February 2014 Archives

News Scan

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Judge Sets Trial Date for Accused CO Movie Theater Killer: James Holmes, the man accused of killing 12 and injuring dozens more at a movie theater premiere in 2012, will begin his highly anticipated trial on October 12-more than two and a half years after the attack.  Shawn Nottingham of CNN reports that prosecutors are still planning on seeking the death penalty against Holmes, who has pled not guilty by reason of insanity.  Holmes is scheduled to undergo an additional sanity evaluation later this summer after the previous exam was deemed 'incomplete and inadequate.'

CA Man Who Tried to Bomb Bank Sentenced to 15 Years: A California man who had dreams of becoming a member of the Taliban has been sentenced to 15 years in federal prison after authorities say he tried to blow up a bank with a car bomb he believed was supposed to detonate, but was in fact made up of non-explosive materials supplied by the FBI.  The Associated Press reports that the plot unfolded after 29-year-old Matthew Aaron Llaneza contacted an undercover FBI agent who pretended to have connections with the Taliban and assisted him with building a fake car bomb that was to be used at a Bank of America branch in Oakland.  Along with the prison sentence, Llaneza will also be forced to spend the rest of his life on probation.      

Man Found Guilty in Quadruple Homicide: A Michigan jury took less than four hours to find 25-year-old James Brown guilty in the 2011 murders of four young women.  Ed White of the Associated Press reports that Brown killed the women in his mother's basement before stuffing their bodies in a car trunk abandoning their bodies in a Detroit neighborhood.  Brown faces a mandatory life sentence without parole.

Defending Statutes

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HolderDaisy.jpgTwo weeks ago, a divided panel of the Ninth Circuit declared California's law on carrying guns in public to be unconstitutional in Peruta v. San Diego, No. 10-56971.  Judge O'Scannlain's opinion begins, "We are called upon to decide whether a responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense."  He and Judge Callahan answer yes.  Judge Thomas dissents.

The San Diego Sheriff announced he would not seek rehearing en banc.  The California Attorney General has now moved to intervene and petitioned for rehearing en banc.

In my view, the AG is entirely correct to do this regardless of where one stands on the underlying question.  The proper operation of our system of separation of powers requires a defense of statutes when they are challenged judicially, and it is the Attorney General's duty to make that defense as long as one can reasonably be made.  It is dereliction of duty for AGs to refuse to defend statutes merely because they agree with the plaintiffs on close questions of constitutional law or, even worse, merely because they oppose the policy behind the statute.  The United States Attorney General notoriously failed to defend the anti-Miranda statute in the Dickerson case back in 1999.  That was very wrong, even though the case ultimately ended with the statute being struck down.

In this case, I have no doubt that Ms. Harris supports the policy behind the statute, so the disagreement issue is not presented.  However, I expect she will be criticized for defending it, so I wanted to state up front that her decision to make the case for the statute's constitutionality is correct, in my view.

Oh, BTW, the case is a slam dunk for rehearing en banc.

Am I My Brother's Keeper?

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With that Biblical phrase, President Obama launched his latest, none-too-subtle effort to whip up white guilt and portray imprisoned black young men as mere vessels of adverse social forces  --  forces driven, at one level or another, by racism. Obama never comes out four-square to say that whites are responsible for the high incarceration rate of blacks, but he beats around the bush to the extent that nothing but the bush is left standing.

Is it racism?  John Hinderaker notes:

Chinese-Americans make more money, on the average, than white Americans, the "income gap" between Jews and Gentiles is wider than that between whites and blacks, and I believe Iranian-Americans have recently surpassed Jews as the highest income group of all. The issue here is not being a "minority." On the contrary, if one sincerely wanted to help young African-Americans, an obvious starting point would be to ask why other Americans "of color" have done so much better.

He continues:

There is no mystery here. African-American men are disproportionately imprisoned because they commit an extraordinary number of crimes. They are disproportionately raised in poverty because their fathers usually don't marry their mothers. Also, drugs. That is really all there is to it.

The whole essay  --  not that long at all  --  is worth the read.

News Scan

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Bill Aims to Expedite Executions for Kidnappers who Kill Their Victims: Missouri senators have proposed legislation that would speed up executions for people convicted of killing their kidnapping victims.  The Associated Press reports that the Timely Justice Act would expedite executions by limiting extensions for appeals and setting deadlines for the state's Supreme Court to hear cases and schedule executions.  The new bill proposal comes a little over a week after 10-year-old Hailey Owens was abducted while walking home and later found dead in the home of a school employee.

Proposed Bill Would Prohibit WA Governor From Issuing Death Penalty Reprieve: In response to the recent death penalty reprieve initiated by Washington Governor Jay Inslee, legislators have introduced Senate Bill 6566 in an effort to prohibit any governor from issuing a reprieve until they have received a recommendation from the state Clemency and Pardons Board.  The Associated Press reports that Senator Steve O'Ban is sponsoring the bill, claiming the reprieve would be an injustice to both victims and families of crime victims.  If the bill passes, the state's Clemency and Pardons Board would be required to give their recommendation for anyone sentenced to death after July 1.

Bomber Executed in Florida

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Brendan Farrington reports for AP:

A drug trafficker who placed a pipe bomb in a gift-wrapped microwave oven in a plot to kill two potential murder witnesses was executed Wednesday for the 1992 death of a Florida highway trooper who became the unintended victim.

Paul Augustus Howell, 48, was pronounced dead at 6:32 p.m. following a lethal injection at the Florida State Prison in Stark, the office of Gov. Rick Scott said in an email.

U.S. Supreme Court denial orders are here, here, and here.

Protesting on Military Bases

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The U.S. Supreme Court decided one criminal case today, United States v. Apel.

Federal law makes it a crime to reenter a "military . . . installation" after having been ordered not to do so "by any officer or person in command." 18 U. S. C. §1382. The question presented is whether a portion of an Air Force base that contains a designated protest area and an easement for a public road qualifies as part of a "military installation."
Yes.  Unanimous.  For those keeping score, that is two unanimous reversals of the Ninth Circuit in two days.  The panel that decided this case knew it was flaky but felt it was bound by a Ninth Circuit precedent.  That's what en banc is for, your honors.  Use it to correct these decisions that are so wrong not a single justice thinks they are right.

Wrapping up our belated notes on Tuesday's decisions, there is Kaley v. United States:

A federal statute, 21 U. S. C. §853(e), authorizes a court to freeze an indicted defendant's assets prior to trial if they would be subject to forfeiture upon conviction. In United States v. Monsanto, 491 U. S. 600, 615 (1989), we approved the constitutionality of such an order so long as it is "based on a finding of probable cause to believe that the property will ultimately be proved forfeitable." And we held that standard to apply even when a defendant seeks to use the disputed property to pay for a lawyer.

In this case, two indicted defendants wishing to hire an attorney challenged a pre-trial restraint on their property.The trial court convened a hearing to consider the seizure's legality under Monsanto. The question presented is whether criminal defendants are constitutionally entitled at such a hearing to contest a grand jury's prior determination of probable cause to believe they committed the crimes charged. We hold that they have no right to relitigate that finding.
Unusual lineup on this one.  Opinion by Justice Kagan, joined by Justices Scalia, Kennedy, Thomas, Ginsburg, and Alito.  Dissent by Chief Justice Roberts, joined by Justices Breyer and Sotomayor.

The Long Arm Gets A Little Shorter

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Walden v. Fiore is a law-enforcement-related civil case decided yesterday by the U.S. Supreme Court.

Does a police officer conducting a seizure in one state subject himself to civil suit in another state (in this case, on the other side of the country) merely because the seizure will have a foreseeable effect in that other state due to the property owner's residence there?  No, said the Supreme Court unanimously.  Assertion of jurisdiction on such a tenuous basis denies the sued officer due process of law.
The Fourth Amendment forbids unreasonable searches and seizures.  The Supreme Court has said this generally requires a warrant to enter a home, with some exceptions.

It has long been established, as a general rule, that police may enter a home without a warrant if an occupant of the home with full authority over it invites them in.  As a matter of property law and generally understood social convention, of course you can go in if one roommate invites you.  You don't have to go around and get consent from every roommate.

This cohabitant rule might be considered an application of the general rule actually in the Constitution.  Such an entry is not unreasonable.  It might be considered an exception to the court-created warrant requirement.  Either way, it is well established.

Eight years ago, in Georgia v. Randolph, the Supreme Court made an exception.  Randolph, present at the time, objected to the entry of the police into his house, but his wife "readily gave" consent.  This was held to be a violation of the Fourth Amendment in a 5-4 decision.  "The question here is whether such an evidentiary seizure is likewise lawful with the permission of one occupant when the other, who later seeks to suppress the evidence, is present at the scene and expressly refuses to consent."

What if the objector is not present?  That was the question in the case decided yesterday, Fernandez v. California.
Senator Pat Toomey (Pennsylvania) and Philadelphia District Attorney Seth Williams had this op-ed in the WSJ Monday on the controversial nomination of Debo Adegbile to head the DoJ's Civil Rights Division. 

It is not the fact that NAACP-LDF defended a murderer under Mr. Adegbile's watch that disqualifies him, but the manner in which they went about it.  And, no, the fact that he was not the lead attorney on the case does not matter.  It was done under his watch, and, given the high profile of the case, it is inconceivable that he did not know and approve of it.

News Scan

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Missouri Executes Convicted Killer: A Missouri man who kidnapped, raped, and murdered a 15-year-old girl more than twenty years ago was executed early Wednesday morning after a stay of execution was denied by the U.S. Supreme Court.  The Associated Press reports that 47-year-old Michael Taylor and Roderick Nunley kidnapped 15-year-old Ann Harrison from her driveway as she was waiting for the school bus before taking her to a home where they raped and fatally stabbed her in 1989.  Nunley, who was also found guilty, was sentenced to death and is awaiting execution. 

Probation Officials Acknowledge GPS Monitoring Failures: Probation officials in Los Angeles County have acknowledged their failures with monitoring felons, calling their department a "blueprint of how not to implement a GPS program."  Paige St. John of the Los Angeles Times reports that the while the department admitted to the widespread failures, they were quick to point out that probation officers were not to blame, and that department administrators and the company who sold the service were at fault.  The county saw a huge increase in the amount of felons who needed to be monitored with GPS supervision after prison overcrowding and Realignment resulted in several felons being released from custody and back onto the streets.

Parole Denied for Convicted Cop Killer: A Kentucky state parole board took only a few minutes to deny convicted cop killer Glenn Doneghy's recent request for parole.  Kristen Kennedy of WKYT reports that Doneghy was convicted of second-degree manslaughter and sentenced to 20 years in prison after authorities said he hit a police officer with his car in 2010 and drove off, leaving the officer to die.  Doneghy will have to wait two more years before he is allowed to request another parole hearing.

News Scan

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Supreme Court Sides With LAPD in Warrantless Search: The U.S. Supreme Court ruled earlier today that police officers may search a home without a warrant as long as one occupant consents, even if another resident previously objected.  David G. Savage of the Los Angeles Times reports that the case stems from a lawsuit filed by Walter Fernandez, a California man who was arrested in 2009 as a suspect in a robbery and taken to the police station after refusing to allow officers to search his home.  An hour after his arrest, officers returned to his apartment and were granted access to search the area after a woman Fernandez was living with gave them consent.  The Supreme Court ruled in favor of the LAPD in a 6-3 decision, giving officers more leeway in the future to search homes without a warrant as long as someone present in the home consents. 

CA Governor Releasing 'Lifers' at a Record Pace: Since taking office three years ago, California Governor Jerry Brown has released 1,400 inmates sentenced to serve the rest of their life in prison, a move that has left crime victims feeling outraged.  KCRA Sacramento reports that more than 80 percent of inmates serving life sentences were convicted of murder, while the rest are made up of mostly rapists and kidnappers.  Governor Brown insists that his recent parole decisions have not been influenced by the overcrowding issue plaguing California prisons, and instead says that he is bound by court orders to ease the strict parole requirements affecting murderers in prison.

Death Penalty Appeal Denied by Supreme Court: The U.S. Supreme Court has decided not to hear an appeal from a Mississippi woman convicted of murdering her husband based on the claim that she had been abused.  The Associated Press reports that 56-year-old Michelle Byrom was convicted of murder and sentenced to death in 2000 after asking the judge presiding over the case to decide her sentence, rather than a jury of her peers.  Previous appeals for a new trial have both been denied by state and federal court.

News Scan

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Convicted Child Predator Flees After Cutting GPS Monitor: A convicted child rapist serving his parole sentence at a Colorado group home has fled after authorities believe he cut off his GPS ankle monitoring device.  Alan Duke of CNN reports that 51-year-old Eric Hartwell was ordered to serve a lifetime of supervised parole after being convicted of raping a child in 1991 and attempted indecent liberties in 1996.  This is the second time Hartwell has fled after being ordered to wear a GPS device, he cut off his leg device and fled to Texas in 2009 only a week after being placed in a court-ordered halfway house.

New System Allows Judges to Weigh Inmate Risk Prior to Release: Judges in Santa Cruz County, California will soon be able to use a new 'risk tool' in order to have a better understanding of whether or not a defendant is likely to commit a violent act and should then be required to stay in jail prior to their case going to court.  Stephen Baxter of the Santa Cruz Sentinel reports that the criteria listed in the risk tool will give the judge a better sense of the person's chances of reoffending and will be used when deciding if the individual should be held with or without bail.  The program is already being used in Kentucky, and will be piloted in counties in Arizona, California, North Carolina and Colorado. 

Convicted Murderer's Sentence Reduced to Life Without Parole: 51-year-old William Weaver, who was convicted of murder in 1987 and sentenced to death, has been re-sentenced and ordered to spend the rest of his life in prison without the possibility of parole after a 2007 U.S. Supreme Court ruling overturned his original sentence.  Tim O'Neil of the St. Louis Post-Dispatch reports that Weaver was convicted of shooting a man six times in the head who authorities believe may have been a potential witness in an upcoming narcotics case.  Weaver's original sentence was over turned by the U.S. Supreme Court on procedural grounds after the prosecuting attorney urged jurors to use their sentencing decision as part of society's war on drugs.  The St. Louis County Prosecutor's Office said they accepted the reduction "because we were not in a position to retry everything again."

Fluffing the Pillows for Murderers

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Last week, AP had this story on testimony by Timothy Cannon of the Florida Department of Corrections regarding their execution procedures.  The story includes this gem:

"We've changed several aspects of just the comfort level for the inmate while lying on the gurney," he said. "Maybe we put sponges under the hand or padding under the hands to make it more comfortable, changed the pillow, the angle of things, just to try to make it a little more comfortable, more humane and more dignified as we move along."
This morning Reuters had this story on the upcoming execution of Michael Taylor in Missouri and the issues with obtaining the needed drugs.

"We don't torture people, but that doesn't mean we have to make sure the pillows are fluffed," said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a victims' advocacy group. "The attorneys try to make it all about the inmate. We really should be focused on the crime."
The quote is accurate, but I thought I'd clarify where the "pillow" reference comes from.

Ineffective Assistance and Experts

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The US Supreme Court today sent a capital case back to the Alabama courts to reevaluate the petitioner's ineffective assistance claim.  The case is Hinton v. Alabama, No. 13-6440.

This case is highly unusual for a capital case in that the disputed question actually involves who committed the crime.  The trial lawyer hired a forensic expert he knew was unqualified because he mistakenly believed that state law capped the fee he could offer.  In fact, the statute had been amended to give more leeway.  The prosecutor sliced and diced the unqualified expert.  The state courts failed to correctly apply the "prejudice" prong of Strickland v. Washington, holding that there was no prejudice because the experts in the postconviction proceeding testified the same as the trial expert.  That's not the point.  A qualified expert would not have been so easily attacked by the prosecutor, and there is a reasonable probability the jury would have believed him.

The high court took this case on direct review of the state courts, rather than letting it go to federal habeas first, probably to avoid the complications of the AEDPA deference standard.

So is it open season for federal courts to second-guess the qualifications of experts in the guise of ineffective assistance claims?  No, the Court makes clear:
In a Friday evening "document dump," attorneys for California Governor Jerry Brown and the prisoners filed a stipulation to dismiss Brown's appeal to the Supreme Court of the three-judge court's order on California prisoner population.  The stipulation was filed at 5:03 p.m. PST.

News Scan

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Bill Introduced to Overrule CO Governor's Controversial Death Penalty Decision: Colorado Governor John Hickenlooper angered many of his constituents last year when he granted all death row inmates an indefinite reprieve.  Among them was Nathan Dunlap, who has been on death row nearly twenty years,   Lynn Bartels of the Denver Post reports that one lawmaker upset by this decision, Representative Libby Szabo, responded by proposing a bill that would limit reprieves in death penalty cases to 90 days, only to be used if "administrative difficulties" arise in carrying out the execution.  Dunlap was sentenced to death after being convicted of murdering four people at an Aurora, Colorado pizzeria in 1993.

'Smart Pistols' Hit the Shelves in CA: The first 'smart gun' has been put on the shelves by retailers in one of the largest firearms stores in the state of California.  Brendan McGarry of Military.com reports that is only able to function if its accompanying wristwatch, which is sold separately, is activated by a PIN number and placed near the gun.  Once the wristwatch is activated it sends a signal to the 22 caliber pistol allowing it to be unlocked-otherwise, the gun will stay in a locked position unable to fire.  The 'smart pistol' currently sells for $1,399 and the watch is an additional $399-.  That is more than double the cost of a .40 caliber Glock.

U.S. Supreme Court to Consider Death-Row Case for the 13th Time: An Arizona death penalty case has been put on the U.S. Supreme Court's conference calender for a 13 time, after 12 previous conferences were unable to decide whether or not to hear it.  Whitney Ogden of Cronkite News Service reports that the case, Ryan v. Hurles, involves an appeal by Richard Hurles, an Arizona man who was convicted of burglary, attempted sexual assault and first-degree murder in the brutal stabbing death of a librarian in 1992.  Hurles latest claim of judicial bias was denied in the state courts but was accepted by the Ninth Circuit panel last year.   The high court first considered whether to hear the Arizona Attorney General's appeal of that holding last September.     
The San Bernardino District Attorney's Office has this video on YouTube of the signature-gathering kickoff news conference.

The campaign website is linked in the Links section in the second column of this blog.

News Scan

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Recent Arrest Highlights Issues with Realignment: A Long Beach man recently arrested for carjacking has put the spotlight on Governor Brown's Realignment plan, and how local police departments are left to deal with the influx in criminal activity it has caused.  Jonathan Van Dyke of Gazettes reports that 30-year-old Raymond Moreno is just one of many convicted felons whose criminal history represents the dark side of Realignment.  Moreno was sentenced to 180 days in county jail on January 2, was released on February 8, and re-arrested February 9 for felony carjacking.  The Long Beach Police Department reported that during 2013, there were more than 800 arrests from Realignment offenders- two were for murder, 10 for assault with a deadly weapon, and a host of other serious felonies. 

Plea Deal Reached in Ball Park Beating Case: Two men charged with the beating of a San Francisco Giants fan at Dodger Stadium in 2011 have accepted plea deals in the case, with one man being sentenced to eight years in prison and the other sentenced to four years.  Jonathan Lloyd and Patrick Healy of NBC Los Angeles report that the men beat and kicked 45-year-old Bryan Stow so severely that he has been left permanently disabled and in the 24-hour care of his parents.  31-year-old Louie Sanchez 32-year-old Marvin Norwood were originally charged with mayhem,  assault by means likely to produce great bodily injury and battery with serious  bodily injury, but had those charges reduced felony mayhem and assault respectively.  As part of the plea deal, all other charges will be dropped.

Man Attacks Woman After Release From Jail: A Northern California woman was attacked in her home Tuesday morning by a man who authorities say was released from county jail the night before.  Patty Guerra of the Modesto Bee reports that 18-year-old Aaron Modisett-Hollie was arrested in December 2013 on charges of kidnapping, assault with the intent to commit felony mayhem or rape, and false imprisonment and a judge sentenced him on February 10 to a year in county jail for the assault charge.  A judge reduced the sentence to 89 days after he factored in time served and good behavior credits. But due to jail overcrowding caused by Realignment, Modisett-Hollie was released on Monday after serving only seven days.  Sheriff Adam Christianson said that the crime was a direct consequence of Realignment, "We house the worst of the worst and we're forced to release the best of the worst, all due to realignment and jail bed capacity," he said.

Finally! The Reason Behind Increased Crime Revealed: A recent study has shed light on the cause of crime increases between 2010 and 2099.  It's global warming.  Louis Sahagun of the Los Angeles Times reports that the study, conducted by Matthew Ranson of Abt Associates, suggests that climate change, also known as global warming, can be expected to cause an additional 22,000 murders, 180,000 cases of rape, 1.2 million aggravated assaults, and several thousands more incidents of other serious crimes between 2010 and 2099- costing society up to $115 billion.  The research firm, which used data collected from the FBI's Uniform Crime Report along with temperature records from thousands of counties, is encouraging an immediate 4 percent increase in the size of the U.S. police force in order to prepare for the climate-caused increase in crime. 

IP and in re Winship

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A bedrock principle of American constitutional criminal law is that the prosecution must prove every element of an offense beyond a reasonable doubt.  And while not every piece of evidence introduced by the state must meet this heavy burden, an interesting question is whether a jurisdictional element not explicitly provided in a copyright statute must also satisfy this burden. 

Will Baude over at the Volokh Conspiracy points to an interesting new paper by law professor Irina Manta that makes an innovative constitutional argument about copyright prosecutions and the jurisdictional element.  The abstract provides the details:

Our current methods of imposing criminal convictions on defendants for copyright and trademark infringement are constitutionally defective. Previous work has argued that due process under the Sixth Amendment requires prosecutors to prove every element of a crime beyond a reasonable doubt, including the jurisdictional element. Applying this theory to criminal trademark counterfeiting results in the conclusion that prosecutors should have to demonstrate that an infringing mark needs to have traveled in or affected interstate commerce, which is currently not mandated. Parallel to this construction of the Commerce Clause, criminal prosecutors would also have to prove that Congress has the power to reach individual copyright infringers under the Intellectual Property Clause. This presents little difficulty under the traditional understanding of the clause as prosecutors would only need to show that convicting a defendant serves to secure the rights of authors. Some contemporary scholars have argued, however, that the text of the Intellectual Property Clause must be understood to mean that Congress can only enact copyright legislation if it serves to promote progress. If this notion is correct and is combined with this article's theory of the requirements of the Sixth Amendment, prosecutors would have to prove that individual convictions will serve to promote progress before courts can impose sentences in given cases. While this could raise costs and has the potential to reduce the number of cases brought, prosecutors may have little choice but to introduce expert testimony to demonstrate an effect on progress, similar to the use of expert evidence in antitrust litigation and related contexts.

Well worth a read even for those of us unfamiliar with IP law. 

Comment on Comments, Restated

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Checking back, it seems it's been over two years since we stated our policies on comments.  They are, for the most part, listed in this post from September 2011 and have mostly not changed.

I have backed off a bit on "trusting" commenters who sign in with methods that do not provide a recognizable user name.  We do prefer that such commenters "sign" their comments in the text with a recognizable handle.

One thing I did not mention in that post, which should be too obvious to need mention, is that we don't appreciate profanity here and reserve the discretion to not publish or to delete comments containing it.  That is not to say there are "forbidden words" that can never be used in any context.  Sometimes it is appropriate, perhaps quoting the perpetrator while discussing a crime.  Hopefully everyone commenting here has enough sense to distinguish those rare and limited exceptions from the general rule that you don't use profanity in a public forum.
...there were leaders who sought to put criminals in jail, rather than get them out.  

Yes, well, that was then.  The Justice Department that exists now goes hat-in-hand to pro-criminal groups, seeking their assistance in snuffing perfectly legal sentences for guilty men.  It does this while turning its back on the career prosecutors who, under increasing hardships and sometimes under threat, work to enforce laws the Attorney General sniffs at.  Meanwhile, DOJ embraces as one of the Attorney General's top Assistants a man who made his bones doing a PR campaign for a cop killer.

At this point, it's fair to ask:  Who is the Department of Justice working for?

Defining Crimes By Regulation

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Eugene Volokh at VC has a post titled "May Congress delegate to the Executive the power to define minor crimes by regulation?"  He points to a Tenth Circuit decision Tuesday in United States v. Baldwin, No. 13-1198, in which Judge Gorsuch muses on that question.

News Scan

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MO To Execute Taylor Although Drug Supplier Backs Out: The Missouri Department of Corrections has announced they will carry out an execution scheduled for next week as planned. Jeremy Kohler, of the St. Louis Post Dispatch reports that the compound pharmacy hired to produce the state's supply of pentobarbital announced earlier this week that they had reached a settlement with attorneys for death row inmate Michael Taylor, and would not be providing any drugs to be used for his execution.  A spokesman for the state Department of Corrections said that the execution will be carried out following established protocols.  Taylor was sentenced to death for the rape and murder of a young girl that he abducted from a school bus stop in 1989.

Woman Sentenced to Life in Bizarre Murder Case: A Massachusetts woman convicted of killing her pregnant friend and taking her unborn baby has been sentenced to life in prison without the possibility of parole.  The Associated Press reports that 39-year-old Julie Corey was found guilty of first-degree murder after authorities say she killed her eight months pregnant friend and took the woman's baby from her womb in an attempt to pass it off as her own child.  Under Massachusetts' law, the conviction will automatically be appealed.  

Probation Officers Overwhelmed with GPS Monitoring Alerts: Probation officers in Los Angeles County had relied on  GPS monitoring devices to help keep track of offenders released from prison under Realignment.  Paige St. John of the L.A. Times reports that due to the volume of alerts they receive from the devices, which are often caused by a blocked signal or low battery, probation officers have begun to routinely ignore or delete them.  An audit of the department conducted in September revealed numerous cases where alerts were never responded to, and noted that officers lost track of 80 offenders in 2013 who had cut off their monitors and disappeared.  The story cites examples indicating that other states are having the same problem.


Ohio DP Poll

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Quinnipiac Polling Institute has this poll in Ohio, mostly about the governor's race but also with a couple of questions about the death penalty.  Unfortunately, it appears that Quinnipiac is backsliding on the questions it asks.

As I have noted several times on this blog, the main problem in death penalty polling is that the questions often fail to distinguish between the penalty for the typical murder, which most people agree should be life in prison, and the penalty for the worst murders, which is the actual point of debate.

The generic question in death penalty polls, which Gallup has been asking since the 30s, goes something like Question 40 in this poll, "Do you favor or oppose the death penalty for persons convicted of murder?"  This question understates actual support for the death penalty for the worst murders, merely asking about murder generally.  Even phrased that way, however, the death penalty is favored by more than a 2-to-1 margin, 68-26.  The death penalty is heavily favored in every political affiliation, both sexes, and every age group.

So what does the heading of the press release say?  "Voters Divided on Death Penalty"

To get "divided," it is necessary to skew the question to the max in favor of the anti side.

Why Executive Clemency Has a Foul Aroma

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The frequency of executive clemency in this and the previous Administration is far short of the historical norm.  I suspect this is soon to change; DOJ has all but begged its numerous friends (and future law partners) in the defense bar to "suggest" good candidates for pardons or commutations. 

Many, including me, believe that the recent reluctance to use clemency stems in part from its scandalous misuse by Bill Clinton on his way out the door on January 20, 2001. Probably the most famous of these episodes was the pardon granted fugitive billionaire Marc Rich  --  a pardon facilitated by then-Deputy AG Eric Holder, through a series of (at the time) undisclosed calls to White House Counsel's Office, calls that intentionally circumvented normal DOJ procedures. Another was for the President's half-brother, Roger Clinton, a drug dealer who had finished his prison sentence.  Yet a third was for Susan McDougal, who stonewalled the grand jury investigating the Whitewater scandal and had served 18 months for criminal contempt.

Given that illustrious lineup, people generally do not remember the pardon given Mel Reynolds, a Democratic Congressman from Chicago (where else?), who had been convicted of an odd combination of bank fraud, sexual assault, obstruction of justice and solicitation of child pornography. (Mr. Reynolds' seat was filled by that relative choirboy, Jesse Jackson, Jr., who merely swindled his campaign for three-quarters of a million dollars).

If you were wondering why reluctance to grant clemency lingers, here's a clue:  Mel is back in the news.
Last week, I noted the posts by Sasha Volokh on studies of faith-based prisons and the selection bias problem.  Volokh explains selection bias in more detail, but in a nutshell a comparison of outcomes between a "treatment" group and a "control" group tells us nothing if the groups are selected in a way that makes one group more likely to achieve the outcome for a reason other than the treatment.  Any claim that a difference in outcomes shows the effectiveness of the treatment is junk science.

Now exactly this kind of junk, indeed an extreme example of this kind of junk, has been cited by none other than the Attorney General of the United States on the subject of felon disenfranchisement.  He has been called out on this by none other than the previous Attorney General of the United States in this op-ed in the WSJ (subscription).

News Scan

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Warrant Required For Some Cell Records:  The highest court in Massachusetts has ruled that police must get a search warrant before they are allowed to obtain cellphone records to track the movements of a murder suspect.  Mark Pratt of the Associated Press reports that the Supreme Judicial Court voted 5-2 in Commonwealth v. Shabazz Augustine to deny cell tracking evidence of Augustine's whereabouts during a two-week period in 2004.  Augustine is awaiting trial for the murder of his ex-girlfriend that year.  The court held that tracking the location of cellphone calls over a two week period intruded upon his expectation of privacy. 

Untested Rape Kits a Serious Problem:  A San Francisco Chronicle article by Nancy Skinner and Nancy O'Malley focuses on the thousands of untested rape kits sitting in storage in cities across the United States.  The arrest last year of Ariel Castro for holding three young women for years as sex slaves, prompted Cleveland detectives to go through the backlog of untested rape kits in that city and find DNA evidence indicating that Castro's neighbor, Elias Acevedo, was a serial rapist who committed two murders.  The article cites several examples where clearing the backlog of untested rape kits resulted in the solving of scores of cold cases.    

FBI Prelim Crime Stats Jan-Jun 2013

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The FBI has released its preliminary figures for the Uniform Crime Reports for the first half of 2013.  Violent crime is down in all categories tracked and all regions.  Property crime is down also, although the decline in the West is a negligible 0.3%.

Unfortunately, the preliminary figures have no breakdown by state, so we cannot tell if the Realignment-driven crime increases are continuing in California.  Given the state's large weight in the Western region, though, that would be consistent with the West's relatively poor results.  The West's drop in violent crime is only 3.7% compared with 5.4% for the country as a whole.  As noted above, the West's property crime rate is essentially unchanged, compared to another 5.4% drop for the country. 

Perhaps most telling is motor vehicle theft.  As explained in this post, this is the category most likely to be affected by Realignment, and it did indeed shoot up in California between 2011 and 2012.  In today's report, motor vehicle theft is up 3% in the West as a whole, the only net increase in the entire table.

Originalism and Pizza Update

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I know that many of you have been in suspense waiting for an update to this post, and it has been a long three years.

Rest assured, Justice Scalia's views on originalism and pizza have not "evolved" (or degenerated, as originalists regard such shifts in the views of other justices).  Art Golab has this report for the Chicago Sun-Times:

Scalia also displayed his famous sarcastic wit throughout, lastly directing it at Chicago deep dish pizza during questioning after his speech. He said he liked both Chicago and New York style pizza, but Chicago style "shouldn't be called pizza" he said. "It's very tasty, but it's not pizza."
More seriously, Justice Scalia's Washington's Birthday speech lamented the decline in American civics education.

Is the Death Penalty Hanging by a Thread?

Astute reader federalist, having taken the Astronomy Quiz, wonders whether the unhappy truth is that the death penalty is hanging by a thread.

I understand his anxiety, but I think it misplaced for several reasons.

Pop Quiz on Astronomy and the Death Penalty

One of the things we hear all the time from death penalty abolitionists is that support for capital punishment is declining (which is true, slightly, over the last decade). Heard a good deal less often is how much the support actually is.  Hint:  It's been at or above 60% for forty years.  (It was below that level for about the twenty years before that, or from roughly 1954 to 1974).

To illustrate how misleadingly support for the death penalty gets portrayed in the media, here's a little quiz:

Do more people think (1) the death penalty is imposed too often, or (2) the sun revolves around the earth?

Congratulations!  Right again!  More people think the sun goes around the earth than that the death penalty is imposed too often (scroll down two-thirds of the page to find the graph).

P.S.  I suspect these two groups largely overlap.

News Scan

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CA Town Sees Increase in Crime Rate Under Realignment: Police in Fairfield, CA is dealing with increasing rates of robberies and violent crimes, and the city's police captain believes a big contributor to the increase is Governor Brown's Realignment plan.  Ian Thompson of the Daily Republic reports that along with increases in violent crimes, the city has also been afflicted with a 43 percent increase in arson, a 25 percent increase in auto theft and a 10 percent increase in burglary.  City police have partnered with county sheriffs officers to keep tabs on felons that have been released from state custody, noting that the large majority of people arrested last year were individuals released under Realignment.  

Police Make Arrest in Fatal TN Package Bombing: Authorities in Tennessee have announced they have made an arrest in the case of a couple that was killed when a bomb exploded in their home earlier this week.  The couple's son-in-law has been charged with two counts of first-degree murder.  Matt Smith and Tom Watkins of CNN report that 74-year old retired lawyer Jon Setzer was killed on Monday after a package placed in his mailbox exploded as he was walking back into his home, his wife, 72-year-old Marion Setzer, was critically injured in the explosion and died in the hospital a few days later.  Police arrested the couple's son-in-law, 49-year-old Richard Parker, who lived next door. He is being held in county jail on $1 million dollars bond.
Florida Legislation Targets Sexual Predators: New laws focusing on sexual predators are quickly moving through the Florida Legislature, however, there is resistance from state Democrats regarding mandatory minimum sentencing.  Matt Dixon of the St. Augustine Record reports that the bill would increase the mandatory minimum sentence for dangerous sexual felony offenses from 25 years to 50 years.  Democrats are suggesting that these offenders instead be placed in long-term treatment programs with an opportunity to be released in less than 50 years.  Other laws focusing on sexual predators are also under consideration.  Other bills would eliminate the statute of limitations for sex-related crimes where the victim is under 16 and remove the ability for offenders convicted of violent sex crimes to earn good time to reduce their sentences.

Public Opinion on Felon Suffrage

The Rasmussen Poll has this report, beginning with this odd paragraph (emphasis added):

Voters in 11 states can permanently lose their right to vote if convicted of a felony. Among most other states, that right can be restored only after serving some combination of their jail time, parole and probation. But most voters believe someone convicted of a felony should regain the right to vote after serving their sentence problem-free.
What's with the "but"?  Completion of the period of parole or probation is part of the sentence, so the proposition endorsed by most voters is consistent with the law of most states.
The Kansas Senate has passed a bill to expedite the processing of capital cases.  The bill passed by a lopsided vote of 27 to 13.  The bill text is here, and an analysis is here. In a nutshell, the bill has time limits to speed up the direct appeal, and reforms to collateral review similar to those Congress enacted in AEDPA.  The bill is designated Senate Substitute for House Bill 2389.

How to Defeat the Smarter Sentencing Act

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As I noted, the Heroin Pushers Windfall Act Smarter Sentencing Act, or SSA, was passed out of the Senate Judiciary Committee with the support of several Republicans.  It may well pass the Senate, if Harry Reid decides to put it up for a vote  --  a pretty big "if," in my view.

Assuming the SSA passes the Senate, it will have to be stopped in the House, where Republicans are in control.  Still, since some Republicans voted for it in the Senate, in part out of a distrust of government that is probably even more pronounced in the Republican caucus in the House, the question is:  What is  the right strategy for defeating the SSA in the House, thus sending it to its deserved fate?

I have a few suggestions.

News Scan

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Former CA Governors Endorse Death Penalty Reform: Former California governors George Deukmejian, Pete Wilson and Gray Davis are set to announce their support for a proposed initiative that would speed up executions by ending lengthy death penalty appeals.  Maura Dolan of the Los Angeles Times reports that the proposal would establish a five-year deadline for deciding appeals, transfer most death penalty cases from the CA Supreme Court to lower courts, and allow the Corrections Department to mainstream death row inmates with the general prison population.  California has more than 700 murderers on death row, and has not held an execution since 2006.

MS Bill Targets Violent Offenders: Just two days after members of the Mississippi House passed HB 585, which attempts to save money by reducing the number of prisoners in state custody, state representatives have voted to pass another bill to  keep violent criminals in custody.  Jeff Amy of the Associated Press reports that House Bill 63 would limit the ability of violent offenders to have their prison sentence reduced after their second conviction.  The bills also give judges more flexibility regarding alternative sentencing and strengthens the requirement that victims be notified before an inmate is released.

Death Penalty Bill Advances in Kansas Senate: Kansas senators are moving a bill that would shorten the amount of time death row inmates have to complete their appeals to the Kansas Supreme Court.  The Associated Press reports that the bill creates a 3 1/2-year time limit for the appeals to be reviewed and decided, and limits the length of petitions.  Kansas has not carried out an execution since reinstating the death penalty twenty years ago, and currently has nine murderers on death row.

Right to Bear Arms:  Joe Palazzolo reports at WSJ Law Blog, "The Ninth U.S. Circuit Court of Appeals ruled Thursday that the Second Amendment endows the right to carry a gun outside the home. The opinion comes days before the Supreme Court is expected to decide whether to review two other cases that ask the question of whether the right to 'bear arms' extends beyond the home."

Midazolam Hydrochloride

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Among the issues in the last-minute appeals of Juan Carlos Chavez was Florida's use of midazolam hydrochloride as the first drug of its three-drug protocol. CBS4's Gary Nelson has this eyewitness report of the execution.

"What  I saw tonight was a very sterile, very antiseptic, very unremarkable procedure as Juan Carlos Chavez drifted off to sleep, essentially forever as he was executed for the murder of Jimmy Ryce," said Nelson.
Why stick with the three-drug procedure instead of the single-drug?  With pentobarbital, if you can get it, there is no reason.  If you can't, though, the longer time to die and the noises that the unconscious inmate makes in the process may create the false impression he is suffering, as happened in the Ohio execution of Dennis McGuire (see this post), so the choice is not as clear-cut as we may have thought.

Florida does have a consciousness check between the first and second drugs, the safeguard the dissenting justices found lacking in the former Kentucky procedure at issue in Baze v. Rees.  According to Nelson's report, the warden shook Chavez and called his name, and there was no response.  He was out cold.

Ryce Family Statements

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The Sun-Sentinel has video of the statements of Don and Ted Ryce following the execution of Juan Carlos Chavez, along with a story from staff and wire reports.  Local10.com (WPLG) has this report.

Statement of Don Ryce:

Nineteen years ago, Juan Carlos Chavez was faced with a choice. He kidnapped my son Jimmy, he sexually assaulted him and [then] it was time to decide would he let him live or would he take his life. We know what he decided to do and the choice he made.

As a result of that choice, he died today. This choice unfortunately will come up in the future in other cases when someone has committed a crime against a child, molested one, raped one or kidnapped one.  They also will be faced with the same kind of choice that Chavez was faced with so long ago.

When they do, when they're processing what they think they want to do, I hope they will remember that it will be burned in their mind, four words: Don't kill the child, don't kill the child, because if they do people will not forget, they will not forgive, we will hunt you down and we will put you to death.
Statement of Ted Ryce:

Many people have asked why I decided to come today. I did not come today to celebrate Juan Carlos's execution. In fact, I did not want to come. So why did I come? I came here to represent my brother Jimmy Ryce. I came here for my sister Martha and my mother, Claudine. I came here today because I believe in the justice that has been served on this day. I am here to support that belief.

I'm also here today as a symbol of strength to show you that in spite of all the terrible tragedies we've been through, my father and I still stand strong and strength is something that is sorely lacking in our country today. Many people did not believe that Juan Carlos Chavez should be put to death for his horrible crime of raping and murdering my brother Jimmy Ryce. I believe this comes from a place of weakness, not strength. It comes from not being able to face the atrociousness of some men's actions and punish them on a level commensurate with their crime.

But we must be strong. We must do what it takes to send a clear message to other child predators that if they go after children, if they kill children, that they will die at the executioner's hands.  Today will bring no closure for my family. As my father has stated, 'Closure does not exist,' but the justice served this day after a painful 19 years will end the chapter on this part of our life and now we look forward to moving on. Thank you.
This is why we do what we do.

Justice for Jimmy Ryce

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The US Supreme Court has denied three last-minute appeals in the case of Juan Carlos Chavez.  Earlier today, the AP had this story on Jimmy's father Don Ryce, now 70 years old.

But with the killer's scheduled execution set for Wednesday, Don Ryce said the death of Juan Carlos Chavez will finally bring some measure of justice. Barring a successful last-minute appeal, Chavez is scheduled to die by lethal injection at Florida State Prison in Starke.
*                                                    *                                                *
"People sometimes say that will bring you closure. There is no such thing as closure, hate that word. It doesn't resolve everything for you. My child will not suddenly come back if Chavez is executed," said Ryce, a 70-year-old retired labor lawyer. "But it's important to close that chapter out in my life and to feel like justice has finally been done for my son."
*                                                    *                                                *
Chavez abducted Jimmy at gunpoint after the boy got off a school bus on Sept. 11, 1995, in rural southwestern Miami-Dade County. Trial testimony showed Chavez, who worked on a local ranch, raped the boy and then shot him when he tried to escape, dismembering his body and putting the parts in planters that were then covered in concrete.
*                                                    *                                                *
Ryce said he blames Chavez not only for Jimmy's death, but also the 2009 death of his wife from a heart attack at age 66 and the suicide last year of his 35-year-old daughter. He still has another son, 37-year-old Ted Ryce, who lives in the Miami area.

"So many of my family members are dead, directly or indirectly because of Chavez, and he's still living. That does not feel right. It is not right," Ryce said.
UpdateMission accomplished at 8:17 EST.

The Perils of Permissiveness

Is Sweden Raising a Generation of Brats?  That rhetorical question is the title of an article by Jens Hansegard in the WSJ. The problem in Sweden, though, is merely an exaggerated version of a problem pervading western societies.  It is of interest here because bad parenting is one of the primary real "root causes" of crime.

News Scan

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FL Supreme Court Denies Stay of Execution for Convicted Child Killer: Juan Carlos Chavez, the man convicted of raping and killing a Florida boy in 1995, is scheduled to die Wednesday evening by lethal injection.  The Associated Press reports that Chavez kidnapped, raped, and murdered 9-year-old Jimmy Ryce after he got off of a school bus, then dismembered his body and put the parts in concrete-covered planters.  The case led to the adoption of the Jimmy Ryce Act in 1998 which provides that sexual predators who are deemed to be highly dangerous can be held under civil commitment after completion of their prison sentence.

Trial Date Set for Accused Boston Bomber: A federal judge has announced a November trial date for accused Boston Marathon bombing suspect, Dzhokhar Tsarnaev.  Shelley Murphy and Martin Finucane of the Boston Globe report that US District Court Judge George A. O'Toole denied a request made by the defense to postpone the hearing until September 2015, and instead scheduled court proceedings to begin November 3, 2014.  Both sides will meet again in June to discuss whether or not the defense wants a change of venue.

MO Seeks to Nullify Federal Gun Laws: The Missouri state Senate has endorsed a bill that seeks to nullify federal gun restrictions and send federal agents to jail if they attempt to enforce such laws.  The Associated Press reports that the legislation would protect law-abiding citizens from federal regulations and would also give school districts the option of allowing designated personnel to carry a concealed weapons on campus after undergoing required training.  The bill needs one more senate vote before advancing to the Missouri House.

Sasha Volokh has a couple of posts (here and here) at the Volokh Conspiracy on the question of whether faith-based prisons actually "work," i.e. produce a lower recidivism rate than the same prisoners would have had in regular prisons.  The difficulty in answering that question is the "selection bias" problem, as indicated by the title of the second post, "What if faith-based prison programs just attract better prisoners?"

"Evidence-based practices" has become a buzzword in corrections, but for the reasons Volokh points out, much of the "evidence" is nearly worthless.

After yesterday's introduction to the topic, today I'll talk about how the self-selection problem makes any evaluation of faith-based programs with regular programs problematic. I'll illustrate with some of the most problematic studies, which show the self-selection problem in its most naked form. I'll then show some of the better studies, which control for certain important variables, but I'll explain why even those are inadequate to solve the self-selection problem.
The problem is not by any means limited to faith-based programs.  It permeates the whole field.  As long as the "treatment group" and the "control group" are selected in a way that makes them different in their attitude toward going straight, the study is essentially garbage.  Random selection and large sample sizes are necessary to valid studies, but random selection is a tough sell.  Can we really assign people to rehabilitation programs in a lottery, denying the guy who wants it and assigning the one who doesn't give a damn?
I have, on more than one occasion, denounced the rule that evidence obtained through a search or seizure subsequently determined to be a violation of the Fourth Amendment must be suppressed as evidence.  The rule is not in the Constitution, and it is bad policy.  I am in good company in that view, including John Henry Wigmore and Benjamin Cardozo.

Whatever arguments may be made for such a rule when the police do the searching, it is nearly beyond belief that anyone but the most extreme crackpots would think that evidence should be suppressed in a criminal trial because a private party violated a privacy statute.  Yet statutes providing for such exclusion do exist.  Eugene Volokh at the Volokh Conspiracy has this post on a case in which, to paraphrase Cardozo, the child molester may go free, to molest again, because the brother-in-law blundered.

SCOTUS April Arguments

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The US Supreme Court's calendar for its last session of the term, April 21-30, is now available.

Cell phone search day is Tuesday, April 29.  Everyone attending the argument will have to check their cell phones at the door.  They are verboten.

One More Cowardly Moratorium

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Jonathan Lee Gentry was convicted in 1991 of the murder of 12-year-old Cassie Holden in Bremerton, Washington.  He bashed her head in with a rock.  The circumstances suggested sexual assault, although the autopsy could not conclusively confirm that. The State of Washington has spent the years since defending the judgment against Gentry's numerous attacks.  In the Ninth Circuit, even Judge Paez, who almost never votes to affirm a capital sentence, concurred that his claims had no merit.  The "normal" appeals ended with the Supreme Court's denial of certiorari last October.  The Washington Supreme Court subsequently denied yet another petition last month.

Now comes Washington Governor Jay Inslee, announcing he will impose a moratorium, granting reprieves so that no one is executed while he is governor.  He conveniently omitted any mention of an intent to would do that while campaigning for the office, so as to allow the people of Washington to decide if they wanted a governor who would clear-cut justice in this manner.  (Campaign website here.)  The election was reasonably close at 51.5 - 48.5, so it is quite possible he would not be governor if he had announced his intentions in advance of the election, which, of course, is precisely why he did not.  If anyone reading believes that he has had a change of heart based on recent study and soul-searching, I would like to sell you a bridge.  This action is one more in a series of Profiles in Cowardice that we have seen in multiple states.  Get elected first, then drop the bomb.

Inslee's claimed reasons for this action are here.  Let's see if a single one actually supports failure to carry out Gentry's thoroughly deserved and thoroughly reviewed punishment.

News Scan

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Holder Urges States to let Felons Vote: Attorney General Eric Holder is urging states to restore voting rights to convicted felons, an issue he said predominantly affects African Americans.  Pete Williams of NBC News reports Holder believes that preventing felons from voting further isolates them from society, which in turn increases the likelihood they will commit more crimes in the future.  In the majority of states, voting rights are restored after a sentence is served.  Three states-Florida, Iowa, and Kentucky permanently ban the right to vote for felons, while eight other states bar some felons from voting after release. 

Judge Sentences Border Agent's Murderer to 30 Years: A Mexican man has been sentenced by a federal judge to 30 years in prison for his role in the 2010 murder of Border Patrol Agent Brian Terry.  Cindy Carcamo of the Los Angeles Times reports that 37-year-old Manuel Osorio-Arellanes pled guilty to first-degree murder in October 2012 in exchange for avoiding the penalty.  Upon completion of his sentence, Osorio-Arellanes will be deported and banned from returning back to the U.S. 

WA Governor Declares Moratorium on Death Penalty: Washington Governor Jay Inslee has announced that he is suspending the use of the death penalty in his state, citing that the practice is both inconsistent and unequal.  Rachel La Corte of the Associated Press reports that the moratorium will be in place as long as Inslee is governor, meaning that each death penalty case that comes to his desk will be issued a reprieve.  Washington state currently has nine men awaiting execution on death row.

California Death Penalty Initiative

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The California Attorney General has prepared a title and summary for the initiative to reform the state's death penalty, as required by law.  Here it is:

DEATH PENALTY. PROCEDURES. INITIATIVE STATUTORY AND CONSTITUTIONAL AMENDMENT. Gives state appellate courts jurisdiction over death penalty appeals, before consideration by California Supreme Court. Changes procedures governing state court petitions challenging death penalty convictions and sentences. Designates superior court for initial petitions and limits successive petitions. Imposes time limits on state court death penalty review. Requires appointed attorneys who take noncapital appeals to accept death penalty appeals. Exempts prison officials from existing regulation process for developing execution methods. Authorizes death row inmate transfers among California state prisons.  States death row inmates are required to work and pay victim restitution. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local government:  Increased state costs potentially in the tens of millions of dollars annually for several years related to direct appeals and habeas corpus proceedings, with the fiscal impact on such costs being unknown in the long run. Potential state correctional savings in the tens of millions of dollars annually. (13-0055.)

A pretty fair summary of the initiative overall, given the constraint of putting it in 100 words.

The last two sentences, in bold, come from the fiscal analysis by the Legislative Analyst Office, and I think the LAO overstates costs and understates savings.  Yes, the initiative will increase annual budgets in the first couple of years as the backlog is cleared out, but this is mostly moving up expenses that would be incurred anyway.  The savings are understated.  The initiative will eliminate successive state habeas petitions in most cases (those with no question of actual innocence or ineligibility, which is the vast majority).  Long-term, we will eliminate the costs of a long period of incarceration and the skyrocketing cost of health care for aging inmates.

The campaign website is here.  Every contribution helps.

News Scan

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CA Given Two More Years to Reduce Prison Population: A three-judge panel of federal judges has decided to give California two more years to meet a court-ordered inmate population cap.  Howard Mintz of Mercury News reports that the deadline has been pushed back to February 2016, but with the extension also comes more strict guidelines with how the state will have to reduce its overcrowded prisons, including setting a limit on the amount of inmates that can be moved to out-of-state prisons.  The judge also ordered the state to either release or move certain types of inmates out of prison through several measures including setting earlier parole eligibility for selected nonviolent offenders, alternative custody programs for female inmates, and easing parole for inmates who are older than 60 and have served at least 25 years in prison.

Vancouver Offers Residents Access to Crack-Pipe Vending Machines: InSite, a Canadien non-profit group, has elected to instal crack-pipe vending machines in Vancouver in an effort to prevent the spread of disease among the city's drug users.  CTV News reports that the vending machines, which are covered in brightly-painted polka dots, offer users a chance to purchase a pyrex crack-pipe for just $.25 a piece.  The federal government attempted to shut down InSite nearly six years ago, but a ruling from the Supreme Court of Canada allowed the group to survive as an exemption under the Controlled Drugs and Substances Act.  

Convicted Rapist Sentenced to Death in CA Murder: An Orange County judge has sentenced 43-year-old Jason Michael Balcom to death for his role in the cold-case rape and murder of a pregnant woman more than 25 years ago.  Jeremiah Dobruck of the LA Times reports that Balcom was serving a 50-year prison sentence in Michigan on a separate rape charge when investigators linked him to the California murder through a DNA match from a national database.  Balcom was convicted of first-degree murder with enhancements for murder during commission of sodomy, rape, robbery and burglary.

Boldly Tiptoeing on the Marathon Bomber

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Hillary Chabot has this column in the Boston Herald:

More pols are coming out in favor of U.S. Attorney General Eric Holder's decision to seek the death penalty against accused Boston Marathon bomber Dzhokhar Tsarnaev -- breaking with many of the Bay State's hand-wringing Democrats as Congress prepares to release an exhaustive report on the Boston Marathon bombings.

"He should get the death penalty if found guilty," former U.S. Sen. Scott Brown told the Herald yesterday. Brown joins Democratic U.S. Rep. Stephen Lynch and most of the voters in calling for Tsarnaev's life if he is convicted in the dual bloody bombings that killed three and injured hundreds, as well as the killing of a Massachusetts Institute of Technology police officer.

A Generational Divide?

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I asked here why a number of Republicans on the Senate Judiciary Committee voted in favor of what is (I assume facetiously) called the Smarter Sentencing Act.  I offered six reasons.  Now a Slate article offers a seventh:  A generational divide. The article, tellingly titled "Forgive and Forget," notes:

[T]he average age of the Republicans who voted for [the SSA] --Sens. Ted Cruz, Jeff Flake, and Mike Lee -- was 45.  The average age of the Republicans who voted no -- Sens. John Cornyn, Lindsey Graham, Chuck Grassley, Orrin Hatch, and Jeff Sessions -- was 69.  The elder Republicans didn't want to patronize the new class and didn't doubt that, in Sessions's words, "there are some areas where we could reduce the length of incarceration without adversely impacting crime rates." But they remembered the bad old days, and the young guys didn't....

This brought to mind a story we would do well to recall as the Dumber Sentencing Act get further consideration in Congress (if it does).

News Scan

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TX Appeals Court Denies DNA Testing in Death Penalty Case: The Texas Court of Criminal Appeals has reversed a lower court ruling announcing that death row inmate, 43-year-old Larry Swearingen, should be entitled to DNA testing prior to his execution.  UPI reports that the Court of Criminal Appeals disagreed with the lower court after deciding there was no material left to test or that results from a DNA test could have resulted in a reversal of his conviction.  Swearingen was sentenced in 2000 for the 1998 kidnapping, rape, and murder of a 19-year-old college student.

Serial Killer Named as Suspect in Cold Case: Authorities have announced they believe that the person responsible for the 1989 disappearance and murder of a Florida college student is convicted serial killer, 64-year-old Paul Rowles.  Fox News reports that Rowles was convicted and sentenced to life in prison for a rape and murder he committed in 1972, but was released just four years later after completing a sex offender program.  Rowles was later convicted of kidnapping and raping a teenager in 1994 and was given a 19-year sentence.  While Rowles was in prison, authorities linked him to the cold case murders of Florida college students, Elizabeth Foster and Tiffany Sessions.  Rowles died in prison from cancer last year.  His diary may offer clues in other unsolved homicides.

Orange County Supervisors Reject Jail Release Plan: Members of the Orange County, CA Board of Supervisors have turned down a plan that would have allowed felons to be released from jail early and placed on electronic monitoring, citing concern for public safety.  Jill Cowan of the LA Times reports that the plan, which was presented as a way to alleviate overcrowding in county jails caused by Realignment, would have been an addition to an existing policy which allows inmates serving time for misdemeanors to be released on electronic monitoring. The proposal would have included so called "low-risk" felons who were deemed non-violent.

Juvenile LWOP in Nebraska

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The Nebraska Supreme Court has decided a trio of cases on how it will deal with Miller v. Alabama.

In State v. Castaneda, No. S-11-023, the court looks at Nebraska sentencing and parole law and decides that a life sentence for a juvenile under the law as it existed until recently was a mandatory life sentence within the meaning of Miller.  There is no dissent, and the conclusion appears to be correct.

In State v. Mantich, No. S-11-301, the court reaffirms that Nebraska follows Teague v. Lane for retroactivity on collateral review and then says it is a difficult question whether Miller is substantive (and therefore retroactive) or procedural (and therefore not retroactive).  It's obviously procedural in my book, but having declared the question difficult, the Nebraska Supreme Court proceeds to answer it the wrong way.  Justice Cassel dissents, joined by Chief Justice Heavican.  "The U.S. Supreme Court has never indicated that anything less than a full categorical ban on a sentence may be a new substantive rule, and in my view, we should decline to do so in the first instance."  Right.

In State v. Ramirez, No. S-11-486, the court decides that on remand the new Miller legislation will apply, giving discretion to impose a sentence between 40 and life.  In  Castaneda, above, the court explained that under Neb. Rev. Stat. § 83-1,110 parole eligibility begins at half the minimum term.

Ramirez and Castaneda are not likely to go up to the U.S. Supreme Court.  Although there are federal questions, they are intertwined with state law.  Mantich involves a deep split among state supreme courts and is prime certiorari material.

Even the Ninth Circuit Gets It

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The main reason the Heroin Dealers Windfall Act Smart Sentencing Act is so bad is that it will massively dilute mandatory minimum statutes  -- which are, in the post-Booker era, the one remaining source of discipline for district judges who simply don't take socially menacing crime seriously.  

This was illustrated in a case I have discussed here, here and here, United States v. Corey Reingold. There, Judge Jack B. Weinstein flouted the advisory guideline range of 14 to 17 years, and gave a 30-month sentence to a repeat distributor of the grossest sort of child pornography.  The Second Circuit was forced to rely on the mandatory minimum of five years to insure that, on remand, Judge Weinstein could at least in some small measure be compelled to recognize the gravity of the offense.  
Today, the Ninth Circuit joined the Second in utilizing a mandatory minimum to counteract the district court's over-the-top leniency in, of all things, an arson case. Most district courts can probably be counted on to understand the potentially horrendous, if not lethal, results of arson.  But most isn't all.

The Ninth Circuit's opinion was penned by Judge Stephen J. Murphy, III, from the Eastern District of Michigan, sitting by designation.  We can again be thankful to Judge Murphy, who has long championed law over taste, and his superb clerks.

The Basso Execution

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Very few women are sentenced to death and very few are executed.  The primary reason, quite simply, is that women commit far fewer murders than men, and even fewer are the type of especially heinous crimes for which the death penalty is imposed.

But there are a few.  As noted in today's News Scan, Suzanne Basso was executed in Texas yesterday, and rightly so.  After the break, I have copied an excerpt from the opinion of the Texas Court of Criminal Appeals on direct appeal.

More on the Adegbile Nomination

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Sen. Chuck Grassley, ranking Republican on the U.S. Senate Judiciary Committee, has posted some of the letters in opposition to the nomination of Debo Adegbile to head the Civil Rights Division.  See Bill's post earlier today and my post Tuesday. 

The letter from Philadelphia DA Seth Williams is on pages 14-15 of the PDF file.  An excerpt is copied after the break.

News Scan

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TX Executes Convicted Murderer: The Texas Department of Corrections executed convicted murderer, 59-year-old Suzanna Basso, making her the 14th woman put to death in this country since the death penalty was reinstated in 1976.  Jon Herskovitz of Reuters reports that Basso was convicted and sentenced to death in 1998 after authorities say she was the leader in a plot to kidnap, torture and beat a disabled man to death in order to rob him of cash and collect money from his insurance policy.  Basso became the seventh person executed in the U.S. this year, and the 510th person executed in the state of Texas since 1976.

Jails Enrolling Inmates in Obamacare: At least six states and counties across the U.S. have begun enrolling inmates in Obamacare and Medicaid in an effort to shift the responsibility of covering medical costs from the state to the federal government.  Mark Niquette of Bloomberg reports that the expansion of Medicaid will also allow inmates to have medical coverage when they are released, a plan that the Ohio Department of Corrections expects could save them $18 million on hospitalizations alone.  Former U.S. Senator Kent Conrad, who was on the Senate Finance Committee when the Affordable Care Act was passed, has said he doesn't recall the law being designed to cover inmate medical costs and is bothered by federal taxpayers having to foot the bill for inmate hospital stays.

TN Sets Several Execution Dates: The state of Tennessee has announced plans to execute 10 of its death row inmates over the next two years after an agreement was reached to change the drug protocol used in lethal injections.  Michael Cass of the Tennessean reports that the executions are scheduled to be carried out between April 2014 and November 2015, with three executions taking place this year and the other seven in 2015.  Nickolus Johnson, who was convicted of murdering a Bristol police officer in 2004, is set to be the first inmate executed, and will be put to death April 22, 2014.  

FBI Agents Also Revolt

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I noted before that hundreds of career prosecutors have revolted against the Justice Department's backing of a Senate bill that would slash mandatory minimum sentences across the board, no matter how dangerous the drug or unrepentant the pusher.

Today, there is another revolt, this one by career FBI agents.  Kent noted, here and here, that the Administration, which for these purposes prominently includes Eric Holder, has nominated, to serve under Holder as the Assistant Attorney General for the Civil Rights Division, Debo Adegbile.  Adegbile won fame primarily for his defense of, and, more flagrantly, his cheerleading for, cop killer Mumia Abu-Jamal.  

No one doubts that Abu-Jamal was entitled to a legal defense.  That's not the problem.  The problem is that Adegbile led not just a defense but a street campaign to denounce the policeman Abu-Jamal killed, Officer Daniel Faulkner, and the police in general, as an occupying fascist army.

Today, FBI agents couldn't take it anymore.

Defining Retardation, Cont.

Bill noted earlier today the case of Edward Bracey, who murdered Police Officer Daniel Boyle in North Philadelphia 23 years ago. The article notes that the trial judge set aside the death sentence because Bracey is supposedly retarded, even though he was never considered so during his school years.

In Sarmina's courtroom, Bracey's lawyers pointed to a recent IQ test as proof that he is impaired. The test, given by a defense expert in preparation for the appeal, showed that Bracey's score had plummeted substantially from previous tests.

"It doesn't take a genius to figure it out," Pat Boyle said. "Who would give their best effort on a test if it's going to lead to your execution or life on death row?"

As noted previously on this blog, an IQ test subject can fake low, but he can't fake high.  Given varying scores and an incentive to malinger at the time of the low scores, the high scores are more credible.  Will this be enough for a higher court to reverse?  Tough to get a reversal on a factual finding, but the DA is taking it up.

In other developments, the State of Florida's brief in Hall v. Florida is here, and CJLF's is here.

Update:  Marcia Coyle has this story on the Hall case in the National Law Journal (registration required).


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When the murder is 23 years old, the defendant's factual guilt is not questioned, and we've had two decades of litigation over manufactured procedural issues, it's time  --  no it's past time  --  to execute the killer.

Unconscionable delays in carrying out death sentences are regrettably not unusual, but this one struck me as particularly galling.

This is just gratuitous cruelty to the victim's family.  Enough.

News Scan

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Teen Charged in Oklahoma "Thrill Kill" Appears in Court: One of the three teenagers charged with fatally shooting an Oklahoma college student last summer has indicated he will testify against the other two teens involved in exchange for a reduced charge.  Reuters reports that all three boys were charged as adults with first-degree murder after authorities say they shot 23-year-old Christopher Lane, an Australian student-athlete studying at East Central University, in the back while he was jogging, leaving him on the side of the road to die.  One of the teens, 16-year-old James Edwards Jr., told police the group shot Lane "for the fun of it."  It was Edwards who made the plea deal.

Public Testimony to Begin on Alaska Crime Bill: Alaska's Senate Judiciary Committee is set to hear public testimony today on a crime bill aimed at slowing down the state's increasing incarceration rate by reducing recidivism.  Matt Buxton of News Miner reports that the bill focuses on rehabilitating offenders before they are released back into society with things like a 24/7 sobriety program and an expanded probation program for high-risk drug parolees.  Currently, Alaska has the highest recidivism rate in the country, and has roughly 2/3 of felons returning to prison within three years of their release.

Under Realignment, no Rehab for Thousands of Felons: LA Chief Probation Officer Jerry Powers is worried that the roughly 15,000 inmates diverted from state prisons to Los Angeles County jails under Realignment may result in increased crime.  Christina Villacorte of the Los Angeles Daily News reports that under Realignment, after thousands of felons serve time in county jail rather than state prison, they are released back into the community without  participation in rehabilitation programs or supervision.  Since Realignment took effect in October 2011, Los Angeles County has overseen the probation of 20,000 offenders that previously would have been monitored by armed state parole agents and perhaps faced mandatory rehab and psychiatric treatment.  Powers feels that releasing these untreated felons back into society only increases recividism and the county jail population.  

News Scan

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TX Courts Refuse to Block Upcoming Execution: A federal judge has joined the Texas Court of Criminal Appeals in rejecting the plea of a woman seeking to halt her execution, which is set for Wednesday.  The Associated Press reports that attorneys for 59-year-old Suzanne Basso, who was sentenced to death for the torture and murder of a mentally impaired man more than 15 years ago, claim the woman is mentally incompetent and shouldn't be executed.  If executed, Basso will become the 15th woman to be put to death in U.S. history.

West Virginia Bill Seeks to Reinstate Capital Punishment: Members of the West Virginia Legislature will soon have the chance to vote on House Bill 2595; a bill that would implement the death penalty for felons convicted of first-degree murder.  Greg Jordan of the Bluefield Daily Telegraph reports that the authors of the bill believe that introducing the option of the death penalty would act as a deterrent and also save the cost of incarcerating murderers for life.  The death penalty would be available for the most heinous murderers where there is no possibility for re-entry back into society.  West Virginia abolished the death penalty in 1965 and has not executed a prisoner since 1959.
Wisconsin Seeks Seeks Lower Recidivism of Sex Offenders: Officials in Wisconsin say they have been able to release nearly many more sexually violent offenders from state custody under a law which places them under tight supervision.  Nora G. Hertel of the Wisconsin Center for Investigative Journalism reports that under Chapter 980, which took effect in 1994, violent sex offenders with mental disorders and pose a danger to others are kept past their original sentence before being placed on supervised release where they receive intensive treatment and monitoring until they are deemed safe.  Since the law went into effect,  Wisconsin has committed roughly 500 offenders past their criminal sentence, nearly 2/3 of them remain confined. 

More Opposition to Adegbile Nomination

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Joseph Slobodzian reports for the Philadelphia Inquirer:

President Obama's nomination to a top U.S. Justice Department post of a lawyer with links to the case of cop-killer Mumia Abu-Jamal was condemned Monday by Republican U.S. Sen. Pat Toomey and District Attorney Seth Williams, a Democrat.

With the Senate Judiciary Committee set to vote Thursday on Debo Adegbile's nomination to head the Civil Rights Division, the two joined Adegbile's opponents. White House officials had no comment on Toomey's opposition or Adegbile's nomination.

Read more at http://www.philly.com/philly/news/politics/20140204_More_criticism_of_Obama_pick_for_Justice_post.html#ILZJLfOgePGzlxLY.99
President Obama's nomination to a top U.S. Justice Department post of a lawyer with links to the case of cop-killer Mumia Abu-Jamal was condemned Monday by Republican U.S. Sen. Pat Toomey and District Attorney Seth Williams, a Democrat.

With the Senate Judiciary Committee set to vote Thursday on Debo Adegbile's nomination to head the Civil Rights Division, the two joined Adegbile's opponents. White House officials had no comment on Toomey's opposition or Adegbile's nomination.

Williams' opposition negates any argument that the opposition is merely partisan.

Why Did Four Republicans Vote for the SSA?

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Four Republican Senators voted in Committee for the Heroin Dealers Windfall Act Smarter Sentencing Act, which would, among other things, slash by 50% the prison terms that, under current law, must be meted out to repeat and/or particularly dangerous drug merchants.  The four were Mike Lee of Utah (a sponsor of the bill), Jeff Flake of Arizona, Rand Paul of Kentucky, and Ted Cruz of Texas.

Why would conservative Republicans, generally shrewd in figuring out the liberal game of giving goodies to criminals, vote for this bill?

I think there are six reasons.
I have blogged, here for example, about Eric Holder's disregard of the views of hundreds of career professionals in his own Justice Department.  Shoving aside their pleas, Holder wants Congress to adopt legislation whose most direct and immediate beneficiaries will be dealers in extremely dangerous, and sometimes lethal, drugs. Specifically, he wants to slash by 50% the minimum sentences judges are now required to impose for offenses involving methamphetamine, heroin, PCP and a raft of other hard drugs.

Drug pushers must wonder at their good luck at having this man as Attorney General.  But I digress.

While giving heed to the Senate hearing on this bill, I missed former Attorney General Michael Mukasey's review of Company Man, a book by John Rizzo, an attorney at the CIA for 34 years.

General Mukasey had something of considerable interest to say about another instance of his successor's disregard for the work of DOJ's career attorneys.

Is Marijuana Really "Medical"?

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The main active ingredient in pot, THC, does have some legitimate medicinal properties.  For one, it can stimulate appetite (known among pot smokers as getting the munchies), and thus help out with wasting diseases such as AIDS.

But the idea that smoked marijuana  --  which has no controls on dosage, potency, or adulteration  --  is "medical" is so much nonsense.  It is for this reason that the AMA has come out explicitly against legalization.  

And there's this:  We didn't really need the AMA to tell us.  When "medical" pot is available after a 30 second visit with a "healing professional"  --  advertised by a fellow wearing a green pot leaf costume accosting potential customers on the sidewalk  --  we all get the idea.

So the question arises:  What is the best analog to the true "healing power" of "medical marijuana"?

News Scan

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Bill Calls for Life Sentences for Certain Sex Offenders: Oregon's Senate President Peter Courtney has proposed a bill that would make some sex offenders eligible for a mandatory life sentence without parole if convicted of certain sex crimes.  Hannah Hoffman of the Statesman Journal reports that Senate Bill 1517 applies to first-degree rape, first-degree sodomy and first-degree sexual penetration, and requires the offender to meet four specific criteria.  In order for the offender to be eligible for the LWOP sentence, he/she must have been at least 18 years old at the time of the crime, be identified as 'high risk' on a sex offender risk assessment, show a tendency to injure or target children under 12, and present a serious danger to the public.  The bill has not yet been scheduled for a hearing.  

Convicted Killer Escapes Prison, Takes Woman Hostage: A Michigan man convicted of murdering four people and ordered to spend the rest of his life in prison is on the loose after authorities say he disguised himself as a prison worker and escaped.  Fox News reports that 40-year-old Michael Elliot dug a hole underneath two of the prison's perimeter fences Sunday evening before taking a woman hostage, forcing her to drive him nearly 100 miles south towards the Indiana state line.  Elliot was convicted of first-degree murder in 1994 after police say he murdered four people and burned down their home in an attempt to steal money from a drug dealer.

Nebraska Considers Prison Reforms: Nebraska's prison population has risen to 153 percent of its intended design capacity, prompting lawmakers to draft ideas in order to address the issue and alleviate overcrowding.  The Associated Press reports that Nebraska Governor Dave Heineman has suggested reducing the prison population by shipping as many as 150 state prison inmates to county jail and ending an agreement that has the sate housing 20 federal inmates.  Lawmakers have also proposed a bill that would allow offenders convicted of serious crimes like murder and sexual assault to be eligible for "good time" credits if they behave and participate in rehabilitative programs.  The bill is set to heard on February 6.

Appeal in Habeas Fast Track Case

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Chapter 154 of title 28 of the United States Code was enacted by Congress as part of the Antiterrorism and Effective Death Penalty Act of 1996.  This law offered a simple deal to the states -- an expedited trip through federal habeas if they would offer qualified and adequately funded counsel in state collateral review, something they have no obligation to do.  Fed up with obstruction of this law by hostile federal courts who would be subject to the time limits, Congress in 2006 reassigned the decision on whether a state qualifies to the US Department of Justice with review by the DC Circuit.

After dragging its feet for seven years, DoJ finally adopted long-overdue regulations to implement this law last September, as noted here.

A lawsuit was quickly filed by the Federal Defender for Arizona and the California Habeas Corpus Resource Center.  As reported in the News Scan of December 6, Federal District Judge Claudia Wilken preliminarily enjoined the Department of Justice from implementing its regulations, further delaying the enforcement of a law that is already 17 years overdue.

Today, DoJ appealed from the order granting that injunction.
Guest post by Phyllis Loya:

Tomorrow will be an important day for our family and the hundreds of other victims who will be affected. The California Supreme Court will hear oral argument tomorrow to review an appeals court ruling that overturned the life-without-parole sentence of a defendant who was under 18, by four days, when he committed an armed robbery of a bank and grocery store that culminated in the ambush and murder of my son, Police Officer Larry Lasater during a foot pursuit.

The Sacramento-based Criminal Justice Legal Foundation has joined the case on behalf of our family, seeking a decision to overturn the lower court ruling and reinstate the defendant's sentence. "The 16- and 17-year-old murderers eligible for a life without parole sentence are not children," said Foundation Legal Director Kent Scheidegger. "In many cases, they are violent, remorseless killers who, if over 18, would be eligible for a death sentence. Andrew Moffett has earned his sentence, and the Supreme Court should assure that it is carried out," he added.

Thanks so much to CJLF for the wonderful work they do on behalf of victims and public safety. Please keep us in your thoughts and prayers. Although we will stand strong if we have to go through a third sentencing hearing, each time we are in a courtroom facing that remorseless killer, we suffer and I pray the Supreme Court reinstates the sentence.

No Money for Prisons?

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Probably the principal argument for the hilariously named "Smarter Sentencing Act," passed last week out of the Senate Judiciary Committee, is that we simply do not have the money in the federal budget to accommodate the influx of prisoners under present mandatory minimum sentencing statutes.

The argument is a fraud.  First and most obviously, the government, especially under this administration, has never failed to find the money for a program in actually cares about.  It finds the money the old fashioned way, by borrowing it. Since Obama became President, we've borrowed  --  what?  --  six trillion more bucks?

For this Congress and this administration to claim the desperate need for frugality gives hypocrisy a bad name.  Of course, there is a desperate need for frugality, don't get me wrong.  It's just that those whose votes passed the SSA don't believe in it one little bit.

The proof is in the pudding.

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