June 2014 Archives

News Scan

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Hundreds of Prisoners Mistakenly Released: Officials in Nebraska are seeking to re-incarcerate roughly two dozen out of the more than 300 inmates mistakenly released from prison over the course of several years due to sentencing miscalculations done by corrections officials. The Associated Press reports that officials are only pursuing inmates that should still be incarcerated.  The inmates who's sentences have already expired will not be required to return to prison as long as they have stayed out of trouble.  The calculating errors occurred when officials were attempting to factor in "good time" credits prior to an inmate serving their mandatory minimum sentence.

Habitual Felon Arrested After Brutal Assault: A Pennsylvania man with a lengthy criminal history dating back to 1971 has been arrested after authorities say he stabbed two women living in senior apartment building.  The Associated Press reports that 73-year-old Charles Azim stabbed one of the women during an argument before fleeing to another woman's unit and violently attacking her as well.  Azim was released from prison a few years ago after serving an eight-year sentence for aggravated assault. 

Four Texas Murderers Lose Death Row Appeals: Four condemned Texas murderers have lost their most recent death row appeals after two cases were rejected by the U.S. Supreme Court and the other two were rejected by a federal appeals court.  KWTX News reports that the appellate court denied the appeal of cop-killer 54-year-old Randall Wayne Mays, who claimed that he was to mentally ill for execution. The Supreme Court declined to hear the appeal of anther cop-killer, 33-year-old Manuel Garza Jr., who was sentenced to death for murdering a police officer in 2001.

Why We Have the Death Penalty

Death penalty opponents like to talk about everything but the main subject  -- whether there are some crimes so gruesome and evil that a sentence of imprisonment, no matter how long, cannot strike a normal person as justice.

Today's news brings one such story from the Associated Press:

Both parents of a toddler who died in an unattended SUV in suburban Atlanta told investigators they did online research on how hot it needs to be for a child to die in an unattended vehicle, police said.

Justin Ross Harris, 33, faces murder charges in the death of his son, 22-month-old Cooper on June 18. While he had previously allegedly admitted to researching the subject, investigators now say Leanna Harris also went on line to learn about kids dying in hot cars. She has not been charged, but the revelation came on a search warrant released Sunday, which said she claimed she researched the subject because she was afraid it could happen.

You bet "she was afraid it could happen."  It could happen because she and her hubby planned it.  They even looked up the right temperature to set the oven.

Abolitionists can go on forever about racial discrimination, police cheating, not really knowing who did it, and the Usual Suspects, but it's just so much blather. There's a reason they obsess about their slanted "reports" while trying to push specific cases behind the curtain.

Joshua Marquis, District Attorney of Clatsop County, Oregon (Astoria and vicinity, in the northwest corner of the state) has this article in the Oregonian.  I'm going to copy it here in its entirety, reasonably sure that Josh won't mind:


As a practitioner of capital litigation (someone who actually tries death penalty cases) for a couple years as a defense attorney and much longer as a prosecutor, it is interesting to see that every year for the last two decades, some wag will proclaim "the imminent death of the death penalty."

The latest salvo was a piece from a writer for Slate citing six reasons (he's hoping) that public support for the death penalty is waning.

He's wrong on every count. The two polls he cites most heavily are the highly politicized PEW organization and the Gallup polling system. Anyone following Oregon politics knows that PEW has abandoned any pretense of objectivity and become an advocacy organization opposed to incarceration and capital punishment. They declared over 1,000 Oregon inmates "low risk" and suggested they should be released until Clackamas County District Attorney John Foote showed that this included two people on death row and over 50 convicted of homicide or attempted homicide.
Today the U.S. Supreme Court wraps up its October 2013 Term.  Technically, the term continues until the beginning of the next term on the First Monday in October, but today is the last session day, and we can expect little but routine administrative orders and emergency action on stays until just before the next term begins.

Most of the talk will be about religion/contraception/Obamacare case.  Off topic for this blog, so no comment here.  Also chatworthy is the involuntary payments to the government employees' union case.  Again, not here, despite my personal interest in the matter.

The Court took up five cases, all civil.  The one criminal-related matter is Mellouli v. Holder, a deportation for drug-dealing case.  SCOTUSblog's case page has more info.

Th-th-th-th-that's all folks.

About Those Witnesses...

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Witness assassination, the light side....
There has been a huge amount of disinformation about what a "stand your ground" law actually is, particularly during the Trayvon Martin hysteria.  Eugene Volokh has this post explaining the matter at the eponymous Conspiracy. 
As Bill noted Wednesday, the United States Supreme Court in Riley v. California declined to extend to contemporary phones the doctrine that when a person is arrested everything on him can be searched without a warrant.

This case involves applying a two-century-old constitutional provision to technology that was nearly unimaginable even twenty years ago, much less two hundred.  The approach used in Chief Justice Roberts' unanimous opinion for the Court is to assess the degree of intrusion and balance that against government interests.  I think we should also look at the Fourth Amendment itself and see if anything is closely analogous.  The First Congress's handiwork, ratified by the requisite number of states, goes out of its way to protect "papers."  The emails stored on a modern smart phone have the same informational content as the "papers" of 1791.  It is the message, not the medium, that matters here, Marshall McLuhan notwithstanding.

The asserted justifications for searching the phone immediately without a warrant are weak.  The police can seize the phone, remove the battery, and put it in the evidence locker.  It's not going anywhere, and neither is the data, while they explain to a magistrate why they need to search it.  I have no problem with the substantive Fourth Amendment holding in this case.

But the police were not, or should not have been, the ones on trial in the case of the People of the State of California v. David Riley.  The questions to be decided in that case were whether Riley carried concealed and loaded weapons and whether he did so to benefit a criminal street gang.  Should the contents of the phone, surely admissible if the police had gotten a warrant, be excluded from evidence on the gang question simply because they did not know they needed to get one?

The Supreme Court did not say, and it was not asked to say.  But I think the question is important.

News Scan

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Police Arrest Hundreds of Child Predators: Authorities in Southern California have arrested nearly 300 child predators after completing a month-long operation called "Operation Broken Heart".  The Associated Press reports that the operation targeted parolees, probationers and convicted sex offenders.  Investigators pretended to be 12 to 14-year-old children on the internet and arrested those who showed up for the purpose of engaging in sexual acts.  Investigators believe there will be more arrests in the future as forensic experts finish analyzing all of the seized evidence.

Arkansas High Court Denies Death Row Petition: In a 4-3 decision, the Arkansas Supreme Court has denied an appeal from  convicted killer Terrick Nooner.  Max Brantley of the Arkansas Times reports that Nooner, who has spent more than two decades on death row, filed the petition claiming a lack of proof that the jury heard mitigating evidence concerning his difficult childhood and mental treatment.  Nooner shot his victim seven times in the back at an Arkansas laundromat during a robbery attempt.  His co-defendant plead guilty to first-degree murder and was sentenced to 65 years behind bars.   

Jury Deadlocks in Rare Death Penalty Case: A former soldier in Hawaii will spend the rest of his life behind bars after a federal jury failed to reach a decision on whether he deserved the death penalty.  Jennifer Sinco Kelleher of the Associated Press reports that Naeem Williams, who was convicted of murdering his 5-year-old daughter in 2005, became the first person to face the death penalty in the state of Hawaii.  Hawaii abolished the death penalty in 1957, but Williams killed his daughter on a military base which made it a federal crime.  Death sentences are allowed under federal law.

News Scan

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Federal Judge Upholds Terrorism Conviction: A federal judge has denied a motion filed by a terrorist seeking to overturn his conviction.  The defendant claimed that the evidence used against him was collected without a warrant.  Shawn Raymundo of the Latin Times reports that Mohamed Mohamud, a U.S. citizen living in Oregon, was convicted of terrorism in 2013 after attempting to detonate a bomb at a Portland Christmas tree-lighting ceremony in 2010.  Mohamud argued that prosecutors hadn't notified him that they received information under the U.S. Foreign Intelligence Survey Act (FISA) until after his trial.  Under FISA, the U.S. government is allowed to collect information without a warrant on both foreign and U.S. terrorist suspects believed to be in contact with other countries.

Washington High Court Upholds Death Sentence
: In a unanimous decision, the Washington Supreme Court upheld the death sentence for a man convicted of murdering his wife and two of her daughters more than a decade ago.  The Associated Press reports that Dayva Cross appealed claiming that his admission of guilt made when he was first held in custody violated his constitutional rights and that his lawyer was ineffective.  It is unclear when Cross will be executed due to the fact that Washington Governor Jay Inslee has suspended the use of the death penalty as long as he is in office.

Thousands of Illegal Immigrants Expected to Skip Court Appearances: 90% of the mostly-teenage immigrants overwhelming the U.S. border in recent months are expected to skip out on their court-ordered immigration hearings, and officials estimate that more than 135,000 of them will simply vanish into the country this year.  Paul Bedard of the Washington Examiner reports that after the teens are detained by immigration officials, they are given a court date and expected to return.  The overwhelming majority never show up for their hearing.  House Judiciary Chairman Rep. Bob Goodlatte estimates that 150,000 teens will cross the border this year, a number ten times higher than in 2013.

A New Way to Smuggle Drugs Into Prison

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To heck with body cavities.  Technology carries the day.  And the drugs.

News Scan

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SCOTUS  Bars Warrantess Cell Phone Searches:  In a unanimous decision, the U.S. Supreme Court has ruled that police officers may not search a criminal suspect's cell phone during an arrest without a warrant.  Bill Mears of CNN reports that the nine  justices determined that cell phones were not in the same broad category as wallets or vehicles, which are generally searchable as long as an officer has probable cause.  It is still unclear whether or not the ruling will be retroactive and affect defendants who have been convicted using cell phone evidence.

Condemned Inmate to Be Resentenced:  An Arizona man who was sentenced to death in 2001 after pleading guilty to two brutal murders, will receive a new sentencing hearing after the U.S. Supreme Court rejected the state's appeal of a lower court ruling. Julianne Defilippis of Cronkite News Service reports that Michael Murdaugh is one of 21 capital defendants in Arizona who were sentenced to death by a judge, rather than a jury, prior to the Court's  2002 holding that the practice was unconstitutional.  After the ruling, the Arizona Supreme Court found 19 of the 21 murderers were eligible for re-sentencing, but held Murdaugh's case did not require a second hearing due to the extremely vicious nature of his crimes.  The 9th Circuit of Appeals later ruled in Murdaugh's favor.     

Arkansas to Ease Prison Overcrowding: In an effort to ease prison overcrowding, the Arkansas Board of Corrections has voted in favor of an Emergency Powers Act, which will allow more than 100 inmates to be eligible for parole up to 90 days ahead of schedule.  The Arkansas News Bureau reports that the inmates set to be released early had already been approved for parole, the Emergency Powers Act will allow officials to expedite the process.  Nearly 300 male inmates and 100 female inmates will be eligible for early parole dates.
Continuing its mediocre record in the Supreme Court, this Administration's SG's Office lost in the Riley and Wurie cases today, failing to get a single vote.

The cases concerned, as I noted before, a complicated and important Fourth Amendment question, and I did not attempt an answer, not least because, unlike the rest of the world, I don't even carry a cell phone.  I did predict that the Court would not simply walk away from the search-incident-to-arrest rule of Robinson, and it didn't.  The Court declined to extend that rule, however, to cell phones.  It's hard to argue with the result, given, as the Chief Justice points out, that cell phones can and often do contain the owner's entire life, and that they do not present the sort of immediate physical danger to officers that the search-incident-to-arrest rule was created to contain.

The Court's opinion in the two cases is here.
The first item in the News Scan notes in brief terms something that's actually quite revealing:  A cert petition ostensibly for death row inmate Micheal Ballard was filed by a Philidelphia attorney, Marc Bookman, without Ballard's knowledge and against his wishes.  Indeed, Bookman is not Ballard's attorney at all and, so far as I have been able to find out, never was.  

Question:  How many million times have defense lawyers pounded the table that their entire raison d'etre is to serve the client in his fight against the power of the state?  The need for such service, and unyielding fidelity to the client, justifies, so we have been lectured, even intentionally misleading behavior, so long as that behavior does not violate the canons of ethics or the law.  It is not up to defense counsel to serve justice; that's the prosecutor's job.  It's up to defense counsel to serve the desires of the client and let the system sort it out from there.

Given that, you would think that the usual suspects among the defense-oriented blogs would express at least some misgivings about Mr. Bookman's "I-don't-care-what-the-defendant-wants" stunt.  I've looked at a few such blogs, and I can't find a word about it.

Q:  Why not?
Victor Davis Hanson's essay begins bad and gets a lot worse:

Every once in a while, a criminal case...reflects the immoral course of our current trajectory. Here is an ongoing local criminal case that pretty much sums up what is happening to our culture, laws, and society at large.

Perla Ibeth Vazquez, 27, is now on trial in these parts. On Oct. 21, 2011 (a mere two-and-a-half-years ago?), she was drunk, drove, and killed, according to the Fresno Bee, one "Frank Winslow, 54, a family man and truck driver for Foster Farms who was only a few miles from home when he was killed on Highway 168 near Ashlan Avenue."

The Bee added that the local prosecutor, Steven Wright:

[L]aid the groundwork by telling the jury that Vazquez had pleaded guilty to drunken driving in Tulare County in 2006 and again in Fresno County in 2010. Each time, a judge warned her that if she got drunk and killed someone, she could be charged with murder, Wright said.

Should we laugh or cry at those long-ago judicial "each time" warnings -- given that they assumed that two felony drunk driving convictions were not necessarily reason to think there would be a fated third or fourth? A judge warns her about her own murdering to come? Might he have warned all of us about being her murdered victims to come? 

News Scan

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Supreme Court Denies Death Sentence Review: The U.S. Supreme Court has denied a motion asking to review the death sentence of convicted quadruple murderer Michael Ballard.  Tom Shortell of the Express-Times reports that the motion was filed against Ballard's wishes by a federal defender who has nothing to do with his case and is acting without his consent.  Ballard wrote a letter to the District Attorney earlier this month, stating that attorney Marc Bookman was acting against his desire to waive his appeals in order to avoid federal court and take accountability for his actions.  If executed, Ballard could become the first person executed in Pennsylvania since 1999.

Execution set for Georgia Murderer: A Georgia man convicted of murder and sentenced to death row more than 20 years ago is scheduled to be executed July 10.  Kate Brumback of the Associated Press reports that Tommy Lee Waldrip was sentenced to death row in 1994 after a jury found him guilty of murdering a store clerk who was scheduled to testify against his son in an armed robbery case.  Waldrip's brother-in-law and son were also convicted in the killing and are both serving life sentences. 

Texas Prisons Overwhelmed with Crime: Despite a drop in the number of inmates incarcerated in Texas prisons, authorities say prison crime levels are at an all time high.  The Associated Press reports that since 2009, 3,000 charges have been filed against prisoners-a number authorities contribute to a more hardened population of felons and a high turnover rate of corrections officers.  Currently, Texas houses more than 150,000 inmates in the state's 109 prisons, which is 9,000 inmates fewer than just a decade ago.

Reporting on race and the death penalty gets it wrong so regularly that it's hardly noteworthy any more.  However, Matt Ford has this article in the Atlantic that is exceptionally bad even by the low standards of the field.

The subhead of the article reiterates the tiresomely familiar Fallacy of the Irrelevant Denominator:  "The national death-row population is roughly 42 percent black--nearly three times the proportion in the general population."  Red-hot news flash, Mr. Ford -- death row is not for the general population; it is for murderers.  This statistic and the bar graphs in the article are therefore completely irrelevant.  The relevant first-order comparison is death row v. murderers, illustrated in this post.

But of course such numbers are only a rough cut.  The next step is to do more sophisticated studies that at least attempt to control for relevant sentencing variables.  Here Ford tells the biggest whopper I have ever seen in all the very bad reporting on this issue:

We've long known that the death penalty disproportionally kills people of color. David Baldus, a University of Iowa law professor, and his colleagues studied more than 2,000 homicides in Georgia in the 1970s and 1980s for evidence of bias. Their landmark research, known popularly as the Baldus study, found vast racial disparities in Georgia's capital-punishment system.
Citing the Baldus study for an argument of bias against black defendants is not just wrong, it is knock-you-back-in-your-chair wrong.  The Baldus study found just the opposite.  There was no statistically significant "race of defendant" effect.  This result has been replicated many times, including other studies sponsored by death penalty opponents.  It is the most robust result in the field.  The fight in the McCleskey case was about a claimed (and refuted) race-of-victim effect.  See my OSJCL article for more on that and for the myths of race and the death penalty generally.

For Ford to cite the Baldus study for race-of-defendant bias demonstrates an utter disregard for the truth.

Early Releases: More Cost, More Crime

The major promise behind proposed federal legislation to lower mandatory minimum sentences is that it will reduce prison costs while preserving the low crime rate we have achieved over the last 20 years.

That of course is an empirical question.  Many in favor of these proposals, in particular ones like the Smarter Sentencing Act, point to the experience of such states as Ohio and Texas to show that the promise has been kept.

They seem to be much more quiet about the state that has more early releases than the rest of the states combined  --  California.  The second item in today's News Scan shows why:  As the early release program in the Golden State has taken hold over the the last three years, prison costs are up by a whopping two billion dollars and the crime rate is, unlike the majority of the rest of the states, also up.

So what should Congress do with the Smarter Sentencing Act?  I gave the answer in my testimony before the Over-Criminalization Task Force of the House Judiciary Committee last month.

News Scan

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Drug Cartels Thriving: Border Patrol agents have been overwhelmed recently with the thousands of unaccompanied children  streaming across the border, making it easier for Mexican cartels to smuggle drugs into the country.  Corey Charlton of the Daily Mail reports that Texas Attorney General Greg Abbot fears that Border Patrol resources have been stretched so thin that officers are unable to control narcotics smuggling and human trafficking.  Abbot has asked for a $30 million funding increase from the Department of Homeland Security in an effort to strengthen border security.

Realignment not Working:  California Governor Jerry Brown's prison Realignment plan, which went into effect nearly three years ago,  has not saved tax dollars or solved the prison overcrowding problem according to Los Angeles Times reporter Paige St. John.  She reports that since Brown took office in 2011, the state has spent nearly $2 billion a year more on incarceration and he has missed almost every benchmark set for the law.  In early 2013 the Governor said, "the prison emergency is over in California."   Not true, according to reports indicating state prisons and jails are still overcrowded, while thousands of criminals have been released from custody ahead of schedule, creating more problems for county probation departments.  Law enforcement officials also cite Realignment as the cause for an 8% increase in property crime, after years of declines.

Florida Releasing Inmates Without Supervision: A study released by the Pew Charitable Trusts has revealed that Florida leads the nation in inmates being released from prison without mandatory supervision.  Jeff Weiner of the Orlando Sentinel reports that the majority of inmates serve their entire sentence, resulting in 64% of inmates released in 2012 being sent away without any form of supervision.  The study suggests that rather than keeping the inmates behind bars for their entire sentence, offenders should spend the last portion of their sentence on mandatory community supervision in order to prepare them for life outside of prison as well as save on the cost associated with keeping them in state custody.

The Heritage Foundation summarizes today's unanimous (as to result) victory for the prosecution over a defendant who wanted to cheat his way to a little more dough. This is the gist of Loughrin v. United States:

The federal bank fraud statute, 18 U.S.C. § 1344(2), makes it a crime to knowingly execute a scheme to obtain property owned or possessed by a bank "by means of false or fraudulent pretenses, representations, or promises." Writing for a Court that was unanimous as to the result but disagreed slightly as to the reasoning, Kagan ruled that the statute does not require the Government to prove that a defendant intended to defraud a financial institution, only that the defendant intended to ob­tain bank property "by means of" a false statement. The Court affirmed Loughrin's conviction for submitting forged stolen checks to a retail establishment, rather than directly to a bank. Scalia, joined by Thomas, wrote a separate concurring opinion questioning how the majority's interpretation of the term "by means of" would apply in future cases. Alito wrote a concurring opinion arguing that the statute requires the government to prove only that the defendant knowingly sought to obtain money by means of a falsehood and not for any specific purpose.

As I said in my entry last week on the defendant's loss in United States v. Abramski, offenses like this are really easy to avoid. Don't cheat.  If you want money, work for it like everybody else.

Yes, there are legitimate questions about federal overreach.  Yes, the country should do a good deal of thinking about the seemingly limitless growth of criminal jurisdiction.  Yes, the government should be held to the letter of the law. But in any individual case, there is almost always an easy way to moot these questions: Be honest.
The question whether the President could lawfully release five Taliban commanders without notifying Congress continues to roil legal academia.  In previous posts, here and here, I have chimed in, and have noted the views of others, including Prof. John Yoo of Berkeley and Prof. David Pozen of Columbia, who support my view that the President acted unlawfully.  Taking the other side in two compelling notes in the comments section to the former post, is my wife, former Scalia clerk and Associate White House Counsel, now Adjunct Professor of Law at Georgetown, Lee Liberman Otis.  Lee notes in particular the very broad Constitutional powers the President is given as commander-in-chief.

Today, another quite apt attorney, Visiting Professor Louis Fisher of the College of William and Mary Marshall-Wythe Law School, also argues that the President acted unlawfully (and hypocritically).  As he notes in his National Law Journal article:

In 2009, the Office of Legal Counsel found [Bush White House claims about the President's commander-in-chief powers] inconsistent with constitutional text. Because Article 1 grants significant war powers to Congress, legal opinions that categorically preclude Congress from enacting legislation concerning the detention, interrogation, prosecution and transfer of enemy combatants "are not sustainable," the office found. The office shared its analysis with the U.S. attorney general, the White House counsel, the legal adviser to the National Security Council, the principal deputy general counsel of the Department of Defense and several offices within the Justice Department.

Five years later, the Obama administration decided it could send five senior members of the Afghan Taliban from Guantánamo to Qatar in exchange for Sgt. Bowe Bergdahl, held by the Taliban. The administration said it did not have to comply with a statute requiring the administration to give Congress 30 days notice before transferring detainees. Before making the transfer, the Defense Department sought guidance from the Justice Department, but no one in the DOJ, including the Office of Legal Counsel, has issued a legal memo to justify these transfers.

What To Do About Corrupt Prosecutors?

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Gun them down, what else?

P.S.  They don't have to be corrupt, either, not in the slightest.  You just have to dislike them because they convicted you for being a thief.

The NYT reports  --  amazingly without detectable snark  --  that Texas will seek the death penalty for Eric L. Williams, a former "neutral" judicial officer who got caught and convicted for stealing computer equipment from a county building.  Not caring for this outcome, Williams shot the two prosecutors who brought the case.  For good measure, he shot the wife of the senior prosecutor.  Can't have those witnesses!

I am strongly tempted to lay into the poisonous, sneering websites and commentators who relentlessly trash prosecutors as thugs and thus build up the "atmosphere of hate" that is said to "lead to" atrocious episodes like this.  But I'm going to refrain.  These murders were not the product of an "atmosphere."  They were a product of a malevolent criminal bent on cold-blooded revenge. Texas is well-advised to seek the only punishment that fits the crime.

Is the Criminal Justice System Broken?

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According to Eric Holder, it is.  According to the vastly more fair-minded and intelligent approach of Judge J. Harvie Wilkinson of the Fourth Circuit, it isn't.  As Judge Wilkinson puts it in his article in the Vanderbilt Law Review:

My own reaction to the critics is one of gratitude for their contributions but dismay that they have allowed the pursuit of perfection in criminal justice to become the enemy of the good. Much about American criminal justice is indeed good. The system provides considerable protections for the accused and sets proper limits on the brutality and deceit that human beings can inflict upon each other.

Simply put, in calling for an overhaul of our criminal law and procedure, the critics have failed to appreciate the careful balance our criminal justice system strikes between competing rights and values. They have failed to respect the benefits of the system's front-end features--namely, early process and early resolution. Moreover, they have sold short the democratic virtues of our system. The sensible tradeoffs reflected in American criminal justice are worthy of respect, and the system's democratic tilt is deserving of praise. The critics have extended neither. Ultimately, the often harsh tone of their indictment has done an injustice to the system of criminal justice itself.

This Day In History

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The WSJ gives us an image of its "What's News" column from June 20, 1953:


THE ROSENBERGS were executed last night in Sing Sing Prison.

News Scan

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Oregon High Court Upholds Death Sentence: Oregon's Supreme Court has upheld the death sentence for a man convicted of murdering an African immigrant in 2004.  Chris Lehman of Northwest Public Radio reports that Michael Washington was convicted of murder and sentenced to death in 2010, he later appealed claiming that he wasn't given a fair trial and that Oregon's method of lethal injection violates a constitutional ban on cruel and unusual punishment.  It is unclear when Washington will be executed because the state's current governor has imposed a moratorium on the death penalty as long as he is in office.

Pope Condemns Legalization of Drugs: In a statement to delegates at a drug enforcement conference in Rome, Pope Francis condemned the legalization of recreational drugs, calling it a 'flawed and failed experiment'.  The Associated Press reports that Pope Francis explained that legalizing drugs is not a solution to the overwhelming issue of addiction; "Let me state this in the clearest terms possible," he said. "The problem of drug use is not solved with drugs!"  Legalizing marijuana has become a growing trend around the world with countries like Uruguay recently voting to allow the sale of marijuana cigarettes in pharmacies.  Marijuana is currently legal in Colorado and Washington.  

CA Serial Killer Convicted of More Murders: A California man already on death row for killing 10 women in the Los Angeles area, was found guilty of four additional murders.  The Associated Press reports that 47-year-old Chester Turner strangled the women over the course of a decade, and was finally linked to the unsolved crimes through DNA evidence.  Authorities believe Turner was one of at least three serial killers stalking Los Angeles women in the 1980's and 1990's.  No execution date has been set for Turner.

News Scan

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Florida Executes Murderer: A Florida man convicted of murdering his wife and her five-year-old son in 1985 has been executed after spending decades on the state's death row.  Ralph Ellis of CNN reports that 63-year-old John Ruthell Henry fatally stabbed his wife and her young son two years after he was released from prison for murdering his previous spouse.  Attorneys for Henry asked for a stay of execution based on the claim that their client suffered from an intellectual disability, however, the appeal was denied by the state Supreme Court.

Murder Suspect has Lengthy Criminal Past: An Arizona man suspected of murdering two elderly women last week had been released from prison a few days prior to the killings.  Emerson Marcus of the Reno Gazette-Journal reports that 40-year-old Anthony Nelson, a convicted sex offender, had been sentenced to seven years in 2008 for sexual assault. He was released on June 2 despite several disciplinary violations and ordered to register as a sex offender.  A petition to revoke Nelson's probation was issued just a week after his release when he failed to report to his probation officer. Police believe he murdered the two women a few days later.  Nelson was killed in a gunfight with police on June 13 after a high speed chase.

Teacher Attacked in Arizona Prison: A teacher giving a high school equivalency exam to a room full of sex offenders has been violently attacked and sexually assaulted by a convicted rapist.  The Associated Press reports that the attack happened January 30 in a prison unit that houses 1,300 rapists, child molesters and other sex offenders.  One inmate stabbed the teacher in the head with a pen and raped her as she tried to scream for help and alert corrections officers.  The inmate was serving 30 years in prison in 2011 for a rape he committed when he was 17-years-old.  He has since been charged with additional felonies including kidnapping, rape and assault with a deadly weapon.

Execution Notes

Earlier today, both Bill and the News Scan noted the executions in Missouri and Georgia.  All of the coverage emphasized these being the first since the "botched" Oklahoma execution, as if that were a major event that somehow changed things.  It was not.  In that case, they failed to insert the needle correctly and failed to check that it was correct.  Those have been known dangers all along.  Nothing was different after that event than it was before.

The Supreme Court orders denying stays in the Georgia case are here, here, and here.  No dissents are noted.

The orders denying stays in the Missouri case are here, here, here, and here.  Of these, only the third has any dissent indicated.  "Justice Sotomayor would grant the application for stay of execution."  The Missouri AG's office has provided the application and opposition for the one with the dissent.  The issues presented are:

1. Must a death row inmate propose a specific, feasible. more humane alternative method of execution in order to plead a viable Eighth Amendment claim?

2. Is the standard for an Eighth Amendment claim literally that the method is "sure or very likely" to cause unnecessary pain? Or does that really only mean the method presents a substantial risk of serious pain, which the plaintiffs allege is a lesser standard?
Given that only one Justice openly dissented on denial of a stay on this application and none did on the other applications, any notion that there are going to be stays granted on broadly applicable questions on method of execution is refuted.

Moments ago, the Supreme Court posted this denial of a stay of the Florida execution of John Henry.

News Scan

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Habitual Sex Offender Accused of Rape: Police in Detroit have arrested a sex offender with a history of probation violations after he allegedly broke into a woman's apartment Tuesday morning and raped her.  George Hunter of the Detroit News reports that 28-year-old Marcellus Hill, a habitual sex offender under state supervision, has been charged with multiple felonies including kidnapping, robbery and sexual assault.  According to court records, Hill has a history of felonies which were reduced through plea-bargains and a record of habitually violating the terms of his probation.

Executions Carried out in Georgia and Missouri: Two condemned murderers, one in Georgia and one in Missouri, were put to death Tuesday evening after decades on death row.  The Associated Press reports that Georgia inmate, 59-year-old Marcus Wells, was executed for the 1989 rape and murder of a 15-year-old girl, while Missouri inmate, 46-year-old John Winfield, was executed for his role in the murders of two women in 1996.  Both states used the single drug pentobarbital, a sedative, and declined to reveal where they obtained the drug.  Florida is scheduled to execute convicted murderer John Ruthell Henry Wednesday evening. 

Dozens Arrested in LA Gang Sweep: 50 of Los Angeles' most dangerous gang members were arrested by federal and state officials in an effort to break up what is described as a violent and powerful cartel running a nationwide drug operation.  Caitlin Owens and Richard Winton of the Los Angeles Times report that members of the notorious Five Deuce Broadway Gangster Crips are believed to be responsible for at least four killings since 1987 as well as multiple stabbings, shootings, armed robberies and violent confrontations with law enforcement.  If convicted, each of the defendants face a mandatory minimum of 10 years in federal prison, and many of them face possible life sentences.  

USAToday has an article reporting that the defense team for the Boston Marathon killer wants a change of venue:

Attorneys for Boston Marathon bombing suspect Dzhokhar Tsarnaev are expected to ask a judge to move their client's November trial.

Judge George A. O'Toole Jr. last week denied a motion that would have given attorneys Miriam Conrad and Judith Clarke until August to make their case for changing venues. At issue is whether Tsarnaev can receive a fair trial in the city where two bombs went off near the Marathon finish line on April 15, 2013, leaving three dead and more than 260 wounded.

At SL&P, my old pal Doug Berman wonders whether the prosecution would be well advised to go along with a change of venue.  As sometimes happens, I agree with him.

First, I have my doubts about the federal district bench in Boston, one of the most flagrantly liberal in the country.  Second, Boston itself, and Massachusetts in general, are way off to the left on the national political spectrum, and the state has no death penalty.

I would suggest moving the trial to the Eastern District of Virginia.  It's not a hotbed of the Left, but it's not off to the Right, either.  Virginia has a Democratic governor, two Democratic senators, and it just booted out Republican House Majority Leader Eric Cantor.  In addition, it voted for President Obama twice, with margins both times that mirrored national voting.  And a jury in the EDVA considered, but ultimately rejected, the death penalty for Zacarias Moussaoui.

The big advantage of bringing the case to EDVA, from my point of view, is easy to summarize.  It would allow me to offer my services to my country, gratis.  I truly relish writing Eric Holder volunteering to resume my former post as Senior Litigation Counsel for the USAO in order to do battle with well-respected arch rival, Judy Clarke.  And to help give Mr. Tsarnaev the punishment he has earned.

Two Executions Go Without Problems

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Despite what has become the deluge of last minute speculative motions about how the state is planning to use some dastardly, secret chemical to perform an agonizing execution, two executions last night went off with no problem and no apparent pain. They were in Missouri and Georgia.

The story is here.

The total number of executions this year is 22.  If they continue at the present pace, there will be more executions in 2014 than in any year since George W. Bush sat in the White House.

According to Gallup, support for the death penalty remains at or above 60% for the fortieth straight year, and the view that it is morally acceptable has increased by a slight but statistically significant margin over the last two years (perhaps because of the gruesomeness of the Boston Marathon bombing, although I don't know that).

Still, "the death penalty is dying," etc., etc., etc.

What's Wrong With This Picture?

I've been arguing forever that the same central idea underlies both criminality and the welfare state:  That the individual is not responsible for his life and decisions, the government is.

I've gone on and on about the subject.  I must now confess that one protest sign summarizes it more succinctly than I ever did.

News Scan

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Ex-Con Suspected in Priest Murder: A habitual criminal released from an Arizona prison seven weeks ago has been arrested for the murder a priest and the brutal assault of another.  D.S. Woodfill of The Republic reports that Gary Moran was wanted by police officers after a meeting with his parole officer when he attacked a priest with a two-foot iron bar and fatally shot another priest in what police believe was a random attack.  Moran had been sentenced to 10 years in prison in 2005 for an aggravated assault charge, but was released after serving 85 percent of his sentence.  

Realignment to Blame for Crime Increase: A Northern California police chief is cited Governor Brown's prison Realignment law as the possible cause for his city's increase in crime this year.  Ann Notarangelo of CBS Bay Area reports that Concord Police Chief Guy Swanger noted that his city has experienced an 82% increase in auto thefts and a 69%  increase in property theft so far this year.  Both crimes are considered to be non-violent, non-serious and non-sexual under Realignment often resulting in offenders being released hours after their arrest. Police agencies across the state are attempting to prevent skyrocketing crime as a result of the revolving door for habitual criminals cause by this misguided law.   

CA Juvenile Rape Bill Stalls in Assembly: A California bill aimed at toughening penalties for juveniles who commit sex crimes has stalled in the state's Assembly Public Safety Committee despite being passed in the Senate.  Dan Walters of the Sacramento Bee reports that Senate Bill 838, also known as Audrie's Law, would create a mandatory two-year sentence for juveniles convicted of sex crimes, including offenses such as having sex with an unconscious or disabled person and disseminating photos of sex crime victims on the internet or through social media.  The law is named for a 15-year-old girl who committed suicide last year after photos of her naked, unconscious body were circulated online and through text messages.  The three 16-year-olds involved in the assault were given only a few weeks in juvenile detention.

The Rule of Lenity

The News Scan notes today's decision in United States v. Abramski, in which the Court affirmed, 5-4, the conviction of a straw purchaser for lying about the actual intended owner of the gun.

There is a strong dissent by Justice Scalia, relying in part on the rule of lenity, which, the Justice maintains, might as well be explicitly tossed overboard if it is not to be applied in favor of Mr. Abramski.

There  is something of a battle of the footnotes about this question, as pointed out in Prof. Josh Blackman's blog entry.  Although I most often agree with Justice Scalia and his three dissenting colleagues, in this instance I thought Justice Kagan got the better of the argument.

I would add only one thing.  If you don't want to get prosecuted for lying, don't lie. It's not that hard.
The Wall Street Journal Law Blog reports that convictions of private lawyers for federal offenses have increased sharply over the last few years, at least in one jurisdiction.

As the article puts it:

According to the U.S. Attorney's office there, the number of Nevada attorneys convicted of serious federal crimes is on the rise.

"There's been a significant uptick," David Clark, chief counsel for the State Bar of Nevada, told the Las Vegas Review-Journal. "It's a combination of economic realities and the increased vigilance on the part of federal prosecutors to go after lawyers.

Mind you, the overall total is not huge. Between 2008 and 2014, 23 lawyers--" mostly from Las Vegas"--were convicted, most for financial crimes such as tax evasion and bank or mortgage fraud, the Review-Journal reported.

I have more than a few doubts about DOJ's priorities, but if the Department is paying more attention to the private bar, congratulations to Eric Holder.  I've often wondered about the client-uber-alles "ethics" of the private bar, but, for however that may be, there is absolutely no excuse for looking the other way at outright criminality.

The Seventh Circuit has its own view, reported on here.  The text of the opinion, per Judge Posner, is here.

News Scan

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Tennessee Man Sentenced to Death for Triple Homicide: A Memphis man has been sentenced to death for his role in a shooting rampage that left his girlfriend and her parents dead more than two years ago.  The Associated Press reports that prior to trial, 31-year-old Sedrick Clayton offered to plead guilty in exchange for serving three consecutive life sentences without parole, but the prosecutor insisted on pursuing the death penalty due to the vicious nature of the crime.  Attorneys for Clayton argued that he should be sentenced to life and avoid the death penalty because he had no prior criminal record and an execution would be emotionally difficult for his family.  

High Court Rules on 'Straw Purchaser' Law:  In a 5-4 ruling, the U.S. Supreme Court upheld the conviction of a Virginia man who purchased a handgun legally, but broke the law by not disclosing that he was going to re-sell it to a relative. Sam Hananel of the Associated Press reports that Bruce Abramski, a former police officer, purchased the gun in 2009 and later transferred it to his uncle.  Abramski had assured the gun dealer that he was purchasing the weapon for himself.  He was charged with making false statements about the purchase of a gun and sentenced to probation.

FL Murder Scheduled for Execution: A Florida man convicted of killing his estranged wife and her son just two years after being paroled for murdering his previous wife, is scheduled to be executed Wednesday.  Tamara Lush of the Associated Press reports that 63-year-old John Ruthell Henry pleaded no contest to second-degree murder in 1976 and spent less than eight years behind bars before being paroled-two years after his release, he was arrested and convicted of murdering his new wife and her son from a previous marriage.  The Florida Supreme Court rejected his appeal last week which argued that his rough childhood, poor social adjustment and family mental health history made him ineligible for execution.

Transgender Prisoners and Surgery

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Previously we noted, here and here, the First Circuit case of Kosilek v. Spencer, No. 12-2194.  Robert Kosilek is in a Massachusetts prison for murdering his wife, and he wants the taxpayers of that state to pay for "gender reassignment" surgery as "treatment."

Yesterday, Dr. Paul McHugh, former chief psychiatrist for Johns Hopkins Hospital, had this op-ed in the WSJ (subscription required) questioning whether this "treatment" is appropriate for any patient:

News Scan

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Missouri Man Granted Stay of Execution: A Missouri death murderer has been granted a stay of execution less than a week before he was scheduled to be put to death.  Jim Salter of the Associated Press reports that 43-year-old John Winfield, who was sentenced to death for the murders of two women in 1996.  He was granted the stay after it was revealed that a prison worker may have been intimidated into not writing a clemency letter on Winfield's behalf.  The state has yet to announce an appeal.

CA Law Enforcement Frustrated by Inmate Releases: Officers with the Roseville Police Department, located just outside of Sacramento, are voicing their frustration with the non-stop release and re-arrest of inmates as a result of Realignment.  Mark Demsky of FOX 40 reports that many of the state's county jails are at full capacity, which is forcing the early release of criminals who are often re-arrested days later for new crimes.  County jails are also mandated by Federal law on how many inmates can be confined, which is also contributing to early releases.

Wyoming Death Penalty Dilemma: The Wyoming Department of Corrections has announced plans to explore different execution methods after the state revealed they no longer have a supply of lethal injection drugs.  Aja Goare of MTN News reports that the state is ready to consider a bill to allow use of the firing squad despite the failure to pass a similar bill earlier this year.  If the bill does pass, firing squad executions could begin as early as Spring 2015.  

Fifty years of experience unambiguously teaches us that we get more crime with less prison, and less crime with more prison.

Notwithstanding this established fact, there is a big "reform" movement just now urging us to go back to less prison (and thus more crime, although the reform crowd won't say that and will call you a racist if you do).

So, yes, we can have more crime to go on top of....

Meanwhile, in real America, veterans are denied care. Other Americans are forced to buy insurance they don't want at costs they can't afford while their taxes bail out insurance companies in league with the Obama administration. Meanwhile, in the real world, Americans are abandoned when under attack by terrorists in Benghazi, and terrorists are released from Guantánamo in return for an American who abandoned his fellow soldiers. 

And now the Obama administration stands and watches as Iraq, abandoned after a noble if difficult effort on the part of American soldiers and Marines sent to Iraq with the blessing not just of George W. Bush and John McCain but of Hillary Clinton, Joe Biden, and John Kerry, falls apart under the assault of an al Qaeda army that turns out not to be "on the run." 

This is not to mention a national debt we can't pay off because we've become addicted to a debt-fueled entitlement state that tells us the individual is not responsible for his life and choices, but the government is.

Yes, well, giving bigger breaks to felons through "sentencing reform" fits right in, doesn't it?  Just as the power vacuum in the Middle East will be filled with terrorists, the responsibility vacuum here at home will be filled with criminals. Let's not kid ourselves.  

Substance Abuse Counseling

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We often hear two related narratives from the defense:  That substance abuse rather than greed or malice is at the root of so much crime; and that therefore, instead of jail, what's needed is substance abuse counseling.

I can see why "substance abuse counseling" is right up the defense bar's alley.  You will too when you read this.

The story is replete with the straight-faced howlers for which criminal defense is rightly famous.  Thus, when Ms. Substance Counselor, Sherri Wilkins  --  herself drunk as a skunk  --  plowed into a pedestrian and drove for two miles in city traffic as he died on her windshield, she couldn't help it, because, you see, the victim didn't just step off the pavement. Instead, "it was as if he fell from the sky." The defense "argued [that the deceased man, Phillip] Moreno was drunk and jumped on Wilkins' car and that she panicked."

Yikes.  If the defense lawyer, Ms. Nan Whitfield, doesn't have that much of a sense of right and wrong, at least she has a great sense of humor.

Today we are seeing what certainly looks like the beginning of the end of democracy in Iraq, such of it as there was.  Al Qaeda-linked insurgents have, in the last 72 hours, simply wiped out government resistance in much of the north of the country. News reports say they are 40 miles from Baghdad.

And what, you may ask, does this have to do with crime and consequences?

A couple of things.  One is that whatever law can now be said to exist in Iraq is about to be replaced with the Dark Ages, which is the less polite name of Sharia law  --  the law that approves stoning gays to death, giving a thousand lashes to women who hold hands in public, and cutting off the hands of thieves, including thieves who are ten years old.

The other thing is that the ways of thinking that have led us to this point  -- the ones listed in the title of this entry  -- are exactly the attitudes behind the push to lower criminal penalties in this country.

Retreat to failed ideas pretends to be progress. Complacency about recent success struts as "reform."  Wishful thinking pooh-poohs the painful lessons of the past. Weakness in confronting criminals masquerades as compassion.  The things we know work to keep ordinary people safe are condemned as racist thuggery, while the things we know facilitate crime are lauded as the New Enlightenment.  

We are about to see what these ways of thinking bring to the people this Administration has deserted in Iraq.  If the "Incarceration Nation" crowd wins, we won't have to wait long to see what they bring law-abiding people right here at home.

News Scan

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FL High Court Upholds Death Penalty Law: The Florida Supreme Court has ruled in favor of upholding a law designed at expediting executions for death row inmates.  The Associated Press reports that the court unanimously decided to uphold the "Timely Justice Act", a law which was passed in 2013 in response to criticism that some condemned murderers had been on death row for decades.  The law requires stricter timeframes for appeals and created reporting requirements on case progress.

Ohio Man Convicted in Mass Killing: A 22-year-old Ohio man may face the death penalty after a jury found him guilty of murdering four people in a townhome last year.  The Associated Press reports that Derrick Brantley was found guilty on multiple charges of aggravated murder, aggravated robbery and kidnapping-prosecutors say Brantley shot each of the four victims in the head at close range in what appears to have been a drug-related robbery.  Brantley's co-defendant has pleaded not guilty and is set to begin trial July 2.

Impenetrable at Stanford Law

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Not to knock my alma mater, but Stanford Law School is home to a lecturer in law, Michael S. Romano, who seems oblivious to the preeminent realities about crime and sentencing staring him in the face.

This article from the National Journal  --  the eight trillionth about supposed overwhelming Republican zeal to join forces with the criminal defense bar  -- contains the following paragraph:

What's changed the political equation on crime [in the last three decades]? The most important factor is the decline in the crime rate. After surging through the 1980s as the crack epidemic crested, the violent crime rate has fallen almost every year since 1993 and now stands at only about half of what it was then, according to FBI figures. (A separate Bureau of Justice Statistics crime survey shows the violent-crime rate ticking back up over the past two years but still down about two-thirds from its 1993 level.) "We have an incredible opportunity for change because crime is down," says Michael S. Romano, a lecturer at Stanford University Law School.

Is this what passes for critical thought at Stanford nowadays?


News Scan

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Convicted Killer Asks Supreme Court to Ignore Appeals: A Pennsylvania man convicted of murdering four people and sentenced to death in 2011 has sent a letter the U.S. Supreme Court asking to have his current appeal rejected because he is ready to die.  Will Lewis of WFMZ reports that Michael Ballard included in his letter that the appeal was filed without his consent and submitted by a law group that doesn't represent him and is acting against his personal wishes.  The appeal was submitted by the Atlantic Center for Capital Representation-a non-profit death penalty resource center.

OK Lawmaker Supports Additional Execution Methods: An Oklahoma state representative is requesting a legislative hearing on the state's death penalty methods after announcing that he wants to give death row inmates the option to select their execution method.  The Associated Press reports that Representative Mike Christian believes that aside from lethal injection, condemned inmates should also be given the option of death by firing squad, hanging or the electric chair.  Last month, Tennessee became the first state to allow the use of the electric chair in some circumstances if lethal injection drugs were unavailable.

DNA Sample Leads to Cold Case Arrest: A West Virginia man is in custody after authorities determined he was responsible for a vicious attack involving several victims more than 14 years ago.  Metro News reports that Juan Manuel Pagan was wanted on several charges including rape, burglary and three counts of making terrorist threats stemming from a home invasion in 2000.  Pagan's DNA was entered into a national database after he was released from custody on unrelated charges in 2012, it was then discovered that his DNA matched a sample collected from a victim in the cold case home invasion and a warrant was issued for his arrest.

I've had the good fortune to get to know, if only slightly, a couple of Commissioners on the US Sentencing Commission.  They're good people and thoughtful lawyers, to say the least.  But this does not stop me from noting that the Commission has not sufficiently confronted  --  and indeed, it seems to me, has danced around  -- the crucial issue of criminal recidivism.

One of the principal purposes  --  and, over the last generation, one of the major successes  --  of sentencing is the incapacitation of criminals.  When they're in jail, they're not ransacking your house in order to get money for their next fix, assaulting your college-age daughter on a meth-fueled high, or selling PCP to your teenage son.

It's therefore crucial, in deciding whether and to what extent to reduce sentences, to be entirely forthcoming and candid about what impact those reductions will have. Specifically, we need to be clear about whether the reductions will produce more crime.

On this critical front, the Commission has fallen short.  It simply must take recidivism more seriously, and it must do so before deciding whether massively to expand, through retroactivity, the reach of its recent scattershot lowering of drug sentences.
In the jumble of faux-refined "analysis" the Justice Department presented to the Sentencing Commission in speaking up for the interests of criminals broad retroactive application of more lenient drug guidelines, it buried the main question: What do drug traffickers do after their release?

The Department itself told us, ever so quietly, back in April:  They go right back in business.  Here's the BJS report, which begins:

An estimated two-thirds (68 percent) of 405,000 prisoners released in 30 states in 2005 were arrested for a new crime within three years of release from prison, and three-quarters (77 percent) were arrested within five years, the Bureau of Justice Statistics (BJS) announced today.

More than a third (37 percent) of prisoners who were arrested within five years of release were arrested within the first six months after release, with more than half (57 percent) arrested by the end of the first year.

As to drug offenders specifically, you have to read down to the seventh paragraph, which states (emphasis added):

Recidivism rates varied with the attributes of the inmate. Prisoners released after serving time for a property offense were the most likely to recidivate. Within five years of release, 82 percent of property offenders were arrested for a new crime, compared to 77 percent of drug offenders, 74 percent of public order offenders and 71 percent of violent offenders.

Let's be clear then, about what moving up the release dates of drug traffickers by retroactive application of more lenient guidelines is going to do.  It's going to produce more drug trafficking, earlier.  It's as simple as that.

Mr. Retroactivity

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Remember Edward Dorsey?  He was the defendant in Dorsey v. United States, in which the Supreme Court, 5-4, walked past the Savings Statute, 1 USC 109, to find that the Fair Sentencing Act applied retroactively for the benefit of those convicted on or after the day it was signed into law, regardless of its effective date.

That degree of retroactivity, bad as it was, pales by comparison to the essentially time-unlimited retroactivity the Justice Department endorsed today for lighter drug penalties across the board.

What happens when we make lighter drug sentencing retroactive?  Easy  --  the druggie gets out earlier.  And what happens then? Easy again  --  he goes right back in business.  Why would he do anything else when he sees that we've lost our nerve?

Now as I was saying about Mr. Dorsey......

News Scan

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Cop Killer May be Released: Officers with the San Diego Police Department are outraged after a man convicted of killing one of their own and sentenced to life in prison without parole may be eligible for release.  Vanessa Herrera and Andie Adams of NBC San Diego report that gang member Jesus Cecena, was sentenced to LWOP in 1978 for murdering a police officer during a traffic stop. In 1985 Cecena's sentence was reduced to seven years to life, allowing him to then be eligible for parole.  A two-member panel recently recommended Cecena's release to Governor Brown's office.  The Governor has until September to decide on whether or not to grant parole.

Cop Killings up 53% in 2014: The recent killing of two Las Vegas police officers has members of law enforcement across the country concerned as the number of officers killed by gunfire is already 53 percent higher in 2014 than last year.  Kelly Riddell of the Washington Times reports that the International Union of Police Associations links the increased violence against police to radical anti-cop groups spreading their propaganda over the internet.  So far this year, 62 police officers have been killed in the line of duty, compared to 45 this time last year.

High Court Refuses to Hear CA Prison Overcrowding Case: The U.S. Supreme Court has declined to hear an appeal of a court order requiring California to provide improved housing for disabled inmates being held in county jail under Realignment.  Jennifer Chaussee of Reuters reports that a 2009 court order requiring California to drastically reduce its prison population prompted officials to move some disabled offenders to county jails. A separate order issued in 2012 required the state to track the roughly 2,000 disabled inmates in custody and report any ADA requirements to county jails during transfers.  The state complied with the order after it was issued, but also sought review on appeal of the requirements.

It has long since been clear that the Justice Department is working, not for ordinary citizens who have benefited from the crime reduction we've enjoyed with longer sentences, but for the drug pushers who'd prefer that we go back to the disastrous, crime-ridden ways of the Sixties and Seventies.

Today the pushers got another (but hardly unexpected) boost when DOJ recommended large scale retroactive application of the newly reduced drug guidelines.  

One of the theories for lower sentences is that they are needed to reduce DOJ's very tight budget.  Today's move pokes a hole in that line, what with the significantly increased litigation costs certain to come about as tens of thousands of gleeful drug traffickers file motions and demand hearings to reduce their fully lawful sentences.

The Department's statement follows the break.

Look for What You Don't See

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Roll Call has an article out this morning about the agenda Majority Leader Harry Reid will pursue for the rest of this year's dwindling legislative session.

There's a bunch of stuff on it:  The Highway Bill, VA reform, student loans, energy efficiency, and the Export-Import Bank, among many others.

One omission caught my eye  --  the Smarter Sentencing Act.  This does not necessarily mean that it won't be brought up.  But if you're an SSA backer, you would not be happy having read Roll Call's assessment of what lies ahead  this year.

As for next year:  I don't know of anyone who expects the Party principally backing the SSA to get stronger; indeed the only question is how much weaker it's going to be after the November election.

News Scan

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Supreme Court Rejects Death Row Inmate's Appeal: The U.S. Supreme Court has rejected an appeal from a Texas death row inmate whose attorneys sought the source of lethal injection drugs used in executions.  KWTX reports that 41-year-old Robert James Campbell was sentenced to death for a 1991 rape, robbery and murder of a Houston bank teller.  A lower federal appeals court recently halted Campbell's execution to allow his attorneys additional time to look into whether or not their client is mentally impaired and therefor ineligible for the death penalty. 

Thousands of Illegal Immigrants Flood US Borders: Nearly 700 illegal immigrant children have taken refuge in an Arizona Border Patrol warehouse, and the President has ordered FEMA to lead the government's response.  The Associated Press reports that between October 2013 and May 2014, authorities arrested nearly 50,000 unaccompanied children crossing the border, a number that is up more than 90 percent from the year before.  The Obama administration has asked Congress for $1.4 billion in order to help cover the cost of housing, food and transportation for the children, and has announced plans to house more than 1,000 of them at various military bases across the country.

Ex-Felon Responsible for Vegas Mass Shooting: Police in Las Vegas, Nevada report that one of the gunmen responsible for this weekend's deadly mass shooting that left two police officers dead was a convicted felon with a history of making threats against government agencies.  Mike Blaskey and Colton Lochhead of the Las Vegas Review-Journal report that 31-year-old Jered Miller and his 22-year-old wife Amanda entered a Las Vegas pizzeria Sunday morning and killed two police officers before driving to a Wal-Mart a few miles away where they killed a bystander prior to taking their own lives.  The Millers had a history of threatening violence to public officials, court employees and Attorney General Eric Holder.

Last week, a particularly interesting dialogue developed here between a former Scalia clerk and yours truly on whether the President broke the law in releasing the Taliban All-Terror Team without giving the required 30 days' notice to Congress.  The former Scalia clerk, Prof. Lee Otis, thought not; I disagreed.

Now comes Prof. David Pozen at Columbia, a former Stevens clerk, with another take on it.  Prof. Pozen's piece begins:

Section 1035(d) provides--without exception--that the Secretary of Defense "shall notify the appropriate committees of Congress of a determination" to transfer or release an individual detained at Guantanamo "not later than 30 days before the transfer or release of the individual."  The Secretary of Defense did not give advance notice in this case.  And yet, rather than argue that Section 1035(d) is unconstitutional as applied to the Bergdahl matter, the Administration has (as I understand it) invoked the absurd-results canon and argued that Section 1035(d) "should be construed not to apply to this unique set of circumstances."  We are asked to read the NDAA as if it exempts a sensitive prisoner swap from its congressional notification scheme, when the plain text of the statute does no such thing.

There are various frames through which this episode might be viewed:  as a dispute about the President's power over prisoners of war, the winding down of Guantanamo, or the "unique set of circumstances" behind the Bergdahl exchange.  I want to place the episode in a different and broader context, involving the Obama Administration's efforts to cope with congressional obstreperousness more generally.  Across a range of areas, this Administration has responded to perceived legislative misconduct by interpreting away legal limits that might have seemed to stand in its way.  Interpretation has been a tool of constitutional adaptation and retaliation.
I would hope that whoever the defense lawyer is will have the minimal decency to accept this tribute to his client's 14 year-old victim, but legal culture is so obsessed with client-uber-alles that I'm taking no bets.
At the proverbial end of the day, the moral engine of the argument for President Obama's action is that, in the United States, we do what is necessary to bring our soldiers home.  See, e.g., David Brooks's piece today in the NYT.

I agree with this.  Sgt. Bowe is/was an American soldier.  He was almost certainly a deserter, although under what circumstances remains in some doubt.  He might conceivably have been a collaborator, although much of the evidence being used to make that argument derives from his actions while with the Taliban.  Without knowing more about whether he was their comrade or their captive, such evidence is so inherently unreliable that it must be discounted.

So, yes, he was an American soldier, and for that reason alone was worth bringing home no matter what else he is, including a deserter or worse than that.

Where Obama and his apologists err is in thinking that this ends the argument.  

News Scan

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Ex-Con Charged With Murder in Brutal Stabbing: A New York man released from prison just two weeks ago has been charged with the brutal stabbing of two young children, leaving a six-year-old boy dead and a seven-year-old girl fighting for her life.  Ryan Gorman and Lydia Warren of the Associated Press report that Daniel St Hubert completed a five-and-a-half year sentence for attempted murder and assault and was granted parole on May 23 despite a history of mental illness.  Police believe he may also be responsible for two more stabbings that left an 18-year-old woman and a homeless man severely injured.  

CA Lawmakers Introduce Gun Bill: A trio of California lawmakers, including Senators Barbara Boxer and Dianne Feinstein, have introduced a bill aimed at keeping firearms away from individuals who demonstrate a high risk level of committing violence.  Curtis Tate of McClatchy Newspapers reports that the bill, known as the Pause for Safety Act, would allow family members and others to seek a court order to prevent a person who is a danger to themselves or others from purchasing or possessing a firearm.  A similar bill aimed at broadening background checks for gun purchases failed last year after reaching the U.S. Senate.

Miss. High Court Declines 2nd Review of Death Penalty Case: Mississippi's state Supreme Court has declined to take a second look at an appeal brought by death row inmate Jason Lee Keller.  The Associated Press reports that Keller appealed his sentence after claiming that statements he made to police while being treated in the hospital for a gunshot wound should have been inadmissible during trial.  Keller was convicted and sentenced to death in 2009 for the murder and robbery of a convenience store owner.

Over the Top

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This past Wednesday, NPR radio had a lengthy interview with Nell Bernstein, author of a new book on juvenile detention facilities, titled "Burning Down the House: The End of Juvenile Prison."  A lot of claims are made by the author and I'm sure some are true; the juvenile justice system is often ineffective in reforming kids.  But even those who lack any expertise in the topic might begin to think that Ms. Bernstein is, shall we say, taking liberties when she makes the claim (at the 29:45 mark) that psychiatric experts agree that even a "few hours" of solitary confinement can make people crazy.  And when the comparison is made between solitary confinement in the juvenile justice system and the "cold cells" used by the CIA to emotionally break down terrorists, then maybe the reporter ought to consider asking some tougher questions.    

The Coming Bergdahl Pardon

Most reliable reports suggest that five years ago, as the battle against the Taliban was fully underway, Sgt. Bowe  Bergdahl voluntarily left his post after becoming disillusioned with what he viewed as the enormous damage the United States had done to Afghanistan.  In other words, he deserted.  He may have defected; that is unknown for the moment.

In recent days, the Administration has justified releasing five top terrorist commanders to return to the battlefield (after a fig-leaf stopover in Qatar) on the grounds that Bergdahl was still an American soldier, and America does not leave its people behind.  The President's supporters tell us that, if Bergdahl deserted  -- or even became a collaborator  --  we have the military justice system that will, at the right time, fully investigate the matter, put the facts on the table, and, if warranted, impose punishment.

Ladies and gentlemen, it's not gonna happen.  There isn't going to be any honest investigation, and there isn't going to be any punishment.  The President is going to issue a preemptive pardon to make sure the process never gets off the ground.

This is not just because the entire episode has turned into a P.R. disaster for the White  House, one that started when Bergdahl's  father showed up arm-in-arm with Obama wearing a Taliban-style beard and praising Allah in Arabic, although that's a good deal of it.  It's because, among other things, Obama doesn't see that much wrong with Sgt. Bergdahl's view of the matter.

Unreasonable Minds


The DSM defines a delusion as a false belief based on an incorrect inference about external reality that is firmly held.  If a defendant commits a homicide based on a delusion, can he avail himself of the defense of imperfect self-defense?  As Kent mentioned on Wednesday, the California Supreme Court recently held that the answer is "no" in the case of People v. Elmore.  The court bases it conclusion largely on the idea that an imperfect self-defense requires that a person's unreasonable beliefs must be caused by objective circumstances that he misperceives negligently and that delusional self-defense is properly considered in the realm of the insanity defense.  My sense is that this is mistaken and I want to show why.

News Scan

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Texas Murderer Released From Prison: A Texas man convicted of murder and sentenced to 75 years in prison in 1985 will be released from prison Thursday after serving less than half of his sentence.  Robert Arnold of KPRC Houston reports that the state is legally obligated to release David Port early because he was sentenced under a previously existing Texas law that allowed violent offenders to shorten their sentences by earning 'good time' credits.  The law was abolished in 1995, but a ruling by the U.S. Supreme Court requires that the credits apply to murderers sentenced under the former law.  Current Texas law requires violent offenders convicted of a first-degree felony to serve at least half of their sentence before they are eligible for parole.

Louisiana Death Penalty Bill Dies: A bill to resolve challenges to Louisiana's death penalty process has been dropped after passing both houses.  Michelle Millhollon of The Advocate reports that House Bill 328 would prohibit legal action to force disclosure of the source of lethal injection drugs and would have allowed the state to to buy execution drugs from compounding pharmacies outside of Louisiana.  The bill's author, state Rep. Joseph Lopinto, disgruntled about the Governor's veto of another one of his bills, said he was dropping SB 328 bill because it was a short-term fix to an issue being which will be settled by the Supreme Court.    

CA High Court Upholds Death Sentence: California's state Supreme Court has upheld the death sentence for a man convicted of robbing and murdering a woman more than 16 years ago.  Parimal Rohit of Westside Today reports that Donald Ray Debose shot his victim and placed her in the trunk of her car before lighting it on fire and leaving the scene, the woman was rescued from the car but died five days later from the injuries she suffered.  Debose was also convicted of attempted murder for a similar attack he committed a week after the first killing, but his second victim was able to survive a gunshot wound to the head.

Delusional Self-Defense

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A narrowly divided California Supreme Court on Monday rejected a delusional belief in a need for self-defense as a device to reduce a murder charge to manslaughter in People v. Elmore, S188238:

A killing committed because of an unreasonable belief in the need for self-defense is voluntary manslaughter, not murder. "Unreasonable self-defense, also called imperfect self-defense, 'obviates malice because that most culpable of mental states "cannot coexist" with an actual belief that the lethal act was necessary to avoid one's own death or serious injury at the victim's hand.' (People v. Rios (2000) 23 Cal.4th 450, 461.)" (People v. Beltran (2013) 56 Cal.4th 935, 951.)

The question here is whether the doctrine of unreasonable self-defense is available when belief in the need to defend oneself is entirely delusional. We conclude it is not. No state, it appears, recognizes "delusional self-defense" as a theory of manslaughter. We have noted that unreasonable self-defense involves a mistake of fact. (In re Christian S. (1994) 7 Cal.4th 768, 779, fn. 3 (Christian S.).) A purely delusional belief in the need to act in self-defense may be raised as a defense, but that defense is insanity.

For what it's worth, CJLF submitted one of its rare briefs in support of a defendant in Christian S.

News Scan

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More Inmates Leaving Prison Without Supervision: A report released Wednesday by the Pew Charitable Trusts indicates that an increasing number of inmates across the country are being released from prison after serving their full sentences without any form of supervision.  The Associated Press reports that 22 percent of inmates released in 2012 left prison without any form of probation or parole.  A study conducted in New Jersey in 2013 found that inmates released to supervision prior to the end of their sentence were 36 percent less likely to return to prison compared to those who 'maxed out' their sentence.

Convicted Double-Murderer Sentenced to Life in Prison: An Arizona man convicted of murdering an elderly couple after escaping from prison in 2010 has been sentenced to life in prison plus an additional 235 years.  Skyler Cooper of KRMG reports that 49-year-old John McCluskey was given an automatic life sentence after jurors were unable to reach a unanimous verdict on the death penalty.  Attorneys for McCluskey argued that their client had a low IQ and suffered from brain damage, claims that the prosecution disputed calling him a remorseless, cold-blooded killer.

Released Murderer Arrested for Sexual Assault: An Arizona man released from prison in 2012 after serving 37 years for two   murders has been arrested for the sexual assault a young female relative. Richard Ruelas of The Republic reports that 78-year-old William Macumber was sentenced to life in prison after being convicted of murdering two people in 1962, but was released in November 2012 under a plea agreement with prosecutors after the Arizona Justice Project raised questions about evidence in the case..  Macumber was arrested in October 2013, less than a year after his release, and charged with four counts of sexual assault of a child.  Each charge is classified as a felony, punishable by a minimum of four years behind bars.

After last week's House hearing on federal penalties, and in particular on federal mandatory minimum sentencing, I wrote to Jeremy Haile of the Sentencing Project, which has been one of the leading organizations promoting what it views as reform of mandatory minimums, and, in particular, the Smarter Sentencing Act.  I sent Mr. Haile a number of questions and invited his response.  He gave it this morning, and has allowed me to put it up here.

After the break, I reiterate the questions I sent him, and his answers.  Since he took a good bit of trouble to put the answers together  --  although he owes me nothing  --  I would ask that, if readers care to look at my questions, they look at his answers with equal attention.  Of course I disagree with almost all of them, and in later posts, I hope to be able to continue the discussion.

Democracy is positively the worst form of government except for all the others that have ever been tried, goes the old Churchill quip.  Further evidence comes from yesterday's primary election in California.  Suspended Senator Leland Yee, indicted for corrupt activities with a notorious gang, got almost 10% of the vote for Secretary of State, the office that is supposed to protect the integrity of our elections.  What are those people thinking?

Fortunately, that third-place finish is insufficient for him to proceed to the general election in November.
Among preparing for the Over-Criminalization Task Force hearing, following the fabricated waiting list scandal at the VA, and now trying to keep up with the numerous lies being peddled about the release of the Taliban All-Terror Team, I've neglected to mention one quite important story.  It's the kind of story that, in days of yore (to wit, during George Bush's presidency) was the focus of a great deal of outrage in the press, an extensive grand jury investigation, and eventually the conviction of the Vice President's chief of staff.

The current story is of the White House's leaking the name of the Afghanistan CIA station chief.  The Administration's version is that it was "inadvertent," and I lack any evidence to say otherwise.  Still, it's odd that this gross security breach is being investigated by  --  no, not the FBI  --  Obama's hand-picked in-house Counsel.

The CIA's Afghanistan station chief is in the middle of a war zone and is, to say the least, a juicy target for the Taliban.  By contrast, when Richard Armitage leaked the name of Valarie Plame, a CIA desk jockey sitting in her plush office in Langley, Virginia, the MSM went berserk.  Armitage was never indicted, but Scooter Libby was.  Libby was convicted and sentenced to a stiff fine and jail. President Bush commuted the jail term, however, after an op-ed in the Washington Post argued that this was the just outcome.

Without saying more for the moment, I cannot help but be amazed by the forgiving, if not dismissive, attitude the press has taken toward the more recent and very dangerous CIA outing, compared with the savage attitude it took toward the comparatively inconsequential Valarie Plame case.

Judicial Control of the Courtroom...

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...takes on a whole new meaning.
There is a well-established rule of professional responsibility that the client decides the goals of representation, and the lawyer decides the means of achieving the goals.  There are exceptions for persons not capable of decision, such as the mentally incompetent.

Some capital defense lawyers seem to think that there is a "death is different" exception for capital cases.  There is not.  If the client directs his attorney not to offer mitigating evidence in the penalty phase, he has no ineffective assistance claim if the attorney follows his direction.  See Schriro v. Landrigan, 550 U.S. 465, 475 (2007).  (See also CJLF's brief in that case.)

Yet they never give up.  As noted in today's News Scan, the California Supreme Court today affirmed the conviction and death sentence of Steven Brown for the sodomy and murder of 11-year-old April Holley.  Brown decided he would rather be sentenced to death than life in prison and instructed his lawyer to present no mitigating evidence.  His lawyer and the trial judge made sure this was a competent decision.  No, that is not ineffective assistance.  Quoting earlier decisions, "an attorney‟s duty of loyalty to the client means the attorney should always remember that the decision whether to forego legally available objectives or methods because of non-legal factors is ultimately for the client . . . ."

Now, California Supreme Court, it is high time to recognize that what is true at trial is equally true on appeal.  Sometimes death row clients say, "Get my appeal done promptly; don't stall" or "Only challenge the guilt verdict, not penalty; 'give me liberty or give me death' " or "Don't challenge the judgment at all; I'm good with it."  If the client is mentally competent, the lawyer can advise against these decisions, but if push comes to shove, it is the client's decision to make.  And, no, the lawyer cannot decide on his own that the client is incompetent to make the decision.  Only a judge can appoint a conservator to make these decisions for an incompetent client.

I have letters from death row inmates whose lawyers have ignored their instructions, and the California Supreme Court ignores their protests.  That's not right, for the reasons you just said.

News Scan

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Habitual Rapist Charged in Violent Sexual Attack: A three-time convicted rapist released from custody last year has been arrested after he broke into a woman's home Sunday evening and beat and raped her at knifepoint.  The Boston Globe reports that 45-year-old Essie Billingslea was released last year from a treatment center for the sexually dangerous after a jury determined he was no longer posed a threat to the community, despite a warning from a board of psychologists that said he would likely to re-offend.  Billingslea has pleaded not guilty to charges of aggravated rape, kidnapping, home invasion, and assault and battery.

CA High Court Upholds Death Sentence: California's state Supreme Court ruled Monday to uphold the death sentence for a man convicted of raping and murdering an 11-year-old girl more than two decades ago.  Lewis Griswold of the Fresno Bee reports that 46-year-old Steven Brown was already serving a prison sentence for the sexual attack of an elderly woman when he was charged with the murder of 11-year-old April Holley.  In 2008 the Supreme Court upheld the death sentence for 51-year-old Charles Keith Richardson, who was an accomplice in Holley's murder. 

Repeat Felon Attempts to Kidnap, Rape Teen: A Louisiana man with a lengthy criminal history has been arrested after police say he attempted to kidnap, rob, and rape a 15-year-old boy.  Amber Stegall of WAFB News reports that 44-year-old Johnnie Pearson, who was convicted of manslaughter and sentenced to prison in 1990, approached the boy and threatened him with a handgun before telling him to empty his pockets and forcing him to pull his pants down behind a vacant home. 
The President has justified the deal that released five top Taliban commanders, and his refusal to notify Congress of the release in advance (as required by statute), principally on two theories.

As to the refusal of notification, the Administration has said that the President's signing statement accompanying the statute gave him authority to undertake the release in emergency circumstances without telling Congress.

As to the release itself  --  which was the price for the return of the allegedly captive Sgt. Bowe Bergdahl  --  the White House's answer (per Jay Carney) has been, "He was a prisoner in an armed conflict, a member of the military, and in that situation the United States does not leave its men and women behind."

Neither statement is true.

A Willie Horton Moment?

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James Taranto has this column at WSJ, quoting a two-year-old Rolling Stone piece on Republican warnings that swapping terrorists for the deserter would be "Obama's Willie Horton moment."

Taranto also provides a reminder on the reality of the Willie Horton episode:

Willie Horton has become a sort of urban legend on the left, which seems to remember him vaguely as a victim of some sort of discrimination. In fact he is an actual man, now 62 years old and incarcerated in Maryland. He had previously served time in Massachusetts for the brutal 1974 murder of gas-station attendant Joseph Fournier. But in 1986 he was released on weekend furlough. He deserted and turned up the following year in Maryland, where he broke into a home, tied up and pistol-whipped the man of the house, and raped his fiancée.

In 1976, Gov. Dukakis had vetoed a bill to exclude first-degree murderers from the furlough program. But for that decision, Horton would have been unable to commit his subsequent crimes. Before Dukakis ever faced George H.W. Bush, Al Gore sought to hold him responsible for his furlough policy, which had been the subject of a Pulitzer Prize-winning investigation by the Lawrence Eagle-Tribune.
Horton was a genuine example of a stupid soft-on-crime decision resulting in the violent victimization of innocent people.  The use of this episode by political opponents was completely justified.  It is entirely appropriate that voters understand the real consequences of these decisions to real people.
It's difficult to imagine an episode in which the President's disregard of a major national security law he signed last year is the least important part of the story, but Obama has pulled it off in his terror-abetting deal that will bring home Sgt. Bergdahl.

Paul Mirengoff leaves nothing to the imagination in his Powerline piece, in which he notes, inter alia:

Nearly all of the exceptional elements of Obamaism are present. The president appeases a deadly enemy (recall his statement that he hopes through the exchange to gain the trust of the Taliban); makes life more dangerous for an ally we are about to abandon (Afghanistan will bear the brunt of the terrorism unleashed by the five Taliban commanders); and disregards American law (which required him to consult with Congress). Moreover, he does all of this on behalf of an anti-American deserter and his jihadist-sympathizing father.

You couldn't make this up.

At the end of the piece, Paul quotes me asking what more Obama can do to damage the country.  Of course I don't know exactly, but there are those thousands of heroin pushers yet to get their promised clemency....

Pop quiz, class.  Who said this while getting his campaign underway in 2007:

I will not use signing statements to nullify or undermine congressional instructions as enacted into law. The problem with this administration is that it has attached signing statements to legislation in an effort to change the meaning of the legislation, to avoid enforcing certain provisions of the legislation that the President does not like, and to raise implausible or dubious constitutional objections to the legislation. 

Right you are!  No wonder President Obama plans to release thousands of calculating law breakers!  He can sympathize with them, being one.  His Administration cited the White House's signing statement to justify his point-blank violation of a statute enacted just last year.  The statute explicitly bars the President from releasing Gitmo prisoners without 30 days' notice to Congress.

Hey, well, look, that was then.  When a pretext must be found for returning five Jihadist generals to the field to kill more Americans, a pretext will be found.

And in case you think I'm being a rabid partisan in calling Obama a "law breaker," let me introduce you to Jeffrey Toobin of CNN.
Today's opinion in Bond v. United States quotes Justice Felix Frankfurter's classic article, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527 (1947).  I have modified that title a bit for this post.

In Bond, the Court "ducked" the constitutional question of whether Congress had the authority to make a federal case out of an ordinary assault perpetrated by chemical means, which would normally be a purely state case, in order to implement the international Convention on Chemical Weapons.  The Court did so by finding that the statute doesn't actually reach Ms. Bond's conduct at all, in the process plowing some difficult ground in the field of statutory interpretation.

I had previously posted on this case in January 2013, when the Court took the case up, and last October, when the Court heard oral argument.  As previously noted, Carol Bond's "husband and best friend had an affair, resulting in the friend's pregnancy.  Bond was certainly justified in being angry and taking action, but poison was over the top.  That is a crime for which she should have been prosecuted and punished -- by the Commonwealth of Pennsylvania" not the federal government.  Today the Supreme Court agreed unanimously, but disagreements as to why explain why this case took so long.

"Hard cases make bad law," it is often said.  This case exemplifies how bad laws make hard cases.  We begin with treaty negotiators botching the drafting process, with Congress meekly following suit.  The result is a mess. 

Stark Raving Mad

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I have said many times that this Justice Department is politicized to a dangerous degree, bends its decisions to ideology, engages in gross overreach, and often views criminals and inmates as its constituency over normal people.  Much more often than I would like, the Supreme Court goes along with it.

But there are limits on what kind of conservative criticism is still connected to the real world, and this surpasses them by a wide, wide margin.

There are weighty questions on how much government surveillance is too much in a dangerous world, but.........ummmmm..........hello!

News Scan

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Cop Killer Sentenced to Death: A Florida man convicted of killing two police officers nearly three years ago has been sentenced to death.  The Global Dispatch reports that Dontae Morris killed the officers in June 2010 in what started as a routine traffic stop after his girlfriend was pulled over for not having a license plate on her car.  Morris is already serving a life sentence for a conviction last March for an unrelated murder.   

Supreme Court Rules in Favor of Jilted Wife: In a unanimous decision, the U.S. Supreme Court ruled in favor of a woman who was convicted under a federal chemical weapons law after she tried to poison her husband's mistress.  Jeremy Roebuck of The Inquirer reports that 42-year-old Carol Anne Bond was sentenced to six years in prison in 2007 after pleading guilty to two counts of using a chemical weapon.  She was prosecuted under a 1999 law based on a chemical weapons treaty.  The justices threw out her conviction Monday ruling that Bond should have been prosecuted under state law rather than an international treaty.  

NJ Governor Signs Sex Offender Bill: New Jersey Governor Chris Christie has signed a law creating tougher penalties for sex offenders who prey on young children.  The Associated Press reports that the law, known as the "Jessica Lunsford Act" imposes a mandatory 25-year sentence without parole for anyone convicted of assaulting a child under the age of 13.  New Jersey is now the 46th state to enact a law increasing sentences for criminals who prey upon children.  

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