought marijuana was harmful, which is down from 44.1% last year. Usage among high school seniors has increased as well. This year, 6.5% of seniors reported smoking pot daily, a slight increase from the 6% who reported the habit in 2003 and the 2.4% in 1993. While the increases were relatively small, greater usage is concerning since levels of THC, the active ingredient in cannabis, have gone up from 3.75% in 1995 to an average of 15% in current marijuana cigarettes. For a developing brain, exposure to such doses has been linked to changes in the brain and memory loss.

Don't expect to be hearing a lot about this this story from the people who tell us so relentlessly that our views about pot should be grounded in science rather than moralizing.

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OK Executes Convicted Murderer:  In its final execution of 2013, the Oklahoma Department of Corrections executed convicted murderer, Johnny Dale Black.  The Associated Press reports that Black was sentenced to death for his role in a 1998 brutal roadside attach on a 54-year-old man who died after suffering 11 stab wounds, several broken ribs, and two punctured lungs.  Black was the sixth person executed by the state of Oklahoma this year.

Death Penalty Advocate Calls for Reform: Former NFL football star Kermit Alexander, is calling on California to reform its death penalty process in order to provide justice for victims.  Alexander, who lost four members of his family in a violent home invasion, writes that district attorneys, law enforcement and victim's rights advocates are proposing an initiative that would "revamp the appeals process, Death Row housing and victim restitution."  Alexander is calling for the state to require death row inmates to work inside the prison in order to raise money for victim restitution, if the inmate elects not to work, he/she would lose access to privileges such as personal televisions and radios.  

Florida Lawmakers Aim to Toughen Sex Offender Laws: Four Florida senators have introduced legislation that would require tougher penalties for habitual sex offenders.  Rochelle Koff of the Miami Herald reports that the bills call for lengthening sentences and more thorough evaluations of offenders before they are considered for release.  The legislation is in response to  the recent kidnapping, rape, and murder of a 7-year-old girl at the hands of a registered sex offender, who had been evaluated and released from prison twice prior to the murder. 

Alleged LAX Shooter May Face Death Penalty: 23-year-old Paul Ciancia, the man charged with  murdering a TSA agent at Los Angeles International Airport last month, now faces a possible death sentence after a federal grand jury charged him with first-degree murder and multiple other felonies.  Andrew Blankstein of NBC News reports that along with the murder charge, Ciancia has also been charged with the attempted murders of two other TSA agents during his shooting spree targeting airport employees.  Three of the other felonies Ciancia has been charged with qualify as special circumstances.

The Morphing Factoid

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WaPo Fact Checker Glenn Kessler examines a claim made by Attorney General Eric Holder over four years ago.  "Disturbingly, intimate partner homicide is the leading cause of death for African American women ages 15 to 45."  That would indeed be disturbing if it were true.  It is not.  Not even close.

Why is The Fact Checker focusing on a statement made four years ago? This assertion by the attorney general is an interesting case of a game of telephone being played with a factoid, in which the original statistic has become lost from its moorings.
There was a BJS report in 1998 that discussed the issue but did not say what it has since been cited for.  An article in the American Journal of Public Health miscited the study as saying homicide (not necessarily intimate partner homicide) was the leading cause of death in the demographic group in question.  Then another study published in DoJ's National Institute of Justice Journal miscites it again with the even more stark, and even more wrong, statistic.

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Parole Board to Set Minimums for Life Inmates:   An appeal by a California inmate convicted of murder has resulted in a settlement that may result in earlier releases for parole-eligible inmates.  The Associated Press reports that 46-year-old  inmate, Roy Butler, argued  on appeal that his request for parole had been unjustifiably denied for the past 10 years.  Under the settlement, the state's parole board will be required to establish a minimum time that an inmate has to serve in prison before he/she is eligible for release.  For inmates kept behind bars longer than their established minimum sentence, the parole board will be required to explain why they are a danger to the public and should remain incarcerated. 

Federal Appeals Court Upholds Sentence in Terror Case: A federal appeals court has upheld the conviction of an Iraqi man sentenced to life for conspiring to send money and weapons to al-Qaida in 2010 and 2011.  The Associated Press reports that 26-year-old Mohanad Shareef Hammad challenged his sentence based on the claim of government misconduct after he discovered he had been working alongside an informant.  The presiding judge in the case ruled against Hammad, citing that the government presented Hammad with the opportunity to commit a crime and he elected to participate. 

Mississippi set to end Conjugal Visits: Beginning February 1, 2014, inmates in the Mississippi Department of Corrections will no longer be allowed to have conjugal visits.  George Brown of WREG Memphis reports that the Department of Corrections decided to put an end to the visits due to "budgetary reasons and the number of babies born as a possible result."  Mississippi was one of only six states allowing conjugal visits, and of the more than 22,000 inmates incarcerated, only 155 were eligible and participated in conjugal visits over the last fiscal year. 

Prosecution to Seek Death Penalty in Grandparents' Murder: 21-year-old Kyle Drattlo and two of his friends could be sentenced to death if found guilty in the murders of Drattlo's grandparents earlier this year.  Patrick McNamara of the Arizona Daily Star reports that the trio has been charged with first-degree murder for their role in stabbing the elderly couple and stealing their car.  In addition to the first-degree murder charges, Drattlo and his two accomplices have also been charged with burglary and armed robbery.

Richard Epstein has this essay at the Hoover Institution, titled "The Constitution's Vanishing Act." His thesis is that conveniently forgetting parts of the Constitution can sometimes expand judicial power and sometimes contract it.  He begins with the Supreme Court's frequent forgetting of the "s" in the Eighth Amendment's command "... nor cruel and unusual punishments inflicted."

The importance of the slip is evident from the 2012 Supreme Court decision Miller v. Alabama, which struck down a mandatory lifetime sentence for a fourteen year-old guilty of murder. In writing her opinion, Justice Elena Kagan included the "s" in quoting the clause. But during the analysis, that "s" disappears, thereby transforming the constitutional text:

The Eighth Amendment's prohibition of cruel and unusual punishment "guarantees individuals the right not to be subjected to excessive sanctions." That right, we have explained, "flows from the basic 'precept of justice that punishment for crime should be graduated and proportioned' " to both the offender and the offense. 

Justice Kagan faithfully references earlier cases that take her position. But the wealth of precedent does not conceal the major shift in constitutional focus. The prohibition against "cruel and unusual punishments" conjures up a list of punishments that should be rejected because they are cruel, no matter what the offense. The issue of proportionality never arises.

SarahHansen.jpgRita Dukes Smith of SurfKY News has this article on the perspective of one of the police officers on the case of White v. Woodall, presently before the Supreme Court.  See prior posts on the case here and here.

Below the line is quoted from the article.

Greenville Mayor Ed DeArmond was operations LT for the Kentucky State Police Post 2 at the time of the murder of 16-year-old Muhlenberg South High School student Sarah Hansen. The veteran police officer and military veteran said the murder case will forever haunt his memory not only because of its heinous nature but also because the victim and her family were his friends.

"I got a call that night that a body was found," DeArmond told SurfKY. "(The scene) was just a few minutes from my home so I went there. Eddie Perry was there keeping people out, and I asked what the situation was. He told me that they had found the body of Sarah Hansen. I knew her and her family."

*                                           *                                       *

"I don't recall a murder, in all my years in law enforcement, that caused so much pain to just about everyone in the county," said DeArmond. "I have friends in the Woodall family, too. Everyone was so deeply hurt by this unfortunate incident."

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US Supreme Court to Consider Mississippi Woman's Death Penalty Appeal: The US Supreme Court will decide whether or not to hear an appeal from a Mississippi woman on death row seeking a new trial based on the claim that she murdered her husband after years of abuse.  Jack Elliot Jr. of the Associated Press reports that 56-year-old Michelle Byrom was sentenced to death in 2000 for the murder of her husband, and during the sentencing phase of her trial, made the rare request to have the sentencing judge determine her sentence rather than the jury.  Byrom claims that she was sentenced unfairly after her attorney failed to inform the judge of past physical and sexual abuse at the hands of her husband.  The case is Byrom v. Epps, No. 13-5998, on the January 10, 2014 conference list.

Santa Barbara Jails See Increase in Violence After Realignment: Inmate-on-inmate assaults have increased by 40 percent inside the Santa Barbara County Jail system since 2011, and according to Cmdr. Darin Fothingham, Realignment is to blame.  Giana Magnoli of Noozhawk reports that in addition to an increase of inmate-on-inmate attacks, assaults on staff have almost doubled since Realignment went into effect in October 2011.  Assaults range from minor offenses such as simple battery to more serious incidents including assault with a deadly weapon and attempted murder.

CA Jury Recommends Death Sentence for Man Convicted in Double-Murder: A California jury has recommended that 29-year-old Iftekhar Murtaza be sentenced to death for his role in the murders of his ex-girlfriend's father and sister.  The Associated Press reports that Murtaza stabbed his former girlfriend's mother and left her unconscious on the neighbor's lawn before killing the woman's father and sister and setting their home on fire.  Prosecutors say Murtaza killed his former girlfriend's family because they disapproved of their relationship. 


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Nothing much interesting at the US Supreme Court today.  The orders list has no grants of certiorari, as expected.  There is one decision in a civil case on disability insurance.

More on Affluenza

Manny Fernandez and John Schwartz have this article in the NYT, following up on the teenage drunk driver who killed four people and got off with probation, claiming the "mitigating" circumstance that his parents were rich and had spoiled him rotten.  See Bill's prior post.

Liz Ryan, the president and chief executive of the Campaign for Youth Justice, a group in Washington that advocates for juvenile rehabilitation, said that in a series of recent cases before the Supreme Court and state courts, advances in neuroscience have been applied to questions of crime and punishment for young people.

"They make mistakes, they're prone to impulsive behavior," Ms. Ryan said. "And at the same time, they are capable of change."

But a prominent advocate for victims' rights reacted to the sentence with scorn. "Just when you think our excuse-making culture has sunk as low as it can go, somebody goes yet lower," said Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation in Sacramento.

Scott Brown, Mr. Couch's lawyer, said that while the word affluenza may have become an object of fascination, it was never at the heart of the case. His client had already pleaded guilty, and the word came up in hearings on punishment. "I never used the word affluenza, and never would have used such a cute word in such a serious, tragic case," Mr. Brown said. "That's just been blown completely out of proportion."

*                                           *                                        *

Bill Berenson, a lawyer for Mr. Molina's parents, said his clients were stunned by the sentence. "Their son is paralyzed, four people are dead and the perpetrator gets his wrists slapped," he said. "How could they not feel that his affluence kept him from serving time?"

I can appreciate Brown's point that the word has been blown out of proportion, but this isn't, or shouldn't be, about the word.  This is about the ridiculous extremes to which we are taking excuse-making, whatever label may be applied.

Blago's Appeal

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Kim Janssen and Natasha Korecki report for the Chicago Sun-Times:

It's a long time since Rod Blagojevich had anything to celebrate in federal court.

And he probably shouldn't get too excited just yet.

But a ray of hope beamed into the disgraced former governor's prison cell Friday when appellate court judges zinged prosecutors with pointed questions about his corruption convictions.

Chief among the questions the justices wanted answered: just what separates Blagojevich's actions from the "legal horse trading" politicians typically rely upon to advance their careers?

Hall v. Florida and Stateline Follow-Up

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My post of December 9, critical of a Stateline article on Hall v. Florida, has been updated to reflect an update to the article.

SCOTUS Takes Up Bank Fraud Case

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The US Supreme Court today took up a case on the interpretation of the federal bank fraud statute, Loughrin v. United States, No. 13-316.  The question presented is:

Whether the Government must prove that the defendant intended to defraud a bank and expose it to risk of loss in every prosecution under 18 U.S.C. § 1344.
Lyle Denniston has this post on today's cert. grants at SCOTUSblog.

News Scan

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CA Supreme Court Upholds Death Sentence: California's highest court denied the appeal of a man sentenced to death who claimed that the penalty was too harsh and a violation of his Eighth Amendment rights.  Kenneth Ofgang of the Metropolitan News-Enterprise reports that California's Supreme Court ruled that George Lopez Contreras was indeed eligible for the death penalty based on the fact that he murdered his victim during the course of a robbery, rejecting a challenge of the state's felony-murder rule.  Attorneys for Contreras argued that he had no intent to kill anyone during the robbery, despite evidence that showed Contreras obtained a shotgun the night before the robbery and enlisted the help of armed accomplices.
21-year-old Now the Youngest on FL's Death Row:  The mastermind of the 2011 murder of a 15-year-old in Florida has at 21 become the youngest person on the state's death row.  Arelis R. Hernandez of the Orlando Sentinel reports that Michael Bargo, was 18 when he and four others lured teenager Seath Jackson to a house in Marion County where he was repeatedly beaten with piece of wood and shot several times.  Bargo and the other attackers then burned Jackson's body and attempted to conceal it in paint containers.  The four co-defendants received life sentences.  Bargo argued mental illness, but the jury recommended that the court impose the death penalty.

CO Stops Placing Mentally Ill in Solitary Confinement:  Prison officials in Colorado have been instructed to stop placing mentally ill inmates in solitary confinement by the interim Director of Prisons.  Ivan Moreno of the Associated Press reports that the alternative option for mentally ill inmates is to refer them to a 240-bed residential treatment program that is located inside the Centennial Correctional Facility.  The effort to place limits on solitary confinement was sparked by the murder of  state prison director Tom Clements last March by a former inmate who had spent most of his eight year sentence in solitary.  The state currently has only eight mentally ill inmates in solitary, compared to the 140 in 2012.  The ACLU now wants the definition for who is considered mentally ill should be broadened.

Remorse, Demeanor, and Sentencing

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Should a defendant's expression of remorse get him a lesser sentence?  Even if one is inclined to say yes in the abstract, in practice how do you know if the remorse is sincere?  Dinesh Ramde reports for AP:

RACINE, Wis. (AP) -- A southeast Wisconsin man who recorded himself sexually assaulting six young children gave a slight smirk as a judge admonished him for his crimes, leaving the judge taken aback for a moment before he sentenced the Racine man to the maximum 145 years in prison.

Alexander R. Richter, 30, had just apologized for molesting a 2-year-old girl and five other young children. He also acknowledged that his words could do nothing to undo the damage he'd caused. But the corner of his mouth turned upward slightly as Judge Timothy Boyle recounted Richter's comments to a pre-sentencing investigator.

"You said you feel sorry for (the children), that you ruined their whole lives. But you smiled as you said it," Boyle noted. He paused for a moment and then noted with incredulity, "You're smiling now!"

The Justices and the Heartland

Robert Barnes ponders in the WaPo:

How would the Supreme Court play in Peoria? And would some of the justices need a map to find it?
During oral argument in an international child custody case, Justice Sotomayor made a reference to Peoria as the prototypical small city far from urban centers such as her home of New York.  Then she caught herself and noted she didn't mean to denigrate Peoria.  Justice Breyer (of SF/Boston) took up Peoria and asked about custody being decided under Iowa law.  Well, it's one of those corn-growing states that starts with "I."  Maybe that counts as "close enough" for people who think the coasts are where it's at, and everything else is "flyover country."

News Scan

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California Given Two-Month Extension to Reduce Prison Overcrowding: A panel of federal judges have pushed back the state of California's deadline to reduce prison overcrowding to April of 2014, giving officials a two-month extension to meet a ruling ordering the state to reduce its prison population by 7,000 inmates.  Paige St. John of the LA Times reports that in addition to the time extension, the panel of judges has also requested that the state limit the amount of time some mentally ill inmates spend in solitary confinement.  Governor Brown's proposed plan to seek out additional space in out-of-state private prisons was blocked by the panel earlier this year. 

Kentucky Announces Plan to Remedy Failed DNA Collections: The Kentucky Department of Corrections has announced its plan to address issues involving the state's mandatory collection of DNA samples from convicted felons.  John Meador of WKU Public Radio reports that an investigation conducted by the Office of the Inspector General revealed that more than 16,000 DNA samples were missing, forcing the state to implement a more rigorous collection program in its jails and prisons.  Some of the convicted felons who owe DNA samples are still in the state's custody, while others will have to report to probation or parole officers to provide samples.

Kansas Supreme Court to Hear Brothers' Death Sentence Appeal: The Kansas Supreme Court will hear arguments next week from a pair of brothers sentenced to death from their role in a crime spree that left five people dead and one survivor severely wounded.  The Capitol-Journal reports that Reginald and Jonathan Carr broke into a home armed with guns, sexually assaulted the residents, and then made them withdraw cash from ATM machines before shooting them execution style at a local soccer field.  The brothers are challenging their convictions based on the claim that they received an unfair trial after the court denied a change of venue request and a motion to allow both men to be tried separately.  

Taking the Initiative

Officer Larry Lasater of the Pittsburg, California Police Department would have been 44 today.  The thug who gunned him down sits on California's death row.  He has been there six years with no end in sight.  Regrettably, the California Legislature is run by people who care more about murderers than victims and who have repeatedly killed the reforms needed to complete these cases in a reasonable time.

Today an initiative was filed with the California Attorney General to take the reform question directly to the people.  If the requisite number of signatures can be gathered, it will be on the ballot in the November 2014 election. 

Drafted by a committee including yours truly, it will, if approved, fix the key problems that are actually wrong with current law, not to be confused with the intentional misdiagnosis of the majority report of John Burton's stacked commission.

I will have a full paper later explaining the reforms, what is actually wrong, and why these reforms will fix what is actually wrong.

There is little doubt that the people will vote for reform if given the choice between reform and the status quo.  Last year, given the unpalatable choice of repeal versus the status quo, a majority voted to keep the death penalty despite a massive funding advantage for the other side.  Given a choice between the status quo and a set of reforms that will make the death penalty effective and save taxpayer dollars at the same time, a landslide is likely.

The website for Californians for Death Penalty Reform & Savings is here, and it is also linked in the Links segment of this blog.

Missouri Execution

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Nineteen years ago, Richard Drummond stopped on Interstate 70 to help some people whose car had broken down.  One of them, Allen Nicklasson, repaid the kindness by murdering Mr. Drummond.  Long overdue justice was carried out last night, but it took an order of the Supreme Court.

KTVI has this story.  Gov. Nixon's statement on denial of clemency is here.  Judge Beam's dissent to the Eighth Circuit's grant of a stay explains why the stay was wrongly granted. 

The Supreme Court vacated the stay 5-4, with Justice Ginsburg dissenting joined by Justices Breyer, Sotomayor, and Kagan.

Nicklasson had already had his full set of days in court.  He was trying to exploit Rule 60 of the Federal Rules of Civil Procedure to get around the tight limit on successive petitions imposed by Congress in 1996.  A majority of a three-judge panel would have let him get away with it, a majority of the Eighth Circuit judges refused to stop them, and one less than a majority of the Supreme Court would have also let him get away with it.  That is way too close for comfort.

This is Missouri's second single-drug pentobarbital execution.  The Guardian reports:

Missouri previously used a three-drug method for executions but changed protocols after drugmakers stopped selling the lethal drugs to prisons and corrections departments. The pentobarbital used in Missouri executions comes from an undisclosed compounding pharmacy - the Missouri department of corrections declines to say who makes the drug, or where.

The Culture of Victimization Runs Wild

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It's standard practice for criminal defendants to portray themselves as victims  --  of racism, poor schooling, parental abuse and economic status, to name four you see all the time.  

Doug Berman at Sentencing Law & Policy has a dumbfounding story this morning of the latest turn in the defense bar's painting the client as the victim.  It concerns parental "abuse" and economic "status," alright, but with a twist.

The client is a 16 year-old who plowed into a group of pedestrians and another car, killing four people.  For this behavior, his sentence was probation  --  not a day of confinement, not in prison, not anywhere.  Probation and, of course, "treatment."

Why such a lenient sentence?  As the story recounts:

To the families of the victims, Ethan Couch was a killer on the road, a drunken teenage driver who caused a crash that left four people dead.

To the defense, the youth is himself a victim -- of "affluenza," according to one psychologist -- the product of wealthy, privileged parents who never set limits for the boy....

Lawyers for Couch, 16, had argued that the teen's parents should share part of the blame for the crash because they never set limits for the boy and gave him everything he wanted. According to CNN affiliate WFAA, a psychologist called by the defense described Couch as a product of "affluenza." He reportedly testified that the teen's family felt wealth bought privilege, and that Couch's life could be turned around with one to two years of treatment and no contact with his parents.

So let's get this straight.  If you're poor and your parents treat you badly, you're a victim and you have an excuse.  On the other hand, if you're rich and your parents treat you well, you're also a victim and you too have an excuse.  Do we all have that down?

White v. Woodall Argument

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The argument transcript for White v. Woodall is available.  In a post last week, I explained what I think is the most important aspect of the case, applying the AEDPA standard of 28 USC §2254(d) to a case where the habeas petitioner needs to extend rather than just apply existing case law to make his claim.

The argument spent less time on the AEDPA standard than I would have liked.  On page 31 the Chief Justice says, "No one's talked about the standard yet."  Then they talk about it.

No clear winner emerges from the argument.  If the underlying issue were before the Court on direct appeal, it actually would be a close call.  As I've said before, though, when the underlying issue is close, the AEDPA issue is easy.  At least it should be, if judges would apply §2254(d) the way it is written and the way it was intended.  Stay tuned.

News Scan

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Oklahoma Executes Convicted Double-Murderer: 53-year-old convicted murderer Ronald Lott was put to death Tuesday evening after being convicted of brutally raping and murdering two elderly women in the late 1980's.  Rick Halperin of Death Penalty News reports that Lott was linked to the crime by DNA evidence 11 years after a different man, Robert Lee Miller Jr., had already confessed to the murders and had been sentenced to death.  Lott became the 5th person executed by the state of Oklahoma this year, their 6th and final execution of the year is scheduled for next week.    

Ex-Con Arrested in Murder of Arizona Girl: Authorities in Arizona have made an arrest in the death of a 14-year-old girl found assaulted and strangled in an apartment complex dumpster last week.  The Associated Press reports that police arrested 31-year-old Alex Madrid on suspicion of first-degree-murder, kidnapping, molestation, and several other charges related to the brutal attack after DNA evidence linked him to the crime.  Madrid, who has a lengthy criminal history dating back to 2000, was originally arrested last Friday on probation violations and had been living with the girl's family prior to the murder.

CA to Electronically Monitor Inmates:  The California Department of Corrections and Rehabilitation has announced plans to begin implementing a new electronic tracking system at 32 institutions that prison guards will use monitor inmates.  Amy Stewart of All Voices reports that the new system replaces the old paper system, which resulted in continuous errors. The new system is designed to reduce inmate suicides and homicides by ensuring that prison staff check in on inmates thoroughly and at the correct intervals, all while electronically recording and monitoring their activities.

Rebutting Psychiatric Defense Evidence

This morning the US Supreme Court unanimously reversed the decision of the Kansas Supreme Court in Kansas v. Cheever

We hold that where a defense expert who has examined the defendant testifies that the defendant lacked the requisite mental state to commit a crime, the prosecution may offer evidence from a court-ordered psychological examination for the limited purpose of rebutting the defendant's evidence.
The Kansas Supreme Court had held that this rule applies when the defendant is making a "mental illness" defense but not when he claims a transient mental factor, including intoxication, impaired his ability to form the mental state required for the crime.  That is a nonsensical distinction and an overly cramped view of the US Supreme Court's precedents in the area.

Unfortunately for those interested in the theoretical aspects, the Court's opinion does not resolve the interesting question of the basis of the rule.  Is it a matter of "waiver" of the Fifth Amendment self-incrimination privilege, as has been traditionally stated, or is it a matter of having chosen to become a witness to a limited extent by introducing testimony based on an examination of the defendant?   See CJLF's brief for a more complete description of the latter view.

There is some leaning in the latter direction on page 6 of the slip opinion, noting the harmony with the principle that a defendant who testifies cannot refuse cross-examination.  The theoretical question was discussed but not resolved in a 1984 D.C. Circuit opinion cited on that page for another point.  That opinion was written by Circuit Judge Scalia and joined by Circuit Judge Ginsburg.

Today the rule is firmly established.  Theory will have to wait for another day.

The Number One Excuse Goes Bye-Bye

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There is a movement in Congress to repeal or dramatically scale back mandatory minimum sentencing laws.  Specifically, four bills are on the table for a Senate Judiciary Committee markup on December 19.  The most brazen is the Leahy/Paul bill, which would effectively repeal mandatory minimums by allowing judges to ignore them at will.  A less radical plan is the Durbin/Lee bill, which would slash mandatory minimums by roughly half.  There are two other bills for what are called "back-end" reductions in sentencing.  In a way, these bills are even worse, because they hide from public view their slashing of mandatory minimum sentences; the sentences would be sliced and diced for ever-malleable "good behavior" well away from the time of conviction, much less any press coverage.

Understandably not wanting to be too up front about carrying the flag for criminals  -- which is what's actually going on  --  the backers of these bills have made their most urgent argument as follows:  The Department of Justice budget is fixed.  We don't have the money.  It's that darn sequestration. We already spend 20 to 30 percent of DOJ's budget on BOP, and if we spend more, we'll just crowd out other essential programs. Ergo, the BOP share of the budget has to be contained, and the only way to do this is to quit with these long, mandatory minimum sentences which were only enacted to begin with to satisfy you racist hatemongers.

Only tonight, the excuse blew up.

News Scan

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Report Links Realignment to Increase in Property Crime: A study conducted by the Public Policy Institute of California has linked the recent rise in property crimes to the state's prison realignment plan implemented by Governor Brown in 2011.  Beatriz Valenzuela of the Press-Telegram reports that while property crime rates nationwide have been declining over the past few years, property crimes such as motor vehicle theft, larceny, and burglary have risen in California by 7.6 percent.  The study also revealed that California's violent crime rate has also gone up since the implementation of Realignment after the state experienced a 45-year low in 2011.  

Some Georgia Inmates to be Re-Sentenced: An estimated 10 inmates incarcerated in Georgia prisons will need to be re-sentenced after a recent state Supreme Court ruling applied the U.S. Supreme Court's 2005 decision in Roper v. Simmons which announced that laws requiring a mandatory sentence life in prison without the possibility of parole (LWOP) for murderers under 18 were unconstitutional.  Michell Eloy of Atlanta PBS reports that the decision affects murderers who automatically received LWOP because they were under 18 at the time of the crime and could not be sentenced to death.  The murderers affected by the decision will likely receive life sentences with the option of parole. 

Missouri Murderer Granted Stay of Execution: The state of Missouri is seeking an en banc review of an 8th Circuit panel's stay of execution for a convicted murderer set to be put to death on Wednesday.  The panel was divided 2-1, Judge Beam dissenting.  Alan Burdziak of the Colombia Daily Tribune reports that attorneys for 41-year-old Alan Nicklasson are appealing his execution based on the claim that the state's execution protocol puts their client "at risk for a painful death."  The state's attorney general is hoping that the en banc court will lift the stay allowing Nicklasson's execution to be carried out as planned.

A Decision on Younger Abstention

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This morning the US Supreme Court decided the Sprint case, having to do with Younger abstention, previously discussed in this post in October. The decision was unanimous in favor of the federal court going ahead and not abstaining.

No criminal cases were decided today, and none will be argued.
Update (12/13):  The article noted below was updated today to respond to the criticisms in this post.  The corrections do not go as far as I would like, but it is a large improvement over the original.  I appreciate the willingness of Ms. Clarke and her editor to discuss the issue and revise the article.


Maggie Clark has this article in Stateline.  The article has been reprinted in other outlets, including USA Today.  Unfortunately, the article is seriously flawed.

In Atkins v. Virginia, the Supreme Court added mental retardation to the list of absolute exclusions from the death penalty.  The trend, including the DSM-5, is to substitute the term "intellectual disability."  For this post, I will use the terminology that was current when Atkins was decided.  The article says this about the issue in the case:

After the decision, most states stuck with the three-pronged clinical definition, but Florida, Georgia, Mississippi and Texas set their own standards. Under Florida's law, if you have an IQ over 70, you're eligible for execution regardless of intellectual function or adaptive behavior. 
That significantly overstates the difference between Florida's standard and clinical practice.  Atkins noted the clinical definitions in the AAMR definition and the DSM-IV, which are largely the same.  Both are three-part conjunctive tests.  To be classified retarded, a person must have "significantly subaverage intellectual functioning" and deficits in adaptive functioning and the condition must have onset before age 18.  As with any conjunctive ("and") test, as soon as one criterion is found false, there is no need to evaluate the others.  Any test with "logical and" criteria is known to be false as soon as one criterion is known to be false.  When Florida says that a failure on the intellectual function prong ends the question no matter what is shown on the other prongs, that is not inconsistent with the standard definition.  IQ above 70 is not "regardless of intellectual function"; it is the measurement of intellectual function. 

Although not at issue in the Hall case, the article also has this gem about Texas.

News Scan

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Former San Diego Mayor Sentenced to Home Confinement: Former San Diego Mayor Bob Filner has been sentenced to three months of home confinement and three years of probation after pleading guilty in October to several counts of harassing women.  The Associated Press reports that the 71-year-old mayor faced a possible five-year prison sentence, but elected to take the plea agreement involving home confinement and probation offered to him by prosecutors instead.  The presiding judge specified that during his three-year probation, Filner may not attempt to seek or hold any elective office. 

Ninth Circuit to Review DNA Collection Law:  A California law that requires law enforcement to collect DNA samples from arrestees is under review by an en banc panel of the Ninth Circuit Court of Appeals.  KTVU reports that the American Civil Liberties Union opposes the law as an invasion of privacy because not all persons arrested are charged with a crime.  Maryland has a similar law that was upheld by the Supreme Court in a 5-4 decision, but that law only allows DNA samples from offenders arrested for violent crimes and destroys the samples of those who are not charged.  Under the California law, arrestees who are not charged must apply to have their sample destroyed.  California Attorney General Kamala Harris, the Obama Administration, and law enforcement officials believe that the law is constitutional, and a powerful law enforcement tool.   The case is Haskell v. Harris.

Theodore Dalrymple on the DSM-5

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This article at the City Journal is titled, "Everyone on the Couch: Today's psychiatry undermines self-reliance and morality."  It is informative, entertaining, and well worth reading in its entirety.  Here is the conclusion:

The DSM is ultimately an instrument for weakening human resilience, self-reliance, fortitude, and resolve. It turns human beings into mechanisms, deprives their conduct of meaning, and makes them prey to entrepreneurs of human misery. The authors, one could say, suffer from PNOD--psychiatric nosology overvaluation disorder--the criteria for which are as follows:
    A: The grandiose belief that all human weakness can and should be divided into valid diagnostic categories.
    B: At least two of the following: a firm and unshakable belief that all human distress arises from malfunctioning serotonin metabolism; a firm and unshakable belief that functional MRI scans will soon teach humans how to live; a firm and unshakable belief that the seven deadly sins have been scientifically superseded by psychiatric diagnoses.

SCOTUS (Yawn) Monday

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Well, that was totally boring.  The Monday orders list is here. As expected, there are no new grants of certiorari for full briefing and argument.  The cell phone search cases noted in the comment thread of Friday's post have apparently been relisted.

No summary reversals. No action on Ryan v. Hurles.  Look for an eighth relist.

Senator Mitch McConnell and 44 other senators, represented by Miguel Estrada, got 15 minutes of oral argument time as amicus in the recess appointment case.  The SG gets argument time as amicus routinely.  States and high government officials get time occasionally.  It's much more rare for everyone else.  On the other hand, timely motions to file amicus briefs are almost always granted.  Two law professors drew a rare turn-down in the child porn restitution case for filing late.  Not a great example for your students, profs.

The next two days should be more interesting.  Opinions in argued cases are expected both Tuesday and Wednesday.  The argument in White v. Woodall is Wednesday.  See the prior post and the CJLF press release.

News Scan

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Overcrowding Forces the Release of Man Accused of Killing 8:  A man held in a California jail for four months on drug charges was released due to overcrowding, just before authorities connected him to the 13-year-old murders of eight Mexican government officials.  Fox News Latino reports that Genaro Olaguez was released on his own recognizance after serving four months for drug charges involving four marijuana grow houses in Stockton, CA.  Five months later in September, a Sacramento-based task force was informed by the Mexican government that Olaguez was being sought in the slayings, and he was apprehended.  Currently, officials are still deciding how and when to return him to Mexico.

Coalition Seeks Change in Death Penalty Rules:  A San Diego law enforcement coalition has announced support of reforms to California's death penalty process, suggesting the streamlining of appeals and the implementation of an execution method less subject to legal challenges.  Teri Figueroa of UT San Diego reports that the 53 percent of voters who rejected a measure to abolish the death penalty last year will support the new proposal to enforce it.  The last murderer executed in the state was Clarence Ray Allen in 2006, after spending over 23 years on death row.  Members of the group Californians for Death Penalty Reform and Savings believe that "families should not have to wait decades for justice."

NH Man who Killed Parents as a Teen Gets Parole:  A New Hampshire parole board ruled Thursday that a man who has spent over 15 years in prison for murdering his parents at age 14, will be paroled under the condition that he complete counseling and learn necessary life skills.  Holly Ramer of the Associated Press reports that 31-year-old Jeffrey Dingman has earned his high school equivalency degree and work full-time at a steel mill while incarcerated.  The parole board is concerned that he lacks the skills to succeed in society, due to his age at the time he entered prison.  In 1996, Dingman and his 17-year-old brother shot their parents to death when they returned home from work, hid their bodies and partied all weekend before returning to school on Monday.  The older brother is serving a life sentence for first-degree murder and conspiracy. 

Justice Dept. Loses Death Penalty Ruling.:  A federal district judge in Oakland, California has blocked the Justice Department from authorizing states to put their death penalty cases on a "fast track" once they reach federal court. Bob Egelko of the SF Chronicle reports that a 1996 law established the process, but left the decisions on which state's qualified to federal judges. But
after nine years, no state that had applied, including California, was found qualified by a federal judge. In 2006 the law was amended to have the Department of Justice decide if a state met the criteria and the DC Circuit to handle judicial review.  A key hurdle was the competency standard for lawyers appointed to represent condemned murders.  Responding to a lawsuit questioning those standards by a group of defense attorneys, Judge Claudia Wilken has issued a preliminary injunction halting the application process.  CJLF Legal Director Kent Scheidegger says that the law is being delayed for no good reason.

SCOTUS Today and Next Week

The US Supreme Court justices met in conference today and issued an order taking up one patent case.

The court will issue a long orders list Monday, but if the usual pattern prevails there will be no new grants for full argument and briefing on it.  There may be some summary reversals.  John Elwood at SCOTUSblog notes that the Arizona habeas case of Ryan v. Hurles is on relist for the seventh time.

The one criminal case on the week's argument docket is White v. Woodall.  CJLF's amicus brief is here.  I had a post on the case yesterday.  A press release will be in the releases section of our website later today.
In the case of White v. Woodall, to be argued next Wednesday, December 11, the U.S. Supreme Court is finally squarely faced with a situation that it has only mentioned in passing remarks (obiter dicta, in legal Latin) until now.  How does a federal court apply the so-called "deference" standard of 28 USC §2254(d)(1) when the "clearly established federal law" that the habeas petitioner seeks to invoke was established in a different context?  Can he stitch together pieces of cases into a legal quilt to extend the rule he needs to new territory and ask the federal court to declare the state court's refusal to do so "unreasonable," so as to satisfy Congress's standard for an override of the state decision in federal court?

I think the answer is "no," and despite some unfortunate dicta I think it is quite clearly "no."  Allowing this "extension" analysis would undermine the very core of the purpose of §2254(d), as the Supreme Court recognized in Yarborough v. Alvarado.

CJLF's brief is here.  The full set of briefs is on SCOTUSblog's case page.  Some further thoughts on the arguments of the defendant and NACDL follow the break.

News Scan

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Repeat Sex Offender to be Released Soon: A California man with a lengthy history of sexual assaults on college campuses dating back to 1998 will be released from jail in a few months after a judge gave him the maximum sentence for his most recent offense; six months in county jail.  Corin Hoggard of ABC 30 in Fresno reports that 49-year-old Fidel Tafoya, who committed his most recent sexual assault just five months after his last conviction, elected not to participate in a treatment program-an option that would have possibly reduced his punishment.  Tafoya has 15 convictions for sex-related crimes in multiple states and is expected to be released from jail in as little as three months.  

New Bill Aimed at Federal Probation Reform: U.S. Representative Dan Maffei of New York is scheduled to introduce a bill  aimed at strengthening federal probation laws and eliminating flaws that were exposed by a recent high-profile murder case.  Mark Weiner of The Post-Standard reports that the case that inspired the reform involves a man who raped a 10-year-old girl and murdered a school librarian after disabling his electronic bracelet for the 46th time without any intervention or investigation by federal probation officers.  The new bill would make it a federal crime to tamper with electronic monitoring devices and establish a nationwide standard requiring probation officers to respond to all tampering alerts.

Tennessee Seeks Execution Dates For 10 Murderers: Now that the Tennessee Department of Corrections has responded to all of the challenges surrounding their death penalty policies, officials have asked the state Supreme Court to set execution dates for 10 of its death row inmates.  Brian Haas of the Tennesseean reports that the state was forced to put executions on hold in 2011 after running out of the lethal injection drug sodium thiopental, leaving officials to find a replacement execution method, which finally happened in September.  Tennessee has executed only six death row inmates since 1960 and none since 2009. 
Jim Heath reports for 10TV (WBNS) in Columbus, Ohio:

There is rare issue of agreement in the 2014 gubernatorial campaign:  Both Republican incumbent John Kasich and his likely Democratic challenger Ed FitzGerald oppose legislative efforts to eliminate the death penalty in Ohio.
*                                         *                                     *
This bill is likely headed nowhere soon at the statehouse.

Even if a majority of the pro-death penalty Republican lawmakers changed their view, Governor John Kasich's spokesman told 10TV he would not support it.

The likely Democratic nominee for governor, Ed FitzGerald, also would not endorse it.

"Through his experience in law enforcement, Ed has come to know that there are certain people whose crimes are so heinous that they forfeit their right to live," said Matt McGrath, Ohio Democratic Party spokesman.  "Therefore society ought to reserve the right to carry out the death penalty."

Kasich's spokesman Rob Nichols says the governor remains a supporter of the death penalty.  As a legislator he voted against a bill that would have replaced it with life imprisonment.

News Scan

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Michigan High Court Says Parolee Didn't Need Miranda:  The U.S. Supreme Court, on Monday, let stand a 2010 Michigan Supreme Court decision which held that a suspect in jail did not have to be read his Miranda rights before being questioned by a parole officer, despite the suspect having previously requested an attorney.  The state court noted that the questioning in the jail was not a "custodial interrogation" and therefore Miranda did not apply. David Shepardson of the Detroit News reports that parolee Samuel Lee Elliott was arrested in 2010 for violating his probation.  Following the arrest Elliot was read his Miranda rights and questioned by police about a recent robbery.  When he asked for an attorney the interview ended.  Four days later, a parole officer visited Elliot in jail to notify him of several parole violations. During the visit Elliot admitted to the officer that he committed the robbery.  His admission was admitted at trial and he was convicted. 

Inmate Executed for CO's Death:  A Texas inmate was executed yesterday for causing the 2007 death of a corrections officer during an escape at a Huntsville prison.  Cody Stark of the Huntsville Item reports that Jerry Martin and accomplice John Falk Jr., stole a truck after overpowering a field officer, stealing his weapon, and jumping a barb-wire fence while on a work detail in September 2007.  The convicts rammed the vehicle into a horse being ridden by officer Susan Canfield, who was attempting to prevent the escape.  She died of severe head injuries.  Martin was already serving a 50 year sentence for attempted murder.  He waived his right to appeal his death sentence.  Falk's capital murder case was declared a mistrial earlier this year, and he is currently awaiting a new trial.

Medicaid Coverage Expansion Could Reduce Recidivism:  Health officials are hopeful that the 2014 expansion of Michigan's Medicaid coverage will lower the state's recidivism rate by extending coverage to adults who fall around the poverty line, many of whom are inmates.  Julie S of Headlines & Global News reports that as an advocate for inmate health care, the state of Michigan has previously used funds to extend health care to inmates, which resulted in a noticeable decrease in the prison population in only five years.  The plan to extend coverage will give Michigan and other states the ability to finance hospital and medical care of inmates both in and out of prison. Republican legislators are skeptical. 

Hate Crimes

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French prosecutors have charged a visiting 72-year-old American with "inciting hate" for supposedly comparing Croats with Nazis.

The defendant's name is Bob Dylan.  Yes, that Bob Dylan.  Inti Landauro has this story in the WSJ (subscription).

Opinions vary on hate crime laws, even among those of us who generally agree on criminal law matters.  Some think they should be abolished altogether.  Speaking strictly for myself, I think they have a place when a person is targeted for a crime of violence because of his race.  Broadly defined hate crime laws are a different matter.  As the French example shows, they slip too easily into gross violations of freedom of speech, and such laws should be given the heave-ho.

If convicted, BTW, Dylan will probably get off for a fistful of euros.

Faithful Execution

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Article II, section 3, of the Constitution says that the President "shall take care that the laws be faithfully executed."  What exactly does that mean?  The House Judiciary Committee held a hearing on that subject today.  Video and written testimony are available here.

News Scan

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Violence on the Rise in CA Jails Under Realignment: California jails are seeing an alarming increase in inmate violence since they began housing offenders who prior to Realignment would have served their sentence in state prison.  Don Thompson of the Associated Press reports that inmate fights and attacks on jail staff have risen exponentially since the implementation of Governor Brown's Realignment plan on October 1, 2011.  Since Realignment, the county jail in Sacramento County has seen assaults against jail staff increase by 164 percent, while Los Angeles County has experienced a 44 percent increase in inmate-on-inmate assaults.

Man Released From Jail One Day Before Causing Fatal Accident: An Illinois man accused of driving under the influence of drugs and killing a pedestrian had been released from jail just one day prior to the incident.  Roger Starkey of The Metro Independent reports that 32-year-old Shaun Schmierbach had been arrested seven days before the accident for multiple probation violations and was sentenced to six days in jail, allowing him to be behind the wheel a vehicle the following day when he hit and killed a pedestrian.  Schmierbach has been charged with 25 traffic violations in St. Clair County, Illinois since 1997.

Senate Set to Vote on Banning Plastic Weapons: After members of the House voted to renew a ban on plastic weapons earlier today, the Senate will now make the final decision on whether or not to extend the ban that has already been in place for the last 25 years.  Fox News reports that the bill would renew a 1988 measure banning the manufacture, import, or sale of any firearm that can't be identified with a metal detector.  Plastic weapons gained attention recently after a blueprint for a 3-D printed pistol was created in May and made available to the public on the internet, resulting in more than 100,000 downloads. 

Streaming USCA9 En Banc

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The US Court of Appeals for the Ninth Circuit (covering nine Far Western states) announced today that video of its "en banc" oral arguments will be available live on the Internet.

Federal courts of appeals normally hear cases in 3-judge panels, but cases are sometimes heard or reheard by the full court to resolve conflicts between panels or in cases of exceptional importance.  Because of its size, the Ninth Circuit rarely sits truly "en banc" but instead hears cases as an 11-judge court consisting of the chief judge and 10 judges chosen at random.
Two weeks ago, I noted that the Florida Supreme Court had sent the case on the new lethal injection protocol to a trial court for an evidentiary hearing.  The trial court ruled on November 25, and the ruling is now available here.

Regarding the testimony of the defendant's expert, the court notes, "Dr. Heath's opinion on the matter was not that midazolam was ineffective as an anesthetic, but that it should be the only drug during the execution."  There is nothing but speculation that William Happ, the only inmate previously executed with this protocol, was insufficiently anesthetized, and the fact that his head moved does not mean he was conscious.

There is not much left for the Florida Supreme Court, or any federal court, to decide.  On the inmate's own expert's testimony, he has no claim that is even in the ballpark of meeting the Baze standard.
That's satire, of course.  It is the headline of a post at a military satire blog called the Duffel Blog. Very funny.  Ernesto Londoño has this story on the blog in the WaPo.

Also on the blog, Pentagon Scraps 'Lightsaber' Weapons Program After Gross Misconduct, Numerous Injuries.

Making the Simple Complicated

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Kevin Johnson has this story in USA Today, titled "Death penalty for Boston bomber a complicated question."  Huh?  What's complicated about it?

At the threshold, there are often complicated questions of federalism in a decision to prosecute a murder in federal court rather than state court.  Does federal jurisdiction extend to this case under the statute and within the limits of the Constitution?  If so, is this a case that should be prosecuted in federal court as a matter of policy?

The policy question was easy in this case.  This was an act of terrorism directed at the United States as a nation.  In any event, we are past the threshold jurisdiction issue, and that is not what the article claims is complicated.

Given that this is a federal case in which death is an available punishment, should the prosecution seek it?  Of course!  That is not complicated at all.  Death should be sought in cases at the upper end of the heinousness scale, and this case pegs the meter.  It was a terrible crime against a great many victims, and no substantial mitigation has come to light.  The mere possibility that the younger brother was influenced by the older is not remotely close to outweighing the extremely aggravated circumstances of the crime, and any claim of actual duress is conclusively refuted by the perpetrator's scrawling in the boat after his brother's death.

The ridiculously long time that federal courts are taking to resolve capital appeals is not a complication of the decision to seek the death penalty.  It is a failure of the Administration to put the priority on these cases that they deserve.  For the collateral reviews, Congress has mandated that "any motion under section 2255 by a person under sentence of death, shall be given priority by the district court and by the court of appeals over all noncapital matters."  See 28 U.S.C. §2266(a).  The courts are ignoring this law, and the Administration is not pressing them on it.

News Scan

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New Criminal Laws Take Effect in North Carolina:  As of yesterday, several new laws in North Carolina took effect, including Kilah's Law, which calls for tougher penalties on child abusers.  Ashton Pellom of WBTV reports that in response to 3-year-old Kilah Davenport's 2012 beating by her stepfather, leaving her brain damaged, the new law will increase the maximum penalty for the most serious abuse charges from 15 years to 33 years.  The law does not apply retroactively to Davenport's abuser.  Davenport's family plan to meet with federal lawmakers to encourage harsher penalties of child abusers in all 50 states.  Other new laws include:  the prohibition of disorderly conduct at a funeral, memorial service, or processional route; making human traffickers register as sex offenders; and making the failure to report the disappearance of a child a crime.

Craigslist Killer Case Before FL Supreme Court:  Attorneys representing the "Craigslist Killer," a Florida man sentenced to death for the stabbing murder of a 21-year-old Navy wife, will argue tomorrow that his refusal to allow his trial counsel to present evidence on his mental-health and substance-abuse issues, renders his sentence unconstitutional. Larry Hannan of the Florida Times-Union reports that 22-year-old David Kelsey Sparre killed the pregnant woman after responding to her Craigslist ad.  The Florida Supreme Court must weigh Sparre's right to direct his own defense with the state's obligation to consider factors that would justify life in prison without parole rather than a death sentence when a murderer refuses to defend himself. 

Killing Witnesses Paying Off in New Jersey:  Concern is rising in Trenton, New Jersey, over a spike in witness murders, which are often orchestrated from inside the New Jersey State Prison.  Paul Mickle of the Trentonian reports that, in 2005, gang banger Anthony Kidd set up a hit on his ex-girlfriend Kendra DeGrasse from his prison cell because of testimony she provided against him at his 2001 trial for shooting at two police officers.  Since DeGrasse's murder, other witnesses have reported knowledge about homicides, but refuse to give statements out of fear for their lives, leaving many murders unsolved.  Kidd was sentenced to 29 years for killing DeGrasse after he plead guilty to a reduced charge of aggravated manslaughter.  The state says that without the death penalty, which was outlawed in 2007, witness killers are undeterred and authorities are left with little choice but to offer plea deals to avoid trials.

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