May 2014 Archives

Alison Hsiao reports for the Taipei Times:

While the existing Criminal Code stipulates that a person who "kidnaps another to extort ransom shall be sentenced to death, life imprisonment or imprisonment for not less than seven years" and that "if aggravated injury results from the offense, the offender shall be sentenced to death, life imprisonment, or imprisonment for not less than 10 years," the amendments made yesterday scrapped the capital punishment from these two clauses.

The bill was proposed by the Executive Yuan, who referred in its proposal to the International Covenant on Civil and Political Rights, which was ratified by Taiwan in 2009 and says that in countries that have not abolished the death penalty, "the sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide."

In the United States, no one has been executed for a crime not resulting in the death of the victim in the post-1976 era.  Most of the statutes enacted to comply with Furman v. Georgia limited the death penalty to murder, and the Supreme Court struck down most of the others in Coker v. Georgia (1977) and Kennedy v. Louisiana (2008).
Investors Business Daily has this editorial:

As the attorney general again warns schools that even race-neutral discipline policies discriminate against black students, a study finds serial misbehavior "completely" explains the racial gap in suspensions.

The first-of-its-kind longitudinal study published in the Journal of Criminal Justice tracks black and white students from kindergarten through eighth grade, with the data set spanning the years 1998 to 2007.

It confirms the obvious: Differences in behavior -- namely, repeat classroom offenses -- explain differences in discipline, not racism by school officials or worse treatment of black offenders compared with similarly situated white offenders, as this race-obsessed administration has so recklessly alleged.
Citation and abstract follow the break.
The Onion reports on important new research on a "root cause" of violent crime:

A study published Thursday in The American Journal Of Criminal Psychology has found a nearly perfect statistical correlation between children who were denied a toy they wanted when visiting a store with their parents and the later development of homicidal...
Curious to see if we get a Swift's Law effect on this one.


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Former NY Mayor Michael Bloomberg gave the commencement address at Harvard yesterday, including the following:

Repressing free expression is a natural human weakness, and it is up to us to fight it at every turn. Intolerance of ideas - whether liberal or conservative - is antithetical to individual rights and free societies, and it is no less antithetical to great universities and first-rate scholarship.

There is an idea floating around college campuses - including here at Harvard - that scholars should be funded only if their work conforms to a particular view of justice. There's a word for that idea: censorship. And it is just a modern-day form of McCarthyism.

Think about the irony: In the 1950s, the right wing was attempting to repress left wing ideas. Today, on many college campuses, it is liberals trying to repress conservative ideas, even as conservative faculty members are at risk of becoming an endangered species. And perhaps nowhere is that more true than here in the Ivy League.
The National Research Council (NRC) recently put out a report on incarceration in the United States.  It amounts to 450 pages of singing the same, tired liberal tune we have heard for years.  If you want to find out what it says, you'd save some time just listening to the two more succinct liberal witnesses at today's House hearing, Mark Levin of Right on Crime and Prof. Bryan Stevenson of NYU.  

Prof. John Pfaff has plowed through it, however, and finds numerous errors and omissions.  Hat tip to Doug Berman and SL&P for collecting Prof. Pfaff's pieces, which he does here, under the appropriate title, "The Good, the Bad and the Ugly of Mass Incarceration Analysis: John Pfaff tears apart NRC report."

The Over-Criminalization House Hearing

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For those who missed today's House hearing but would like to take a look, the video is here.  Although the Task Force is interested primarily in examining the proliferation of non mens-rea crimes as the regulatory state gets bigger and nastier, today's hearing was about the mandatory minimum debate.  The Congressmen make their opening statements, followed by the witnesses, of whom I was called upon first, starting at about minute 29:00.

I thought the four witnesses did a good job of summarizing the arguments on both sides. Having been a participant, I don't want to grade my own paper, so I'll make only two observations:  First, Ranking Member Conyers was the same complete gentleman he has always been to me, but might have ruined my reputation by accusing me of sounding reasonable.  Second, I have to admit I was happy to see that I have more hair left than anyone at the witness table, and practically any man in the room.

At my age, you count everything.

News Scan

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TX to Keep Lethal Drug Source Secret: The Texas Department of Criminal Justice will not have to reveal where it gets its supply of execution drugs after the state's attorney general determined it placed suppliers in serious danger.  The Associated Press reports that unlike other states, Texas law does not specifically say whether prison officials must disclose where they purchase lethal injection drugs from.  Since 2010, three similar attempts made by the Department of Criminal Justice to maintain secrecy for pharmaceutical companies had been rejected by the state's Attorney General's Office.

Bill Aims to Eliminate Jail Mandate for Some Drug Users: California's state Assembly has approved legislation that will ultimately remove mandatory jail sentences for some convicted drug offenders.  The Associated Press reports that if passed, AB2492 would eliminate a three-month jail mandate for individuals convicted of being under the influence of drugs.  The bill's supporters believe that AB2492 will reduce jail overcrowding and return discretion back to county judges.

MO Attorney General Proposes Execution Changes: Missouri Attorney General Chris Koster is proposing a plan to have his state build its own laboratory to produce lethal injection chemicals rather than relying on outside pharmaceutical companies.  Mark Berman of the Washington Post reports that Koster believes that having the drugs produced 'in house' would elevate the level of "public transparency" required for lethal injections.  Last week, a Missouri death row inmate was granted a stay just hours before his execution after attorneys alleged he had a medical condition that may cause a prolonged and painful death during the execution.

Sentencing Theatrics:  Jae Palazzolo of the Wall Street Journal reports on a trend with is catching on with federal public defenders;  the introduction of professionally produced videos sympathetic to defendants at sentencing hearings.  Veteran Arizona federal public defender Doug Passon, who pioneered the so-called "sentencing mitigation video", says that the sentences are almost always better (read shorter) when he plays a movie about the defendant at the sentencing hearing.  In one case, a habitual drug dealer with over a dozen priors, who was eligible for a 30-year sentence for conspiracy to deal crack cocaine, was sentenced to 12 years after the judge viewed a video showing his tough life and his crying daughter calling him "one of the best dads ever."  Documentary film makers and former reporters are charging between $5,000 and $20,000 per video. 
This AP story speaks for itself:

Two teenage sisters in rural India were raped and killed by attackers who hung their bodies from a mango tree, which became the scene of a silent protest by villagers angry about alleged police inaction in the case. Two of the four men arrested so far are police officers.

Villagers found the girls' bodies hanging from the tree early Wednesday, hours after they disappeared from fields near their home in Katra village in Uttar Pradesh state, police Superintendent Atul Saxena said. The girls, who were 14 and 15, had gone into the fields because there was no toilet in their home....India tightened its anti-rape laws last year, making gang rape punishable by the death penalty, even when the victim survives.

But the most memorable part of the story is at the end, from a fellow I gather is running for president of the Indian version of the NACDL:

Last month, the head of Uttar Pradesh state's governing party, the regionally prominent Samajwadi Party, told an election rally that the party was opposed to the law calling for gang rapists to be executed.  "Boys will be boys," Mulayam Singh Yadav said. "They make mistakes."

Last weekend, Adam Liptak had this article in the NYT:

The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice. The revisions include "truly substantive changes in factual statements and legal reasoning," said Richard J. Lazarus, a law professor at Harvard and the author of a new study examining the phenomenon.
But has the Court, in recent years, actually "alter[ed] the law of the land"?  None of the recent examples Liptak gives us involve revision of the opinion of the Court.  They are all dissents or concurrences.  A concurrence may establish precedent only when there is no majority, and a dissent never does (IMHO).  The opinion of the Court that Liptak notes being revised is Dred Scott v. Sanford (1857), and I'm pretty sure that case is no longer good law anyway.

I skimmed briefly through Lazarus's article and didn't see any opinions of the Court being revised in substantive ways since the 1980s.

Of course, there is no need for revisions of opinions to be quiet in any case.  The right way to do it is to issue an order making the change.  That's how the California Supreme Court does it.

Man Up?

Secretary of State John Kerry has raised eyebrows with his statement regarding Edward Snowden: "The bottom line is this man has betrayed his country, sitting in Russia where he has taken refuge. You know, he should man up and come back to the United States."  Alexandra Petri has this lighthearted look at the WaPo.

News Scan

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High Court Rejects Death Penalty Appeal: The U.S. Supreme Court on Tuesday rejected Texas death row inmate Duane Buck's most recent appeal.  AP reports that his lawyers claimed in a statement yesterday, "His death sentence is the product of pervasive racial discrimination."  The claim arises from a statement by Buck's own expert witness.  In context, the statement was simply a reference to the demographic facts that the murder rate is higher among black men than white men and higher among men than women.  See this post from 2011, regarding a last-minute stay granted by the Supreme Court at that time.

CA Governor Loses Prison Oversight Appeal: A federal appeals court has rejected California Governor Jerry Brown's most recent appeal challenging a court ruling that required him to give a three-month warning before seeking to end federal oversight of the state's prison system.  Paige St. John of the Los Angeles Times reports that medical care within the California prison system has been run by a court-appointed official since being placed under a federal receivership in 2006.  Governor Brown appealed the decision in an effort to try and regain control of the $2.2 billion healthcare system.

Georgia Sets Execution Date for Convicted Killer: A Georgia man sentenced to death for raping and murdering an Atlanta teenager has been scheduled to be executed on June 17 after spending more than two decades on the state's death row.  Kate Brumback of the Associated Press reports that Marcus Wellons raped and murdered his 15-year-old neighbor in August 1989 after the young girl said goodbye to her mother and headed off to school for the day.  If the execution is carried out as scheduled, it will be the state's first execution in nearly 18 months.  
Tomorrow morning at 9, in the House Rayburn Office Building, the Over-criminalizaiton Task Force of the Judiciary Committee will hear testimony on criminal penalties.  The Task Force was organized primarily to look into the propriety of using criminal law to enforce the regulatory state, but tomorrow's hearing will examine mainly mandatory minimum sentencing.

The witnesses include some familiar figures.  In order of appearance:  

  • Prof. William G. Otis
    Adjunct Professor of Law
    Georgetown University Law Center
  • Mr. Eric Evenson
    National Association of Assistant United States Attorneys
  • Mr. Marc Levin
    Policy Director
    Right on Crime
  • Mr. Bryan A. Stevenson
    Founder and Executive Director
    Equal Justice Initiative
Although Hall v. Florida got most of the attention yesterday, the Supreme Court also decided two cases in favor of the police, both unanimous at least in part.

Plumhoff v. Rickard involves the police's use of deadly force against someone who led them on a high-speed chase over 100 miles an hour and continued trying to escape even after the police had him cornered.  There are several holdings worth noting.
How many cases will yesterday's decision in Hall v. Florida actually impact?  Lizette Alvarez and John Schwartz have this article in the NYT estimating "10 to 20," citing anti-death-penalty law professor John Blume for that estimate.  (The article doesn't identify Blume as an advocate for one side on this issue, but he is.) "The death row inmates in this category would generally have I.Q.'s of between 71 and 75. Inmates in that category should now be able to ask for a new hearing that would take into consideration other evidence and a broader range of I.Q. tests."

There are a couple of points to note here.  First, it appears a prominent advocate for the other side implicitly agrees that Hall does not require reconsideration in cases where the inmate's test scores are above 75.  My prior post and the comments to it discussed whether Hall might extend to murderers whose scores are consistently above 75.  I don't think it does yet -- and apparently Blume agrees -- though the Court may still go there in the future.

Does everyone in the 71 to 75 twilight zone automatically get a new hearing?  If that means evidentiary hearing, I don't think so.  Hall himself, for example, put on the experts who testified to the same thing they would testify to after the Supreme Court's decision.  I don't see any reason why the trial judge cannot enter a new decision on the same record, considering the margin of error as the Supreme Court directs.  I expect his decision would be the same.  The state might want a new evidentiary hearing to put on the evidence it didn't think was necessary before, but Hall has already had his shot.

News Scan

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Convicted Killer Loses Death Row Appeal: A Pennsylvania man convicted of killing five people during a racially-motivated attack nearly 14 years ago has lost his most recent death penalty appeal.   despite claims that he was forcibly medicated during his trial.  The Associated Press reports that Richard Baumhammer, a former immigration attorney, began his shooting spree by shooting to death a Jewish neighbor and setting her house on fire before targeting people at a Chinese restaurant and an Indian grocery store. In Baumhammer's appeal he claimed that he was forcibly medicated during trial and that his defense attorney was ineffective.

Realignment to Blame for Increase in Gun Violence: A Northern California town is seeing a dramatic increase in the number of shootings in 2014, and a Fairfield police officer believes Realignment is one of the contributing factors.  Claire Doan of KCRA Sacramento reports that so far this year, the city has already witnessed 35 shootings-a number which is well on its way to surpass shooting statistics for 2012 and 2013. The Fairfield Police Department has since increased patrols and sped up the hiring process in an effort to combat the thousands of prisoners released from state custody under Governor Brown's Realignment plan.

Thousands of Immigrant Children Overwhelming U.S. Border: An expected 120,000 illegal immigrant children and teenagers from Latin America are expected to flood the U.S. border this year, prompting humanitarians to seek more than $1.5 billion in financial support to handle the overwhelming increase.  Paul Bedard of the Washington Examiner reports that every month, thousands of children are illegally immigrating into America in order to escape drug gangs and violence from countries like Guatemala, Honduras and El Salvador.  A large number of the children are currently being housed at Lackland AFB in San Antonio, Texas.

Hall v. Florida, the Short Version

Kent discusses Hall v. Florida with the precision and analysis characteristic of him. In one respect, however, I dissent:  I think he gives the opinion too much credit.

My take is a good deal shorter. The object of the game is to hand off various components of the law of capital punishment to abolitionist-leaning groups until the death penalty is effectively squeezed out of existence.  This will be done without the Court's having to muster the intestinal fortitude to do it directly and, of course, without the approval of the much-vaunted consensus of the people, at least 60% of whom have supported the death penalty for the last four decades. It's  hard to figure which gets first place in today's handiwork  --  the arrogance, the artifice or the cowardice.

Couldn't this easily have been one paragraph?:  "The Florida statute on its face is consistent with this Court's holding in Atkins, but the unreasonably narrow construction applied by the Florida Supreme Court is not.  We vacate that Court's decision and remand for reconsideration under the statute as written."
In the 2002 case of Atkins v. Virginia, the Supreme Court decided that the Eighth Amendment to the United States Constitution provides an absolute exemption from capital punishment to a person diagnosable as mentally retarded. I do not doubt that their was a consensus to that effect for persons with moderate or more severe levels of retardation, which is what most people think of when the hear the word "retarded."  I very much doubt that most people would agree as to mild retardation, if they understood the level of functioning that classification represents.

At the same time Atkins found a consensus on that underlying rule, it noted there was "serious disagreement about ... determining which offenders are in fact retarded."  That would seem to mean that there is no constitutional constraint and states can choose their methods, at least within reason.  Today in Hall v. Florida, a bare 5-4 majority of the Supreme Court decided that Florida's method of making that determination is unconstitutional.

Is today's decision a one-time correction of a rule that was, to be frank, hard to defend scientifically?  Or is the opening of a long line of decisions to judicially micromanage the retardation determination, with each twist in the road reaching back to further delay or possibly deny justice in cases fairly tried in accordance with the law in effect at the time?
I am still working on a comment on the substantive aspects of today's Supreme Court decision in Hall v. Florida.  Pending that, I want to make a quick note of a very disturbing choice of words in the opinion.  On page 22 of the slip opinion, it says:

"Florida seeks to execute a man because he scored a 71 instead of 70 on an IQ test."

No, Justice Kennedy, that is most emphatically not why the State of Florida seeks to execute Freddie Lee Hall.  The reasons why were given by the trial judge:

On February 21, 1978, Freddie Lee Hall kidnapped Karol Lea Hurst from the parking lot of a grocery store as she was carrying her packages to her car. He drove her, in her own car, some 18 miles away into another county and into the woods a quarter of a mile off the paved road. There, in the front seat of her car, he forced her to remove her clothes and then he raped her.  He listened to her cry, and he listened to her beg for her life and the life of her unborn child. He watched her write a check for him to cash in return for her life.  Then he beat her--so hard that it tore the flesh of her neck and shoulders through the fabric of her denim jacket. And then he killed her by firing a bullet into the back of her head, either pulling the trigger himself or encouraging another to do it in his place. There is no evidence that has been presented to this Court that reasonably mitigates the aggravated nature of this act.  The aggravating circumstances of this case clearly "outweigh" the mitigating factors.
Karol Hurst was a human being, not a test score. Her 7-month unborn baby was also a human being.  The suffering, the terror, and the death of Karol Hurst and the death of her baby are shamefully minimized and their memory is insulted and denigrated by the flippant, thoughtless, and cruel statement in the opinion that the test score is the reason that Florida seeks to execute Hall.

I can only hope that Justice Kennedy did not write this statement himself but only failed to edit a statement inserted in a draft by a law clerk.  Surely the Justice himself knows better.  We see statements like this all the time in the briefs of defendants and their amici, but it is shocking to see it in the opinion.  This statement is unworthy of the Supreme Court of the United States.

News Scan

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Supreme Court Rules in Favor of Death Row Inmate: A divided Supreme Court ruled on Tuesday in favor of convicted murderer and death row inmate Freddie Lee Hall. The Court's 5-4 ruling will make it more difficult for states to sentence inmates to death if they claim to suffer from an intellectual disability.  Richard Wolf of USA Today reports that Florida must now apply a margin of error to IQ tests administered to Hall.  Prior to the ruling, the Florida law provided that an IQ score above 70 made prisoners eligible for a death sentence.  Some mental health groups argued that the number should instead be 75.  Last week, a federal appeals court prevented Texas from executing a death row inmate after his attorneys made claims that he suffered from an intellectual disability. 

Cold Case Murderer Sentenced to Life: An Ohio man has been sentenced to life in prison after pleading guilty to the murder of a Cleveland teenager nearly 30 years ago. WKYC reports that 59-year-old Hernandez Warren was arrested and charged with the cold case killing in 2013 after a new DNA test linked him to the crime.  In addition to the life sentence for murder, Warren was also sentenced to 10 to 25 years for rape, he will be eligible for parole after serving a minimum of 30 years behind bars.

Jailed Marine to Plead Case to Mexican Judge: A U.S. Marine who has been held in Mexican jail for nearly two months after accidentally crossing the border will finally have his day in court Wednesday when he goes before a federal judge in Tijuana,  the country's sixth-largest city.  Joseph J. Kolb of Fox News reports that Sgt. Andrew Tahmooressi had three registered guns in his vehicle when he entered Mexico through a 'poorly-marked crossing', he was immediately detained and has since spent time in two different Mexican prisons where his mother says he has received multiple death threats and has had his feet and hands shackled.  Efforts made by Secretary of State John Kerry to have the soldier released and allowed to travel back to the U.S. have  been unsuccessful.  

Double Jeopardy

There is one summary reversal on the U.S. Supreme Court's orders list this morning.  If the day of trial arrives, the jury is sworn, the prosecution is not ready and puts on no evidence, the defendant moves for acquittal, and the trial court grants it, can the defendant be retried?   Of course not.  The case is Martinez v. Illinois, No. 13-5967.  The opinion is "per curiam," meaning it is the product of the Court as a whole with no justice identified as the individual author (meaning, probably, it was actually written by someone on the staff).  There is no dissent.

Update:  In other SCOTUS action, the high court ruled unanimously for the police in the car chase/excessive force case, Plumhoff v. Richard, and the Secret Service v. protesters case, Wood v. Moss.  The court ruled 5-4 for the allegedly (but actually not) retarded murderer in the "error of measurement" case, Hall v. Florida.  I will have more on these cases later.

What Today Is Really About

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"We have come to dedicate a portion of that field as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.

But, in a larger sense, we cannot dedicate. . .we cannot consecrate. . . we cannot hallow this ground. The brave men, living and dead, who struggled here have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember, what we say here, but it can never forget what they did here.

It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us. . .that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion. . . that we here highly resolve that these dead shall not have died in vain. . . that this nation, under God, shall have a new birth of freedom. . . and that government of the people. . .by the people. . .for the people. . . shall not perish from the earth. "

-- Abraham Lincoln, 1863

The Latest on the Smarter Sentencing Act

CQ Roll Call published an article yesterday about the Smarter Sentencing Act, now somewhere in limbo in the Senate.  The CQ piece is behind a paywall, but I have attempted  to reproduce it after the break.  It does a balanced and informative job of describing where things stand, including a note on what I view as something of a generational divide.  (I'm quoted in the piece).

On SL&P, Doug Berman says this:

I would put a slightly different spin than Bill Otis on the notable fact that the "average age of the Republicans who voted for the [SSA] in committee earlier this year was 45 [while the] average age of the Republicans who opposed it was 69." I would say that supporters of the bill understand that new political and legal realities may call for changing laws passed decades ago, whereas opponents of the bill see little need to update these sentencing laws for modern times.

I'm not sure what "new" legal and political realities Doug has in mind.  Last I looked, when you needle yourself with too much heroin, you're still dead; when a thug belts you to grab your purse, you still have a knot on your head and no purse; and when Mr. Nicey rapes your eight year-old, you still have a defiled little girl to try to help.

I do understand, however, that, in a sense, we have "new political and legal realities": A far-left Attorney General up to his eyeballs in race-huckstering with his buddy Al Sharpton; a Sentencing Commission whose majority is now effectively owned by the defense bar; and a bunch of judges newly at ease in snickering at crime victims.

And I don't think SSA backers want to embrace any "new realities." They simply want to repeat the disastrous mistakes of the past.

The War Against Women, California Style

Christopher Evan Hubbart violently raped 40 or so women starting in the 1970's. Eventually, the system took it seriously enough to send him off to a mental hospital. Now, over the state's objections, he has been ordered released by a California judge.

This is not a new story for C&C.  Hubbart was first covered in the News Scan nine months ago.  What drew my attention to the case was today's story on Fox News, which contains the following two sentences (emphasis added):

Hubbart will wear a 24-hour, seven-day-a-week GPS monitor on his ankle and will be accompanied by security people every time he goes out in public for the first six months to a year of his release, [L.A. County District Attorney Jackie] Lacey said. He will be transported to therapy sessions twice a week.

There are really no words to describe a legal system so vacant, so deluded, and so oblivious to the well-being of future victims, that it pretends this man's behavior is going to be changed by "therapy."

Garry Rayno reports for the New Hampshire Union Leader:

CONCORD -- The Senate took little time Thursday to reject repealing the death penalty, not wanting to debate the issue a second time this session.

On a voice vote, the Senate refused to go along with the House and killed Senate Bill 202, which contained the death penalty repeal language from House Bill 1170, which remains on the table in the Senate after members deadlocked 12-12.
Repeal supporters continue with their disinformation campaign:

"There is not an ounce of evidence the death penalty keeps anyone safe," said Sen. David Pierce, D-Hanover. "One of government's jobs is to reduce crime. The death penalty does not reduce crime."
Reasonable people can and do disagree about how convincing the studies showing deterrence are, who has the burden of proof, and by what measure.  To say "there is not an ounce of evidence" of deterrent effect, though, is just a bald-faced lie. 

Deterrence studies published in peer-reviewed journals from 1996 to 2010 are tallied here, and the abstracts and citations are provided here.

News Scan

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Drug Dealing at VA Hospital:  A Veterans Administration police officer has accused officials at the VA hospital in Miami of covering up crimes including physical abuse and drug dealing.  Officer Tom Fiore told Fox News that he had investigated and reported numerous incidents of drug dealing in the hospital and drug use in the facility's drug rehab program, noting that one 27-year-old Iraq war veteran died of a drug overdose shortly before he was set to graduate from the program.  After being told that his reporting of crimes to hospital officials must stop, Fiore was reassigned to a clerical position.

Welcome to Carjack City:  The Motor City has now become Carjack City, according to many who live in or commute to and from crime ridden Detroit.  The Associated Press reports that to combat the problem, Detroit police are designating gas stations as lighthouses if they have security cameras, are well lit and provide a free phone for emergency calls.  Local authorities believe that the increase in carjacking of occupied vehicles is due to improvements in vehicle security, which have made it more difficult to steal a locked car.  The problem is so serious, some commuters won't stop for gas in Detroit.  One young mother won't stop at red lights in some parts of the city when driving home from work, because it's tougher to carjack a moving target.    

The Electric Chair, Coming Back

Doug Berman at Sentencing Law and Policy has this entry: "Tennessee Adopts Electric Chair as Back-up Execution Method."

What I found most interesting was the margin by which this bill passed in the state legislature  --  with the Senate voting 23-3 and the House 68-13 in favor. Lopsided votes like that make it impossible for opponents to argue that the citizens of Tennessee oppose either the death penalty or this particular method of imposing it. As recent polling has shown, abolitionism is headed toward fringe-group territory, although it has a ways yet to go.

One other thing I take from this story is that the idea that some gimmick, like foreign suppliers refusing to sell the needed drugs, or medical associations admonishing members against participating in executions, simply are not going to work.

Nor should they.  In working democracies, majority votes trump minority gimmicks.

Barron Makes It Through

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Ex-Stephen Reinhardt clerk and hard-core liberal Harvard law professor David Barron was confirmed by the Senate today for a seat on the First Circuit.  He could not have made it through under the filibuster rules that Harry Reid ended in order to allow the President to pack the DC Circuit.  As we now see, it's not just the DC Circuit that will be headed downhill.

Kent had an earlier post on Barron.
AP reports:

LAS VEGAS (AP) -- O.J. Simpson's lawyers submitted a supersized appeal to the Nevada Supreme Court, seeking the former football star's release from prison and a new trial in his 2007 Las Vegas armed-robbery case.

The lawyers met a midnight Wednesday deadline to submit a request for the court to review Simpson's claim that 2008 trial in Las Vegas was tainted by his fame and notoriety following his 1995 acquittal in Los Angeles in the deaths of his ex-wife and her friend.
*                                      *                                  *
The appeal stems from arguments rejected last year by Clark County District Judge Linda Marie Bell that Simpson's trial attorney botched Simpson's trial and first appeal to the state Supreme Court, the only appeals court in Nevada.
The case is Simpson v. State, No. 64529.  It is an appeal from the District Court's denial of postconviction relief.  It goes to the Nevada Supreme Court because Nevada has no intermediate appellate court.  The direct appeal was No. 53080, affirmed in 2010.
The Las Cruces [New Mexico] Sun-News reports:

President Barack Obama signed a proclamation Wednesday formally designating nearly half a million acres of land in Doña Ana County as a national monument -- a move that comes after years of heated local debate over the proposal.
*                                  *                                *
"Anyone who's ever seen the Organ Mountains that overlook Las Cruces, New Mexico, will tell you that they are a spectacular sight," he said in a short speech before the signing. "You got massive rocks that jut up 9,000 feet in the air and stretch for 20 miles, like the organ pipes of a giant. And they're home to many of God's smaller creatures, as well. Deer and antelope roam -- falcons, mountain lions."
A personal aside here.  I lived in Las Cruces in my college years (cue the Beatles "There are places I'll remember...), and this description is correct.  But there is more to it  ...

While praised by environmentalists, the move is generating criticism from some lawmakers in the West and local law enforcement agents who see Obama's use of power as a threat to security in a region where the influence of Mexican drug cartels, human smuggling and illegal immigration are all apparent.

Doña Ana County Sheriff Todd Garrison recalls the times his deputies and federal agents were shot at as they pursued suspected drug smugglers through the area that will now be known as the Organ Mountains-Desert Peaks National Monument. He also talked about the dozens of stolen cars that have been used to ferry drugs along pathways that lead through the desert and past border patrol checkpoints.

"If we have no ability to patrol that area, crime is going to increase. It will be akin to the Organ Pipe National Monument in Arizona. I wonder how many years it will be before we have to post signs that say 'Enter at your own risk.' That's my concern," Garrison said.

A proclamation intended to protect the area may have unintended consequences that are just the opposite.

Plaintiffs' Lawyers, Ready for Action

John Walters and Tom Riley suggest in the Weekly Standard how Big Dope might follow Big Tobacco off the tort liability cliff:

[C]ommunities are not helpless before [the legalization] onslaught. Even when the criminal law has been compromised at the state level, resort to civil procedure might offer protection. Legal or illegal, marijuana injures users--researchers call it a "neurotoxin"--and those who distribute it for profit are liable for its known effects. Its production and distribution, after all, are still federal crimes. America's tort attorneys could respond by suing drug retailers for the harm done by their product to particular addicts, then collecting damages for the clients and legal fees for themselves.


If you think trial lawyers made a windfall on tobacco, just wait until they get a handle on marijuana. The scientific and medical evidence against marijuana now dwarfs what we knew about tobacco at the time of the surgeon general's report of 1964. No warning label in the world could shield marijuana growers and sellers from the tsunami of tort liability they should face from distributing a product with so many known harmful effects. 

Tort lawyers versus pot pushers is a match I'd pay good money to see.

Tactics of the Anti-Death Penalty Crowd

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Ann Coulter has a second column in two weeks focused on how the media reports death penalty cases.  This week she goes after the New York Times and its touting of a study which found that 4% of condemned murderers have been falsely convicted.   The study, published in the Proceedings of the National Academy of Science used statistical analysis to come up with the 4% estimate.  As Coulter notes the media takes this estimate and transforms it into "4% of people on death row are innocent" and if you disagree you must hate science.  She also talks about the remarkably biased reporting surrounding the 2011 execution of Troy Davis, which suggested that he was "very possibly innocent."     

Update on Missouri Execution

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As noted in yesterday's and today's News Scans, the execution of Missouri murderer Russell Bucklew has been on-again, off-again yesterday and today.  Missouri apparently sets its executions "old school" with a particular calendar day allowed, in this case today, May 21.  So, the originally planned time was 12:01 a.m., the first minute it was officially May 21.  The last available time is midnight tonight minus the time it takes to perform the execution.

Jim Salter and Jim Suhr report for AP:

BONNE TERRE, Mo. (AP) -- The U.S. Supreme Court weighed arguments Wednesday over whether a Missouri inmate's rare vascular condition would cause him great suffering during what would be the nation's first execution since last month's botched case in Oklahoma.

Russell Bucklew had been scheduled to be put to death at 12:01 a.m. Wednesday for the 1996 killing of a man during a violent crime spree, but Supreme Court Justice Samuel Alito blocked the execution late Tuesday and the full court was considering the matter.

As the clock ticked Wednesday - by law, Missouri has a 24-hour window to carry out a scheduled execution - attorneys for Bucklew and the state parried in court filings about his medical circumstances.

News Scan

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Convicted Killer Granted Last Minute Stay of Execution: Convicted murderer Russell Bucklew was able to avoid execution Tuesday evening after receiving a stay just an hour before he was scheduled to die by lethal injection.  Fox News reports that Supreme Court Justice Samuel Alito granted the last minute stay out of concern that a rare medical condition may cause Bucklew to experience "unnecessary pain and suffering".  According to doctors, Bucklew, who raped his ex-girlfriend after killing her new beau in front of four children, suffers from a condition that causes weakened and malformed blood vessels, coupled with tumors in his nose and throat. 

Woman Outraged After Rapist Ex-Husband Sentenced to Home Detention: An Indiana woman is outraged after a judge sentenced her ex-husband to eight years of home confinement rather than sending him to prison after a jury found him guilty of raping her.  The Associated Press reports that 52-year-old David Wise was convicted last month of one count of rape and five counts of criminal deviate conduct, all felonies punishable by six to 20 years behind bars.  Prior to sentencing, the judge told the woman it was time to forgive her attacker and move on, crediting Wise with time served for his 24 days in jail following his arrest. 

MO Man Sentenced to 50 Years for Crime Spree: A Kansas City man has been sentenced to 50 years behind bars for his role in a sixth-month crime spree in 2012 that included several counts of rape and kidnapping.  Matt Campbell of the Kansas City Star reports that 24-year-old Kevyn Jennings pled guilty to more than a dozen felonies and was ultimately sentenced to 30 years for two counts of rape and sodomy and an additional 20 years for 16 other counts including kidnapping and robbery.  Both sentences will run consecutively.

The Barron Fight

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The WSJ has this editorial today (subscription required) with the above title:

Senator Rand Paul plans a filibuster Wednesday against judicial nominee David Barron for writing secret memos supporting the legality of using a drone to kill terrorist Anwar al-Awlaki. That's a reason to support Mr. Barron in our view, though there are other reasons to defeat his nomination.
*                                         *                                      *
The real problem with Mr. Barron is his liberal judicial philosophy. In 2001 Mr. Barron wrote an article for the Duke Law Journal criticizing the "new federalism" because central authority can make better decisions for localities than the locals can. The revival of federalism is dangerous, he wrote, because it prevents us from "thinking creatively about ways central governments can promote local power."

In 2006 Mr. Barron wrote "What's Wrong With Conservative Constitutionalism" for the Harvard Law and Policy Review, laying out a theory of "progressive constitutionalism" and judicial activism that would make Sonia Sotomayor blush.

Obama's Tuskegee

Once upon a time in America, a select group of people were invited to depend on the federal government for medical treatment for vaguely described but serious symptoms. These people were not in the best of health to start with, and they trusted the good faith and truthfulness of their solicitors.  History told them the federal government was on their side.  Several hundred signed up. And, indeed, they did receive some kinds of medical care  --  in many instances more than they otherwise would have  --  plus hot meals.

When this started in 1932, the government withheld a key fact:  The new "patients" had syphilis, and the program they entered was designed, not to cure it, but simply to track its progression, which would be examined in autopsies. These goals did not change after penicillin was shown to be an effective cure in 1947. The "patients" (actually subjects) were never told about penicillin.  Deceit was not a barrier in administering this program; indeed it was essential to its administration.

When the Tuskegee experiment on black sharecroppers ended in 1972, 28 of the men had died directly of syphilis, 100 were dead of related complications, 40 of their wives had been infected, and 19 of their children had been born with congenital syphilis.  To my knowledge, no one ever went to jail for it  --  a national disgrace. 

Today, from the head of the federal government, the Commander-in-Chief, the man who wears compassion on his sleeve, do we hear an echo? Well, actually, we don't hear much of anything but tardy, forced, standard-issue indignation, although occasionally we get Veterans Administration updates from the ever-chipper Jay Carney.

Jim Comey Isn't Fooled

When President Obama named James Comey to head the FBI about a year ago, I praised the choice.  Among other things, having been an AUSA with him, I knew of Jim's independence and honesty.  I noted that he has "the integrity and apolitical nature that is essential to the FBI and  --  especially now  --  the Department of Justice."

I feel vindicated this week, now that Jim said pretty bluntly that he's not buying the President's phony line that we have al Qaeda "on the run."  His interview with the NYT makes this clear:

By Mr. Comey's own account, he [initially] brought to the job a belief, based on news media reports, that the threat from Al Qaeda was diminished. But nine months into his tenure as director, Mr. Comey acknowledges that he underestimated the threat the United States still faces from terrorism.

"I didn't have anywhere near the appreciation I got after I came into this job just how virulent those affiliates had become," Mr. Comey said, referring to offshoots of Al Qaeda in Africa and in the Middle East during an interview in his sprawling office on the seventh floor of the J. Edgar Hoover Building. "There are both many more than I appreciated, and they are stronger than I appreciated."

Based on what he now knows, Mr. Comey said, he is convinced that terrorism should remain the main focus of the Federal Bureau of Investigation. 

Whew!  I'm happy and comforted that the head of the FBI understands that there are more important federal priorities than reviewing how allegations of rape are handled in Missoula, Montana.

News Scan

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New York Experiencing Surge in Heroin Sales: At a time when Attorney General Eric Holder is pushing for shorter sentencing for convicted drug dealers, New York City is experiencing what law enforcement officers say is the highest level of heroin trafficking in more than 20 years.  J. David Goodman of the New York Times reports that nearly 35 percent of heroin seized by the DEA nationwide since October was confiscated in New York, in years prior, that state was accounting for roughly 20 percent of heroin seizures.  Along with an increase in trafficking, law enforcement officers have also noted a sharp increase in the number of overdose deaths as a result of the wide availability of heroin.

FL Man's 1,000 Year Sentence Upheld: A Florida appeals court has upheld the 1,000 year sentence handed down to a Jacksonville man convicted of raping three women as a juvenile more than 30 years ago.  David Boroff of the New York Daily News reports that attorneys for Arthur Franklin challenged his 1,000 year sentence citing a 2010 Supreme Court decision that made it illegal to sentence juveniles to life without parole unless they had been convicted of murder.  Franklin, who was 17 at the time of the crime, kidnapped and raped the women 31 years ago, resulting in 20 felony convictions including armed sexual battery, armed robbery and aggravated assault.

Judge Denies Request for Stay of Execution: A federal judge has refused to issue a stay of execution for a Missouri inmate scheduled to be executed by lethal injection on Wednesday.  Kevin Murphy of Reuters reports that 46-year-old Russell Bucklew, convicted of first-degree murder and rape in 1996, filed a motion to halt his execution based on the claim that he has a rare health condition that may cause him to experience extreme pain and suffocation as a result of lethal injection.  The judge also denied Bucklew's request to have his execution videotaped to record what he believes will be 'evidence of his suffering'.  Update: Mark Berman reports in the WaPo that a stay was granted by a panel of the Eighth Circuit, vacated by that court en banc, and granted again by Justice Alito (Circuit Justice for the Eighth) pending further order of the Supreme Court.

The "heckler's veto" strategy for obstructing justice in the worst murder cases took a hit yesterday.  The Georgia Supreme Court rebuffed an attack on a state law that permits compounding pharmacies to supply the drugs needed for a humane execution without getting a deluge of hate mail and a pack of angry demonstrators outside their offices.

The Eleventh Circuit has described the crimes of Warren Lee Hill thusly:

In 1990, while serving a life sentence for murdering his girlfriend, Hill murdered another person in prison. Using a nail-studded board, Hill bludgeoned a fellow inmate to death in his bed. As his victim slept, Hill removed a two-by-six board that served as a sinkleg in the prison bathroom and forcefully beat the victim numerous times with the board about the head and chest as onlooking prisoners pleaded with him to stop. Although in jail for life for one murder, Hill continued to kill.
Given that a second life sentence would be meaningless, the State of Georgia has two choices to punish Hill for the second murder: (1) death, or (2) no punishment.  The State has made the obvious choice, but Hill has managed to avoid his deserved punishment to date.  His latest claim is that the State must disclose the suppliers of the lethal injection drugs, and he got an injunction from a state trial court on that claim.  Yesterday, the Georgia Supreme Court reversed in a very thoughtful and well-reasoned opinion.
What do we know about the interplay between mental illness and violence?  Contrary to the claims made by many mental health professionals, people with mental illness do appear to have an increased risk for violence compared to the general population, although that risk varies depending on how broad or narrow mental illness is defined.  Additionally, the risk is much smaller than generally conceived of by the lay public.  Most importantly, the risk appears strongly tied to the use of drugs and alcohol, the rates of which can be exceedingly high among some populations with mental illness. 

We also know that medication compliance among those with severe mental illness, including schizophrenia and bipolar disorder, tends to be poor.  This if often attributed to a lack of insight by those with these severe illnesses that they indeed have a medical illness that requires consistent treatment.  But another reason less often stated in official publications but discussed professionally is the fact that many psychiatric medications have bad side-effects, including significant weight gain, sedation, and gastrointestinal discomfort to name but a few. 

Despite these limitations, medication remains the primary treatment for most forms of severe mental illness.  In fact, they are vital.  Compared to no treatment at all, consistent use of medication in the treatment of psychotic disorders, such as schizophrenia, is linked with a range of better outcomes, including symptom severity, substance abuse, homelessness, reduced hospitalizations and many others.

Now comes a new study showing that consistent use of medication is associated with a reduction of violence among those with schizophrenia and bipolar disorder.  Let's just let the findings speak for themselves:


In 2006--09, 40 937 men in Sweden were prescribed antipsychotics or mood stabilisers, of whom 2657 (6·5%) were convicted of a violent crime during the study period. In the same period, 41 710 women were prescribed these drugs, of whom 604 (1·4 %) had convictions for violent crime. Compared with periods when participants were not on medication, violent crime fell by 45% in patients receiving antipsychotics (hazard ratio [HR] 0·55, 95% CI 0·47--0·64) and by 24% in patients prescribed mood stabilisers (0·76, 0·62--0·93). However, we identified potentially important differences by diagnosis--mood stabilisers were associated with a reduced rate of violent crime only in patients with bipolar disorder. The rate of violence reduction for antipsychotics remained between 22% and 29% in sensitivity analyses that used different outcomes (any crime, drug-related crime, less severe crime, and violent arrest), and was stronger in patients who were prescribed higher drug doses than in those prescribed low doses. Notable reductions in violent crime were also recorded for depot medication (HR adjusted for concomitant oral medications 0·60, 95% CI 0·39--0·92).

DOJ Extorts Another Guilty Plea

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We've all heard by now that prosecutors charge innocent defendants by the hundreds or thousands, then force them to forego their right to a trial by their peers. The guilty pleas thus produced don't reflect actual guilt, there being none (or, maybe, in an eensy-teensy number of cases, just a little).  They reflect the fact that prosecutors, basically because of character defects (defects that mysteriously vanish when they move on to make actual money as defense lawyers) can threaten defendants with draconian sentences.  Such mind-bending punishment makes it just too risky for Mr. Innocent to go to trial.

I'm sad to report that the fascists did it again today, this time to a foreigner who, so far as news reports disclose, was not so much as afforded a translator.

Is there anything these people won't do?

News Scan

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Move to Bring Back Firing Squad in Utah: A Utah lawmaker has announced his interest in reviving the firing squad as an option for executions. The Associated Press reports that Rep. Paul Ray believes that the firing squad is a more humane form of execution and is joined by lawmakers in other states who suggest that it is also the cheapest method. Utah eliminated the firing squad as a method of execution in 2004, however, inmates sentenced to death prior to that date still can choose it as an option. 

Jurors Outraged Over Killer's Early Release: A Texas man sentenced to life in prison for the murder of an elderly woman has been released from prison early, a decision that has upset some of the jurors who found him guilty nearly 20 years ago.  The Associated Press reports that Bernie Tiede was found guilty in the 1996 murder of an 81-year-old widow who body was found in a freezer at her home nine months after her disappearance.  Tiede wasn't supposed to be eligible for parole until 2027, but the District Attorney presiding over the case supported his early release citing new evidence indicating that Tiede was abused as a child. 

Alabama to Allow Death Penalty for Killers Who Violate Protection Orders: A new Alabama law passed earlier this year will allow the state's courts to sentence a murderer to death if the victim had a protection-from-abuse (PFA) order against the murderer prior to their death.  The Associated Press reports that the law, which goes into effect in July, was designed to protect people who have been involved in an abusive relationship.  The law has been named "Kelley's Law" in memory of Kelley Rutledge-Johnson, who was murdered in 2001 by her estranged husband who was barred from contacting her by a PFA.

Terrorist Convicted in NYC

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A federal jury convicted  Mustafa Kamel Mustafa this afternoon of providing material support to terrorism.  The story is here.

This is not the time to debate whether the trial should have been before a military tribunal; instead, it's the time to congratulate the US Attorney's Office for putting this menace away.  He will never see daylight again.

It is the time, however, to anticipate the defense bar's wailing that his conviction reflects erosion of the First Amendment, American paranoia after 9-11, and Islamophobia.  And no, I'm not saying he had no right to a defense; of course he had that right.  What I'm saying is that the rest of us have at least an equal right to criticize pure baloney, especially when we're paying for it.  The First Amendment exists for more than just Jihadists.
On May 12, the Commonwealth Court of Pennsylvania (an intermediate appellate court, see below) decided a case on a constitutional right of self-defense.  The case of Madziva v. Philadelphia Housing Authority, No. 1215 C.D. 2013, arose in the unusual context of a public employee's challenge to his discharge.

Madziva was a property manager for a public housing agency.  One day, a resident's unhappiness with the handling of her transfer request resulted in a minor scuffle in which the resident was the aggressor, and Madziva used a minimal amount of force to extricate himself.  The agency's personnel manual had a flat prohibition on fighting and said self-defense was no excuse.  The Pennsylvania Constitution provides in Article I, Section 1 (emphasis added):

All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.

The conflict between the manual and the Constitution resulted in a firing, as it should have.  Unfortunately, instead of firing the bonehead who wrote the manual, they fired the manager who used reasonable force to defend himself from an assault.
When pot legalizers keep telling us that dope just ain't that bad, sooner or later the message gets through.  And  acted upon.  

From Healthline News:  "College Freshmen Drive and Get in Cars with Drivers After Marijuana Use."

Today's teens face many challenges when trying to drive safely, whether it's distracting texts or loud car companions. But many teens also report getting behind the wheel after drinking or using marijuana, or getting in the car with a driver who's under the influence, adding yet another obstacle on the road to safety.

I thought it was pretty interesting that the study was conducted in Washington state, in which  the Pot Is Wonderful lobby has been both active and successful.

I also have no doubt what the reaction to this story will be, because I've seen it before: To dismiss or minimize it, or claim that the authors are really fascists masquerading as scientists.  Legalizers simply will not brook dissent from The Orthodoxy.  

Another Prosecution Priority for DOJ

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My last post suggested that the Justice Department prosecute at least some of the thousands of Obamacare applicants who have intentionally falsified statements of their income in order to bilk the taxpayers for even more than they're being bilked out of already.  

There is second priority I would suggest for DOJ examination  --  a priority that, it seems, the Department may have taken up.  As the New York Times reports

The Department of Veterans Affairs' inspector general is working with federal prosecutors who are trying to determine whether criminal violations occurred at a medical center in Phoenix accused of falsifying data or creating secret waiting lists intended to hide months long delays for veterans to see doctors, a top official told a Senate committee on Thursday.

I can already hear our friends in the defense bar unpacking their standard lines, i.e., the people creating the concocted waiting lists had munched one Twinkie too many, or were victims of "bureaucracy survival syndrome" (a better-off cousin of "urban survival syndrome"), or what have you.  I also have my doubts that the Attorney General will follow through with any prosecutions, since it would be politically maladroit to expose how the Administration has actually treated veterans (while yammering endlessly about compassion etc.).

Still, one can hope.

A New Prosecution Priority for DOJ

The lead story in the Washington Post today reports that possibly a million applicants for Obamacare subsidies may have "misstated" their income:

The government may be paying incorrect subsidies to more than 1 million Americans for their health plans in the new federal insurance marketplace...

The problem means that potentially hundreds of thousands of people are receiving bigger subsidies than they deserve. They are part of a large group of Americans who listed incomes on their insurance applications that differ significantly -- either too low or too high -- from those on file with the Internal Revenue Service.

Some of the under-reporting of income is sure to be inadvertent or mistaken; anyone who has wrestled with a Form 1040 knows that getting everything right is difficult. But we all know there's a strong likelihood that hundreds of thousands of applicants have intentionally understated their income to squeeze the government for fatter subsidies.

At the base of the financial crisis a few years back was something similar:  A huge number of people lied about their incomes and assets to obtain mortgages for which they were unqualified.  When the housing bubble burst, they couldn't pay, and the enormously painful Great Recession was underway.

DOJ should not allow something like that to happen again.  Whether one loves Obamacare or hates it, no one has the right to bilk it by cheating.  A few hundred highly publicized false statement prosecutions would go a long way toward keeping applicants honest and, therefore, keeping the program as solvent as it's going to get. 

Massachusetts, Progressive Leader

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Massachusetts prides itself on its progressive legal system.  No death penalty (which is why blood-soaked child killer Dzhokar Tsarnaev can face the death penalty only in federal district court).  "Medical" pot available, with recreational pot apparently coming soon.

As this  ABA Journal article explains, Massachusetts is also the leader in another category in criminal law, all depending on how you define "leader."

The article is titled, "Courthouse custodians make more money than new prosecutors in this state."  It begins:

Public defenders and prosecutors in Massachusetts are so poorly paid that they are among the working poor, according to a study by the state bar association.

Assistant district attorneys in the state earn $37,500 a year and public defenders earn $40,000, according to the study (PDF) by the bar association's Blue Ribbon Commission on Criminal Justice Attorney Compensation. Starting pay for these lawyers should be raised to $55,0000, the report said.

"Sadly, the lowest-paid person in a Massachusetts courtroom is a newly minted assistant district attorney," the report says. "Working up from the bottom, the next-lowest-paid employee in the courthouse is the custodian. And the third-lowest-paid person in the courtroom is the public defender."

Meanwhile, unless the en banc First Circuit decides otherwise, Massachusetts will be doling out a fortune for a sex change operation for a murderer.

Compare this story about how the traitorous Bradley Chelsea Pvt. Manning is in line for expedited medical services for his sex change  --  at what is certain to be enormous taxpayer expense  -- with this story about how, supposedly for lack of funds, veterans who fought for their country get wait-listed to die.

Then tell me the world is not upside-down.
Kent quoted a Harvard professor as saying that, "Opponents of free speech have chalked up many campus victories lately as ideological conformity marches on."

And so it is, as this week has seen a wave of commencement speakers withdrawing under pressure or having their invitations revoked because, even though in days or yore they would have been viewed as liberal heroes, at some point in their careers, they said or did something that might give offense to the latest snarling Grievance Group.

In honor of the newly aggressive spirit of Grievance Group Fascism, I present the following "campus map," courtesy of Powerline.  Note that there still is a place for traditional American values.

Hurt Feelings Zone copy
The US Supreme Court has been considering for some time now the Ninth Circuit's decision of Arizona murderer Richard Hurles.  The case has been on the Supreme Court's conference list -- the list of cases the Court considers to either let stand, take up for full briefing and argument, summarily reverse, or vacate and send back for reconsideration in light of a later decision -- an amazing 22 times, each time with no decision.  The Supreme Court case is Ryan v. Hurles, No. 12-1472.  The case involves a judicial bias claim.

Today, surprisingly, the Ninth Circuit withdrew its prior opinion and issued a new one.  The new one does not materially change the part under the Supreme Court's review, but it remands to the District Court to reconsider one ineffective assistance issue in light of Martinez v. Ryan.

One More Note on Gallup

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Kent has put up the Gallup poll on whether Americans view the death penalty as morally acceptable.  Now that I take a look at the poll more closely, there is one point in particular that stands out.

How many times in the last couple of years have we heard that the country is turning against the death penalty.  Dozens?  Hundreds?  Who knows.  

Now look at the poll.  What does it tell you?  It tells you that the percentage viewing the DP as morally acceptable has risen in the last two years by 3 points, from 58 to 61, while the percentage viewing it as unacceptable has fallen by 4 points, from 34 to 30.  In other words the margin favoring the DP as acceptable over unacceptable has gone from 24 points to 31 points, an increase of 7 points.  

To put it differently, the margin favoring the DP as acceptable is 29% higher now than it was two years ago.

What does that tell you about how truthful abolitionists are being when they bellow that support for the DP is collapsing?

Yes, well, moving right along........................  

News Scan

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NY Rape/Murderer Gets Life Sentence: A New York man has been found guilty and sentenced to life without parole for raping a young girl and killing her mother after cutting off his court-ordered GPS ankle monitor last year.  The Associated Press reports that 30-year-old David Renz, who was wearing the GPS monitor as a condition of pretrial release for federal pornography charges, carjacked the woman and her 10-year-old daughter as they left a gymnastics class.  Renz strangled and stabbed the woman as she fought him off in an attempt to stop him from raping her daughter, the young girl was able to escape the vehicle and was soon rescued by a passing motorist. 

New Jersey Governor Signs Bill to Increase Penalties for Sex Offenders: New Jersey Governor Chris Christie has signed legislation which would require longer sentences for sexual predators who target children.  Matt Friedman of The Star-Ledger reports that the bill, known as the Jessica Lunsford Act (A892), will take effect immediately will require judges to sentence anyone convicted of aggravated assault against a child under the age of 13 to a minimum sentence of 25 years in prison without parole.  The law was named for a 9-year-old Florida girl who was raped and murdered by a convicted sex offender in 2005.

Mom Convicted of Murdering Children Sentenced to Life: A Florida jury has found a woman guilty of two counts of first-degree murder for the shooting deaths of her children in 2011.  The Associated Press reports that jurors took less than two hours to find 53-year-old Julie Schenecker guilty of murdering her teenage son and daughter, a crime she claims was committed due to her struggle with a severe mental illness.  Shortly after the jury reached their verdict, Schenecker was sentenced to two consecutive life terms .

Jeffrey Jones has this report for Gallup, with the above title.

This report comes from Gallup's annual survey on moral acceptability of various issues, and Americans' views on the death penalty have proven remarkably stable.  I noted this survey on the blog in 2010, and not much has changed.  Here is an updated graph.  Click for a larger view.

Given that current law only allows for the death penalty for an aggravated subset of murders and only after considering the defendant's case in mitigation, I consider the sum of "acceptable" and "it depends" to be the proper measure of support for the death penalty as it exists in America today.  The "depends," BTW, is a "volunteered" answer, given by people who break out of the choices offered by the question to give their own.  These numbers would surely be higher if the choice were offered in the question.

The variation over the last 13 years has barely budged outside the 4% sampling error confidence interval.

Last August, Gallup Editor-in-Chief Frank Newport made this short video about how polling shows that public opinion is highly changeable on some issues while it changes very little on others.  Of all the issues Gallup surveys on, Newport chose the death penalty as his example of stability of public opinion.

News Scan

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Condemned Killer Loses Appeal: A Texas man sentenced to death for murdering his wife and two stepsons will not have his appeal considered by the state's highest court.  The Associated Press reports that 40-year-old Robert Sparks stabbed the young boys and their mother multiple times during a brutal attack in 2007.  Sparks attempted to appeal his sentence based on the claim that a witness gave false testimony during trial regarding his prison classification if the jury choose life without parole rather than a death sentence, a claim Dallas County prosecutors say simply isn't true.  Update:  The opinion is here.  This is a successive petition for writ of habeas corpus, and the court decided that Sparks does not meet the statutory criteria for a successive petition.

Pennsylvania Man Sentenced to More than 900 Years in Prison: An 81-year-old Pennsylvania criminal convicted of sexually abusing a young girl for several years has been sentenced to a prison term of 935 to 1,870 years.  The Associated Press reports that Thomas Holliday began abusing the girl when she was 14 years old and videotaped nearly every assault, he was ultimately convicted of 234 crimes in January, including hundreds of counts of creating and possessing child pornography.  The judge in the case indicated that he sentenced Holliday so severely to serve as a warning to other child predators.

CA Man Convicted in 1987 Cold Case Murder: A California man agreed to plead no-contest to a murder he committed more than 25 years ago.  DNA evidence linked him to 1987 rape and strangulation murder of 28-year-old Roshun Broadnax.  Malaika Fraley of the Oakland Tribune reports that 55-year-old Eddie Brown, a registered sex offender, was originally a suspect in the killing, but authorities were not able to find enough evidence linking him to the crime.  Oakland police reopened the case in 2012 and were able to link Brown to the murder through a DNA match to a sample collected from under the victim's fingernails.  Brown will be sentenced in September to 25 years to life in prison.

Vocations that Lead to Jail

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Having been a federal prosecutor in the Reagan, Bush and Clinton administrations; and having become increasingly curious about the culture and sociology of crime, I was trying to figure out the other day which vocation is the surest route to jail.  The three that came to mind are below.  See if you can guess:

a)  Be a smack pusher.
b)  Be a coke pusher.
c)  Be a car thief.


Q: When Is Murder Not Murder?

A:  When there is believed to be political advantage in denying that it's murder.

I bring this up only because of the surreal claim from airhead commentator Eleanor Clift that Ambassador Chris Stevens was not murdered in Benghazi and "instead" died of smoke inhalation. 

Hey Eleanor, Your Brilliance, how did it come to pass that he died of smoke inhalation?

a)  Some ten year-olds decided to roast marshmallows outside the embassy gate and a big wind came up;
b)  An unreported volcano exploded, and it sent a sudden gust of smoke through Mr. Stevens' window;
c)  A bunch of armed Jihadists torched the embassy and had the Ambassador pinned in the safe room until it became so filled with smoke that it asphyxiated him.

Actually, of course, there is no political advantage in denying the obvious, but when it's Ideology Uber Alles, as it is with Ms. Clift, this is what happens.
John Conyers of Detroit, who will be 85 tomorrow, is the top Democrat on the House Judiciary Committee.  Although the Democrats are in the minority in that chamber, being the Ranking Member is an influential position (as Chuck Grassley proves daily in his counterpart position on the Senate Judiciary Committee).

But Rep. Conyers might not be there for long.  Amazingly, he did not submit enough legal signatures to qualify for the ballot.  He will probably conduct a write-in campaign, but the chances there are problematic.  He could also decide that, at 85, enough of Washington is enough.

If Conyers ever failed to vote for a bad piece of legislation, I can't remember what it was.  But I have three nice things to say about him.  He's focused and energetic for his age; he's a gentleman, having always been gracious to me when I testified (inevitably against his position) before his Committee; and, as Chairman in the late 1980's, he instigated and presided over the impeachment of corrupt then-federal district judge Alcee Hastings, who, like Conyers, is African-American. 

Of course, there were charges that Hastings was on the hook only because of racism.  Conyers rose to disagree, in words we would do well to remember today: "The principle of equality requires that a black public official be held to the same standard that other public officials are held to....Just as race should never disqualify a person from office, race should never insulate a person from the consequences of wrongful conduct."
In a word, no.

According to an NBC News poll taken May 7 - May 10 (i.e., in the immediate aftermath of the failed execution and at the height of the press coverage about it): 

A comfortable majority of those questioned -- 59% -- said they favor the death penalty as the ultimate punishment for murder, while 35% said they are opposed.

That split is in line with surveys done before Lockett's death in the last two years, and also reflects the erosion of support for capital punishment since the 1990s, when it was more than 70%.

"I don't think this fundamentally altered views about the death penalty," said Bill McInturff of Public Opinion Strategies.

Just so.  The most recent Gallup poll had support at 60%, and a poll six weeks ago by Pew had it at 55%.

I'm a little surprised.  Given the explosion of media outrage (articles collected by SL&P, here), I thought support would take a hit.  Immediate facts usually tend to affect opinions about the DP, such as in the aftermath of the Oklahoma City massacre and the Boston Marathon bombing.  I'm glad to see that, according to this poll, at least, Americans continue to understand that there are some crimes for which a mere prison term, no matter how long, makes a joke of justice.
Well, actually, there are consequences.  Only not to the criminal; instead to the next person he harms or kills.  In this case, it was a beautiful girl named Stephany Flores.

Just as the wrongful conviction and punishment of the innocent is a grievous loss, so is the failure to convict and punish the guilty.  Joran van der Sloot murdered Natalee Holloway a few years back, but escaped courtesy of a bumbling system of justice. Another human being with hopes and dreams and  --  once  --  a future, paid the price when he walked away.

This is the unfortunate fact our friends on the other side seem unable or unwilling to grasp:  Because every criminal justice system is created by human beings, every one of them will err.  Period.  The only way to insure never punishing the innocent is to never punish anyone. That will have very ugly consequences, consequences that won't disappear simply because we refuse to look at them.

For the subject matter discussed on this blog, the sole question adult life permits is what tradeoff's we should seek between tilting the rules of criminal procedure a little more toward the prosecution or a little more toward the defense. But the idea that we'll achieve Sweetness and Light if we just keep tilting them toward the defense is nonsense, and dangerous nonsense. As the short life of of Ms. Flores attests, someone, often without the means to defend herself, will wind up paying the price for our obtusely proud but morally bankrupt preening.

News Scan

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Bill to Distribute Condoms in Prison Clears Another Hurdle: A bill aimed at distributing condoms to inmates in California prisons has passed the state's Senate Public Safety Committee and may soon head to the Governor's desk for approval.  Jennifer Chaussee of Reuters reports that the bill is moving through the Senate committee despite an existing law that criminalizes sex acts between inmates regardless of consent.  Governor Jerry Brown vetoed a similar measure last fall.

MO High Court Upholds Death Sentence: A Missouri man convicted of brutally murdering an elderly woman more than 20 years ago will remain on death row after the state's Supreme Court upheld his conviction and death sentence.  Gene Hartley of KSPR 33 reports that Walter Brown stabbed the 81-year-old woman more than 50 times visiting her home to borrow $20.  Barton appealed his sentence claiming ineffective assistance of counsel. This is the fifth time Brown's case has gone to the state Supreme Court.  He has been sentenced to death three times for the murder.  
Felon Given Early Release Among Murder Suspects
: Three California men accused of killing a farmer last week have criminal records dating back several years, including one man who was released from jail just one month ago.  Pablo Lopez of the Fresno Bee (subscription) reports that 38-year-old George Salwasser Jr., a well known farmer and father of four children, was shot to death Thursday evening when he discovered a stolen truck on his property being stripped for parts by the suspects.  One of the suspects, Fabian Mansanalez, was sentenced in August 2012 to three years in jail after pleading no contest to felony battery charges, but was released early because of time served and good-time jail credits.  If convicted, each criminal faces a minimum of 50 years to life in prison.

America's Political Prisoner

I wrote earlier about how the Administration's on-the-fly (and false) explanation of the Benghazi murders led to the imprisonment  --  on a "parole violation"  -- of Nakoula Nakoula.  Mr. Nakoula had the misfortune of having produced the snarky Internet video, the "Innocence of Muslims," that got dragooned as the State Department's excuse for the attack on our embassy.  The video whipped up a spontaneous mob, so the tale would be told.

Only it was a classic Inside-the-Beltway cover story.  There never was a spontaneous mob.  There was a planned terror attack, one the embassy was ill-equipped to repel because the State Department for months had been turning a deaf ear to requests for more security.

That would have made a really, really bad story for an Administration that's been telling us al Qaeda is on the run, and an even worse story for the head of the bungling, distracted State Department, a lady rumored to have political ambitions.

What to do?  What else  --  create a fall guy!!!  And who better than a shady swindler with a funny name like "Nakoula Nakoula."  Put it on him and take him off to the slammer.

The only real problem is that America, up to now, doesn't have much of a tradition of taking political prisoners.

What Clemency Will Actually Look Like

The Justice Department, and Deputy Attorney General James Cole in particular, have been broadcasting loud and clear that they intend aggressively to seek out, and recommend the granting of Presidential clemency for, hundreds if not thousands of federal inmates.  We have been assured, of course, that only non-violent inmates will be included, and that there will be no or negligible risk to public safety.

Do you believe that?

One way of assessing how future discretionary release decisions are likely to be made is by looking at how the present ones are made.  And that's where an item in today's News Scan comes in.  It referred to a Fox News story to the effect that, last year,  "Immigration and Customs Enforcement (ICE)  released more than 36,000 'convicted criminal aliens' who represented a total of 88,000 convictions." 

I think the story is more notable than just recounting it in the News Scan might suggest, not least because it's a window into how much we can trust the Administration's promise that its clemency grants will not degrade our safety. 
Sen. Grassley's floor statement on the Smarter Sentencing Act makes me think he knows, or at least suspects, that the Act will be coming up for a vote on the Senate floor.

Will it?

Only Harry Reid knows for sure.  A CQ Roll Call story (sorry, it's behind a paywall, so I cannot provide a link) seems to think it a good possibility, but there are, as ever with the Senate, complications.

The basics of the Roll Call story follow the break.
After the failed execution two weeks ago in Oklahoma, the usual voices called for a halt in executions in other states that have had no such problems.  The U.S. Court of Appeals for the Fifth Circuit rejected that claim yesterday in the case of Texas murderer Robert James Campbell.  The opinion is here.

Today the same court granted a stay of execution to allow Campbell to litigate his retardation claim.  Mark Berman has this story for the WaPo.

Campbell is able to litigate his Atkins claim this late because of nondisclosure by the state prison authorities of tests indicating retardation.  The court notes that its action is "[b]ecause of the unique circumstances of this case," so it is not an indication for other cases.

In its 1996 reform of habeas corpus law, Congress placed severe restrictions on the ability of inmates to file a second federal habeas petition after one has been rejected.  This is one of the very few cases found to meet the stringent criteria.

AP has some more info on the planned, but now cancelled, execution here.

Chuck Grassley Makes the Case

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Chuck Grassley is the Ranking Member on the Senate Judiciary Committee, and has taken the lead in fighting the Smarter Sentencing Act.  Although the Act made it out of Committee by 13-5, Senator Grassley has not been without his victories.  He introduced successful amendments to add three new mandatory minimums for crimes other than drugs, proving  --  it would seem to me  --  that the Committee remains of the wise view that judges simply are not to be trusted with 100% discretion 100% of the time.  Congress has every right and reason to constrain judges who simply can't or won't see straight on sentencing issues.  (Those who think that no such judges exist haven't spent a lot of time in court).

Senator Grassley and his colleagues, notably the brilliant and super diligent Sen. Jeff Sessions of Alabama, also helped kill in its cradle an even more irresponsible bill sponsored by Sens. Patrick Leahy and Rand Paul.  That bill would have effectively put an end to every mandatory minimum in the federal code. Between that and the "advisory only" Guidelines (which don't much get followed anyway), liberal extremists and the defense bar would have succeeded in completely undoing determinate sentencing  --  the Reagan Administration's signal achievement in criminal law.  

Senator Grassley summarized the case for preserving existing mandatory minimum sentencing in his prepared floor speech, which follows the break.

News Scan

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Death Sentence Upheld for Double-Murderer: A divided Ohio Supreme Court upheld the death sentence for a Cincinnati man convicted of murdering two teenage girls in 2010.  WLWT 5 reports that Anthony Kirkland was convicted of aggravated murder and attempted rape for the killings of a 14-year-old girl in 2006 and a 13-year-old girl in 2009, prior to trial, Kirkland pled guilty to two additional murders he had committed and was given two life sentences.  Kirkland was appealing his death sentence amid claims that statements made by the prosecutor during the sentencing phase of his trial pressured jurors into returning a death sentence.

Thousands of Criminals Freed While Awaiting Deportation: A report released on Monday by the Center for Immigration Studies, a Washington-based advocacy group, has revealed that the Obama administration has released thousands of convicted criminals while they were awaiting deportation proceedings.  Fox News reports that in 2013, Immigration and Customs Enforcement (ICE)  released more than 36,000 "convicted criminal aliens" who represented a total of 88,000 convictions.  While most of the convictions were for lower-level or non-violent offenses, a large number were much more serious in nature including 193 homicides, 426 sexual assaults, and 303 kidnappings.  ICE has responded to the report, and said that many of the criminals were released under restrictions like GPS monitoring and supervision.

Convicted Mass Murderer Appeals Death Sentence: A Pennsylvania man convicted and sentenced to death for murdering four people in 2010 is appealing his sentence to the U.S. Supreme Court, claiming that the verdict slip presented to jurors was unfairly written.  Riley Yates of The Morning Call reports that 40-year-old Michael Ballard, who had been on parole at the time of the murders for a previous killing, brutally stabbed to death his former girlfriend and two members of her family as well as a neighbor tried to help.  Ballard pled guilty to all four charges of first-degree murder, but believes jurors should have been made aware of his alleged brain damage and abusive childhood prior to sentencing.

Do Heartland Republicans Oppose the SSA?

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You better believe it.

Three of the most distinguished and experienced members of the Senate, Chuck Grassley, John Cornyn and Jeff Sessions, today wrote an all-colleagues letter explaining why the Smarter Sentencing Act should be defeated.

I'm a biased audience, but I found the letter powerful and convincing.  In particular, it explains that, with so many of the SSA's objectives having been achieved in just the last few months, the prudent thing to do now is defer action while the country has a chance to assess how lighter sentencing is going to work  --  in particular, whether the massive promised savings will materialize, and whether, contrary to common sense and fifty years of experience, we'll be every bit as safe putting criminals back on the street as we have been locking them up.

I also found it enlightening how often the Senators quoted and cited DEA Administrator Michele Leonhart.  Ms. Leonhart's courageous and revealing testimony last week, refusing to toe the Administration's line, was an eye-opener about what lighter sentencing will really do in the world of drug trafficking.

The Senators' letter follows the break.

News Scan

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Stay Denied for Texas Murderer: A Texas man convicted of murder and sentenced to death more than 20 years ago will be executed Tuesday after a federal judge rejected his bid for a stay of execution.  Manny Fernandez and John Schwartz of the New York Times report that attorneys for 41-year-old Robert Campbell asked for a stay after Oklahoma's botched execution a few weeks ago.  Texas Attorney General Greg Abbott, opposed the stay, noting that recent problems in another state following an entirely different execution procedure have nothing to do with Texas.  Campbell was sentenced to death in 1992 for the abduction, rape, and murder of a Houston woman.

Ohio Inmate Population Increasing: The Ohio prison system is experiencing a drastic increase in inmates despite several attempts to keep inmate numbers under control through sentencing reforms which include early releases, more community rehabilitation programs, and a return to "good time" credits.  Alan Johnson of The Columbus Dispatch reports that one out of every 175 adult Ohio residents is currently incarcerated at a cost of $22,836 per inmate annually.  Prison officials anticipate population increases to continue, citing a spike in heroin cases and longer sentences for serious felonies as possible contributing factors.

Montana Death Penalty Dispute Leads to Trial: A dispute between a pair of death row inmates and Montana corrections officials will be settled in court after both sides were unable to agree on a proper execution protocol. The Associated Press reports that corrections officials in Montana changed the state's lethal injection method from a combination of three drugs to two last year. One of the drugs involved is no longer manufactured in the U.S. and can't be imported, prompting the inmate's attorneys to seek execution delays.  Montana has not executed a murderer since the protocols were changed last year.

Ruth Wisse, who describes herself as "a tenured professor [at Harvard] who does not decline the label 'conservative,' " has this op-ed in the WSJ.  The subtitle is "Opponents of free speech have chalked up many campus victories lately as ideological conformity marches on."

I regard the dearth of persons of sense in the education profession as the single greatest long-term threat to American society. 
In the last post, I noted that 29 former top leaders of the Justice Department have gone on record opposing the Smarter Sentencing Act.  Over at the Sentencing Law & Policy, Prof. Doug Berman wonders whether the appearance of their letter today is more likely to mean (1) that the final nail has been driven in the the SSA's coffin, or (2) that the SSA has more life than it might have seemed recently, since it's still supported by my friend Ted Cruz and a few other Senate Republicans, and is but one of a number of items in a momentum-gathering mosaic looking to bring about shorter sentences and less use of incarceration.  As Doug puts  it:

I continue to find the discussion and debate over the SSA an intriguing (and valuable?) distraction from all the other arguably much-more-consequential federal sentencing developments that are afoot. The fact that prominent Tea-party leaders in the GOP like Rand Paul, Mike Lee and Ted Cruz all support significant federal sentencing reform, the fact that state marijuana reforms seem to be continuing apace, the fact that the US Sentencing Commission has voted to lower most of the drug guidelines, the fact that most federal sentences are now outside the guidelines, and the fact that DOJ and Prez Obama are working hard on clemency reform all will be likely impacting federal sentencing realities more than whether or not the SSA is passed by Congress. (This is not to say that the SSA is not important or potentially consequential, but it is to say that a whole host of much broader forces are changing the dynamics of modern federal sentencing policies and practices.)

I don't know that I have a direct answer, but I might be able to provide some hints.

Former Top DOJ Leaders Oppose the SSA

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In a letter released today, 29 former leaders in the Department of Justice, the DEA, and US Attorney's Offices around the country urge Harry Reid and Mitch McConnell to defeat the Smarter Sentencing Act if and when it comes up in the Senate.

Several of the signatories immediately caught my eye.  The first is former Attorney General and United States District Judge Michael Mukasey.  I don't know a single person in this town who does not regard Judge Mukasey as having anything other than the highest intellect, judgment and integrity.  Particularly noteworthy is the fact that Judge Mukasey was a sentencing judge for 18 years, when mandatory minimums were in full sway.  If in fact they go too far to tie judges' hands, Judge Mukasey would be the first to know.

A second noteworthy signatory is former Deputy Attorney General George Terwilliger.  Mr. Terwilliger left the DAG's Office in 1993, and for the 20 years since then has been one of the most sought-after criminal defense lawyers for sophisticated crimes and conspiracy cases.  A defense attorney of that long experience and high caliber is extremely unlikely to support continuation of a sentencing regime that savages present or potential future clients.

Finally, there is Peter Bensinger, the DEA Administrator during all of President Carter's term.

The list of signatories is thus extensive, bi-partisan, and widely experienced on both sides of the courtroom; the majority now practice as defense attorneys.
Recent years have seen a dramatic growth in the number of complaints, e.g., here, that criminal trials have all but disappeared in the United States and essentially have been replaced by plea bargaining.  Closely related to this complaint is the argument that, mostly just to make their jobs easier and marginalize judges, prosecutors brandish long mandatory minimum sentences to bully defendants  -- including the legion of innocent ones  --  into prison.  The idea is that defendants are offered the choice of taking a plea to a relatively lighter charge or going to trial on charges with much longer, and often mandatory, penalties. Defendants, even those with solid defenses, feel like they have no choice but to take the deal.

One thing seldom heard when the bellowing starts is even slight mention that exactly these arguments were presented to, and rejected by, the Supreme Court decades ago, in Bordenkircher v. Hayes, 434 U.S. 357 (1978), with Justice John Paul Stevens casting the deciding vote.

But still, what the heck.  If this is what the defense bar and some of the bench think, is there something that could be done to address their concerns?

You bet.

The Wonders of Rehab

I have frequently posted about the joke called "rehab."  The unending story of Lindsay Lohan is a rehab lesson unto itself, see my posts here, here and here, among numerous others.  

"Rehab" is the defense bar's version of "sentencing."  Some judges buy it because they think the jails are overstuffed; some because they genuinely think the defendant could benefit; and many because they refuse to see reality, or prefer not to.

The latest rehab joke comes from Toronto's version of Hollywood silliness, Mayor Rob Ford. Like many in Hollywood, the Mayor likes his crack cocaine, and would like to convince his constituents that rehab is the answer.  And it is an answer, of sorts.

From USA Today:

Embattled Toronto Mayor Rob Ford says he is in rehab and enjoying it..."Rehab is amazing," Ford told The Toronto Sun....He compared it to the Washington Redskins camp he went to as a boy.

Would readers please take up a collection so I can go to rehab, too?

Wrong Poster Boy, No Kidding

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Alan Dershowitz is on the wrong side of the death penalty, but he knows something about litigation strategy.  I like to think that I do too, having been a decently successful lawyer in the USAO for a few years.

As Kent points out, Prof. Dershowitz is correct in thinking that the Boston Marathon bomber prosecution might be the worst case to try to get the death penalty ruled unconstitutional since Timmy McVeigh.

About a year ago, roughly three weeks after the bombing, Prof. Dershowitz and I, appearing on the Piers Morgan show, debated whether the death penalty was an apt punishment for the killer.  A tape (unfortunately in annoying one-minute segments) is here.  As I pointed out, echoing the points Kent makes, the surviving bomber, Dzhokhar Tsarnaev, is actually a case study on why we should retain capital punishment.  I noted that Dzhokhar committed: terrorist murder, multiple murder, murder of a police officer, and child murder, blowing to bits an eight year-old boy. (His mother and younger sister had so much shrapnel in them that they were unable to attend the boy's funeral a week later).

Of course, his lawyers know something about litigation strategy too.  That they're throwing this Hail Mary so soon in the case tends to confirm something I've suspected for a long time:  They can't find a shrink dishonest enough to testify that Dzhokhar is nuts, so they're headed into this trial holding a handful of nothing.
This is just too good.  O'Ryan Johnson and Bob McGovern report for the Boston Herald:

Dzhokhar Tsarnaev's lawyers want to stage a constitutional challenge to the death penalty in the wake of last week's botched Oklahoma execution -- but a leading death penalty opponent says the accused jihadi is the wrong poster boy for the cause.

"This is not a good case," Harvard Law School professor and constitutional lawyer Alan Dershowitz said about Tsarnaev, accused of acting on a Islamic extremist agenda in the Boston Marathon bombings and their aftermath that left four people dead, hundreds injured, and more than a dozen badly maimed.

"You have a man who, according to the evidence, planned to murder multiple civilians," Dershowitz told the Herald. "You take someone like John Kerry. He said, 'I'm against the death penalty except in cases of terrorism,' and I think many Americans feel the same way. This is a bad case to test this on. It would actually set back any movement to repeal the death penalty because of Americans' feelings about terrorism."

But of course, professor, it is not a defense lawyer's job to advance a political agenda.  It is the defense lawyer's job to make the best case for his client.

Not that the constitutional argument is a good one.  It is exceeding weak.  But what else is there?  He didn't do it?  Of course he did it.  He is not eligible for the death penalty?  Of course he is.  "The defendant killed or attempted to kill more than one person in a single criminal episode."  18 U.S.C. §3592(c)(16).  He is not retarded, not a minor, and not insane.  This isn't a case where the death penalty should be imposed? Don't "the aggravating ... factors ... sufficiently outweigh all the mitigating ... factors ... to justify a sentence of death ..."?  §3593(e).  Of course they do.  The defense can and will argue they don't, but the argument won't pass the straight-face test.

So of course they have to make the constitutional argument, and Dershowitz notwithstanding this is the perfect case to consider it.  If you say the death penalty is unconstitutional, then you are taking the absolutist position of "never" and not "hardly ever."  Shouldn't we decide the issue in a case that actually presents that distinction?

The Forgotten Scapegoat Defendant

It's a  staple of the defense bar that an accused should not wind up in prison in the service of a political agenda.  Although I often disagree with the defense, in this they are 100% correct.  Putting people in the slammer because of the political needs of those in power is odious to American justice.  It's the stuff of banana republics  -- banana republics and tyrannies.

In all the recent talk of mass clemency for hundreds or thousands of drug pushers, I have yet to hear anyone in DOJ or elsewhere in the Administration mention giving consideration of clemency to the one non-violent federal defendant who, more obviously than any other I can remember, wound up behind bars (now in a halfway house) in the service of political expediency.  That would be Nakoula Nakoula.

And who, you ask, is Nakoula Nakoula?

He's the fellow who produced the famous Internet video, "Innocence of Muslims," that the Administration ubiquitously, immediately and aggressively  --  but falsely  -- blamed for the Benghazi attack, saying that it whipped up a frenzy among random Islamic passers-by.  

This was a point-blank lie.  It was  a pre-planned terrorist attack, something the CIA and the State Department knew almost immediately, and that is now no longer questioned by anyone.

News Scan

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Ohio Supreme Court Upholds Death Sentence: By a ruling of 5-2, Ohio's highest court voted to uphold the conviction and death sentence for convicted murderer, Calvin Neyland Jr.  The Associated Press reports that Neyland, a former truck driver, was convicted of murdering his boss and another man in 2007 as he was about to be fired from his job.  Neyland's attorneys challenged his conviction based on the claim that their client is schizophrenic and that the leg shackles he was required to wear during trial prejudiced the jury against him.

Task Force Makes 100th Cold Case Indictment: Cleveland's newly created DNA Cold Case Task Force has reached a milestone after securing their 100th indictment using evidence from once-abandoned rape kits.  Paul Kiska of ABC 5 reports that thousands of boxes holding DNA rape kit evidence were found in an evidence room inside the city's police headquarters dating back to 1993, a task force was created earlier this year and has been working tirelessly to finally put an end to these once-cold cases.  Cleveland Police Lieutenant James McPike expects about 1,600-4,000 cases to be solved once the DNA testing has been completed.

OK Sets Execution Date for Convicted Killer: The Oklahoma Criminal Court of Criminal Appeals has granted convicted killer Charles Warner a 180-day stay, setting November 13 as his newly scheduled execution date.  Graham Lee Brewer of News OK reports that 46-year-old Warner had been scheduled to be executed April 29, but the procedure was delayed after the botched execution of Clayton Lockett took place earlier that day.  The state's attorney general supported the delay in Warner's execution, allowing time for a full investigation into Lockett's execution.  See also prior post by Bill Otis.

News Scan

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Judge Rules That Some California Convicts can Vote: A California judge has ruled against a decision made by Secretary of State Debra Bowen that would have prevented thousands of criminals released under Realignment from voting in upcoming elections.  The Associated Press reports that a lawsuit brought forward by the ACLU sought to have voting rights restored to nearly 60,000 convicts released under Realignment and placed on Post-Release Community Supervision (PRCS).  Prior to Realignment, those felons would have been placed on parole, and barred from voting in state-run elections.  The judge agreed with the ACLU, citing that a goal of Realignment was to encourage rehabilitation, and participating in society and voting is a part of that effort.

Murder Suspect Arrested After Decades on the Run: A Detroit man accused of killing one man and wounding another has been arrested in Georgia after spending more than 20 years on the run.  Robert Allen of the Detroit Free Press reports that 41-year-old Antonio Daniels was tracked down by local and federal agents and found to be living in Georgia under a new name. When authorities confronted him about the killing he initially denied involvement, but later he admitted his true identity after being presented with fingerprint evidence.  Daniels is being held in Georgia awaiting extradition to Michigan.
Paige Sutherland reports for AP:

Michelle Kosilek, born Robert Kosilek, has been in a heated legal battle to get the surgery, which she [sic] says is required to relieve the emotional stress caused by the disorder. Kosilek is currently serving a life sentence for killing spouse Cheryl Kosilek in 1990.

In 2012, a federal judge ruled that the department must give Kosilek the surgery.

In January, that decision was reaffirmed by a three-judge panel of the 1st U.S. Circuit Court of Appeals, which said it is a constitutional right to receive medically necessary treatment "even if that treatment strikes some as odd or unorthodox."

The prisons department appealed and won a rehearing before the full appeals court. Five appeals court judges heard arguments on the matter Thursday and could take months to issue a decision.

See also this prior post.
The Supreme Court heard two cases last week about whether the warantless search of the digital contents of a cell phone incident to the arrest of its possessor is permissible and, if so, under what circumstances and to what extent.

This is a complicated and important question, and I'm not going to attempt an answer, not least because I don't even carry a cell phone, not wanting to be available to the entire world 24/7.  I have only two impressions about the case. First, the Court should not and isn't going to walk away from the venerable and necessary rule permitting warrantless searches incident to arrest simply because we are in a new, digital world.  Second, the Court, being divided ideologically, although somewhat of a pragmatic turn of mind on police-related questions, and prone to the dreaded balancing test, will come up with a compromise.

Fourth Amendment expert Orin Kerr gives us an education on the question here.

Delay Sought in Oklahoma Executions

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The Washington Post reports:

Oklahoma's attorney general asked a court Thursday to delay putting an inmate to death in the wake of a botched execution at the Oklahoma State Penitentiary last month.

Attorney General Scott Pruitt's office said in a court filing Thursday that it would agree to a six-month stay of the execution of inmate Charles Warner, who was scheduled to be put to death by lethal injection next week. An Oklahoma court will make the final determination on when the execution will go forward. Gov. Mary Fallin (R) only has authority to issue a 60-day stay on executions.

This is the right thing to do.  The great majority of the stays sought for executions are for concocted reasons, and are filed, usually at the last minute, simply to run the clock and put another chit in the abolitionist pot that capital punishment should be abolished because "it takes too long."  But this time is different.  The problem was real, not concocted, and the right (and legally prudent) thing to do is find out what went wrong and correct it.

Is America Over-Incarcerated?

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That's one of the big questions, if not the biggest, in the national debate about sentencing "reform."

My own view is that it's a misdirected question because it focuses on the wrong population. The people who mainly deserve our concern are the huge, law-abiding majority, not the tiny minority who, because of their own greed-driven choices, are residing in jail.  And the law-abiding majority is better off today by far than it was a generation ago, in significant part because we've incarcerated more of the bad guys for longer and thus reduced crime victimization.

Indeed, as Charles Lane of the Washington Post points out, much of the over-incarceration narrative is behind the times and simply mistaken.  I found this point particularly illuminating:

In an oft-quoted but empty phrase, the [National Research Council] report declares the growth of incarceration in the United States "historically unprecedented and internationally unique."

The same might be said for the United States itself. This is the only nation on earth with more than 100 million people, effective, democratically accountable law enforcement and a lot of crime.

If we released all drug offenders, the incarceration rate would still be much higher than that of Europe. Ditto if we released all minorities. Nor are U.S. racial disparities unique. Canadian statistics show that, for unknown reasons, the black share of Canada's prison population is three times that of the general population -- the same as in the United States.

Lane's article is, for the reliably pro-defendant WaPo, a surprisingly fresh and balanced look at the issue, well worth the read.

Jail for Contempt of Congress?

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Congress has held former IRS official Lois Lerner in contempt for refusing to testify about the IRS scandal involving greater and more taxing (as it were) scrutiny of conservative advocacy groups than of liberal ones.  It has referred the contempt citation to the Justice Department for prosecution.

This raises a question:  What is the realistic likelihood of a prosecution's being undertaken? Let me put that another way:  What is the realistic likelihood of Obama's naming Kent Scheidegger to the Ninth Circuit?

But here's the really interesting issue:  Can Congress on its own imprison Ms. Lerner?

Darned if I know, but Roll Call has a notable article about it.

Executive Branch Overreach

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The Federalist Society's Executive Branch Review Conference lived up to its billing with several terrific panels and a keynote address by Sen.Ted Cruz (all available here).

Sen. Cruz discussed a number of episodes of executive overreach, including, as is relevant for this blog, Eric Holder's unilateral decision to do by fiat what he's impatient with Congress for not doing on his schedule.  That would be to water down mandatory minimum sentencing so heroin and meth dealers, among others, won't have it so rough.  I have previously taken note of Mr. Holder's self-help approach to sentencing rules enacted by Congress which do not win his approval, e.g., here.

Sen. Cruz, whom I've known since we were in the Reagan Justice Department, was critical of DOJ's high-handed approach, even while noting that reasonable minds within the conservative movement can disagree on the question whether current mandatory minimums are harsher than they should be.  (He voted in favor of moving the Smarter Sentencing Act out of the Judiciary Committee).

He then, from the podium, gave me the razzball. From Ted, I'm delighted to get it.

His talk is here.  He starts discussing the mandatory minimum issue at 11:48 of the tape and finishes at 14:12, although readers interested in the startling breadth of this Administration's overreach would do well to listen to the entire address. The razzball moment is at about 12:25.
Last week the Louisiana House Criminal Justice Committee approved a death penalty bill after removing a return to "Old Sparky" and instead providing confidentiality for suppliers of lethal injection drugs, Lauren Langlois reports for AP.

Corrections Secretary Jimmy LeBlanc endorsed the move, but he also said, "Louisiana should look into nitrogen gas as a way to execute prisoners, arguing that the gas causes no pain."

I noted three years ago on this blog that I know hypoxia is painless from personal experience in Air Force flight training.

News Scan

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California's Juvenile LWOP Law Modified but Upheld: The California Supreme Court has modified a long-standing interpretation of the law regarding life-without-parole sentences for juveniles who commit crimes that would be capital if committed by adults.  With that modification, the Court rejected the defendant's argument that the law is unconstitutional. The decision in the joined cases of People v. Gutierrez and People v. Moffett is here.  Henry K. Lee of the San Francisco Chronicle reports on the Bay Area case. Andrew Moffett was four days short of 18 years old when he and a friend committed an armed robbery that resulted in the fatal shooting of Pittsburg Police Officer Larry Lasater.  Moffett's accomplice, who was 18 at the time of the crime, was sentenced to death.  Because of his age, Moffett was not eligible for a death sentence.  In June of 2012, the U.S. Supreme Court ruled that murderers under the age of 18 at the time of the crime could not receive a mandatory sentence of LWOP, and overturned state laws that require that sentence without giving judges the discretion to choose a lesser one.  California law was thought to provide a presumption for LWOP for juveniles convicted of a murder which would make an adult eligible for the death penalty.  The Court held that there was no presumption but ordered Moffett's resentencing to assure that the judge exercised complete discretion.  CJLF filed this amicus brief in the case on behalf of Officer Lasater's family.

OK Law Helps to Solve Kidnapping Case: An Oklahoma store clerk is being credited with helping police arrest a kidnapping suspect after the man was acting strangely in his store.  When the man was purchasing coloring books and crayons, the clerk saw the words 'sex offender' printed on his driver's license and called authorities, who later found him with an 8-year-old girl.  Lori Fullbright of News 6 reports that an Oklahoma law requires habitual or aggravated sex offenders to have the words stamped on their driver's license.  33-year-old Michael Slatton, who had been previously convicted of sexual battery, was arrested and charged with kidnapping, lewd molestation of a minor and injury to a minor.  He is being held in lieu of $1.5 million bond.

Prosecutor Outraged Over Rapist's Sentence: A recent decision made by a Dallas judge to sentence an admitted rapist to just 5 years probation based on her belief that the victim was lying, has outraged the city's top prosecutor, who is concerned about the chilling effect the sentence may have on other rape victims who may be apprehensive about coming forward.  The Associated Press reports that the judge initially sentenced 20-year-old Sir Young to 250 hours of community service at a rape crisis center, but the crisis center rejected his service, prompting the judge to instead sentence him to just five years of probation.  Young will be required to register as a sex offender for the rest of his life and will spend 45 days in jail as a condition of his probation.
The Federalist Society's Executive Branch Review Conference has a live feed here. For those interested in the Obama Administration's numerous episodes of overreach, including in circumventing mandatory minimums by whitewashing indictments, preemptive surrender to the Sentencing Commission's mass lowering of sentences for drug pushers, and the planned (and unprecedented) thousands of clemency grants (literally) to be written up by the defense bar, this could be a very interesting discussion.

The Guidelines Go Under, As Predicted

The Sentencing Commission has published statistics showing that, for the first time ever, a majority of sentences are now outside the Guidelines range.  No one will be surprised to learn that virtually all the departures are downward, i.e., departures favoring the criminal.

As I pointed out in my article in the Federalist Society's magazine Engage three years ago, if the Sentencing Commission's "advisory" Guidelines are going to be ignored a majority of the time, we might as well just get rid of them. The article was titled, "The Slow, Sad Swoon of the Sentencing Suggestions".  In particular, I wrote (emphasis added):

[T]he public should be told the truth about what, under the present system, the seductive phrase judicial discretion actually means--namely, a one-way street to lower sentences. The most revealing measure of the exercise of so-called discretion is the incidence and direction of departures. As noted previously, a large minority of all sentencing is already outside the range, and the day is soon coming when it will be a majority

And sure enough.

The Guidelines are a charade, and the Commission, though not without some top-notch members, has become more-or-less a front man for the defense bar.  The public has better uses for the millions we're wasting on it.

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CA Supreme Court Upholds Death Sentence: The California Supreme Court has affirmed the death sentence of a man convicted of the 1997 slaying and attempted robbery of a liquor store clerk.  The City News Service reports that attorneys for Calvin Dion Chism appealed his death sentence based on allegations that the jury selection process during the penalty phase of the trial was racially biased.  Chism's two co-defendants were also convicted of first-degree murder and were sentenced to life in prison without the possibility of parole.

Minnesota Senate Passes Gun Restriction Bill: A bill aimed at preventing anyone convicted of abuse or stalking from owning a firearm is headed to Governor Mark Dayton's desk for approval after being passed in the state's Senate by a vote of 60-4.  Baird Helgeson of the Star Tribune reports that the bill prohibits anyone convicted of domestic or child abuse from possessing a rifle or handgun.  Anyone under an order of protection may also lose firearm possession if ordered by a judge.  If approved by the Governor, Minnesota will join both Wisconsin and Washington who have already passed similar measures this year.

OK Death Row Inmate Awaits Execution: The U.S. Supreme Court has rejected the final appeal of an Oklahoma death row inmate.  Chris Casteel of News OK reports that 51-year-old Richard Glossip was convicted of murder and sentenced to death in 1997 for his role in the killing of an Oklahoma City motel owner.  An execution date has not been set in order to allow time for the state to review lethal injection protocols after last week's execution of Clayton Lockett.
The President has nominated for a seat on the First Circuit the ghost of America's worst federal circuit judge, Stephen Reinhardt.  Indeed, the nominee, Harvard law professor David Barron, is worse than merely Reinhardt's ghost; he's Reinhardt's ex-clerk.  I guess if you're going to learn pro-criminal extremism, you might as well learn from its Number One judicial practitioner.

But even with a Senate dominated by the President's party, Barron seems to be in trouble. As the Hill reports, Sen. Rand Paul has placed a hold on the nomination:

Sen. Rand Paul has warned Senate Majority Leader Harry Reid (D-Nev.) that he will place a hold on one of President Obama's appellate court nominees because of his role in crafting the legal basis for Obama's drone policy.

Paul, the junior Republican senator from Kentucky, has informed Reid he will object to David Barron's nomination to the 1st Circuit Court of Appeals, unless the Justice Department makes public the memos he authored justifying the killing of an American citizen in Yemen.

Talk about a conundrum!  On the face of it, Barron seems like a nominee it's worth pulling out all the stops to oppose.  But with enemies like Patrick Leahy and the ACLU (see below), should we have second thoughts?

How does a civilization choose decline?

In many ways, one of which is by deciding to go easier on its criminals.  With serious consideration of slashing even minimum drug penalties, attacks on any imposition of capital punishment, clemency for heroin pushers, dumbed down sentencing across the board, psychobabble defenses, and the ubiquitous snarl of "racism!" to banish any thought of accountability  -- decline is what America, with its current enervated and morally blase' Administration, is choosing.

I am reminded of this by an op-ed in the New York Times, which notes both the fact of America's shriveling and our citizens' understanding of it.  I was aware of something like this last month, when I opened my talk to the Republican Senate Policy Committee by comparing our willingness to cashier a sentencing system we know works to our willingness to watch in lazy half-regret as the Russian military devours the Ukraine.

I was particularly struck by this line in the op-ed:

A thoughtful college junior I know told me that while he didn't envision a richer American economy in his future or a mightier American role in the world, he looked forward to a country with a warmer embrace of diversity, including gay marriage in every state.

My first thought was: What a complete fool.  I wonder how this "thoughtful" young man will react when the next bunch of Matthew Shepard killers gets off with the "warmer embrace" of a criminal justice system that has gone all fuzzy in order to disguise its loss of confidence and will. 

Cruelty Impersonating Virtue

Q:  What would happen if you were a government lawyer and you kept a man in jail for 26 years knowing he was innocent?

A:  You'd be run out of the profession, for starters.  And not a moment too soon.

Q:  What would happen if you were a defense lawyer and you kept a man in jail for 26 years knowing he was innocent?

A:  You'd get on Sixty Minutes to talk about how wonderfully devoted you are to the  --  let's hear it one more time  -- "highest callings of the profession."

Note to defense (and all other) lawyers:  There is something more important than your client.  That would be basic human decency.

What Pot Legalizers Really Want

I just ran across this disquieting story, which starts:

A study of calls for assistance to poison control centers, published in the Annals of Emergency Medicine, reveals dramatic increases [in requests] for help with pediatric accidental ingestion of marijuana in states that legalized or decriminalized it.

According to the report, there were "985 calls to U.S. poison centers for unintentional marijuana exposure in children ages 9 and younger between 2005 and 2011, according to an analysis of data from the National Poison Data System (NPDS)." Although this is a relatively low number the researchers learned that the rate of calls "in states that had passed legislation legalizing marijuana use for recreational or medicinal purposes before 2005 more than tripled over this period."

There's an old jury instruction to the effect that members of the jury "may infer that a person intends the natural and probable consequences of his acts."  If that's true  -- and it is  --  the picture is beginning to take shape of what legalizers really want.

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Murder Suspect Rejects Retarded Label: An Ohio man accused of murdering a Cincinnati pizzeria owner last summer is refusing to be labeled as retarded despite having a low IQ, a decision that may result in a possible death sentence.  Sasha Goldstein of the New York Daily News reports that 28-year-old John Deloney believes that the label is disrespectful to him, even though a successful claim of retardation could spare him from a death sentence.  Prosecutors have video surveillance, DNA evidence, and a reported confession linking Deloney to the killing, but he still maintains his innocence and feels confident going to trial.

Ohio Inmate Charged in Cold Case Rapes, Murder: An Ohio man already serving an 11-year sentence for sexual assault has been named as the prime suspect and charged in five cold case rapes as well as the murder of one of his victims.  The Associated Press reports that 38-year-old Larry McGowan was indicted on 23 charges last week after DNA evidence linked him to the cold case crimes that authorities say were committed between 1996 and 2010.  McGowan had been in and out of prison since 1993 for charges related to non-sexual offenses, however his DNA was not collected until he was arrested in 2012 for rape.  

Teen Gets 50 Years for Assaulting Elderly Woman: A judge has sentenced an Indiana teenager to 50 years behind bars for his role in the violent rape of a 93-year-old woman. reports that Iquise Taylor, who was 17-years-old at the time of the attack, agreed to plead guilty last month to charges of rape, burglary, criminal confinement and strangulation after being found competent to stand trial and waived to adult court.  Taylor was given the maximum possible sentence.

AL Appeals Court Upholds Eight Death Sentences: The Alabama Criminal Court of Appeals has affirmed the convictions and death sentences of eight of the state's death row inmates. Kent Faulk of reports that the eight murderers were from five different counties and have been on death row between 5 and 18 years.  Currently, Alabama has 197 inmates on death row.

Gary Becker, RIP

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Gary Becker died over the weekend.  Ilya Somin has this post at Volokh Conspiracy and points us to this summary of Becker's work.  From the latter:

Gary S. Becker received the 1992 Nobel Prize in economics for "having extended the domain of economic theory to aspects of human behavior which had previously been dealt with--if at all--by other social science disciplines such as sociology, demography and criminology."
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Not even crime escaped Becker's keen analytical mind. In the late 1960s he wrote a trail-blazing article whose working assumption is that the decision to commit crime is a function of the costs and benefits of crime. From this assumption he concluded that the way to reduce crime is to raise the probability of punishment or to make the punishment more severe. His insights into crime, like his insights on discrimination and human capital, helped spawn a new branch of economics.

The latter point seems so obvious now, yet the people running around proclaiming themselves "smart on crime" today apparently don't get it.  The genuinely smart people do.


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The US Supreme Court today decided a rather narrow victim restitution issue in a mortgage fraud case, Robers v. United States.  Ronald Mann has this analysis on SCOTUSblog.

The high court also summarily reversed a summary judgment for the police officer in an excessive force case, Tolan v. Cotton.  There were sufficient disputed facts to go to trial.  Justice Alito agrees with the result but questions why this one case was plucked out the stream of cases.  It seems to be the exemplar of the kind of case SCOTUS passes up regardless of whether the lower court's decision is right or wrong.  That is, it is the application of settled law to particular facts with little potential to blaze any new legal trail or settle any disagreement between lower courts on a recurring question.

Also on today's orders list is Beard v. Aguilar, No. 13-677, California's petition seeking review of a Ninth Circuit decision overturning a murder conviction.  The underlying issue is the reliability of dog alerts as evidence and disclosure of previous false hits.  The Ninth Circuit said the California Court of Appeal's rejection of the claim was an unreasonable application of Brady v. Maryland.  Justice Alito, joined by Justice Scalia, dissents from denial of certiorari with only a cite to his Tolan concurrence, described above.  I gather he means to point out that the Court took Tolan even while letting other wrong decisions pass by.

Town of Greece v. Galloway is yet another case on opening public proceedings with prayers.  FWIW, SCOTUS opens its own sessions with "God save this honorable court."

In the orders list, the court took up for full briefing and argument two civil cases. Ryan v. Hurles is relisted yet again.

Federalism for Thee But Not for Me

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Our friends on the defense side are eager to see federal drug laws -- laws they view as "draconian" and none of the federal government's business anyway  --  done away with in favor of state regulation.  When it's pointed out to them that drug abuse and the awful (and awfully expensive) depredations drug abuse create constitute a nationwide concern, they are unpersuaded.  It's a states' rights issue, period. 

But it would seem that states' rights and federalism are a sometime thing. In the wake of the bungled Oklahoma execution, we hear (for example, on SL&P) this question: "Shouldn't Congress be holding hearings to explore federal and state execution methods?"

In a word, no.  It shouldn't be exploring state methods because that is no business of the federal legislature (it might be a business for the federal courts if there is a strong risk in a particular case that those methods violate the Eighth Amendment). And it shouldn't be exploring federal methods in the absence of at least a minimal reason to think there's something wrong with them.

No such reason exists.  There have been a total of three federal executions in the last 50 years (McVeigh, Garza and Jones), and not a whit of evidence that anything went awry with any of them.  Fifty years of success is not really a cause for concern.

Perhaps Congress could trouble itself to examine a federal problem that actually exists, such as, say, looming national bankruptcy.

I have opposed the Smarter Sentencing Act because it's bad policy:  It turns its back on our success in reducing crime to re-embrace our past failures, and it does so because, perversely, it views the incarceration rate as more important than the crime rate.

It is now clear, however, that even accepting the arguments for the SSA on their own terms, recent developments show that the Act is unnecessary.

The primary arguments for this legislation are twofold:  First, that, with tight budgets and so much borrowing, we can't keep spending more on prisons; and second, that some mandatory minimum sentences under existing law are excessive, given the (to some) sympathetic circumstances of the defendants serving them.

Assuming agruendo (and only arguendo) that these arguments had merit last summer when support for sentencing "reform" started percolating to the surface, I have good news. Times have changed.

Voting With Their Feet

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This is probably a coincidence, but it's a pretty interesting coincidence.

Q:  What are the five states with the largest net out-migration?

A:  New York, New Jersey, Illinois, Rhode Island, Alaska.

Q:  What are the five states with the largest net in-migration?

A:  Florida, South Carolina, Arizona, Idaho, Wyoming.

All the states leading in people exiting have no death penalty, and all the states leading in people entering have it.

The migration chart is here.

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Raising Bail to Reduce Crime:  Two members of the Fairfield, CA city council want to raise bail amounts to help reduce their city's high crime rate.  Ryan McCarthy of the Daily Republic reports that the council members cited a study that indicated bail amounts in the county were among the lowest in the state, making it too easy for offenders to post bail and be back on streets to commit more crimes.  The District Attorney of nearby San Joaquin County noted that in his county, which includes the city of Stockton, they experienced a sharp decline in their homicide rate after doubling the bail amount from $50,000 to $100,000 for felons charged with illegally possessing a weapon. 

Convicted Triple-Murderer Given Life Sentence: A Colorado man convicted of murdering a couple and their daughter last November was sentenced to spend the rest of his life in prison after agreeing to a plea deal with prosecutors.  The Associated Press reports that 60-year-old Harry Mapps, who had been living as a guest in the couple's home,  killed the family and set their house on fire after being asked to move out.  The prosecutor cited Mapps' age and poor health as reasons why he did not pursue a possible death sentence, noting that death penalty appeals can last up to 20 years.

OK Man Resentenced After Death Sentence Overturned: An Oklahoma man convicted of murdering five women more than 20 years ago has been given five life sentences after his original death sentence was thrown out by a federal appeals court.  Matt Dinger of the Oklahoman reports that 55-year-old Danny Hooks was sentenced to die for stabbing murders of the women in 1998, but that sentence was overturned in 2010 after a federal appeals court ruled that statements made by the judge and prosecutor during sentencing improperly influenced jurors.  Hooks has been ordered to serve the five life sentences consecutively without the possibility of parole.

The Volokh Conspiracy is a favorite daily read for law professors far and wide, and justifiably so given the tremendous talent of its bloggers.  Today there is an entry on the failed Clayton Lockett execution.   I don't agree with all of it by any means, but it's worth a look.  Here's a sample:

I had noted, on TV, that Clayton Lockett lived for 15 years after he shot a 19-year-old girl and watched as friends buried her alive, and that the difference between 5 and 40 minutes to execute him needed to be placed in context. According to standard elite opinion, it is inappropriate even to mention his crime, unless one does so only as a lead-in to explaining that the horrific crime made some people -- the less elite, of course -- inappropriately bloodthirsty.

This time, however, the average American -- whom Justice Antonin Scalia sometimes refers to as "Joe Six Pack" -- may have some wisdom that we Ivy League graduates are missing.

To be clear: I am not a proponent of torturing people as they die, or of secrecy surrounding the drugs used in lethal injections. Once Clayton Lockett's execution was botched, the Governor of Oklahoma should have called off other pending executions until Lockett's death can be investigated and the state can learn from its mistakes. And she did. I do not advocate either intentional infliction of suffering during an execution or deliberate indifference to a significant likelihood of suffering.

The Oklahoma Department of Corrections has given the state's governor this timeline of events in the execution of Clayton Lockett.

The original problem appears to be a lack of easily accessible veins.  We have known all along this is a problem.  State protocols should specify an alternative to intravenous injection.  Where intravenous is specified by statute, the statute should be amended.

The primary problem here appears to be that Oklahoma was insufficiently prepared for the vein problem.  That shouldn't happen.  The condition of an inmate's veins is something that can be checked far in advance of an execution date.  The recent controversies over drug sources do not appear to be an issue here.

Oklahoma still uses the old three-drug method, with a paralytic and potassium chloride.  There is no reason for any state to keep that method.  The sedative-only method is now well-established, and it avoids the problem of any risk of a person being injected with a painful drug while incompletely anesthetized.

Long term, we should get rid of injection and go back to gas, possibly carbon monoxide.

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Report Shows Spike in Arkansas Prison Population: A report presented to the Arkansas Board of Corrections indicates that the state's prison population increased 17.7% in 2013.  The Associated Press reports that the increase was likely due to tougher parole policies enacted after a repeat parole violator was charged in the 2013 kidnapping and murder of a teenager just two days after being released from jail.  The Department of Corrections notes that more paroles were revoked along with an increase in the number of offenders who received prison sentences rather than probation for crimes such as burglary and drug dealing.

Pennsylvania High Court Allows Warrantless Vehicle Searches: The Pennsylvania Supreme Court has held that police officers no longer need a warrant to search a suspect's vehicle, so long as they have reasonable probable cause.  Brett Hambright of Lancaster Online reports that prior to this ruling, motorists could refuse a police request to search a vehicle, requiring the officer to get a warrant.  The 4-2 ruling will allow officers to sufficient cause to search for drugs during a traffic stop.

One of the many pleasures of having been Counselor to the head of the Drug Enforcement Administration was the opportunity to work with the then-Deputy Administrator, Michele Leonhart. She started her career decades ago as a line patrol officer on the streets of Baltimore.  A few years back, President Obama named her DEA Administrator. A more heartening story of success through devotion would be hard to find.

Yesterday, testifying before the Senate Judiciary Committee, she proved that's she's still the courageous person I came to know.  Although her boss, the Attorney General, and the powerful Committee Chairman, Patrick Leahy, both vocally support slashing mandatory minimum sentences, Michele was having none of it.  As the Washington Post reports (at the dead end of its long story):

Leonhart also spoke out in support of mandatory minimum sentencing for drug crimes, an issue Holder has highlighted recently as part of his initiative to reduce prison crowding and foster equity in criminal sentencing.

Holder has instructed his 93 U.S. attorneys to use their discretion in charging low-level, nonviolent criminals with offenses that impose severe mandatory sentences.

Leonhart, in response to a question from Sen. Charles E. Grassley (R-Iowa), said: "Having been in law enforcement as an agent for 33 years [and] a Baltimore City police officer before that, I can tell you that for me and for the agents that work at the DEA, mandatory minimums have been very important to our investigations. We depend on those as a way to ensure that the right sentences equate the level of violator we are going after."

I was always proud to be a friend of Michele's, but never prouder than I am today.

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