September 2014 Archives

Academia, Over the Edge

Goddard College in Vermont has invited Mumia Abu Jamal, convicted cop killer and former death row inmate, to give the commencement address.  The story is here.

Question:  What would happen if Darren Wilson, the not-even-criminally-charged killer of Michael Brown in Ferguson, Mo., were invited to give the commencement address at any college or university in the United States?

Possible answers:

1)  The media would congratulate the students for independence of mind.

2)  We would hear a lot about the First Amendment.

3)  The NYT would remind us that Wilson is innocent until proven guilty.

4)  The head of the student organization that issued the invitation would be brought before the Honor Council for insensitivity to the feelings of African American students and expelled.

We report, you decide.

P.S.  I thought I had heard it all when Columbia hired Kathy Boudin as a professor.  I confess error.

David Muhlhausen, a Heritage Foundation research fellow for the Center for Data Analysis, has this article with the above title at U.S. News & World Report. He cites several of the studies noted on our deterrence page.  The full list of citations and abstracts is here.

The anti side is trying to create the impression that the deterrence debate is over and they have won.  They frequently cite a report by Nagin et al., funded in part by a government grant and published by a government agency, saying that the studies do not provide sufficient proof to base policy decisions. 

The paper clearly states in the front matter that it represents only the opinion of the named authors.  (It may not even represent that, as James Q. Wilson, by far the biggest name on the cover, died before the final report was issued.)  It is not any kind of official conclusion by the funding agency, but the other side tries to represent it as such. 

Opponents who are either especially mendacious or who have been misled by their own movement's cleverly worded half-truths will claim that deterrence has been affirmatively disproved.  No one who is both knowledgeable and honest claims that.

News Scan

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Murderer Sentenced to Life: A Massachusetts man convicted of murdering three people in 2011 has been sentenced to life in prison without the possibility of parole.  Anthony Fay of WWLP News reports that Caius Veiovis was sentenced to three consecutive life terms for the killings, which is the mandatory sentence required under state law.  Two other men were also convicted in the murders and are currently serving life terms. 

Prosecutors May Pursue the Death Penalty for Beheading Suspect: Prosecutors in Oklahoma have announced that they will likely seek the death penalty against 30-year-old Alton Nolen, the man accused of beheading a woman at his former work place last week.  Michael Martinez of CNN reports that Nolen, an ex-con, allegedly attacked two women at a food processing plant after learning that he had been fired, Nolen beheaded one woman and was attempting to behead the other when he was shot by a reserve deputy sheriff.  Nolen has a lengthy criminal record including convictions for assault and battery on a police officer, escape from a detention center, and drug possession.

Inmate Faces Additional Charges in Cold Case Killing: A New Mexico man extradited to Washington in 2003 to plead guilty in a cold case murder is now back in his home state to face charges in another cold case killing.  Sara Jean Green of the Seattle Times reports that 63-year-old Anthony John Morris pled guilty to strangling a 19-year-old Seattle woman in 1982 after DNA linked him to the crime.  While serving his prison sentence in Washington, Morris was linked to another cold case murder in Albuquerque and transferred back to his home state for trial.  If convicted in the Albuquerque murder Morris he will return to Washington to serve out the rest of his sentence while authorities in New Mexico decide whether or not he should serve prison time in their state.

No Word From the Long Conference

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The expected orders list the day after the "long conference" didn't come today, as it has in prior years. SCOTUSblog has this editor's note at the top of their home page:

In previous years, the Court released orders the morning after the Court's "Long Conference." It has not done so this year. Beginning last Term, the Court consistently considered petitions at least two times before granting certiorari. To the extent that practice continues -- and there is no affirmative evidence the Court intends to drop it -- we would not expect orders granting certiorari today.

Senate Watch

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At five weeks to election day, Chris Cillizza at the WaPo aggregates the election forecasting models for us.  "All three major election forecasting models saw an uptick in the likelihood of Republicans winning the six seats they need to retake the Senate majority over the past week, movement largely due to the party's strengthened chances in Alaska, Colorado and Iowa."

Comparing American Cops with Islamic Terrorists

The title of this entry is taken from Heather Mac Donald's article in the City Journal. Her subtitle is, "With His UN Speech, Obama Sinks to a Shameful New Low."

The article begins:

President Obama has announced to the world that America's police officers are as disruptive to civil society as Middle Eastern beheaders and Russian-backed rebels. Speaking to the U.N. General Assembly yesterday, he agreed with "America's critics" who point out that America, too, has "failed to live up to [its] ideals; that America has plenty of problems within [its] own borders." He went on to explain the particulars:

In a summer marked by instability in the Middle East and Eastern Europe, I know the world also took notice of the small American city of Ferguson, Missouri--where a young man was killed, and a community was divided. So yes, we have our own racial and ethnic tensions. And like every country, we continually wrestle with how to reconcile the vast changes wrought by globalization and greater diversity with the traditions that we hold dear.

All the more important, then, for Obama to set the record straight. The idea that the Ferguson riots were the result of a predatory police force tantamount to sectarian murderers in the Middle East is a poisonous calumny. The threat to America's blacks comes almost exclusively from other blacks, not from the police. Every year, thousands of African Americans are gunned down by other African Americans, with no attention from the media and local government officials. 

The anti-white bigotry, and specifically the anti-white cop bigotry, of this Administration is appalling, and the responsibility for it rests less with Eric Holder (although there too) than with his boss.

News Scan

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Convicted Killer Sentenced to Death: A Florida man convicted of murdering an elderly man in 2013 has been sentenced to death.  WJHG News reports that 29-year-old Kevin Jeffries and his cousin tortured the man in an effort to find out the pin number to his ATM card before strangling him to death.  In addition to the death sentence, Jeffries was also sentenced to two consecutive life terms for armed burglary and armed robbery.  His cousin was also convicted and was sentenced to life without parole.

Kidnapping Suspect Linked to Cold Case Murder: Police in Virginia have announced that the man arrested in connection with the recent disappearance of a University of Virginia student has been linked to a 2009 cold case murder of another young woman.  Meghan Keneally of ABC News reports that 32-year-old Jesse Matthew Jr. was arrested in Texas last week for the kidnapping of Hannah Graham.  After his arrest, authorities revealed that Matthew had a forensic connection to the 2009 death of Morgan Harrington who disappeared after attending a concert near the University of Virginia.  Matthew is expected to be extradited to Virginia some time this week to face charges of kidnapping.    

Child Rape Suspect on the Run: A Massachusetts man out on bail for several felonies is on the run after authorities say he cut off his GPS monitoring device and assaulted his step-father.  CNN reports that 26-year-old Gregory Lewis was arrested in August on four counts of felony child rape, he was released on bail and required to wear a GPS monitor-a month later, Lewis removed the monitoring device and fled the area after stealing his parents' vehicle.  Police say Lewis returned to his parents' home over the weekend where he beat and tied up his step-father before stealing his gun and roughly 200 rounds of ammunition.  Lewis is still on the run and is considered to be armed and dangerous.  

The Long Conference

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The U.S. Supreme Court justices are meeting today to consider the stack of petitions built up over the summer.  These are petitions from people who have appealed their cases to the second-highest level of courts and now want the Supreme Court to review them.  There are so many such petitions that the high court can only take about 1% of them.

The Cert Pool has the conference list.  There are over 1800 cases on it.  That's why it's called the "long conference."

Holder's Legacy of Racial Politics

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Edwin Meese and Kenneth Blackwell have this op-ed in the WSJ, with the above title.

Attorney General Eric Holder, who announced his resignation on Thursday, leaves a dismal legacy at the Justice Department, but one of his legal innovations was especially pernicious: the demonizing of state attempts to ensure honest elections.

The Power of Whinerism

The subject of this post is not specifically about criminal law, but its undertow is very much about the direction in which criminal law is headed.

The subject is Whinerism.  Whinerism is liberal braying about whatever group the Left elects to portray as "victims."  Criminals, and particularly drug pushers, are a Big Thing on the Whinerism agenda just now, see, e.g., the Smarter Sentencing Act and Eric Holder's clemency initiative.  But football Sunday brings to mind another item high on Whinerism's list:  Changing the name of the Washington Redskins.

The Number One "Root Cause"

In my last post, I noted  --  pivoting from Prof. David Cole's article  --  that (1) the illegitimacy rate among African Americans has skyrocketed from the 1950's to today. This happened at the same time that (2) African Americans have become a significantly greater share of the population of criminals sent to prison, as Prof. Cole laments, and (3) racial discrimination is significantly if not massively less than it was in the Fifties.

What I did not realize at the time I posted was the huge degree to which black out-of-wedlock births have increased.  As this graph provided by the Heritage Foundation shows, in the mid-Fifties, approximately 19% of black children were born outside marriage, or roughly one in five.  Today, the number is a bit over 72%, or almost three-quarters.  (The graph is the ninth one listed; you have to scroll about two-thirds of the way down the page to see it).

The rate of white illegitimacy has also considerably increased from what it was 60 years ago.  Today, almost three in ten non-Hispanic white children are born out of wedlock  --  a rate that is ominous to say the least, but does not not even approach the black rate.

With racial barriers so much lower and black illegitimacy so much higher than it was when Eisenhower was President, I am further convinced that it's not white discrimination but the catastrophic failure of black fatherhood that should be looked to as the principal cause of the increasing percentage of blacks in the prison population.  If that is mistaken, I will be happy to be corrected by commenters.

A Failure of Curiosity

One of the most valuable qualities in scholarship is curiosity.  The start of discovering the truth about X is to wonder how X got to be the way it is.  It was thus troubling and, well, curious to see the following passage in Prof. David Cole's piece in the New Yorker celebrating Eric Holder's tenure as Attorney General:

[N]o aspect of American life has appeared more resistant to racial progress than the criminal-justice system. In the nineteen-fifties, when segregation was legal, African-Americans made up about thirty per cent of the prison population; today, they make up thirty-seven per cent, and that population has increased exponentially.

Prof. Cole is without doubt correct that the last 60 years have seen massive progress in treating African Americans with basic dignity, and affording them much more equitable economic opportunities.  That should, but apparently in Prof. Cole's mind does not, raise the following question:  Why, given such enormous progress, are African Americans a greater share of the prison population  --  which is to say, a greater share of the criminal population  -- now than they were when discrimination was rampant?  Put another way, the question is why, when bigotry has been in retreat for six decades, has criminality in relative terms spiked among blacks? 

The beginning of the answer, I would suggest, is that the "root cause" of criminal behavior (as liberals are fond of saying) does not lie in racial prejudice.  It lies in the attitudes spawned by a culture  -- increasingly and now markedly African American culture  --  that tolerates the biology of fatherhood while ignoring its social and moral responsibilities.

Miguel Bustillo, Ana Campoy, and Andrew Grossman report in the WSJ:

At a news conference, Sgt. Jeremy Lewis of the Police Department in Moore, near Oklahoma City, said the suspect in the stabbing spree, Alton Nolen, began attacking workers at random after he was fired from his job at the city's Vaughan Foods Inc. processing plant around 4:05 p.m. local time on Thursday.

When police arrived, two women in the plant's front office area had been attacked and Mr. Nolen, 30, lay wounded from gunshots, Sgt. Lewis said. One of the women, Colleen Hufford, 54, was decapitated. "He did kill Colleen and did sever her head," Sgt. Lewis said.

Police determined that as Mr. Nolen attacked the second victim, Traci Johnson, 43, he was confronted and shot by the chief operating officer of Vaughan Foods, Mark Vaughan, who is a reserve Oklahoma County sheriff's deputy, Sgt. Lewis said. "This off-duty deputy definitely saved Traci's life," he said, describing Mr. Vaughan as a hero. "This was not going to stop if he didn't stop it."

Eric Holder's Resignation

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This isn't entirely fair, but it's not entirely unfair, either.

News Scan

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Louisiana Teens Charged with Murder:  Police in New Orleans, have announced that the two 16-year-olds arrested in connection with Monday's murder of a pizza delivery driver were wearing GPS ankle monitoring devices at the time of the killing.  Tania Dall of WWL News reports that the teens are believed to have gunned down the delivery driver in a carjacking attempt Monday evening, police had been alerted that one of the teens had broken his monitoring restrictions and were waiting on an arrest warrant when the driver was killed Monday evening.  The court has yet to file charges, but it is expected that they will charge the teens as adults.

Serial Killer Sentenced to Life in Prison: A California man convicted of murdering three women in the 1980's has been sentenced to three consecutive life terms without the possibility of parole.  CBS Los Angeles reports that 74-year-old Samuel Little was arrested and charged with the killings after DNA collected from the victims linked him to the crimes.  Little was also linked to four other sexual assaults against women in both San Diego and Mississippi. 

Convicted Murderer Sentenced to Death: A Las Vegas man convicted of kidnapping and murdering a 12-year-old girl four years ago has been sentenced to death.  KATC News reports that in 2010, Thomas Sanders went on a road trip with the young girl and her mother to Arizona, as they were returning to Nevada, Sanders pulled the car over and shot the girl's mother in the head and proceeded to drive the girl cross-country to Louisiana.  Evidence at trial revealed that Sanders shot the girl four times before cutting her throat and leaving her in the woods where she was found by a hunter later that year.  

Timing Holder's Replacement

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"President Obama has yet to reveal his choice to succeed Attorney General Eric H. Holder Jr., but already the Senate confirmation process has begun its march toward contentiousness," Paul Kane and Juliet Eilperin report in the WaPo.  Kristina Peterson reports at the WSJ:

Some Republicans quickly condemned the idea of the Senate considering Mr. Holder's replacement when outgoing lawmakers would still be able to vote on the next attorney general. "Allowing Democratic senators, many of whom will likely have just been defeated at the polls, to confirm Holder's successor would be an abuse of power that should not be countenanced," Sen. Ted Cruz (R., Texas) said
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Some Democrats said it would be a mistake to purposefully delay the process. "It would be irresponsible for anyone to try to delay confirmation of the country's chief law-enforcement officer for political purposes and I would hope responsible members of both parties would cooperate in a thorough hearing and a confirmation vote," said Judiciary Chairman Patrick Leahy (D., Vt.)

News Scan

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Suspect Arrested in Cold Case Homicide: Authorities have arrested the man they believe is responsible for a murder that occurred nearly 20 years ago.  The Associated Press reports that a warrant was issued for 47-year-old Antonio Calvillo less than two weeks after the killing, but police were unable to make an arrest because he fled to Mexico.  Police located Calvillo in San Francisco, CA and arrested him there, he is expected to be extradited to Florida in the near future to face murder charges.

California Voters to Weigh 'Radical' Proposition: This November, voters in California will decide whether or not to approve a proposition that would dramatically change the way certain types of offenders are sentenced.  Stephanie McNeil of Fox News reports that Proposition 47 would reduce certain non-serious, non-violent, drug, and property crimes from felonies to misdemeanors and allow individuals already incarcerated for those offenses to apply for a reduced sentence.  It is estimated that roughly 40,000 people convicted in California each year would be affected by the measure. 

Convicted Murderer Sentenced to Life: A Guam man convicted of murdering three people and injuring nearly a dozen more in a vehicle crash and stabbing rampage has been sentenced to life in prison without the possibility of parole.  Grace Garces Bordallo of the Associated Press reports that 22-year-old Chad DeSoto was sentenced to three life terms for the murders and was sentenced to an additional 15 years for the attempted murder of 11 people.  This was the harshest sentence that could be handed down as Guam does not have the death penalty.  

Eric Holder Leaves

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It is by now old news (about six hours old) that Eric Holder will step down upon confirmation of a successor.

There is much to be said about Holder's stewardship of DOJ, and I'll have some observations in the offing.  His single most memorable moment, I thought, was his statement that the American people are cowards for refusing to talk candidly about race.

There are three things wrong with that statement.  First, it's false.  The American people are not cowards.  Second, not only does race get talked about, it gets talked about obsessively.  This is true in particular of those who want to provoke anger among Obama's voting base (election in six weeks, dontcha know) and guilt among the rest of us, thus to drain the moral confidence we need to enforce our law and keep the country safe.  Last, to the extent honesty is missing from the conversation, it's because Holder's Political Correctness Police in academia and the press can't jump fast enough to shout "racist" at anyone who disagrees with them.

Mass Shootings

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The FBI has released a report titled A Study of Active Shooter Incidents in the United States Between 2000 and 2013.  Devlin Barrett has this story for the WSJ. 

How were the incidents "resolved"?

Holder Stepping Down, Who Is Next?

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Devlin Barrett has this story in the WSJ on the departure of U.S. Attorney General Eric Holder.  Possible replacements mentioned include Solicitor General Donald Verrilli, former White House counsel Kathyrn Ruemmler, and Manhattan U.S. Attorney Preet Bharara.  See also this post by Reid Epstein on WSJ's Washington Wire blog.  Epstein also lists Massachusetts Gov. Deval Patrick and California AG Kamala Harris.

Barrett notes, "One question is whether the Senate, scheduled to return on Nov. 12, would have enough time to confirm a high-ranking cabinet official before the congressional session ends."

A confirmation hearing in the next Congress, with Chuck Grassley in the chair, could be quite informative.  One can hope.

News Scan

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Federal Prison Population on the Decline: For the first time since 1980, the federal prison population is on the decline.  Andrew Grossman of The Wall Street Journal reports that over the next two years, the federal prison population is expected to decrease by more than 12,000 inmates.  Attorney General Eric Holder is attributing the decline to policies he has implemented that reduced lengthy mandatory minimum sentences for supposedly "non-violent" offenders.  However, some Republicans have also pointed to the fact that harsher punishments were critical to the decline in crime rates over the past two decades.

Convicted Killer Seeks New Trial: The Salvadorian immigrant convicted of murdering political intern Chandra Levy is seeking a new trial.  Michael Doyle of the McClatchy DC reports that Ingmar Guandique was convicted nearly four years ago for the 2001 murder of Levy and was sentenced to 60 years in prison.  Guandique is requesting a new trial based on the claim that the prosecution's star witness was a one-time gang leader with an extensive criminal past, therefore making him a non-credible source of information.  

Judges Utilizing New Tools in Sentencing Decisions: Judges from across the U.S. have begun using risk-evaluation tools when sentencing offenders in hopes of better assessing an individual's likelihood to reoffend.  Joe Pallazzolo of The Wall Street Journal reports that judges consider factors such as an offender's age, gender, prior felony convictions, and the amount of times they have been incarcerated in the past year; offenders are then given a 'score' based on how many risk factors apply to them and judges use the result to determine a proper sentence.  Judges aren't required to use the sentencing tools, but there is evidence showing that they are taking them into account.  Use of demographic factors beyond the defendant's control is controversial.

News Scan

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Teen Rapist Sentenced to 100 Years to Life: A California teen who repeatedly raped a store clerk in October 2013 has been sentenced to 100 years to life in state prison.  CBS Los Angeles reports that 19-year-old Joseph Amaya approached the victim and unsuccessfully tried to get her phone number, he returned a few hours later and dragged the woman by her hair to the back of the store and repeatedly sexually assaulted her.  Amaya was found guilty of two counts of forcible rape, two counts of sexual penetration by a foreign object and one count of assault with intent to commit a felony

Pennsylvania High Court Supports Murderer's  Death Sentence: The Pennsylvania Supreme Court has ruled in favor of upholding the death penalty for a man convicted of murder in May 2010.  Matt Miller of Penn Live reports that 25-year-old Jakeem L. Towles challenged his sentence based on the claim that prosecutors had intentionally kept black and Hispanic females out of the potential jury pool and that a defense expert should have been allowed to testify about his intoxication level at the time of the murder. 

Convicted Murderer Sentenced to Life: A Michigan man convicted of stabbing a woman to death in front of her young children has been sentenced to life behind bars.  The Associated Press reports that 36-year-old Stanley Harrison stabbed the woman multiple times in her front yard just three days after being released from prison for a robbery conviction.  A life sentence was the harshest penalty the judge could hand down as the state of Michigan does not have the death penalty.

No on Proposition 47

Proposition 47 on California's ballot would reduce a potload of felonies to misdemeanors.  The District Attorney of San Francisco is a sponsor.  On the other side of the Bay, Alameda County District Attorney Nancy O'Malley is against it.  She has this op-ed in the SF Chron:

Vote NO on Proposition 47. It is a Trojan horse. Under the guise of protecting schools and neighborhoods, Prop. 47 turns certain crimes into misdemeanors and exposes Californians to significant harm. For instance, Prop. 47 makes possession of date-rape drugs into a misdemeanor at a time when we're combatting sexual assault on college campuses. Too many people fall prey to identity theft. By reducing the crime of identity theft to a misdemeanor, Prop. 47 carries neither consequence to the thief nor relief to the victims, who are forever haunted by the aftermath of the crime.

All communities struggle with gun violence. Stolen guns are often used to commit violent offenses, shootings and murders. Too many children and innocent bystanders have died from gunfire. Stealing a firearm, under Prop. 47, would be only a misdemeanor. That reduction does nothing to ensure safe neighborhoods or create safe schools.

Nitrogen Executions Considered Seriously

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We have mentioned several times on this blog the possibility of dumping lethal injection and returning to gas as a method of execution.  One possibility is to simply displace oxygen with a neutral gas, the cheapest and most readily available of which is nitrogen. Amy Jenson reports for KXII:

State Representative Mike Christian of Oklahoma City suggests using nitrogen gas for executions. Christian says it would be painless for inmates and affordable for Oklahoma.

Local State Representative Pat Ownbey says he's in favor of a more humane method, and wants to see more research on the gas.  Now, several professors at East Central University in Ada will take on the task.

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Christian has organized a team of researchers at East Central University to study the gas and its effects. Professor Michael Copeland claims nitrogen hypoxia will make people feel euphoric or drunk. If a person inhales nitrogen gas, the person will quickly become unconscious and die within minutes.
As I noted on this blog over three years ago, I experienced hypoxia in the altitude chamber in Air Force flight training and know it to be painless from that personal experience.

The Oklahoman has this editorial, concluding "state lawmakers, Christian in particular, deserve credit for taking a serious, thoughtful approach to this ultimate application of government power."

News Scan

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American Man Confesses to Brutal Murder in Indonesia: Police in Indonesia have announced that a Chicago man has confessed to murdering his girlfriend's mother in a Bali hotel while the three of them were there on vacation last month.  BJ Lutz of NBC Chicago reports that 21-year-old Tommy Schaefer and his 19-year-old girlfriend were arrested in Bali after hotel employees found the body of the woman's mother in a suitcase in the trunk of a taxi.  Both Schaefer and his girlfriend have been charged with murder, and if found guilty, face a possible death sentence.

New York Man Charged in Violent Weekend Homicide: A New York man with a lengthy criminal past has been arrested and charged with the stabbing death of his wife.  Tina Moore of the New York Daily News reports that 56-year-old Martin Migliozzi, who has several prior arrests for drug possession, stabbed his wife multiple times with a pair of scissors Sunday afternoon in what authorities believe may have been a dispute over drugs.  Migliozzi is facing charges of murder, manslaughter, and criminal possession of a weapon.

Prosecutors to Seek Death Penalty in Pregnant Woman's Murder: Prosecutors in Somerset, Pennsylvania have announced plans to seek the death penalty against a man who allegedly killed his pregnant girlfriend and her baby.  The Associated Press reports that 25-year-old Denver Blough shot his girlfriend, who was 8 ½ months pregnant, in their apartment on May 31.  The baby was delivered by Caesarean section right before the woman died, but the baby was pronounced dead a few weeks later due to complications from the shooting.  Blough remains in custody on two counts of criminal homicide and other charges related to the shooting.
Here in the United States, we get to vote separately for a national legislature, which deals with foreign and military affairs, interstate commerce and other matters which need to be decided on a national level, and for a state legislature which is supposed to have control over those matters that can be handled more locally.  The line isn't as crisp as it used to be, or, in my opinion, as it should be, but it's there, and those separate elections serve to keep government more responsive to the will of the people.  Canada and Australia also have federated governments.

Englishmen, though, only get one legislative vote -- for their representative in the Parliament of the United Kingdom.  That may be about to change, Nicholas Winning and Jenny Gross report in the WSJ.

How to Increase Gross Domestic Product

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The Ig Nobel Prizes were awarded yesterday by the Annals of Improbable Research.

And the prize in economics goes to [drum roll] ...

ISTAT -- the Italian government's National Institute of Statistics, for proudly taking the lead in fulfilling the European Union mandate for each country to increase the official size of its national economy by including revenues from prostitution, illegal drug sales, smuggling, and all other unlawful financial transactions between willing participants.

The full list is here.

Catch and Release

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Federal Judge Richard Kopf at Hercules and the Umpire has this post with a funny cartoon and a serious point.  Down in the comments, he concedes that the point is poorly worded in the original post and substitutes this wording:

My point is really two fold: (1) most of the folks I see should go to prison and most reasonable observers would agree; (2) in the few "close" cases where a judge must decide between prison and probation, I am not good at making that decision personally and [18 U.S.C.] section 3553(a) is not much help.

Jury Tampering

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In Seattle, jury selection has finally begun in the trial of a notorious case that has already been delayed far too long by bizarre rulings by the trial judge.  Here are links to prior posts in this case:

May 2013:  Strength of the Evidence
Sept. 2013: Wash. Sup. Ct. Overturns Bizarre Ruling on the Strength of Evidence
Oct. 2013:  Prosecutor's Discretion to Seek the Death Penalty
July 2014:  Washington Supreme Court Reverses Another Absurd Order in the McEnroe/Anderson Case

CarnationTrialJuryTampering.pngNow, I am informed, the Washington Coalition Against the Death Penalty is handing out flyers at the entrance to the courthouse.  Hundreds of persons have been summoned for the venire, so naturally a large portion of the people entering the courthouse on this day will be prospective jurors.

The flyer is here.

Coincidence that WCADP chose this day and this location to hand out flyers?  Of course not.  This is jury tampering, and it is a crime.

News Scan

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Convicted Felon Murders his Six Grandchildren: A Florida man who spent time in prison a decade ago for the accidental shooting death of his son killed his six grandchildren, his adult daughter, and himself Thursday afternoon in a gruesome murder-suicide.  Corinne Lestch of the New York Daily News reports that 51-year-old Don Spirit had a lengthy criminal history dating back to 1990. He was sentenced to three years in prison in 2003 for being a felon in possession of a gun when he accidentally shot his 8-year-old son during a camping trip.  Spirit called an emergency dispatcher yesterday to warn police that he may harm himself or others, but when the authorities arrived, he had already killed his six family members and himself.

Execution Date set for Convicted Killer: The Missouri Supreme Court has set an execution date for a man convicted of murdering a mother and her two children more than a decade ago.  Jeff Phillips of KSPR News reports that Mark Christeson killed the woman and her children after she refused his sexual advances. His co-defendant in the case agreed to testify against him and was given a life sentence in exchange for prosecutors dropping the death penalty.  Christeson is scheduled to be put to death October 29. If the execution is carried out as planned, he will become the ninth death row inmate executed in Missouri this year. 

Murder Rate on the Rise in South Africa: Authorities in South Africa are reporting that 17,000 murders took place between March 2013 and March 2014, resulting in a 5% increase over the previous year.  Christopher Torchia of the Associated Press reports that along with the increase in murders, South Africa is also experiencing an increase in home robberies and carjackings as well.  Police say it has been hard to control the escalating murder rate because in most cases, the victim and the murderer know one another.

Additional Shakespeare Autopsies

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Following up on Wednesday's Richard III story, Alexandra Petri in the WaPo offers up a bit of dark humor on other Shakespeare tragic characters. The first two are from Scotland, appropriately in light of today's news.

Asset Forfeiture

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John Yoder and Brad Cates, former directors of USDoJ's Asset Forfeiture Office, have this op-ed in the WaPo:

Last week, The Post published a series of in-depth articles about the abuses spawned by the law enforcement practice known as civil asset forfeiture. As two people who were heavily involved in the creation of the asset forfeiture initiative at the Justice Department in the 1980s, we find it particularly painful to watch as the heavy hand of government goes amok. The program began with good intentions but now, having failed in both purpose and execution, it should be abolished.

Asset forfeiture was conceived as a way to cut into the profit motive that fueled rampant drug trafficking by cartels and other criminal enterprises, in order to fight the social evils of drug dealing and abuse. Over time, however, the tactic has turned into an evil itself, with the corruption it engendered among government and law enforcement coming to clearly outweigh any benefits.
Sky News is projecting that Scottish voters have chosen to remain in the United Kingdom.

The National Crime Victimization Survey, which showed a bump up for 2012, showed a reversion back for 2013. The graph to the left is from the Bureau of Justice Statistics Report, Criminal Victimization, 2013.

Update:  BJS issued a correction September 19.  There was a problem with the scale on the original figure.  I have pasted in the corrected figure.

California's Execution Protocol

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One of the lesser-used provisions of California's Administrative Procedure Act permits interested persons to petition for a regulation to promulgated.  We at CJLF have filed petitions on behalf of murder victims' families formally asking CDCR to establish by regulation an execution protocol.

It has been two years since CDCR said the Governor had directed it to develop a one-drug protocol to eliminate the problems and the litigation over the three-drug method.  There is simply no excuse for taking so long.

CJLF's press release is here.
One of the strongest arguments for continuing to hang tough on imprisonment, and refusing to become unnerved by the racially-charged hectoring of the "Incarceration Nation" crowd, is easy to summarize:  Prison works.  When we have more prison, we have less crime. When we have less prison, we have more crime. It's not a whole lot more complex than that.

This was confirmed once again by statistics posted today on Sentencing Law and Policy, run by my friendly (if defense-leaning) adversary, Doug Berman.  Prof. Berman notes that newly released BJS statistics show that we had a modest decline in crime in 2013.  This is the first time in the last three years that crime went down; it went up in 2011 and 2012.

OK, quick now, what else happened in 2013?  Right you are:  For the first time in the last three years, going back to 2010, the prison population went up.

What an amazing coincidence!!!  But just how amazing is a story that needs to be told, lest we fall for the "smart" sentencing line.


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Eugene Robinson is a columnist for the WaPo whom I don't often agree with.  This column is about Hillary Clinton and her fuzzy message, and it is mostly off-topic for the blog.  I was struck by one paragraph, though.

In the book, Clinton rejects the idea of choosing between the "hard power" of military might and the "soft power" of diplomacy, sanctions and foreign aid. Instead, she advocates "smart power," which seems to mean "all of the above." When I hear officials talking about "smart" this or "smart" that, I hear a buzzword that is often meant to obscure policy choices rather than illuminate them.
Second the motion.  And it's not just officials.

News Scan

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Crime Rate on the Rise in Seattle: Statistics released by the Seattle Police Department show that crime is on the rise, prompting the city to increase the number of police officers patrolling the streets.  Tom Yazwinski of Fox 13 reports that compared to 2013, crime is up 13% across the city of Seattle, including a 21% increase in homicides and a 44% increase in motor vehicle thefts.  Authorities haven't revealed a possible explanation for the uptick in crime, but are hopeful that an increase in police presence will yield a positive result.

Jury Recommends Death Penalty for Convicted Killer: An Ohio jury has recommended that David Martin, who was convicted of capital murder last week, be sentenced to death for his crime.  Sade Hurst of WKBN News reports that Martin was found guilty of robbing, kidnapping, and killing 21-year-old Jeremy Cole and shooting a 25-year-old woman in her home in 2012.  The judge presiding over the case has the final say on sentencing, and is expected to announce his decision next week.

Couple Convicted of Craigslist Murder Sentenced to Life: A newlywed couple who admitted to murdering a man they met through Craigslist 'because they felt like it' has been sentenced to life in prison without the possibility of parole.  John Beauge of Penn Live reports that the young couple agreed to plead guilty to second-degree murder in exchange for avoiding a possible death sentence.  In addition to the murder charge, the pair also plead guilty to charges of aggravated assault, robbery, and possession of an instrument of crime.

Constitution Day

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Yesterday was Constitution Day, the 227th anniversary of the Federal Convention's formal proposal of a new Constitution to replace the Articles of Confederation.

I like to stress that the document was only a proposal on that day, not the supreme law of the land.  It only became a contract between the people and their government, and hence the supreme law, when ratified by the people.

Personally, I would prefer that Constitution Day be the date of ratification, but that's a bit hard to pin down.  By its terms, the Constitution formed a union of nine states and was the supreme law of that union on the day the ninth state ratified. That would be New Hampshire on June 21, 1788.  Everyone knew, though, that the new union had no chance without the big dogs, Virginia on June 25 and New York on July 26.  It's a bit spooky how close those votes were.
Mary Kissel at the WSJ interviews "Manhattan Institute Senior Fellow George Kelling on his famous theory of policing and how it's fared in practice."

Despite the title and subhead, Kelling's first point is that "Broken Windows" is about more than policing.

Here's the theory in a nutshell.  If a window is broken in a neighborhood and no one fixes it, it's a sign to all that nobody cares.  People prone to vandalism become more bold, while people who would like to keep the neighborhood up become more likely to take a "why bother?" attitude.  Things spiral downward, ultimately increasing major problems, including crime.

Taking care of problems that some people regard as petty actually does matter a lot.

Dr. Kelling, BTW, is a long time friend and advisor of CJLF, as was his co-author, the late James Q. Wilson

Texas Execution

Michael Graczyk reports for AP:

HUNTSVILLE, Texas (AP) -- A Texas woman convicted of the starvation and torture death of her girlfriend's 9-year-old son a decade ago was executed Wednesday evening.

Lisa Coleman, 38, received a lethal injection after the U.S. Supreme Court rejected a last-day appeal to spare her.

She was pronounced dead at 6:24 p.m. CDT, 12 minutes after Texas Department of Criminal officials began administering a lethal dose of pentobarbital.

Cold Case Autopsy

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Breaking news from the Wars of the Roses, 1485 ... Nick Kirkpatrick has a story in the WaPo headlined, King Richard III was probably hacked and stabbed to death in battle, according to a new study.  Prior posts:

Digging Up Richard III

My Kingdom for a DNA Identification

News Scan

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Jury Recommends Death Penalty in Triple Homicide: A Los Angeles, CA jury has recommended that a 37-year-old man convicted of murdering three people in 2009 be sentenced to death for his crimes.  The City News Service reports that in addition the first-degree murder convictions, Robert Louis Caballero was also found guilty on two counts of kidnapping, one county of firearm possession by a felon, and evading police.  Caballero's two co-defendants have also been convicted of first-degree murder and are awaiting sentencing. 

Arrest Made in Decades-Old Cold Case Murder: Authorities in Ohio have arrested the man they believe is responsible for the 1981 killing of a police officer.  Frazier Smith of WHIO News reports that 63-year-old Mitchell Ruble, who was also a police officer, killed the deputy at his home after he was terminated from the department for using excessive force while on duty.  Ruble is currently in county jail without bond.  

Convicted Murderer Sentenced to Death: A Louisiana man who escaped from prison and murdered a Florida college student while on the run has been sentenced to death.  CBS News reports that 43-year-old Kentrell Feronti Johnson, along with two other men, escaped from a Louisiana prison facility and fled to Florida where they kidnapped a graduate student and beat him to death, leaving his body in an open field.  One of Johnson's co-defendants has also been sentenced to death for the crime while the other plead guilty to all charges in exchange for a life sentence.
The title of this post is the headline of a story by Geoffrey Mohan in the Los Angeles Times.  He reports on "a 10-year study that [was designed to] compare how children would fare under prolonged therapy and tutoring aimed at improving social and cognitive skills, and whether their adult fates would differ from similar children who did not participate."
When law enforcement becomes about anything other than behavior, we're in trouble.  Thus, when people get picked out for prosecution because they're black, it's reprehensible and subversive.  It's also indecent.  Ditto for when they are picked out for prosecution because they're white, as almost certainly happened to George Zimmerman in the Trayvon Martin case.  There, it got to the point that one leading and (ordinarily) pro-defendant academic was openly hoping for Zimmerman's conviction even though it was clear early on that the State would not be able to meet its affirmative burden, under Florida law, of disproving self-defense.

The same thing may be happening now to Ferguson, Mo. police officer Darren Wilson, who has the misfortune to be white.  Does anyone think the banshee cries for his indictment would be anything like what they are if he were black? He may deserve indictment, mind you, and a good deal more than that.  But he doesn't deserve it any more or less because of his race.

A recent editorial in the liberal Washington Post decries the results of politically correct law enforcement in our mother country.  It seems that British authorities are turning a blind eye toward an epidemic of child rape because  -- ready now?  --  the people doing it are Pakistani immigrants, and the police wouldn't want to face charges that they are anti-Muslim.

Well I guess not.  But I have not yet heard why protecting Muslim little girls from being sold and traded into prostitution is anti-Muslim.  More important, in a sane world, the possibility of such accusations would count for nothing.  What would count for police and prosecutors is doing your job without caring about the latest version of Whinerism.
Sen. Chuck Grassley, along with Sen. Jeff Sessions, has been taking the lead in exposing the truth about the now-quite-dead Smarter Sentencing Act.  Today, he put a hole in one of the main arguments for it  --  that it will save a bunch of money.

Of course, we can always save money, in the short run, by cutting the prison population and thus incarceration costs.  In this sense, the more we cut, the more we'll save.  Think of the boatload we would save if we just let 90% of them loose!

The problem with this argument, as with most borne of the blinkered ideology that sees felons as victims who'd massively contribute to society if we'd just shovel social services at them, is that it sees only one side of the ledger while ignoring or trivializing the other.  Senator Grassley put some reality (and honesty) into the debate by his announcement today citing none other than the CBO.  It turns out that a goodly chunk of the money we'd save on one end would be paid out through the other.  Imagine that. 

News Scan

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Texas to Execute Murderer: A Texas woman convicted of murdering her girlfriend's 9-year-old son is scheduled to be executed Wednesday after spending eight years on death row.  Mitch Mitchell of the Fort Worth Star-Telegram reports that the young boy had been abused for several years and at the time of his death, he weighed only 35 pounds and had more than 250 scars on his body.  If the execution is carried out as scheduled, 38-year-old Lisa Ann Coleman will become the ninth person executed by the state of Texas this year.

Illinois Man Found Guilty of Killing Teen: A Chicago man has been found guilty of murder in the stabbing death of a 14-year-old girl in 2011.  CBS Chicago reports that John Wilson Jr., who was out on parole at the time of the murder, stabbed the girl multiple times and left her for dead after she discovered him burglarizing her family's home.  Wilson was convicted in 2002 for robbery and sentenced to 11 years behind bars.  He only served eight years of his sentence and was released on parole. 

Death Row Inmate asks for Stay of Execution: A Pennsylvania man convicted of murdering three people and sentenced to death has asked a federal judge for a stay of execution.  Brian Bowling of Trib Live News reports that 34-year-old Miguel Padilla, an illegal immigrant from Mexico, murdered three people at a night club in 2006 after his friend was denied admittance.  Pennsylvania Governor Tom Corbett signed Padilla's death certificate earlier this week after he exhausted all of his state appeals.

Governor Races

The previous post noted the Oregon governor's race.  Here are a few notes from elsewhere around the country.

In New Mexico, incumbent Governor Susana Martinez has opened up a commanding 18% lead over Attorney General Gary King in an Albuquerque Journal poll.  Real Clear Politics has moved this race into the "Likely GOP" column.  A commanding win in a "blue" state would make Martinez, a former district attorney, a credible possibility for the 2016 national ticket.

In Colorado, the Denver Post has the race too close to call.  RCP calls it a toss-up.  Unlike Kitzhaber, Hickenlooper may pay a political price for his death penalty weaseling.  The Post says "only" 18% consider that a "major factor" in their decision, but 18% is a lot in a tight race.  Of course, it depends on how many of those 18% are swing voters as opposed to people who would vote for the proverbial yellow dog before Hickenlooper, but given the across-the-political board support for the death penalty we often see in "crosstabs," with even self-designated "liberals" split about even, I have to think at least a couple percent of those 18 are people who might have otherwise voted for Hickenlooper.

Reprieves and Volunteers

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Harrison Latto, attorney for Oregon death row "volunteer" Gary Haugen, has this op-ed in the Oregonian.

The most puzzling aspect of the reprieve Gov. Kitzhaber granted to my client Gary Haugen is why he chose the utterly unprecedented device of a reprieve of indefinite duration, which will expire as soon as he leaves office, rather than using the more conventional method of commuting Haugen's death sentence to life in prison.

News Scan

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Convicted Murderer to be Released: An Arizona man sentenced to life in prison for first-degree murder will soon be released after serving only 44 years.  Kelsey Hess of The Republic reports that 62-year-old Ray Chatman was convicted of first-degree murder and armed robbery when he was 17-years-old.  He was originally sentenced to death for the crime, but three years later   a court reduced his sentence to life without the possibility of parole.  Recently a judge agreed to vacate his original conviction in exchange for him pleading guilty to second-degree murder, making him eligible for release.  

Murderer Pleads Guilty to Avoid Death Penalty: A Florida man has agreed to plead guilty to first-degree murder and spend the rest of his life behind bars in order to avoid a possible death sentence.  Daphne Duret of The Palm Beach Post reports that 58-year-old Serge Motti had arranged to meet with the victim for a drug deal, but at the meeting Motti murdered the man and then ran his girlfriend over multiple times before shooting her as well.  Motti was convicted of murder in New York in 1979, but was  paroled and relocated to Florida.   

CA Bill Aimed at First Time Offenders: A California bill awaiting approval from Governor Brown would allow first time offenders convicted of misdemeanors to have their criminal record wiped clean if they agree to plead guilty or no contest to certain crimes. K. Puenta of the Los Angeles Register reports that Assembly Bill 2124 would allow judges to defer sentencing for individuals found guilty of certain 'non-serious' offenses, and if certain conditions are met, the offense would be wiped from the record within a year.  The governor has until the end of the month to either veto the bill or sign it into law.  Governor Brown vetoed a similar bill last year.

One More Reason to Disdain "International Law"

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When we trust justice to a tribunal whose success depends on the voluntary cooperation of thugs, justice is the one thing we won't get.

Trouble Brewing

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I think our readers will be able to figure this one out for themselves.  Some of the President's judicial picks have been first-rate minds and very good people.  Still, a priori, a prosecutor probably would not want an Obama-selected judge sitting on a close criminal case.

See also this article about the largely unnoticed stakes in the upcoming elections.

The Defence of Fort McHenry

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D.C. lawyer Francis Scott Key's name appears in many of the reports of early decisions of the U.S. Supreme Court.  He is not best known for his legal briefs, though.  Two hundred years ago today, he witnessed his countrymen's valiant defense of Fort McHenry, near Baltimore, from a British naval bombardment.  Morale had sunk after the burning of Washington and the White House, and the successful defense was a badly needed inspiration.  Key wrote a poem called The Defence of Fort McHenry.  Later set to music, it is now known as The Star Spangled Banner.

O! thus be it ever, when freemen shall stand
Between their loved home and the war's desolation!
Blest with victory and peace, may the heav'n rescued land
Praise the Power that hath made and preserved us a nation.
Then conquer we must, when our cause it is just,
And this be our motto: 'In God is our trust.'
And the star-spangled banner in triumph shall wave
O'er the land of the free and the home of the brave!

Why You Take the Press with a Grain of Salt

I've often noted that journalism, and in particular the reporting (and non-reporting) of crime, is not to be taken at face value.  The most deceptive part is not the slanting of stories, although that's a major problem. The most deceptive part is what gets covered and what gets deep-sixed.

Last weekend, the Palin family was apparently involved in a booze-filled free-for-all at a family party in Anchorage.  This was covered by the New York TimesCNN, USA Today, the Washington Post, ABCMSNBC, and a whole bunch more.

Fair enough.  Sarah Palin was a candidate for Vice President six years ago and remains, kind of, a voice within the Republican Party.  So I get the coverage.

What I don't get is the press's simultaneous and virtually uniform blackout of a grisly murder rampage by an avowed Jihadist.  As the conservative blog Powerline reports:

If a Jihadist were going around the United States committing random murders, you might think it would be a significant news story. But apparently not: until this morning, I had never heard of Ali Muhammad Brown, a "devout Muslim" who murdered at least four random American men as an act of Islamic jihad.

It seems that the only major paper to have picked up this story, though it broke last month, was the New York Post.

Moral of story:  As I tell my students, listen critically to what you're hearing  -- and even more critically to what you're not hearing.

The Life of Cosby

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Edward Kosner has this book review in the WSJ, reviewing Cosby by Mark Whittaker.

From the start Mr. Cosby never played the race card--in fact, he kept it so far up his sleeve that it was invisible. He did perform at benefits for civil-rights causes and walk in the cortège after the assassination of Martin Luther King. But he made few public pronouncements, and his TV shows and movies strenuously avoided racial issues. NBC executives anticipated white protests when "I Spy" went on the network, but there was hardly any blowback.

Criticism, instead, came later from some blacks who felt the Huxtable ménage was a fairy-tale about black family life that diverted attention from the obdurate problems of African-Americans. Mr. Cosby further inflamed them when he began to lecture black mothers, and especially fathers. "I'm talking about these people who cry when their son is standing there in an orange [prison] suit," he exclaimed at a celebration of the 50th anniversary of school desegregation. "How come you don't know he had a pistol? And where is his father and why don't you know where he is?"

Without fanfare, Mr. Cosby had worked for years to increase the number of blacks recruited behind the scenes in TV and the movies. And he was a top benefactor of historically black colleges, including a $20 million donation to Spelman College. None of it mollified his black critics.
Such is the price for speaking Politically Incorrect and inconvenient truths.

For more on Cosby's views on crime -- and on the failure of leadership -- see Juan Williams, Enough: The Phony Leaders, Dead-End Movements, and Culture of Failure That Are Undermining Black America--and What We Can Do About It.

Private Prisons and Recidivism

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Lots of interesting stuff in the weekend Wall Street Journal today.  The nonsubscriber links provided should be good for seven days.  The article most clearly on-topic is by Devlin Barrett on private prison companies and rehabilitation.

Damon Hininger, chief executive of Nashville, Tenn.-based Corrections Corp. of America, said in an interview that government clients are increasingly concerned about the long-term costs of housing inmates and are pushing CCA and other private operators to save them money by reducing recidivism, the number of inmates who are released only to do a repeat turn in prison.

He plans to expand the company's prison rehabilitation programs, drug counseling and its prisoner re-entry work in cities around the country. It's a significant shift for CCA, which has built a profitable business from incarcerating people--nearly 70,000 inmates are currently housed in more than 60 facilities. The company is the fifth-largest correction system in the country, after only the federal government and the states of California, Florida and Texas.

"This is a watershed moment for our company and we hope it will be for our entire industry,'' Mr. Hininger said. "We are determined to prove that we can play a leadership role in reducing recidivism and that we have every incentive to do so. The interests of government, taxpayers, shareholders, and communities are aligned. We all just need to recognize that and commit to that.''
My reaction to stories like this is "yes, but..."

Some Candor From The Other Side

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I have often been critical on this blog of the anti-death-penalty movement not because they disagree with me on the underlying issue, which I have no problem with, but because they are so very often deceptive, usually with cleverly phrased half-truths and word games that create false impressions without quite lying in the narrowest sense of that word.

So we should note here when we see a refreshing breath of candor from our opponents.  I recently stumbled on this article in Slate from last May by Boer Deng and Dahlia Lithwick.

But as American physicians sideline themselves and European pharmaceutical firms (and American ones with global ties) decline to supply the most known and efficacious lethal injection drugs, corrections officials have been pushed to use inferior methods and substandard providers.  In other words--and painful though it is to admit--the real culprit in the death of Clayton Lockett is opposition to the death penalty. In pushing for outright abolition of capital punishment, we have undermined the counterveiling effort to make it as clean and painless as possible. The perfect has become the enemy of the good-enough execution.

News Scan

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Illegal Immigrant Arrested After Brutal Attack: Authorities in Pennsylvania have arrested an illegal immigrant after he allegedly stabbed a woman multiple times in a violent attack.  Jeffrey A. Johnson of The Patriot-News reports that 37-year-old Baldomero Velasco-Lopez stabbed the woman three times in the back with a large kitchen knife and left her on the sidewalk in front of her home while her children were asleep inside.  Velasco-Lopez has been charged with attempted criminal homicide and aggravated assault, he has been denied bond and remains behind bars.  

Florida High Court Upholds Death Sentence: The Florida Supreme Court has ruled in favor of upholding the death sentence for a man convicted of kidnapping and murdering an 11-year-old girl a decade ago.  Lloyd Dunkelberger of the Herald-Tribune reports that attorneys for Joseph Smith appealed his sentence based on the claim that their client should have been allowed to interview jurors about any misconduct that may have happened during his trial.  This is the second time Smith's death sentence has been upheld by the state's high court.

Convicted Killer Charged with Murder: An Indiana man on parole for killing his girlfriend and shooting her mother has been arrested and charged with murder.  Erica Coghill of WLKY News reports that Joseph Oberhansley was arrested after authorities discovered a woman's body in the home he had been living in during a welfare check.  Oberhansley was on parole in Utah for the murder of his girlfriend in 1998 and has a lengthy criminal past, he is being held in county jail without bond.  

Field Poll on California Death Penalty

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Opponents of the death penalty in California are happy about a new Field Poll that shows their position is behind by "only" 22%, less than previously.

"Mr. Death Penalty"

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The National Journal has an article titled, "Mr. Death Penalty," which describes the work of CJLF's own Kent Scheidegger.  Kent will be too modest to post about it himself, so I thought I would let you know.

The article is not a puff piece  --  there's nothing like the giddy, gushing tone you'd see if it were about "Mr. Abolitionist."  But it's reasonably fair-minded as these things go, and does not portray Kent as Satan.  Unfortunately, it doesn't go nearly far enough in describing the extent of either his fair-mindedness or his astonishing analytical abilities, which are as good as any I've seen in the legal profession.

Congratulations to Kent and CJLF for getting some overdue recognition as the country's leading advocate for what is, in some cases, the only punishment that even resembles justice.

[Ed. note:  I have updated this to give the National Journal link].

News Scan

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Convicted Killer Sentenced to Life: An Iowa man has been sentenced to life in prison without the possibility of parole after being found guilty of murdering his pregnant wife in May 2012.  The Associated Press reports that in addition to the life sentence, 23-year-old Seth Techel was sentenced to an additional 25 years for the 'nonconsensual termination of a human pregnancy.'  Life without parole is the strongest sentence available in Iowa.  The state abolished the death penalty in 1965.

Police Make Arrest in Cold Case Killing: Police in Idaho have arrested a man believed to be responsible for the murder of a 25-year-old woman more than a decade ago.  Michael H. O'Donnell of the Idaho State Journal reports that 39-year-old Brad Compher has been charged with first-degree murder after fingerprint evidence collected from the crime scene linked him to the murder.  If found guilty, Compher faces life in prison or a possible death sentence.

Why the Snail's Pace Justice for 9/11?

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After 9/11, 13 years ago today, military commissions were supposed to be a way to achieve swift justice for those perpetrators whom we were able to capture and bring back alive.  They were in World War II, after all.  See this post from two years ago.

Immediately upon their capture, the perpetrators had intelligence value that overrode the retribution interest in giving them their deserved punishment quickly.  That day is long since past.  That day had already passed before Barack Obama became President.  Is he actually going to leave office after two full terms without executing KSM or any of the other top leaders of this atrocity?

Attorney General Holder once said on this matter that "failure is not an option."  At this point it looks like failure is a near certainty.

Seeing It Up Close Has an Effect

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I noted yesterday that one reason there is such a hue-and-cry about the slap-on-the-wrist deal Ray Rice got from the prosecutor  --  after knocking his girlfriend cold  -- was that the assault had been taped, and has now been seen on TV by tens of millions of people. Nothing works like the evidence of your own eyes.  

In the past, with no tape to view, we would have been left with the defense lawyer's breezy, courthouse-steps interview to the effect that, "My client had a moment of misjudgment.  He has taken responsibility, and he and his wife would now like their privacy to move on with a life full of hope."

(I regret to find that I can now write this BS in my sleep).

When a crime can be seen, with all its violence and bullying on unfiltered display, things change.  And now there is evidence, although mostly sketchy and suggestive at this point, that, indeed, they are changing.  This is the news:

As matters of public concern, crime and security are back.

Complexity, the Enemy of Justice

Kent yesterday had an entry in which he noted that a man who shot and killed his wife and her brother twenty one years ago was due to be executed, but was fighting it off with a (typical) blizzard of last-minute procedural motions.  As Kent put it:

So when you are stone cold guilty of a crime for which the death penalty is clearly appropriate, what do your lawyers argue about at the last minute?  Drug expiration dates.  Really.

This got me to thinking:  Why has criminal justice system  --  not just capital punishment, although certainly that too  --  tied itself up with manufactured procedural issues that wander at increasingly huge distances from the central question:  Are we being careful enough to be sure we've got the right guy?

I think it's because we've become entranced with the idea that moral confidence in the system requires perfection or something very close to it, and that perfection requires the kind of microscopic complexity that now stretches on year after year after year.

But this is all wrong.  The quest for perfection is a fool's errand no matter what our punishment scheme is.  For starters, it's unattainable.  And it has reached the point that the complexity it spawns produces more injustice than it averts. Prof. Richard Epstein explains the point brilliantly in the excerpt after the break.  (Simple Rules for a Complex World,  Harvard University Press, 1995; emphasis mine).

The Most Transparent DOJ in History

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Ummm....well.....errrr....maybe not.

Would someone remind me how long Eric Holder has been Attorney General?  I mean, I know he wouldn't be hiding the ball from his own Inspector General.

Drug Expiration Dates

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Willie Trottie is scheduled for execution in Texas today for killing his wife and her brother. David Ingram reports for KTRK:

"I shot my brother-in-law in self-defense and I shot my wife by accident," he told The Associated Press in a recent interview. "There's no doubt I committed this crime. The dispute is the sequence of how it happened."
Actually, not too much of a dispute.  That "accidental" shooting involved 11 bullets.  The gun was a semiautomatic, not a full automatic, so that requires pulling the trigger "accidentally" 11 times.  And there were multiple witnesses.  Trottie told his wife as he was killing her, "Bitch, I told you I was going to kill you."

So when you are stone cold guilty of a crime for which the death penalty is clearly appropriate, what do your lawyers argue about at the last minute?  Drug expiration dates.  Really.

News Scan

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Cop Killer Eligible for Parole: A North Carolina man sentenced to life in 1982 for murdering a police officer may be released from prison in as little as two months if the state's parole board decides that he is no longer a threat to public safety.  WRAL News reports that 64-year-old Bobby Smith shot the officer twice in the head as he was responding to a disturbance call.  Smith plead guilty to second-degree murder and was sentenced to life with the possibility of parole.  The officer's family along with the state Attorney General have asked the parole board not to release Smith. A decision is expected to be made in the coming weeks.

FL to Seek Death Penalty for Triple-Murder Suspect: Prosecutors in Panama City, Florida have announced plans to seek the death penalty against triple-homicide suspect Derrick Thompson.  Zack McDonald of the News Herald reports that Thompson is believed to have killed three people in July, including a former Sheriff's Officer.  Thompson allegedly confessed to all three murders upon his arrest, but recently plead not guilty to all charges.  A trial date has not been set. 

Charges Filed in Cold Case Murder: A Texas man has been identified as the main suspect in a murder that took place more than two decades ago.  KCBD News reports that authorities believe 44-year-old Joseph Jeffrey is responsible for the beating death of a man in February 1991.  Jeffrey has a lengthy criminal background and has faced several serious charges in the past including assault and driving under the influence.

Evil Should Not Win

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The title of this post is from the statement of Jama Brown, the widow of Dennis Poyser, one of the victims murdered at a Ruby Tuesday in Columbia, Missouri on July 4, 1998.  She was speaking after the execution of the perpetrator of that crime.  Bob Priddy has this post at Missourinet, with the audio of Ms. Brown's statement. 

Reams of philosophical discussion have been written about retribution, but no philosopher ever put it better.  Evil wins when we let murderers off too easy.  Evil should not win.

Seeing It Up Close

There is an ongoing outcry against the sweet deal (no jail time and "counseling") given former NFL running back Ray Rice for knocking his girlfriend cold.

This caused me to reflect a moment:  Why the outrage against leniency for a simple (though thoroughly thuggish) assault and battery now, when what we usually hear is that leniency is overwhelmingly what the system needs  --  that it's far too harsh on first-time offenders, that African-Americans are picked out for prosecution, and that we're massively over-incarcerated?

Partly the answer is that Rice committed a politically incorrect crime, i.e., violence against women.  But I think an even bigger part is that the actual knockout blow is on every TV in America.  When people can see the thug in action for themselves, they react differently.  Differently, that is, from how they react when the crime is filtered through the defendant's PR department, typically consisting of his lawyer giving some sanitized (if not mostly just false) version.

This same lesson is brought home by the two recent filmed and televised beheadings of two Americans.  The shear sadism and cruelty of it cannot be blinkered away when you see the tape; PR isn't even attempted, because its fraudulent character would be too clear.

There is a lesson for us here:  Next time any of you debates the death penalty, insist that a tape of the beheadings be available to be shown to those who feel they can stomach looking.  When abolitionists have to deal with the reality of murder by seeing it up close  --  rather than through the intentionally distorted lens of their latest "America Is A Racist Cesspool" study  --  their minds might not be changed, but I venture to say their arrogance and holier-than-thou attitude will.

UPDATE:  Rice's plea deal was even worse than I thought.  There isn't even a probationary term, and the charges are likely to be dismissed in the future.  Tell me once more that the criminal justice system is too harsh....

News Scan

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Missouri and Texas Prepare to Execute Convicted Killers: Two men, one from Missouri and the other from Texas, are scheduled to be executed Wednesday at 12:01 a.m. and 6:00 p.m., respectively, after many years on death row.  Jim Salter and Michael Graczyk of the Associated Press report that Earl Ringo Jr. from Missouri was sentenced to death in 1998 for murdering two people during a robbery attempt.  Texas inmate Willie Trottie, also a convicted double-murderer, was sentenced to die more than 20 years ago.  The executions will be the eighth in each state so far in 2014. 

Realignment Costing Counties Millions: California counties have been left to deal with millions of dollars worth of  health care costs for inmates under Governor Brown's Realignment plan, which shifted thousands of inmates from state prisons to county jails in 2011.  Tim Lantz of KFBF reports that the state's 10 largest counties reportedly spent $560 million for medical and psychological care for inmates in the last fiscal year, resulting in a 16% increase since Realignment went into effect three years ago.  State officials are working on a plan to allow counties to enroll inmates in the Affordable Care Act in order to reduce the overwhelming health care costs.    

Convicted Killer Sentenced to Life Behind Bars: A Texas man has been sentenced to life in prison without the possibility of parole for the beating death and robbery of a man more than eight years ago.  KTRK News reports that after being found guilty, 36-year-old Luis Rodriguez was given an automatic life sentence because the state elected not to pursue the death penalty in his case.  One of Rodriguez's co-defendants is already serving a 15-year sentence for the crime while another suspect is still at large.

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Ohio Schedules Execution Dates: The Ohio Department of Rehabilitation and Correction has set execution dates for several convicted killers.  To date six murderers will be executed in 2015 with five more carried out 2016.  Alan Johnson of the Columbus Dispatch reports that the state was forced to revise its execution schedule after a federal judge postponed executions in September, October, and November in order to address a dispute over lethal-injection procedures.  The last murderer executed in Ohio was Dennis McGuire on January 16, 2014.

Victim's Family Outraged Over Trial Delays: A California family is frustrated by trial delays for the man accused of killing their son more than four years ago.  Jeremiah Dobruck of the Los Angeles Times reports that the accused killer, Daniel Wozniak, allegedly confessed to killing Sam Herr and his college tutor in 2010, but the trail has been delayed several times for several reasons including the defense attorney's heavy workload and requests to postpone court proceedings.  It is believed that Wozniak killed Herr in order steal a large amount of money from his savings account.  

Bill to Increase Punishment for Overdose Deaths: Ohio Attorney General Mike DeWine has announced plans to support a bill to increase penalties for drug dealers found guilty of contributing to overdose deaths.  The Associated Press reports that the legislation calls for sentencing dealers to life with parole after serving 25 years for adult overdose victims and life with parole after 30 years for juvenile victims.  The Governor believes the bill will deter drug dealers and help combat the state's opiate addiction crisis. 

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Convicted Child Killer Sentenced to Life Behind Bars: A Texas man convicted of raping and murdering a six-year-old girl last year has been sentenced to life in prison plus forty years after pleading guilty to the killing. Arezow Doost of CBS Dallas Fort Worth reports that in addition to the murder charge, 18-year-old Tyler Holder also pled guilty to arson and attempted capital murder for shooting a police officer the day of his arrest.  Holder will serve at least 50 years of his sentence before he will be eligible for parole. 

Florida High Court Upholds Death Sentence: The Florida Supreme Court has upheld the death sentence for a man convicted of murdering two people within hours of each other.  Andrew Pantazi of The Florida Times-Union reports that Billy Sheppard Jr. shot and killed two people in separate car jacking attempts in the summer of 2008.  Sheppard challenged his death sentence based on the claim that the prosecution used hearsay during trial and that the jury was biased

Convicted Felon Charged in Triple-Homicide: A Missouri man with a lengthy criminal record is behind bars once again after authorities say he shot and killed three people and assaulted two others leaving them critically wounded.  CBS News reports that police believe 34-year-old Brandon Howell, a convicted felon, drove down a quiet neighborhood street Tuesday afternoon and began shooting at anyone standing outside.  Howell was paroled in 2011 after serving time for a home invasion conviction, he is currently being held in county jail without bond. 

Evading Congress's Landmark Habeas Reform

Yesterday, the Ninth Circuit granted rehearing en banc in a case it decided last year and the Supreme Court turned down last June.  Judge Tallman, joined by Judges O'Scannlain, Callahan, Bea, and Ikuta, takes the unusual step of dissenting from a grant of rehearing en banc. 

If one is remembered for the rules one breaks, then our court must be unforgettable. By taking this capital habeas case en banc now--after certiorari has been denied by the Supreme Court and well after the deadline for en banc review by our court has passed--we violate the Federal Rules of Appellate Procedure and our own General Orders. We also ignore recent Supreme Court authority that has reversed us for doing the same thing in the past. No circuit is as routinely reversed for just this type of behavior. We ought to know better.
Aside from the specific procedural question in this case is a deeper question.  Congress passed a landmark law in 1996 for the specific purpose of a making capital punishment effective.  One of the reforms was to crack down on successive petitions -- the filing of a new federal habeas petition after the first one has been denied.  This was, initially, one of most effective reforms in the package.  It was upheld by the Supreme Court with remarkable swiftness, two months after enactment of the law.  See Felker v. Turpin, 518 U.S. 651 (1996).  (CJLF filed an amicus brief.  See footnote on p. 654.)

However, the effectiveness of the reform has been diluted in recent years by the use of various procedural devices to reopen the old petition instead of filing a new one.  The Supreme Court has not been tough enough in restricting this practice.  Habeas corpus is not just another civil case.  Congress spoke clearly when it said that once a case is finished it should be reopened only for certain very compelling circumstances (like, for instance, we got the wrong guy).  An arguably insufficient consideration of "mitigating" evidence that has nothing whatever to do with the crime, which is what Henry is about, is not a good enough reason to further delay already badly delayed justice.  Congress has decided that, and the courts need to respect that.

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Inmate Population Rising Under Realignment: The number of inmates being sent to California prisons is on the rise despite three years under Governor Brown's Realignment law was enacted to reduce prison overcrowding.  Don Thompson of the Associated Press reports that there has been a record-setting increase in the number of second convictions for serious and violent crimes resulting in more criminals being sentenced  state prison. The state's current prison population is at 133,000, and is expected to increase to 143,000 by 2019.

Federal Judge Denies Stay of Execution: A federal judge has denied a motion to stay the execution of a Missouri man convicted of murdering two people more than a decade ago.  Alan Burdziak of the Columbia Daily Tribune reports that attorneys for Earl Ringo challenged his sentence and asked the judge to reopen his case.  The attorneys claim that they were not given enough time to plan a proper defense after his original lawyer was removed from the case.  Ringo is scheduled to be executed on September 10.   

Suspected Cop Killer Recently Released on Parole: The New York man believed to be responsible for Wednesday's fatal shooting of a police officer was released from prison and placed on parole only a few weeks ago.  The Associated Press reports that Thomas Johnson III shot the officer after a brief pursuit in Rochester Wednesday evening.  It was the first time since 1959 that an officer from that department was killed in the line of duty.  Johnson was released from prison in August after serving a year behind bars for a parole violation.

Prospective-Only Death Penalty Repeals

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Barry Massey reports for AP:

New Mexico's remaining death row inmates are asking the state's highest court to spare them from potential execution because lawmakers repealed capital punishment after they were sentenced to die by lethal injection.

Timothy Allen and Robert Fry contend their death sentences violate state and federal constitutional protections because New Mexico abolished capital punishment in 2009 for future murders but left it in place for them. Both men were convicted and sentenced to death for murders committed years before the repeal.

The state Supreme Court will hear arguments from lawyers on Oct. 1, but a decision by the five justices likely wouldn't be made until months later.
Months later would be good in comparison to Connecticut.  That state's high court heard oral argument April 23, 2013 and has been sitting on it for over a year.  CJLF filed an amicus brief in that case.  (It's only 10 pages because that is all Connecticut rules allow for amici.)

The issue isn't that hard.  If you simply decide according to established constitutional law, of course a legislature has the power to reduce the maximum punishment for future offenses without overturning existing sentences.  That is established beyond serious question.  If you simply want to reach a Politically Correct result and have to back in some plausible legal reasoning to support the predetermined result, that's a little more work, but it doesn't take a year.

Paradoxically, a win for these two murderers would be a loss for repeal advocates in other states.  Where the vote is close, prospective-only operation may be key to passage, and a court decision striking that down would make repeal more difficult.

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Serial Killer Convicted in Cold Case Murders: An elderly California man is facing a possible life sentence after being found guilty of murdering three Los Angeles women in the 1980's.  Jason Kandel of NBC Southern California reports that 74-year-old Samuel Little strangled the three women to death between 1987-1989, and was linked to the murders just two years ago through a positive DNA match.  Little is scheduled to be sentenced later this month.

Convicted Killer Granted Parole: An Oregon family is outraged after the man who murdered their teenage daughter more than two decades ago was granted parole.  KOIN 6 News reports that Conrad Engweiler was just 15-years-old at the time of the murder, but was tried as an adult and sentenced to life behind bars with a minimum of 30 years, a sentence which Oregon law didn't allow at the time.  Engweiler is scheduled to be released from prison next month, and will be required to register as a sex offender.

Recently Released Criminal Arrested for Murder: An Arizona man arrested this weekend on suspicion of second-degree murder had been released from prison just hours before the killing.  Agnel Philip of The Republic reports that 22-year-old Ignacio Lomeli had been released from prison Sunday morning after spending two years behind bars on multiple domestic violence charges. Hours later, Lomeli was in police custody telling officers he shot and killed a man out of self defense.  Lomeli is currently being held in county jail on $1 million bond.

The Coming Election

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The latest bipartisan Battleground/GWU poll is out.  It shows significant gains for the Republicans since the previous poll five months ago.  Jennifer Rubin has this column in the WaPo.

As noted previously on this blog, a Republican majority in the Senate would produce significant changes in criminal justice.  Judicial nominees who are sufficiently anti-law-enforcement to produce unanimous Republican opposition could once again be kept off the bench.  Legislative changes that are opposed by the pro-criminal crowd but not so strongly as to filibuster or veto otherwise important legislation could be placed into larger bills.  (The Prison Litigation Reform Act, for example, was placed into a budget bill back in 1996.)  There won't be sweeping changes either way in the next Congress, but the scope of what is possible would expand with a Senate majority.
There has been much talk on the Net recently of the posting of private nude photographs of certain celebrities.  There has also been much talk about the talk, whether people advising against engaging in behavior that makes such invasions of privacy possible are "blaming the victim."

I thought about posting on this, but Eugene Volokh has this long post at the eponymous Conspiracy that I mostly agree with, so I'll just link to him.

"Smart Sentencing" Heads For the Gutter

I was astounded to find on Sentencing Law and Policy this title, "'A Holocaust in Slow Motion:  America's Mass Incarceration and the Role of Discretion.'"  The article is introduced on the blog thusly:

The provocative title of this post is the title of this provocative new article available via SSRN and authored by (former federal prosecutor) Mark W. Osler and (current federal judge) Mark W. Bennett. Here is the abstract:

Numbers don't lie: America has suffered an explosion in imprisonment that has been fundamentally unrelated to actual crime levels.

Yes, well, we all know what other kind of incarceration was "fundamentally unrelated to actual crimes"  --  concentration camps!

The title is not merely "provocative," as it's being soft-peddled.  It's appalling and disgusting, and it's no mere coincidence that it comes in the immediate aftermath of two gruesome beheadings by the new Nazis, ISIS.  The stomach-turning slur against the thousands of people  --  judges, lawyers, ordinary citizens and crime victims  -- who believe incarceration in our country has helped reduce crime is mind-boggling.

The Zombie Defense

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Park Dietz & Associates, forensic psychology experts, have an email newsletter.  The current issue has an article on Ambien:

The "Ambien Defense" has been getting a lot of press in 2014.  Sometimes called the "Zombie Defense," it's the argument that someone charged with a crime--and the crimes have ranged from DWI to child sexual abuse to murder-- took Ambien (or generic zolpidem) beforehand and had no memory of the crime.
 •  August 19:  A Montana man was sentenced to 100 years for murdering two sisters in their early 20s.  He stabbed one victim over 130 times, including 34 times in the face, and beat, gagged, strangled, and stabbed the other.  A judge called the killings "ritualistic" and "systematic."  The man said he took Ambien before the killings and had no memory of them, but pleaded no contest to avoid a trial.
A few similar examples follow. 

Boston's Growing Murder Problem

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Since finishing up my time interning with the Criminal Justice Legal Foundation I have moved back to Boston to begin my final year at Suffolk University Law School. While back here I am a Massachusetts Supreme Judicial Court Rule 3.03 Certified Student Prosecutor. That basically means I intern for a local District Attorney's office with all the responsibilities and powers of an Assistant District Attorney but am always under the supervision of someone who makes sure I don't screw things up too bad. These opinions are my own and not that of CJLF, the Plymouth County District Attorney's Office, and most certainly not that of Suffolk University Law School.
I come back to a city in crisis, as the gun violence and murder rates from the summer have dwarfed, in historic proportions, the rates from the previous summer and the past several summers.

News Scan

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Ohio High Court Upholds Death Sentence: The Ohio Supreme Court has upheld the death penalty for a man convicted of murdering a woman four years ago.  Kathleen Maloney of WKYC News reports that Jeremiah Jackson was convicted of aggravated murder, aggravated robbery, and several attempted murder charges and sentenced to death by a three-judge panel after he waived his right to a jury trial.  Jackson was challenging his death sentence based on the claim that the presiding judge in his case exhibited judicial bias and neglected to evaluate his IQ scores.

NY Murder Suspect Released 30 Days Before Attack: The New York man arrested and charged with this weekend's murder of an elderly man during a robbery attempt had been released without bail just 30 days ago after being arrested for a burglary-related felony.  John M. Annese of reports that 20-year-old Dante Viggiano broke into an elderly couple's home while they were away celebrating their birthdays.  When they returned, Viggiano stabbed them both multiple times, leaving the husband dead and the wife severely injured.  Viggiano had been released from jail August 2 on his own recognizance for a fourth-degree grand larceny charge and was scheduled to be back in court later this month.  He faces charges including murder, attempted murder, and burglary. 

Prosecutors to Seek Death Penalty in Cellmate Murder Case: Authorities in Utah will seek the death penalty for a man accused of murdering his cellmate in April 2013.  Emiley Morgan of KSL News reports that 33-year-old Steven Crutcher strangled his cellmate to death with a bed sheet in what prison officials believe may have been a racially motivated attack.  At the time of the killing, Crutcher was serving a 10-years-to-life prison sentence for kidnapping a correctional officer during an escape attempt.

In May I noted the Georgia Supreme Court's well-written, well-reasoned opinion on Georgia murderer Warren Lee Hill's challenge to the state law providing confidentiality to the suppliers of the drugs used for lethal injection.

As expected, Hill has filed a certiorari petition in the U.S. Supreme Court, seeking review of this decision.  The case is Hill v. Owens, No. 14-6033.

What Answer for the Latest Beheading?

In my post about ten days ago, I took the President to task for what I regard as his complacent response to the beheading of journalist James Foley.  The post had a political edge to it, possibly to an excessive degree, but its ultimate point was that no punishment other than the death penalty could even conceivably pass for justice in the face of such a grotesque crime.  There ensued an exchange in the comments section that elaborated this point.

Today, it got more elaboration in the worst possible way, to wit, by the release of an almost identical tape showing the equally horrible beheading, with the equivalent of a switchblade, of a second journalist, Steven Sotloff.

It seems to me that, in the face of what cannot be regarded by a sane person as other than pure evil, the arguments against capital punishment fade to black  -- or, put another way, to simple obstinacy.  

The death penalty is accepted by our people, our history and our law.  It's accepted in most parts of the world.  In those parts of the Western world where it has been eliminated, it's only because elitism triumphed over democracy.  

As these beheadings illustrate beyond serious argument, there are cases in which none of the usual abolitionist excuses even arguably applies.  It has nothing to do with Jim Crow, bad lawyers, Brady claims, poor schools, PTSD, intelligence tests and all the rest. What it has to do with is whether our country retains, or forfeits, the clarity of vision and moral confidence to see savagery when looking it in the face, and answer as George Washington and Franklin Roosevelt did.   

We shall see.

About that Police "Militarization"....

Those who want to lecture us about the "lessons of Ferguson" without waiting to find out what actually happened there have opened a related front calling for disarming demilitarizing the police.

This YouTube film of the London police in full fight from a mob of radical Muslims gives an eye-opening, if appalling, preview of what things will be like if the attack on the police succeeds.

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