April 2015 Archives

Paul Mirengoff has an insightful post discussing President Obama's view that long prison sentences are partly to blame for problems in the inner city because they are depriving young African Americans of a father in the home.  Paul argues:

Is it valid to argue, in effect, that a criminal shouldn't be incarcerated because he's the father of five or six (or any) kids? Not unless criminal law is to be stood on its head.

Criminal law is founded on the concepts of individual justice and personal responsibility. The criminal's guilt and sentence are based on his behavior and his individual history, not on social concerns (or "social justice" to use the popular oxymoron).

Social considerations enter the equation at the level of determining what behavior is criminal. But this determination has never to my knowledge been based on the ability of a particular segment of society to avoid committing a type of crime.

Moreover, social concerns don't control sentencing. If they did, given the extremely high rates of recidivism, the result would be much longer sentences as a means of protecting society from crime. 

News Scan

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Hillary Calls for Overhaul Of Husband's Crime Policies:  Hillary Rodham Clinton announced in a speech Wednesday that tough-on-crime policies put in place while her husband was in office have failed.  Anne Gearan of the Washington Post reports that after the speech, a campaign spokesperson for Clinton "tamped down on the notion that she was refuting her husband's policies."  Clinton is advocating for sentencing reform to end the "era of mass incarceration."

Baltimore Gun Violence On the Rise:  Gun violence in Baltimore, away from the rioting and protesting, is on the rise with a total of nine people shot on Tuesday and Wednesday, two fatally.  Justin Fenton of the Baltimore Sun reports that homicides are up 25 percent in the city this year, with 13 incidents occurring since April 12, the day Freddie Gray was arrested.  "It's just another day in the neighborhood," explains a Baltimore resident.

Half Arrested During Riots Released Without Charges:  The rioting in Baltimore led the police to make over 200 arrests, but confusion surrounding "which officer arrested which suspects and for precisely what reasons" resulted in half of them being released without charges.  Fox News reports that Maryland's governor extended the period of time in which the suspects had to appear before a judge from 24 hours to 48 hours due to the crisis and unrest in the city.  Despite this, two days still was not enough time for law enforcement to sort out what happened.

Two Drug Tunnels Found Along Border:  US Immigration and Customs Enforcement agents discovered two drug tunnels, one complete and the other in progress, stretching across the California-Mexico border after four men were intercepted with 69 pounds of methamphetamine near the All-American Canal.  Sylvia Longmire of Breitbart reports that the tunnels, which began in private homes in Mexicali and Tijuana, were equipped with lighting and ventilation, and one of them had a rail system with a cart.  Agencies will have to work quickly now to seal the US portion of the completed tunnel, which can cost taxpayers hundreds of thousands of dollars.  Since 2006, more than 80 drug tunnels have been discovered.

One In 10 Births Are To Illegals:  About 400,000 children are born to illegal immigrants annually, meaning that one out of 10 births in the US is to an illegal immigrant mother.  Caroline May of Breitbart reports that the Citizenship Clause of the 14th Amendment and federal programs such as the Deferred Action for Parents of Americans and Lawful Permanent Residents have allowed illegal immigrants to remain in the US without fear of deportation and collect government benefits simply because of their child's birthright citizenship.  The Center for Immigration Studies emphasizes the growing problem of "birth tourism," in which pregnant foreigners travel to the US just to give birth to a child, and cites the need for Congressional action.

Teleforum on Glossip v. Gross

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I will be doing a teleforum for the Federalist Society at 2:00 p.m. Eastern Time (20 minutes from now) at 888-752-3232.  If you don't catch it live, it will be available as a podcast later.

Quick Now: Are There Thugs in Baltimore?

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In a world driven by race-huckstering and political correctness, it has become a matter of heated debate whether there are thugs in Baltimore.

Talking Points Memo carries the following story, noting that Baltimore Mayor Stephanie Rawlings-Blake, after a day of reflection on the arson, looting, and attacks on the police in her city, has got her Mind Right:

"We don't have thugs in Baltimore," Rawlings-Blake said. "Sometimes my own little anger translator gets the best of me..."

Her original use of the term "thugs" came on Monday night as she talked about the people engaging in violence amid protests over the death of Freddie Gray, a black man who died after suffering injuries while in police custody:

What we see tonight that is going on in our city is very disturbing. It is very clear there is a difference between what we saw over the past week with the peaceful protests, those who wish to seek justice, those who wish to be heard...and -- the thugs, who only want to incite violence and destroy our city.

I'm a life-long resident of Baltimore and too many people have spent generations building up this city for it to be destroyed by thugs...

So are there thugs or not?

The Tsarnaev Defense, from Excuse to Farce

The threadbare but surprisingly resilient trial tactic of seeing what will stick when thrown against the wall made a starring appearance in the defense of Boston Marathon terrorist killer Dzhokhar Tsarnaev.

Tsarnaev was 19 when he planted a pressure-cooker nail bomb at the feet of an eight year-old boy and his family.  Tsarnaev is now 21; the boy is no longer with us..

Yesterday, Tsarnaev called to the stand his third grade teacher.  That is not a typo. Third grade.  She gave the following testimony according to this CBS News story:

As a young child, Boston Marathon bomber Dzhokhar Tsarnaev was quiet, hardworking and "always wanted to do the right thing," his third-grade teacher testified....

"He was just learning English at that time," Charner-Laird said, referring to Tsarnaev's recent move to the U.S. from Russia with his family....

Tsarnaev was 9 in the fall of 2002 when he was one of her students in a combination class for third- and fourth-graders at the Cambridgeport School, she said.

"He was incredibly hardworking," she said. "He cared a lot about his studies; he tried very hard."

Time reports a major policy address given by Hillary Clinton.  Its article starts:

Hillary Clinton called on Wednesday for broad criminal justice reform and renewed trust between police officers and communities, reflecting the former first lady's evolution from supporting the policies instituted by her husband two decades ago...

In part of her speech, Ms. Clinton said (emphasis added):

It's a stark fact that the United States has less than 5 percent of the world's population, yet we have almost 25 percent of the world's total prison population. The numbers today are much higher than they were 30, 40 years ago, despite the fact that crime is at historic lows.

I will save for a later post any discussion of the mind-bending density of the "despite" remark. For now, I want to focus on this line in the Time piece:

Clinton planned Wednesday's speech in November, months before she announced her candidacy, according to former New York Mayor David Dinkins, who introduced her.

That would be the same David Dinkins whose stewardship became a catchword for incompetence principally because of the sky-high amount of crime during his administration.  It took Dinkins only a single year in office to "achieve" the highest number of murders in one year, 2245, ever recorded in New York City. Last year, after two decades of Rudy Giuliani and Michael Bloomberg, the number was 328.

In her New York Post column, "The Perilous New Push to Excuse Lawlessness," Heather MacDonald brilliantly sums up the racial demagoguery actually at work under the guise of criminal justice "reform":

[A] wide-ranging movement is already under way to transform the criminal justice system in order to avoid a disparate impact on blacks. This push will jeopardize the country's two-decade-long crime drop.

The pretext for the current decriminalization movement is the half-dozen highly publicized deaths of blacks in encounters with police over the past nine months, including the recent case of Freddie Gray in Baltimore....

The criminal justice pendulum is swinging against personal responsibility and toward the use of race and poverty as an excuse for noncompliance with the law....

[A] two-tiered system of justice that winks at lawlessness when it is committed by officially favored victim groups will make life miserable for the millions of law-abiding residents of poor communities and erode the public-safety gains from proactive policing.

Academia, Still Stark Raving Mad

About four months ago, I discussed demands by law students at Harvard, Columbia and Georgetown law schools (full disclosure:  I teach part time at Georgetown) for a postponement of exams because of the "trauma" they were experiencing from a couple of news stories, most prominently the failure to indict Ferguson, Mo., police Officer Darren Wilson for murder.  (The fact that he had not committed murder or any other crime was not considered particularly relevant).

In the class I teach, I will generally say something or other about gathering evidence before charging people with crimes.  I even occasionally mention the tiresome requirements of due process.  But I tend to be behind the times.

My anachronistic view of teaching law was highlighted again today by this story:  "If you help Freddie Gray protesters in Baltimore, you can defer an exam."

The Ghost Game

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For the first time in major league history, a game will be played before an audience of zero.

The Baltimore Orioles decided that, given the riots, arson and looting, it was too risky to have fans at the ballpark for the game this afternoon against the Chicago White Sox.

The Washington Post reports, inter alia:

The decision to play in an empty ballpark will cost the Orioles revenue: no ticket sales, no concessions, no parking. The first two games of the series against the White Sox, scheduled for 7:05 p.m. starts Monday and Tuesday nights, have been postponed, and the club announced it will make up those games in a 4:05 p.m. doubleheader on May 28 at Camden Yards.

Of course, it's not just the Orioles who will lose revenue.  It's the dozens of people  -- generally not people at the top of the economic ladder  --  who man the concession stands and carry hot dogs, ice cream and drinks up and down the aisles for sale to the fans.

Those losses will barely count among all the other, more appalling ones, that have come from this lawlessness.   But those people work for their money.  So, even if their losses don't count with The Elite, they will count with me.

News Scan

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Parolee Released Two Days Prior To Murder:  A New York man who opened fire inside a pub last weekend shooting seven people, one fatally, was a parolee released on bail less than two nights before.  WHEC reports that the suspect, David Alligood, was arrested for a misdemeanor assault charge some 30 hours before the shooting occurred and had a criminal past, including being on parole for a drug conviction.  A town supervisor said that granting bail to Alligood "is another case where the parole system broke down."

State To Remove Doctors From Executions:  House lawmakers in North Carolina are attempting to end the de facto moratorium on the death penalty by permitting any medical professional to carry out executions.  Amanda Lamb of WRAL reports that House Bill 774, or the Restoring Proper Justice Act, would no longer require a physician to preside over executions, an issue that has caused problems regarding a physician's medical ethics.  The new legislation would allow any licensed physician assistant, advanced degree nurse, registered nurse, paramedic or EMT to participate, although a physician would still have to be the one to pronounce a murderer dead.

Murder, Violent Crime Up in Charlotte, NC:  The Charlotte-Mecklenburg Police Department in North Carolina is concerned that an increase in stolen guns is partly to blame for the sharp rise in murders and other violent crimes during the first three months of the year.  Gavin Off of the Charlotte Observer reports that homicides are up by 80 percent, rapes have increased 34 percent, and aggravated assaults are 33 percent compared to the first quarter of 2014.  Katrina Graue, deputy chief of CMPD, believes that the 30 percent increase in gun theft is putting more firearms on the streets and creating more opportunities for criminals.

Judge Stays Murderer's Execution:  Robert Pruett's execution death for the stabbing a prison guard to death 15 years ago was stayed by a Texas Judge on Tuesday, hours before it was to be carried out.  Michael Graczyk of the Associated Press reports that although the U.S. Supreme Court denied Pruett's claim that a second DNA test should be performed on a metal rod used in the murder, Judge Bert Richardson announced that it "not impossible to conceive" that the new test could be favorable for the defendant.  The Supreme Court also denied Pruitt's claims of ineffective assistance and a failure to consider evidence of his dysfunctional childhood.  The judge has ordered the test results be made available by May 28.  

Sex Offender Rotation Angers Milwaukee Leaders:  A secret state program that rotates dangerous sex offenders through homes in neighborhoods near schools and families has Milwaukee officials and residents outraged.  Colleen Henry of WISN reports that after the sex offender residency restriction legislation passed last fall, many sex offenders were left homeless, and state workers began shuffling them through a circuit of 10 homes.  Residents of the neighborhoods where these homes were located were never informed of the presence of sex offenders in their communities.

Poll Shows American Majority Oppose Immigration Policy:  A new poll released by Rasmussen Reports reveals that the majority of Americans surveyed oppose President Obama's executive action allowing five million illegal immigrants to remain in the country.  Kevin Derby of the Sunshine State News reports that 56% oppose the executive order, while 35 percent support it.  Also, 60 percent feel the President should work with Congress rather than act on his own.

One of the staples of abolitionist argument is that the world has turned against the death penalty.

This is simply false.  The Caucasian-dominated countries in Europe, plus Australia and Canada, have turned against it, that's true (although largely because of ruling class opinion as opposed to public opinion).  There are some other abolitionist countries, mostly in Central and South America.  But most of the world retains the death penalty.

This was brought home by this story of eight executions yesterday in Indonesia, the world's fourth largest country.  All were for drug smuggling, none for murder.

The Indonesia story piqued my curiosity, so I took a look at the world's major countries, by population.
The WSJ has this editorial, titled The Blue-City Model with the above subhead.  Here is the portion on-point for this blog:

The dysfunctions of the blue-city model are many, but the main failures are three: high crime, low economic growth and failing public schools that serve primarily as jobs programs for teachers and administrators rather than places of learning.

Let's take them in order. The first and most important responsibility of any city government is to uphold law and order. When the streets are unsafe and crime is high, everything else--e.g., getting businesses to invest and create jobs--becomes next to impossible.

People also start voting with their feet. Mayor Stephanie Rawlings-Blake has stated that one of her goals is to attract 10,000 families to move to Baltimore. Good luck with that after Monday night.

It's not that we don't know what to do. Rudy Giuliani proved that in New York City, which he helped to revive in the 1990s starting with a revolution in policing that brought crime rates to record lows. A good part of this was policing in areas that had previously been left to the hoodlums.

His reward (and that of his successor, Mike Bloomberg, who built on Mr. Giuliani's policies) was to become a villain of the liberal grievance industry and a constant target of attack. Few blue-city mayors elsewhere have been willing to take that heat.

Why Culture Is More Important than Law

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And why strong parents are more important than every entitlement program and every Public Defender's office ever invented.

Watch one of the few encouraging things to come out of the Baltimore meltdown.
In my last entry, I cited a Washington Post story on the President's remarks about the hooligan-driven anti-police rioting in Baltimore.  I noted that the President seemed to enter the Twilight Zone in taking the view that "long stints in prison" for Baltimore's criminals have contributed to its problems.  In fact, keeping criminals off Baltimore's streets is one of the few things that has helped alleviate its problems.

But the Post's reporting is none too swift either.  The Post's story says:

For Obama, there is a certain sense of déjà vu as Baltimore struggles with the aftermath of another death of a black man, apparently at the hands of police and seemingly without any crime having been committed.

Many critics believe Obama did not show enough passion or persuasion to connect with or restrain angry African Americans after the killing of Michael Brown by a police officer in Ferguson, Mo. Instead, Obama sounded calls for restraint, lawful demonstrations, commissions of inquiry and slow, steady progress toward reform.

Where to start?
The President had some remarks today about the Baltimore anti-police riots  -- riots that have turned into a festival of destruction, looting and arson.  The Washington Post reports (emphasis added):

President Obama made an impassioned call Tuesday for Americans to do "some soul searching" in the wake of this week's rioting in Baltimore, arguing the U.S. has faced "a slow-rolling crisis" over race and economic opportunity in urban areas....

Obama sharply condemned the rioters for damaging private property and taking items from local stores: "They're not protesting. They're not making a statement. They're stealing."

But he also directed his criticism toward Americans--including the news media and some politicians--for failing to address the chronic problems of men, women and children who live in poverty and find their opportunities limited because of poor schools or long stints in prison.

To start with, it doesn't matter what the schools are like if (a) teachers fake test scores to evade accountability (a la' Atlanta), and (b) the students drop out in the ninth grade because party time with drugs is more fun than math and reading.

But the President laid his biggest egg with his crack about "long stints in prison."

News Scan

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NYC To Decriminalize Low Level Crimes:  New York City's City Council has proposed two bills that would decriminalize several offenses such as public intoxication, littering, and public urination.  My Fox NY reports that supporters of the bill, like Reverend Al Sharpton, cite that over-policing these crimes creates tension between police officers and the community.  However, both the city's police commissioner and mayor are against the legislation because they believe that it prevents law enforcement officers from performing their duties.

Bill Makes Police Chokeholds A Crime:  In response to the death of Eric Garner last year, New York Congressman Hakeem Jeffries is sponsoring a bill that would make police chokeholds a crime.  The AP reports that chokeholds have been discouraged or completely banned by some police departments.   Many individuals feel that more safeguards are needed.  The officer involved in Garner's arrest and subsequent death was found to have used a takedown maneuver taught in police training - not a chokehold.

Murders Increase, Overall Crime Down In TN:  The 2014 Crime in Tennessee report released by the Tennessee Bureau of Investigation shows an overall decrease in crime statewide, with the exception of homicide, which increased by 9.9 percent.  Jordan Buie of the Tennessean reports that most of the homicide victims were killed in their homes, but many were also slain on highways, and in alleyways and parking garages.  

Immigrant Inmates Riot in Texas Prison:  A federal report reveals that a West Texas prison has been dealing with multiple uprisings among its majority immigrant inmate population.  The AP reports that the facility primarily houses immigrants with low-level offenses, such as repeatedly entering the US illegally.  The prison is in need of more medical and correctional staff to counteract the chaos.

Police Departments On Alert For Gang Pact:  Amidst the rioting in Baltimore over the death of Freddie Gray, police departments around the country are heeding the warnings from that city's police department that street gangs are making pacts to take out officers.   Andrew Blankstein and Tracy Connor of NBC News report that Baltimore police received a credible threat that numerous gangs were planning on targeting the police.  Seven Baltimore officers were injured yesterday during the violent protests.

The Supreme Court This Week

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Criminal law is on the back burner at the U.S. Supreme Court today, as no decisions were announced and oral argument is a hot-button civil case.  Yesterday the Court issued its orders list from the previous week's conference but took up no new criminal cases.

This afternoon Texas intends to execute repeat murderer Robert Lynn Pruett for the murder of Correctional Officer Daniel Nagle.  As Pruett was already in prison for 99 years for another murder at the time, the sentence choices are death or no punishment at all (i.e., a life sentence which is necessarily concurrent).  The online dockets for the usual last-minute applications are here and here.

Tomorrow the Court hears oral argument in the midazolam lethal injection case, Glossip v. Gross.  CJLF's brief is here.

Lessard's Legacy

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Alberta Lessard has died.  Lessard was the plaintiff in the landmark case that carries her name that dramatically changed the way civil commitment is handled in the United States.  Before Lessard, people with mental illness were routinely committed to mental hospitals on the basis of informal testimony of a psychiatrist without much opportunity to oppose the proceedings.  It was a system that didn't take seriously the right to be free from forced confinement by the government and the propensity of such a system to allow people committed to the asylums to linger regardless of their improved mental health.  In short, it was a system that needed reform.

But the Lessard decision has a dark side.  It changed the way we think about civil commitment and mental illness.  Before Lessard, commitment was largely premised on the government's parens patriae powers - the need to care for the sick.  In its place, commitment focused almost exclusively on dangerousness and hence the lens in which we view the mentally ill was now focused on seeing them as dangerous people.  As the district court ruefully noted, Lessard's commitment was devoid of the safeguards afforded criminal defendant's and so, the thinking goes, the mentally ill ought to at least have those rights when deprivation of liberty is at stake.  And so the court and subsequently most state legislatures obliged by providing the mentally ill subject to commitment rights enjoyed by criminal defendants including notice, silence, counsel and even a jury.  Unsurprisingly, civil commitment was now wed to criminal procedure and with the requirement of overt acts of harm, adjudication now was about a system responding to scary and dangerous behavior instead of care for the sick.

It is no small wonder then that present day civil commitment includes sex offenders.  They are viewed as dangerous people who lack control over their behavior and need significant management and even confinement.  They are commonly thought of as criminals and even punished as so yet somehow have a mental abnormality that requires treatment.  Sadly, many people with severe mental disorders such as schizophrenia now find themselves routinely in and out of jails and prisons with long-term asylum care almost unheard of except in the obligatory forensic hospital.   The distinction between the sick and the bad has largely vanished.

What has the Lessard decision wrought?  We no longer cabin commitment to people we feel sorry for because they are sick.  Commitment is for the dangerous; those on the cusp of criminality.   To invoke its power requires many of the formalities of the criminal justice system because it is a police power, not an obligation of a virtuous society to care for its citizens.  

A Comment on Comments

I tend to be responsive to comments  --  more responsive than any other blogger I'm aware of writing on criminal law issues.  I do this principally to stimulate debate on questions I view as important.  

Of late, however, I find that my degree of responsiveness has developed some problems. It seems sometimes to have spawned baiting, filibustering and diversion, to the detriment of authentic debate.  It has also produced long threads of declining interest and attenuated relevance to the main entry. This is going to be curbed.
CJLF owns this blog and has its own comment policy.  In addition, in the future, I will be inclined to ignore comments not in keeping with a dozen common sense guideposts. 

Another Minor Crime

A couple of days ago, I blogged about what those backing sentencing "reform" would call a minor crime.  It's not the sort that warrants a jail term, in their view, but something more......creative.

I found out about that crime, the theft of a wheelchair, just by listening to the local news.  Today, the local news told the story of another "minor" crime, to wit, a very brief assault (no robbery undertaken or apparently intended).

Here's the piece.  Its 20-second tape of the assault is very much worth watching. The criminal looks to be about 25 to 30.  I would say offhand that he pretty much defines what people mean when they use the word, "thug":

Metro Transit Police said they are looking for a man who is shown in a surveillance video punching another man and knocking him down on an escalator in the rail system.

Police said the man shown in the video allegedly assaulted a 69-year-old man Friday around 1 p.m. at the Eastern Market station.

The man victim told police he was pushed by another man as he got off the train. The two then engaged in a verbal altercation on an escalator at the stop. The victim told authorities that the other man then punched him in the face with a closed fist. 

Neither the wheelchair theft nor this assault is exactly big news, which is precisely why I write about them.  When we turn away from prison as the answer to this sort of "routine" crime, we're inviting more of it.  As in the Sixties and Seventies, more of it is what we'll get. 

The First Amendment Inside-Out

According to its initial assessment, the University of Michigan thought that freedom of speech did not include screening the Oscar-nominated movie, "American Sniper," because a group of Muslim students preposterously claimed that the showing would create an "unsafe" environment.  I blogged about it here. After a public outcry  -- and only after  --  did University administrators decide the movie could be shown after all.

But free speech is not entirely moribund.  It lives on in the form of rioting, and, worse, the official invitation to riot.

Harken unto these words from the mayor of Baltimore, whose city, as I type, is becoming engulfed in an anti-police riot.  (I'm taking this story, not from any "right wing" source, but from CBS News in Baltimore):

I made it very clear that I work with the police and instructed them to do everything that they could to make sure that the protesters were able to exercise their right to free speech," [Mayor] Rawlings-Blake said. "It's a very delicate balancing act. Because while we try to make sure that they were protected from the cars and other things that were going on, we also gave those who wished to destroy space to do that as well.

Q:  What happens when a city invites a riot in the name of "free speech"?

A:  It gets a riot.  Whether it gets any speech, I don't know.

News Scan

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Petition To Terminate Parental Rights of Rapists:  A new petition is targeting a Maryland law that allows rapists parental rights if their victims become pregnant.  The Inquisitr reports that the petition is over halfway to reaching its goal of 5,000 signatures from opponents of the law who believe that women who give birth to a child that was conceived as a result of sexual violence should not have to endure harassment from their rapists for custody and visitation.  Supporters of the current law fear that if it is abolished, there is a risk of legitimate father's being cut out of their children's lives.

CA County Jail Releases Rise Since Realignment:  Each year since 2011, Merced County's two jails have seen an increase in the number of inmates released as well as an increase in the daily inmate population, which authorities attribute AB 109 as the "direct result."  Don Thompson of the AP and Rob Parsons of the Merced Sun-Star report that last year, the county's average daily population was 895 inmates and released a total of 725 inmates early, dropping with the passage of Prop. 47 last year.  County Sheriff Vern Warnke believes that together, the two laws put residents at greater risk of becoming crime victims.

Gang Violence Continues In Chicago:  Chicago "remains a shooting gallery," experiencing 21 shootings, four deaths and 17 injuries over the weekend.  Warner Todd Houston of Breitbart reports that thus far in 2015, the city has had a total of 340 shootings and 102 deaths.  Practically all of the violence has been carried out by the city's gang members.

New Bill Urges Security Along Texas Border:  "My son is dead because the concept of borders is dead," stated that father of a young man who was fatally shot in his car while waiting for a stoplight by an illegal immigrant with a violent criminal record that had been deported several times.  Lana Shadwick of Breitbart reports that a new Texas bill, SB 1252, would permit an interstate compact agreement that would strengthen border security.  In the state of Texas alone, 96,000 illegal immigrants were arrested for criminal charges between June 2011 and December 2014.  

Protesters Given Space to Destroy:   In response to the suspicious death of a black suspect taken into Baltimore police custody on April 19, protesters hit the streets smashing store and car windows and setting fires.  CBS DC news reports that at a Saturday evening press conference the city's Mayor, Stephanie Rawlings-Blake, announced that she had instructed police to give protesters who "wished to destroy" the space to do so.  The Mayor explained that she wanted to make sure that the "protesters were able to exercise their right to free speech."  

A Bald-Faced Lie? -- Part II

Kent notes that defense counsel's argument to the jury this morning that, if it imposes LWOP, Tsarnaev's case "will be over for good" is  --  if reported accurately  --  a bald-faced lie.

That's correct, but there's more.  The groups and interests, and some of the same lawyers, urging no death penalty for Tsarnaev  --  or anyone  --  will take only so much time before they're back in court urging that his sentence be shortened.

There is simply no such thing as a case's "being over for good."  This was proved in spades by Judge John Gleeson's years-long campaign to overturn a perfectly legal sentence he imposed on a violent carjacker.  I have written about this before, e.g., here and here.  Indeed, Gleeson and the defense kept going years after the Supreme Court granted cert and rejected the defendant's case on the merits.  

The "litigate-to-infinity" approach is even more prevalent when the defendant is given an LWOP sentence. With unlimited time on their hands and nothing to lose by trying  --  and extremist legal groups more than happy to pitch in  -- murderers serving LWOP can and do file petition after petition.  

But wait, there's more!  Suppose abolitionists succeed in getting the death penalty repealed.  What are the chances that, the next day, they won't petition for a re-sentencing for Tsarnaev, on the theory that he got LWOP when a now-illegal sentence was the only alternative?

"Over for good" my foot.  Defense counsel should be ordered to correct his statement and then be sanctioned by the court.

AG Lynch Sworn In

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The WaPo has the video. Unlike some on my side of the aisle, I have been looking forward to this day.  I congratulate Ms. Lynch and wish her well in her tenure in this very important office.
Denise Lavoie reports for Associated Press:

[Defense attorney David] Bruck urged the jury to sentence the defendant [Dzhokhar Tsarnaev] to life in prison without the possibility of ever being released.

"His legal case will be over for good, and no martyrdom, just years and years of punishment," the lawyer said. "All the while, society is protected."

I am reluctant to call anyone a liar based on a press report, as I have been quoted out of context a time or three myself, but if this report is accurate and in context then Bruck told the jury a bald-faced lie in open court.

Bruck knows, I know, and everyone knowledgeable in the field knows that if the jury returns a life verdict then Tsarnaev will have a right to appeal and then a right to file a motion to vacate his sentence under 28 U.S.C. §2255.  By no stretch of the imagination will "his legal case be over for good."  That is absolutely false.

Painting the Criminal as Victim

Anyone who spent as much time as I did watching allocution knows how routine it is for defense counsel to try to turn the client into the victim.  In a sense, I don't blame them.  What else are they going to say?  They can't very well just tell the plain truth  --  that the client did it because he gets his kicks hurting people and thinks rules are for suckers.  That's not the world's most persuasive pitch for leniency.

It's thus one thing, and understandable, for defense counsel, and the culture in which criminal defense takes root, to make this sort of argument.  It's another when anyone else buys it, much less makes a fetish of it.  But that's what happened in a fairly prominent case last week in Minnesota, in which six Somali immigrants were arrested for plotting to join the world's most notorious throat-slitters, ISIS.

In a remarkable statement, US Attorney Andrew Luger said that the plot was "a Minnesota problem."  That claim is false, if not absurd; the "appeal" of joining ISIS has nothing to do with, and is scarcely limited to, Minnesota.

The problem is that the US Attorney's statement goes beyond mere absurdity.  It pulls back the curtain on the extent to which the culture of criminal-as-victim has permeated Obama's Justice Department.

The Story of a Minor Crime

We are told more and more that minor property crimes should not be punished with jail.  That was the principal rationale' for California's passage of the predictably disastrous Prop 47.  We need to be "smarter" about sentencing  -- use our resources better, don'tcha know.

Here is the story of a "minor property crime" I ran across a few days ago just listening to the local news:

LANGLEY PARK, Md. (WUSA9) -- A four-year-old boy's wheelchair was stolen from a building in Langley Park, according to Prince George's County Police.

The theft occurred Sunday night in the lobby of an apartment building on Merrimac drive, police said.

Surveillance video shows the suspect pushing the empty wheelchair through a parking lot.

The family of four-year-old Joshua shared a video of her son. "This family already faces challenges and shouldn't be burdened with the emotional and financial stress of the theft of this wheelchair. The suspect we're looking for has no heart," Captain Ken Humbel said in a statement.

News Scan

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Committing Crimes While In Prison:  An habitual felon currently serving time in an Oklahoma prison has plead guilty to filing fraudulent federal tax returns netting over $219,000 while in the California prison in Susanville.  Cathy Locke of the Sacramento Bee reports that Edwin Ludwig IV, has been identified as the ringleader in the tax fraud scheme which involved fellow inmates and accomplices outside of prison.  So far authorities credit Ludwig and company with 247 false tax returns between 2008 and 2011.  Under California's Realignment law, Ludwig would not have been eligible for a prison sentence if he had committed state tax fraud. 

Federal Court Denies Murderer's Appeal:   A divided panel of the Fifth Circuit Court of Appeals has rejected a condemned murderer's third request to extend the deadline for filing a habeas corpus petition.   KWTX Houston reports that triple-murderer Louis Castro Perez unsuccessfully claimed that one of his appeals attorneys abandoned him, resulting in his failure to submit his federal claims before the deadline.  Perez was convicted of beating his ex-girlfriend and her roommate to death and strangling the roommate's nine-year-old daughter to death with panty hose.  The facts found by the jury are included in this District Court ruling.  
Anti-death penalty groups claim the Perez is innocent.   

Priorities for the New Attorney General

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The Crime Report is published daily by the Center on Media, Crime and Justice at the John Jay College of Criminal Justice in New York.  It includes investigative articles by a number of veteran crime reporters, plus analysis and commentary.

It asked me to write a memo for Loretta Lynch setting out what I believe should be her priorities as she takes the helm at Main Justice.  My response is here.  I start with questions about what model of leadership she should adopt (Michael Mukasey).  I go on to suggest how she should react when the White House starts to push her (push back) and what to do about the fact that by far most of the members of the majority party in the Senate opposed her (reach out to them).

I continue by making suggestions about what direction to take in dealing with drugs, over-criminalization, the decaying sentencing guidelines, assaults on the First Amendment (especially on campus), criminal justice "reform," the culture of grievance and racial preference, the growing chorus against police and prosecutors, calls for mass clemency, and enforcement of the death penalty.

That's for starters.  My extremely unsolicited (by Ms. Lynch) advice is set forth after the break. 

Why We Have the Death Penalty, Vol. MMM

I wrote a few days ago to emphasize an item it might have been easy to miss in the News Scan.  I do so again today.  My reason for both entries is the same:  They give concrete examples of why we cannot trust the constant assurance that we'll be just as safe if we dumb-down sentencing and/or abolish the death penalty.  

The reason we can't trust this assurance is simple.  It's false. Today's item is particularly instructive:

Supermax Inmate Convicted of Murder:   CBS Colorado reports that a leader in the Mexican Mafia prison gang has been convicted of the murder of another inmate.  Silvestre Rivera, sentenced to prison for a string of bank robberies in California and Arizona, was found guilty of stomping and kicking 64-year-old Manual Torez to death ten years ago at the federal Supermax prison in Southern Colorado.  The maximum sentence Rivera can receive is LWOP.  It was the first murder ever at that facility. 

News Scan

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Medical Pot Law Dies In Florida:   The effort to pass a medical marijuana law during the current legislative session has "gone up in smoke" according to this story (registration required) by Bradenton Herald reporter Michael Auslen.  The chief proponent, Republican State Senator Jeff Brandes, had conceded that his bill is effectively dead this session.  He said he plans to work through the summer to draft legislation that will gain enough votes to pass next year.

Colorado Senate Passes Fetal Homicide Bill:  The Republican controlled Colorado Senate passed legislation classifying the killing of an unborn child as murder.  Megal Verlee of Colorado Public Radio reports that the measure was introduced in response to the  recent assault on a pregnant woman in which her unborn baby was cut from her womb as reported here .  Abortion advocates are opposed to the bill, arguing that if passed it might permit the murder prosecution of a woman who chooses to terminate her pregnancy. 

Supermax Inmate Convicted of Murder:   CBS Colorado reports that a leader in the Mexican Mafia prison gang has been convicted of the murder of another inmate.  Silvestre Rivera, sentenced to prison for a string of bank robberies in California and Arizona, was found guilty of stomping and kicking 64-year-old Manual Torez to death ten years ago at the federal Supermax prison in Southern Colorado.  The maximum sentence Rivera can receive is LWOP.  It was the first murder ever at that facility.   


Tsarnaev, Silence, and Remorse, Part II

Kent has noted that, on the current uncertain state of the law, prosecutors would be taking a risk if they use Tsarnaev's (presumed) silence as evidence of lack of remorse.  I concur.  But there's more to this story.

At first, I agreed with the conventional wisdom that defense counsel would not call their client to the stand.  Now, I have my doubts.  The government's evidence of the savagery and cruelty of this crime in my view makes the death penalty likely unless the defense can move the ball.

I think their best shot to avoid lethal injection is to call Tsarnaev and have him show remorse.  If he does so, and makes a convincing showing, I think he lives. It would help if he broke down in tears of grief in a way that struck the jury as sincere, and not a coached performance.

And there's the rub.  I have seen not a lick of evidence that Tsarnaev actually feels any differently than he did the day of his capture.  That afternoon, he scribbled a note to the effect that he was in a Holy War against the United States, and if there was "collateral damage," in the phrase made immortal by his fellow butcher Timothy McVeigh, well......tough.

My guess is that it will depend on defense counsel's assessment whether Tsarnaev can pull it off, and that he won't break out in an anti-American diatribe during cross-examination.  Having to make judgments like that is one of many reasons I'm happy I did not become a defense lawyer.

Loretta Lynch Confirmed

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The vote was not that close, 56-43.  The Wall Street Journal has the story.

Tsarnaev, Silence, and Remorse

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The prosecution has rested in the penalty phase of the trial of Boston Marathon bomber Dzhokhar Tsarnaev.  If he does not testify in the penalty phase, as I expect he will not, can that silence be used against him as indicating a lack of remorse?  I don't know.

In White v. Woodall, decided one year ago today, the Supreme Court reviewed its precedent in Mitchell v. United States, 526 U.S. 314, 328 (1999):

"The Government retains," we said, "the burden of proving facts relevant to the crime . . . and cannot enlist the defendant in this process at the expense of the self-incrimination privilege." Id., at 330 (emphasis added). And Mitchell included an express reservation of direct relevance here: "Whether silence bears upon the determination of a lack of remorse, or upon acceptance of responsibility for purposes of the downward adjustment provided in §3E1.1 of the United States Sentencing Guidelines (1998), is a separate question. It is not before us, and we express no view on it." Ibid.
A footnote at that point notes a division in the Courts of Appeals.  No First Circuit cases are noted there or in the certiorari petition.

Woodall did not resolve the question.  It was a state case being reviewed on federal habeas corpus, and the unsettledness of the underlying question was enough to require the federal court to respect the state court's decision under the controlling act of Congress.  CJLF's brief in that case is here.  My post on the case is here.

Prosecutors would be well advised to avoid mentioning the defendant's silence until the issue is resolved.  It isn't worth risking a reversal.  Long-term, though, I think the Griffin no-comment rule should be limited to the extent expressly held in Supreme Court precedent and not extended by a fraction of an inch.  I wouldn't mind seeing it overruled, but I don't think that is a realistic possibility.
Now this is definitely the shortest opinion of the Ninth Circuit en banc I have ever read:

During a grand jury proceeding, defendant gave a rambling, non-responsive answer to a simple question. Because there is insufficient evidence that Statement C was material, defendant's conviction for obstruction of justice in violation of 18 U.S.C. § 1503 is not supported by the record. Whatever section 1503's scope may be in other circumstances, defendant's conviction here must be reversed.
A reversal for insufficient evidence implicates defendant's right under the Double Jeopardy Clause. See United States v. Preston, 751 F.3d 1008, 1028 (9th Cir. 2014) (en banc) (citing Burks v. United States, 437 U.S. 1, 11 (1978)). His conviction and sentence must therefore be vacated, and he may not be tried again on that count.
That's the whole thing.  The eleven judges on the pseudo-en-banc panel are so fractured that the court issued this brief disposition "per curiam" (by the court as an institution with no identified individual author) and then various judges weighed in with lengthy concurring and dissenting opinions.

Judge Rawlinson dissented, citing Ernest Lawrence Thayer.  "There is no joy in this dissenting judge. The per curiam and concurring opinions have struck out."   What's up with that?  The defendant is Barry Bonds.

News Scan

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Parolee Charged With Rape One Day After Release:  A Rochester man has been charged with multiple counts of rape for sexually assaulting a 14-year-old girl on a street, just one day after being released on parole.  The AP reports that Michael Carunthers was paroled after completing just over two year of a 2½ to five year sentence for robbery.  He faces up to 50 years in prison for the rape charges.

Felon Voting Bill Passes AL House:  A bill that would create a list of the felony offenses that would cost criminals their voting rights was approved Tuesday by the Alabama House of Representatives.  Tim Lockette of the Anniston Star reports that the changes to the state's 1901 Constitution would classify murder, rape, drug and terrorism charges, theft and bigamy as felonies that would revoke one's voting rights.  The bill was one of seven election-related bills sponsored by Republicans in the state.

Jail Overcrowding Bill Heads To Committee:  California State Senator Ted Gaines is sponsoring a bill authorizing county sheriffs to contract with any state, county, private jail or prison system in the United States to transfer inmates from counties whose jail or prison population is over 80 percent capacity.  Davis Brenda of the Record Searchlight reports that SB 171 is scheduled to go before the Senate Public Safety Committee on May 12.  Sen. Gaines is unsure of what the specific costs for a transfer would be, but believes the money will come out of the state's general fund.

Early Releases Up 37% After Realignment, Audit Says:  The California state auditor has reported data showing that the number of inmates being released by county jails has increased by 37 percent since the passage of Realignment, or AB 109, three years ago.  The AP reports that in June 2014, 14,000 prisoners were released in one month compared to 10,200 in September 2011.  The audit also shows that while Realignment ultimately helped to lower the state's prison population, the population in county jails increased by 16 percent, which prompted thousands of early releases.

Waiting for Elonis

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The U.S. Supreme Court decided two civil cases today.  United States v. Kwai Fun Wong, No. 13-1074 deals with equitable tolling, an issue that comes up regularly in habeas corpus cases.

Still no decision on the Facebook threats case, Elonis v. United States.  That case was argued in December, and it is the only case from that session not yet decided.  Playing the SCOTUS Sudoku game, we see from the SCOTUSblog statistics page that Chief Justice Roberts is the only one not to write a majority opinion yet from that session.  (The June case was decided together with Wong today, written by Justice Kagan.)  So it's a good bet that the Chief is writing Elonis.

Does that give us a clue how the case will be decided?  Not really.  He was probing both sides at oral argument.  In First Amendment cases generally he has been pretty much down the middle.  He has written opinions in favor of First Amendment claims in cases on funeral protests and crush videos, but he has also written opinions against such claims in cases on school speech and terrorism support.  That last one gives me some hope here.  We are dealing with speech that involves genuine danger of grave physical harm to a person.  That makes Holder v. Humanitarian Law Project and Elonis different from all the other cases.

Still, we will have to wait and see.  Maybe next week.

AG Nominee Cleared for Vote

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Kristina Peterson and Louise Radnofsky report in the WSJ:

Senate leaders on Tuesday resolved a partisan dispute over abortion funding that had snarled a bill aimed at curbing human trafficking for more than a month and prevented the chamber from voting on attorney general nominee Loretta Lynch.

Senate Majority Leader Mitch McConnell (R., Ky.) said that the Senate would begin to consider Ms. Lynch's nomination "hopefully in the next day or so." He has said that the Senate wouldn't vote on Ms. Lynch, nominated by Mr. Obama last year, until the dispute over the trafficking bill had been resolved.
I am not making this up.  It's from PBS.

You gotta love the use of the word, "normally."

News Scan

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Sex Offender Placement in Washington:  A county in Washington state hopes that the governor will approve their proposal that would avoid concentrating the state's most violent sex offenders in one area.  Jordan Schrader of the News Tribune reports that the proposal responds to the placement of nine released detainees in Pierce County, although none of them come from or committed crimes there.  The proposal requires sex offenders be placed in the county where the crime was committed, unless proximity to their victim or lack of treatment services prevents it.

Supreme Court Reconsiders Career Criminal Law:  In Johnson v. United States, the Supreme Court is reconsidering the scope of the 1980s Armed Career Criminal Act which adds a 15-year prison term on armed career criminals.  A defendant argues that the law is unconstitutionally vague on what crimes warrant the additional penalty.  David G. Savage of the LA Times reports that the law cites burglary, arson, extortion, and the use of explosives as violent crimes, but Justices are divided about the law's phrasing of "conduct that presents a serious potential risk of physical injury to another."  

Gun Offender Registry Adopted in Cleveland:  Cleveland City Council passed legislation on Monday that would require gun offenders to register with the city's safety department within five days of moving into Cleveland or being released from prison.  Leila Atassi of the Northwest Ohio Media Group reports that other provisions in the legislation have replaced the city's current gun ordinances with language that better reflects state law, allowing police to charge offenders under the city code rather than state statute.  

More Preschool, Less Crime:  Illinois' top law enforcement officials believe preschool helps deter children from crime and have organized a group called Fight Crime: Invest in Kids Illinois to help support state funding for early childhood education.  Alicia Fabbre of the Chicago Tribune reports that a study revealed that students who didn't attend preschool were "five times more likely to be arrested for drug felonies and two times more likely to be arrested for violent crimes by the age of 27" than those who attended preschool.  The group is asking lawmakers to boost preschool funding by $50 million.

Gang Member Granted Amnesty Under DACA:  The Obama administration has admitted to granting executive amnesty to a known gang member charged with four counts of murder and now promises to work to assure that other gang members weren't approved for deferred status.  Caroline May of Beitbart reports that Emmanuel Jesus Rangel-Hernandez's approval for deferred status under the Deferred Action for Childhood Arrivals program violated standard procedure and should not have been approved.  The Obama administration has approved over 866,638 DACA applications since March 20, and many fear that the US Citizenship and Immigration Services is not eliminating dangerous applicants from the DACA program.

Traffic Stops and Dog Sniffs

The U.S. Supreme Court today decided Rodriguez v. United States, No. 13-9972:

In Illinois v. Caballes, 543 U. S. 405 (2005), this Court held that a dog sniff conducted during a lawful traffic stop does not violate the Fourth Amendment's proscription of unreasonable seizures. This case presents the question whether the Fourth Amendment tolerates a dog sniff conducted after completion of a traffic stop. We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution's shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, "become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission" of issuing a ticket for the violation. Id., at 407.
Justice Ginsburg wrote the opinion.  Justice Thomas dissented, joined by Justices Kennedy and Alito.

The "only" in the last sentence is disputed in this case and remains open.  The government contends that the officer did have an individualized basis for suspicion that the car contained drugs.  Justices Thomas and Alito would affirm on that basis.  Justice Kennedy agrees with the majority that the point is not properly before the Supreme Court because the Court of Appeals did not decide it.

Although the issue discussed in that Part [of Justice Thomas's dissent] was argued here, the Court of Appeals has not addressed that aspect of the case in any detail. In my view the better course would be to allow that court to do so in the first instance.
Violent, repeat criminals should be put away for a long time, Congress quite reasonably decided in 1984.  But the devil is in the details, and the Armed Career Criminal Act has been an interpretive problem for a long time.  What exactly is a "violent felony or serious drug offense"?  Jess Bravin has this article in the WSJ on today's argument in Johnson v. United States, No. 13-7120.  The transcript is here.
"Sentencing reform" is the deliberately gauzy name given the movement for shorter sentences and earlier release.  Its advocates say it will be focused on "low level, non-violent" offenders, but quietly, and less prominently, acknowledge that it's intended to apply to "all offenders."  

This is one reason I want to add explicit language to one of the main "reform" measures, the Justice Safety Valve Act, before it gets a vote.  I want the public to know exactly what "all offenders" means.

It's also the reason I want to highlight an item from today's News Scan.  The Scan is sometimes easy to pass by quickly, because it contains a number of stories. But this one deserves our immediate attention:

Sex Predator Gets Second Chance, Reoffends:  Michael Shepard, released after serving a 15 year sentence for committing sex offenses against children, faces 14 new charges of raping or assaulting at least seven children after being out of prison 18 months.  Claire McNeill of the Tampa Bay Times reports that Shepard initially lied to his neighbors about his crimes, claiming his sex offender status stemmed from a Romeo and Juliet affair with a preacher's daughter.  He was released from prison after two psychologists determined that he "did not qualify for commitment" to a treatment facility after his sentence.  Shepard claims that the children fabricated their stories.

News Scan

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Sex Predator Gets Second Chance, Reoffends:  Michael Shepard, released after serving a 15-year-sentence for committing sex offenses against children, faces 14 new charges of raping or assaulting at least 7 children after being out of prison 18 months.  Claire McNeill of the Tampa Bay Times reports that Shepard initially lied to his neighbors about his crimes, claiming his sex offender status stemmed from a Romeo and Juliet affair with a preacher's daughter.  He was released from prison after two psychologists determined that he "did not qualify for commitment" to a treatment facility after his sentence.  Shepard claims that the children fabricated their stories.

Milwaukee's Spiraling Violence:  Milwaukee, Wisconsin, has suffered dozens of violent incidents this year, claiming the lives of at least 43 people.  Gina Barton and Ashley Luthern of the Journal Sentinel report that the mayor and police chief have cited the city's concealed carry law, but others blame the increase on police department cuts and a policy barring police from high speed chases unless there is probable cause that someone in the suspect vehicle is a dangerous felon.  The mayor plans to spend $2 million to improve the investigation and charging of gun crimes.

Death Penalty Rare for Child Killers:  Ohio prosecutor Joe Deters' effort to enact legislation permitting prosecutors to seek the death penalty in cases involving the killing of a child has paid off.  Paula Christian of WCPO reports that Deters was outraged when prosecuting child-killer Richard Joseph Klein 18 years ago.  Klein received a sentence of only 31 years for holding down his girlfriend's mentally disabled 12-year-old son in scalding hot water until he died.  Now that the new law has passed, Deters plans to seek the death penalty against a couple accused of torturing their 2-year-old daughter to death.

Texas Aids Arkansas With Prison Overcrowding:  A contract with Bowie County, Texas, allows Arkansas to place up to 288 of its male inmates in a Texas facility.  John Lyon of the Arkansas News Bureau reports that the contract expires on December 31.  "More innovative approaches" yielding long-term impact are being considered.  State prison officials hoped to begin construction of a new 1,000-bed prison last year, but Governor Asa Hutchinson has a different plan to add bed space without building a new prison.  Another alternative, as outlined in Act 1206 of 2015, would allow counties to house state prisoners in regional correctional facilities subject to the governor's approval.

Of Drug Legalization and Flying Saucers

I have occasionally said here that support for the legalization of hard drugs is so low that it's never even been polled.

I was wrong.

I just found out that it was polled by the Huffington Post last year.

Also polled, by a different organization, was the belief that Earth has been visited by flying saucers.

Although a small majority now believes that pot should be legalized, flying saucers beat hard drugs by a fat margin.

20 Years Ago and Today


It was 20 years ago today that a domestic terrorist murdered 168 people in Oklahoma City, setting off a vehicle bomb in front of the federal building.  In this famous photograph by Charles Porter IV, fireman Chris Fields cradles infant Baylee Almon, who did not survive.

Timothy McVeigh was sentenced to death for this crime on August 14, 1997.  He was executed June 11, 2001, less than four years later.  Why so quickly?  What lesson is there for those seeking justice in the present day?
CJLF takes no position on pot legalization.  Kent has said he regards it as inevitable. My view is that pot became de facto legal long ago, and that the whole debate is therefore mostly academic.  But. yes, if you light up on the steps of the US Attorney's Office, you'll probably get a summons, anyway.  Then, in all likelihood, some AUSA will get in your face  --  before he dismisses the case or settles for a $50 fine.

One of the items I frequently see from legalizers is the assertion that pot never killed anyone.  Of course that's not the point; shoplifitng never killed anyone either, but, if it's not habitual, it's a minor crime deserving minor punishment.  Same deal with pot.

As to the "never-killed-anyone" argument itself......well......apparently not.

Intelligence Squared Debate Video

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The permanent link to the Intelligence Squared debate is:


The full video is now available on the site. 

News Scan

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Only Minor Changes In Vermont's Sex Offender Laws:  A high-risk sex offender was released from a Vermont after maxing out his sentence, despite his refusal to seek treatment while incarcerated, sparking public demand for stricter sex offender laws.  Alex Keefe and Lynne McCrea of VPR report that lawmakers are considering two weak reforms.  The first would be a clarification to an existing that that states sex offenders must report their plans and activities to the registry before their release from jail.  The second would improve the sex offender registry's accuracy.  Also, several additional requirements have been considered for sex offenders labeled as high-risk.

New System Screens Out Registered Sex Offenders:  A high-tech system that produces instant background checks is being used at schools in Southern Indiana to protect students from sex offenders and other threats.  Stephan Johnson of WDRB reports that the Raptor System performs an immediate background check at the school's entrance, and then prints out a label with the person's name and photo ID if the system approves their entry.  The police department in Clarksville, Indiana purchased the system for the local elementary school.

Uniform Trafficking Law Heads To ND Governor:  North Dakota lawmakers are proposing a uniform law on human trafficking in an effort to move towards helping the victims.  Katherine Lymn of the Dickinson Press reports that Senate Bill 2107 would grant immunity to minors who committed prostitution offenses and other nonviolent crimes related to being trafficked, a law also known as Safe Harbor.  Adult victims would have their prostitution convictions and other related offenses expunged if the court determines the crime resulted from trafficking.  The bill is now headed to the governor for final approval.

Arkansas Parole Officers Overloaded:  In the state of Arkansas, 402 parole officers are responsible for the supervision of 52,292 parolees, equating to an average of 130 parolees per officer, or twice the national caseload average.  Josh Dooley of the Baxter Bulletin reports that with such large caseloads, officers say it is impossible to provide adequate supervision and they "just have to hope nothing bad happens."  Arkansas governor has approved funds to hire 45 additional parole officers over the next two years and add 500 beds in reentry programs across the state.

Bring Up, and Vote Down, an Amended JSVA

The Justice Safety Valve Act, which would effectively nullify mandatory minimum sentencing in federal law, was so radical that its co-sponsor, Sen. Pat Leahy, would not bring it up last year in his own Committee.  In this, Sen. Leahy showed his typical canny feel for the lay of the land.  Committee chairmen tend not to bring up bills they know are so ideologically lopsided they'll go down in flames. 

Still, Sen. Leahy and Sen. Rand "no vaccinations" Paul have co-sponsored the same bill this year.  If Sen. Leahy were still the Chairman, I have no reason to believe he'd be any more willing to advance it than he was in the past.

Still, there could be value in having a vote on the bill in the SJC  --  having a vote, that is, if the bill were amended to give the public a more transparent look at what it's actually designed to do.

News Scan

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Crime Rise Puts LAPD In Difficult Position:  Los Angeles Chief of Police wants to send more than 200 officers from the highly trained, "elite" Metro Division to combat the city's first major crime increase in over ten years.  Kate Mather, Richard Winton and Cindy Chang of the LA Times report that the new data-driven, predictive policing strategy will transition from utilizing beat cops focused on building community relations to Metro officers employing their specialized tactical and weapons training.  Law enforcement officials have admitted that although the change is not ideal, something must be done to reverse the 26% increase in violent crime and 11% increase in property crime.

NE Bill Removing Mandatory Minimums Clears Senate:  Nebraska's proposed sentencing reform measure, which would limit the use of mandatory minimum sentences to reduce prison overcrowding, passed the state senate yesterday with a 28-9 vote.  Grant Schulte of the AP reports that the bill would eliminate mandatory minimum sentences for certain felonies such a robbery and assault on a police officer, and would limit use of the "habitual criminal" enhancement.  Nebraska's Attorney General and some conservative senators criticize the bill for removing tools essential for prosecutors to do their jobs.  Supporters claim the law would not affect a judge's ability to impose long sentences for heinous crimes.

Tulane Body Camera Footage Will Not Be Public Record:  The footage obtained from body cameras of the Tulane University Police Department in Louisiana will not be made available to the public, according to the Office of General Counsel.  Brandi Doyal of the Hullabaloo reports that it is not a requirement for TUPD to release footage because "it is not a public body under the provisions of the Louisiana Public Records Act."  General Counsel states that the decision protects the rights of victims and perpetrators, but opponents of the policy feel that the public has the right to view the tapes.

Half The States Consider Right-To-Die Legislation:  Half of US states are considering medically assisted suicide legislation this year, which would "allow mentally fit, terminally ill patients age 18 and over, whose doctors say they have six months to live, to request lethal drugs."  Malak Monir of USA Today reports that Oregon, in 1997, was the first state to have "right-to-die" legislation written into law, and its practice has led to benefits in improving the quality of life for terminally ill patients in the state.  Opponents argue that the potential for mistakes and abuse offset any benefits.

Parolee Speeding To Make Curfew Kills Passenger:  A felon on parole was hurrying home on his motorcycle to comply with his curfew requirements when he crashed on Highway 99, killing his female passenger.  Bill Lindelof of the Sacramento Bee reports that witnesses told CHP officers that the driver was traveling at a high rate of speed and weaving through traffic.  He  was later found to be under the influence of alcohol and arrested for gross vehicular manslaughter while intoxicated, driving without a license, and violating parole.  The victim was 21-year-old.

While the defense is brainstorming to come up with psychobabble excuses for child shredder Dzhokahr Tsarnaev (or seeing what some social worker will agree to say), other grisly news continues apace.  This story caught my eye:

[A] Philadelphia woman accused of abandoning her quadriplegic son with cerebral palsy and leaving him alone in the woods for over five days with nothing but a blanket and a Bible will be charged with attempted murder once she is released from the hospital.

Isn't it a nice touch that she's the one in the hospital?

Still, we wouldn't want to get too tough here.  She left him a Bible, after all.

Nyia Parler, 41, is accused of leaving her 21-year-old son in a wooded area ...around 11 a.m. Monday before traveling to Montgomery County, Maryland to visit her boyfriend.

At least the trip was for something urgent.

"A lot of things could've happened out there," [Officer] Walker said. "Obviously he's in the middle of a wooded area. You have wild animals out there. You never know what's going to happen...."

Officials describe the victim as "non-verbal" and completely dependent on others for his care.

In my view, a jury should be able to consider the death penalty for behavior involving life-threatening harm, gross cruelty, and conduct outside the bounds of civilized life. In other words, it should be able to consider it here.

Should the Senate Vote on the JSVA?

The question has been raised whether it would not improve the accountability and transparency of the legislative process for the Senate, or at least the Senate Judiciary Committee, to bring the Justice Safety Valve Act (JSVA) to a vote.

It's a fair enough question.

The JSVA's substantive provisions are, in full, as follows:

Authority to impose a sentence below a statutory minimum.

Section 3553 of title 18, United States Code, is amended by adding at the end the following:

"(g) Authority To impose a sentence below a statutory minimum To prevent an unjust sentence.--

"(1) GENERAL RULE.--Notwithstanding any provision of law other than this subsection, the court may impose a sentence below a statutory minimum if the court finds that it is necessary to do so in order to avoid violating the requirements of subsection (a).

"(2) COURT TO GIVE PARTIES NOTICE.--Before imposing a sentence under paragraph (1), the court shall give the parties reasonable notice of the court's intent to do so and an opportunity to respond.

"(3) STATEMENT IN WRITING OF FACTORS.--The court shall state, in the written statement of reasons, the factors under subsection (a) that require imposition of a sentence below the statutory minimum.

"(4) APPEAL RIGHTS NOT LIMITED.--This subsection does not limit any right to appeal that would otherwise exist in its absence.".

I think the idea of having a vote, to increase accountability and transparency, is not without merit.  Indeed, I think what we need here is much more transparency. 

Last night I participated in a debate on the death penalty hosted by Intelligence Squared in New York.  See Bill's post yesterday.  We will post a link to the podcast when it is available.

I have participated in many debates on this subject over many years, but this one was exceptionally well done by the hosts.  It was very well produced, fairly structured, and well moderated.

IQ2 scores debates by having the live audience vote on the motion before the debate begins and again after it concludes.  The winner is the side with the greatest net votes changed in favor of its position.

The motion was that the death penalty be abolished, so a "yes" vote is a vote against the death penalty, and a "no" vote is a vote to keep the death penalty.  There is a potentially confusing double negative there, but the moderator explained the vote carefully enough that I doubt anyone was confused.  Our side was, of course, the "no" side.

And the result:

News Scan

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Measure to Reduce Recidivism Passes OK Senate:  House Bill 2179, a measure that seeks to reduce criminal recidivism by giving nonviolent offenders greater access to the workforce, has passed the Oklahoma Senate.  Edmond Sun reports that the bill would allow nonviolent offenders on probation to obtain commercial driver's licenses, rather than just a provisional license, which would make them more employable.  Offenders not on probation or those with suspended or revoked licenses resulting from a DUI would not be eligible to receive a CDL.

CA Bill On Date Rape Drugs Clears First Committee:  Assembly Bill 46, which would restore the ability to charge possession of date rape drugs as a felony, cleared the Assembly Public Safety Committee on a bipartisan vote yesterday.  Last November, California voters passed Proposition 47, which converted the possession of drugs, including date rape drugs, from a felony to a misdemeanor.  The Santa Clarita Valley Signal reports that the bill would create a new felony; possession of date rape drugs with intent to commit sexual assault, rather than directly converting possession to a felony.  This avoids the requirement that amendments to an initiative go before the voters.  

Over Half Million SSNs Issued To Illegal Immigrants:  More than a half-million new social security numbers have been issued by the Obama Administration to illegal immigrants granted amnesty under the Deferred Actions for Childhood Arrivals program.  Caroline May of Breitbart reports that DHS has approved more than 787,068 DACA applications as of December 31.  The issuance of these social security numbers means that thousands of illegal immigrants will be eligible for tax benefits and refunds.

Colorado Lawmakers Extend DNA Collection Serious Misdemeanors:  A new Colorado bill, HB 1312, would expand the state's ability to collect DNA, requiring that a sample be collected from adults convicted of one of the eight misdemeanors deemed serious.  Lance Hernandez of the Denver Channel reports that the measure will be a major help to law enforcement because DNA collection is cost effective, solves cold cases, and gets criminals off the streets.  However, right on cue, the ACLU voiced their opposition to the bill, citing it as an "erosion of our civil liberties."

Missouri Executes Third Murderer This Year:  The state of Missouri executed condemned murderer Andre Cole Tuesday for the 1998 stabbing murder of a friend of his ex-wife, who he also attempted to kill.   An Associated Press story reports that when Cole was behind on his child support payments he told co-workers that "before I give her another dime, I'll kill her."  When overdue support payments were deducted from his paycheck, Cole went to her home to carry out his promise.  The execution, which utilized pentobarbital,  was uneventful and took nine minutes. 

Let me remind readers that  Intelligence Squared is hosting a debate on abolition of the death penalty this evening in NYC.  Details are at this site.

Arguing for abolition are Diann Rust-Tierney of the National Coalition to Abolish the Death Penalty and Barry Scheck of the Innocence Project.

Arguing against are C&C's No. 1 blogger Kent Scheidegger, and Prof. Robert Blecker of New York Law School.

Tickets are $40 (students $12).  If you can't make it, the debate will be streamed live here at 6:45 EDT / 3:45 PDT.
There are reasons to vote for, and reasons to vote against, the confirmation of Loretta Lynch as Attorney General.  Kent and I have discussed the question in several places.  

Kent has noted that Ms. Lynch, while not an ideal candidate from the perspective of those favoring resolute enforcement of criminal law, is about the best we can expect from this Administration.  I have expressed more than a little concern about Ms. Lynch's complicity is what she could not help knowing was perverse, and  -- much more troubling  --  unethical behavior by Judge John Gleeson.  On the other hand, I am favorably impressed with her refusal to adopt the liberal line on pot.

The vote on her nomination has not yet been taken in the Senate.  For whatever one might make of the procedural maneuvers involved, today we saw the announcement of an unusual but some might say compelling reason to delay the vote for weeks. Maybe months.

The Congress-following paper The Hill has the story.
Two years ago today, the ever-so-cute Dzhokhar Tsarneav planted a nail-filled pressure cooker bomb at the feet of an eight year-old boy, Martin Richard, he did not know and who had done him no harm.  It had the intended result:

The child lost so much blood, there was almost none left in his body. The Boston jihadi Tsarnaev "believed what he had done was good, that he is a Muslim soldier in a holy war against America and had taken a step to reaching paradise." 

And what was the take away?  "Beware Islamophobia!"  As NPR reports:

A moment of silence, a call for kindness and the pealing of the city's church bells will be the hallmarks of Boston's events noting the two-year anniversary of the Boston Marathon on Wednesday.

The moment of silence will be observed at 2:49 ET, the time when the first of two devastating bombs went off in the crowds gathered to watch the marathon in 2013.

Mayor Marty Walsh has declared April 15 One Boston Day, beginning a tradition that organizers say is about "resiliency, generosity, and strength of the people that make Boston the great city it is."

A somber and subdued attitude is, of course, fitting for this day.  A tribute to resiliency has its place.  Still, it's more telling than unfortunate that Mayor Walsh could find no room in his remarks for the most important word:


Defendants' War on Black Children

CNN (and numerous other outlets) covered today's sentencing of a number of Atlanta school teachers and administrators convicted in a huge cheating scandal that stretched back at least a decade.

The real victims of the cheating were not the taxpayers of Atlanta (although they got cheated, too).  They were thousands of children, overwhelmingly African-American, who were deprived of a fighting chance to get a decent education.

On display today was the kind of "it's-everybody-else's-fault" arrogance I saw again and again from defendants, belligerently abetted by their lawyers.

For those who say they care about children, about decent schools, about giving "the vulnerable" a chance, today was an object lesson.  Whose side was the prosecution on?  Whose side was the defense on?

See for yourself.
Sentencing "reform" advocates are endlessly frustrated that they make so little headway in Congress.  Unwilling to consider the possibility that their problem is that going softer on heroin and meth dealers just isn't an idea the majority of lawmakers (or the public) supports, a Boogeyman  --  a single, obdurate roadblock  -- must be found.

Today's Boogeyman (and a popular choice for the title) is Sen. Chuck Grassley of Iowa, Chairman of the Senate Judiciary Committee.  Hence this from a leading sentencing "reform" site:

[E]ven if the vast majority of Senators strongly support significant reforms to federal mandatory minimum sentencing provisions or to federal marijuana provisions, Senator Grassley can ensure-- at least until 2017, and perhaps after that if the GOP retains control of the Senate -- that federal reform bills do not even get a committee hearing, let alone a committee vote.   Indeed, even if the vast majority of 300 million Americans, and even if the vast majority of the 718,215 Iowans who voted for Senator Grassley in 2010, would strongly favor a reform bill, the bill is likely DOA if Senator Grassley himself is not keen on the bill's particulars. Frustratingly, that is how our democracy now functions.

Ah, yes, the frustration of democracy.  Only there's this little catch........

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Feds Releasing Hundreds Of Violent Illegal Immigrants:  Arrests and deportations of criminal aliens dropped 30% in the first six months of fiscal year 2015, despite President Obama's professed intention for agents to "focus on felons not families."  Stephen Diana of the Washington Times reports that 30,558 criminal aliens were "knowingly released back into the community" by ICE in 2014.  Together these aliens accumulated almost 80,000 convictions including violent crimes.  ICE Director Sarah Saldana defends the actions of the agency, stating that the laws passed under Congress require her to grant due process to everyone and make judgments about whom to keep detained.

Alien Children Allowed To Sue For Legal Representation:  A US District Court Judge in Washington state rejected a motion to dismiss a lawsuit that would grant legal representation to undocumented children facing deportation, ruling that their request for counsel "constituted an argument for due process."  Thomas Barrabi of the International Business Times reports that the ACLU filed the suit on behalf of Salvadorian sibling who immigrated illegally in 2013 to escape gang violence.  The ACLU has protested that mandatory detention of immigrants awaiting legal proceedings "violates the right to due process."

Tenn. Court Calls Off Scheduled Executions:  Four executions scheduled over the next year have been called off by the Tennessee Supreme Court to allow a trial court to review condemned murderer's challenges to the state's lethal injection protocol.  Mark Berman of the Washington Post reports that Tennessee is the latest state to halt executions while the courts consider challenges from Ohio, Georgia, Florida, Alabama, and Oklahoma.  The state plans to use the electric chair as its execution method of lethal injection is ruled unconstitutional or if the necessary drugs are no longer available.

Six Jacksonville Shootings In Three Days:  Jacksonville, Florida is reeling in the aftermath of six shootings in three days, leaving residents and law enforcement questioning whether the violence is gang-related.  Larry Spruill of Action News JAX reports that residents believe gang activity is the only explanation for the violence, because gangs have a large presence in the city.  Gang counselor Ivan Brown is certain that at least one of the shootings, the drive-by, was carried out by gang members.

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Texas House Passes Border Prosecution Bill:  The Texas House of Representatives passed HB 12, a bill that formalizes the organizational structure of the Border Prosecution Unit.  Your Valley Voice reports that the BPU will operate as an independent unit, supporting attorneys that prosecute felony border crimes.  The unit will also act as a "clearinghouse" for information regarding the investigation and prosecution of border crimes, help to develop the best practices, and training programs for attorneys and law enforcement.

Law Would Stop Violent Felons From Owning Dogs:  A bill proposed by Wisconsin legislators would prevent felons convicted of "crimes against life and bodily security" from owning dogs.  Brenda McIntire of the Badger Herald reports that according to the senior humane animal control officer for the Green Bay Police Department, dogs can be trained to be dangerous, and can even be more threatening than a weapon because they act independently.  The bill is not breed-specific and outlines the behavior a dog would need to exhibit to be considered dangerous.

Bill To Limit Internet Access For Sex Offenders:  Texas lawmakers have introduced HB 372, a new bill that would require certain paroled sex offenders to have their internet access limited and monitored by the state.  Ashly Custer of Valley Central reports that there has been an increase in predators utilizing social media to prey on underage victims, according to the city of McAllen's police chief.  The bill will receive its third reading today.

Ohio's Death Penalty Law Faces Revision:  Two bipartisan Ohio senators are introducing a series of proposals to revise the state's capital punishment law, to improve fairness to defendants and strengthen public confidence.  Ann Sanner of the AP reports that the bill would require judges to be specific in their findings.  Court clerks would have to retain original trial file copies from death penalty cases, and attorneys would not be given a page limit on post-conviction petitions.  Some prosecutors on the task force created to analyze Ohio's 1981 law issued a dissenting report, claiming that many of the recommendations were rooted in anti-death penalty arguments.  Additional legislation should be introduced before July.

No Place to Execute Nevada Murderers:  With over 80 men on death row and no place to execute them, Nevada lawmakers are being asked to fund a new execution chamber.  Sean Whaley of the Las Vegas Review-Journal reports that Department of Corrections Director Greg Cox is seeking approximately $829,000 to build a new execution chamber at Ely State Prison, but expects that architectural firms will avoid participating in the design.  The Public Works Board estimated that the project would take two years to complete.  

Eric Holder Gets One Right

I have frequently been critical of Attorney General Holder, but I believe in giving credit where credit is due, and it is due here.

On the other hand, that he feels like he has to issue such instructions is a sorry comment on where DOJ is after more than six years of his "leadership."

Jack Weinstein, Move Over

Judge Jack Weinstein of the Eastern District of New York made a name for himself with his 400-page memorandum purporting to justify an illegal 30 month sentence for a distributor of child pornography.  The Second Circuit was not buying it and unanimously reversed.  Not one to take correction by the higher court lying down, Weinstein issued a Holier-Than-Thou memorandum the next day setting the appellate judges straight (while grudgingly setting the case for re-sentencing).  I discussed the case here, here and here.

The case got so much attention from me because it illustrates why we have, and need, stern mandatory minimum sentencing.  Judges spent at least the 20 years after 1960 showing why they cannot be trusted with unlimited discretion.

The lesson was expensive (to crime victims) but simple:  They'll use it to benefit criminals; criminals will take the goodies; and crime will skyrocket, as it did before we came to our senses in the 1980's.

Today, a Weinstein wannabe in Southern California made the news with an even more graphic lesson.  This time, however, the victim could at least speak for herself. At least I think she could.  I mean, a person has learned to talk by the time she's three, right?

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Man Arrested in AZ Has Been Deported 20 Times:  An Arizona man arrested following a high-speed chase is an illegal immigrant from Mexico who has been deported 20 times.  The AP reports that Genaro Cisneros-Delgado led a sheriff's deputy on a 30-mile car chase at dangerously high speeds before crashing through a locked gate and fleeing on foot with three other passengers.  The other passengers were also illegal immigrants from Mexico being smuggled by Cisneros-Delgado.  All four men were apprehended by law enforcement.

Man Avoids Death Penalty in 1997, Returns to Prison for Murder:  Targeted for the death penalty two decades ago for a 1994 robbery-murder, George Jones was sentenced to 30 years in prison.  He was released on parole in 2012, and is now back behind bars for another murder.  Bill Wichert of NJ reports that Jones pleaded guilty to reckless manslaughter in the 2013 murder.  His attorneys contend that he is mentally incompetent.  His sentencing is scheduled for May 5.

Study Says Sex Offenders May Have Linked Genes:  A 37-yearlong study of 20,000 men convicted of sex crimes in Sweden has revealed that genetics may play a role in the propensity toward sexual offending.  Don Melvin of CNN reports that the results of the study conclude that the biological sons of sex offenders were five times more likely than the norm to commit sex offenses.  One of the experts conducting the research believes using this information will be helpful to social workers who are working with families combating these issues.

Georgia to Allow Hormones for Transgender Inmates:  Georgia has ended its refusal to allow new hormone therapy to transgender inmates and is willing to provide treatment that is "constitutionally appropriate."  Deborah Sontag of the NY Times reports that Ashley Diamond, a transgender woman incarcerated at a men's facility, brought a lawsuit against the state claiming that her hormone treatment was illegally cut off.  The Justice Department sided with her, stating that the denial of her treatment violated prison officials' "obligation to assess and treat gender dysmorphia" as it would any other disease or mental condition.  Diamond is also suing the state for their failure to protect her from sexual violence.

New York City May Give Non-Citizens the Right to Vote:  The majority of the New York City council are in support of a bill that would give more than one million non-citizens full rights to vote in local elections, possibly solidifying "far-left dominance of New York City's government."  John Fund of the National Review reports that supporters of the bill feel that the interests of citizens and legal residents are synonymous, while opponents contest that voting is a right that must be earned through citizenship.  Mayor Bill de Blasio issued municipal ID cards to 500,000 undocumented immigrants last year, so it is unlikely that he will veto the bill.

Wednesday I appeared on the Diane Rehm radio show on WAMU, as noted and linked here. I got a considerable amount of feedback, most of it complementary.  I did receive one sharply critical email, though, regarding Debra Milke, and I do need to make a correction.  More broadly, the incident says something important about how folks on the anti side get their "facts."

First, a note about debates.  When I participate in one of these, I have no idea which cases the other side is going to bring up.  I have to discuss the facts of them from a memory that may not have been refreshed for a long time, if indeed I am familiar with the case at all.

I said that James Styers took Debra Milke's little boy out into the Arizona desert and put five bullets in the back of his head.  (I had a Skype link with the studio.  Ms. Rehm visibly winced at this point.)  My critical correspondent points out that it was only three bullets.  I stand corrected.  To anyone who thinks this is material, I apologize.  I don't think it is.

On the material facts, I stand by my description of the case, and therein lies the point of this post.

Jihad Wins on Campus

Most readers will remember the liberal reaction to 9-11:  If the country goes overboard with restrictions on liberty, the Jihadists will have won.  Yes, we need to act, we need to protect ourselves, but we also need to remember that what they hate most about us is our freedom.  They cannot defeat us with weapons.  But if we start to whittle away our own liberties, if we close our minds, that is their victory.

Remember that?

Freedom of thought and speech was once thought to be most treasured, and most fiercely protected, on campus.  If there were any place where the chill of the post 9-11 world could be fought off, it would be there.

Well, not exactly.  The American campus has become the stronghold of intolerance  --  intolerance, but with a twist.
On the last day of March (thus shrewdly avoiding April Fools Day), President Obama granted 22 clemencies, the great majority to cases involving hard drugs.  I blogged about it here.  

I did not put forth a comprehensive theory of the standards for executive clemency, and it's probably imprudent to attempt such an ambitious enterprise on a blog. Nonetheless, and with all the modesty due from someone who involved himself more in putting criminals in prison rather than taking them out, I'll attempt at least a brief sketch.

The South Carolina Shooting

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On this blog we often choose not to comment on crime-related news stories when essential facts have yet to be established.  The news media are notorious for adopting a narrative that will propel what may be an unfortunate yet unremarkable local incident into an emotionally-charged national story.  This is particularly true with officer-involved shootings where the officer is white and the suspect is black.  In most such cases the media and a fraternity of recognized race-baiters have been proven totally wrong about what happened.  Sometimes, before the truth is known, there are riots, killings, and occasionally murders in retaliation for injustices later found to have not occurred.  There is no need to delay commenting on the April 4th shooting in North Charleston.

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Chief Pitches Crime-Free Housing Program:  A new program combining education, permitting and enforcing initiatives for landlords is being proposed by the chief of police in Newton, Iowa.  Jamee A. Pierson of the Newton Daily News reports that the mandatory training will be required for all landlords, who will learn about crime prevention, resident selection, self-defense, background checks, and how to handle illegal activities and develop partnerships with law enforcement.  The goal of the program is to create safer, crime-free communities for landlords and tenants.

FL Senate Considers Statewide Body Cam Legislation:  Florida lawmakers are introducing a two part bill that would create a consistence policy for the use of body cameras in law enforcement.  WJHG reports that currently, thirteen agencies in the state are already using body cams, but there are no statewide guidelines on "who, how, or when they can be worn."  Civil rights advocates are concerned about issues of privacy trumping the "public's right to know," but law enforcement fully supports the legislation.

Convicted Dallas Area Cop Killer Set to Die:  With a newly purchased supply of pentobarbital, the Texas Department of Criminal Justice says that they have enough of the drug to carry out the executions of convicted cop killer Kent Sprouse and three other death row inmates scheduled to be executed this month.  Michael Graczyk of the AP reports that Sprouse confessed "almost immediately" to having fatally shot a police officer and another man outside of a convenience store in 2002.  His execution is scheduled for this evening.  He will be the fifth inmate executed in the state this year.  Update:  Sprouse was pronounced dead at 6:23 PM CST. 

Bill Proposes Post-Convicted Preservation of DNA:  House Bill 1069, which would require DNA samples collected in any felony case involving violence or sex offenses to be preserved through the length of the offender's sentence, was approved by the Washington Senate and is heading back to the House.  The AP reports that Washington doesn't automatically preserve DNA samples for serious felonies, instead requiring defendants to file motions demanding that the sample be preserved.  The Senate determined that samples are to be preserved for 99 years or the length of the statute of limitation, whichever one is shorter.

We noted earlier (here and here) that both houses of the Oklahoma Legislature had passed their own versions of a bill to establish nitrogen hypoxia as an alternate method of execution if lethal injection is unavailable.  The Senate today unanimously passed the House version, HB 1879, and it goes to the governor.

The bill does not give the inmates the option to choose this method if lethal injection is available.  That would have been useful in demonstrating the superiority of the method.  I would not be surprised to see many inmates choose it if they had the option.  Depending on how it is set up, it could be a more dignified way to make one's exit.

The bill takes effect November 1.  The general constitutional rule for effective dates in Oklahoma is 90 days from the adjournment of the session (§V-58), which is scheduled to be no later than May 29.  The author built in a couple of extra months.  That was probably to give the Department of Corrections time to get the method ready.

Rand Paul, Dancin' and Prancin'

Sen. Rand Paul has now "clarified" his remarks yesterday, in which he said (emphasis added), "I see an America where criminal justice is applied equally and any law that disproportionately incarcerates people of color is repealed." 

Now we hear this, from Byron York in the Washington Examiner

The Paul campaign says the senator's words were misunderstood. "Sen. Paul was referring to nonviolent crimes," campaign spokeswoman Eleanor May told me via email, adding that the passage in question was "a reference to his criminal justice reforms."

Where to start?

Diane Rehm Show

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The Diane Rehm Show on WAMU radio (American University, Washington, D.C.) had a death penalty debate today with Robert Dunham, Executive Director of the Death Penalty Information Center, and Diann Rust-Tierney, Executive Director of the National Coalition to Abolish the Death Penalty, on the anti side.  Holding up the pro side was yours truly.

Audio is available on the WAMU website.

Dunham recently succeeded Richard Dieter at DPIC.  He continues to attempt maintaining the facade that DPIC is just a neutral source of information and doesn't take a position on the issue.  Nobody knowledgeable on the issue who hears him discuss it could fall for that, but that ruse still does fool some people. 

Fortunately, most of the press has them figured out now, and DPIC is regularly identified as the advocate for one side that it is.  Nothing wrong with being an advocate for one side.  CJLF is.  The difference is we are honest about it.

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Playing Cards Help Solve Cold Cases:  After a successful test run, the Colorado Bureau of Investigation are distributing playing cards to inmates containing photos of victims and information on unsolved homicides in the hopes that they can help to resolve some of the state's 1,600 cold cases.  Crimesider Staff of CBS News reports that this strategy was employed successfully in Florida, where 14 cases were solved, and South Carolina, where 10 cases were solved.  Colorado has already ordered 5,000 decks and plans to order 10,000 more in the next year.

Bill Would Make Revenge Porn a Crime:  Louisiana state Rep. Julie Stokes has introduced new legislation that would criminalize the act of posting naked photos of someone online without their consent.  Jaclyn Kelley of WWL TV reports that offenders would be fined up to $10,000 and could be incarcerated for up to two years.  The law would only apply to victims age 17 or older who are easily identified in the photo, as well as "any situation where there was reasonable understanding that the photo was to remain private."

Online System Created to Help Crime Victims:  A new online system that allows victims of crime to file personal claims to seek compensation for expenses such as medical, relocation, and loss of funds will launch throughout New York state over the next month.  Denise Nickerson of the Journal News reports that the system makes filing claims a simpler, time-saving process for both victims and the Office of Victim Services staff members.  Under state and federal law, however, victims can only use the system as a "last resort" once they have exhausted all other insurance options.

CA Dems Unveil Far-Reaching Package of Immigration Bills:  Democratic legislative leaders in California have introduced 10 pieces of legislation that aim to benefit illegal immigrants and make it harder for authorities to deport them.  Jessica Calefati of the San Jose Mercury News reports that groups opposing the bills say that, if passed, they will make illegal immigration a "more comfortable thing" and encourage more people from Mexico and Central America to illegally immigrate.  Officials also point out the burden California taxpayers will face in order to fund all of the bill proposals.  Analyses on the exact cost of each bill to taxpayers are yet to be completed.

Guilty as Hell

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Dzhokhar Tsarnaev has been convicted on all 30 charges against him, including 17 punishable by death. 

The sentencing phase will begin soon, at which the abolitionist crowd, regardless of the horrifying facts of this case, will be rooting for the defense side.  How anyone can root for this defendant at any point and in any form or fashion just mystifies me.

The CNN story reports that, "Tsarnaev stood with his head bowed and his hands clasped as the verdicts were read."  I congratulate counsel on a good job of coaching.  Tsarnaev's scribbled note inside the boat where he was captured gave the unscrubbed version of his degree of contrition, to wit, none.  Whether counsel will be able to persuade him to continue occasionally faking contrition is an open question.

I'll bet $100 here and now, however, that he will not take the stand.  Under cross examination, there's too much chance his hatred for infidels, and the United States generally, will come out, thus tanking his it-was-all-my-brother's-idea theory of "mitigation."

Rand Paul Launches, Immediately Explodes

When I was a kid, I watched in dismay as America's fledgling space program resulted in one launch after another in which the rocket got 15 feet off the ground, only to explode in a ball of fire.

Fast forward 50 or so years, and you see Rand Paul doing the same thing.

In his Presidential campaign launch today  --  undoubtedly the most important, carefully considered and best rehearsed speech of his life  --  Paul said this:

I see an America where criminal justice is applied equally and any law that disproportionately incarcerates people of color is repealed.

In other words, Rand Paul sees an America where essentially every felony law is repealed, since virtually all of them "disproportionately incarcerate people of color," not to mention people in their twenties and people who are male.

I like to think of myself as decently good with language, but words fail me in trying to convey the ignorance and stupidity of Paul's statement.

How to misattribute a quotation

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Alexandra Petri has this amusing column in the WaPo. Love that flowchart.

One of my favorite quotes is, "It's not what we don't know that gets us in trouble; it's what we know for a fact that just ain't so."  Do I know for a fact that Will Rogers said that? Um, no.  Not Mark Twain either.
Intelligence Squared is hosting a debate on abolition of the death penalty the evening of April 15 in New York.  Details are at this site.

Arguing for abolition are Diann Rust-Tierney of the National Coalition to Abolish the Death Penalty and Barry Scheck of the Innocence Project.

Arguing against are Robert Blecker of New York Law School and CJLF's Legal Director Kent Scheidegger.

Tickets are $40 (students $12).  If you can't make it to New York, the debate will be streamed live here at 6:45 EDT / 3:45 PDT.

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Another Surge Of Illegals Cross US Border:  More than 3,000 unaccompanied illegal immigrant children from Central America crossed the Mexican border last month, the highest rate since last summer.  Stephen Dinan of the Washington Times reports that thus far in 2015, authorities have captured 15,647 unaccompanied children and 13,911 family units.  The Obama Administration's failure to eliminate "pull factors," such as the loophole in our immigration law that requires non-Mexican children to be released into the US while they await deportation, is cited as the reason for the continued surge.  Although the numbers are lower than last year, many Americans support closing this loophole and speeding up deportations.

Work Release Program May Address Overcrowding:  The Howard County Jail in Indiana is considering a work release program that might alleviate the overcrowded jails.  Pat Munsey of the Kokomo Perspective reports that Community Corrections director Ray Tetrault supports the idea, emphasizing the program's benefits such as a reduced recidivism and low maintenance costs.  The program would still count as incarceration, and inmates sentenced to work release would have strict rules to follow in order to remain in the program.

Victim's Father: Why Was Criminal Migrant Free?:  The father of a 21-year-old man murdered in January by a criminal alien is outraged over the loose US border and immigration policies that allowed his son's murderer to freely roam the streets for years with no supervision.  Laurie Roberts of AZ Central reports that Apolinar Altamirano was a free man when he fatally shot Grant Ronnebeck over a pack of cigarettes, despite being a convicted felon with two protective orders filed against him.  Ronnebeck's father is hoping that his son's death will be a wake up call to the Obama Administration to fix our immigration laws.

Faster Ballistics Testing Solving Crimes:  Denver authorities are employing a new strategy that puts ballistics evidence into the hands of investigators much more quickly, before leads and suspects disappear.  Sadie Gurman of the AP reports that in the two years that the Crime Gun Intelligence Center in Denver has been in operation, matched shell casings have helped lead to the arrests of 35 suspects in over 50 shootings.  Chicago, Milwaukee, and New Orleans have also begun following this model.  An ATF agent in New Orleans noted that the city's murder rate is the lowest in 30 years, attributing most of the credit to their specialized unit that targets shooters.

Rand Paul Launches, Part II

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Kent questioned where Sen. Rand Paul stands on the death penalty.  I have wondered about that for some time, but have not been able to get a direct answer, even after asking a member of his staff.

I did find this July 2014 article from the Washington Times, headlined, "Rand Paul Says Death Penalty Is a State Issue."  It begins:

FRANKFORT, Ky. (AP) - U.S. Sen. Rand Paul said Thursday that the disproportionate number of minorities in the nation's prisons convinced him to push for sentencing reform and restoring voting rights to some convicted felons ahead of a possible presidential run in 2016.

However, the fact that there are a disproportionate number of minorities on death row in the U.S. has not led him to scrutinize capital punishment. He said the death penalty is a state issue.

"I haven't had a lot of feedback specifically on that," Paul told The Associated Press in a phone interview. "I just haven't taken a position on the death penalty."

This is a deficient answer for at least three reasons.  First, it's not just a state issue; federal law provides for the death penalty in some cases, and the voters are entitled to know whether Paul, as President, would seek to repeal, or would simply refuse to employ, that provision.  Second, Paul is a resident of a state that has capital punishment, and it would be illuminating to know where he stands on that "state issue."  Third, the answer is a fairly obvious dodge. Especially now, as the Boston Marathon bomber case heads towards resolution, let's hear from Sen. Paul if he approves  --  as even Eric Holder does  -- allowing the jury to consider the death penalty for Mr. Tsarnaev.

Rand Paul Launches

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Janet Hook of the WSJ has this story on Rand Paul's campaign launch and this video noting his differences from his father, who made several longshot bids for the White House.

Hook describes Paul as having a "libertarian-leaning brand of conservatism."  My impression is that he is a straight libertarian who agrees with conservatives only when those two very different paths happen to reach the same endpoint.  (See Jonathan Haidt for a more complete explanation of conservative v. libertarian mindsets.)

The Seattle Post-Intelligencer has a feature on Paul's stands on issues.  The one relevant to this blog is:

This is an issue that largely sets Paul apart from the rest of the Republican field. He wants to restore voting rights to nonviolent convicted felons, eliminate mandatory minimum sentences, end the federal sentencing disparities between crack and powder cocaine and make it easier for people to expunge their criminal records. He has partnered with Democrats on most of those issues, which might broaden his appeal nationally should he win the GOP nomination.
It not only sets him apart from the rest of the Republican field, it sets him apart from most Republican voters, one reason to very much doubt that he has any realistic chance of winning the nomination.
I neglected to note in my entry earlier today the prior subject of Rolling Stone's affection.  And no, I am not referring to the fellow who rolls a joint, smokes it on the police station steps, then complains that his arrest and $50 fine (if that) is the Fascist Boot.  I am not even referring to the fabulist, "Jackie," or the hoaxmeister, Sabrina Erdely.

News Scan

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Illinois Weighs Automatic Obamacare Enrollment For Ex-Cons:  New legislation in Illinois would start inmates' Medicaid enrollment or re-enrollment 30 days before their release through the state's ObamaCare office.  Benjamin Yount of Fox News reports that automatic enrollment is in the state's "best interest."  A total of 30,083 inmates were released last year alone.

Rise in Prison Violence in NY:  New York State's prisons have seen a sharp rise in violence over the last five years, increasing roughly 50 percent since 2010.  Brian Mann of NCPR reports that the president of the New York State Correctional Officers & Police Benevolent Association (NYSCOPB) believes that increased drug activity, a stronger gang presence, and more violent young offenders entering the system are the prominent factors causing the surge of unrest in prisons.  The NYSCOPB stresses a need for more correctional officers due to retirements and administrative struggles to hire replacements.

Life Without Parole Bill Sparks Debate:  A passionate debate has erupted over a new bill that would authorize judges to hand down decide life without parole sentences instead of juries.  The AP reports that supporters regard the measure as a way to "clean up" the 2013 repeal of Maryland's death penalty, while opponents believe that the such a law would face constitutional legal challenges while abandoning a "fundamental component of our justice system is that the jury is a fact-finding entity."  The debate on the bill is continuing today.

State Dept. To Use Tax Dollars To Import Immigrant Children:  A new program will fly immigrant children under the age of 21 from some Central American countries to the US to be reunited with their parents on the taxpayers' dime.  The program was created in response to the surge of Central American children who have been illegally crossing the border in droves since last summer.  Kellan Howell of the Washington Times reports that any individual, whether a parolee or an illegal alien, that is receiving a work permit under Obama's executive amnesty would be eligible to have their children imported.  If approved, the children would be given special refugee status and begin earning taxpayer benefits once they are flown to the US.  One Democrat strategist told reporters that the program would be good for taxpayers. 

Accountability, Rolling Stone Style

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Rolling Stone sold a lot of issues, and made a big splash in journalism, by "reporting" the story of a savage gang rape undertaken at, and perpetrated by members of, the Phi Kappa Psi fraternity at the University of Virginia.  As a result, the frat house was picketed and vandalized, and some of its members had to go into hiding.  It, along with every other fraternity on campus, had its activities suspended without a hearing, and was compelled to undergo some kind of sex sensitivity "training."

It was a hoax.  The fraternity did nothing wrong and its members did nothing wrong. It's not that the sex was consensual.  It simply never happened.  Apologists for the source of this fraud, one (understandably anonymous) "Jackie," still maintain that "something awful might have happened to her that night," but they provide not a shred of evidence.

They are correct, however, that something awful has happened.  As with Darren Wilson and the Duke lacrosse team, an atrocious accusation got peddled and broadcast nationwide, not in the service of truth, but in the service of PC Belligerence and Self-Anointed Victims.  
The question posed by the title of this entry is basic, but seems to have sparked a good deal of controversy lately.  

I was a litigating lawyer for the federal government for seven years at Main Justice and another eighteen at the US Attorney's Office for the Eastern District of Virginia. My experience tells me that, broadly speaking, there are six factors that account for the defendant's sentence.

News Scan

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Murders, Shootings on the Rise in Chicago:  The first three months of the year in Chicago have seen a 40 percent increase in shootings and 29 percent more homicides following last year's record low numbers.  Aamer Madhani of USA Today reports that the the Police Superintendent believes gun laws are making it "too easy for dangerous criminals to get access to illegal weapons," who often travel to the less restrictive neighboring states of Wisconsin and Indiana to purchase weapons. ownership.  Chicago police have recovered over 1,500 illegal guns this year and arrests for illegal gun possession are up 22 percent.  Mayor Rahm Emanuel says the city needs more police and changes in the law.

Aerial Surveillance Fights Crime:  Persistent Surveillance, a company in Dayton, Ohio, is utilizing airplanes and high-powered cameras to capture footage of crimes from above, tracking criminals from crime scenes to their residences.  Alex Pena of CBS News reports that high-tech cameras capture images within a 5-mile radius in every direction and have surveilled in high crime areas such as Camden, New Jersey and Ciudad Juarez, Mexico.  The ACLU opposes the surveillence, arguing that it is contributing to a "totalitarian" country, but Persistent Surveillance only goes where crimes are reported.  They have submitted contracts with various governments in the U.S. and abroad worth millions of dollars.

Chowchilla Kidnapper Granted Parole:  One of the three men who kidnapped and buried alive a busload of 26 schoolchildren and their bus driver in the 1976 ransom attempt in Chowchilla, California has been granted parole at his 20th hearing.  Tim Sheehan of the Fresno Bee reports that the decision to parole James Schoenfeld will go through an internal review and will take another four months.  Many victims of the kidnappings, still traumatized as adults, have written letters and sent senior prosecutors to the hearing to argue against his release.  Schoenfeld's parole is likely attributed to the statewide effort to reduce prison overcrowding.  Schoenfeld's brother, Richard Schoenfeld, was paroled in 2012 and the other kidnapper, Frederick Woods, is up for a hearing this fall.

Three Parolees Accused of Violent Crimes:  Three repeat offenders recently paroled in Missouri, two of them multiple times, have been arrested for committing violent crimes such as robbery, assault, and murder shortly after their release.  ABC 7 News reports that repeat offenders continue to be paroled because there are not enough prison beds to accommodate them.  Boone County Detective Tom O'Sullivan says it's frustrating that "a relatively small number of people" are responsible for most of the problems.

Notes on the Menendez Indictment

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My friend Scott Johnson at Powerline has a fair-mined if somewhat skeptical take on yesterday's oddly timed federal indictment of "No-Deal-with-Iran" Sen. Robert Menendez of New Jersey.  As Scott observes:

The facts alleged in the indictment may to a great extent make out what former Wall Street Journal reporter Brooks Jackson denominated "honest graft." Much of the indictment is devoted to a recitation of activities that must be business as usual in Washington, or close to it.

The activities itemized in the indictment go back as far as 2006. It is certainly fair to wonder why the indictment has been handed up now and to doubt that Senator Menendez's leading role criticizing the foreign policy of the Obama administration is merely a big coincidence.

In part, the indictment vaguely charges Senator Menendez with quid-pro-quo corruption in paragraph 9(b). When one looks for specific "quids" given in exchange for specific "quos," the indictment is evasive...

One damning set of facts goes to Senator Menendez's acceptance of "gifts" (flights and vacation accommodations) worth thousands of dollars together with their omission on the reports Senator Menendez was required to file with the Senate (paragraphs 64-69). The New Jersey Star-Ledger comments: "Regardless of the outcome, it is hard to fathom Menendez's lack of judgment after a long career in a state that has been cursed by so much corruption. Why would he even dance close to this line?"

I am left wondering largely what I wondered yesterday: Why does a high officer of the government line his pockets in ways that stink; and why, if he must do so, does the Justice Department take issue with it only now, as the official has become a political thorn in its side  --  timing that also stinks.

As I said in the comments section of another entry, it is the prerogative, and in this instance the duty, of the political branches to give us some transparency about this indictment. We had Congressional hearings about Benghazi, and we could use some here as well.

It is always important to remember that most people with mental illness are not involved in crime nor are they prone to violence.  In fact, treatment for mental illness is fairly ubiquitous in our society.  The next time you are at a family gathering or among your colleagues there is a fair chance that someone in your presence has been struggled with depression, addiction or some of form of mental illness. 

But we still hear claims that there is no relationship between mental illness and crime or violence.  We hear this despite numerous studies, including several population-based studies, that have shown time and time again that there is indeed a relationship between mental disorder and crime.  The latest issue of Psychiatric Services provides the latest evidence:

Bipolar disorder is a severe and prevalent psychiatric disease. Poor outcomes include a high frequency of criminal acts, imprisonments, and repeat offenses. This critical review of the international literature examined several aspects of the complex relationship between individuals with bipolar disorder and the criminal justice system: risk factors for criminal acts, features of bipolar patients' incarceration, and their postrelease trajectories.

Publications were obtained from the PubMed and Google Scholar electronic databases by using the following MeSH headings: prison, forensic psychiatry, criminal law, crime, and bipolar disorder.

Among patients with bipolar disorder, the frequency of violent criminal acts is higher than in the general population (odds ratio [OR]=2.8, 95% confidence interval [CI]=1.8-4.3). The frequency is higher among patients with bipolar disorder and a comorbid substance use disorder than among those without either disorder (OR=10.1, CI=5.3-19.2). As a result, the prevalence of bipolar disorder among prisoners is high (2%-7%). In prison, patients' bipolar disorder symptoms can complicate their relationship with prison administrators, leading to an increased risk of multiple incarcerations. Moreover, the risk of suicide increases for these prisoners.

Criminal acts are common among patients with bipolar disorder and are often associated with problems such as addiction.

Kent posted earlier today the words of then-Attorney General Robert H. Jackson. Jackson's remarks are long, but well worth your read because they shed so much light on so many questions involving the power and judgment of United States Attorneys.

Those subjects would become especially pointed in a matter of hours.  On what is almost certainly the eve of a politically incendiary deal with Iran, the Justice Department indicted Sen. Robert Menendez of New Jersey on corruption charges. The Wall Street Journal has the story.

Sen. Menendez is by far the most prominent Democratic opponent of the deal. His outspoken opposition creates substantial headaches for the Administration, because it complicates the coming spin that criticism of the deal is just partisan Republican obstructionism.

I have not read today's indictment.  At present, I am certain of only three things, based on my experience as both a civil service and politically-appointed officer at DOJ. First, Sen. Menendez is entitled to the presumption of innocence, and I hope he gets more of it than Darren Wilson ever did.  Second, the feds almost never indict without a very strong factual case for guilt, and you can be sure that that is true in this well-publicized matter.  Third, the timing of this indictment smells to high heaven.  

UPDATE:  On the same day the Administration decides to indict its political enemy, it decides not to indict its political ally, Lois Lerner, in a matter related to her using her office at the IRS to target conservatives.  Politico has the story, and the stench from politics mixed with the power of prosecution just got considerably worse.
The New York Times never saw a killer it couldn't find an excuse for, and today it continues in that tradition with this op-ed by Linda Greenhouse.  Doug Berman of Ohio State aptly titles his entry on it, "Should the Supreme Court Reflect the Country's Disenchantment with Capital Punishment?"

Ms. Greenhouse's op-ed is chock full of the self-righteousness that has become abolitionism's principal inventory. But I want to focus here on Doug's title, because it wonderfully captures abolitionism's second-most copious commodity  --  deceit.

First, as Ms. Greenhouse surely knows at some level of cognition, for the Supreme Court to base its jurisprudence on alleged (or real) popular disenchantment is the opposite of what it exists to do.  The expression of popular will is for the political branches, not the courts.  Were it otherwise, Obamacare, which has been in the public approval dumpster for quite some time, would, under the Greenhouse theory, have gone down the SCOTUS tubes long ago.  But Ms. Greenhouse said only two months ago that that the Court should keep hands off.

If Ms. Greenhouse were a judge, this would be called "result orientation," but, may God be praised, she isn't.

Second, in fact the country is, not only not disenchanted with capital punishment, it favors the death penalty by just short of two-to-one.  Such robust approval exceeds, to pick one example out of the air, the confidence it has in newspapers

Liberals used to vote against hypocrisy, before they voted for it.

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Chicago Robbers Copy Cartel Roadblock Tactics:  Robbers on Chicago's south side are emulating Mexican cartel tactics by setting up fake roadblocks as a ruse to trap motorist and violently rob them.  Ildefonso Ortiz of Breitbart reports that this tactic is prevalent with both known Mexican drug cartels such as the Gulf Cartel and Los Zetas, and is so common in some Mexican border states that Federal police officers escort tourists to avoid danger.  Since the Mexican cartels control much of the illegal drug trade in Chicago, some speculate whether the robbers intentionally copied them or came up with the scheme on their own.

Iowa Bill to Shield Crime Victims' Addresses:  The Safe at Home Act, advancing through the Iowa legislature, would keep the home addresses of victims of domestic violence, sexual assault, trafficking and stalking confidential.  Mark Carlson of KCRG-TV9 reports that victims would receive a new legal address to be included on public records, but their actual address would not be available to the public.  Law enforcement and select officials would still have access to victims' true residences.

Bill Would Put Time Limit on Rape Kit Processing:  A bill passed yesterday by the Tennessee Senate Judiciary Committee, SB 0981, would require rape test kits to be sent to the state's testing lab within 60 days of the victim's written consent.  Kelli Cook of Local Memphis reports that law enforcement in the state are currently not require to submit a rape kit at all, resulting in thousands of untested kits, some of which are decades old.  The bill as it stands, however, is not the ultimate solution, as some officials maintain that there is a need for more funding for labs, prosecutors, and law enforcement.

NC Legislation Would Raise the Age of Juvenile Offenders:  A bipartisan group of lawmakers in North Carolina have introduced HB 399, or the Young Offenders Rehabilitation Act, which would raise the age of juvenile jurisdiction of 16- and 17-year-olds who have committed low-level misdemeanors to ensure that they do not end up in the adult criminal justice system.  Sandy Selvy-Mullis of the Stanly News & Press reports that according to a child advocacy group, 16- and 17-year-olds handled in the adult criminal justice system are twice as likely to recidivate as offenders in the juvenile criminal justice system.  North Carolina is only one of two states, along with New York, that automatically prosecutes all 16- and 17-year-old misdemeanants as adults, regardless of the seriousness of the crime.  New York is expected to revise their version of the law this spring.

DNA Collection at Arrest in Effect Today in Wisconsin:  A new law in Wisconsin requires all people arrested for violent felonies and anyone convicted of a felony or misdemeanor to submit a DNA sample.  This is expected to generate an additional 25,000 DNA samples from violent felony arrests and convictions and 43,000 samples from misdemeanor convictions.  Dee J. Hall of the Wisconsin State Journal reports that the state has expanded its Crime Laboratory and hired more analysts and forensic technicians to handle the increase.  Wisconsin is the 29th state to implement a DNA sample requirement at arrest.

The Federal Prosecutor

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Address by Robert H. Jackson, Attorney General of the United States
(and later Associate Justice of the Supreme Court)
to the United States Attorneys
April 1, 1940

It would probably be within the range of that exaggeration permitted in Washington to say that assembled in this room is one of the most powerful peace-time forces known to our country. The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen's friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.

Registering to Comment

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We received an email inquiry from someone wanting to register to comment but unable to do so.  Since others may have the same question, I decided to make the answer a post.

When the blog started, would-be commenters could register on the blog and get a user ID and a password.  Upon one of the periodic updates of the blog software, I was horrified to discover that some genius at Movable Type (the software maker) had decided that self-registerers would be designated "authors" rather than "commenters" by default, meaning they could write posts as well as comment on them.  As that was unacceptable, I had to shut the feature off.  Legacy commenters can still use their IDs, but nobody can register on their own.

To compensate, I opened commenting to people who sign in through other services, including OpenID, Google, and Yahoo.  At the "sign in" page, there is a drop-down menu to choose one of these other sign-in methods.

Some of these other sign-in methods have an annoying "feature" (or bug, IMHO) of using a long string of random characters for a user name.  For those signing in this way, we request that you adopt a "handle" and "sign" your comments in the text so everyone can see which comments come from the same person.

At some point in the not too distant future, hopefully, I will be able to restore the original registration system, and then I will phase out use of the alternative services.  But I am employed mainly as a lawyer here.  Being the IT Guy is "additional duty" that I do when I get around to it.  So I don't know when that will be.  In the meantime, we appreciate your patience.

The Flood Begins

If you like your drug dealing, you can keep your drug dealing.

That's the message President Obama sent with the numerous drug clemencies he granted yesterday, as detailed in this article from USA Today. And plenty more are coming:

[I]t could represent the crest of a new wave of commutations that could come in Obama's last two years in office. Last year, the Justice Department announced a new clemency initiative to try to encourage more low-level drug offenders to apply to have their sentences reduced. That resulted in a record 6,561 applications in the last fiscal year...

It's scarcely news that this Administration is as soft on drugs as it is on deserters  -- that's depressing but not surprising.  What's surprising is this, also from the article:

Obama wrote each of the 22 Tuesday, saying they had demonstrated the potential to turn their lives around...."Now it is up to you to make the most of this opportunity. It will not be easy, and you will encounter many who doubt people with criminal records can change," Obama wrote. "I believe in your ability to prove the doubters wrong."

Question:  Did Obama ever write a warm, personal note to the soldiers who risked life and limb trying to recover Bowe Bergdahl?

The Boston Bombing Trial Defense Rests

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The Boston Globe begins its story:

After 15 days of victims recounting their injuries, experts testifying about explosives and terrorism, and witnesses detailing the deaths of three people in the Boston Marathon bombings, the defense team of Dzhokhar Tsarnaev had its turn to make a case.

It was over in six hours.

Defense counsel has been understandably circumspect in dealing with the press. Still, in an exclusive to this author, counsel gave a brief statement:

In the guilt phase of the trial, there wasn't a lot we could do.  We've been preparing for what we expect will be the penalty phase.

What's needed is to humanize the client, to show he's not a monster. That's where we've been aiming.  Still, it's not been without trouble. In the months we've been working with Mr. Tsarnaev, it's become clear that he's a narcissistic brat.  Not only did he never deny planting the bomb, he's proud of it. He's told us that America had it coming for its treatment of Muslims. When his brother broached the idea, he couldn't have been more enthusiastic. He thinks the little boy he blew up was just one more infidel.  To make things worse, he was headed toward an arrogant life of White Privilege. He was so spoiled he even wanted to play Little League. Can you imagine?

The reason I'm willing to discuss these things is that I think it's important for lawyers to tell the truth, be fully forthcoming, and not try to hoodwink anyone. I mean, this is about justice, right?"

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