February 2015 Archives

News Scan

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Realignment Offender Arrested After Violent Attack: A California man released from custody and placed on light supervision under Realignment is behind bars once again after authorities say he was involved in a violent assault and robbery Wednesday evening.  Susan C. Schena of Patch.com reports that it took several officers, a police K-9, and a CHP helicopter to track down and arrest 36-year-old Warren Haley, who at the time of the attack, had two outstanding warrants for his arrest.  Haley is currently in county jail facing charges of assault with a deadly weapon, robbery, and resisting arrest.

Utah High Court Upholds LWOP For Juvenile: In a 4-1 decision, the Utah Supreme Court has upheld the life without parole (LWOP) sentence for a juvenile convicted of rape and murder.  Pat Reavy of Deseret News reports that Robert Houston was 17-years-old when he violently raped and stabbed to death a youth counselor who had been assigned to work with troubled teens.  Since Houston was a minor at the time of the murder, prosecutors could not seek the death penalty and instead pursued a life sentence.  Houston, who already had two prior knife-point sexual assault charges prior to the killing, is the only juvenile in Utah state history to be sentenced to life without parole. 

Mexico Captures Notorious Drug Kingpin: Authorities in Mexico have captured one of the country's most wanted drug lords, 49-year-old Servando "La Tuta" Gomez.  Anahi Rama and Lizbeth Diaz of Reuters report that aside from being wanted in his native country of Mexico, Gomez was also wanted in the U.S. on charges of trafficking methamphetamine and cocaine. He is also believed to have been involved in the murders of 12 Mexican federal police officers in 2009.  More than 100,000 people have been killed in gang-related violence in Mexico since the country's government began cracking down on drug cartels in 2007.

Would We Be Safer if Fewer Were Jailed?

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The NYT Room for Debate page has a collection of six short articles under the heading above.  The subhead is, "Can the use of jails be reformed to reduce the number of inmates without increasing society's risks?"  The question presented was specifically on county jails, not state prisons.  There is quite a stink in the Big Apple over conditions at Rikers Island.

Before clicking on the link, care to guess how many of the six answer the main question "no"?  Or who wrote it?  (Oops, that singular pronoun in the second question sorta gave away the first.)

California v. National Crime Rates

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Here is an update on California versus overall United States crime rates.  The table below shows the rates per 100,000 population for the FBI's violent crime index and property crime index for 2011, nine months of which predates the Realignment program, and 2013, the most recent year with full data available.  The data are from the downloaded files on the FBI's Crime in the United States reports for the respective years.

The nation as a whole had a 6% drop in property crime over the two-year period, while California had a 3% increase, a difference of 9%.

News Scan

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Update: GA Execution Delayed By Weather: The Georgia woman who was scheduled to be executed yesterday for the murder of her husband will spend a few more days on death row after inclement weather delayed her execution.  David Beasley of Reuters reports that officials delayed the execution and rescheduled it for next Monday after a weather forecast predicted three inches of snow overnight.  The last time a woman was executed in the U.S. was in September 2014.

Repeat DUI Offender Charged with Murder: A California man who authorities say was convicted of DUI last June is behind bars once again and facing murder charges after allegedly killing a man while driving under the influence Saturday afternoon.  Robert Salonga of the San Jose Mercury News reports that 25-year-old Marco Chamale is facing a variety of felony charges including DUI, hit-and-run, and murder after authorities say he veered onto the sidewalk and hit a fruit vendor before dragging the man's body 30 feet and fleeing the scene.  Chamale is currently being held in county jail without bond. 

Prop 47 Increased Property Crime For CA Town: Police one Northern California town are dealing with higher rates of property crime since voters passed Prop 47, which reduced a number of crimes from felonies to misdemeanors last November.  Ryan McCarthy of the Daily Republic reports that the Mayor of Vacaville, CA, Len Agustine, blamed the proposition for his city's increase in property crime and believes criminals are committing these types of crimes because they know they can get away with it.  Mayor Agustine believes Governor Brown is more interested in getting people out of jail rather than putting people in.  

Can the AG Take Pot Off Schedule I?

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The question whether the Attorney General can, strictly on his own initiative, take pot off Schedule I of the federal schedule of controlled substances has been kicking around for some time now.

As with everything inside the Beltway, it's hard to get a straight answer.  The Washington Post at least gives it a good college try today.  The key part of its piece is here (emphasis added):

Under federal law, the attorney general can move to add, reschedule or remove drugs on his own, at the request of the health and human services secretary or in response to a public petition. But the law also requires the attorney general to gather data and scientific and medical evaluation from the HHS secretary before doing so.

Congress can pass laws to change the scheduling of drugs. Even if the attorney general does decide to move toward rescheduling, Congress can overturn his decision, experts say.

The Drug Enforcement Administration already has denied a petition to reschedule the drug, based on findings by HHS. HHS determined that marijuana has a "high potential for abuse" and "no currently accepted medical use in treatment in the United States," leading the DEA to reject the petition in 2011. The petition was filed nearly a decade earlier, in 2002.

I would add four observations.  First, pot is already de facto legal, as you can find out by going to any of a zillion frat parties this weekend.  Second, the incoming AG, Loretta Lynch, has said firmly that she opposes pot legalization  --  a quite direct answer, given the entirety of her testimony.  Third, it was several years into the present Administration that the federal government refused a request to take pot off Schedule I.  Fourth, a Congress vastly more liberal than this one (2006-2010) made absolutely no move to remove pot from Schedule I.

The facts being what they are, this is not that hard to figure out, unless you're stoned.

News Scan

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Suit demanding CA adopt an execution process brought by ex-NFL Star Kermit Alexander
Tracy Connor of NBC News reports on the murders of Kermit Alexander's family, profiling his story and his continued wait for justice.  Earlier this month, after filing a suit demanding CDCR adopt regulations for lethal injection, the Superior Court agreed that Mr. Alexander has standing to bring the action, giving him hope to move forward after decades of waiting.  The story is available here.
Kermit Alexander will be on KFI Radio after 4:30 p.m. today.

News Scan

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Crime Victims to Testify Against Obama Immigration Policies: Family members of those killed by illegal immigrants released under President Obama's immigration policies will testify at a Congressional hearing Wednesday morning.  Joel Gehrke of the National Review reports that of the 36,000 convicted illegals released by the Department of Homeland Security since 2013, 1,000 of them have been arrested and convicted of crimes.  The crime victims' families are hopeful that their testimony will encourage  sensible immigration reform.

Bills Require Lifetime Tracking Of Sex Offenders: A group of Florida lawmakers have introduced a pair of bills that would require convicted sex offenders to wear or carry an electronic monitoring device for the rest of their lives.  Anneliese Delgado of WOKV News reports that under the legislation, sex offenders would wear the GPS device even after they have completed their court-ordered probation, and would also be responsible for reimbursing the Department of Corrections for the cost of the device.  If the bills are passed, they would go into effect October 1, 2015.

GA To Execute Female Murderer: The Georgia parole board has denied a request for clemency submitted by the state's only female death row inmate, allowing the state to move forward with executing her Wednesday evening.  The Associated Press reports that 46-year-old Kelly Gissendaner was sentenced to death in 1998 after a jury found her guilty of murder in the death of her husband.  If the execution is carried out as scheduled, Gissendaner will be the first woman executed by the state of Georgia in roughly 70 years.  

Fisherman Wins SarbOx Case

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By the narrowest of margins, the U.S. Supreme Court has spared a fisherman from the overbroad drafting the Sarbanes-Oxley Act, a law that was supposed to be about corporate financial accountability, not throwing fish overboard.  The vote in Yates v. United States is 4-1-4, with Justice Ginsburg writing the plurality opinion and Justice Alito concurring in the judgment in a separate opinion.  These split results typically produce a lot of head-scratching as lawyers and lower courts try to figure out what the heck the law is.

Update:  On an initial quick read, the plurality and concurrence don't seem all that different to me.  The SarbOx law prohibits destroying etc. "any record, document, or tangible object."  Is "tangible object" limited to information-containing objects along the lines of documents and records, or does it extend to any objects whatever?  The plurality and concurrence invoke the standard rules of statutory construction of considering words in their context and considering words in a list to be in the same general category as the others in the list.  The concurrence also notes the title of the section, "Destruction, alteration, or falsification of records in Federal investigations and bankruptcy."  Yep.  Titles should get more attention than they do.  I especially dislike the old rule that too many lawyers write into documents that you should ignore the titles.  They are important clues into the genuine intent of a document.

Justice Kagan in dissent insists that "A fish is, of course, a discrete thing that possesses physical form," citing the renowned lexicographer Theodor Geisel by his better-known pen name.*  Pretty sure that's a first.

News Scan

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Evaluating Inmates: States across the U.S. have been using surveys and other evidence-based instruments to predict a prison inmate's risk of committing serious crimes if released.  These tools are a key element of the "smart sentencing" movement which insists that most criminals should be rehabilitated in community-based programs rather than incarcerated in expensive prisons. In an in-depth Associated Press report Eileen Sullivan and Ronnie Greene found many problems with the accuracy of these tools often resulting in tragedy. One violent sex offender rated low risk and released from a Texas prison in 2013, moved to Indiana and murdered a 19 -year-old girl a year later. When arrested he led police to the bodies of six other women. Hell of a way to save money.   

AK Allows Recreational Marijuana Use: Starting today, residents of Alaska can smoke, grow, and own small amounts of marijuana after voters narrowly passed the measure last November.  Jason Redmond of Reuters reports that anyone aged 21 or older is allowed to have up to an ounce of marijuana and can grow up to six plants, however, smoking, buying, and selling the drug in public still remain illegal.  Voters in Oregon approved a similar measure in November, but the law won't take effect until July.

Hundreds of Matches Found In Backlogged Rape Kits: After processing nearly 7,000 untested rape kits, authorities in Texas have been able to start charging people with crimes that up until now had gone unsolved.  The Associated Press reports that the city of Houston began processing the untested kits in October 2013, since then, charges have been filed against 29 people-six of whom have been convicted.  Similar backlogs exist in police departments around the country due to the high cost of DNA testing.

Jennings v. Stephens Podcast

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The Federalist Society has this podcast by CJLF's Legal Director Kent Scheidegger on the U.S. Supreme Court's January 14 decision in Jennings v. Stephens.

SCOTUS Tuesday

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Only one decision from the U.S. Supreme Court today.  It is an "original jurisdiction" case, states suing each other over river water:  Kansas v. Nebraska.  Still waiting on Elonis v. United States.

Today's criminal law argument has to do with the disposition of firearms seized from a defendant when the criminal case is over and the now-convicted defendant can no longer legally possess them: Henderson v. United States, No. 13-1487.

Death Penalty Repeal Fails in Montana

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Mike Dennison reports in the Montana Standard:

The state House deadlocked Monday 50-50 on a bill to abolish the death penalty in Montana, likely killing the measure for the 2015 Legislature.
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Monday's vote fell largely along party lines, with most Republicans against it - but it took three of the House's 41 Democrats voting "no" to reject the bill, which would abolish the death penalty in Montana and substitute it with life in prison without parole. Montana has two murderers on death row.
While the vote is welcome, it is unfortunate and worrisome that they got that close.  Repeal supporters have swung marginal votes with arguments that the process takes too long and costs too much, when the obvious answer is to make in faster and, in the process, cheaper.

The way to make review of death penalty cases faster and cheaper while making it more reliable with regard to genuine miscarriages of justice is to limit all repeated reviews, after the first full round of review, to questions with some bearing on actual innocence. 

News Scan

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Illegals Riot In Texas Prison: Nearly 3,000 inmates at a federal prison in southern Texas will be relocated to new facilities after a riot over the weekend resulted in significant damage.  Newsmax reports that inmates at the private prison, which primarily houses illegal immigrants, broke out of their cells and set fire to several areas and tore down tents that had been set up for additional housing.  So far, 300 inmates have been relocated and hundreds more are scheduled to be moved throughout the week. 

OH Delays Execution Of Cop Killer: The Ohio Supreme Court has granted a routine stay of execution for a man convicted of murdering a police officer in 2008.  Marc Kovac of The Daily Record reports that Ashford Thompson was sentenced to death in 2010 after being found guilty of shooting a police officer multiple times in the head during a routine traffic stop.  Thompson's lawyers appealed his sentence with claims that legal and procedural errors were made during his trial.  Last October, the state's high court upheld Thompson's death sentence in a 4-3 decision.

Nevada Lawmakers To Hear Several Gun Bills: This may be the 'year of the gun' in the Nevada Legislature as at least nine gun-related bills have already been introduced or are being drafted by lawmakers.  Sean Whaley of the Las Vegas Review-Journal reports that the proposed bills include expanding justifiable homicide to carjacking situations and making it illegal for anyone convicted of domestic violence to own a gun.  Nevada Assembly Judiciary Chairman Ira Hansen believes the high number of gun-related bills may be a response to the national effort by anti-gun groups to limit gun rights of citizens.  

Framed by the Innocence Project?

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We previously noted the Alstory Simon story here in 2008 and here last November.

Jacob Siegel reports in the Daily Beast on the restitution suit filed by the "actual killer" in one of the earliest and most famous "exoneration" cases.  The ironic and inconvenient truth is that the "actual killer" nailed by the "innocence" crusaders was actually innocent.

"It took two sides to get this thing done," Crawford says of the forces that pulled Simon into the murder case and put him in prison.

"This thing" Crawford refers to darkly is the collusion between overzealous state prosecutors and a high-profile leader of a since disbanded franchise of the Innocence Project, a nationally lauded legal program that gathers evidence to exonerate wrongfully convicted prisoners. In this case Crawford and others allege that in its eagerness to free a prisoner on death row, the Northwestern University branch of the Innocence Project framed Simon, and Cook County prosecutors went along with it.

Simon was convicted in 1999 for a double-murder in Chicago in 1982 on the basis of what he says was a coerced confession and released on Oct 30, 2014 after being exonerated by a new investigation. Now, in a bid for restitution and maybe some justice, Simon has filed a $40 million lawsuit against Northwestern and former professor David Protess, famed founder of Medill's Innocence Project.

According to Simon's lawsuit, "The horrific injustice that befell Simon occurred when defendants, Northwestern University professor David Protess, Northwestern University private investigator Paul Ciolino, and attorney Jack Rimland, conspired to frame Simon for the murders in order to secure the release of the real killer, Anthony Porter," the suit reads.
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The problem, as Cook County State's Attorney Anita Alvarez said in a statement after Simon's release, was that the "investigation by David Protess and his team involved a series of alarming tactics." Those tactics, "were not only coercive and absolutely unacceptable by law-enforcement standards," Alvarez said, "they were potentially in violation of Mr. Simon's constitutionally protected rights."


The U.S. Supreme Court begins its February-March argument session today.  The big news will be on the last day, Wednesday, March 4, the Obamacare subsidy case, King v. Burwell.

The main issue of that case is, of course, off-topic for the blog, and CJLF takes no position on it.  Yet the law is a seamless web, and we always watch Supreme Court cases for points that may spill over and have an effect on our cases.  Adam Liptak reports for the NYT that the issue of standing may pop up in this case.

Standing is an issue in two of CJLF's current cases, HCRC v. USDoJ and Winchell & Alexander v. Beard.  See this post two weeks ago.  Liptak's article begins:

The Supreme Court has developed elaborate tests to determine if plaintiffs have standing to sue. But their essence, Justice Antonin Scalia once observed, is a four-word question: "What's it to you?"

To get into court, it is not enough to be unhappy about something. Only people with a direct stake in a dispute have standing to sue.
But a very complex body of law lies beneath that seemingly simple question.

I don't think it takes a genius to figure this one out.  Still, the sponsors of Prop. 47 nervously assure us that it's "too early" to draw the predictable (and predicted) conclusion from these breathtaking figures.  Of course, by the time they admit the conclusion everyone else can see, their line will be that we just don't have the money to "go back."

When you shrink drug enforcement, you get more property crime as well as more drug abuse.  And I don't mean just pot.  I mean meth.

Read the entire Los Angeles Times story for yourself.


Click on the graph for a larger version.

Hat tip to Doug Berman at SL&P, who brought this piece to the attention of his readers. 

My friend Prof. Greg Dolin of the University of Baltimore Law School writes, "When Barack Obama ran for President, he argued that terrorism should be primarily a law enforcement rather than a military issue. Now he apparently thinks that it's primarily a labor and human services and not a law enforcement issue."

The source of Greg's remark is the following story, which I post with only the observation that this Administration's delusional thinking about terrorism has gone past the point of parody.  

White House Press Secretary Josh Earnest said Friday that FBI Director James Comey was not invited to the White House Summit to Counter Violent Extremism, because they didn't want the perception that the conference "was overly focused on law enforcement tactics...."

"Certainly law enforcement is a very important role to play. That's why we had the nation's top law enforcement official in attendance," Earnest said.

"That's why we had police chiefs and other law enforcement officials from communities across the country in attendance, but the focus here is on the broader set of tools that are available to communities all across the country to protect vulnerable people who could be susceptible to violent extremist ideology that's propagated on social media," he added.

That's it, ladies and gentleman.  We plan to fight Jihadist decapitation with Facebook posts about how to moderate the inequities of capitalism.  If you gave me a thousand years, I could not come up with this stuff.

Juan Williams has this article with the above title at the WSJ.  "This black history month is an opportunity to celebrate the most influential thinker on racial issues in America today...."

The Chair

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AP reports:

NASHVILLE, Tenn. - The Tennessee Supreme Court has agreed to hear a legal challenge over a law allowing the state to electrocute death row prisoners if lethal injection drugs are unavailable.

The challenge is part of a lawsuit filed by 34 death row inmates over Tennessee's death penalty protocols -- both lethal injection and electrocution. The state wants the court to dismiss the challenge to electrocution protocols because none of the inmates are currently scheduled to die by electrocution.

The new electrocution law was meant to jumpstart the state's stalled execution process, but it opened the door to new legal challenges.

The hearing is scheduled for May 6 in Knoxville.

The high court also is considering whether the state must release the identities of the people who carry out executions.

Jumpstart?  A curious choice of words.

Sometimes your allies are more trouble than your opponents.  These bills to revert to the electric chair or firing squad are not going to fix anything.  Look at Oklahoma, folks.

News Scan

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Convicted Killer set to be Released: A former hit man for the Mexican Mafia who was sentenced to life without parole after being found guilty of first-degree murder is set to be released from prison in a matter of days after becoming an informant for law enforcement.  Robert Holguin of ABC 7 News reports that over the past several years, 52-year-old Rene Enriquez has testified for law enforcement agencies as an expert witness and has even been a regular speaker at law enforcement seminars.  Enriquez has been behind bars since 2003, he is set to be released sometime next week unless Governor Brown intervenes.

Bill Aimed at Strengthening Gun Laws: Republican lawmakers in Nevada have introduced a bill that would prohibit people convicted of domestic violence from owning a gun.  The Associated Press reports that SB175 would also prevent individuals convicted of domestic violence that have an active restraining order filed against them from purchasing a gun.  In addition to strengthening gun legislation, the bill would also expand concealed carry laws and expand the definition of justifiable homicide.

Indiana High Court Upholds Death Sentence: The Indiana Supreme Court has upheld the death sentence for a man convicted of killing two children in a fire.  The Indy Channel reports that in 2010, Jeffery Weisheit trapped his fiancee's two children their home before setting fire to the building, in what prosecutors described as an agonizing death. Attorneys for Weisheit appealed his sentence based on the claim that the trial judge prevented a witness from testifying about their client's ability to be in prison without harming himself, his request for a new sentence was ultimately denied.

The Road Ahead For Oregon

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John Kitzhaber is no longer Governor of Oregon.  There is no news of his issuing any death row commutations on his way out the door.  AP has this story on a noncapital commutation. 

Kitzhauber's December 6, 2011 reprieve, quoted in the Oregon Supreme Court's decision in Haugen v. Kitzhaber, S060761 (June 20, 2013), reads,

NOW, THEREFORE, by virtue of the authority vested in me by Article V, Section 14 of the Oregon Constitution, I, John A. Kitzhaber, MD, Governor of the State of Oregon, hereby grant Gary D. Haugen a temporary reprieve of the aforementioned death sentence for the duration of my service as Governor.
The duration of his service is over.  The reprieve is over.  What next?

The new Governor, until-today Secretary of State Kate Brown, can and should allow the law to take its course.  The primary thing wrong with the death penalty is that the judgments take too long to carry out.  Imposing a moratorium as a remedy makes no more sense than the nineteenth-century doctors bleeding patients as a remedy.

But will she?

News Scan

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FL High Court Halts Execution: The Florida Supreme Court has stayed the execution of man who has been on death row for nearly three decades.  Payton Guion of The Independent reports that Jerry William Correll was sentenced to death for the murders of his daughter, ex-wife, ex-wife's mother and sister.  He execution was scheduled for February 26.  The state's high court stayed Correll's execution while it awaits a decision by the U.S. Supreme Court on the legality of the use of midazolam as the first drugs in a three-drug lethal injection protocol, the method presently in use in Florida and Oklahoma.  

Bill Would Expand Sex Offender Registry: A legislative panel in Idaho is reviewing a bill to add people convicted of violent crimes, such as murder and felony domestic violence, to the state's sex offender registry.  The Associated Press reports that the House Judiciary, Rules and Administration Committee has already voted unanimously to consider the bill, which is intended to improve public safety.  Other crimes that may be considered for the registry include attempted murder, human trafficking, and battery with intent to commit a serious felony.

WA Lawmakers Weigh Death Penalty Bill: A House Committee in Washington state is set to hear public testimony on a bill to  abolish the death penalty.  The Associated Press reports that House Bill 1739 would eliminate the death penalty in Washington and replace it with a sentence of life in prison without the possibility of parole.  Last year, Washington Governor Jay Inslee imposed a moratorium on capital punishment.  

I want to follow up on my post yesterday, "An Amazing Fantasy," to show how the New York Times, one of the most prominent cheerleaders for lower criminal sentences, attempts to advance its cause.  Let me cut to the chase.  Its principal means are condescension and deceit.  In this, it is all too representative of the movement for which it speaks.

I will begin by analyzing yesterday's editorial one piece at a time.  As you will see, there is barely a sentence in it that's not condescending or deceptive or both.

"Root Causes," the Insane Asylum Version

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Complacency about crime typically expresses itself in the same phrases, year after year.  Perhaps the most shopworn is the phrase, "root causes,"as in, "You Neanderthals should quit being so heartless and try to understand the root causes of crime." It inevitably turns out that the "root causes" have nothing to do with greed, selfishness or lack of morals.  Instead, they're always about something for which the hoodlum du jour is not responsible, such as poor education, bad parenting or unemployment.

The "root causes" theory of thuggish behavior just hit the jackpot.  The inimitable Ms. Marie Harf of the State Department had this to say about the world's most notorious and mind-bending criminals, ISIS terrorists:

MARIE HARF, U.S. STATE DEPARTMENT: I think there are a few stages here, right now we are trying to take their leaders and their fighters off the battlefield in Iraq & Syria, that is where they really flourish.

CHRIS MATTHEWS, MSNBC: Are we killing enough of them?

MARIE HARF: We're killing a lot of them. And we're going to keep killing more of them. So are the Egyptians and Jordanians, they're in this fight with us. We can not win this war by killing them. We can not kill our way out of this war. We need in the medium and longer term to go after the root causes that lead people to join these groups, whether it is lack of opportunity for jobs...

It would be wrong, even perverse, to blame the criminal defense bar for this stultifying nonsense.  That said, however, what struck me right off when I read it was its eerie similarity to the allocution I heard again and again from defense counsel:  "Your Honor, we can't do any good by imprisoning my client.  We cannot incarcerate our way out of drug abuse.  We need in the medium and longer term to go after the root causes that lead people to join these gangs, whether it is lack of opportunity for jobs..."

Moral of story:  Once personal responsibility for your behavior goes out the window, there's no telling where it will stop.

Ignorance At The Top

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You can't expect the average Joe on the street to understand precisely what a case pending before the U.S. Supreme Court is about.  I do expect the press to get it right, but I'm not shocked at an occasional error.

What is shocking, though, is for the Attorney General of the United States to completely misunderstand what a case before the high court is about. 

Sari Horwitz reports in the WaPo:

Attorney General Eric H. Holder Jr. said Tuesday that he would support a national moratorium on lethal injections until the Supreme Court reviews the protocol used in a botched execution in Oklahoma last year.
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"The Supreme Court's determination as to whether or not lethal injection is consistent with our Constitution is one that ought to occur," Holder said after reiterating his personal opposition to the death penalty.

"I think a moratorium until the Supreme Court made that determination would be appropriate."

That is the most ignorant statement I have ever heard from an Attorney General.

The Supreme Court is not determining whether lethal injection generally is consistent with the Constitution.  There is no serious question that the single-drug pentobarbital method that Texas has used without incident nearly 40 times is constitutional.  The case of Glossip v. Gross does not involve any question that would call that method into question.  That case involves the three-drug method used in Oklahoma, with midazolam as the first drug and with additional drugs to follow that would surely cause extreme pain if the inmate is not anesthetized by the first one.

To call for a national moratorium on all lethal injections, including those not implicated by the method involved in the case, is irresponsible and ignorant.  If Mr. Holder is concerned about the method being used in Oklahoma, he should show some leadership in helping to break down the barriers to the states' acquisition of pentobarbital.

The sooner he is gone the better.

The Best Case Yet for Loretta Lynch

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A significant number of conservatives believe Loretta Lynch should be confirmed simply because she is not Eric Holder. Personally, I have my doubts, but that view of things got bolstered significantly by Mr. Holder's Twilight Zone remarks about radical Islam and  --  ready?  --  Fox News.  This piece is just delicious:

There is a recurrent fantasy within the Obama administration that they could get away with anything, if only that damn Fox News would shut up. Well, sometimes that could be true. But other times, it's delusional. Like when Eric Holder blamed Fox News for Islamic radicalism:

Whenever you're getting criticized by both sides, it probably means you're probably getting it right. We spend more time, more time talking about what you call it, as opposed to what do you do about it, you know? I mean really. If Fox didn't talk about this, they would have nothing else to talk about, it seems to me.

Sure. It's not the beheadings, the burning alive, the selling of women into slavery, the parading of prisoners in cages that has people concerned about Islamic extremism. It's not reality, it's Fox News! But what is Holder's point? Why is the administration so allergic to acknowledging that the terrorists who are wreaking havoc are Islamic radicals?

Radical Islam, Islamic extremism; I'm not sure an awful lot is gained by saying that. It doesn't have any impact on our military posture; it doesn't have any impact on what we call it, on the policies that we put in place.

As if we had a policy in place to put these ISIS savages out of business.



News Scan

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Iowa Lawmakers Want To Reinstate Death Penalty: Republican lawmakers in Iowa have introduced a bill aiming to reinstate the death penalty in their state.  William Petroski of The Des Moines Register reports that Senate File 239 would allow executions to take place for those convicted of kidnapping, raping, and murdering a minor.  The last time the state of Iowa executed a death row inmate was in 1963, just two years later, the death penalty was abolished. 

FL Legislature Considers Prison Reform: A Florida Senate committee has given preliminary approval for a bill seeking to create an independent group to investigate wrongdoing in the state's troubled prison system.  Mary Ellen Klas of the Miami Herald reports that in a unanimous vote, the Senate Criminal Justice Committee approved SB2070, which mandate a nine-person Criminal Justice Commission that would be permitted to conduct random inspections in both state-run and private prisons, monitor inmate healthcare, and investigate allegations of abuse.  The Florida Department of Corrections has been plagued by allegations of cover-ups and rumors of inmate abuse for the past several years.

Habitual Felon Accused of Murder: The California man accused of stabbing a woman to death on a busy Sacramento street corner last week has a violent criminal past, and has been a registered sex offender since 2011.  Gamaliel Ortiz of KCRA reports that police believe 47-year-old Timothy Varmall violently attacked the woman and left her body on the corner of a busy intersection before fleeing the area when authorities arrived.  Varmall has prior convictions of sexual assault against a minor and sexual penetration of a victim with a foreign object by force.  Upon his release from prison, he was deemed a 'moderate-low' risk under the state's sex offender risk assessment.  

An Amazing Fantasy

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And no, this is not about that fantasy.

It's about the New York Times's latest editorial pushing softer treatment for criminals (a/k/a "sentencing reform").  There are a number of howlers in the piece, but I want to start with this one:

Mr. Grassley [Chairman of the Senate Judiciary Committee], for reasons that defy basic fairness and empirical data, has remained an opponent of almost any reduction of [federal] sentences. In a speech from the Senate floor this month, he called the bills "lenient and, frankly, dangerous," and he raised the specter of high-level drug traffickers spilling onto the streets.

Mr. Grassley is as mistaken as he is powerful. Mandatory minimums have, in fact, been used to punish many lower-level offenders who were not their intended targets. Meanwhile, the persistent fantasy that locking up more people leads to less crime continues to be debunked. States from California to New York to Texas have reduced prison populations and crime rates at the same time. A report released last week by the Brennan Center for Justice found that since 2000 putting more people behind bars has had essentially no effect on the national crime rate.

The Times's claim about the "persistent fantasy" that increased incarceration produces less crime is stupid, dishonest and false.

Kevin Reed, a magistrate judge in Memphis, is one of the people who sees the ugly reality of domestic violence all the time.  He has this op-ed in the WaPo, commenting on Elonis v. United States, the Facebook threat case.

As a magistrate judge, I've presided over hundreds of protective order hearings in domestic abuse cases. And I can tell you that no abuser intends to truly threaten when he promises to kill his victim -- at least not by the time he's made it to court.

Victims come to court every day armed with heinous voice-mail messages, text messages or Facebook posts from abusers threatening them with bodily harm or worse. The identity of the speakers of these troubling statements is rarely in question. But when confronted, these abusers are always dismissive. According to them, such statements aren't real threats at all. They are just a way to express anger about a particular situation -- loose talk designed to let the target know how upset they feel. An overt statement to kill someone on sight is explained away as an atypical outburst that meant nothing -- a position they believe is supported by the living-and-breathing victim's presence in the courtroom.
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Race, Race Huckstering, and Crime

Jason Riley, a writer for the Wall Street Journal, tells the grim and unpopular truth:

The shooting death of a young black man by a white police officer in Ferguson, Missouri, last year touched off a national discussion about everything except the aberrant behavior of so many young black men that results in such frequent encounters with police....

Homicide is the leading cause of death for young black men in the U.S., and around 90 percent of the perpetrators are also black. Yet for months we've had protesters nationwide pretending that our morgues are full of young black men because cops are shooting them. Around 98 percent of black shooting deaths do not involve police. In fact, a cop is six times more likely to be shot by someone black than the opposite. The protestors are pushing a false anti-cop narrative, and everyone from the president on down has played along.

Any candid debate on race and criminal justice in this country would have to start with the fact that blacks commit an astoundingly disproportionate number of crimes. Blacks constitute about 13 percent of the population, yet between 1976 and 2005 they committed more than half of all murders in the U.S. The black arrest rate for most offenses--including robbery, aggravated assault, and property crimes--is typically two to three times their representation in the population. So long as blacks are committing such an outsized amount of crime, young black men will be viewed suspiciously and tensions between police and crime-ridden communities will persist. The U.S. criminal justice system, currently headed by a black attorney general who reports to a black president, is a reflection of this reality, not its cause. If we want to change negative perceptions of young black men, we must change the behavior that is driving those perceptions. But pointing this out has become almost taboo.

Riley's entire essay is worth your time.

How Dumb Do They Think We Are?

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Newsflash:  Incapacitating people who commit crime has no effect on the amount of crime.

Do you believe that?

A far left advocacy group, the Brennan Center, wants you to.  The press release from their latest propaganda (heralded, as ever, as a "study") states:

Increased incarceration had some effect, likely in the range of 0 to 10 percent, on reducing crime in the 1990s. Since 2000, however, increased incarceration had a negligible effect on crime.

Convincing the public that there is little or no relationship between (1) increased incarceration of people who commit crime and (2) enormous crime reduction over the last quarter century is critical to the efforts of the pro-criminal lobby to sell miniaturized sentences (which they understandably call by the opaque name "sentencing reform").  The lobby knows by now  --  in part because of its humiliating failure in Congress  to pass the Smarter Sentencing Act  --  that the public simply is not going to buy slashing sentences as long as it understands that a crook who's in prison is not ransacking your house while you're at work, or selling heroin and similar goodies to your teenager.  Hence the effort to convince us that incarcerating criminals has nothing or next to nothing to do with crime reduction  -- arguably the most important domestic policy success of the last fifty years.

Related Newsflash:  The centuries-long link between crime and punishment just disappeared.

These people are a hoot.

UPDATE:  The Heritage Foundation, which takes the same robust pro-"reform" position as the Brennan Center but is a great deal more honest, recently took the view, through its distinguished Fellow, John G. Malcolm, that increased incarceration could be credited with between 25 and 35 percent of the last generation's crime reduction.  See Mr. Malcolm's remarks starting at 7:35 of this tape.  Somebody's telling a whooper, and it's not John Malcolm.

A Bizarre Situation with a Predictable Ending

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Kent noted the on-again-off-again resignation of Gov. John Kitzhaber of Oregon. The Governor's tenure just got off again, this time it seems for good.

Oregon Gov. John Kitzhaber announced his resignation Friday, after alleged ethical breaches involving his fiancee prompted a criminal investigation.

Just months after being re-elected to a fourth term, Mr. Kitzhaber, a 67-year-old Democrat, bowed to mounting pressure to resign after media reports that his fiancee, first lady Cylvia Hayes, was allegedly being paid to represent an array of interest groups at the same time she was helping formulate policies in his administration that involved those groups.

Oregon has no office of lieutenant governor, so Mr. Kitzhaber will be succeeded by another Democrat, Secretary of State Kate Brown.

The Wall Street Journal has the story

Preventive Medicine

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In this interview at CNN, Justice Ruth Bader Ginsburg explains why she dozed off during President Obama's State of the Union Address.

I really can't blame her.  If I had to listen to President Obama for an hour, I would want a snort or three myself.  Scalia, J., concurs.

See also this article at the Washington CBS affiliate and this article by Robert Barnes at the WaPo.
In the sixth comment to a prior thread, Doug Berman, raises a number of important points I've seen frequently in the national death penalty debate.  They have sufficient gravity that I want to address them in a separate entry.

Doug's principal question is about the meaning of "proportionality" and the implications of that term in the law of punishment.

I had asked Doug if he thinks a jail sentence of any length fits the mind-bending crime of killing a hostage by burning him to death. Doug says that he does not.  He adds, however:

I also do not think a lethal injection would "fit" this grotesque crime, either. The only concept of "fit" that ever really made sense to me was the classic biblical admonition: "You must show no pity for the guilty! Your rule should be life for life, eye for eye...." With that concept of fit in mind, I think the only fitting punishment here would be seemingly be execution by burning at the stake.

In a prior thread, I believe you explained that certain concepts of civilization and humanity in the United States would preclude us from seeking this type of truly fitting punishment. I am not sure I would agree if I subscribed, in any significant way, to the notion that US punishment schemes should be principally focused on trying to impose "fitting" punishments. But, in my own assessments of punishments, I do not generally use vague normative terms like "fit" or "proportionality" because I really have very little idea of what these terms can possibly mean in the vast majority of cases, especially controversial ones.

Doug's questions are good ones, but, being a simple-minded man, I don't think the answers are all that hard.

A Bizarre and Unprecedented Situation

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The title of this post is the Oregon Secretary of State's description of the situation with that state's governor. Alejandro Lazo reports for the WSJ:

Oregon Gov. John Kitzhaber is facing a mounting political crisis, as influence-peddling allegations involving his fiancée have spurred a criminal investigation by the state's attorney general and calls for his resignation from leaders of his own Democratic Party.

Just months after being re-elected to a record fourth term, Mr. Kitzhaber is under pressure to step down following media reports that his fiancée, first lady Cylvia Hayes, was being paid to represent an array of interest groups at the same time that she was helping formulate policies in his administration that involved those groups.

Oregon has no lieutenant governor, a wise choice.  The Secretary of State is next in line.  As I read Article V § 8a of the Oregon Constitution, it seems to say that the SecState would serve until "the next biennial election," in which a Governor would be elected to serve out the last two years of Kitzhaber's term.  The section is not a model of draftsmanship, though. 

Section 14 does not have any limitations on the commutation power for murder, so he could pull a Ryan and clear out death row before going to jail or wherever he is going after the governor's office.

News Scan

Murder Suspect Recently Released Under Three Strikes Change: A California man with a lengthy criminal history has been named as the primary suspect in the murder of a young mother of two, and police say he was able to commit that crime because he was released from prison early under Proposition 36.  Fox 40 News reports that 38-year-old Moses Valdez, a known gang member and career criminal, was sentenced to 25 years in prison for a third strike offense but was released early under the revised law after his most recent crime was deemed 'non-violent,' even though he had previously been convicted of two murders.  Police are actively searching for Valdez who has been on the run since November.

Bill Would Abolish Some Mandatory Sentences: Several senators want to introduce a bill to eliminate mandatory minimum sentences for certain "non-violent drug offenders."  Julia Edwards of Reuters reports that the bill would give federal judges leeway when sentencing so-called low-level drug offenders, allowing the federal government to save money on prison expenses.  An identical bill that was introduced last year failed to get enough votes to pass. 

Accused Rapist Wore GPS Monitor During Attack: The California teenager who police say kidnapped and raped a pizza delivery woman over the weekend was on active house arrest and was wearing a GPS monitoring device at the time of the attack. Matthias Gafni and Rowena Coetsee of the San Jose Mercury News report that 17-year-old Darrion Miles Jr., who is being prosecuted as an adult, is facing a variety of felony charges including rape, kidnapping, robbery, and sodomy.  Miles Jr. was active juvenile probation at the time of the crime, if found guilty of these charges, he faces a possible life sentence.

State DP Legislative Notes

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In South Dakota, a bill to repeal the death penalty was defeated in committee, Mark Walker reports for the Argus-Leader.  A bill to allow people to state with their DMV registration that they did not want their murderers executed in the event that they were murdered was also killed, AP reportsUpdate:  The repeal bill, SB 121, was not merely defeated.  It went down in flames, 7-2.

In Oklahoma, bills to allow nitrogen hypoxia as an alternate method passed committees in both house easily: 9-0 for SB 794 in the Senate and 7-2 for HB 1879 in the House.  Sean Murphy has this story for AP.

In Virginia, the Senate approved a bill, S.B. 1393, to protect suppliers of execution drugs from harassment by extending confidentiality to them.  The bill now goes to the House.  The Governor supports it.

News Scan

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Parolee Arrested After Violent Pursuit: A California man with a lengthy criminal history is behind bars once again after leading police officers on violent chase through Los Angeles.  KTLA reports that 29-year-old Aaron Lorta carjacked one woman after threatening her with a handgun and attempted to steal two other vehicles during the violent pursuit.  Lorta was released from state prison and placed on parole last June after serving just one year for a robbery conviction, he is currently being held in county jail without bond.

MO Executes Convicted Murderer: A Missouri man who was sentenced to death for the murder of his neighbor has been executed after spending nearly 25 years on death row.  The Associated Press reports that Walter Storey broke into his neighbor's home in hopes of stealing money for beer.  When the victim confronted him, he beat her savagely leaving her with several broken bones before he slit her throat.  Storey was the first person executed in the state of Missouri so far this year.

LAPD On Alert After Violent Weekend: Police officers in Los Angeles are on high alert after responding to nearly two dozen shootings in just four days.  Veronica Rocher of the Los Angeles Times reports that since the start of 2015, both violent crime and property crime rates have increased by 10% and gang violence is up an astonishing 25%.  Police believe the majority of the recent shootings are in fact gang-related, and have increased patrols in high-crime areas  to ease mounting gang tension.

Fingerprint Error Rate: Zero

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Natalia Zea reports for CBS Miami on a study of fingerprint match reliability.

The fingerprint examiners correctly matched every single print in the tests, with only 3 percent of the inaccurate matches caught by a second examiner, which is part of normal protocol at crime labs across the country.
That's rather awkward phrasing.  Presumably it means that 3 percent of the matches found by the first examiner were not correct but all of the errors were found and corrected on the second examination.
The United States Supreme Court has denied a stay of execution to Missouri murderer Walter Storey.

The Ethics Bureau at Yale filed an amicus brief claiming that counsel cannot ethically suggest a better method of execution while arguing against the one the state plans to use.  I think that is nonsense, and it is likely that five Justices of the Supreme Court think so also.  I plan to post a longer explanation later.

"Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan would grant the application for stay of execution."

Update:  I may not get to this for a while, so I will upload it and let interested readers read it for themselves. This is wrong in so many ways I hardly know where to start.
On January 30 we had a hearing in our suit against the Secretary of the California Department of Corrections and Rehabilitation to force him to adopt a usable execution protocol.  See my post after the hearing.

Judge Chang has issued a final ruling.  It is dated Friday, February 6, although it was not available until late Monday.  The final ruling is a reprint of the tentative ruling with a few paragraphs added at the end making the tentative ruling final and addressing the AG's arguments at the hearing.

This is only a preliminary step, rejecting the AG's attempt to have the case thrown out at the threshold.  That attempt is called a demurrer in California and other states that follow the old procedure.  In federal courts and states that follow the federal model, it would be a Rule 12(b)(6) motion.  Although preliminary, it does settle two very important points:

1.  Victims have standing to bring this case, both as parties with an interest over and above that of the public generally and "public interest" standing to enforce a public duty.  The latter wouldn't be allowed in federal court, but we are not in federal court.

2.  CDCR has a duty to establish a protocol.  They do have discretion on the details, but not on whether they do or don't establish one.  The bureaucracy cannot place a de facto moratorium on capital punishment, as they did in Maryland and as they have in California so far, simply by sitting on their hands and not establishing the protocol.

These are the primary questions of law in this case.  Actually issuing a writ of mandate will require resolution of further details, but this is a big gain for the cause of justice.

CJLF's press release is here.

Update:  Maura Dolan has this story for the LA Times.  Jennie Rodriguez-Moore has this story for the Stockton Record.
It recently came out that Barack Obama lied when, as a candidate in 2008, he said he opposed same sex marriage.  He was for it from the getgo, as almost everyone around him knew.  But it would have posed electoral problems for him to tell the truth, so he didn't.  He correctly calculated that, at the time, lying would bring in more votes.

This revelation will come as a surprise to very few people.  This is, after all, the same man who, also for political gain, assured us that, "if you like your insurance, you can keep your insurance," knowing as he spoke that this was false.  Both the premises and the specific requirements of Obamacare made it certain that millions would lose their insurance, which they did.

For purposes of this blog, the question arises whether Obama is also lying when he says he supports the death penalty.  And make no mistake, this is indeed his stated position when campaigning in his home state:

I believe that the death penalty is appropriate in certain circumstances. There are extraordinarily heinous crimes, terrorism, the harm of children, in which it may be appropriate. Obviously we've had some problems in this state, in the application of the death penalty and that's why a moratorium was put in place and that's why I was so proud to be one of the leaders in making sure that we overhauled it, death penalty system that was broken. For example, passing the first in the nation videotaping of interrogations and confessions in capital cases. We have to have this ultimate sanction for certain circumstances in which the entire community says this is beyond the pale.

Is that what he actually thinks, or will that position, like his opposition to gay marriage, go over the side of the boat for political and/or ideological reasons?

News Scan

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Execution Date Set For GA Killer: A Georgia woman who was sentenced to death for arranging the murder of her husband has been scheduled to be executed February 25, 2015.  AJC News reports that Kelly Renee Gissendaner, who has spent nearly two decades on death row was convicted after her boyfriend agreed to testify against her in exchange for a life sentence.  If the execution is carried out as scheduled, Gissendaner will be the first woman put to death in the state of Georgia since 1945. 

Judge Speaks Out About Prop 47: A Judge in Northern California is speaking out against a policy adopted by his county's District Attorney charging of gun thefts as misdemeanors rather than felonies.  Jess Sullivan of the Daily Republic reports that Solano County Judge Peter Foor, on the bench since 1979, is outraged at the way his county's DA is interpreting Prop 47, which reduced thefts of guns valued less than $950 from a felony to a misdemeanor.  Foor called Prop 47, which was misleadingly labeled "The Safe Neighborhoods and Schools Act", "the biggest fraud (ever) on the California public."  

OK Considers Execution With Nitrogen Gas: Republican legislatures in Oklahoma will present two bills later this week that would allow the state to use nitrogen gas as a backup execution method if lethal injection drugs remain unavailable.  Sean Murphy of the Associated Press reports that state Rep. Mike Christian supports using nitrogen gas for executions, calling it a much more practical and efficient method of execution.  If the bills pass, Oklahoma would become the first state in the country to allow the use of nitrogen gas for executions.

Are Prosecutors Right Wing Extremists?

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To listen to most of the press and a great deal of the blogosphere, you'd think so. Time and again we hear that they're nothing but knuckle-dragging bullies and extortionists, routinely forcing innocent people in society's lower classes to falsely swear guilt in order to escape some "draconian" (do you ever hear of any other kind?) sentence.

Several days ago, Adam Liptak of the NYT wrote a fascinating piece that discusses the political inclinations of lawyers.  The piece was focused on the politics of judges, and introduced by the title, "Why Judges Tilt to the Right."

Now you would think, from that title, that you're about to read that judges are somewhere off there, between, say, Scott Walker and Mike Huckabee, which under any normal definition would be "tilting right."

Wrongo.  You have to read down the page to find out that most judges tilt left.  But I thought what was said about prosecutors was even more interesting.

News Scan

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Bill Would Reinstate Felony Penalties For Firearm Theft: California assemblywoman Melissa Melendez has introduced legislation to allow voters to amend recently enacted Prop. 47, to reinstate the theft of a firearm from a misdemeanor to a felony.    Sam Spencer reports that if AB 150 passes both houses by a two-thirds vote, voters would be allowed to vote to amend the law at the next general election.  "A criminal doesn't steal a gun for recreational use," said Assemblywoman Melissa Melendez, "they steal a gun to commit crimes."

Execution Date Set For Cop Killer: The Missouri Supreme Court has ordered the execution of the state's oldest death row inmate after nearly two decades behind bars.  Gene Hartley of KY3 News reports that 74-year-old Cecil Clayton was sentenced to death in 1997 after shooting a police officer in the head at point-blank range as he sat in his patrol car.  Clayton is set to be executed March 17, 2015.

Bill Would Allow Chemical Castrations for Sex Offenders: Oklahoma Senator Mark Allen has introduced a bill that would allow violent sex offenders to be released from prison early if they agree to be chemically castrated.  Jackie Taurianen of CNN reports that Allen believes the process would help to resolve the state's prison overcrowding issue.  Currently, nine other states have legalized a version of chemical castration, however, it is unclear how often it is used.  The proposed bill would allow first-time offenders to have the option to participate, but would make it mandatory for repeat offenders.

The kerfuffle over the measles vaccine is off-topic for the blog.  It is also ultra vires (not virus) for CJLF.  I have watched the discussion with some interest, though, particularly the propensity of media outlets of a given orientation to ascribe anti-vaccine beliefs to the other side.  Crunching some actual numbers was a fun project (in a nerdy sense of fun) for a soggy Saturday here on the Left Coast, and I found some interesting things about how political orientation relates to an essentially nonpolitical subject.

Newspaper Paywalls

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On this blog, we link a lot to newspaper stories.  Alas, the golden age of free access to newspapers via the internet is drawing to a close.  One by one, the newspapers are putting their content behind paywalls.

Eric Holder's Political DOJ

Having at one point been a political appointee in the Justice Department, I see nothing wrong with a President's putting in place the people he wants to advance the priorities he prefers.  That's one of the reasons we have elections.

To say that, however, is not to say that politics ought properly infuse everything the Department does.  The tradition is that DOJ is more or less faithful to the Executive's constitutional duty to see that the law is faithfully executed.

One could not say that has been the case with Eric Holder.  His de facto repeal of mandatory minimum statutes for a class of cases he, rather than Congress, determined, is the example that first comes to my mind.  Others would point to his use of an engorged version of prosecutorial "discretion" in declining to enforce large swaths of immigration law.

This article takes a closer look at the breathtaking extent to which Holder has jammed politics into the Department's day-to-day operations.  One can hope it will be better under Loretta Lynch.  I have my doubts.

News Scan

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Drug Cartel Wreaking Havoc In Chicago: Police in Chicago, Illinois have been dealing with increasing rates of murder and drug use over the past few years caused by a notorious Mexican drug cartel.  Andrew O'Reilly of Fox News Latino reports that the Sinaloa Cartel, which controls nearly 50% of the U.S. drug market, has infiltrated the city and helped drive rates of drug overdose and violence through the roof.  Chicago ended 2014 with 425 murders, and police fear that number will continue to escalate as long as members of the Sinaloa cartel continue to traffic drugs and violence on the streets.   

Death Penalty For Cop Killers In Michigan?:  Democrat State Senator Virgil Smith wants criminals convicted of murdering police or corrections officers in his state to face the death penalty.  Kathleen Gray of the Detroit Free Press reports that the Senator wants Michigan, one of 18 states that has abolished the death penalty, to reinstate it for murderers in this narrow category.  There have been at least three attempts to reinstate the death penalty in Michigan since 1999.  All of these failed to gain the 2/3 majority vote of legislators needed to put a measure on the state-wide election ballot.

KS To Cut Prison Costs, Remain Tough On Crime: Kansas lawmakers are considering a variety of competing bills on crime including one that would reduce the prison population and another increasing sentencing for crimes.  The Associated Press reports that the state's Sentencing Commission has drafted legislation that would free up to 150 prison beds by keeping first and second time marijuana offenders out of state custody and would allow other inmates to be released sooner for good behavior-a plan they say will save the state $3.6 million.  The state will also consider opposing legislation that would lengthen sentences for those convicted of drunk driving, home burglary, and theft.

Banning the Box

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A lot of people today have Sixties Envy.  The Great Civil Rights Battle was won in the mid-1960s.  That is, of course, a wonderful thing, but if you aspire to be St. George the extinction of dragons is a problem.  So people are going further and further away from what the real civil rights battle was about to proclaim new things as "civil rights" causes, fight for them, and denounce anyone who gets in the way as a bigot.

One such cause is "banning the box," an effort to prohibit employers from asking whether applicants have a criminal record and using that information in the hiring decision.  James Jacobs has this guest post at the Volokh Conspiracy:

Hawaii, New York, and Wisconsin make employment discrimination against ex-offenders (CBED) unlawful, unless an employer can show that successful performance of the job would be jeopardized by a person with a propensity for the kind of crime for which the job seeker had previously been convicted.
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The New York statute and similar anti-CBED laws and proposals are simplistic. It is a mistake to assume that an employer always or usually hires someone only to fill a narrowly prescribed job. Employers routinely want to hire individuals who can fill various positions as needed and who have a chance of advancing through the firm. In addition, an employer wants employees who are honest, rule-compliant, reliable, and self-disciplined, employees who come to work every day and on time, get along well with fellow employees and clients, and contribute to a harmonious working environment.

News Scan

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Loophole Allows Sex Offenders To Go Unregistered: California Congresswoman Jackie Speier plans to introduce a bill closing a loophole that allows some members of the armed forces to avoid registering as sex offenders after discharge from the service.  Rebecca Lindstrom of WXIA reports that unlike civilians, who have their DNA taken and name added to the sex offender registry prior to their release from custody, members of the military who are convicted of crimes such as rape and sexual assault do not face these requirements upon discharge.  According to data collected by the military, roughly 40% of its sex offenders are required to register.   

High Court Halts Upcoming Execution: The U.S. Supreme Court has stayed the execution of Texas quadruple-murderer Lester Bower.  Lawrence Hurley of Reuters reports that Bower, who was scheduled to be executed February 10, appealed to the high court alleging, among other things, that spending three decades on row amounts to cruel and unusual punishment.  Bower has avoided execution six separate times. His additional claims are discussed in Kent's post below.  

Convicted Cop Killers Get LWOP: The two Chicago men convicted of murdering an off duty police officer in 2010 have been sentenced to life in prison without the possibility of parole.  Patrick M. O'Connell of the Chicago Tribune reports that the victim's father, a former Chicago police sergeant, witnessed the two suspects attempting to steal his son's car.  When his son confronted the suspects and identified himself as an police officer he was shot and then run over by the getaway car.  Another suspect in the in the killing is awaiting trial.
The United States Supreme Court today granted a stay of execution pending its resolution of a certiorari petition to Lester Leroy Bower, who was found guilty of four counts of capital murder 31 years ago in Texas.  The Court of Criminal Appeals' opinion is here.

Applicant raised four issues in the instant application: (1) actual innocence based upon newly discovered evidence; (2) Brady violations; (3) a claim that Article 37.071 operated unconstitutionally because his jury did not have a vehicle to properly consider mitigating evidence; and (4) a claim that executing him after twenty-four years on death row amounts to cruel and unusual punishment.
I do not know which issue the Supreme Court thought warranted a stay, but I'm inclined to think it was the third.  The first two are largely factual determinations, and though actual innocence in a capital case would be enough to warrant the Supreme Court's attention, the unanimity in the lower courts suggests there is little there.  The fourth is the tired old claim that has never gotten more than a single vote in any Supreme Court case.

Are we really debating Penry, still, after all these years?

Texas 7 Murderer Executed

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Michael Graczyk reports for AP:

A three-time convicted robber who helped engineer the biggest prison break in Texas history was executed Wednesday evening for killing a suburban Dallas police officer while the notorious gang was on the run.

Donald Newbury, 52, became the third member of the group known as the "Texas 7" executed for the fatal shooting of 29-year-old Aubrey Hawkins, an Irving officer who interrupted the fugitives' robbery of a sporting goods store on Christmas Eve in 2000.

To Kill An Ending

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Alexandra Petri at the WaPo is dreading the Harper Lee sequel.

Too Good to Pass Up

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I will just let this item from today's Washington Post speak for itself:

Some snickered and wondered if Del. Joseph D. Morrissey might have had a conflict of interest Wednesday when he voted against a bill to keep "obscene materials" out of the hands of prison inmates.

Morrissey (I-Henrico) has been spending his nights in jail since before the start of the current legislative session, on a misdemeanor charge related to his relationship with a 17-year-old receptionist at his law office.

The lawmaker, who won reelection literally from his jail cell and has since been charged with four felonies on top of the earlier charge of contributing to the delinquency of a minor, has caused much hand-wringing and consternation in Mr. Jefferson's Capitol.


Morrissey has a long history of legal skirmishes, starting 20 years ago with a courthouse fistfight.

In June, he was charged with multiple felonies for allegedly having sex with the young woman and sharing nude photos of her. Morrissey and the woman, now pregnant with a child prosecutors say is "perhaps" his, have denied any wrongdoing and blamed the woman's ex-girlfriend for hacking their phones to frame them.

Morrissey agreed to a plea deal in which he admitted no guilt but avoided conviction on the felony charges....A second indictment unsealed in January alleges that Morrissey, 57, submitted a forged document as evidence and lied under oath in the earlier case.

The phrase "you can't make this up" hardly suffices.

News Scan

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New Bill: DNA Testing Misdemeants:: A Vermont lawmaker is introducing  a bill that would require individuals convicted of most misdemeanors to submit a DNA sample for the state-wide database.  Peter Hirschfeld of VPR News reports that while the state already collects DNA from felons, Sen. Dick Sears believes the state should also collect DNA from misdemeants to help eliminate suspects of future crimes.  State prosecutors, police, and other public safety officials are supporting the proposed legislation and believe the bill would improve an already successful database. 

CA Thieves Targeting Mailboxes for W-2s: Thieves in a Northern California town have been breaking into mailboxes to steal tax documents so they can file fake tax returns and steal the refunds.  Ian Schwartz of CBS 13 reports that in Elk Grove, CA, postal service employees are investigating at least 50 cases of mail theft.  Several other towns around the area dealing with the same issue.  Police say if your W-2 is in fact stolen, you can still claim your refund after filing a police report and asking your employer for a new W-2.  

Killer Serving Life Accused of Murder: A California man with a violent criminal past is accused of stabbing his cellmate to death in Folsom Prison.  Cathy Locke of the Sacramento Bee reports that 37-year-old Antolin Cepeda, who is already serving a life sentence for murder, allegedly stabbed the man to death in their shared cell Tuesday morning.  Cepeda is only considered a suspect at the time and has yet to be charged.                    

News Scan

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Death Penalty For Sex Traffickers: Utah Rep. Paul Ray plans to introduce a bill making child sex traffickers eligible for the death penalty.  Michael A. Kruse of Capital West News reports that Ray believes that the law would deter criminals from engaging in the sex trafficking of children.  In 2008, the U.S. Supreme Court struck down a Louisiana law that made child rape eligible for the death penalty.   

Cop Killer To Be Executed: A Texas man who was sentenced to death nearly 15 years ago for the murder of a Dallas police officer is scheduled to be executed Wednesday evening.  Michael Graczyk of the Associated Press reports that 52-year-old Donald Newbury is a member of the Texas seven, inmates who escaped from prison in 2000 and held up a sporting goods store and murdered a responding officer.  If the execution is carried out as scheduled, Newbury will be the 3rd member of the 'Texas 7' executed.

Prop 47: Jail Population Down, Crime Up: When California voters passed Prop 47 in November they agreed to reduce so called "low level" drug felonies to misdemeanors to reduce local jail populations.  Sandy Banks of the Los Angeles Times reports that while Prop 47 is achieving its main goal by easing jail overcrowding, thefts and burglaries in the Los Angeles area have been on the rise.  Since November, more than 400 criminals have been released from Los Angeles County after their felony crimes were  reduced to misdemeanors.   

Why We Have the Death Penalty

The list of horrors for which no sane person could think a jail term, no matter its length, is proportionate punishment, continues to grow.  The latest came out today, in this CBS story titled, "ISIS Video Purports to Show Jordanian Pilot Burned Alive."  This kind of barbarism has not been seen in, what, 400 years?

I'd like to ask those among our readers who oppose the death penalty in all circumstances to watch the tape (I haven't and I'm not going to).  Then I hope they'll explain why the death penalty is undeserved in this instance, and what other punishment consistent with civilized (and generally Eighth Amendment) standards fits this crime.

If they believe that the punishment should not fit the crime, contrary to the accepted view in every other aspect of criminal law, that's fine  --  they're entitled to that position  --  but I hope that, in the future, they'll say up front and loudly that that is the position they want the country to adopt.

News Scan

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Ohio Delays Executions Until 2016: Six of Ohio's death row inmates who were scheduled to be put to death this year have had their execution dates postponed until 2016 in order to give the state more time to find lethal injection drugs.  Phil Helsel of NBC News reports that many states across the U.S. have been struggling to find lethal injection drugs after manufacturers stopped selling them amid controversy surrounding the death penalty.  Ronald Philips, who was sentenced to death for raping and murdering a three-year-old, was scheduled to be put to death next week, the state has since rescheduled his execution for January 2016.  

1,000 Illegal Aliens Charged with New Crimes After Release: A report recently released by the Department of Homeland Security has revealed that 1,000 illegal aliens were arrested and charged with new crimes after being released from ICE custody in 2013.  Susan Jones of CNS News reports that in Fiscal Year 2013, ICE released 36,007 criminal aliens.  Of that number, 1,000 have since been charged with a variety of crimes including robbery, lewd acts with a child, and assault with a deadly weapon.  DHS has yet to reveal how many of those convicted of new crimes have been deported.

Toca Set For Argument Anyway

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Last week we noted that the U.S. Supreme Court case of Toca v. Louisiana, No. 14-6381, was moot because a settlement had been reached back in the state court.

Apparently no one has told the Supreme Court that yet, and they have set the argument for March 30.

Update:  A stipulation to dismiss has been filed.  Rule 46.1 provides that "the Clerk, without further reference to the Court, will enter an order of dismissal."  Update 2 (2/3): Done.

Brumfield v. Cain, No. 13-1433, another Louisiana case, is set for the same day and probably will go as scheduled.  It has to do with the way that state handles murderers' claims that they are intellectually disabled.

That's it for criminal cases on the March calendar.  San Francisco v. Sheehan, No. 13-1412, is a law-enforcement-related civil case on the Americans with Disabilities Act and accommodating "an armed, violent, and mentally ill suspect."  It is set for March 23.

Texas CCA Goes West

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In most states, the state high court sits primarily in the capital city.  California is the oddball (so what else is new?) with its Supreme Court headquartered in San Francisco.  The dual high courts of Texas and Oklahoma follow the usual pattern.

Courts occasionally hear arguments outside their usual place, though, to give more citizens a look at how they work.  Thursday, the Texas Court of Criminal Appeals will go west -- as far west as you can go and still be in Texas -- holding arguments at the University of Texas - El Paso.  An announcement is on the court's website.

Neither of the cases is from West Texas.  The capital case is that of a man who shot three people in a grocery store parking lot in Fort Bend, killing two of them.  Briefs in the case are here.

Correlation, Causation, and Education

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How many times have we heard "correlation does not prove causation"?  Too many to count.  How many times have we heard that elementary truth recited and then ignored, as people proceed to argue for policy changes based on correlation alone.  Almost as many.

Charlie Wells has this article in the WSJ on financial education of kids and their financial behavior as adults.  It has nothing to do with crime, but it sounds a cautionary note about the argument we hear all the time.  "Studies show that educational program X is correlated with positive outcome Y.  Therefore we must spend more on X to produce Y, and that is more important and more cost effective than the solution only you ignorant rednecks believe in, Z."  It does not follow.

Counting on Complacency

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Slate has up a new article titled, "Why Public Apathy Isn't All Bad."  The gist of it is that the public's apathy toward criminal justice issues has paved the way for quiet criminal justice "reform."  "Reform" is used in the article to mean the same thing it always does in this context, to wit, "slashing sentences for criminals."  If someone other than criminals are the most direct and immediate beneficiaries of this "reform," no one has told me who else it might be.

The article gets its mileage out of using the word "apathy" where "complacency" would be more precise.  The public has indeed become more complacent about crime.  This has happened for one perfectly obvious reason: there's so much less of it.  And there is so much less because of  --  ready now?  --  exactly the successful measures (longer sentences, more prisons, more police, more targeting of police resources) the people pushing the "reforms" opposed tooth and nail.

The Slate article is a useful iteration of the anthem actually at the heart of the sentencing "reform" movement:  "Since the country has achieved so much success with more incarceration and police, it's time to march back to failure."

(HT to SL&P).

Hearing on Lethal Injection Suit

In November, CJLF filed suit against the Secretary of California's Department of Corrections and Rehabilitation demanding that he stop dragging his feet and establish an execution protocol that the state can actually use, given the constraints imposed by existing injunctions.  The suit is on behalf of two family members of murder victims, Bradley Winchell and Kermit Alexander.

The California Attorney General, representing the Secretary, filed a document called a demurrer.  That is, in essence, an attempt to get the suit thrown out at the threshold, saying that even if every fact we allege is true, we still don't have a case.  The hearing was last Friday.  The day before, Judge Shellyanne Chang issued a tentative ruling, favorable to us on all the major points.  After the hearing, she took the matter under advisement, but I saw no indication that anything in the oral argument changed her mind.

The California Attorney General is an advocate representing a client, but also a public official representing the public.  She has, at times, declined to advocate positions she considered contrary to the public good, even if legally supportable.  What I find particularly offensive here is the argument that victims of crime have no standing, as if they were complete strangers to the underlying criminal cases.  The people enacted Proposition 9 in 2008 to refute that notion, and nationwide victims of crime are gaining recognition as people with real, legitimate interests in seeing justice done.

KOVR, the local CBS affiliate on channel 13, sent a cameraman to record the hearing and to interview us on the courthouse steps afterward.  Update:  There was a brief segment on the 6:00 Friday newscast.  Some still shots of the interviews are posted after the break.

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