May 2015 Archives

Sharon Cohen has this article for AP on a renewed drive to test the DNA from old rape kits.

In resurrecting old crimes, investigators have detected an alarming pattern: Many rapists are repeat offenders.

In Cuyahoga County, home to Cleveland, about 30 percent of cases that have developed from testing so far are serial rape suspects. One of them, Robert Green, assaulted seven women over nearly a decade as evidence went unprocessed. He pleaded guilty last fall and was sentenced to up to 135 years in prison.

I'm not sure I would have said "alarming."  We have known that for a long time.  The DNA provides irrefutable confirmation, though.

Conviction does not always follow a DNA match, though.  The statute of limitations may have run.  A claim of consent may be hard to refute in a very cold case.

"It's great entertainment on television that in one hour's time, we have a crime, we take the sample, we get a `hit,' we arrest the suspect and then he's prosecuted and off to jail," says Doug McGowen, coordinator of Memphis' Sexual Assault Kit Task Force. "That's just not the case, clearly."

The New Nationwide Crime Wave

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Heather MacDonald has this op-ed in the WSJ with the above title.  The subtitle is "The consequences of the 'Ferguson effect' are already appearing. The main victims of growing violence will be the inner-city poor."  Here are the concluding paragraphs:

Contrary to the claims of the "black lives matter" movement, no government policy in the past quarter century has done more for urban reclamation than proactive policing. Data-driven enforcement, in conjunction with stricter penalties for criminals and "broken windows" policing, has saved thousands of black lives, brought lawful commerce and jobs to once drug-infested neighborhoods and allowed millions to go about their daily lives without fear.

To be sure, police officers need to treat everyone they encounter with courtesy and respect. Any fatal police shooting of an innocent person is a horrifying tragedy that police training must work incessantly to prevent. But unless the demonization of law enforcement ends, the liberating gains in urban safety over the past 20 years will be lost.

Bill Otis on MSNBC

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Bill will be on the MSNBC program "Up with Steve Kornacki" at 9:00 a.m. EDT tomorrow discussing the Nebraska repeal.

That's 6:00 a.m. here on the Left Coast.  I think I'll Tivo it.
Nebraska's Attorney General believes the repeal is unconstitutional to the extent that the legislature modifies existing sentences.  Meanwhile, Grant Schulte reports for AP:

The attorney general's announcement came one day after state Sen. Beau McCoy announced the formation of a new group, Nebraskans for Justice, which will look into a citizen-led ballot initiative to reinstate capital punishment.

The state's referendum process allows citizens to suspend a law if they can collect signatures from 10 percent of Nebraska's registered voters in the 90 days before the law goes into effect.

Death penalty supporters also have the option to gather signatures from 5 percent of registered voters, which would place the issue on the ballot but wouldn't keep the law from going into effect.

In either case, voters would decide the death penalty's fate during the next statewide election in 2016.

McCoy said he would prefer a third option that would give organizers more time: a petition drive for a constitutional amendment to restore the ultimate punishment.

I Googled "Nebraskans for Justice," and it appears that name is taken, so they might need a different name.

News Scan

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Measures to Fix Prop. 47 Held Back in Assembly:  Two measures aimed at restoring the opportunity to charge firearm theft and the possession of date rape drugs as felonies, after both crimes had been downgraded to misdemeanors under California's Proposition 47, were held back Thursday in the California Assembly.  Melanie Mason of the LA Times reports that AB 150, which would have made the theft of a firearm valued at $950 or less a felony, and AB 46, which would have made it a felony to possess date rape drugs with intent to commit sexual assault, did not pass the Assembly Appropriations Committee.  However, a similar date rape drug bill, SB 333, did pass the Senate Appropriations panel.

TN City at Risk for Biker Gang Violence:  The Bureau of Alcohol, Tobacco, Firearms and Explosives say that Chattanooga, Tennessee, is at an increased risk for motorcycle gang violence, following the May 17 shootout in Texas that resulted in the deaths of nine biker gang members.  Shelly Bradbury of the Times Free Press reports that the brawl at the Twin Peaks restaurant in Waco, Texas, has intensified clashes between rival outlaw biker gangs, and more of them are out on the roads now.  Chattanooga's location in the South, on the way to several major cities, means that many outlaw bikers will likely ride through.  The city's police department has confirmed that there are at least 10 active biker gang members in the area, who are heated rivals with the Waco gang members.

Lawsuit Seeking Probe of Ferguson Shooting Back in Court:  A lawsuit seeking to independently investigate county prosecutor Robert McCulloch's handling of the grand jury proceedings in the Ferguson police shooting of Michael Brown last year is back in court.  The AP reports that the lawsuit, filed by an activist, alleges that the grand jury's decision not to indict Darren Wilson in the shooting was "inappropriately influenced by McCulloch's desire for Wilson not to face charges."  St. Louis County judge Joseph Walsh III will continue hearing the case.

Cuba Off U.S. Terror List:  Cuba has been officially removed from the United States' list of countries that sponsor state terrorism after 33 years, opening up the possibility for the two nations to fully renew diplomatic ties.  Kevin Liptak of CNN reports that the Obama Administration announced in April of the recommendation for Cuba's removal from the list, and the 45-day window in which Congress could have blocked the move is closed.  Many lawmakers are critical of the president's decision, accusing him of cozying up to a "brutal dictatorship."  Iran, Sudan, and Syria still remain on the list as countries that are state sponsors of terror.

Adrianne Haslet-Davis, a survivor of the Boston Marathon bombing, has this essay in Time with the above title.

I hadn't put a lot of thought into the death penalty until I was lying on a sidewalk on Boylston Street two years ago. There, then, I believed that I was going to die and that my husband was already dead. But we're still alive. I lost my leg below the knee; both of his legs were wounded. We are lucky.

When I woke up in the hospital, I decided not to use the name of the person on trial for the crimes against the two of us and more than 260 other people, including four murder victims, one of whom was 8 years old. Part of posttraumatic stress disorder is the feeling of losing control: one minute you're holding your husband's hand in beautiful, sunny Boston; the next, your life is changed forever. The killer never wanted to learn my name, so why should I learn his?

And I also decided early on that the death penalty was the verdict that I wanted for him. I believe in my heart of hearts that he knew exactly what he was doing the moment before he did it, and possibly months before that. Among other horrific charges, he used a weapon of mass destruction to intentionally harm and kill people.

There is another essay in Time that has numerous misleading assertions in it that I will refute when I have time.

Rand Paul, We Hardly Knew Ye

Sen. Rand Paul is running for the Republican nomination for President, but sounds to me more like Bernie Sanders or Jesse Jackson.  Whenever he speaks about crime and punishment, he seems to view the criminal as the victim and the law as the oppressor.  He would eliminate all federal mandatory minimum sentencing  -- sponsoring a bill so radically pro-criminal that its co-sponsor, then-Senate Judiciary Chairman Pat Leahy, refused to bring it up in his own Committee. Apparently, even liberal Democrats wouldn't touch it.

If Sen. Paul supports the death penalty, I've been unable to find out about it.  His position seems to be that juries are insufficiently trustworthy, a stance virtually always associated with abolitionism. His views on what needs to be done to combat terrorism are also out of the mainstream.  He wants to block, not merely the Patriot Act's provision for bulk data collection, but the entire Act.  

Not for nothing does the Real Clear Politics poll average have him running in single digits, behind  Bush, Walker, Rubio, Huckabee and Carson. 

Two very different Washington Post columnists, Dana Milbank and Jennifer Rubin, recently explained why Paul is all but finished as a candidate.  For those interested, their pieces are here and here.
Alexandra Petri has this column in the WaPo on what crooked soccer executive Chuck Blazer (who has already pleaded guilty) chose to do with his ill-gotten gains.  For background on the more general story, see this article in the WSJ.

These international stories often involve questions of the reach of U.S. law.  Devlin Barrett, Christopher Matthews, and Aruna Viswanatha have this story in the WSJ.

Disparate Impact

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This story by Justin Freiman at HLN has some food for thought for persons concerned about disparate impact of government policies:

Violent crime hits people with disabilities more than twice as often as people without disabilities, according to a study just released by the Bureau of Justice Statistics.

The federal study shows that in 2013, the rate of violent crime against persons with disabilities was 36 per 1,000. The rate of violent crime against persons without disabilities in 2013 was 14 per 1,000.
As we have noted many times on this blog, getting tough on crime was a major factor in the dramatic reduction of crime during the 1990's and 2000's, and those who have forgotten history and seek to repeat it put all of us in danger.  But they put persons with disabilities in even greater danger.

Mass Incarceration, or Not Enough?

Academia, the defense bar, and others in the pro-crime lobby ceaselessly and loudly tell us that the amount of incarceration in this country is too high.  They show much less interest in talking about the amount of crime.  When they can be dragooned to say something about it, it's generally to mumble that, yes, well, crime has been falling, and yes, that's kind of a good thing, but (ready now?) taking people who commit crime off the street has almost nothing to do with the fact that we have less crime.

Yes, really, they say that

This day, and for the past several weeks, Baltimore has been teaching the opposite lesson, and the deadly tuition for it is being paid by the very people liberals claim to want to help.  As Rich Lowry writes in Politico:

The Baltimore Sun ran a headline (since changed) that had the air of a conundrum, although it isn't very puzzling, "With arrests down in Baltimore, mayor 'examining' increase in killings." According to the paper, arrests have dropped by about half in May. The predictable result is that violent crime is spiking.

The implication is clear: More people need to be arrested in Baltimore, not fewer. And more need to be jailed. If black lives truly matter, Baltimore needs more and better policing and incarceration to impose order on communities where a lawless few spread mayhem and death.

Former House Speaker Dennis Hastert has been indicted on charges of money structuring and lying to the FBI.  The indictment was returned in February and announced today.  The story is here.  Essentially, the allegation is that Hastert paid hush money, in cash, to an unnamed individual to keep that person from disclosing "past misconduct."  He withdrew the cash in amounts designed to avoid federal bank reporting requirements.

Hastert is entitled to the full presumption of innocence.  Whether he is actually innocent, I have no idea.  My experience is that federal grand juries do not return indictments on whim.

The reason I mention this case now is to rebut two arguments I frequently see. One is that the money structuring and false statements statutes are just sprawling overkill, a tool of power-mad prosecutors, and have nothing to do with behavior an ordinary person would understand to be wrong.  The second is that non-violent crime simply isn't all that serious, and that punishing it with imprisonment is just a waste of taxpayer money.

If the allegations of the indictment turn out to be true, it calls both arguments into question. If a man who wields the enormous power of the Speaker of the House built his career on years of concealment, deceit and payoff's, punishing that  -- and punishing it with at least some incarceration  --  may or may not be harsh. But it is not a waste of money.

The Soccer Indictments

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I know little about soccer and even less about the FIFA indictments announced yesterday by Attorney General Loretta Lynch.  This story in the NYT suggests that DOJ saw rampant graft and is determined to impose criminal penalties.

This is not a conventional case to say the least, and undoubtedly warrants thinking about, both in terms of what the Department is doing and what is failing to do while it pursues this case. But I thought one cartoon in the New Yorker was pretty funny one way or the other.

What Happened in Nebraska?

The country as a whole continues to support capital punishment by close to 2-to-1. It's extremely unlikely that the citizens of Nebraska support it less than the national average; if anything, in a conservative and Republican state, support is likely to be considerably higher.

But this week, Nebraska's unicameral legislature abolished capital punishment in the state.  Why?

I think there are several reasons.  Each deserves more discussion than I give here, but I'm going to run through them quickly while the story is still fresh.  I do this with all the modesty due from someone who lives on the East Coast, a goodly distance from the Cornhusker State.
Answer:  You get more murder.

Not that this should, or does, surprise anyone.  The campaign to portray the police as a Nazi (and largely racist) occupying army has been going great guns since its most recent, if later debunked, inception with the "Hands Up, Don't Shoot" hoax in Ferguson, Mo.

The original narrative there was that a crypto-fascist white cop, Darren Wilson, rousted an innocent, if not scholarly (remember the picture with the cap and gown?) black teenager, Michael Brown.  Even though Brown hadn't done anything (except, ummm, rob a store a few minutes earlier), and peacefully complied with Wilson's snarling demands to surrender (hence the "Hands Up" part), Wilson coldly shot him dead. Indeed, one of the hyped stories was that Wilson, after disabling Brown with the first few shots, stood over him pupping round after round into his back.

That this was a pack of lies didn't matter then and  --  tellingly  -- hasn't mattered since.  The new "Civil Rights Movement" was born.  What "civil right" inheres in attempting to deny policemen the chance to do what any of us in that situation would have done, and what Darren Wilson did  --  use force in self-defense  -- remains unclear, at least to me.  I do, however, understand the glittering cultural and political uses of the narrative, its mendacity to one side.

One such use is to bring attention to what has sometimes been abusive police behavior, and that is all to the good.  But there's something bigger, more sinister, and much quieter (so far as the mainstream media would tell you) right behind it.
With no votes to spare, the Nebraska legislature overrode the Governor's veto, and its bill abolishing the death penalty became law.

This is an unwise decision, for reasons noted many times on this blog.  In some ways, however, it makes little practical difference; Nebraska had executed a grand total of three convicts in the last fifty years.  In that sense, the legislature abolished what was barely there anyway.

Still, the decision has moral consequence  --  so much so that, in my view, the voters should pass on it themselves, as Oregon voters did in both the general elections of 1978 and again in 1984 (the latter to effectively overrule a state Supreme Court decision that invalidated the state's death penalty statute).  The people of California also voted to retain the death penalty in the 2012 election, despite its costs and a well-financed (and deceptive) campaign against it.

The voters should have the last say, and I hope Nebraska law provides them a way to get it.

[UPDATE:  Nebraska citizens do, in fact, have the ability to repeal the death penalty abolition bill by referendum].

News Scan

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Federal Appeals Court Refuses to Lift Immigration Hold:  A request from Justice Department lawyers allowing President Obama to enforce his immigration actions pending appeal has been denied by a federal appeals court.  Ariane de Vogue of CNN reports that the decision, a victory for 26 states that have challenged the president's executive actions, means that "eligible undocumented immigrants will be unable to apply for the programs aimed at easing deportation threats."  Lawyers for the Justice Department and the White House are evaluating the ruling together to determine the next steps.

Taliban 5 Free to Travel Soon:  The five leaders of the Taliban traded one year ago for Sgt. Bowe Bergdahl and under heavy supervision in Qatar ever since, are approaching the end of their terms for supervised release and could be free to travel as early as Monday.  Fox News reports that the Obama administration has discussed extending the security measures for the "Taliban 5" with Qatari officials, but "it's unclear if any restrictions will remain in place after the end of the month."  Congressional lawmakers are concerned that the former Guantanamo detainees will rejoin the battlefield in Afghanistan.  In March, a government official revealed that at least three of the five members have tried reconnecting with their former terrorist networks.

Shooting Spree at ND Wal-Mart:  A North Dakota Wal-Mart Supercenter was the scene of a shooting early Tuesday when a U.S. airman opened fire with a handgun inside the store, killing one worker and injuring another before killing himself.  The AP reports that 21-year-old Marcell Willis, an airman stationed at the Grand Forks Air Force Base located about 12 miles west of the Wal-Mart, has no known connection to any of the victims.  Law enforcement says that at this time, Willis' motive is unknown.

Tougher Punishment for Child Porn Offenders:  New York state Senator Tim Kennedy has introduced legislation that would toughen the penalties for those in possession or in promotion of child pornography, increasing the maximum jail time from four years to seven.  Katie Gibas of Time Warner Cable News reports that Kennedy and law enforcement officials emphasize the necessity of stiffer penalties for such offenders because "up to 40 percent of criminals arrested for child pornography have also personally victimized a child."  Kennedy is confident the legislation will be approved.

Crime Spike in NYC Tourist Areas:  Shootings and murders are up in New York City, spilling over from outer boroughs to Manhattan tourist areas.  Juliet Papas of CBS reports that Mayor Bill de Blasio believes that gang-on-gang crime is to blame for the spike, but former FBI agent and NYPD sergeant Manny Gomez says that the upswing in violence "gives us pause to believe there is something that is just not right in the city's policing system right now."  Popular tourist spots in the city, such as Radio City Music Hall's area of Midtown North Precinct, have seen murders increase 28.6 percent, while robberies in Central Park are up 125 percent.

FIFA Officials Indicted by US:  Fourteen world soccer leaders, including officials from the international Federation of Football Associations (FIFA), have been charged by the U.S. with racketeering, bribery, money laundering and fraud, revealed in a 47-count indictment from the Justice Department.  Michael E. Miller and Fred Barbash of the Washington Post report that the allegations involve "kickbacks" to FIFA officials by sports marketing executives and companies, and bribes in connection with both the selection of the 2010 World Cup's host country and FIFA's presidential election in 2011.  Four of the accused have already pleaded guilty of the charges.

The John Doe Murderer

Pseudonyms such as "John Doe" are sometimes used in court cases, usually to protect the innocent.  The Ninth Circuit recently issued an opinion in a capital case in which it referred to the murderer as John Doe, supposedly to protect him from victimization within prison.

But anyone who wants to know the name of the perp can find out easily.  Here are the first two paragraphs of the opinion from March 31:

In 1984, a house in California was burglarized and a number of items were stolen. K.H. and M.H. resided there with M.H.'s young children, a live-in babysitter, L.R., and her daughter. Petitioner John Doe,1 who was living at the time in a vacant house adjacent to the property, was arrested in connection with the burglary, but then released.

Soon after, while K.H. and M.H. were not at home, their house was burglarized again. L.R. was murdered, having been beaten, stabbed, and strangled. Her body was found supine on the bed in the master bedroom, with her hands bound behind her back. She was naked from the waist down, with her legs open, and a vibrator near her body. A number of items were stolen.
Go to Lexis, limit to California, and search for "babysitter & strangled & vibrator" and the California Supreme Court's opinion on direct appeal, with the perp's real name, pops up.  If you don't have Lexis or one of its competitors, the same can be done with Google Scholar case law.

Today the Ninth Circuit denied rehearing en banc and reiterated its reasons for the "John Doe."

Will the U.S. Supreme Court take the case?  It's an uphill battle to get them to take a pre-AEDPA, fact-bound, ineffective assistance case, but it's not out of the question.  The opinion is written by the frequently reversed Judge Reinhardt, and that's always a plus.

The Nebraska Override Vote

Kent noted that the Nebraska legislature is considering whether to override the Governor's veto of a bill abolishing capital punishment.  Kent observes that death penalty retentionists would advance their cause by proposing solutions to the practical problems in carrying out executions, prominently among them manufactured procedural delays in post-sentence litigation.

I suggest that Nebraska legislators ask themselves this:  Do we, and do the people of this state, really want a future jury never to be able to impose the death penalty? Never, no matter what the facts?

When Tsarnaev strikes and shreds a little boy to bleed to death in his father's arms, do we want never?

When McVeigh strikes, and wipes out 19 toddlers in the day care center, do we want never?

When an ISIS wannabe strikes an elementary school and starts slitting throats, do we want never?

When a psychopathic killer already serving life strikes in prison and kills his guards, do we want never?

When you buy "never," you buy a morally disarmed future you cannot possibly know. 
AP reports that Nebraska Governor Pete Ricketts has vetoed a bill to repeal the death penalty that passed the one-house legislature 32-15.  He needs to change three votes to have his veto sustained.

But some lawmakers said they still believed the veto could be sustained -- and at least one senator who previously voted for the repeal said Tuesday he had changed his mind.

"You wouldn't see an effort like this if all hope was lost," said Sen. Beau McCoy, an Omaha Republican who supports capital punishment.

Sen. Jerry Johnson, a Republican who voted for the repeal, said he decided to switch votes because he believes the new governor's administration needs more time to carry out an execution. Johnson said he took calls all weekend from constituents who support the death penalty.
For opposing repeal efforts nationwide, it is important that supporters of the death penalty take an active stance in pushing reforms, not just opposing repeal.  The opponents are getting their swing votes with the argument that we aren't enforcing it anyway, so it's just a waste of money.  The answer must be to push the reforms that will get it enforced.

One simple reform would speed things up substantially in states that have not yet reformed their successive petition rules.  Adopt the rule endorsed by a plurality of the Supreme Court in Kuhlmann v. Wilson (1986) that no prisoner will get consideration of a second collateral review petition unless he supplements his petition with a colorable showing of actual innocence.

News Scan

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Baltimore's Deadliest Month in 15 Years:  Over the weekend in Baltimore, 29 people were shot - nine of them fatally - in what has become the city's deadliest month since 1999.  Fox News reports that violence has been reported in every part of the city and no neighborhood is immune.  In the month of May alone, 35 people have been murdered, with a total of 108 homicides for the year.

Border Still Wide Open:  Border Patrol agents have been trying, in vain, to stop the flow of illegals but "open border initiatives" have allowed for the continuous flow of illegal immigrants and drugs across our southern border with Mexico.  Bob Casimiro, former executive director of Massachusetts for Immigration Reform, has this piece in the Bangor Daily News describing two Arizona groups, the Arizona Border Defendants and the Arizona Border Recon, trying to secure the border by "augmenting what the Border Patrol does."  It is estimated that only 30 percent of illegal aliens that cross the border are apprehended.

Death Penalty for Sex Traffickers?:  A Utah lawmaker has proposed legislation that would extend capital punishment to child-sex traffickers.  Robert Gehrke of the Salt Lake Tribune reports that Rep. Paul Ray, who sponsored the measure that reinstated the firing squad as the state's backup execution method, believes that sex traffickers need to face harsher punishment with a stronger deterrent effect.  Civil-liberties groups oppose the measure, claiming that the death penalty will not deter child-sex traffickers.

Cleveland Agrees to New Rules for Police:  Under an agreement with the Justice Department, the city of Cleveland will have its police department overseen by an independent monitor and require its officers to adhere with strict new rules on the use of force.  Sari Horwitz of the Washington Post reports that the agreement, followed Justice Department findings that the city's police "engaged in unnecessary and excessive use of force," requires oversight by a community police commission and a mental health response advisory committee.  The agreement is court-enforceable.

B.B. King's Death Investigated As Homicide:  A homicide investigation is underway in the death of blues legend B.B. King, whose two daughters have filed affidavits alleging that he was intentionally poisoned.  Justin Wm. Moyer of the Washington Post reports that the late musician's daughters, Patty King and Karen Williams, believe that Patricia Toney, King's longtime business agent who has the power of attorney in this case, may be responsible.  King died at the age of 89 on May 14 and the results of his autopsy, which was performed on Sunday, will be available in approximately eight weeks.

It's really convenient to be able to retrieve online information about your taxes, Social Security earning record, health information, and all kinds of important data.  But there's a catch.  John McKinnon and Laura Saunders report for the WSJ:

The Internal Revenue Service said identity thieves used its online services to obtain prior-year tax return information for about 100,000 U.S. households, a major setback for the agency that is charged with safeguarding taxpayers' privacy.

The IRS said criminals used stolen Social Security numbers and other specific data acquired from elsewhere to gain unauthorized access to the tax agency accounts. About 100,000 more attempts were unsuccessful, the agency said.

The Case Against PowerPoint

Off-topic but priceless, Katrin Park has this modest proposal in the WaPo.  My favorite slide from this presentation is the Gettysburg one, copied after the break.
The US Supreme Court took up two criminal cases today.  The first is Foster v. Humphrey, No. 14-8349, a Georgia capital case in which the defendant was convicted of the murder of a 79-year-old widow, Queen Madge White.  The evidence showed she had also been sexually molested with a salad dressing bottle.  The claim is racial discrimination in use of peremptory challenges, i.e., a Batson v. Kentucky claim.

The State's Brief in Opposition is here.

The Court also took up a federal case, Lockhart v. United States, No. 14-8358.  The question relates to sex offenses triggering a mandatory minimum under federal sentencing law.

The Court decided three civil cases.

Generally in May and early June the Supreme Court announces opinions only on Mondays (and the Monday-like Tuesday after Memorial Day), so we expect opinions again on Monday, June 1.

A Pause to Remember, Part II

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There are many nearly unbelievable stories of bravery to be shared on Memorial Day, but this one, related by Scott Johnson on Powerline, stood out to me.

Big for his age at 14, Jack Lucas begged his mother to help him enlist after Pearl Harbor. She collaborated in lying about his age in return for his promise to someday finish school. After training at Parris Island, he was sent to Honolulu. When his unit boarded a troop ship for Iwo Jima, Mr. Lucas was ordered to remain behind for guard duty. He stowed away to be with his friends and, discovered two days out at sea, convinced his commanding officer to put him in a combat unit rather than the brig. He had just turned 17 when he hit the beach, and a day later he was fighting in a Japanese trench when he saw two grenades land near his comrades.

He threw himself onto the grenades and absorbed the explosion. Later a medic, assuming he was dead, was about to take his dog tag when he saw Mr. Lucas's finger twitch. After months of treatment and recovery, he returned to school as he'd promised his mother, a ninth-grader wearing a Medal of Honor around his neck.

The makings of a riot had come together Saturday night in light of the acquittal of a Cleveland policeman on charges of voluntary manslaughter.  Some violence had already begun, as I noted here.

But this time, there was a difference.  Because protection of citizens is apparently taken more seriously in Cleveland than in Baltimore, the police did not retreat. Instead, they were at the ready.  Paul Mirengoff has the story:

[T]he Cleveland police declined to tolerate lawlessness. Paula Bolyard of PJ Media reports:

Cleveland police were taking no chances in the wake of the acquittal of police officer Michael Brelo, going to great lengths to ensure that Saturday afternoon's peaceful protests didn't evolve into violent riots like Baltimore and Ferguson have experienced in recent months.

In addition to having the National Guard on standby, police followed protesters through the streets and arrested anyone who acted violently or refused to obey police orders to disperse. A total of 71 people were arrested. . . . 

A Pause to Remember

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Let us take a moment today to remember those who gave their lives in defense of freedom.  Without their brave and selfless sacrifices, the world would be a very different and far less free place than it is today.

Just as important is passing on our traditions and values to succeeding generations.  In this photo, Scouts place flags on graves at the Cypress Hills National Cemetery in Brooklyn, New York.  Click on the photo for a larger view.
I asked here, in the aftermath of the Baltimore charges against six police officers, whether the mob  --  the one that had been burning, looting and rioting  --  would tolerate an acquittal.

Of course we don't know yet.  But there was an acquittal yesterday in a case in Cleveland where a white officer was charged with voluntary manslaughter for firing repeatedly into a car containing two unarmed suspects, killing both.

The aftermath of that acquittal does not create grounds for great optimism.  The story is reported in the Toronto Sun.  It's titled, "Cleveland erupts into riots after cop found not guilty in shooting."

As I predicted, the point is not "accountability."  The point is not "visibility"  -- nothing is more visible, and little is better covered, than the homicide trial of a policeman. The point is not "due process for everyone."  

The point is that The Cops Are Satan.  There's not a whole lot more to it than that.

The "Broken" Criminal Justice System

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We keep hearing from the sentencing "reform" movement that our criminal justice system is broken.  We heard it once more today in an op-ed in the NYT.

Is it true?  Is our criminal justice system broken?

I stumbled across the graph below doing some research.  Judge for yourself.  

My own view is easy to state.  The claim that the criminal justice system is broken is not just misguided or poorly informed.   It's a point-blank lie.  The number of victims of violent crime aged 12 and over, per 1000 population, has dropped by two-thirds in one generation.  That is a spectacular success by any conceivable measure.  Whatever we're doing, we should do more of.

So Long to the False Arrest Charges

Apparently the Baltimore State's Attorney read Crime and Consequences before she met with the grand jury. Very good. It might have been better, though, if she had read it before her earlier, courthouse steps carnival announcing charges against six city police officers.  

Although she originally made a point of the supposed illegality of Freddie's Gray's arrest, we now see that false arrest (or false imprisonment, as it is put) charges against the arresting officers have disappeared.  The prosecutor gives no explanation. But this Reason article does:

Of the criminal charges proposed by Marilyn Mosby, the state's attorney for Baltimore, in connection with the death of Freddie Gray, three are notably missing from the indictments approved by a grand jury today. The Washington Post reports that "charges of false imprisonment against three of the officers are no longer part of the case." That change presumably reflects the dispute over whether the knife Gray was carrying, which was the official justification for his arrest, qualified as an illegal switchblade.

Judging from the way police described Gray's knife ("a spring-assisted, one-hand-operated knife"), it did not fit the state's definition of a switchblade (as Mosby noted) and probably did not fit the city's definition either. But the latter point--which Mosby did not publicly address, even though Gray was charged with violating the city ordinance--is open to debate, which suggests that the officers who arrested him might reasonably have believed the knife was illegal. If so, they could not be convicted of false imprisonment, since to arrest Gray they needed only probable cause to believe he had broken the law.

News Scan

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Police Officer Killed Hours Before Maternity Leave:  An Omaha police officer was shot and killed by a fugitive on Wednesday, just hours before she was to go on maternity leave.  Fox News reports that 29-year-old Kerrie Orozco was part of the city's fugitive taskforce and had closed in on 26-year-old Marcus Wheeler, a fugitive with a felony arrest warrant who then opened fire at Orozco and other officers.  Orozco had given birth to a premature baby girl in February, postponing her maternity leave until the baby's release from the hospital, which was the day after she was killed.  The shooting suspect was also fatally shot.

Transgender Inmate's Surgery Delayed:  Hours after a California panel recommended parole for convicted killer Michelle-Lael Norsworthy, a federal appeals court delayed his sex reassignment surgery, making it unlikely that he will receive prison-funded surgery before his release.  Don Thompson of the AP reports that the state contested a lower court judge's ruling that Norsworthy receive the surgery as soon as possible, but now it could be delayed for months while the appellate court considers the case.  Corrections officials are "pleased that the delay will let the appeals court review the merits of the state's appeal."  Norsworthy's attorneys argue that the denial of his surgery amounts to cruel and unusual punishment.

Six Baltimore Officers Indicted:  A grand jury decided to indict all six Baltimore police officers charged in the death of Freddie Gray, allowing the criminal prosecution to proceed.  The AP reports that the officers' attorneys believe that Baltimore State's Attorney Marilyn Mosby should be replaced with an independent prosecutor, arguing the current prosecution as "overzealous."

Two ISIS Recruits Arrested in LA:  Two men were arrested by the FBI in Southern California yesterday, one at the Los Angeles International Airport, on suspicion of terrorism related charges.  Andrew Blankstein of NBC News reports that Muhanad Badawi and Nader Elhuzayel of Anaheim were allegedly planning to travel abroad and join the Islamic State terrorist group, known as ISIS.  Two search warrants were also served in relation to the charges.

Suspect In DC Homicide Charged:  Daron Dylon Wint, suspected of murdering a Washington businessman, his family, and their housekeeper last week and setting their mansion on fire in an extortion scheme, has been arrested and charged with first-degree murder.  Greg Botelho, Mary Kay Mallonee, and Ed Payne of CNN report that Wint was apprehended Thursday while traveling from a Maryland hotel to Washington D.C. in a car with two women alongside a box truck driven by his brother and two other men.  At least $10,000 was discovered during the arrest.  The other five individuals were arrested but have not been charged.  Wint is set to make his first court appearance on Friday afternoon.

This is what happens:

WASHINGTON (WUSA9) -- New, horrifying details are surfacing about what happened inside the Savopoulos mansion near Vice President Joe Biden's house before the murders.

A law enforcement source tell WUSA9's Bruce Leshan that detectives now believe the killers tortured the 10-year-old boy, Phillip Savopoulos, in the effort to get money out of his father.

Police believe the killers were in the house for about 10 hours, and that they successfully forced the Savopoulos family to get them tens of thousands of dollars. Someone may have actually had to go out and get the cash while the rest of the family and their housekeeper were held hostage.

The prime suspect in this grotesque crime is one Daron Dylan Wint.

Was Wint a stranger to the criminal justice system?  Not exactly.

The New York Post carries this opinion piece on the nature and benefits of "broken windows" policing in New York City.  It's written by George Kelling, co-author of the original "Broken Windows" strategy and the leading authority in the field. Surprisingly, it has good news for both those of us serious about stanching crime, and those viewing themselves as friends of sentencing "reform:"

[I]ndiscriminately attributing all of the ills displayed in recent events in cities to Broken Windows risks taking us back decades in our attempts to improve public safety and quality of life for all citizens....

There's every reason to believe de-policing high-crime minority neighborhoods would be a disaster. We tried it in the past, and it's taken decades for us to regain control of public spaces, and even now some neighborhoods remain under threat.

No surprise there, but this was eye-opening:

[W]hile some have argued that Broken-Windows policing results in higher incarceration rates, research indicates that police crime-prevention methods, including Broken Windows, have actually reduced mass incarceration.

In New York City, both prison commitments and jailings declined substantially between 1992 and 2013 -- prison by 69 percent; jailing by 45 percent.

A:  You had to ask?

The Daily Beast has the story, direct from Baltimore.  The numbers tell a sorry tale:

Baltimore logged its 100th murder of the year on Thursday morning, hitting the milestone after recording more than a murder per day in the month following Freddie Gray's death.

The massive increase in homicide, shootings, and violent crime comes as arrests have plummeted to their lowest levels all year. In the week before Gray died, 682 people were arrested. In the last week of available data, 339 people were arrested.

The Western District, where Gray was arrested, is the center of the crime boom. Homicides are up 200 percent compared to this time last year; non-fatal shootings have risen 800 percent; robberies of varying types 100 to 300 percent.

Despite more crime, there are far fewer arrests in the district. In fact, at least three days in May saw no arrests.

Forbes ranked Baltimore the seventh most dangerous city in the country. My strong guess is that, this year, it will be moving "up."

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NE Bill Abolishing Death Penalty Approved:  A bill abolishing the death penalty was approved on Wednesday by Nebraska's legislature with a 32 to 15 vote.  The AP reports that Governor Pete Ricketts promises to veto the bill, although there may be enough votes in favor of the bill to possibly override a veto.  

Parolee Found Guilty of Investigator's Murder:  Paroled sex offender Randy Alana was convicted Wednesday of murder, second-degree robbery, auto theft and grand theft for the 2013 killing of Sandra Coke, a federal defense investigator from Oakland.  Henry K. Lee of SF Gate reports that the jury deliberated for less than three hours before finding Alana guilty.  Alana, who had previously dated the victim and was the father of her teenage daughter, was out on parole and being tracked by authorities with a GPS anklet in August 2013 when he strangled Coke and dumped her body in Vacaville, because she called his parole agent.

Man Who Landed Gyrocopter At Capitol Faces Nine Years:  The man who landed his one-man gyrocopter on the lawn of the U.S. Capitol last month to protest campaign finance could face over nine years in prison.  Warner Todd Huston of Breitbart reports that Douglas Hughes, a mail carrier from Florida, flew through restricted airspace on April 15 before landing on the west lawn of the Capitol building, and was arrested immediately.  He has been indicted on six charges by a federal grand jury, including violation of national defense airspace and violation of aircraft registration requirements.

Bill that Loosens Execution Restrictions Passes House:  A North Carolina bill, which passed the House and is under consideration in the Senate, would permit other medical professionals to oversee executions, not just licensed physicians.  The Daily Tar Heel reports that House Bill 774 was created in response to physicians' growing unwillingness since 2007 to participate in executions, when the North Carolina Medical Board banned providers from giving lethal injections.  Although the state Supreme Court ruled in 2009 that the board could not revoke physicians' licenses, physicians in the state have still been hesitant.  The bill would extend execution participation to physician assistants, registered nurses, nurse practitioners and emergency medical technicians, but a licensed physician would still be required to pronounce an inmate dead.

Suspect Named In Quadruple Murder:  Police have identified a suspect in last week's quadruple homicide of a wealthy couple, their 10-year-old son, and their housekeeper that occurred in one of Washington D.C.'s poshest neighborhoods, just down the street from the Vice President's residence.  Fox News reports that Daron Dylon Wint, a career criminal whose DNA was found on pizza crust left at the crime scene, is believed to have held the family hostage on the evening of May 13 while coordinating the delivery of $40,000 in cash, then killed them and set their mansion ablaze before fleeing in the couple's Porsche, which was also torched.  Law enforcement believes Wint is hiding out in Brooklyn and have expanded their manhunt.

George Will has a column in today's Washington Post titled, "Capital Punishment's Slow Death."  In it, Will makes three arguments against the death penalty.  All of them are wrong.

Here's how he puts it:

The conservative case against capital punishment, which 32 states have, is threefold. First, the power to inflict death cloaks government with a majesty and pretense of infallibility discordant with conservatism. 

Second, when capital punishment is inflicted, it cannot later be corrected because of new evidence, so a capital punishment regime must be administered with extraordinary competence. It is, however, a government program. Since 1973, more than 140 people sentenced to death have been acquitted of their crimes (sometimes by DNA evidence), had the charges against them dismissed by prosecutors or have been pardoned based on evidence of innocence....

Third, administration of death sentences is so sporadic and protracted that their power to deter is attenuated. And the expensive, because labyrinthine, legal protocols with which the judiciary has enveloped capital punishment are here to stay.

Let's start from the beginning.

Congress is presently debating whether and to what extent to re-authorize bulk collection of telephone records, a key provision set forth in Section 215 of the Patriot Act.  My friend Rachel Brand, a former Assistant Attorney General for the Office of Legal Policy, writes an informative piece about it in the Christian Science Monitor. She notes, among other things:

[T]he question before Congress is not whether to reauthorize or prohibit the bulk telephone records program that has garnered so much attention. It is whether to reauthorize Section 215 itself. This authority was enacted after 9/11 to remedy the problem that officers conducting foreign intelligence investigations of international terrorism and espionage did not have a basic investigative tool available even in ordinary criminal investigations. The telephone records program conducted by the NSA is only one application of that authority. If Congress allows Section 215 to expire, it will not just eliminate that program; it will do away entirely with an essential investigative tool.

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Police Oppose Obama's Military Equipment Ban:  Law enforcement agencies nationwide will no longer be provided with certain military equipment by the federal government under President Obama's executive order.  Genny McLaren of Fox 40 reports that Sacramento County Sheriff Scott Jones calls the ban the president's "latest missive," reinforcing the administration's attitude that "local police and sheriff's departments are incapable of effectively and fairly providing public safety."  The equipment ban includes tracked armored vehicles and a lot of stuff police don't use like 50 caliber weapons and ammunition, certain camouflage clothing, bayonets, weaponized aircraft and grenade launchers.

Report Links Auto Thefts To Realignment:  The Public Policy Institute of California released a report on Tuesday suggesting  the state's AB 109 Realignment law, which released thousands of felons from prison, resulted in increased auto thefts but had no impact on violent crime.  The report, which relies on 2013 data, left out 2014 data reported by the LA Times showing the state prison population increasing due to increased convictions for violent and serious felonies, and also missed the Los Angeles Police Chief's March 24, 2015 statement that violent crime has increased 26% in his city so far this year.

Trove Of Bin Laden Documents Released:  A trove of documents recovered during the raid on Osama bin Laden's compound in 2011 have been released to the public by U.S. Intelligence, revealing Al Qaeda's operations.  Fox News reports that included among the documents are letters, accounting information, and application forms from prospective members.  One document in particular warned that the "motives that led to 9/11 are still there."  The Office of the Director of National Intelligence says they will review hundreds more documents for possible declassification and release.

Development Of San Quentin's Land Debated:  The $18 million project to demolish and rebuild San Quentin State Prison's boiler house, which is non-compliant with the Bay Area's air emissions regulations, is reigniting the debate over whether the aging prison should stay or go.  KTVU reports that a global property strategist says that the land occupied by the prison could sell for "at least a billion," and transform the facility into a revenue generator rather than an economic drain.  Inmates are against the relocation, however, citing their proximity to the courts and tech companies who send in volunteers as their reasons for wanting to stay put.

Bandidos Biker Gang Allied With Drug Cartel:  The Bandidos, one of the biker gangs involved in the shootout at a Texas restaurant Sunday, has been identified by the FBI as a longtime affiliate of the violent Mexican cartel Los Zetas.  Ildefonso Ortiz of Breitbart reports that the Bandidos coordinate drug smuggling operations with international drug-trafficking organizations such as Los Zetas, in which they manufacture, transport, and distribute marijuana, cocaine and methamphetamine.  The gang's ties to the cartels provide them with a steady flow of drugs that "make up the majority of the gangs profits."

Rehab for This Non-Violent Offense?

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Sentencing "reformers" have finally admitted explicitly that their largesse would extend to violent as well as non-violent offenders.  Still, and for obvious PR reasons, they continue to push the line that "reform" (i.e., early release or no incarceration to begin with) is intended principally for "low-level, non-violent" offenders.  Their argument is that (1) we simply can't afford the present level of incarceration, (2) we're overly punitive in any event, certainly compared to Western Europe, and (3) we can use the money saved to focus on "truly dangerous" criminals.

Today brought news of a "non-violent" offense that very likely cost individual victims no more than $50 or $100 each.  Certainly that's a "low-level" sort of thing for which "reformers" would be scandalized that Puritanical nags (like me) would even contemplate prison.  But I am contemplating it indeed, even though to date only civil charges have been filed.  To boot, I think a sentence of ten or twenty years would be just fine.

The WSJ has the story.
At SL&P, Doug Berman extensively quotes a NYT editorial about sentencing "reform" (i.e. letting felons out earlier to do it again, which the great majority will). The quotation starts with this paragraph (emphasis added):

It has been getting easier by the day for politicians to talk about fixing the nation's broken criminal justice system. But when states in the Deep South, which have long had some of the country's harshest penal systems, make significant sentencing and prison reforms, you know something has changed.

Here are a few statistics about how "broken" the criminal justice system is:  

The last time we had a number of serious crimes this low was 1973, or 42 years ago. The last time we had a murder rate this low was 1963, or 52 years ago. The last time we had a violent crime rate this low was 45 years ago.  The last time we had a property crime rate this low was 49 years ago. The last time the auto theft rate was this low was 51 years ago.  In 2013, the most recent year for which figures are available, we had 5,077,242 fewer serious crimes than in the peak crime year at the dawn of the Nineties.  That is more than five million fewer crime victims.

It may well be that, for the drug pushers, child rapists, con artists, thugs, hoodlums, rioters and others who earned the sentences we finally had enough sense to give them, the criminal justice system looks "broken." But on the theory that the NYT had a broader audience in mind, labeling the system "broken" is nonsense bordering on insanity.
Punishment for crime involves both judicial and executive discretion.  The sentence in years (or life) is imposed by the trial court, but where the convict actually is in those years is typically an executive decision.  That may involve which prison he is sent to, whether he is inside or outside prison (i.e., parole), or even which country he is in.

Khalid Al Fawwaz was sentenced today for his part in the 1998 Embassy Bombing plot.  He received three life sentences and a ten-year sentence, concurrent.  And Judge Kaplan added this:

The Court makes the following recommendation to the Department of Justice: The Court is mindful of the fact that defendant may have the ability to apply to the U.S. Department of Justice under the international prisoner transfer program to be allowed to serve some or all of his sentence in another nation. Although a decision on any such application, if one is made, would be up to the Department of Justice, the Court strongly recommends that any such application be denied. The defendant has been convicted of very serious crimes against American citizens. His punishment ought to be served in, and more particularly, always remain under the control of the United States of America.
Now that's refreshing to hear from a federal judge.

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State Supreme Court Overturns Assailant's Sentence:  On Monday, the California Supreme Court struck down the five-year prison sentence of a Sacramento man who beat his children's mother because a trial judge failed to advise the defendant that admitting to a prior conviction could result in a harsher penalty.  Denny Walsh of the Sacramento Bee reports on the high court's decision in People v. Joshua Cross that overturned defendant Cross' sentence.  A week before the court's determination, Cross, released after serving the previous sentence, pleaded no contest to misdemeanor battery and was sentenced to three years of informal probation.

Legal Immigrants Take Back Seat To Illegals:  As the numbers of illegal immigrants seeking legal status under Obama's executive actions increase significantly, the waiting list to enter the U.S. legally is growing longer by the day, with illegal aliens prioritized over immigrants that entered the country legally.  William La Jeunesse of Fox News reports that the waiting list for individuals trying to enter the U.S. legally has reached 4.4 million, exceeding last year's numbers by 100,000.  Some, such as American born Jimmy Gugliotta, who lives in Chile with his Argentinean wife and their children, has been waiting almost two years for his family's visas while illegal immigrants continue to cut in line.

Baltimore Surges with Murders, Shootings:  Following the riots last month, Baltimore has experienced a "dramatic increase in violence," leaving many residents concerned that police officers are hesitant to aggressively respond to the spike in crime.  Christie Ileto of CBS Baltimore reports that 96 homicides have occurred in the city this year, up almost one-third from last year.  A Baltimore police officer said the Freddie Gray case "impacted policing," adding that he could understand why some officers may not want to be proactive during these rocky times.

Judge Alcee Hastings, Living in Sackcloth

In his ten years (1979-1989) as a federal District Judge, Alcee Hastings did "sentencing reform" the old-fashioned way:  He accepted bribes for lower sentences. This is the story in a nutshell:

In 1981, Hastings was charged with accepting a $150,000 bribe in exchange for a lenient sentence and a return of seized assets for 21 counts of racketeering by Frank and Thomas Romano, and of perjury in his testimony about the case. In 1983, he was acquitted by a jury after his alleged co-conspirator, William Borders, refused to testify in court (resulting in a jail sentence for Borders).

In 1988, the Democratic-controlled U.S. House of Representatives took up the case, and Hastings was impeached for bribery and perjury by a vote of 413-3. He was then convicted in 1989 by the United States Senate (also controlled by the Democrats), becoming the sixth federal judge in the history of the United States to be removed from office by the Senate.

But Judge Hastings is a superb politician, and got himself elected to Congress in 1992.  He's still there  --  but as he tells us, just getting by.

Jessica Gresko and Ben Nuckols report for AP:

People in the nation's capital no longer have to show a good reason to get a permit to carry concealed handguns outside their homes and businesses.

The District of Columbia's police chief said Tuesday that she's dropping this requirement, a centerpiece of the city's handgun-control legislation, after a federal judge issued a preliminary injunction against it.

How about being in a jurisdiction where the murder rate is many times higher than the national average and among the highest of all American cities?  Doesn't everyone in the District have a "good reason"?

Mitigating in whose opinion?

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I have downloaded the Tsarnaev jury verdict form from PACER and uploaded it here. There are several interesting things about this form, but one that I particularly want to note is the deficiency in what the jurors are asked to find about "catchall" mitigating factors.

The Supreme Court has mandated since 1978 that the defendant can proffer to the jury any aspect of his character, background, or record that he wants to argue as mitigating.  When he does, there are actually three decisions to be made.  (1) Is the factor factually true?  (2) If so, is it actually mitigating? (3) If so, how much weight should it be given?

It seems to me that there is not enough attention given to the second step.  Supposedly mitigating factor 16 on page 18, for example is, "Dzhokhar Tsarnaev's mother facilitated his brother Tamerlan's radicalization."  Ten jurors found that factually true.  How many considered it mitigating?  Did all 10 understand they could find it true and still say "So what?  That's not mitigating."

These kinds of failures to make clear to the jury the nature of what they are supposed to be deciding were held to be unconstitutional when they ran against the defendant many years ago.  But ambiguities and omissions that run in the defendant's favor apparently go uncorrected.

The jurors probably get to the right end result in any case.  In the weighing process, jurors may find that a true factor gets zero weight if it is not mitigating.  Still, I would like to see this cleaned up.

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Revenge Attacks Feared After Biker Gang Shootout:  Following a violent brawl between five rival biker gangs at a restaurant in Waco, Texas that left nine dead, 18 wounded and nearly 200 arrested, police are concerned about retaliatory attacks.  Lisa Maria Garza of Reuters reports that the Twin Peaks Sports Bar and Grill erupted in violence on Sunday afternoon, with rival gang members attacking each other with guns, knives, brass knuckles, clubs and motorcycle chains.  The restaurant, which has been a meeting place for biker gangs, has been closed for at least seven days.  No bystanders or police were injured in the incident.

Immigration Court Backlog Reaches All-Time High:  Last summer's surge of illegal immigrants from Central America has culminated to a record high backlog for federal immigration courts at more than 445,000 pending cases.  Molly Hennessy-Fiske of the Washington Post reports that the backlog has increased by 30 percent since the last fiscal year began, overwhelming immigration courts.  The backlog of juvenile cases alone is 68 percent larger than it was before the flood of immigrants occurred last June.

Change US Park Police Mass Arrest Policies:  A proposed $2.2 million settlement of a class-action lawsuit involving the 2002 arrests of hundreds of protestors would change the way U.S. Park Police handle mass protests.  The AP reports that 400 protestors were arrested at the 2002 International Monetary Fund and World Bank meetings in Washington D.C. by the U.S. Park Police, who are responsible for areas in front of the White House and other key security sites.  A group representing protesters called the settlement "a victory for First Amendment Rights."  The changes outlined in the settlement would prevent police from encircling protestors, require particularized probable cause for any protestor arrest, and fair notice before an arrest.

Is Fatal Asthma Attack Murder?:  A Boston jury will decide if Michael Stallings is responsible for the 2012 death of Kelvin Rowell, who died of an asthma attack after fleeing from gunshots fired by Stallings.  Fox News reports that Rowell's asthma attack was so severe that it rendered him comatose for six weeks before he died.  In order to convict Stallings of murder, the jury will have to find that he "acted with premeditation or with extreme atrocity or cruelty."

Felons May Sell Or Transfer Possession of Guns:  A unanimous ruling by the U.S. Supreme Court on Monday held that a convicted felon may request a court to transfer his guns to a third party instead of surrendering them to the government.  Stephanie Condon of CBS News reports that Justice Elena Kagan wrote in the opinion holding that a court is allowed to transfer a felon's weapons to a third party, "as long as the court is satisfied that the recipient will not let the felon use the weapons or direct their use."  The decision in Henderson v. United States could have far-reaching impact on Americans  convicted of felonies.

Opponents of the death penalty have been crowing in recent years about a supposed turn away from it, citing repeals in a few states, including New Jersey.  But those repeals represent failures of representative democracy, as legislatures act contrary to the views of the majority of the people.  They have gotten away with it because crime has not been high on the political radar screen while wars, terrorism, financial crises, and the revamp of the health care system dominated the political scene.

Yet, nine years after repeal, "if Garden State voters have their say, the death penalty will be here to stay," according this press release from the PublicMind Poll at Fairleigh Dickinson University.  "The most recent survey from Fairleigh Dickinson University's PublicMind finds support for the death penalty virtually unchanged from when the same question was asked in 2006."

The release contains this odd statement:  "There is considerably less support among Democrats, people of color, women, and Millennials -- all of whom oppose the death penalty in numbers almost reaching or exceeding a majority."  The "less support" is correct, but the "all of whom oppose" is odd.  A majority of women and a plurality of persons 18-34 are in favor.  A majority of black people are opposed, but no number is given for "people of color," which is not the same thing, especially on this issue.

SCOTUS Opinions

The U.S. Supreme Court issued six opinions this morning.  No Elonis yet, unfortunately.  Here are the criminal and related ones:

Henderson v. United States, No. 13-1487:  When the defendant has been convicted of a felony and can no longer legally possess firearms, and his guns have been seized by the government, "a court may approve the transfer of a felon's guns consistently with §922(g) if, but only if, the recipient will not grant the felon control over those weapons." Unanimous opinion by Justice Kagan, reversing USCA11.

San Francisco v. Sheehan, No. 13-1412:  The case involves police use of force against a mentally ill person who "began acting erratically and threatened to kill her social worker."  A question about the applicability of the Americans with Disabilities Act was dismissed as improvidently granted when the City shifted its position between the certiorari petition (request to take up the case) and the briefing on the merits.  On the Fourth Amendment question, the individual police officers were granted qualified immunity. 

Justice Alito wrote the opinion for six Justices, reversing the Ninth Circuit (and reinstating the decision of District Judge Charles Breyer) in part.  Justices Scalia and Kagan would dump the whole case because they are seriously ticked off at San Francisco for its bait-and-switch on the question presented.  Justice Breyer recused himself.

Coleman v. Tollefson, No. 13-1333:  Indigent plaintiffs can generally file civil suits without paying the filing fee (in forma pauperis), but this privilege is so commonly abused by prisoners that Congress created a "three strikes" rule against IFP status for prisoners who have had three suits dismissed as frivolous.  Is a suit that has been dismissed but has an appeal pending a strike?  Yes.  Justice Breyer wrote the unanimous opinion affirming USCA6.  "The vast majority of the other Courts of Appeals" are wrong.  So much for the "majority view."

Likely next opinion day is the day after Memorial Day.

Academia, Still Stark Raving Mad

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Law eventually will go where elite academia goes, which is why I do occasional entries on the latter. The following story about academia is a classic, so to speak. It's titled, "Columbia Students Claim Greek Mythology Needs a Trigger Warning":

The Greek myth [the Rape of Persephone] has been recounted for thousands of years in hundreds of languages, scores of countries and countless works of art. It's considered a cultural touchstone for Western civilization: a parable about power, lust and grief.

Now, however, it could be getting a treatment it's never had before: a trigger warning.

In an op-ed in the student newspaper, four Columbia University undergrads have called on the school to implement trigger warnings -- alerts about potentially distressing material -- even for classics like Greek mythology or Roman poetry.

"Ovid's 'Metamorphoses' is a fixture of Lit Hum, but like so many texts in the Western canon, it contains triggering and offensive material that marginalizes student identities in the classroom," wrote the four students, who are members of Columbia's Multicultural Affairs Advisory Board. "These texts, wrought with histories and narratives of exclusion and oppression, can be difficult to read and discuss as a survivor, a person of color, or a student from a low-income background."

And no, I am not making this up.  I couldn't make it up.

Former AUSA to Head DEA

I've been so busy with the Tsarnaev death sentence and the Baltimore police prosecution that I am remiss in having failed to report a happy development for the DEA.

The President last week appointed Chuck Rosenberg to be DEA Administrator.  It's a superb choice.  Chuck and I were AUSA's together in the Eastern District of Virginia for several years.  He went on to become US Attorney there (and in Texas).  His most recent post was as chief of staff to another former colleague of mine from EDVA, now-FBI Director Jim Comey.

Like Comey, Chuck is non-ideological and non-political.  I have no idea whether he's a Republican or a Democrat.  He was a tough and fair prosecutor, a straight shooter and a gentleman.  When he was appointed US Attorney, the confirmation vote was unanimous.

I understand from the linked USA Today article that the drugs-are-wonderful lobby is "holding its breath" to see whether Chuck will be an "improvement" on outgoing DEA had Michele Leonhart (also a friend and once a colleague of mine).

I have no doubt Chuck will be an excellent leader for the DEA, just not in the way the drug lobby is hoping for.
I read the WSJ every day, and today's editorial about Dzhokhar Tsarnaev's death sentence illustrates why.  It gets right to the point:

Had Boston Marathon bomber Dzhokhar Tsarnaev been sentenced to life at a federal Supermax prison, his remaining years would have been spent in a tiny concrete cell, 23 hours a day, constantly alone, with barely a sight of the sky and none of the country. As punishment for crime goes, that might have been enough.

But more than punishment was at stake in the case of Tsarnaev...The bombing was no mere criminal act carried out on an especially large scale. Tsarnaev and his brother Tamerlan...carried out an act of war aimed at the institutions and values of American civic life.

The victims were unsuspecting and defenseless, and the damage done will be felt for decades. Think of the Richard family: Bill Richard, the father, eardrums blown and wounded with shrapnel; his wife Denise, who lost an eye; daughter Jane, who lost a leg; son Henry, unwounded but traumatized; son Martin, murdered at the age of eight.

No society serious about its self-defense and preservation can tolerate this.

One of the typical moves for a defense attorney in the sentencing phase of a capital case is to call some of the defendant's family.  This has the effect both of "humanizing" the defendant, and showing the jury the suffering it will cause if it orders his execution.

Some have wondered why Judy Clarke did not call any of her client's family.  The reason is provided in spades by this Time article.  You don't have to read far to see that, as ever, Ms. Clarke knew what she was doing:

Like many observers of the case in Russia, the Tsarnaev family has claimed -- without providing any meaningful evidence -- that the bombing was part of a U.S. government conspiracy intended to test the American public's reaction to a terrorist threat and the imposition of martial law in a U.S. city. "This was all fabricated by the American special services," Said-Hussein Tsarnaev, the convicted bomber's uncle, tells TIME.

No wonder little Dzhokhar is such a piece of work.

Abolitionism Runs Out of Steam

What is left of the moral force of abolitionism  --  the idea that there is never, ever a case where the jury should be able to impose capital punishment  --  in light of the Boston Marathon bombing verdict?

Nothing, as far as I can see.

The major objections to the death penalty were never in the case to begin with: Guilt was certain, race was absent, mental competence not even in question.  It had honest and professional prosecutors, top-flight defense counsel, a seasoned and balanced judge, and ample resources for all.

So what's left of the moral case for abolitionism?

Three arguments I'm able to think of.  None of them works.

Mr. Tsarnaev, Tear Down These Appeals

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One of the arguments against the death penalty for the Boston Marathon bomber was that it would result in years of appeals and collateral review, renewing the anguish of survivors and the families of the dead.

Of course there is an obvious way to avert this problem:  Tsarnaev could waive further review and accept what he earned.

I note that the adverse coverage of the sentence, for example, here and here, never so much as mentions this possibility.  The abolitionist assumption is what it always is: The problem is not the killer.  The problem is us.  He's not the sadist. We are.  Years of review are needed to advance the admittedly tiny hope that our racist, brutish, wahoo, etc., country will come to its senses.

As Kent has noted, it is anything but a foregone conclusion that review will take its usual length.  This is the feds.  McVeigh was executed less than four years after he was sentenced.

And then there's the fact that no one has cited a ghost of a plausible reason to believe the results of the trial or sentencing will be overturned.

Ronald Reagan famously said, "Mr. Gorbachev, tear down this wall."  Perhaps, in the unlikely event those upset with the prospect of further victim suffering are sincere, they will join me in saying, "Mr. Tsarnaev, tear down these appeals."

For once in his young life, perhaps Tsarnaev could show an ounce of decency. 

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Jury Condemns Boston Bomber to Death:  The jury in the trial against Boston Bomber Dzhokhar Tsaenaev has handed down a sentence of death for his role in the 2013 bombings at the Boston Marathon, which killed three and wounded hundreds.  Tsarnaev also killed a police officer days after the attacks.  The AP reports that the jury deliberated for 14 hours over a three-day period before reaching a unanimous verdict.  Tsarnaev reportedly showed no emotion while his fate was read aloud in court.

Amtrak Engineer's Phone Records To Be Searched:  Investigators probing Tuesday's fatal Amtrak derailment have obtained a search warrant for cell phone records of the train's engineer, to determine whether he was distracted in the moments that led to the crash that killed eight and wounded dozens more in Philadelphia.  Fox News reports that there are conflicting stories regarding 32-year-old Brandon Bostian's cooperation with investigators.  The engineer's attorney claims that Bostian spoke with police for five hours before he arrived.  Investigators say that they barely spoke with him.  Bostian may face charges as early as Wednesday if Philadelphia's DA's office has sufficient evidence.

Immigration Language Stripped From Defense Bill:  House conservatives voted down a provision outlined in Congress' annual defense policy bill which aimed to help young illegal immigrants enlist in the military.  The AP reports that the issue sparked a heated partisan debate, with Democrats denouncing Republicans for discrimination.  Several Republicans argued that the provision should have never been included in the defense bill in the first place.

Overcrowded Jail Leaves Criminals On The Streets:  Overcrowding in Utah's largest county jail means that fewer criminals are being held and those that are spend very little time inside.  Scott McKane of Fox 13 Now reports that the Salt Lake City Sheriff predicts that the situation is about to get worse, noting that by summer, those who have committed certain offenses will not be booked into his jail at all.  The mayor believes he has a solution and wants to implement a program called Pay for Success, which aims to divert individuals with drug and mental health issues away from jail and into treatment.  Under this plan the provider of treatment is compensated only when the offender has completed the program.

Discretionary Releases Not Tracked By DHS:  The Homeland Security Department's inspector general has released a new report which says that the Department of Homeland Security failed to keep track of the number of times it used prosecutorial discretion to justify releasing illegal immigrants from custody.  Taylor Tyler of HNGN reports that the department's failure to collect and analyze this data means that government funds were likely used inefficiently and national security was compromised.  The report found that at least one agency in DHS, the U.S. Immigration and Customs Enforcement, did collect data regarding prosecutorial discretion, revealing that in FY 2014, the agency recorded 12,757 instances in which ICE officers exercised discretion to release illegal immigrants.

Parolee Found Guilty Murder:  An Atlanta parolee, who strangled his roommate and stole his vehicle to flee to Florida to avoid returning to prison on a parole violation, has been found guilty of murder.  Tyler Estep of the Atlanta Journal-Constitution reports that Tony Mitchell, a four-time convicted felon on parole for robbery, beat and strangled Randy Lewis, whose body was discovered four days later by other roommates.  Mitchell was apprehended 10 days after the crime when he was caught shoplifting at a store in Florida.

No, they do not.  As noted in this post, Timothy McVeigh as executed less than four years after sentence.  He voluntarily gave up one of the many steps, appeal from the denial of collateral relief, but the case went through all the other steps.

Congress has made clear that review of capital cases should be handled expeditiously.  In 18 U.S.C. §3595(a), Congress provided that an appeal from a death sentence "shall have priority over all other cases."

From the date of affirmance of the direct appeal through the Supreme Court, the inmate has one year to file a collateral review motion under 28 U.S.C. §2255.  Again, Congress has provided, "The ... adjudication of any motion under section 2255 by a person under sentence of death, shall be given priority by the district court and by the court of appeals over all noncapital matters."

The federal government has an advantage over states in that there is normally only one round of collateral review, not two.

We need the Department of Justice, if it is going to live up to its name, to insist on prompt completion of these cases and to start frequently taking up writs if these statutes are ignored.
The Boston Herald reports:

U.S. Attorney Loretta Lynch said today in a statement that "Tsarnaev coldly and callously perpetrated a terrorist attack" in Boston.

"We know all too well that no verdict can heal the souls of those who lost loved ones, nor the minds and bodies of those who suffered life-changing injuries from this cowardly attack," Lynch said. "But the ultimate penalty is a fitting punishment for this horrific crime and we hope that the completion of this prosecution will bring some measure of closure to the victims and their families.  We thank the jurors for their service, the people of Boston for their vigilance, resilience and support and the law enforcement community in Boston and throughout the country for their important work."

I also thought this item in the Herald's story was noteworthy:

Only three of the 12 jurors bought into the defense argument that Tsarnaev was influenced by his older brother Tamerlan. The jurors unanimously agreed that Tsarnaev showed no remorse and they unanimously voted to put him to death.

I said at the time that it would backfire to try what Kent aptly called "remorse-by-proxy."  

Just so.

No Remorse, No Escape

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Once the prosecution pulled back the curtain on the hideousness of the Boston Marathon bombing, I thought Tsarnaev was probably headed for a death sentence. I wrote three weeks ago that his best chance to avoid it lay in taking a big risk  -- get on the stand and say you're sorry:

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.

The defense apparently decided against it; one way or the other, Tsarnaev sat in silence the entire trial, looking (I glean from press reports) mostly indifferent. The best it could do was call a transparent abolitionist zealot, Sister Helen Prejean, to testify that Tsarnaev was, so she claimed, remorseful.

She was effectively impeached on cross-examination, making today's sentence less than a surprise.  There's not much to be happy about in this horrible case, but one thing at least to be satisfied about is that the jury wasn't taken in by the Sister Prejean Show.

Judy Clarke, Not Quite Invincible

I have met Judy Clarke, Tsarnaev's lead counsel, only once.  I thought she was mild-mannered and pleasant.  It was not in a setting where I could assess her abilities as an attorney.

Ms. Clarke has a strong reputation for avoiding the death penalty for the worst of clients; she has done so more than once.  Her reputation is such that, at the time she came into the Boston Marathon bombing case, there was at least one prediction that the prosecution would get scared off and cave in:

I mused in this post a couple of weeks ago when Tsarnaev was first captured that "as in the case of the Unibomber and the Tucson shooter and other notorious federal mass murderers, I would not be surprised if eventually capital charges are taken off the table for a guaranteed LWOP sentence in exchange for a guilty plea."  The appointment of Clarke prompts me to now turn my musings into a prediction: I think the odds are now pretty good that, after a fair bit of (costly?) legal wranging over the next few months or years, Dzhokhar Tsarnaev will plead guilty and get sentenced to life without the possibility of parole. 

I have often said that what counts in litigation is less the lawyers, whether good or bad, than the evidence.  It is no fault of Ms. Clarke that, even in a jurisdiction notably hostile to the death penalty, her client received it after all.  The hateful, calculated and grotesque manner of these murders was too much to overcome.

What Tsarnaev needed was not a lawyer but a magician.  

Tsarnaev Sentenced to Death

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Justice has prevailed.  Congratulations to an exceptionally talented prosecution team.  More later.
No, they aren't.  

And this goes beyond the fact that the Police Commissioner, the Mayor, the Chairman of the City Council, and a goodly chunk of the police force are black.

Liberal African American columnist Colber I. King points the finger elsewhere:

Births to teen mothers; families headed by single women; violent crime; where police recorded gunshots; people age 25 and older without high school diplomas; the unemployed; people living below the poverty line; and welfare and food stamp recipients.

So is the answer more welfare programs, fifty years of which have brought Baltimore to its present state?
I noted here that Sen. Lindsey Graham has proposed establishing a National Criminal Justice Commission.  I'm skeptical of the idea, because such commissions generally either do nothing or make mischief.  When it's the latter, it's because their membership turns out to be selected "experts"  --  experts, that is, as defined by inside-the-Beltway think tanks, academia and politicians with this or that constituency to please.  

Does anyone think that such a Commission would not have a heavy dose  -- maybe 100%  -- of Obama appointees?  Will a Commission consisting of Eric Holder clones (or Holder himself, for all I know) make sound recommendations? Or ones that will compound the problems we already have?

Still, the idea of a Commission is tempting for people who teach law to contemplate, so I came up with some agenda items.  I confess I have my doubts that they are what the Administration has in mind.   

The Supreme Court of La Mancha, in a decision announced by Chief Justice Ruth Bader Ginsburg, found that Don Quixote, alias Alonso Quixana, does not require a guardian. Kali Borkowski reports for SCOTUSblog on the proceedings at the Shakespeare Theatre Company.

News Scan

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LA County Jail-ICE Partnership To End:  The Los Angeles Board of Supervisors voted this week to end a program that allowed ICE agents to work inside county jails in order to more efficiently conduct their duties, responding to immigrant advocates who say the partnership was "eroding immigrants' trust in police."  Aaron Morrison of the International Business Times reports that groups who oppose the decision are concerned with how it could endanger the community by making it much more likely for illegal immigrants to avoid rightful deportation.  Those who voiced the strongest opposition were the family members of victims murdered by illegal immigrants.

Gang Rivalry Sparks Increase In Gun Crimes:  Police officers in Rockford, Illinois are combating an increase in gun violence brought on by an intense gang rivalry in the city.  Jeff Kilkey of the Rockford Register Star reports that through April of this year, there were a total of 161 incidents involving gunfire, a 92% from last year.  Police also noted that they seized 75 illegal guns through April, a 36% increase compared to 2014, and have responded to 11% more robberies.

Rapper Should Have Been in Prison:  A gang war in Denver that resulted in the deaths of a dozen gang members from four street gangs was triggered by the murder of a rapper, who had two warrants out for his arrest in two different states.  Kirk Mitchell of the Denver Post reports that Kevie "KL Tha General" Durham, who was fatally shot at a nightclub last November, was on the streets due to a "series of failures by authorities" in both North Carolina and Colorado.  Durham was not transferred to North Carolina where he was facing a robbery charge, and after escaping a halfway house in Colorado, the state's Fugitive Apprehension Unit failed to track him down.

Felon Avoids Earlier Murder Conviction Charged In New Killing:  A convicted felon from Birmingham, Alabama, who avoided a murder conviction almost a decade ago, has been charged with murder again.  Carol Robinson of AL reports that Justin Hendrix is charged in the shooting death last Saturday of Vanderick Lavorne Thomas, during an altercation over drugs and gambling.  In 2007, murder charges against Hendrix were dismissed, but he was convicted of attempted murder charges and cocaine possession, but was released early.

Teacher Fired For Assigning Students To Write Cop Killer:  A third grade teacher from New Jersey has been fired for  instructing her students to write "get well" letters to a convicted cop killer serving a life sentence in Pennsylvania.  Fox News reports that Marilyn Zuniga, a first-year teacher, defends the assignment that students write "get well" letters to diabetes-stricken Mumia Abu-Jamal, who killed a Philadelphia police officer during a routine traffic stop in 1981.  While some of her supporters believe the assignment taught the students compassion for others, opponents felt more deserving victims than a murderer should have been selected. 

A National Criminal Justice Commission?

Senator Lindsey Graham of South Carolina has proposed establishing a National Criminal Justice Commission.

I have doubts about such commissions.  I can't recall one that actually did any good for all the money that was spent on it.  What seems to happen is one of two things: Either it makes decently sensible suggestions that go nowhere (like the Bowles-Simpson Commission); or it makes poor suggestions some of which might get adopted (see, e.g., the Sentencing Commission's parade of defendant-friendly proposals over the last few years).

I have no idea whether there's much chance Sen. Graham's Commission will get created, but I have a couple of ideas, with more doubtless to come, about how such a Commission might approach its job if it ever comes into existence.

A Culture of Shirking

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I don't recall specific episodes at the moment, but I know I have seen instances where, when there was some horrendous accident in, say, Japan, Taiwan or somewhere else in the Far East, the person responsible and/or the head of the company makes a public apology. He admits wrongdoing and seeks (or sometimes begs) the forgiveness of those he has injured. The concept of responsibility, shame and remorse still has meaning.

I thought of that when I read the following excerpts from the reporting of attempts to interview the engineer of the Amtrak train that crashed in Philadelphia, killing eight people and injuring about 200:

What was Amtrak engineer Brandon Bostian doing and thinking when his speeding train careened off the rails in Philadelphia, killing eight people and sending over 200 more to the hospital?

He can't say.

That's what Bostian's lawyer told ABC's "Good Morning America" on Thursday, saying his client "has absolutely no recollection whatsoever of the events" after losing consciousness in the crash Tuesday night.

"He remembers coming into the curve (and) attempting to reduce speed," the attorney, Robert Goggin, said.

News Scan

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Triple Murderer Executed In Texas:  Derrick Charles, convicted of murdering his 15-year-old girlfriend, her mother and her grandfather 13 years ago, became the seventh inmate executed in Texas this year after being put to death by lethal injection on Tuesday night.  The AP reports that Charles' attorneys argued that he was mentally incompetent and sought to overturn his death sentence, but the claim was rejected by the U.S. Supreme Court.  The Texas Department of Criminal Justice has two more executions scheduled next month, but only has enough pentobarbital for one of them.

Protests Begin in Wisconsin After Shooting Decision:  Hours after a prosecutor announced that a white officer would not be charged in the March 6 shooting death of an unarmed biracial man, protests have begun in Madison which some fear will become violent as in Ferguson and Baltimore.  Todd Richmond of the AP reports that Dane County's district attorney Ismael Ozanne, a biracial man who identifies as black, said that he "made his decision based on the facts."  On March 6, 19-year-old Tony Robinson was tripping on mushrooms and acted out violently towards several individuals, prompting police to be called.  When Officer Matt Kenny responded to the call, Robinson punched him in the head.  Fearing Robinson would take his gun  Kenny fired seven shots, killing him.

Body Cameras Raise Privacy Concerns:  Police departments using body cameras to monitor officer behavior are now facing privacy concerns regarding when to keep their cameras rolling.  Maggie Ybarra of the Washington Times reports that both leaving the camera on full time or allowing an officer to shut it off puts an officer at risk of losing his job or violating someone's  privacy rights.  In spite of this, Attorney General Loretta Lynch has announced her plan to implement a $20 million Body-Worn Camera Pilot Partnership Program to help provide law enforcement agencies with the cameras.

CA Judge Allows Serial Rapist To Remain Free:  A California community is outraged after a judge decided not to send a serial rapist back to a psychiatric hospital.  Tami Abdollah and Olga R Rodriguez of the AP report that Christopher Hubbart, or the "pillowcase rapist," was deemed by Judge Richard Loftus as posing no danger to the safety and well-being of others. But residents of the community worry he will rape again.  Hubbart, who was first convicted of rape in 1972, admitted to raping approximately 40 women through 1982, muffling their screams with a pillowcase.

Suspect Identified In CT Serial Killer Probe:  William Devin Howell, behind bars for murdering a woman, has been identified by law enforcement as the suspect responsible for the murders of seven women, whose bodies were discovered in the woods behind a Connecticut strip mall.  Dave Collins of the AP reports that Howell was sentenced in 2003 to 15 years for manslaughter in the killing of a 33-year-old woman.  Howell has yet to be charged in murders of the seven women.

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TX Senate Approved Confidentiality of Drug Suppliers:  A measure initially approved in the Texas state Senate will keep the identities of suppliers of lethal injection drugs confidential.  Paul J Weber of WHEC reports that many drug manufacturers refuse to supply lethal injection drugs to death penalty states without complete confidentiality due to threats from death penalty opponents.  The state House is expected to consider the measure this week as well.  Texas says that they have enough pentobarbital to carry out two more executions, one of which is scheduled on Wednesday.

7 Victims Found in Serial Killer Investigation:  Behind a strip mall, Connecticut law enforcement have uncovered what they describe as a serial killer's "dumping ground," where multiple remains of missing women were discovered.  Fox News reports that three victims, all missing since 2003, were found in 2007, and a trained FBI canine lead investigators to four more bodies at the end of last month.  Police say they are focusing on a particular suspect, already in prison, so there is no threat to the public.

Baltimore Unrest Causes Crime Spike:  Since the unrest that ignited in Baltimore over the death of Freddie Gray, the city is experiencing a significant spike in crime.  Dakarai Turner of ABC 2 News reports that since the April 25, the day the unrest began, there have been 22 murders and 39 non-fatal shootings.  Some believe that the increase in violence is due to "de-policing," as Baltimore officers feel "unappreciated, dejected and targeted."  However, a retired police major said that while the "blue flu" can happen, it usually does not affect an entire department.  

Alien Children Border Crossings Down from 2014:  Illegal immigrant children from Central America are crossing the border at far lower rates than in 2013 and 2014, dropping a total of 58 percent this year.  Stephen Dinan of the Washington Times reports that the U.S.'s efforts to dissuade would-be immigrants from making the journey by convincing them that there are no "free passes" helped reduce the flow.  If the current pace continues, authorities predict that fewer than 40,000 Unaccompanied Alien Children will be caught, compared to the 68,541 illegal immigrant children who were caught by the end of last year.

Prison Partially Closed After Riot:  Sections of Tecumseh State Correctional Institution in Lincoln, Nebraska are closed for repairs after being damaged during a 10-hour takeover that began on Sunday, resulting in the death of two inmates.  Paul Hammel and Joe Duggan of the World-Herald Bureau report that investigators are still unclear what started the riot, which involved 100 to 200 inmates.  Officials cite issues regarding understaffing and overcrowding as a contributing factor.

Marilyn Mosby, Out of Control

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Marilyn Mosby is the Baltimore State's Attorney who announced charges against six police officers in a courthouse-steps press conference that looked less like a recitation of legal allegations than a pep rally for Louis Farrakhan. This has led to a number of calls, including by the police union, for her to be replaced by an independent prosecutor.

I am a believer that the elected branches of government, being politically accountable, should decide for themselves who will present a criminal case. This is not to say that I would oppose Ms. Mosby's replacement at the instance of, say, the Governor, if a statutory mechanism is in place that allows such a thing. But it is not up to the courts to replace her.  The people voted her in, and it will be both educational and just for them to live with the results.  They can vote her out next time if they be so advised.  The defendants are protected by the requirement that Ms. Mosby prove every element of her case beyond a reasonable doubt to a unanimous jury.

My view of this is, however, weakened by Ms. Mosby's continuing recklessness, most recently exemplified by, no less, appearing on stage at a rock concert.  It was advertised as a "peace rally," but the unmistakable undertow was an anti-police frenzy.

If this were happening in any other context, the ACLU would be up in arms (about prejudicing the jury pool, for starters).  As it is, I can't hear a peep.  Guess some defendants deserve more protection than others.
I have noted on this blog a few times the hazards of putting too much faith in studies conducted with mathematical models.  See this post in 2011 on the interesting book Models Behaving Badly and this one last year on the disastrous failure of a sports prediction model.

One good thing about election prediction models is that we get quick and conclusive results about whether they are right or wrong.  Charles Forelle has this story in the WSJ about the meltdown of British pollsters in last week's election.

The website FiveThirtyEight, run by statistics guru Nate Silver, who made his name with accurate predictions of U.S. presidential elections, used a model developed by British academics. It came up with 278 seats for the Conservatives and 267 for Labour, and put the probability at 90% that the Conservatives would win between 252 and 305 seats. They won 331.
The difference between the prediction and the outcome was double what was supposed to be a 90% confidence interval.  That's more than failure; that's crash and burn.

The reason I bring this up is to remind everyone to be skeptical when someone asserts that some proposition is proven because "studies show" it to be true when the studies are based on mathematical modeling.  Such models can provide indications but not definitive proof, and it is a serious error to rely on them entirely.

Remorse by Proxy?

Following up further on my post Friday and Bill's post earlier today, Jeffrey MacDonald of USA Today gives us this description of Helen Prejean's testimony for terrorist/multiple murderer Dzhokhar Tsarnaev:

Prejean ... said she has met five times with Tsarnaev since early March. She said he told her how he felt about the suffering he caused to the bombing's victims.

"He said it emphatically," Prejean said. "He said no one deserves to suffer like they did."

She added, "I had every reason to think he was taking it in and he was genuinely sorry for what he did."

Jurors are expected to get the case on Wednesday to decide whether Tsarnaev will be executed or spend his life in prison without the possibility of parole.

Prejean said Tsarnaev "kind of lowered his eyes" when he spoke about the victims. His "face registered" what he was saying. She interpreted his remorseful sentiment "as absolutely sincere," she said.

Prejean said she talked with Tsarnaev about both their faiths, his Islam and her Catholicism.

"I talked about how in the Catholic Church we have become more and more opposed to the death penalty," she said.

There are multiple issues here.  Is it admissible?  Is it persuasive?  Will it backfire?  Can the prosecution say out loud the obvious inference?  What's with that last line?

Rey v. Quixote

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Don Quixote goes on trial tonight at the Annual Mock Trial & Dinner of the Shakespeare Theatre Company in Washington.  Justice Ginsburg presides with a five-judge panel including Justice Breyer.  Thomas Goldstein represents the schizophrenic knight in shining armor.  Carter Phillips is listed as Counsel for the Family Court.

Update:  Turns out this was a guardianship case, not a criminal case, so the caption above isn't strictly correct.  See follow-up post.

News Scan

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Virginia Woman Gets 4 ½ Years for Terrorism Support:  An American woman who lied to the FBI about attempting to help a teenager join the Islamic State group, or ISIS, and carry out a suicide bombing was sentenced today to 4 ½ years in prison.  The AP reports that Heather Elizabeth Coffman has expressed regret, admitting that she "crossed the line."  Coffman developed an online romance with a Macedonian teenager, assisting him with arrangements to travel to Syria to train and fight with ISIS, and to eventually carry out a suicide attack.  The teen backed out of the plan when the relationship between the two of them fizzled.

Asylum is 'Secret Password' for Immigrants:  Illegal immigrants wanting to gain entry into the U.S. can simply call themselves asylum seekers and get into the country in a practice, the president of the National Citizenship and Immigration Services Council said, calling it a "global joke."  Melissa Jacobs of Fox News reports that the tactic is mostly used by 19 to 21 year-olds, the majority of whom are being approved by claiming a "credible fear" in their nation of origin, despite the fact that "credible fears" such as poverty and violence do not meet the standard for asylum.  An internal Department of Homeland Security report from 2014 revealed that "at least 70 percent of asylum cases contained proven or possible fraud."

More Adults on Probation since Prison Realignment:  Since the passage of California's AB 109 prison realignment program in 2011, San Luis Obispo County has seen an increase in the number of adults supervised by the probation department.  Matt Fountain of The Tribune reports that the number of inmates sentenced and assigned to local probation after the passage of realignment in 2011 has risen steadily, resulting in hundreds of inmates that would have normally been handled by the state under the responsibility of the county.  Of all offenders released under realignment between 2011 and 2014, 33 percent committed a new crime while on probation.

PA Legislators Seek to Reinstate Mandatory Minimums for Certain Crimes:  Pennsylvania lawmakers in Lancaster County have introduced three bills, two which seek to reinstate mandatory minimum sentences for sexually assaulting a child and for burglary of an occupied home, and one that would add charges to mid-level assault.  Karen Shuey of Lancaster Online reports that a defense lawyer criticizes the bills believing that they take the judge out of the judicial system.  However, the county's top attorney endorsed the proposals, calling them "simple, common sense changes."

New Jail Policy Could Lead to Increase in Crime:  A new policy instituted by the Greene County, Missouri sheriff catches and releases certain criminals back onto the streets, igniting concern that it could lead to an increase in crime.  Emily Wood of KY3 reports that for crimes such as DWI, assault, theft, and trespassing, law enforcement is not permitted to bring them to jail.  Responding to backlash, the county sheriff insists that offenders will be booked and jailed for these crimes as they previously were once the county can ease jail overcrowding.

Fool's Gold for Tsarnaev

The defense succeeded in calling Sister Helen Prejean* to the stand as the last witness for Dzhokhar Tsarnaev.  Kent posted about this earlier, wondering what Prejean might have to say that would count as relevant evidence.  In fact, she did have relevant evidence; she testified that she has met with Tsarnaev five times, and that he is remorseful.

Evidence of remorse is, in my view, by far the most likely thing to save Tsarnaev from the death penalty, if anything will.  But I tend to think that defense counsel's success in getting Prejean on the stand will prove the old adage to beware of what you wish for. 
Answer:  Criminals.

As the Baltimore Sun reports:

As the number of shootings and homicides has surged in Baltimore, some police officers say they feel hesitant on the job under intense public scrutiny and in the wake of criminal charges against six officers in the Freddie Gray case****

"In 29 years, I've gone through some bad times, but I've never seen it this bad," said Lt. Kenneth Butler, president of the Vanguard Justice Society, a group for black Baltimore police officers. Officers "feel as though the state's attorney will hang them out to dry."

Several officers said in interviews they are concerned crime could spike as officers are hesitant to do their jobs, and criminals sense opportunity. Butler, a shift commander in the Southern District, said his officers are expressing reluctance to go after crime.

I think it was a couple of years ago that a staffer for an influential United States Senator told me face-to-face that the country needed sentencing "reform" because there simply is not enough money in DOJ's budget to afford incarceration at the present levels.

There is, however, enough money for this.  Eric Holder outdoes Narcissus by a country mile.

It's an embarrassment.  There's no other way to put it.  I can't say I "know" Michael Mukasey exactly, but it's beyond comprehension that Judge Mukasey would have allowed, much less participated in, a display like this.

The cost argument for the Smarter Sentencing Act was always so much tripe (since this Administration, like past ones, simply borrows to finance things it actually cares about), but putting tax dollars into gushing self-congratulation drives home the point like nothing else.
The defense wants to call the notorious Sister Helen Prejean to testify in the trial of the Boston Marathon Bomber.  I can't fathom that she can offer any relevant evidence.

"Evidence is relevant if: (a) it has any tendency to make a fact more or less probable
than it would be without the evidence; and (b) the fact is of consequence in determining the action."  Federal Rule of Evidence 401. "Irrelevant evidence is not admissible."  FRE 402.

What are the facts of consequence in the penalty phase of a federal capital cases?  They are the mitigating and aggravating factors listed in subdivisions (a) and (c), respectively, of 18 U.S.C. §3592.  Obviously the defense does not want to introduce evidence in aggravation, so that leaves the mitigating factors in subdivision (a).

The relevant mitigating factors are impaired capacity, duress, minor participation, equally culpable defendants getting off with less, no prior criminal record, mental disturbance, victim's consent, and the catchall factor:  "Other factors in the defendant's background, record, or character or any other circumstance of the offense that mitigate against imposition of the death sentence."

Any evidence that is not about this crime or this defendant is irrelevant and therefore inadmissible.

What does Helen Prejean know that is relevant?  Nothing, I strongly suspect.  If not, she should not testify.

Diversity(?) on the Supreme Court

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Prof. David Upham of the University of Dallas notes that there would seem to be a lack of geographic diversity in the background of the members of the Supreme Court:

All studied at Harvard or Yale Law School; almost all spent their pre-Court careers in the Boston-Washington axis of power, working for either the federal government or very prestigious law schools. Four Justices were raised in NYC (Ginsburg, Scalia, Kagan, Sotomayor), one in New Jersey (Alito), two in the Sacrament-San Francisco area (Breyer and Kennedy) . Only one grew up anywhere in the middle (Roberts--Indiana), and only one grew up in the South (Thomas--rural Georgia). Six of the nine (67%) justices, then, come from areas that today have combined, about 3% of the nation's population.  

I should note that Justices Rehnquist and O'Connor went to Stanford Law School (where they finished first and third, respectively, in the Class of 1952).  But, having gone there, I can tell you that Stanford is no more ideologically diverse than either of the others.

News Scan

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AZ Death Row Inmates Challenge Death Penalty:  Over two dozen Arizona death row inmates are challenging the state's death penalty law with the claim that it as "unconstitutionally arbitrary."  Fox 10 News reports that in Arizona, there are 14 aggravating factors which qualify a murderer for the death penalty, and the prosecution only has to allege one.  The murderers claim that this makes virtually all murders eligible.  The lawsuit refers to the 1972 U.S. Supreme Court Furman v. Georgia ruling which held that state laws must distinguish between cases for which a death sentence can be sought and one's that don't.

Prop. 47 Approved by Pastors, Not Police:  Pastors and police in Fontana have expressed differing opinions on Proposition 47, an initiative that passed last November that changed downgraded several property felonies to misdemeanors.  Russell Ingold of the Fontana Herald News reports that pastor Mannie Brodie believes the law is working well, allowing criminals to contribute more positively to society by eliminating or avoiding felony convictions on their records.  However, Fontana police chief Rodney Jones says that the measure was poorly written, and that every month since the law went into effect, both violent and property crimes have increased.

Judge Limits Sex Offender Confinement:  A court decision that narrowed which sex offenders can be held indefinitely in mental institutions has been refined by the Administrative Judge for Central New York, James Tormey.  Douglas Dowty of Syracuse reports that New York Court of Appeals ruled last year that sex offenders cannot be confined indefinitely for acting like any other criminal, such as having anti-social personality disorder.  Tormey's recent ruling held that judges have the discretion to rule whether a sex offender was properly confined due to anti-social behavior along with other factors that render him uncontrollable and dangerous.

81 Illegals Enlist in Army:  Since January, the Obama administration has allowed 81 illegal immigrants granted executive amnesty under the president's Deferred Action for Childhood Arrivals (DACA) program to enlist in the U.S. Army.  Caroline May of Breitbart reports that the Congress has a proposed amendment in the defense authorization bill (NDAA) urging the Secretary of Defense to declare DACA recipients as "vital" to national security interests.  Twenty-five republicans have taken a stand, asking the House Rules Committee to eliminate the DACA language from the NDAA.

U.S. Military Raises Threat Level:  In the wake of mounting threats from homegrown ISIS sympathizers, alert levels for North American bases has been raised by the U.S. Military to the highest it's been since the 10th anniversary of the 9/11 attacks.  Fox News reports that the elevated alert is not tied to any specific threat, but "recent events have led us to recognize the need to take prudent steps," says FBI Director James Comey.  There are allegedly hundreds, possibly thousands, of Americans following ISIS online.

"Even a dog distinguishes between being stumbled over and being kicked," Justice Holmes famously said. 

The role of intent in distinguishing criminal acts from noncriminal accidents and higher-degree offense from lower ones is deeply ingrained in our law.  It may be deeply ingrained in our brains.  Robert Sapolsky reports for the WSJ on a study of scanning people's brains as they read about intentional and unintentional killings.  The study is Treadway, et al., Corticolimbic gating of emotion-driven punishment, Nature Neuroscience 17, 1270-1275 (2014).

Rob Your Bank with Instagram

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In a world where the Justice Department is on a tear against the police, and "scientists" want us to believe that a college student has insufficient brain development to understand that it's wrong to blow up little boys, we can all use some amusement.

Here it is.

I have often said that the real reason suspects give statements to the police is not coercion, either explicit or subtle.  Mostly it's that they think they can talk their way out of it. A significant portion, however, is just the old stand-by:  Human beings like to talk about themselves, and criminals are human beings.

The advent of social media has made this tendency even more pronounced, so now we have bank robbers essentially doing selfies.
There is one person we often don't hear from in death penalty cases:  the killer.

The Fifth Amendment of course shields the killer, and every defendant, from having to take the stand in either the guilt or penalty phases of his trial.  So there is no means of forcing him to say anything; that is as the Framers intended.

Still, wouldn't it improve both the system as a whole and the prospects for justice in the individual case in we could hear from the most important person in the courtroom?  The one whose silence is at the center of the case?

I tend to think so.  Thus I make the following suggestion should the jury return a recommendation of death for Dzhokhar Tsarnaev.  

European Political Developments

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Here are a few notes from across the pond.
The Atlanta Journal-Constitution has dueling op-eds on the death penalty.  Unfortunately, they are securely behind the paywall.  The pro argument by yours truly is here, if you have a subscription.  The con argument is by David Burge.  That's pretty nervy, charging people to read an article that was handed to you for free.

I will paste mine after the break. (Thanks, Sabrina.)  It is somewhat Georgia-centric, considering the venue.
This morning, speaking from her well-appointed headquarters in Washington, DC, Attorney General Loretta Lynch announced a federal probe of the Baltimore Police Department for what she implied are repeated and serious violations of the constitutional rights of criminal suspects and, apparently, numerous others:

The "pattern or practice" investigation into the Baltimore Police Department will center on police officers' use of force, stops, searches and arrests, as well as allegations of discriminatory policing practices. If the DOJ finds a pattern of civil rights abuses, it will pursue a legally binding settlement to secure systemic reform.

To translate:  DOJ plans to wring a consent decree out of the Baltimore PD in which the feds will henceforth run the Department.

Meanwhile, on Long Island, a different event was taking place.  So far as I have been able to discover, neither Ms. Lynch nor any lower-ranking figure from the Department of Justice took the trouble to attend.

The Real "Root Cause"

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We have heard a good deal about the "root cause" of the Baltimore riots, not to mention a great deal of other criminal behavior.  Thomas Sowell sets the record straight:

You cannot take any people, of any color, and exempt them from the requirements of civilization -- including work, behavioral standards, personal responsibility, and all the other basic things that the clever intelligentsia disdain -- without ruinous consequences to them and to society at large.

Non-judgmental subsidies of counterproductive lifestyles are treating people as if they were livestock, to be fed and tended by others in a welfare state -- and yet expecting them to develop as human beings have developed when facing the challenges of life themselves. 

One key fact that keeps getting ignored is that the poverty rate among black married couples has been in single digits every year since 1994. Behavior matters and facts matter...

A group called the Delaware Repeal Project has a briefing book with the usual collection of spin and half-truths.  Copied below are their "bullet points" in the front of the book, not a single one of which makes an argument of any substance, along with my comments.

• Per capita, Delaware ranks 3rd in executions among states behind Oklahoma and Texas.
Unlike many other states, such as California and Pennsylvania, Delaware has succeeded in carrying out a large percentage of well-deserved death sentences for horrible crimes.  For example, there was David Laurie, who burned down a house to kill his wife and also burned to death three children.  Carrying out sentences in cases such as this when other states are unable to do so is an accomplishment for Delaware to be proud of, not a reason to let such killers off with life in the future.

In states where the death penalty has been obstructed, repeal proponents cite the obstruction as a reason to repeal.  In Delaware, repeal proponents cite nonobstruction as a reason to repeal.

The Elephant in the Room, Part II

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I am undoubtedly remiss in having omitted from my earlier post the reigning definition of probable cause.  It was set forth in Illinois v. Gates, 462 U.S. 213 (1983), in the quotation that follows.  I think it to be particularly ominous for the Baltimore prosecution in light of the final phrase, emphasizing that the police are given wide latitude in assessing the circumstances confronting them.  And Freddie Gray was no stranger to the police.

Perhaps the central teaching of our decisions bearing on the probable-cause standard is that it is a "practical, nontechnical conception." Brinegar v. United States, 338 U.S. 160, 176 (1949). "In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' Id., at 175. Our observation in United States v. Cortez, 449 U.S. 411, 418 (1981), regarding "particularized suspicion," is also applicable to the probable-cause standard:

"The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same - and [462 U.S. 213, 232]   so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement."

A principal foundation for the prosecution of the six police officers in Baltimore is the proposition, quite confidently put forward by State's Attorney Marilyn Mosby, that the knife for which Freddie Gray was arrested was legal for him to possess.

The officers are now disputing this.  But it seems to me that a major point has been missed in virtually all the coverage of this case:

For assessing the propriety of the arrest, it makes no difference whether the knife was illegal.  It only makes a difference whether the officers had probable cause to think it was.  Probable cause does not mean certainty.  It doesn't even mean more likely than not.  The officers had probable cause if they had a fair reason to believe Gray had an illegal knife whether or not they turn out to have been correct. See United States v. Sokolow, 490 U.S. 1 (1989).

This is easy to see by calling to mind the law of search and seizure.  The fact that contraband is found on a suspect will not retroactively vindicate the search if, at its outset, it was not justified by probable cause.  Conversely, that no contraband is found does not invalidate the search so long as the police had a reasonable basis to think there was.

So far as I have seen, this fundamental point has been overlooked in the media's discussion of Freddie Gray's arrest. 

Ms. Mosby's case will not necessarily unravel if the police are determined to have had probable cause, but it will start off with one foot in a deep bucket.

News Scan

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Doubt Cast Over Baltimore Charges:  Lawyers representing the six Baltimore police officers arrested on felony charges in the death of Freddie Gray, have found contradictions between State's Attorney Marilyn Mosby's announced findings and a police department investigation of the indicent.  Evan Perez, Shimon Prokupecz and Wesley Bruer of CNN report that the police investigation concluded that the knife found on Gray is in fact illegal under Baltimore city code, refuting Mosby's key finding that the knife was legal.  Investigators also said that the incident "at most contemplated a manslaughter charge," not second degree murder.  

Bill Would Allow TX To Enforce Federal Immigration Laws:  A bill passed by the Texas Senate would give the state's law enforcement officers authority to enforce laws to combat illegal immigration and improve border security.  Lana Shadwick of Breitbart reports that the authority would be authorized through an interstate compact with at least one other state, and the U.S. Congress's approval.  The President's approval is not needed.  The bill, SB 1252, hopes to fix a major issue "that the Federal government has ignored. "

Aging Inmates In Federal Prisons:  A new report highlights the burden faced by the federal Bureau of Prisons (BOP) in dealing with a growing population of aging inmates.  Michael Doyle of McClatchy Washington Bureau reports that in Fiscal 2013, the BOP spent 19 percent of their total budget, or $881 million, on inmates over the age of 50.  Besides the obvious financial burden, older inmates present other challenges with regard to their medical needs which require special accommodations, such as elevators and lower bunk beds which either don't exist in prison or have been compromised by overcrowding.

NSA Program Ruled Illegal:  A federal appeals court in New York ruled today that the National Security Agency's secret program that collects Americans' phone records "in bulk" is illegal.  Charlie Savage of the NY Times reports that the provision of the USA Patriot Act known as Section 215, which permits the FBI to collect relevant business records in the course of counterterrorism investigations, "cannot be legitimately interpreted to permit the bulk collection of domestic calling cards."  The three-judge panel held that if Congress chooses to authorize a similar program in the future, they must do so "unambiguously."

Terrorist who Killed Army Medic Released:  A convicted terrorist sentenced as a teenager to 40 years in Guantanamo Bay for the 2002 killing of a U.S. Army Delta Force medic in Afghanistan was ordered released by a Canadian judge because he has allegedly changed his jihadist ways.  Maxim Lott of Fox News reports that Omar Khadr, a Canadian citizen who grew up in Pakistan, threw a grenade at medic Christopher Speer and four other soldiers in an ambush attack, killing them.  Khadr has never expressed remorse, according to a Pentagon report.  Khadr accepted President Obama's plea bargin for an 8-year sentence, and is supposed to be heavily monitored once released with a tracking bracelet and a 10 P.M. curfew.

Attorney General Loretta Lynch met on Tuesday with Freddie Gray's family.  As the AP reports:

The new attorney general met privately at the University of Baltimore with [the] family, days after the state's attorney charged six police officers involved in Gray's arrest. Gray's injury in police custody and death a week later sparked protests and riots that prompted Maryland's governor to bring in the National Guard.

I think it problematic  --  as potentially prejudicial  --  for the Attorney General to have had this well-publicized meeting, even as I recognize that there may be legitimate reasons for it.

My question, however, is less about the meeting she had than about the one she didn't.  To my knowledge, Ms. Lynch has not met with, nor expressed any interest in meeting with, the family of Brian Moore.

Moore, who at 25 was the same age as Gray, admittedly did not have Gray's history, including 18 arrests and several convictions.  Instead, Moore had two exceptional service medals from the NYPD.  He was on duty last week when he was murdered in cold blood by Demetrius Blackwell.

Blackwell's attorney cautioned against a "rush to judgment."  One listens in vain for something remotely similar from our Attorney General  --  and still less for her to show an iota of concern for Officer Brian Moore.
An Associated Press story about the less frequent use of the death penalty in Virginia begins with this paragraph:

A prosecutor's decision not to seek a death penalty for the man accused of abducting and killing a University of Virginia student [Hannah Graham] is emblematic of capital punishment's decline across the country and in the state that once operated one of the busiest execution chambers in the nation.

The bulk of the story concerns a study by law professor John Douglass to the effect that prosecutors in Virginia are seeking the death penalty less frequently in recent years because capital defense has improved.

I have not read Prof. Douglass's study (which is not linked in the AP article), but would certainly be open to doing so.  Prof. Douglass is a former colleague of mine in the US Attorney's Office, and a bright and fair-minded person.

Still, the story has a few problems.

News Scan

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Records Raise Questions About Parole Monitoring:  Despite violating their parole, cutting off their GPS monitors, and fleeing the state, two transient sex offenders were deemed "low risk," and are now accused of raping and killing four women.  Paige St. John of the LA Times reports that speculation surrounding whether state parole agents adequately monitored the two men's conduct during the time the alleged killing spree took place.  Although Franc Cano and Steven Dean Gordon were "considered compliant with the terms of their parole," records show that agents failed to conduct required interviews with the parolees' regular contacts and keep proper tabs on their activities.

Drug Court Enrollment Declines:  San Bernardino County Deputy District Attorney Kris Parde says that the lack of incentive for lower-level drug offenders to enter drug court under Proposition 47 has led to a sharp decline in enrollment.  Shea Johnson of the Victorville Daily Press reports that the 90 percent decline means that the program could be shut down entirely.  The DA also criticizes the state's AB 109 prison realignment program, calling California "soft on crime."

Message Warns of ISIS Cells in US:  A self-proclaimed American jihadist posted a message online warning Americans that the Islamic State group, or ISIS, has "scores of trained soldiers" in 15 states across the U.S. waiting for orders to carry out terrorist attacks.  Fox News reports that the message, signed by Abu Ibrahim Al Ameriki, specified Virginia, Maryland, Illinois, California, and Michigan as five of the 15 states where ISIS currently has active cells.  The message also warned that more attacks will occur on American soil over the next six months.  The U.S. intelligence community is assessing the threat.

Mexican Police Capabilities 'Non-Existent':  As cartel violence surges in border cities and Mexican states, the U.S. Department of State has issued a travel warning citing state and local law enforcement in the Mexican state of Tamaulipas as 'non-existent.'  Ildefonso Ortiz of Breitbart reports that a war within the Gulf Cartel involving two rival factions fighting for control has contributed to the uproar in violence.  Last month, Breitbart released information from the U.S. State Department stating that since 2013, 181 Americans have been murdered in Tamaulipas.

TN Supreme Court to Hear Electric Chair Case:  The Tennessee Supreme Court will hear arguments today regarding whether a group of death row inmates can proceed with their claim that the use of the electric chair as an execution method is unconstitutional.  Stacey Barchenger of the Tennessean reports that the inmates believe they should be able to challenge the use of the electric chair because, being that lethal injection drugs have become much harder for states to obtain, there is a reality that Tennessee will have to resort to its backup method of electrocution.  The state's AG office says that the case should be dismissed because it is based on a "hypothetical situation."  None of the condemned inmates are scheduled to die.

Gunrunning Bloods Gang Used Metro-North:  A gunrunning operation orchestrated by Bloods street gang members involved the use of Metro-North trains to transport weapons bought in Connecticut into New York City for resale.  Steven Lieberman of the Journal News reports that nine gang members were indicted in the scheme, who resold weapons ranging from .22 caliber pistols to assault weapons.  Some of the gang members also face additional charges of murder conspiracy.

A Waste of Time and Money on a Killer

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Roughly four weeks ago, the New York Times had this gushing article about the then-upcoming re-sentencing for Adolfo Davis.  In 1990, at age 14, Davis, a Chicago native, was knee-deep in a double murder.  He was tried as an adult and sentenced to the then-mandatory LWOP. Then the Supreme Court came along in Miller v. Alabama to hold, 5-4, that mandatory LWOP for a juvenile violates the Eighth Amendment. 

The defense bar was all aflutter.  Miller was to be the beginning of the end for finality in sentencing, and would open the door to vastly expanded proportionality review, not to mention full throttle for the "his-brain-wasn't-developed" arguments in behalf of all manner of violent criminals in their fifties forties thirties whatever. 

All that might yet happen.  But, I noticed in the Chicago Tribune yesterday on my way back from the Seventh Circuit Judicial Conference in Milwaukee, it didn't work out too well for Mr. Davis.
I am remiss in not having posted earlier about the SCOTUS argument concerning Oklahoma's lethal injection procedures in Glossip v. Gross.  Kent did a podcast on it here, and CJLF filed an amicus brief available through this link.

The media reports on it were no more illuminating than usual, except for one facet: They gave good coverage to Justices Alito and Scalia unmasking the shell game abolitionists have played with lethal injection drugs.

In short, the game is this:  Abolitionists demanded for years that, if we must have the death penalty, we move away from "grisly" methods and toward lethal injection. Largely, the country accommodated their demand.  Its reward was that the abolitionist lobby then started leaning on drug makers, many of them in Europe, to cut off sedation supplies.  When they did, jurisdictions with the death penalty moved to different drugs that are claimed to be less reliable.

Therefore  --  guess what  --  we can't have capital punishment anymore!

This was the game plan from the beginning.  Finally, at oral argument in Glossip, the abolitionists got called out on it.

Satire vs. Reality

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Kent posted earlier today about how difficult it has become to tell satire from reality. His subject was what remains of freedom of speech on campus.

In a matter of hours, I stumbled across the following.  It's from a New Age piece about how we can fix inequality.  The basic suggestion is that we should abolish the family, since childhood experience tells much of the tale about where a kid will wind up, and where he winds up is likely to be unequal to where some other kid winds up. And no, this is not something I imagined.  Unfortunately, it's not satire, either:

One way philosophers might think about solving the social justice problem would be by simply abolishing the family. If the family is this source of unfairness in society then it looks plausible to think that if we abolished the family there would be a more level playing field.'

'What we realised we needed was a way of thinking about what it was we wanted to allow parents to do for their children, and what it was that we didn't need to allow parents to do for their children, if allowing those activities would create unfairnesses for other people's children'. . .

'The evidence shows that the difference between those who get bedtime stories and those who don't--the difference in their life chances--is bigger than the difference between those who get elite private schooling and those that don't,' he says.

This devilish twist of evidence surely leads to a further conclusion--that perhaps in the interests of levelling the playing field, bedtime stories should also be restricted.

This kind of stuff is enough to make Baltimore State's Attorney Marilyn Mosby look sober.

Amateur Hour in Baltimore

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I have previously discussed, see, e.g., here and here, the ideologically driven, grandstanding performance of Baltimore State's Attorney Marilyn Mosby in announcing charges, including second degree murder, against six city police officers. Andy McCarthy, who was in charge of appeals for the USAO for SDNY at the same time (many years ago) I had that job for the EDVA, absolutely takes Ms. Mosby apart:

At best, it is amateur hour.

At worst, the rash decision by Marilyn Mosby, the Maryland state's attorney for Baltimore City, to bring an array of internally inconsistent charges, including murder, against a half dozen police officers in connection with the death of Freddie Gray is a frightening display of state complicity in mob justice. 

Three of the arrested officers, including the one facing the most severe charge of second-degree murder, are African-American. We'd better hope that black cops' lives matter.

I was attending a conference on Friday. It was thus my good fortune, when asked for a first impression of the charges, not to have heard Ms. Mosby's embarrassing speech announcing them.

The chief prosecutor, in what can only be described as a gift to defense lawyers, proclaimed that she'd brought the charges to show not only "the people of Baltimore" but also "the demonstrators across America" that "I heard your call for 'no justice, no peace.'" When I say this was embarrassing, I am not just making a stylistic critique that prosecutors should not speak like community organizers. It is a professional assessment.

Read the whole article.

Education Today

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Here is a news item pointed out by Eugene Volokh:

BOSTON--Saying that such a dialogue was essential to the college's academic mission, Trescott University president Kevin Abrams confirmed Monday that the school encourages a lively exchange of one idea. "As an institution of higher learning, we recognize that it's inevitable that certain contentious topics will come up from time to time, and when they do, we want to create an atmosphere where both students and faculty feel comfortable voicing a single homogeneous opinion," said Abrams, adding that no matter the subject, anyone on campus is always welcome to add their support to the accepted consensus. "Whether it's a discussion of a national political issue or a concern here on campus, an open forum in which one argument is uniformly reinforced is crucial for maintaining the exceptional learning environment we have cultivated here." Abrams told reporters that counseling resources were available for any student made uncomfortable by the viewpoint.
This is, of course, satire.  The report is from the Onion.  But it is only one step more absurd than reality.
Pablo Gorondi reports for AP that the prime minister of Hungary is in hot water with the European Union over the death penalty.  What did he do, you might ask.  Did he restore it in Hungary?  Did it propose its restoration?  No, he did not.

He only suggested that the topic be up for debate.  And that is enough to produce a thunderstorm of condemnation in today's PC EU.

"In relation to Brussels, a debate about democracy has come about," Orban said in an interview on Echo TV. "Where are we living? In the Middle Ages, where they declare that there are taboos which are not worthy of debate?"
It is quite bad enough that the EU has bludgeoned smaller and poorer countries into abolition as a part of the price for the economic advantages of joining the big EU market, but to dictate to countries what they are even allowed to discuss -- and then claim that this censorship is in the name of "human rights" -- is gross hypocrisy.  When did freedom of speech stop being a human right?

Common Sense Prevails

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If you are a convicted murderer serving a life sentence, well, sorry, you cannot force the taxpayers to cough up the gigantic bill for the sex change operation you declined to pay for yourself before you went to prison.  The Boston Globe has the story.

The en banc First Circuit reversed a district judge who would have forced the government to pony up for this, and today the SCOTUS denied cert.  No dissents noted.

I'm assuming those who relentlessly decry the high cost of incarceration will applaud today's result.

Glossip v. Gross Podcast

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My Federalist Society teleforum on the Glossip v. Gross argument, noted here, is now available as a podcast.

News Scan

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ISIS Border Threat:  Judicial Watch published a report last month with information revealing that a camp operated by the terror group Islamic State (ISIS) is located across the Mexican border, just a few miles from El Paso, Texas.  Tom Fitton of Breitbart reports that the area where the camp is located, known as Anapra, is a cartel-dominated region which makes it dangerous for the Mexican Army or Federal Police to traverse and investigate.  The Mexican government and the Obama Administration have denied ISIS is operating in Mexico.

ISIS Claims Responsibility for Texas Attack:  ISIS claimed responsibility today for Sunday's attack at a cartoon contest in Texas that depicted images of the Muslim prophet Muhammad.  The attack left one security guard injured and both suspects dead.  Fox News reports that the message, delivered on the group's Syrian based radio station, warned of more attacks on America, describing what is to come as "bitter and harsher."  It is not immediately clear whether ISIS is capitalizing on a "lone wolf" attack, but authorities have uncovered connections between one of the gunmen and overseas Twitter accounts.

Prop. 47 And Realignment's Unintended Consequences:  Riverside County's top law enforcement officials, county sheriff, District Attorney, and head of probation all agree that the state's AB 109 prison Realignment law and Proposition 47 have "resulted in many unintended consequences."  Jeff Stahl of KESQ reports that both laws have allowed criminals to repeatedly get away with their crimes, essentially removing any deterrent effect.  Officials believe that the state should transition back to progressive sentencing, which "provides increasingly harsh sentences for people who repeatedly break laws."

Illegal Immigrant Kidnaps, Beats Woman:  A Texas woman was kidnapped and badly beaten over the weekend at her home by an illegal immigrant.  Everything Lubbock reports that the victim was found tied up on her front porch with serious trauma to her head and body.  Texas Rangers identified Juan Gutierrez Cortez as a suspect, who confessed to the crime when he was brought in for questioning.  Cortez has been charged with aggravated kidnapping and burglary with intent to commit assault.  Due to his illegal immigrant status, ICE has placed a hold on him.  

Root Causes and Baltimore

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William McGurn has this column in the WSJ:

There is another view. In this view, the disaster of inner cities isn't primarily about race at all. It's about the consequences of 50 years of progressive misrule--which on race has proved an equal-opportunity failure.

Baltimore is but the latest liberal-blue city where government has failed to do the one thing it ought--i.e., put the cops on the side of the vulnerable and law-abiding--while pursuing "solutions" that in practice enfeeble families and social institutions and local economies.

These supposed solutions do this by substituting federal transfers for fathers and families. They do it by favoring community organizing and government projects over private investment. And they do it by propping up failing public-school systems that operate as jobs programs for the teachers unions instead of centers of learning.

News Scan

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Texas Attack At 'Draw Muhammad' Event:  One of the two men who were fatally shot yesterday after attempting to storm a Texas event involving cartoons of the Islamic prophet Muhammad has been identified.  Sasha Goldstein of the New York Daily News reports that one of the shooters, Elton Simpson, had previously convicted for lying to the FBI about plans to travel to Somalia and carry out jihad.  His unidentified accomplice was his roommate from Phoenix.  The two men rigged themselves with body armor and assault rifles before traveling to the controversial event at a community center in suburban Dallas.  Pamela Geller, the event hostess and an outspoken anti-Muslim advocate, calls the attack a "war on free speech."  A security guard was shot in the ankle during the gunfire, but no one else was injured or killed other than the two gunmen.

Three Homicides in Three Days Along Border:  Federal officials are investigating three separate homicides where four bodies were discovered over the course of three days in the Rio Grande Valley along the Texas-Mexico border.  Ildefonso Ortiz of Breitbart reports that the Rio Grande Valley is a hot spot for Mexican drug cartel activity, but authorities have not yet confirmed if the homicides are connected to their drug trafficking or human smuggling operations.  Authorities report that some of the bodies recovered exhibited signs of foul play.

Criminal, Free Under Realignment, Carjacks Ex-Girlfriend:  A Southern California criminal, on probation under the state's Realignment law, was arrested Sunday on suspicion of carjacking and violating a criminal protective order.  Brian Day of the San Gabriel Valley Tribune reports that Manuel Martinez was out on Post Release Community Supervision for a domestic violence conviction against his ex-girlfriend and was not permitted to contact her.  Martinez approached her at a gas station a little after midnight Sunday, and demanded a ride before pulling her from the vehicle when she refused. After inflicting minor injuries, he drove away with her car. 

Death Sentences, Executions Down in VA:  Virginia, a state that once operated a bustling execution chamber, has only eight inmates awaiting execution, down from a high of 57 in 1995.  Larry O'Dell of the AP reports that in the last nine years, the state has sent just six people to death row, a significant decrease compared to the previous eight years when 40 people were sentenced to death.  The article quotes anti-death penalty experts like Richard Dieter, who believe that juries are giving out less death sentences "due in part to a growing acceptance of life without parole as a reasonable alternative to death."  But these experts apparently failed to notice that homicides are less than half of what they were 20 years ago. In fact the murder rate in Virginia is the lowest it has been since 1960.  Maybe the state's consistent enforcement of the death penalty had something to do with this, and maybe now there are just fewer murderers eligible for a death sentence. 

NYPD Officer Dies from Injuries:  An NYPD officer has died from injuries sustained on Saturday when a convicted felon shot him in the head in Queens.  Fox News reports that Brian Moore was shot by Demetrius Blackwell, whose criminal record included 10 arrests, when he approached him to ask what he was carrying after seeing him tugging at his waistband.  Moore's partner who he was working with at the time, was unharmed.  Blackwell has yet to enter a plea.  He will likely face murder charges.

Alan Dershowitz has chimed in on the charges against six police officers in Baltimore.  I frequently disagree with Prof. Dershowitz, and did so in a debate on the Piers Morgan show a couple of years ago (a chopped-up link is available here), but I think he nails this one.  Here are some excerpts from his interview:

Famed defense attorney and legal scholar Alan Dershowitz had harsh words for Maryland state attorney Marilyn Mosby, who on Friday announced stiff charges against six Baltimore police officers involved in the death of Freddie Gray.

"This is a show trial," Dershowitz said during an interview Friday with Newsmax TV's Steve Malzberg.

"Today had nothing to do with justice. Today was crowd control. Everything today was motivated by a threat of riots and a desire to prevent riots." *****

He also said that the because of the attention the Gray case has received, the six defendants "are presumed guilty."

"The mayor and the state attorney have made it virtually impossible for these defendants to get a fair trial," Dershowitz said.

Who Are the Baltimore Six?

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The Washington Post has a rundown of the six officers charged in Baltimore in the Freddie Gray case.  Only one, an African American named Ceasar R. Goodson, Jr., is charged with homicide.  Goodson was the driver of the police van in which Gray apparently sustained the injuries that killed him.  The Post reports:

He is charged with ­second-degree depraved-heart murder, a charge used when a suspect is accused of reckless disregard for another person's life, in addition to involuntary manslaughter, second-degree ­assault, manslaughter by vehicle and misconduct in office.

WBAL-TV in Baltimore reported last week that Goodson is facing internal disciplinary proceedings in a separate case for allegedly allowing a prisoner to escape from a hospital.

Goodson is the grandson of a police officer, according to the obituary for his mother, who died in Baltimore in 2012. He lives in Catonsville in Baltimore County, where two of his neighbors said Friday that he had minimal interactions with them.

Frances Hubbard, who lives on his street, described the officer as a "family man, always polite, always speaks. I see him eating with the family."

The other five officers, with pictures, are given sketches in the story.  Goodson and two others are black; the other three are white, thus roughly reflecting Baltimore's racial make-up.

Will the Mob Tolerate an Acquittal?

The Baltimore State's Attorney today announced charges against six police officers in the death of Freddie Gray.  I have a number of thoughts.

The first is reflected in the title of this entry:  Will the mob tolerate an acquittal? The calls in recent days have been for "justice."  I have considerable doubt whether those doing the loudest calling have much interest in justice.  I think they want to see police officers punished simply because of who they are.  If that is true, then the riots we've seen up to now will pale in comparison to the ones we'll see in the event of an acquittal.  

This is what we need to face:  The evidence will not make any difference to those most inflamed (and I use that word advisedly) about this case.  We've all seen this before  --  most recently with Darren-Wilson-is-Satan-hoax in Ferguson and with the fraternity falsely accused of hosting gang rape at the University of Virginia.

The facts are not the point.  The narrative is the point.

Of course, there is a great deal more to say about this case, only some of which I am able to get to for the moment.

Big Weed

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Wonders never cease.  Gerald Uelmen, professor of law and former dean at Santa Clara University School of Law, is someone I have disagreed with, sometimes vehemently, many times over many years and don't recall ever agreeing with.

But there is a first time for everything.  Professor Uelmen has this review in California Lawyer of a book titled Big Weed by Christian Hageseth, and I find myself nodding in agreement with just about every word.

Marijuana is not a harmless substance....  Just like the alcohol and tobacco industries, the marijuana industry will be built on the backs of its most frequent users, and turning casual users into frequent users will be the marketing strategy that drives the industry, just as with alcohol and tobacco. Hageseth makes no effort to assess the potential harmful consequences of promoting marijuana use to the consuming public, which will fuel the billions of dollars in sales that he foresees.
In my view, this promotion by a legal marijuana industry is a far greater threat than legalization as such.  We are pretty close to de facto legalization in California already.

When states legalized alcohol after the 21st Amendment, many of them monopolized retail sales in state-run stores.  When states legalized the numbers racket, they monopolized the "manufacturer" level although using private retailers.

Why not make the legal marijuana business a government monopoly?  I don't see a single good reason not to.

News Scan

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Baltimore Police Officers Face Homicide Charges:  State's attorney for Baltimore Marilyn Mosby announced today that the six police officers involved in the arrest of Freddie Gray are facing criminal charges in relation to his death.  Fox News reports that one of the officers was charged with murder, three with manslaughter, and two with assault.  Mosby said that the officers had "no basis" for arresting Gray, who died of a broken neck while being transported in a police van.

'Broken Windows' Policing Still Works:  NYPD Commissioner Bill Bratton delivered a message yesterday defending the enforcement laws against low-level crimes.  Citing that 'broken windows theory,' that the enforcement of lesser crimes improves the quality of life and reduces serious crime, Bratton said it is something that we need "now more than ever."  Rocco Parascandola, Denis Slattery, and Jennifer Fermino report that Bratton says that more misdemeanor arrests lead to fewer felony arrests because crime is prevented more effectively overall.  However, the pro-sentencing reform City Council does not agree, claiming 'broken windows' is a model that unfairly targets minorities.

Criminal Free Under Realignment Pulls Gun On Cop:  An AB 109 probationer was wounded and arrested after pulling a gun on a police officer during a foot chase in the Los Angeles city of Baldwin Park.  Brian Day of the San Gabriel Valley Tribune reports that James Anthony Teter fled when an officer recognized him as an AB 109 probationer wanted for violating the terms of his release.  Teter was released on PRCS on April 8 after serving three months for resisting or obstructing police and violating his probation.  He has been booked on suspicion of assault with a deadly weapon on a peace officer.

Mandatory Minimums for Felons with Guns:  Milwaukee has been experiencing a surge of violence, with homicides up more than 180 percent from last year, prompting state lawmakers to introduce a bill that would create mandatory minimum sentences for felons caught with guns.  Ben Handelman of Fox 6 Now reports that the bill requires that a felon in possession of a firearm be sentenced to at least three years in prison, and eight years for use of a firearm during a violent crime.  The Milwaukee Police Department likes the bill, but the it faces major opposition from strange bedfellows: the ACLU and NRA.

New Patrols, Cameras Fight Denver Gang Violence:  The city of Denver and federal officials are working together to reduce the gang violence that currently plagues the city.  Phil Tenser of the Denver Channel reports that Denver's mayor has ordered the police department to conduct extra patrols in high-crime neighborhoods and is working with the ATF to add 15 new High Activity Location Observer (HALO) cameras in the area.  So far this year, 17 fatal shootings have occurred, 12 of which were gang-related.

Engage, a publication of the Federalist Society, has this book review of The Constitution: An Introduction by Michael and Luke Paulsen.

The book begins by retelling the extraordinary events that led to the drafting and ratification of the Constitution and the quick addition of the Bill of Rights.  Then, in well under 100 pages, it elucidates the constitutional structure that the Constitution creates.  The authors evidence a great respect for the work of the Founders, and they have harsh words for those who treat the Constitution like a Rohrshach blot.  But they are also painfully honest about the flaws in the original design--and in particular, the Founders' accommodation of slavery.  The chapter devoted to this subject is one of the most interesting and will be instructive even for those who know a fair amount about the Constitution.  (For example, how many lawyers know that, were it not for the infamous three-fifths provision, which counted a slave as three-fifths of a person for purposes of congressional apportionment, John Adams, not Thomas Jefferson, would have won the pivotal presidential election of 1800?)

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The Paulsens' book fairly presents both sides on major interpretive issues, but they do not hide their own point of view.  They favor a form of originalism and judicial restraint.  They are decidedly Hamiltonian in their view of national and presidential power, but at the same time they support a robust conception of the individual rights set out in the Bill of Rights and post-Civil War Amendments.  Substantive due process, which they trace back to Dred Scott, however, is another matter.

And who is the reviewer?  Justice Samuel Alito.

Guilty Plea in NJ Bridge Case

Jill Colvin and Jost Cornfield report for AP:

A former loyalist to New Jersey Gov. Chris Christie arrived at court Friday to plead guilty to charges related to creating a traffic jam near the George Washington Bridge for political purposes, a person with knowledge of the case told The Associated Press.

The person wasn't authorized to release the information before the hearing and spoke on condition of anonymity.

David Wildstein was an official at the Port Authority of New York and New Jersey at the time of the tie-ups. It's not clear what charge or charges Wildstein will plead to. He will be the first person to admit to committing a crime in causing the series of politically motivated traffic jams in 2013.

Federal prosecutors announced an 11 a.m. court hearing in Newark and an early afternoon news conference. The office, which Christie led before stepping down in 2008 to run for governor, has not said who will appear in court and didn't release any other details on the investigation.

So we don't even know what crime was charged here, but this is one of the most despicable abuses of government power in a long time in the sheer wanton cruelty of it.  To punish the people of a city who must commute into New York because of a political disagreement with the leaders of the city (who work in town and don't commute) is mind-bogglingly evil.

Extending the presumption of innocence, I will assume for now that Gov. Christie knew nothing of this particular operation.  Even so, a leader establishes a tone and a culture for his office.  He does that through his own words and actions and through his selection of the people to staff the office.  This office had a culture where someone could do something so cynically, despicably cruel, and nobody goes running to the boss to say, "Oh my God, do you know what this jackass is doing?!"  Is that the kind of office culture we want in the West Wing?


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