April 2014 Archives

News Scan

| No Comments
CA Legislators Kill Realignment Reforms:  Bills introduced by two Democrat lawmakers to make much needed reforms of California's Realignment law were killed at their first hearing Tuesday.  Brad Branan of the Sacramento Bee reports that AB1449 by Assemblyman Manuel Perez, D Los Angeles, and AB1901 by Assemblyman Al Muratsuchi, D Torrance, were supported by virtually every professional law enforcement organization in the state.  The Perez bill would have required the more intense supervision on state parole for inmates released from prison who had a prior conviction for a serious felony. The Muratsuchi bill would have given judges the authority to determine if a criminal convicted of a new felony should be placed on state parole or Realignment's new name for probation, Post Release Community Supervision (PRCS).  Since Realignment took effect in 2011, several thousand violent and serious felonies and tens of thousands of theft and drug-related crimes have been committed by prison inmates released to light supervision on PRCS instead of state parole.  Unmoved by these facts, the Democrat majority on the Assembly Public Safety Committee voted down both bills.

Second Man Charged in Nursing Student's Disappearance: A second man has been arrested and charged in the 2011 kidnapping and murder of Tennessee nursing student Holly Bobo.  Brian Wilson of the Tennessean reports that 39-year-old Jason Autry, who is currently serving a prison sentence for an unrelated aggravated assault was indicted Tuesday on charges of first-degree murder and aggravated kidnapping after witness statements linked him to the crime along with Zachary Adams, who was arrested and charged in Bobo's death last month.  Bobo was abducted outside of her home in April 2011, and while her body has yet to be recovered, authorities say they have strong physical evidence that may result in the future arrests of more suspects.

MT Teacher's One-Month Rape Sentence Overturned: A Montana teacher who served just 31 days in jail for raping a 14-year-old girl may be headed back to prison after the state's Supreme Court ordered him to be re-sentenced.  Matthew Brown of the Associated Press reports that high court's decision will require the defendant, Stacey Dean Rambold, to serve a minimum sentence of two years in prison.  It is likely that the sentencing court will give Rambold an longer sentence.  Rambold's victim, who happened to be one of his students, killed herself in 2010 while Rambold was awaiting trial.

Taking It Easy on Pot in Colorado

| 1 Comment
Colorado has decided to be Real Groovy and take it easy on pot.  What could go wrong?

From today's CBS News in Denver (emphasis added):

A Denver medical marijuana dispensary and three other buildings linked to four men accused of laundering money from Colombia to buy a grow house were raided Wednesday.


One Denver industrial building is linked to one of the suspects, David Furtado, an attorney.

Video and photos from CBS4 during the VIP Cannabis raid showed firefighters breaking into two safes in the parking lot of VIP Cannabis. The dispensary was also raided during a larger federal operation in November.

Prosecutors allege VIP's operators Gerardo Uribe, 33, and his brother Luis Uribe, 28, along with Furtado, 48, wired and laundered hundreds of thousands of dollars from Colombia to buy a Denver grow house.

Also charged in the case is Hector Diaz, an associate of the men who was arrested on a weapons charge during the November raids after investigators unearthed photos of him wearing a U.S. Drug Enforcement Agency cap while holding two semi-automatic rifles and two handguns

There must be a mistake in this story, since, as we have been told so many times, the legalization of pot will put the Colombian cartels out of business and end the dangerous connection of drugs and guns.

How Do You Conduct a Phony Pot Survey?

By sneaking in at the very end that it's simply a collection of responses from "site visitors" who wanted to put in their two cents.

Sentencing Law and Policy has up an entry touting a supposed poll by WebMD.  I went to WebMD's site and found its article, which begins as follows:

A majority of doctors say that medical marijuana should be legalized nationally and that it can deliver real benefits to patients, a new survey by WebMD/Medscape finds.

WebMD's web site for health professionals surveyed 1,544 doctors as more than 10 states consider bills to legalize medical marijuana. It is already legal in 21 states and Washington, DC. 

Now this got me a little suspicious, since (1) the AMA only recently came out against legalization, saying point-blank that pot is a "dangerous drug," and (2) I couldn't figure out how a website could conduct a random survey.

Here's the trick.  Way down at the very end, the WebMD entry says this (emphasis added): "WebMD's survey was completed by 2,960 random site visitors from Feb. 23 to 26, 2014. It has a margin of error of +/- 1.8%."

How cute.  There is no such thing as a "random" site visitor.  The people who visit a site are the ones who decide to click on it, and the people who decide to answer a poll on said site are the even narrower subset of those who want to be heard.

In other words, this "poll" has all the validity of a Glenn Beck site poll asking "random site visitors" whether Obama should be impeached.  Anyone wanna guess the answer?

Growing Up Is Hard...

...but the alternative is worse.

Perhaps the main thing growing up shows you is your own substantial and recurring failings.  If you're lucky and have a conscience, you work to get better.  But the inborn flaws of human nature mean you'll never succeed.  (I believe this is the heart of the Christian doctrine of Original Sin).  Acceptance of the inevitability and the (sometimes crushing) heartbreak of failure, and the assurance that you can improve, even if never to the point of perfection, is, I have come to believe, the basic meaning of growing up.

I say this by way of introducing how I believe we should react to the failed execution in Oklahoma last night.

Failed Execution in Oklahoma

| No Comments
The execution of Clayton Lockett's well-deserved and long-overdue punishment for the murder of 19-year-old Stephanie Newman went badly yesterday.  According to this account from KFOR,

The Director Of Prisons comes back into the room and tells the eyewitnesses that there has been a vein failure. He says, "The chemical did not make it into the vein of the prisoner.  Under my authority, we are issuing a stay of execution."

Lockett died shortly afterward of a heart attack.

Death penalty opponents are predictably calling for a "moratorium," i.e., further delaying justice in cases where it is already very long overdue.  As this statement from Stephanie's parents indicates, that would be a gross injustice to the victims.

As I have noted several times on this blog, lethal injection was a mistake from the beginning.  We should have kept the gas chamber and merely used a different gas.  Carbon monoxide, for example, is painless.

We have lethal injection for the time being, though, and we should make it effective.  Congress should act promptly to lift the restrictions on importation of the needed drugs and to outlaw manufacturers' restrictions on resale of them.

Lest we forget what this is really about, Ziva Branstetter had this article April 20 in the Tulsa World (free registration required), headlined "Death row inmate killed teen because she wouldn't back down."

Neiman was dropping off a friend at a Perry residence on June 3, 1999, the same evening Clayton Lockett and two accomplices decided to pull a home invasion robbery there. Neiman fought Lockett when he tried to take the keys to her truck.
The men beat her and used duct tape to bind her hands and cover her mouth. Even after being kidnapped and driven to a dusty country road, Neiman didn't back down when Lockett asked if she planned to contact police.

Executive Branch Review Conference

| No Comments
Wednesday, May 7 is the Federalist Society's Executive Branch Review Conference in Washington.  The first panel is "Suspension of Laws: What are the Limits of Executive Authority?"

News Scan

| No Comments
Convicted Killer Charged in Weekend Murder: An Alabama man with a lengthy criminal history including a manslaughter conviction has been arrested and charged with murder after police linked him to a recent homicide.  Carol Robinson of AL.com reports that 41-year-old Walter Rhone's criminal history dates back to the early 1990's and includes arrests for assault and attempted murder as well as multiple gun convictions, Rhone was charged with capital murder in 1998, but pled guilty instead to manslaughter and was given an eight-year sentence.  Rhone is currently being held in county jail in lieu of a $300,000 bond.

Supreme Court Considering Warrantless Cell Phone Searches
: The Supreme Court heard arguments in two cases Tuesday morning focused on whether police can execute a warrantless search on a suspect's cell phone.  The Associated Press reports that the cases involve a drug dealer and a gang member whose convictions were largely based upon evidence collected from their cell phones after their arrest.  The justices have suggested that they may vote to limit cellphone searches by allowing officers to only search for evidence related to that specific arrest.  If that is the Court's holding, both defendants would lose their appeal.

Double Execution Draws International Media Attention: Oklahoma's rare double execution scheduled to take place Tuesday evening has resulted in reporters from Japan, the United Kingdom, and the Netherlands requesting to serve as media witnesses.  Ziva Branstetter of World Enterprise reports that 17 different news agencies are requesting credentials to witness the executions, but the Department of Corrections will only allow 12 media witnesses chosen by a lottery-type drawing. Barring any last minute delays, death row inmates Clayton Lockett and Charles Warner will be executed at 6 p.m. and 8 p.m, respectively.

Limitations of GPS Monitoring

| No Comments
In case there is anyone out there who still thinks GPS monitoring is a magic solution, consider this article by Alex Cantatore for the Turlock City News:

A Fresno man who was convicted for sodomizing two infants is now at large, and may be in Stanislaus County.

The California Department of Corrections issued a warrant for the offender, Kenneth Lawson, on April 16. He was released on GPS-monitored parole, but is believed to have cut off his GPS tracking ankle bracelet.

Are We Executing the Innocent?

| No Comments
We are, according to a Washington Post story.  It starts off:

Science and law have led to the exoneration of hundreds of criminal defendants in recent decades, but big questions remain: How many other innocent defendants are locked up? How many are wrongly executed?

About one in 25 people imprisoned under a death sentence is likely innocent, according to a new statistical study appearing in the Proceedings of the National Academy of Sciences. And that means it is all but certain that at least several of the 1,320 defendants executed since 1977 were innocent, the study says.

Some of us had been under the impression that actual proof  --  like they do in court, for example  -- counts more than an extrapolation in a "study" done without critical outside scrutiny, and by people who started out with an ax to grind.

C&C has covered this territory many times.  Nonetheless, with the latest article to the effect that "it-happened-because-it-must-have-happened," there may be value in going over some of the major points again.
Libertarianism has a lot of appeal, let's face it.  This is especially true now, when the reach of government seems limitless; when we have a Supreme Court case about whether throwing away undersized fish is a federal felony; and when little girls get hassled by the cops for running a lemonade stand without a city permit.

Government run amok invites theories of government run amok, and that's what we're getting.  We saw a glimpse of it in the Nevada standoff between Cliven Bundy and the Bureau of Land Management, in which the government (momentarily) couldn't think of a better way to collect its overdue grazing fees than to bring in the BLM version of Seal Team 6, and Bundy responded by bringing in what sure looked like a militia.

The  subject of how to respond to an overgrown, omnipresent, hectoring and bullying government is really important and really long  --  too long for a blog post.  It' easier, and a lot shorter, to describe how not to respond to it.  That would be to continue to demand the benefits of the rule of law while proclaiming yourself a "sovereign."
This morning the U.S. Supreme Court took up the "anti-shredding" case, Yates v. United States, No. 13-7451.  No, this has nothing to do with guitars or snowboards.  It has to do with fish and broad federal statutes. 

The Eleventh Circuit opinion is here.  The court recites the facts roughly as follows.  Yates is a commercial fisherman who was cited by an inspector for having grouper smaller than the legal limit.  The inspector separated the undersized fish and directed Yates not to disturb them until he returned to port.  Instead he had the crew throw them overboard.

Part of the Sarbanes-Oxley law, 18 U.S.C. ยง1519, says:

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.
As a matter of policy, it's easy to sympathize with Mr. Yates.  SarbOx is supposed to be about financial matters, not fish.  As a matter of statutory interpretation and the duty of courts to enforce the law as written, I'm afraid the fisherman will get skunked.  Of course a fish is a "tangible object."  You would have to twist the words beyond recognition to get a different result.  Yes, this law is far broader than needed to achieve the policy objective behind it, but this is the law Congress enacted, and this is what it says.

Jonathan Adler has this post at the Volokh Conspiracy.

News Scan

| No Comments
CA High Court Upholds Death Sentence: By a vote of 7-0, the California Supreme Court upheld the death sentence and murder convictions of serial killer William Suff.  Marylin Jacobsen of The Press Enterprise reports that 63-year-old Suff was sentenced to death in 1995 after being convicted of murder as many as 12 women throughout Southern California between 1989 and 1991.  Suff was sentenced to 70 years in prison in 1974 for the murder of his two-month-old daughter, but was paroled and released from Texas to California after serving just ten years.

Philadelphia Courts Failed to Report Thousands of Drug Convictions: A recently released report by the Philadelphia Inquirer newspaper has revealed that the state court system failed for years to follow a state law enacted to keep dangerous drivers convicted of drug offenses off the road.  The Associated Press reports that the law requires each county to notify the state's Department of Transportation whenever someone is convicted of a drug crime.  The first offense results in an automatic six-month license suspension.  According to the report, roughly 11,500 people were supposed to be reported to the Department of Transportation  in 2012, but only four were. 

Egypt Sentences Hundreds to Death in Mass Trial: An Egyptian court has sentenced 683 supporters of the now-banned  Muslim Brotherhood to death, including the group's spiritual leader, after holding a mass trial Monday morning.  The Associated Press reports that the mass trial was in response to deadly riots that erupted in the country last August during the removal of Egypt's controversial President Mohammad Morsi.  A similar mass trial was held last month, and resulted in 529 defendants being sentenced to death, the majority of those sentences have since been commuted to life in prison.

A Glimpse of the Progressive Future

Illinois government enjoys less confidence from its citizens than any other state. Why this is so remains a puzzle, since it's something of a progressive Utopia.  It abolished the death penalty three years ago; is actively considering legalizing pot; its leading city has among the most rigorous gun control laws in the country; and that city's mayor told gay marriage opponents that they and their views can get out of town. Indeed, Chicago is so forward-looking that accused criminals don't even have to wait for the jury to hand down an acquittal from overly zealous charges; for the right price, they can book one in advance.

What with all the respect for the "fairness and compassion" this stuff must be building, you'd think the country would be able to see, in Chicago, a vision of our progressive future.  And you'd be right. Here it is. 
The idea that doing drugs is a victimless crime is doubtless the most frequently peddled totally preposterous notion out there.  And I'm not just talking about impaired driving, although that's a big part of the problem.  I'm talking about something more fundamental: You can be part of a perfectly ordinary family, take drugs in the privacy of your home, simply sit there to get the high you wanted, and do grotesque damage to other people.

Here's the latest example.  The Associated Press story begins:

A woman whose two young sons died in a bathroom flooded with scalding water while she was in a drug-induced stupor is trying to get her infant daughter back from child welfare authorities, saying she's turned her life around.

Too bad the two boys won't get the chance to "turn their lives around."

Baltimore Behind Bars

| No Comments
Charles Lane has this article at the City Journal with the above title.  The subtitle is "Public-union power enabled scandalous corruption among the city's correctional officers."

Get Ready for the Legalized Jailbreak

| No Comments
If there were any remaining doubt about how thoroughly this Administration is determined to put the interests of criminals over those of ordinary people, let that doubt now be resolved. The new Pardon Attorney, Deborah Leff, might as  well have been chosen by the NACDL (if she wasn't). 

To my knowledge, Ms. Leff has never spent ten minutes prosecuting a federal felony, but will now be principally in charge of a vastly expanded Pardon Office to evaluate the release-worthiness of thousands of federal felons.

Read for yourself what she has said, and tell me she thinks there is any criminal, anywhere, for whom an excuse can't be cobbled together.

Silver lining:  With every harshly sentenced drug pusher now on the fast road to a commutation, the engine behind Smarter Sentencing Act has just blown a gasket.
Arizona Governor Jan Brewer has vetoed House Bill 2313, which would have expanded the class of murders eligible for the death penalty.

Arizona's death penalty law follows a fairly typical pattern.  Eligibility is narrowed by requirements that the perpetrator be convicted of first-degree murder plus a finding of at least one of a list of aggravating circumstances.  At present there are 14.  One of them is a prior or concurrent conviction of a "serious" offense, a list of violent offenses and burglary.

HB 2313 would have added an aggravating circumstance of, "a substantial likelihood that the defendant would commit criminal acts of violence that constitute a continuing threat to society."  I would advise against adopting such a subjective rule at the stage of narrowing the eligibility to be considered for the death penalty.  At this stage, the circumstances should be kept as objective as possible.  Letting the jury consider future dangerous in the discretionary decision to impose the penalty isn't as bad, although even there it is problematic.  Predictions are dicey.  Basing sentencing on objective facts produces more consistent and fair results.

The bill would also have added human smuggling to the list of "serious" offenses.  That change is less problematic than the future dangerousness one.  Even so, Arizona's law is broad enough already.  I don't really see the need to add this one.

The governor's veto letter is here, and she is correct.

Legislators who favor the death penalty should be focusing on procedural reforms to get the sentences we already have carried out.  In most states, we don't need any expansions of the scope.

When checking fact-checking fails

| No Comments
Radley Balko has this post at the WaPo, titled "When fact-checking fails":

This local TV station's "fact check" of a campaign ad in the South Carolina governor's race shows just how easily the fact-checking concept can fly off the rails. At issue is an ad by the Republican Governors Association accusing Democratic gubernatorial candidate Vincent Sheheen of "protecting criminals" and which then points out that "(Sheheen) got a sex offender out of jail time, defended a child abuser and represented others charged with violent acts."

Greenville, S.C., news station WYFF recently reviewed the ad and proclaimed most of it "true." And indeed, as a one-time criminal defense attorney, Shaheen did all of those things. But this is what criminal defense attorneys do. A zealous defense of people accused of crimes is a critical component of our adversarial criminal justice system.

Balko muddles the important distinction between facts and opinions or inferences based on facts, and as a result he is the one off the rails.

I do not approve of the ad's implication that a criminal defense attorney who does his job defending the client to the best of his ability is unfit for office.  Balko's disdain for that implication has merit.  But that is not fact.  The ad is factually correct, and the TV station's "fact check" is correct for saying so.  Criticism of the argument based on those facts is not the function of fact-checking.

News Scan

| No Comments
OK Supreme Court Rules Against Death Row Inmates: The Oklahoma Supreme Court has rejected two death row inmates' demands to know the source of the drugs set to be used at their upcoming executions just days after the inmates were granted a stay.  Elliot C. McLaughlin of CNN reports that both convicted murderers are now scheduled to be put to death Tuesday, making this the state's first double execution in nearly 80 years.  The state Attorney General applauded the high court's ruling, and stood by the longstanding precedent of keeping drug sources anonymous.

Holder Cancels Speech at Police Academy Graduation: Attorney General Eric Holder has cancelled a speech that he was scheduled to deliver to graduating police cadets in Oklahoma City after crowds protested his appearance.  Alana Goodman of the Washington Free Beacon reports that protest organizers felt Holder's speech to academy graduates would be "inappropriate", because the attorney general has failed in his responsibilities to uphold the law himself.  Holder made headlines recently after announcing his plan to reduce the sentences for thousands of convicted drug offenders and release them back onto the streets.

Ex-Con Arrested in Brutal Assault: A New York man recently released from prison has been arrested after authorities say he broke into an apartment and attacked three women with a hammer before stealing their belongings.  Joe Kemp of the New York Daily News reports that 29-year-old Lawrence Parsons, released from prison last month after serving a two-year sentence for attempted robbery, stole electronics from the home after hitting the women repeatedly in their heads with a hammer, fracturing  their skulls.  Lawrence was arrested for attempted murder and robbery, he's being held in county jail in lieu of $75,000 bail.

DOJ Switches Sides

| 1 Comment
Yesterday, I wrote about the political motivation that lies behind DOJ's push to commute the sentences of thousands of drug dealers.  Essentially, it's a move to spike turnout among Obama's base in the mid-term elections later this year.

Of course, to say that the coming mass of sentence commutations is politically motivated is not necessarily to say that it's a bad idea on the merits.

And it's not a bad idea.  It's a truly awful idea  --  technically legal but actually lawless, and certain to produce more of the social destructiveness and misery that comes with drug trafficking.  The Administration is simply ignoring what its own data, released this week, demonstrate:  That more than three-quarters of convicted drug offenders go back to crime after their release from prison.

There are those of us who thought the prosecuting arm of the government was there to put bad guys away.  Under this Administration and its view of America as the oppressor and criminals as the oppressed, all that has been reversed.  The Justice Department exists, not to incapacitate lawbreakers, but to put them back in business.

Your tax dollars at work.

The More You Know About Pot...

| 1 Comment
...the less you like it.

Last week it was the damage pot causes to brain development.  Today we learn of hazards to the heart as well:

In the United States, when young and otherwise healthy patients show up in emergency departments with symptoms of heart attack, stroke, cardiomyopathy and cardiac arrhythmia, physicians have frequently noted in case reports that these unusual patients are regular marijuana users.

Such reporting is hardly the basis for declaring marijuana use an outright cause of cardiovascular disease. But on Wednesday, cardiologists writing in the Journal of the American Heart Assn. warned that "clinical evidence ... suggests the potential for serious cardiovascular risks associated with marijuana use." And with a growing movement to decriminalize marijuana use, they called for data-collection efforts capable of detecting and measuring marijuana's cardiovascular impact among American users of cannibis setiva.

"There is now compelling evidence on the growing risk of marijuana-associated adverse cardiovascular effects, especially in young people," said Emilie Jouanjus, lead author of the French study...

For years, pot legalizers loudly insisted that we should ignore all those Puritans and listen to scientists.  I'm having more and more trouble hearing that insistence today.

The Death Penalty, Not So Dead

| No Comments
The United States has had 19 executions so far this year, which is close to one-third over. Extrapolated over the entire year  --  which seems fair to do with this much of the year completed  --  that would mean 57 executions in 2014.  That would be the highest number in the last eight years, and the tenth highest in more than half a century.

The resurgence of the death penalty has taken place notwithstanding the latest fad in obstructionism, to wit, demands that states disclose the pharmacies from which they're obtaining the drugs used for lethal injections.  Earlier in the year, it appeared that this might be a fertile field for additional delay, but it hasn't worked out that way. The Supreme Court has turned away the last three requests for last-minute stays arguing the point, and just yesterday, the Oklahoma Supreme Court unanimously rejected a similar challenge (after temporarily giving itself two days to consider the merits).  [Editor's Note: Opinion text is here. - KS]

With the death penalty moving forward overseas as well, it would seem that reports of its demise were, as they say, greatly exaggerated.  But, while the death penalty is nowhere near the morgue, I heard a rumor that abolitionism just checked into the ER. 

News Scan

| No Comments
CO Fourth Graders Sell Pot at School: School officials in Colorado are urging parents to keep their newly-legalized marijuana locked up and in a safe place after two fourth graders were caught selling the drug at their elementary school.  Clayton Sandell of ABC News reports that the two boys involved took the marijuana from the grandparent's home and began selling and trading it to other students.  One of the young boys took in $11 and an edible marijuana treat.  The students involved are expected to be suspended for a lengthy period of time. Officials have not said if any criminal charges will be filed.  

FL Executes Convicted Double-Murderer: A Florida man convicted in the double murder of his cousin and his cousin's wife was executed Wednesday evening after spending more than 20 years on the state's death row.  Susan Jacobson of the Orlando Sentinel reports that 47-year-old Robert Hendrix brutally murdered the young couple in an effort to prevent his cousin from testifying against him at burglary trial.  Hendrix became the fourth person executed by the state of Florida so far this year.

PRCS Offender Arrested in Major Drug Bust: A California man free on Post Release Community Supervision (PRCS) under the Governor's Realignment law was arrested Wednesday afternoon in what Citrus Heights police are calling the city's largest drug bust.  Kim Minugh of the Sacramento Bee reports that 31-year-old Jeremy Zahn was arrested and charged with several felonies after officers searched a "stash house" and found multiple firearms, hundreds of thousands of dollars in cash, and 858 pounds of marijuana-which authorities say has an estimated street value of nearly $2.5 million.  Officers believe this trafficking operation began in September, around the time Zahn was released on PRCS.

The Racial Politics of Clemency

The Obama Administration's Department of Justice is going all-out in its drive for clemency for a large segment of federal inmates convicted of drug offenses. It's also making a big display of it, with a prominent rollout this week.

Why?  And why now?

This is the depressing answer:  Politics, and specifically the politics of the mid-term elections, in which control of the Senate is widely thought to be at stake.

That answer probably seems counter-intuitive. The conventional wisdom is that Presidential clemency is a political loser.  It got a bad name with Clinton's midnight pardons on the way out the door, and hasn't really recovered. Polling confirms what common sense and experience tell us:  The public overwhelmingly thinks that the problem in the criminal justice system is not that we have too many prisoners serving sentences that are too long, but that too many criminals are released too early. This is why Presidential pardons have so often been given at Christmastime, which provides the cover of compassion in addition to being conveniently the month after the election.

So what's the difference this time?

Reasonable Applications

If a criminal defendant argues a debatable question in his appeal in the state courts, those courts rule against him, and the U.S. Supreme Court declines to take up the case (as it does 99% of the time), should the defendant get another bite and the apple in the lower federal courts?  Should a single federal district judge or a three-judge panel of the federal court of appeals be able to effectively overturn the considered judgment of the state supreme court?

For a long time, that was the way it worked.  Perhaps there was a policy justification for it at the time, but beginning in the mid-1970s, the Supreme Court and Congress have been pushing the law in the other direction.  Most debatable constitutional questions in criminal cases today are far removed from the real Constitution and rarely have much to do with our confidence we have the right guy.  On top of that, the asymmetric nature of habeas corpus make it a "heads I win, tails we take it over" form of review tilting in the defendant's favor, a tilt that is unnecessary and unjust when we are not talking about questions of actual innocence.

A big leap forward was made in 1996, when Congress enacted that a claim decided on the merits by the state court could not be the basis for a federal writ of habeas corpus unless the state decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or was "based on an unreasonable determination of the facts."

Defendant-leaning federal judges hate this law and have been evading it ever since.  The Supreme Court smacks them down, sometimes harshly, but as one of the worst is rumored to have said, "they can't reverse them all."

Another smackdown came today.  In addition to strong words, though, the Supreme Court closed a loophole, making an important advance for justice.

News Scan

| No Comments
Convicted Double-Murderer Put to Death: The state of Missouri executed 57-year-old William Rousan early Wednesday morning for his role in the 1993 murders of an elderly farming couple.  Carey Gillam of Reuters reports that Rousan, along with his son and brother, orchestrated the killings in an effort to steal the couple's cattle.  Missouri has executed one death row inmate each month since November, the next scheduled execution is set to take place May 21.

Man Wants 'Murder' Tattoo Removed Before Trial
: A Kansas man awaiting trial for first-degree murder is asking to have a tattoo with the word 'Murder' removed from his neck, fearing that the tattoo may negatively affect his case.  Jessica Chasmar of the Washington Times reports that Jeffrey Chapman's defense attorney has filed a motion asking that a tattoo artist be allowed to either remove or cover up the tattoo across his client's neck before the trial begins on Monday.  Prosecutors aren't opposed to Chapman removing the tattoo, but county police have said they will not transport the man to a tattoo parlor for removal.  State law only permits tattoo artists to work in a licensed facility- eliminating the option removing Chapman's tatoo in jail.  Prosecutors have instead suggested that Chapman cover up his neck with a bandage or some type of clothing instead. 

Georgia Law Expands Gun Rights: Georgia Governor Nathan Deal has signed what many are calling an 'unprecedented' bill expanding gun rights for licensed owners.  Fox News reports that the bill increases the list public places where licensed gun owners are allowed to carry guns, including bars, churches, and some government buildings.  The bill also allows for school districts to decide whether or not employees will be allowed to carry firearms under certain conditions, and eliminates the fingerprinting requirement for those renewing weapons carry licenses.

What to Do About Over-Zealous Prosecutors

| 1 Comment
First, we have to define what an over-zealous prosecutor is. That's the easy part:  An over-zealous prosecutor is one who's awake during business hours.

Second, we have to devise a plan of action.  You might think that endless accusations of Brady violations (whether grounded or not) would do the job.  But that's getting to be old hat.  So we might want to move on to assassinating his witnesses.  On the other hand, that didn't seem to work out too well.

So on to today's story:

As the kidnappers pulled into a quiet, upscale golf course community, they thought they were about to abduct an assistant district attorney who sent a high-ranking gang member to prison for life, authorities said.

But they had the wrong address and when the prosecutor's father answered the door, they took him instead.

For five days, authorities said the kidnappers held 63-year-old Frank Janssen captive in an Atlanta apartment, tormenting his family by sending text messages threatening to cut him into pieces if police were called or their demands weren't met. They even sent a photo of him tied up in a chair.

Unlike many of my colleagues in academia, I don't think for a minute that this episode is the result of a "climate of hate" against DA's.  It's the result of good old fashioned criminality.  Still, one would hope that those endlessly spinning hateful tales about prosecutors might give it a moment's thought.

A very quick note:  I will be on public radio station KCRW in Los Angeles in a few minutes to talk about DOJ's clemency initiative announced this morning.

Thank God for Your Enemies

| No Comments
In my first year at the Justice Department, one of the senior lawyers  --  seeing that I was frustrated by all the amicus briefs that had been filed opposing the government's position -- told me, "Thank God for your enemies."

It was a tremendous insight.  From that day forward, I spent a lot of time hoping and praying that any organization aligned with, say, Al Sharpton, would line up against me.  The more furiously it denounced the argument I was making, the surer I was that I was right.

I got that same feeling this morning when I found out that President Bartlett, a/k/a the left wing actor Martin Sheen from "The West Wing," has endorsed the Smarter Sentencing Act. Mother Jones, appropriately enough, has the story.

With any luck, by the end of the week, Hell's Angels  --  an organization with not a few drug traffickers in it  --  will hold a press conference with a similar endorsement, which ought to be enough to sink this awful thing once and for all.

Win in White v. Woodall

The U.S. Supreme Court has reversed the Sixth Circuit in White v. Woodall, reinstating the death sentence of Robert Woodall for the murder of 16-year-old Sarah Hansen in Kentucky.  The vote was 6-3, opinion by Justice Scalia.  We will have more later.

The Court also decided the child porn restitution case, Paroline v. United States, admitting its "approach is not without difficulties."  Yep.
Chicago, Illinois has among the most restrictive gun laws in the county, and no death penalty.  Capital punishment was abolished in Illinois three years ago.

With more enlightened punishment certain to increase public respect for the fairness of the law (as we are ceaselessly told), and with stringent regulation of guns making the streets safer, Chicago must be on the way to setting an example for the nation.

And, in truth and in fact, it is setting an example --  exactly the example you'd expect when thugs see that the rest of us are losing our nerve.

News Scan

| No Comments
Murder Suspect Accused of Shooting Witness While on Bail: An Alabama man free on bail for a murder charge has been arrested and his bail revoked after authorities say he robbed and shot a witness that was set to testify against him.  Scott Johnson of the Montgomery Advertiser reports that 24-year-old Satarus Smith was charged with murder in December 2013, but was released after posting a $75,000 bond, police say he shot a witness to the December killing in the face earlier this month, leaving that man with a broken jaw.  Smith now faces additional charges of assault, robbery, and intimidating a witness.

OK Court Puts Two Executions on Hold: In a 5-4 decision, the Oklahoma Supreme Court ruled in favor of two death row inmates seeking to delay their upcoming executions.  Tim Talley of the Associated Press reports that the two inmates, both convicted murderers, were granted a stay of execution after challenging Oklahoma's secrecy protocol concerning the source of  its lethal injection drugs.  One of the inmates, Clayton Lockett, convicted of murdering a 19-year-old woman, was scheduled to be executed Tuesday evening.  Charles Warner, convicted of killing an 11-month-old child, was set for execution on April 29.

Thousands of Crack Cocaine Offenders Expected to Apply for Clemency: Thousands of federal prisoners serving sentences for crack cocaine offenses are expected to apply for release when the Justice Department announces new clemency rules later this week.  Bill Mears of CNN reports that the new criteria is aimed at addressing disparities between powder and crack cocaine sentences.  Attorney General Eric Holder is anticipating a dramatic increase in the number of individuals eligible for early release.  In addition to the changes regarding clemency, Holder has been encouraged prosecutors to be more flexible when charging  certain non-violent offenders, urging rehabilitation rather than incarceration for those offenders.

BJS Study Tracks Recividism

| 1 Comment
The Bureau of Justice Statistics has released a study tracking the rearrest rate of 405,000 felons released from prison in 30 states.  The BJS press release is here.  The study examines ex-convicts released in 2005 who were rearrested for a new crimes over the next five years.  More than 57% of those released were rearrested in the first year.   By the third year 68% had been rearrested.  After five years 77% had been rearrested at least one time, with many rearrested more than once.  In total, ex-convicts released from prison in 2005 were rearrested 1.2 million times for new crimes.   Property criminals, including burglars, car thieves, and identity thieves were rearrested at the highest rate of 82%.  77% of drug offenders, typically drug dealers, were rearrested over the five year period.  Recividism was highest among blacks, followed by Hispanics and whites.  Age and sex were also major factors with 84% of those 24 or younger rearrested.  The rearrest rate dropped to 69% for those 40 or older.  78% of males were rearrested compared to 68% of females. 

There will be two varieties of spin put on this study.  The first and most publicized will come from "Smart on Crime" advocates, which includes the ACLU, the Urban Institute, the Sentencing Project and much of academia.  They will point to these findings as proof that fixed and progressively severe consequences for criminals, such as mandatory minimums and habitual criminal sentencing have failed to rehabilitate criminals.  We will be told that the current transition to alternative sentencing featuring "evidence based practices" and treatment programs will help to reform the current racially biased system, lower the recividism rate, improve  public safety, and remove the stigma on America as the "incarceration nation."  


"Racist" Drug Enforcement

| No Comments
One reason offered for legalizing drugs (or for legalization lite, a/k/a the Smarter Sentencing Act) is that drug enforcement is racist.  Sometimes the argument is that enforcement is explicitly racist, thus mirroring arguments in the stop-and-frisk debate in New York City. Other times, it's that the racism is implicit, because the police focus resources in areas that are certain to produce a disproportionate number of minority (mostly black) arrests.

My own experience is that drug enforcement agents go where reasonable suspicion leads them, which is exactly what any rational person would want.  That would certainly appear to be the case today, arising from the area (Main Line Philadelphia) where I grew up.

911 and Traffic Stops

| No Comments
If a motorist calls 911 and reports having been run off the road, is that sufficient cause for police to stop a vehicle fitting the caller's description?  I would think so.  The Supreme Court decided it was this morning, in a surprisingly close 5-4 decision, Navarette v. California.

For those who like to keep track of ideological designations, the split indicates once again that a one-dimensional liberal-conservative model doesn't hack it.  Libertarianism is an different (though not necessarily orthogonal) dimension.  Justice Breyer was in the majority favoring the government; Justice Scalia wrote the dissent.

Sticking to Procedure

| No Comments
After the defendant, Siale Angilau, an alleged gang member on trial in federal court in Utah for racketeering conspiracy, became so disruptive today that the proceedings had to be ended, the judge sua sponte declared a mistrial, saying, "The court finds that this occurrence in the courtroom would so prejudice Mr. Angilau as to deprive him of a fair trial."

Well, yes, that's one way to put it. The "occurrence in the courtroom" was that Angilau charged the witness stand so suddenly and aggressively that a courtroom deputy had to shoot him. He died in the hospital shortly afterward.  CNN has the story.

And, yes, I suppose the thing to do is to declare a mistrial, since the jury might indeed draw some conclusions about Mr. Nicey.  On the other hand, I think the court can now withdraw the mistrial order as moot.

P.S.  Maybe the Innocence Project can add this one to their "exoneration" list, since the trial ended without a resolution favorable to the prosecution, and the government is unable to pursue a second trial.

How Legalized Pot Is "Carefully Regulated"

The title of this post is, of course, a joke.  Legalized pot was never intended to be carefully regulated, and the promises made to voters in the legalization campaigns were just blowin' smoke, as it were.

On Easter Sunday, the Capital of Legalization, Denver, hosted a huge throng of potheads who made the point.  As this CBS News story recounts (emphasis added):  

Tens of thousands gathered for a weekend of Colorado cannabis-themed festivals and entertainment, from a marijuana industry expo called the Cannabis Cup, to 4/20-themed concerts - acts include Snoop Dogg - to a massive festival in the shadow of the state capitol.

Although it is still against the law to publicly smoke marijuana in Colorado, police only reported 63 citations or arrests on Sunday, 47 for marijuana consumption. They said they had issued 21 citations on Saturday. All were for public consumption of marijuana. One person was arrested Saturday on suspicion of attempting to distribute the drug.

The pot holiday started as a defiant gathering of marijuana activists, but this year the event had an official city permit, was organized by an events management company and featured booths selling food, hemp lollipops and glass pipes.

There is zero chance the officials who granted the permit did not know this was going to turn into a very big and very public pot party.  They lied when they were going on and on to the voters about "careful regulation."  But they knew that  --  guess what  --  no one would hold them to account.  When you're a druggie, there's no problem checking the "truth optional" box.

News Scan

| No Comments
Chicago Police Accused of Altering Crime Statistics: An impressive decrease in Chicago's crime rate has the city's Police Superintendent celebrating while members of the community are questioning the validity of the numbers and accusing the police of 'cooking the stats'.  Warner Huston of Breitbart reports that an investigation conducted by Chicago Magazine revealed that the city's Mayor and Police Superintendent misrepresented some murders and other violent crimes for example, listing a homicide as a "non-criminal death" after the coroner couldn't determine exactly how a victim was killed.  Investigators also discovered that serious felonies such as robberies and assault were sometimes misclassified, downgraded, or removed from the crime stats all together.

Serial Rapists Remain Free due to Rape Kit Backlog: A report published by the Detroit Free Press has revealed that a backlog in testing more than 10,000 rape kits has allowed serial rapists to remain free on the streets and in some cases commit more attacks.  The Associated Press reports that 11,000 untested rape kits were found in a Detroit police storage facility in 2009, since then, only 2,000 of them have been tested. The Michigan state Legislature recently approved a $4 million measure that will send the remaining  kits to private labs to be tested by the end of the year.  The backlog has been blamed on the 2008 closure of the Detroit's crime lab.

Nebraska Impacted by Colorado Pot Legalization: Nebraska law enforcement officers are growing frustrated with the money and time being spent on the arrest and prosecution people buying legal pot in Colorado.  David Hendee of the Omaha World-Herald reports that law enforcement agencies in western Nebraska have become exponentially busier dealing with cases that involve marijuana that was purchased legally in Colorado, but still remains illegal in the state of Nebraska.  State Attorney General Jon Bruning has said he hasn't ruled out the possibility of taking Colorado to court over increasing Nebraska's law enforcement costs.

In a word, no.

The charge of racism is explosive, since little would be less acceptable in, or more corrosive if found to be influencing, federal prosecutorial decision-making.  It's thus unfortunate that the defense bar and its allies make this charge thoughtlessly and routinely.

Perhaps studying would be better than bellowing.  The National Institute of Justice took a look at the question. Here are some of its important findings:

[T]here is little systematic evidence of age, race and gender disparities in U.S. Attorney decisions regarding which cases are accepted and which are declined for prosecution.  The most common reason for case declinations reported by U.S. Attorneys was weak or insufficient evidence.  Second, there is some evidence of disparities in charge reductions, but they operate in opposite directions for gender and race.  Male defendants were less likely than female defendants to receive charge reductions but black and Hispanic defendants were slightly more likely than white defendants to receive them. 

The entire report, which is not short, is here.

Hold the Phone on the SSA

| No Comments
The primary argument for the Smarter Sentencing Act  --  the proposal that would slash by half mandatory minimum sentences for drug dealers  --  is that MM's, though often only a half to a third of what the guidelines range would be for a given offender, are still unnecessarily harsh, and are driving the federal prison budget through the roof.  To save money if for no other reason, we need for these offenders to be spending less time behind bars.

It is becoming increasingly clear, however, that we don't need a statutory change to do that. The President has always had unilateral power to reduce what he views as excessive sentences. Still, many have argued, up to now, that citing his clemency power is like citing the Abominable Snowman, because it never really seems to show up where anyone can see it.

That's where today's long and seemingly well-informed Yahoo news article comes in. It reports that the President is making ready to issue "hundreds if not thousands" of sentencing commutations to exactly the people the SSA is designed for.  And this is not the first time we've heard about this.

With the President apparently making ready to fix the "problem" at which the SSA is aimed (assuming one views it as a "problem"),  and simultaneously demonstrating that he's more than ready to fix such "problems" should they arise in the future, Congress should, at the minimum, defer action on the SSA to see what the lay of the incarceration land is after what is shaping up as the President's sweeping action.

Good Faith and the Exclusionary Rule

| 1 Comment
This morning the United States Supreme Court agreed to review a case in which police officers made a traffic stop for what they believed in good faith was a violation.  The case is Heien v. North Carolina, No. 13-604.  SCOTUSblog's case page has links to the cert-stage pleadings and the state supreme court opinion.

Can the police stop a car if one of its brake lights is out?  I always thought so.  I would consider it a favor to be told that and let off with a warning, if I were unaware of the failure.  In this case, the officer was suspicious of the vehicle for other reasons and looking for a reason to stop the car and request consent to search.  The Supreme Court held some years back that it will not look beyond the objective legality of the stop to ulterior motives.

Turns out that in North Carolina no published decision had ever held whether a car must have all brake lights working or just one, and the intermediate appellate court held in this case that one will do.  This is a clear case of a police officer obeying the law as he understands it at the time of the search, but the defendant seeks suppression based on a new interpretation of the law ex post facto.

Is this a proper case for application of the drastic remedy of exclusion of valid, probative evidence?  Not in my book.  The question the trial court needed to decide in this case was whether Heien was trafficking cocaine.  The evidence proves he was, beyond a reasonable doubt, and that evidence is not challenged on any ground relating to its reliability.  That should be the end of the criminal case.

The Fourth Amendment exclusionary rule should be abolished altogether.  The Fourth Amendment should be enforced in civil cases where its purported violation is the central issue.  Until that day comes, the exclusionary rule should be limited to bad-faith violations.

The high court also took up Johnson v. United States, No. 13-7120, asking whether a prior conviction of possession of a short-barreled shotgun is a "violent felony" for purposes of the federal Armed Career Criminal Act.

NSA Surveillance

| 1 Comment
There are numerous questions about NSA surveillance:  How much is going on, what information does it actually collect, are government officials telling us the truth, has it helped us capture or kill terrorists, and is the erosion of privacy worth the candle?

The Federalist Society had a superb panel on these questions at its National Student Convention in Florida last month.  Two of the speakers really went at it, Prof. Randy Barnett of Georgetown and Stewart Baker, a former Bush Administration official.  A recording of the panel is here, and is very much worth your time if you're interested in this issue.  Former Attorney General Michael Mukasey also had some telling remarks.

My own views are, to be honest, insufficiently informed for me to say anything and be confident I'm right.  On the one hand, the present Administration has shown itself to be less than either competent or honest in dealing with this powerful tool.  On the other, we have seen what terrorists can do, and the need to prevent their success is prepossessing.

For however that may be, I ran across a take on the subject that's just too rich to pass up.

Pot Tourism

As expected, Colorado's legalization of marijuana is producing an influx of tourists.  College student Levy Pongi, 19, traveled with friends from Wyoming to Denver to try it.  He jumped to his death from a hotel balcony.  AP reports:

DENVER (AP) -- A college student eats more than the recommended dose of a marijuana-laced cookie and jumps to his death from a hotel balcony.

A husband with no history of violence is accused of shooting his wife in the head, possibly after eating pot-infused candy.

The two recent deaths have stoked concerns about Colorado's recreational marijuana industry and the effects of the drug, especially since cookies, candy and other pot edibles can be exponentially more potent than smoking a joint.

"We're seeing hallucinations, they become sick to their stomachs, they throw up, they become dizzy and very anxious," said Al Bronstein, medical director of the Rocky Mountain Poison and Drug Center.

Incidents such as this do not, of course, establish that prohibition enforced by criminal law is necessarily the best policy.  What they do establish is that the pro-pot crowd is engaging in a propaganda campaign.  I call it "reverse reefer madness."  Just as in the past proponents of prohibition ridiculously exaggerated the harmful effect of marijuana, proponents of legalization today falsely minimize or even deny the harmful effects.  Distortion of the truth is wrong whichever way it goes.  We need to move forward in this debate with our eyes wide open.

And why would anyone drive all that way for legal marijuana?  Surely illegal marijuana is readily available in Wyoming.

Legal status does make a difference to some people, clearly.  Legalization will increase consumption.  Pretending it won't is yet another distortion.

Abolitionism, Meet Reality

Pro-criminal interest groups and academics are constantly admonishing us that we should use "evidence-based sentencing."  The problem is that they don't want consideration of anything a normal person would consider "evidence."  Instead, the "evidence" upon which we are told we should rest our gaze inevitably turns out to be  --  guess what  --  some slanted "study" or "report" done by these self-same groups.

Actual evidence is not hard to come by, however.  You can find it just by opening your local paper, as I did over lunch.  Here's the headline I saw:

Maryland jury finds Darrell Bellard guilty in drug-related quadruple slaying.

The story is as depressing as it is instructive.
Did Dzhokhar Tsarnaev know what he was doing, and intend to do it, when he planted the bomb that killed three people and grievously injured dozens more?

Well, read his own words

When asked to comment, one of his numerous defense lawyers refused, but was willing to say, "If the government's indictment is true, this [case] is about a family...a story of this family and the relationships between the people in [it]."

Well, not really.  It's a story about a Jihadist whose response to the generous welcome this country gave him was to hate it and kill its people with a home made, shrapnel-packed bomb.
Is it that we've locked up to many criminals, or that we have too much crime?

Congressional backers of slashing mandatory minimum sentences plainly believe the former.  Their main slogan is "incarceration nation," and they claim there's a "bi-partisan consensus" to cut the prison population.

One thing I learned in my days as a litigator is to listen for what you're not hearing. What I never seem to hear, amidst all these claims of consensus, is any polling results among ordinary people.  This makes a suspicious man like me wonder whether backers of so-called "reform" know enough to prefer not to take a poll; with all the George Soros money they've got, they could certainly commission one if they wanted.

I just stumbled across a poll, although it's a year old and asks a slightly different question. It's from Rasmussen, and I'll quote the (very short) story in full (emphasis added):

Americans feel even more strongly that the biggest problem with the criminal justice system is that too many criminals are set free. A new Rasmussen Reports national telephone survey shows that 68% of U.S. adults believe that the bigger problem with law enforcement and the legal system is that too many criminals are released, not that too many innocent people are arrested. Eighteen percent (18%) hold the opposite view and think the bigger problem is that too many innocent people are arrested. Fifteen percent (15%) are undecided.

What backers of the Smarter Sentencing Act mean when they say there's a "consensus" in favor of the bill is now clear:  There's a consensus among cozy interest groups and academic leftists.  Talk to the man on the street, and it's a different story. 

News Scan

| No Comments
Tennessee May Revive Electric Chair: The Tennessee House has adopted a bill that will allow use of the electric chair as an alternative execution method if lethal injection drugs are unavailable.  Erik Schelzig of the Associated Press reports that the bill would keep lethal injection as the preferred method of execution, but will allow the electric chair if execution drugs are not available or executions are delayed by legal challenges to the protocol.  Last week the state Senate passed similar bill.  Tennessee is currently holding 76 condemned murderers on death row.  The state has not carried out an execution since 2009.

NE Murderer May Receive Death Penalty: A Nebraska man who went on a 10-day murder spree days after being released from prison has been convicted of four murders may receive a death sentence.  Katie Knapp Schubert of Reuters reports that 27-year-old Nikko Jenkins began the killing spree less than two weeks after he was released from prison after serving a 10-year sentence for robbery.  A three judge panel will determine if Jenkins is eligible for the death sentence.  Nebraska has put just three people to death since the U.S. Supreme Court upheld capital punishment in 1976.  The last execution was in 1997.

Heroin Use Increasing Across the U.S.: Law enforcement officials from around the country are beginning to voice concerns about the growing problem of heroin use which in many parts of the county is killing more people than violent crime and car crashes.  Kevin Johnson of USA Today reports that a surge in the availability and purity of heroin has dramatically increased  overdoses. In 2012, roughly half of New York City's 730 drug overdose fatalities were from heroin and other opiates.  That was twice the number of NYC murder victims that year.  A yet-to-be released National Drug Threat Assessment rated heroin as the second highest drug risk behind methamphetamine.  "This kind of sneaked up on us,'' said Attorney General Eric Holder, who supports reduced sentences for drug dealers.   

On Brodway. Or is it Broadwey?

| No Comments
Off topic but funny, Ellen Huet has this post at SFGate on typos literally set in concrete in the City by the Bay.
Lynne Tuohy reports for AP:

CONCORD, N.H. (AP) -- New Hampshire's Senate has voted to leave intact the state's centuries-old death penalty.

Lawmakers voted 12-12 Thursday on a death penalty repeal measure. The tie means capital punishment will stay on the books.

Last month, the House voted in favor of repeal, and Gov. Maggie Hassan (HASS'-ehn) had said she would sign the measure into law.

My understanding was that the governor had said she would sign it only if she were confident it would not prevent the execution of cop-killer Michael Addison.  Given the immediate attack on existing sentences in Connecticut, despite a very clear prospective-only clause in the bill, nobody can honestly guarantee that.

Hopefully the voters of New Hampshire, and other states, will elect more persons of sense in the coming election, the repeal threats will recede, and we can get back to the business of reforming the review process to make the penalty effective.

News Scan

| No Comments
PA Mayor to Limit Police Cooperation with Immigration Officers: Philadelphia Mayor Michael Nutter is expected to sign an executive order to limit collaboration efforts between his city's police department and federal immigration authorities.  Julie Shaw of Philly News reports that the order would prevent police from honoring detainer requests by Immigration and Customs Enforcement unless the case involves a person convicted of a first or second-degree felony.  Prior to this order, ICE officials were able to request that a person suspected of being a non-citizen be held by city police up to 48 hours until immigration officers could take custody of them.

CO Police Suspect Accused Murderer was Hallucinating from Marijuana: Denver police are investigating to determine if a man accused of fatally shooting his wife Monday was hallucinating from edible marijuana.  Paresh Dave of the Los Angeles Times reports that the man's wife called 911 Monday night and told the dispatcher that her husband was "talking about the end of the world" and hallucinating, and mentioned that he may have eaten some marijuana. During the 911 call, 47-year-old Richard Kirk retrieved a gun from a locked safe and shot his wife in the head while the couple's three children hid in a bedroom.  Kirk was arrested on suspicion of first-degree murder, but has not yet been officially charged.

Reefer Madness, Literally

| 1 Comment
Advocates of increased use of pot through legalization often mock the 1930's film, "Reefer Madness."  The idea seems to be that only Puritanical, moralistic, anti-science zealots could think the pot might adversely affect brain development.

Today comes news from that citadel of Puritanical, moralistic, anti-science zealotry, Northwestern University:

Casual marijuana use may come with some not-so-casual side effects.

For the first time, researchers at Northwestern University have analyzed the relationship between casual use of marijuana and brain changes - and found that young adults who used cannabis just once or twice a week showed significant abnormalities in two important brain structures.

The study's findings, to be published Wednesday in the Journal of Neuroscience, are similar to those of past research linking chronic, long-term marijuana use with mental illness and changes in brain development.


My post yesterday describing White House Counsel Kathryn Ruemmler's remarks about Presidential clemency did not go nearly far enough.  Now that I take a closer look at the AP report, I have to wonder whether something very, very broad is afoot. Specifically, I wonder whether the President is planning to implement the heart of the Smarter Sentencing Act on his own.  It would scarcely be the first time this President by-passed Congress.

Here is what Ms. Ruemmler is reported to have said:

"The president believes that one important purpose [of executive clemency] can be to help correct the effects of outdated and overly harsh sentences that Congress and the American people have since recognized are no longer in the best interests of justice," Ruemmler said in remarks prepared for delivery Tuesday at New York University's law school. "This effort also reflects the reality that our overburdened federal prison population includes many low-level, nonviolent offenders without significant criminal histories."  ***

[She also] said the Justice Department plans in the coming weeks to encourage worthy inmates to request commutations, with bar associations offering to help with applications. She said Obama's new budget proposal calls for seven more staffers to be added to the Office of Pardon Attorney to handle applications, saying that the two years the office has taken to resolve petitions in recent years has been "unacceptably long." She said Obama met with U.S. attorneys last month and asked them to personally review petitions to consider "whether granting clemency would be consistent with the values of justice and fairness that are the hallmark of the best traditions of the Department of Justice."

To me, this sounds like a mass commutation is in the works, and I gather I'm not the only one who senses this.

Here are a few notes on legislation on the death penalty in several states.

In Delaware, a bill to repeal the death penalty came up a vote short to get out of committee.  Representative John Atkins has this letter in the Cape Gazette.

In New Hampshire, a repeal bill squeaked out of committee on a 3-2 vote and heads to the floor of the Senate.  Supporters of the bill claim that it will apply prospectively only and not effect the death sentence of cop-killer Michael Addison, the state's lone death-sentenced inmate.  If the bill does pass, I would bet every penny I have that the death penalty opponents will then join Addison's efforts to claim that the bill does require his sentence to be set aside.  We already saw this in Connecticut.

Some years ago, the North Carolina legislature passed a stealth repeal by playing the race card and enacting legislation that enabled death row inmates to have their sentences overturned by producing statistics on race and the death penalty that don't actually prove anything.  The Death Penalty Quota Act (misnamed the Racial Justice Act) was repealed when persons of sense regained control of the legislature, but cases decided in a lower court before repeal were argued yesterday in the North Carolina Supreme Court. Martha Waggoner has this story for AP.
It's by now no surprise to readers that I have been doing what I can to oppose the so-called Smarter Sentencing Act.  I made probably my most comprehensive case against it here.

I'm delighted to see that, since I published that post, another reason why the SSA is unwise and unnecessary has become evident.  

Just this morning, as Sentencing Law and Policy notes, White House Counsel Kathryn Ruemmler announced at a conference at NYU Law School that the power of executive clemency "can serve as a 'fail-safe' for correcting errors that cannot be corrected by other means."  She did this in the course of explaining yet another commutation the President has issued.

Just so.  Ms. Ruemmler's remark, taken together with the unprecedented initiative of Deputy Attorney General James Cole to increase the exercise of this Presidential power, underscores my point that the putative horror stories of low-level defendants' being given long mandatory minimums do not constitute a valid reason to adopt a blunderbuss, across-the-board lowering of such sentences. 

As we now plainly see, the President stands ready to act where the judicial system has gone overboard.  Where the deserving already have a remedy, there is no cause, and considerable danger, in opening the floodgates for the undeserving.

News Scan

| No Comments
Habitual Offender Accused of Murder: A Georgia man with a lengthy criminal past has been named as the prime suspect in a recent shooting death.  Alexis Stevens of the Atlanta Journal-Constitution reports that 30-year-old Kendrick Cheeves, who was on parole at the time of the killing, has spent the majority of his adult life in prison after being convicted of crimes including child molestation, statutory rape, and several drug charges.  Cheeves has been charged with felony murder and aggravated assault, and if found guilty, faces a possible death sentence.

Teen up for Release After Serving Four Months of Eight-Year Sentence: A Texas woman is outraged after the teenager who robbed her home will be eligible for release after spending only four months behind bars out of a possible eight-year sentence.  Jason Whitely of KHOU Houston reports that 19-year-old Brandon Jordan, who was already on probation for theft at the time of his most recent arrest, will be eligible for release under 'shock probation', which allows for a judge to summon a convicted felon back to court up to six months after being sentenced.  This type of probation is rarely used since very few convicts qualify, and was intended as a rehabilitation tool for young offenders. 

Convicted Triple-Murderer Set to Die: A Texas man convicted of the stabbing murders of his ex-girlfriend, her three-year-old son and her mother is scheduled to be executed Wednesday evening after spending nearly 12 years on death row.  Michael Graczyk of the Associated Press reports that attorneys for Jose Villegas are seeking a last minute stay of execution from SCOTUS based on the claim that they have new evidence indicating that their client is mentally impaired.  On Monday the Texas Court of Criminal Appeals denied that request.  At the time of the killings, Villegas was out on bond for a sexual assault charge.

Justice Not Mush

| 1 Comment
Much of what we hear about the Boston Marathon murders is  --  excuse me  -- unadulterated mush.  Have we had enough yet of teddy bears, plastic flowers and yellow ribbons? Have we had enough of the vapid talk that seems inevitably to follow them?  Take this, for example, from yesterday's Washington Post article commemorating the bombing:

Boston and its surroundings braced for an emotional week that begins Tuesday...It will be a chance to mourn the dead and remember the bloodshed, but also...to marvel at the way events have brought this community together.

"We're going to turn it into a moment of unity and perseverance and [strength] as a city," said Alison Beliveau, 25, of South Boston, who finished a run Monday morning outside Marathon Sports, where the first bomb went off one year ago. "We made it through. We're going to make it."

Did anyone ever doubt that they were "going to make it?"  I know this will be attacked as unfeeling, but it's time to say it out loud:  Is there anything here but trendy, empty sentiment? All these commemorative talks, especially by politicians, are just so much hot air.  That by itself wouldn't be too awful  --  hot air is what politicians do  --  but I think there's something more subversive going on:  It distracts us from the central reality, and from what we need to do.
"Incarceration nation" is the slogan of the hour.  In the pages of every liberal paper, you can't go more than a few days without some earnest editorial, or some quasi-editorial masquerading as a "news story," telling us that we have too many people in jail.  All this jailing is expensive, inhumane, and counterproductive.  For these reasons and more, we should curb the use of imprisonment.

Almost always, the people writing this stuff are careful to add something to the effect that, "Of course, there are  some really dangerous people who need to be incarcerated." The reassurance of sanity is pasted in to persuade us that our opponents want the much-heralded "balanced approach."

But one must wonder.  The emotive engine of the anti-incarceration movement is more deeply rooted than its ostensible arguments.  It's the belief that the United States is a Bad Country  --  driven by racism, inequality, privilege, greed and inhuman callousness.  If you don't believe me, go to any Ivy League school and look at what's posted on the bulletin boards as you walk down the hall.  Then look at some of the more "innovative" course offerings in the catalog.  

So is a mere curbing of imprisonment what they actually want?  Hey, look, every now and again, the mask slips.
One of the principal arguments for the Smarter Sentencing Act is that its reduced use of incarceration will help curb the federal debt.

Is that true?

Today, tax day, is a good day to see for yourself.  Take a look at where your tax money actually goes.

Why We Have the Death Penalty

| No Comments
Today is the one year anniversary of the Boston Marathon bombing.  Dozens of people received life-long, disfiguring injuries.  Three died: Krystle Campbell, 29; Chinese national Lu Lingzi, 23; and  Martin Richard, 8.  The latter was  to have started his first season in Little League in a few weeks.

The bombing was undertaken by two Jihadist brothers.  The older one was  killed after a shootout with police four days later.  The younger, Dzhokhar Tsarnaev, was captured and is awaiting trial in November.

No serious person is claiming there is doubt of his guilt, or that he's mentally or emotionally disabled, or that he acted other than intentionally, knowing full well what he was doing.  The defense, if you want to call it that, is that he was following his brother.

The New York Daily News has this retrospective.  The pictures are graphic, as they should be. The picture of Dzhokhar's sworn enemy, the scourge of the earth, the Great Satan, follows the break.

Still Guilty

| No Comments
One of the staples of abolitionist lore is that we execute innocent people. Abolitionists squabble among themselves as to what the number is, although they largely coalesced around the Roger Keith Coleman innocence hoax as the star attraction.

Until it fell apart, that is.

Anyway, the current candidate is Cameron Todd Willingham, notwithstanding that his own lawyer attests to his guilt.

The latest attempt to bully Texas into reversing the jury's findings failed, proving to the Innocence Project "that the clemency system is completely broken in Texas."

More likely, it proves that after-the-fact "scientific evidence" adduced by those with an ideologically driven point of view still doesn't count as much as evidence produced in open court and tested by the adversarial process.

Some Crime Victims Count...

| 1 Comment
...and some don't.

President Obama met at the White House with the families of the victims of the Newtown, Conn. school massacre.  Nothing wrong with that; it was a shocking national tragedy.  I have some misgivings that the meeting was enlisted in a political cause, but that's how it goes with this Administration.

The President has refused to meet, however, with the families of the victims of  another mass shooting, even though (unlike the case with Newtown), he was  the Commander-in-Chief of the people ambushed, and even though they were killed, not by a lunatic, but by a "soldier" of the same Jihad that has attacked America before.

What difference does it make, really, whether the federal government has some paltry financial interest in pretending, absurdly, that the Ft. Hood massacre five years ago was just "workplace violence" instead of a terrorist attack?  For my money, what compels the President to meet with Major Hasan's victims does not depend on how they are categorized.  What compels it is basic decency. 

Manning's Sentence Upheld

| No Comments
AP reports that the 35-year court-martial sentence of mass leaker Pvt. Bradley Manning, who now calls himself Chelsea, has been confirmed by the commanding officer, Maj. Gen. Jeffery S. Buchanan.  The sentence can be further appealed to the Army Court of Criminal Appeal.

Manning's appellate lawyers, Nancy Hollander and Vincent Ward, told supporters Sunday in Washington that they expect to argue that the sentence unreasonable. It is the longest prison term ever given by a U.S. court for leaking government secrets to the media. They said they also expect to argue that Manning's speedy trial rights were violated, that the Espionage Act was misused and that high-ranking commanders improperly influenced [the] case.

News Scan

| No Comments
CA Murder Suspects had Lengthy Criminal Past: Police in Southern California have arrested two registered sex offenders as the prime suspects in the murders of four women.  The Associated Press reports that both men were being supervised by police after being arrested in 2012 for removing their court-ordered GPS devices and fleeing to Nevada.  Police believe both men targeted their victims because of their ties to prostitution and escort services, and are determining if there are more victims in California and other parts of the U.S.

Felons Able to Buy Guns Amid Background Check Backlog: More than 360 guns were sold in Maryland last year to people prohibited from owning them due to an overwhelming backlog in conducting gun ownership background checks.  Erin Cox of The Baltimore Sun reports that all but four of the guns sold to those prohibited from owning them were recovered by undercover troopers, and police believe there was only one incident to date involving a gun being used by a prohibited buyer.  Just last week, the Maryland State Police were able to clear the backlog of background checks that at one point, stood at 60,000 requests.

White Supremacist Arrested in Triple Homicide: A Missouri man with a history of racist and anti-Semitic activity has been arrested as the person responsible for three murders this weekend, two of which occurred at a Jewish community center and the other at a Jewish assisted living facility.  Fox News reports that 73-year-old Frazier Glenn Miller has been involved with white supremacist groups for the majority of his life, and was the subject of a nationwide manhunt in 1987 after police say he violated the terms of his bond while appealing a conviction for operating a paramilitary camp.  The Justice Department has announced plans to file hate crime charges against Miller, he is scheduled to be arraigned this week.

The Feds Go Stark Raving Mad

A couple of days ago, I said that race mongering had gone stark raving mad, by comparing Martin Luther King unfavorably to sneering cop-killer Mumia Abu-Jamal.

Tonight I have to say that the federal government, my former employer, has likewise gone stark raving mad.  I refer specifically to its siege of Nevada rancher Cliven Bundy.

I don't know all the merits of the dispute.  I'll assume arguendo that the Bureau of Land Management is 100% correct in claiming that Bundy is poaching on federal land, by grazing his cattle there without paying.  

But this justifies a para-military siege?  Use of dogs on Bundy's unarmed son?  The stationing of snipers?

As John Hinderaker of Powerline writes, the use of that degree of force in a dispute of this character is essentially madness.  Do the people at BLM not remember the disaster at Waco, where the stakes (possibly children subject to on-going abuse) were incomparably higher? 

At the same time this Administration is falling all over itself to go easier on drug trafficking, with the rampant violence inevitably associated with it, it sends in a quasi-army to deal with a cattle rancher who won't pay up.

When Is a Repeal Not a Repeal?

When it is nothing more than a ratification of the long-existing status quo.

I bring this up because death penalty abolitionists are licking their chops over a vote this week in a committee of the New Hampshire Senate to abolish that state's death penalty. As the Washington Post reports, the vote was 3-2, and the state House of Representatives has already given overwhelming approval to the bill.

It the bill passes the full Senate (which, as the Post notes, is up in the air), abolitionists are certain to start up again with more op-eds about how "the death penalty is dying."

Well, not really.  As I have previously noted, among the states that have repealed the death penalty in recent years, it barely existed anyway.

This is especially so in New Hampshire.  The fact the Post fails to report is that the Granite State has not executed anyone since 1939.

News Scan

| No Comments
Inmate Arranges Kidnapping While Behind Bars: Federal authorities say a North Carolina inmate was able to use a smuggled cell phone to help orchestrate the recent abduction of  the father of the prosecutor's who sent him to prison.   Michael Biesecker and Allen G. Breed of the Associated Press report that 49-year-old gang member Kelvin Melton used the smuggled phone to send over 123 calls and text messages to a group of five people who assaulted 63-year-old Frank Janssen over the weekend.  Janssen was taken from North Carolina to Georgia by the kidnappers who sent several threatening text messages to Janssen's wife threatening to behead her husband if she notified the authorities.  FBI agents were able to rescue Mr. Janssen Thursday morning. 

Border Patrol Overwhelmed by Migrants Seeking Asylum: Border Patrol agents working in the Rio Grande area of southern Texas have been overwhelmed with the recent increase in migrants illegally crossing the border seeking asylum and a permanent home in the U.S.  Todd Heisler of the New York Times reports that thousands of migrants from Central America are flooding the borders day and night seeking asylum from their native countries, putting a strain on resources and causing a huge backlog in immigration courts.  In the last six months alone, Border Patrol agents made more than 90,000 apprehensions, a 69 percent increase from last year. 

Teen Charged as Adult in Brazen Killing:  A 16-year-old Indiana criminal, whose record includes 29 violent crimes, will be charged as an adult after authorities say he shot and killed a 24-year-old newlywed and father-to-be during a morning walk.  Alex Greig of the Daily Mail reports that Simeon Adams, who laughed and smiled during his murder arraignment, shot and killed the man during a robbery attempt last Tuesday. Police also believe Adams is responsible for a shooting that occurred just two days prior.  Adams has been charged with felony murder and attempted robbery, his trial is scheduled to begin June 2.

Damnation by Loud Praise

| No Comments
I have written often to try to expose what's really going on with Eric Holder's support for so-called smarter sentencing initiatives.  I could not possibly do more to expose it, however, than Holder himself did two days ago by praising these initiatives at none other than race-huckster Al Sharpton's National Action Network Convention.

I'll say one thing for Mr. Holder:  He didn't try to hide it or put lipstick on it.  His gushing praise for Big Al, in the same speech and in the same venue as his praise for watered-down sentencing for drug dealers, is front and center on the Department of Justice website.  Among other things, Mr. Holder says:

Thank you, Reverend [Al] Sharpton - and thank you all for such a warm welcome.  It's a pleasure to be back home in New York City.  And it's a tremendous honor to join the National Action Network - once again - in helping to open your important Annual Convention....

[W]e have modified the Department's charging policies so that defendants accused of certain nonviolent, low-level federal drug crimes will face sentences appropriate to their individual conduct, rather than stringent mandatory minimums, which will now be reserved for the most serious criminals.  We are increasing our emphasis on innovative diversion programs like community service initiatives that can serve as alternatives to incarceration. 

Translation:  Since incarceration actually works, we're going to cut back on it.

Perspective:  Holder knows that slashing sentences for drug pushers will go over big with the President's political base. 

Eric Holder, His Own Law

| No Comments
As noted in the last entry, the Sentencing Commission voted today for an across-the-board lowering of drug sentences, given that drugs are no longer a problem the Commission has become partial to the defense bar.

The problem is that Eric Holder jumped the gun, so eager is he to give a break to drug dealers.  He had already ordered federal prosecutors not to object to defense requests for the anticipated reduction.  This is not to mention that the reduction, now adopted, will, if allowed by Congress, not become effective for more than six months.

Holder's over-eagerness did not sit well with Commissioner and Eleventh Circuit Judge Bill Pryor, even though Pryor voted for the reduction.  As reported by NRO:

"I regret that, before we voted on the amendment, the Attorney General instructed Assistant United States Attorneys across the Nation not to object to defense requests to apply the proposed amendment in sentencing proceedings going forward," Judge William Pryor, Jr. said at a public hearing in Washington. "That unprecedented instruction disrespected our statutory role, 'as an independent commission in the judicial branch,' to establish sentencing policies and practices under the Sentencing Reform Act of 1984."

Judge Pryor was not the only one to notice Holder's overreach. 

A Tale of Two Days

| No Comments
Day One, April 9, 2014  --  Sheriffs warn of violence from Mexican cartels deep into interior of U.S.:

Outmanned and outgunned, local law enforcement officers are alarmed by the drug and human trafficking, prostitution, kidnapping and money laundering that Mexican drug cartels are conducting in the U.S. far from the border.

The United States Sentencing Commission voted today at a public meeting to reduce the sentencing guideline levels applicable to most federal drug trafficking offenders...The Commission voted unanimously to amend the guidelines to lower the base offense levels in the Drug Quantity Table across drug types.

Somebody, please, wake me up.  My nightmares didn't used to be this weird.

News Scan

| No Comments
TX Executes Convicted Killer: A Mexican national convicted of murdering a former Baylor University history professor was executed Wednesday evening after spending nearly 15 years on death row.  Michael Graczyk of the Associated Press reports that 44-year-old Ramiro Hernandez-Llanas entered the U.S. illegally after escaping from a Mexican prison where he was serving a 25-year sentence for a murder he committed in 1989.  He had also been linked to the rape of a 15-year-old girl and had been accused of slashing another inmate in the face while awaiting trial.  Hernandez-Llanas was the sixth Texas murderer executed this year.

Murderer May Avoid Death Sentence due to Poor Health: A Missouri man convicted of one murder and suspected in two others may avoid a possible death sentence after a series of delays and his deteriorating health has stalled the case.  Jim Salter of the Associated Press reports that 62-year-old Gregory Bowman was convicted of killing a teenager in 1977.  In a separate case, he was convicted of murdering another teen and a 21-year-old woman the following year.  On appeal, Bowman's convictions in the 1978 killings were overturned, but the Missouri Supreme Court upheld his conviction in the 1977 murder and ordered him to be re-sentenced.  Delays has pushed his sentencing hearing back to April 2015.  Bowman may not be able to attend after the judge was informed that he is suffering from a potentially fatal kidney ailment. 

Race Mongering Goes Stark Raving Mad

| 1 Comment
What's the difference between an unrepentant cop killer and Martin Luther King?

Not that much, according to a lesson plan used by the Oakland schools and financed by  -- are you ready for this?  --  the U.S. Department of Education.

And this wasn't just any cop killer; it was Mumia Abu-Jamal, the darling of Anti-American Left, including would-be Assistant Attorney General Debo Adegbile

Now there was one important difference between the nation's foremost advocate of non-violent change and the gun-toting Mumia:

Mark Lewis Taylor, a professor of theology and culture at the Princeton Theological Seminary, identified [a major difference] between Abu-Jamal and King, saying the former radio journalist has worked more obviously than the assassinated civil rights leader within an "international framework of justice struggle."

That's it, ladies and gentlemen.  Cop-killer Mumia was better than King, because he lined up more aggressively with Soviet front organizations.

You have to read the article to believe it.

How to Win a Case in One Line

| 1 Comment
This is not a criminal case, but it's an example like few I have seen of how to write an appellate opinion.  The author here is Judge Ray Kethledge of the Sixth Circuit.  I've known Judge  Kethledge for years, and starting in August, one of my students from two years ago will be clerking for him.  The opinion, handed down today, is in this employment discrimination case.  Judge Kethledge's first line is:

"In this case the EEOC sued the defendants for using the same type of background check that the EEOC itself uses."

For the EEOC, it was downhill from there.

But Never Mention Conscience

| No Comments
When Adam Lanza murdered twenty children and six adults in the Newtown school shooting in December 2012, the President wasted no time politicizing the gruesome tragedy as another episode of  "gun violence" for which more federal gun control legislation is needed. The White House statement is here.

One wonders what its statement will be today.

There are of course times when episodes like this are linked to mental illness  --  although the art of faking mental illness has been well refined in criminal defense.  And the deadliness of the weapon used can hardly be overlooked, either.

But something always seems to be missing from the press coverage of these episodes.  We hear a lot about schizophrenia.  We hear a lot about guns, particularly from those eager to disarm perfectly law-abiding people.  What we never hear about is the one thing whose degradation matters most  --  conscience.

News Scan

| No Comments
DNA Links Illinois Man to Cold Case Murder: Authorities have made an arrest in the 1997 killing of a 14-year-old girl after DNA collected from the scene several years ago linked 36-year-old James Eaton to the crime.  The Associated Press reports that investigators linked Eaton to the crime after positive matches came from both fingerprints at the scene and DNA evidence collected from a cigarette butt he recently discarded.  14-year-old Amber Creek's body was found in a marsh two weeks after she was reported missing in January 1997.  She had been beaten, sexually assaulted and suffocated with a plastic bag.  Eaton has been charged with first-degree intentional homicide and hiding a corpse, he is currently being held on $1 million bail.

Drug Cartel 'Enforcer' Confesses to Dozens of Murders: Jose Manuel Martinez, a self-proclaimed drug cartel enforcer, is facing nine murder charges in California after authorities say he confessed to at least 30 killings in several states across the country.  Russell Goldman of ABC News reports that Martinez, who is currently in custody in Alabama on a murder charge from 2013, has confessed to a string of crimes he committed dating back to the 1980's including several murders for hire.  Aside from the murder charges, Martinez is also facing allegations of lying in wait and kidnapping, making him eligible for a possible death sentence.

More Mush from DOJ, cont'd.

| No Comments
Yesterday, I noted that, contrary to what Eric Holder told Congress, the so-called Smarter Sentencing Act does  not "restore discretion" to judges.  The main thing it does is cut the minimum sentences applicable to dealers in heroin and other extremely dangerous drugs. But the sentences would still be mandatory.

It occurs to me that I omitted to mention another whooper Mr. Holder told  almost in the same breath.  He testified that the SSA "will ensure that the toughest penalties are reserved for the most dangerous or violent drug traffickers."

One has only to read the text of the proposed Act (Sec. 4 in particular) to see that this stands the truth on its head.  The Act gives the biggest breaks to the most dangerous (and repeat) offenders. Thus, for the relative small fry, the reduction is 3 years, from a mandatory minimum of 5 to a mandatory minimum of 2.  But for the really bad actors, the reduction is 10 years, from 20 to 10, or more than three times as much.

With math like that, perhaps Mr. Holder's next job will be in the Indiana Legislature.

Sometimes, You Forget How Bad They Can Be

| 1 Comment
But Ed Whelan of NRO's  Bench Memos reminds us:

2005--A split Ninth Circuit panel, in an opinion by notorious activist judge Stephen Reinhardt, rules in a habeas case (Musladin v. Lamarque) that under clearly established Supreme Court law a defendant on trial for murder was deprived of his right to a fair trial by an impartial jury when the trial judge permitted family members of the victim (or, as Reinhardt insists on referring to him in quotes, the "victim") to wear buttons bearing the deceased's photograph. (The panel will later substitute in a slightly different version of its opinion.)

In 2006, a mere two months after oral argument, the Supreme Court (in Carey v. Musladin) will unanimously reverse the Ninth Circuit.

How far some judges will go to re-invent the Constitution as a cudgel of callousness toward the families of murder victims is mind-bending. 

News Scan

| No Comments
Convicted Killer Arrested Shortly After Release: A Missouri man convicted of murder and sentenced to spend thirty years behind bars was arrested and charged with burglary shortly after he was released from prison.  KMOV St. Louis reports that Daniel Blount was sentenced to 30 years in prison for a murder he committed in 1991 and was supposed to serve at least 85 percent of that sentence, bit was release two years early.  Shortly after his release, Blount broke into a home that he was hired to work on and stole several high-dollar tools, he was arrested and charged with burglary and likely faces more prison time.

Buenos Aires Overwhelmed by Increasing Crime: The governor of Buenos Aires, Argentina's largest and most populated province, has declared a 12-month state of emergency in order to address an overwhelming crime rate.  Merco Press reports that Governor Daniel Scioli introduced a series of anti-crime measures including a multi-million dollar investment in security equipment and an 'immediate call' to retired police agents to rejoin preventative action aiming at a 5,000 member force. Magistrates are also being accused of being too lenient toward criminals, and are arguing for legislation providing tougher sentencing.

Supreme Court Denies Execution Drug Claim.  The U.S. Supreme Court has denied review of a murderer's claim that he is entitled to a hearing to determine what type of drug will be used in his upcoming execution and where it was acquired. In a surprisingly biased news article Richard Wolf and Gregg Zoroya of USA Today report that Christopher Sepulvado, who was convicted of murder and sentenced to death in 1993, appealed to the Supreme Court after the state of Louisiana reported that either pentobarbital or a combination of midazolam and hydromorphone would used for his execution.  Sepulvado's attorneys argued that their client has the right to know which drug will be used.  The high court has denied similar requests twice this year. 

More Mush from DOJ, Plus a Little Fib

| No Comments
Cutting and pasting from his last 3000 speeches,  Attorney General Holder testified today before the House Judiciary Committee.  He repeated his standard lines in favor of cutting by half the minimum required sentences for drug dealers  --  which, of course, he never actually identifies as "cutting by half the minimum required sentences for drug dealers." Instead, he talks in roundabout language designed to obscure what's actually going on. Thus, he uses the always-a-good-tipoff set of phrases like "evidence-based," "commonsense change," and "tough and smart."

For right now, I want to highlight one thing Holder said that's simply not so.  He stated (prudently tucked into his eighth paragraph) that the Smarter Sentencing Act "would give judges more discretion in determining appropriate sentences for people convicted of certain federal drug crimes."

Well, not really.  The SSA says not one word about judicial discretion, and, as John Malcolm of Heritage has pointed out, actually adds three mandatory minimums to existing law.  To that extent, the SSA reduces such discretion.

It's the Justice Safety Valve Act, sponsored by the even more extreme Pat Leahy and Rand Paul, that would let judges run wild again, as in the bad old days of the crime-ballooning Sixties and Seventies.  The Smarter Sentencing Act "merely" cuts mandatory minimum sentences, but they remain mandatory, and not subject to the the whim ideology temperament frolic discretion of  judges.

Why the Use of Informants is Risky

| No Comments
Because one of them might turn out to be Al Sharpton.

In what has to be one of the oddest criminal law stories I've seen for a while, Al Sharpton, who yesterday denied that he had been an FBI informant in the 1980's, today admits it and says it's old news.  

I was a federal prosecutor for many years, and I can tell you that informants are necessary, particularly in mob and big drug conspiracy cases.  But they're a boatload of trouble. For one thing, anyone in a position to have lots of information about extortion rackets or drug dealing is unlikely to have the character of the Pope.  The defense lawyer in cross examination is going to go to town.  

For another, such people are likely to have been life-long fabulists, and Big Al is no exception. Indeed, Rev. Sharpton is the prototype liar, having concocted one of the most remarkable hoaxes of recent times in the Tawana Brawley rape hoax.  

None of this, of course, keeps Big Al from being a frequent, honored guest of Barack Obama.  Records show that Sharpton had more visits with the President last year than Harry Reid.  Gads, I hope he wasn't wearing a wire!

UPDATE:  One acid commenter on Powerline notes, "Considering that Al ratted on the mob, he should be as nervous as a virtuous intern at the Clinton Foundation."

Nothing Beats Wishful Thinking

| No Comments
The NYT had an opinion box up yesterday titled, "What it Means if the Death Penalty is Dying."  Six people are given the chance to voice their views, four abolitionists and two supporters (if the opinion box reflected the electorate, the numbers would  be reversed).

But the main thing I want to note is the conditional  phrase, "...if the Death Penalty is Dying."

If the NYT took the trouble to report news instead of its wish list, it would know, as the not-so-conservative "Slate" has recently reported, that the death penalty, far from dying, seems to be healthier than it's been in quite some time.  Its popularity in parts of the world that (as someone should remind the Times) no longer regard themselves as  subservient to white people in Europe is strong and growing.  And the pace of executions in this county puts us on the path to having done, by year's end, 56 of them  --  the highest number in since 2005, and a little more than one each week.

Put that together with the Supreme Court's having twice recently turned away the latest in abolitionist obstructionism  --  the argument that the drug-producing pharmacy must be disclosed (in the Ferguson and most recently the Sells execution)  --  the NYT's opinion box might more appropriately have been titled, "What it Would Mean if the New York Times Stopped Publishing Its Wish List as News."

News Scan

| 1 Comment
Bills Introduced to Address Realignment: Members of Coachella Valley law enforcement have teamed up with California State Assemblyman Manuel Perez to introduce AB 1449, one of four bills designed to address the issues surrounding prison realignment.  Reza Gostar of The Desert Sun reports that if passed, AB 1449 would allow the courts to consider an offender's full criminal history when deciding if they should be supervised at the state or county level and also allows for anyone convicted of three serious probation violations to be sentenced to one year in prison.  The bills are scheduled to be heard by the state Senate's public safety committee later this month.

Repeat Sex Offender Released from Prison: A Southern California community has become the new home for a repeat sex offender with a lengthy history of violent sexual assaults.  Sarah Wright of the Liberty Voice reports that Christopher Hubbart has been behind bars for nearly 20 years after being found guilty of violently raping more than two dozen women over the course of several years.  Hubbart has been in and out of police custody since 1972 for his repeated sexual assaults against women, he has been paroled twice before and re-offended both times less than a year after his release. 

Crime up 30 Percent in Housing Projects: Public housing developments in New York are proving to be a dangerous place to live after members of the New York Police Department report that crime has increased by 30 percent over the last five years.  Lisa Evers of Fox 5 News reports that the crime rate in public housing developments is 10 times higher than the rest of New York City, and residents say it's the living conditions and economy that are contributing to the increasing rates of crime and violence.  Reports of domestic violence assaults have also increased in the neighborhood, however, police believe that may be a response to recent awareness campaigns.

One of the pleasures of teaching law is the opportunity to meet some exceptionally bright students.  One of mine was Jarrett Dieterle, now in his third year, getting ready for his upcoming clerkship with a federal judge.

The paper Jarrett wrote for my class was something of a case study about how a federal statute, originally modest is scope, has grown beyond all comprehension.

More broadly, Jarrett's paper, now published in the Georgetown Law Journal, sheds light on the controversy surrounding the use of criminal sanctions as the hammer of the regulatory state, and the related question whether non-mens rea crimes have any place in the law, much less in federal law.  It is  something of an eye-opener.  You can  find it here.

Joshua Keating has this post with the above title at Slate. "With India, Japan, and Indonesia rejoining the U.S., the world's largest democracies are death penalty countries and the practice has heavy popular support in all of them."
When I debated the merits of the proposed Smarter Sentencing Act before the Senate Republican Policy Committee, my opposite number was John Malcolm, formerly Deputy Assistant Attorney General for the Criminal Division.  John has been a friend for years, and I was fortunate to have such an affable and knowledgeable opponent.

One of the claims made in behalf of the SSA is that it's being backed by a number of conservative groups and individuals.  This claim is correct.  John rattled off several of them, including but not limited to Right on Crime, Americans for Tax Reform, Newt Gingrich, David  Keene and George Will.

So I got to thinking:  Are conservatives really the mainstays of this bill?  Find out for yourself.

News Scan

| No Comments
Marijuana Black Market Thriving in CO: The black market for marijuana sales is still thriving in Colorado despite a recently passed law making the drug legal.  Cheryl Chumley of The Washington Times reports that legalizing marijuana in the state has actually enhanced the black market, as marijuana "customers" are able to purchase the drug tax-free from black market dealers as opposed to buying it in a state regulated store.  Police are also worried that recent increases in violent crimes are connected to the drug's legalization. 

'Warning Shot' Bill Approved by Florida Lawmakers: Members of the Florida Senate have passed what is being called the 'warning shot bill' in an effort to revise a state law which punishes the use of a gun.  The Associated Press reports that the bill is in response to a 1999 law that required a mandatory 10-20 year sentence whenever a gun was displayed or used during a crime-even if it was in self-defense.  The 'warning shot bill' would distinguish the use of a gun in self defense from use by a criminal during the commission of a crime.  The bill now heads to Governor Rick Scott's desk for final review.

CA Senator Indicted on Corruption Charges: California Senator Leland Yee was formally indicted this morning on several corruption charges stemming from his March 26 arrest.  The Associated Press reports that Yee, along with 28 others, have been officially charged in connection with an organized crime investigation that involved exchanging illegal weapons for campaign contributions as well as trading political influence for cash.  Yee is out on $500,000 bond and is scheduled to be arraigned next Tuesday.

Should We Follow International Law?

| 1 Comment
No.  We should follow the Constitution.  But we can learn from international law, absolutely. We can learn something this very day, as it happens, from the world's largest democracy. Too bad the Supreme Court didn't get it a few years back.

Perhaps evolving standards of respect for women, not to mention respect for the most minimal human decency, will bring about a change of heart.

P.S.  When abolitionists tell us that we should adhere to the opinions of the "international community," what they actually mean is that we should adhere to the opinions of white people in Europe.  The death penalty predominates among "people of color" (as the phrase goes) in the Orient, the Subcontinent, the Middle East, the Caribbean, most of Africa and most of North America. 

Executions and Pentobarbital

| No Comments
Michael Graczyk reports for AP:

A serial killer was put to death Thursday in Texas after the U.S. Supreme Court rejected his lawyers' demand that the state release information about where it gets its lethal injection drug.

Tommy Lynn Sells, 49, was the first inmate to be injected with a dose of newly replenished pentobarbital that Texas prison officials obtained to replace an expired supply of the powerful sedative.

Sells declined to give a statement. As the drug began flowing into his arms inside the death chamber in Huntsville, Sells took a few breaths, his eyes closed and he began to snore. After less than a minute, he stopped moving. He was pronounced dead 13 minutes later, at 6:27 p.m. CDT.

For all the wailing and gnashing of teeth over the undisclosed sources, we see once again that the single-drug method with pentobarbital is the way to go for lethal injection.  Another murderer snores his way to eternity and removal to a higher court.

To the extent that anyone is faced with a potentially painful execution by the substitution of other drugs, the blame for that falls squarely on the shoulders of those obstructing the supply.  For a manufacturer to restrict resale of its product should be illegal.  It is a restraint of trade.  Eliminating the barriers to supply is the solution.

The Supreme Court orders are here and here.  No dissent is noted.

Execute Nidal Hasan. Now.

| 1 Comment
We have another Ft. Hood shooting.  This time with "only" three victims dead, and many more wounded.

From what's being reported right at this moment, yesterday's rampage had nothing to do with Jihad.  That would distinguish it from the one conducted four and a-half years ago by then-Major Nidal Hasan.  Hasan hated America and said so.  He mowed down his fellow soldiers by ambush because they were in the Army of the Great Satan.

After years of litigating about his beard (that is not a typo), he was tried and sentenced to death.  Of course the sentence is nowhere close to being carried out, because of the endless, if frivolous, appeals you and I are paying for.

Enough.  A sane, civilized society makes sure of three things:  That we've got the right guy, that he did it intentionally, and that he was sufficiently mentally sound to know right from wrong.

We already know all those things about Hasan.  As this latest massacre should remind us (but won't), it's time to get moving.

Congratulations to C&C

| No Comments
I never know how much stock to put in surveys like this, but this one has C&C as the top-rated pro-prosecution blog.

No fair saying that, since the profession is dominated by defense lawyers, there's not much competition.  I have been shocked by the number and the high station of people who tell me they read C&C.

Congratulations to Mike Rushford and Kent, whose analytical abilities and fair-mindedness equal the best you see in Supreme Court practice.

News Scan

| No Comments
TX Set to Execute Convicted Killer: A Texas man convicted of killing a 13-year-old girl and attempting to kill another girl is scheduled to be executed Thursday evening after an appeals court rejected his final challenge.  Brendan O'Brien of Reuters reports that 49-year-old Tommy Lynn Sells went to the home of a man who owed him drug money and sexually assaulted a 13-year-old girl and stabbed her to death before he slit the throat of another little girl sleeping in the bed above her.  According to media reports, Sells has also confessed to 70 additional murders which he claims to have committed since the age of 16.  If his  execution is carried out, he will be the 15th murderer put to death in the U.S. this year.

Murder Defendant Accused in Cellmate's Death: A Phoenix man who told authorities that he murdered his 12-year-old half-brother last month because he "felt like it" is now accused of stabbing his cellmate to death in a Maricopa County Jail last night.  Paul Davenport of the Associated Press reports that officers found the body of 27-year-old Andrew Ward's cellmate Wednesday evening after hearing reports of an inmate fight.  33-year-old Douglas Walker had been stabbed in the eyes with a pencil and had his throat cut with a plastic playing card before he was beaten to death in the cell he shared with Ward.  Ward admitted to officers that he was responsible for Walker's death.   
Shooting at Ft. Hood Leaves Four Dead: A shooting yesterday at Ft. Hood in Texas left several injured and four dead, including the gunman.  Dana Ford of CNN reports that the suspect, an Iraq war veteran who had been transferred to Ft. Hood in February, opened fire on the Army post Wednesday afternoon killing three and injuring 16 more before turning the gun on himself.  A similar mass shooting incident took place at Ft. Hood in November 2009, that incident left 13 dead and 32 injured.  The suspect in the 2009 shooting, Army Maj. Nidal Malik Hasan, was convicted of murder and the jury has recommended a death sencence.
In debating the Heroin Dealers Bonanza Act Smarter Sentencing Act, I hear one question again and again:   Since some states like Texas and Michigan have reduced their prison populations over the last few years and  have seen the decline in crime continue, why can't the federal prison system do the same?

Here's why.

1.  The increased use of  incarceration has accounted for about a quarter of the decline in crime.  What that means is that about three quarters of the decline is  attributable to other factors (things such  as hiring more police and improved and proliferating private security measures).  When three quarters of the factors responsible for the decrease in crime are still on-going, crime is very likely to continue to decrease.  What reducing the prison  population will do, by putting recidivist criminals back on the street, is slow the rate of the decrease.  And that is, in fact, what's  been happening.  As some large states have been marginally lowering their prison populations, crime has continued to decease, but at a slower rate.

Reasons 2 - 5 follow the break.

News Scan

| No Comments
Convicted Killer Accused in Another Murder: An Oregon man who spent 27 years in prison for murder will now face another trial for a second killing authorities say he committed after being released.  Greg Bolt of the Register-Guard reports that 58-year-old David Taylor was sentenced to life in prison in 1977 for the murder of a female gas station attendant, but a parole board voted in favor of releasing him in 2004 after serving just 27 years of his sentence.  Police say Taylor went on a months-long crime binge in 2012 and is responsible for several crimes including bank robbery, kidnapping, and the murder of a 22-year-old man.  If convicted on the murder charge, Taylor faces a possible death sentence.

FL Governor Signs Tough Sex Offender Laws: Florida Governor Rick Scott has signed four new bills aimed at toughening sex offender laws aimed at making Florida the most "unfriendly state" for sex offenders and predators.  ABC 3 reports that the new legislation will require homeless offenders to let police know where they will be spending their time and make it easier for authorities to keep sex offenders in treatment programs after serving their prison sentences.  The new laws also mandates that the most serious sex offenders be sentenced to a minimum of 50 years to life as opposed to the current law which set the minimum at 25 years. 

Woman Arrested After April Fools' Prank: A South Carolina woman was arrested after an April Fools' prank resulted in local police swarming a community college campus in response to a fake school shooting.  Fox Carolina reports that the woman, an employee at the college, sent a text message to her daughter saying there was a gunman on campus and that she could hear gunshots while hiding in the bathroom.  The woman's daughter called 911 and several officers headed to the school preparing for the worst, only to discover there was no gunman and the entire situation was a prank.  54-year-old Angela Timmons was charged with disturbing a school campus, aggravated breach of peace, and two counts of unlawful use of a telephone.
Michael Moore is, in my view, a malevolent buffoon.  I won't even go into his antics and years of rancid anti-Americanism.  Still, as they say, every blind pig finds an acorn, and Mr. Moore seems to have found his.  Thus, as the Washington Examiner recounts:

Liberal filmmaker Michael Moore believes that whoever was responsible at General Motors for failing to recall a faulty ignition switch deserves death.

"I am opposed to the death penalty, but to every rule there is usually an exception, and in this case I hope the criminals at General Motors will be arrested and made to pay for their pre-meditated decision to take human lives for a lousy ten bucks," he wrote.

I cannot agree that the death penalty is  warranted  in this case on the facts thus far known. But if even Michael Moore can understand that there are some cases so grotesque and hideous that only the death penalty can suffice, there may yet be hope for abolitionists.

News Scan

| No Comments
Louisiana House Votes to Expand Death Penalty: Members of the Louisiana House overwhelmingly voted in favor of a bill that would make the murder of correctional worker punishable by death.  Lauren McGaughy of NOLA.com reports that House Bill 278 adds correctional facility employees to a list of first-degree murder victims, allowing prosecutors to pursue the death penalty or an automatic life without the possibility of parole sentence.  The bill, which was approved by a vote of 73-19, now heads to the Senate committee. 

Convicted Killer to get New Trial: Mississippi death row inmate Michelle Byrom, who was scheduled to be executed last week for the murder of her husband, will get a new trial after a rare ruling was made by the state's high court.  The Associated Press reports that attorneys for Byrom say they have new evidence in the case that points to her son being the killer, alleging that he even confessed to the crime during conversations with a forensic psychologist.  Byrom's son originally testified against her as part of a plea bargain, and was sentenced to 50 years in prison with 20 years suspended.

D.C. Mayor Signs Marijuana Decriminalization Bill: Washington D.C. Mayor Vincent Gray has signed a bill that decriminalizes possession of up to one ounce (28 grams) of marijuana in the nation's capital.  Ian Simpson of Reuters reports that the new law makes possession of marijuana a civil violation punishable by a $25 fine, possession used to be classified as a misdemeanor carrying up to six months in jail and a $1,000 fine.  The measure will now undergo a 60-day congressional review.

Several weeks ago, the so-called Smarter Sentencing Act was passed out of the Senate Judiciary Committee on a 13-5 vote, with all ten Democrats and three Republicans (Lee, Cruz and Flake) voting in favor.  The opposition was led by Ranking Member Chuck Grassley.  I have previously analyzed the law and the politics of the SSA.  If enacted, it would be the most significant generally applicable piece of federal sentencing legislation since the SRA 30 years ago.

Yesterday, I had the opportunity to address the Senate Republican Policy Committee about this bill, arguing that it should be defeated.  My friend John Malcolm of the Heritage Foundation, and chairman of the Federalist Society's Criminal Law Practice Group, took the other side.

My opening statement follows the break.  Please bear in mind that this was a partisan speech to a partisan audience; C&C itself is not partisan, although the views expressed here more often coincide with those of Republicans rather than Democrats.

Greatest Supreme Court Justices

Cass Sunstein has this post at BloombergView (emphasis added):

In the nation's history, 112 people have served on the Supreme Court of the United States. Suppose that we were to select the all-time greats. Who would make the cut?

To answer that question, we need a metric. It makes sense to consider two factors: historical significance and legal ability. It would be too contentious to include only those justices with whom one agrees, so let's make this list ideology-free. We'll also exclude the current justices, because it is too early to tell whether any will count among the all-time greats.

I largely agree with his list, and any "greats" list that includes both William Brennan and William Rehnquist has a decent claim to be "ideology-free."  I definitely agree with Sunstein's assessment that Robert Jackson was the best writer.

Monthly Archives