June 2015 Archives

The outcome of the much-covered case, highlighted in articles here and here, filed by several death row inmates in Oklahoma holds great significance for the future of California's death penalty system.  In a 5-4 decision on Monday, the U.S. Supreme Court ruled on the case of Glossip v. Gross, determining that the sedative midazolam can be used in executions without violating the Eighth Amendment prohibition of cruel and unusual punishment.  Gov. Jerry Brown's administration now has 120 days to propose a new lethal injection method, as stipulated with families of murder victims in a recent settlement.  The ruling will fortunately create greater challenges for death penalty opponents and death row inmates, but a resumption of executions is not without obstacles:

-State law requires extensive public comment on a new execution method, including mandatory administrative procedures and hearings, a lengthy process that could take a year.

-Opponents of the death penalty may decide to return the ballot with a measure to replace the death penalty with life without parole, such as the one that was narrowly defeated by voters in 2012.

-Drug manufacturers are making it increasingly difficult for prisons to obtain lethal drugs for executions.

Parole Blocked for Killer of CA Man Buried Alive:  California Gov. Jerry Brown has blocked parole for the man responsible for the murder of a developmentally delayed man in 1980, who was beaten and buried alive.  Don Thompson of the AP reports that Brown ignored a state panel recommendation for 52-year-old David Weidert's parole, deeming him too dangerous to be released.  Initially sentenced to life without parole, an appeals court reduced Weidert's sentence in 1984 to 25 years to life with the chance of parole after striking down two special circumstances.

Unmonitored, Undocumented Sex Offenders Roam Freely:  Eleven convicted sex offenders living in the country illegally are residing in several western Washington neighborhoods without being monitored by authorities.  KIRO 7 reports that despite efforts to deport them, a Supreme Court ruling requires them to be released from custody if their home countries refuse to take them back. U.S. Immigration and Customs Enforcement admit that they do not track these criminals once they're released onto American streets.

Raise the Age NY Campaign Fails:  New York lawmakers were unable to reach a decision regarding changing the age of criminal responsibility in the state in legislation which sought to raise the age of criminal responsibility from ages 16 and 17 to age 18.  Jackie Davis of the Legislative Gazette reports that Gov. Andrew Cuomo, who proposed the legislation in his State of the State address, plans to take executive action to remove 16-and 17-year olds from state prisons and into separate facilities.  The 'Raise the Age NY' campaign advocates that changing the age of criminal responsibility would produce results that echo those of an Illinois study, which concluded that when teens are charged as juveniles the adolescent crime rate goes down.

It's been a busy day in the wake of Glossip.  The case has drawn a lot of media attention.  We will have some links to coverage tomorrow.

Tomorrow I will be on a teleforum with the Federalist Society at 2:00 p.m. ET.

SCOTUSblog is having a symposium on the case.  The first post to be published is by Alabama SG Andrew Brasher, a co-amicus on our side of the case.

I have sent in my entry.  I will post the last section after the break.  I'll have a link to the The full post when it is available on SCOTUSblog.

Update:  The posts by Deborah Denno and Stephen Schwinn are available now.  They are not happy campers.

In my original "The Left Goes Bonkers," I described a theory that the Just Compensation Clause entitles criminals to whitewash their record and fabricate their resumes' by just making stuff up (or composing "from whole cloth," as the theorist candidly acknowledged).

[T]his Article explores a form of grounded preventive justice neglected in existing scholarly, legal, and policy accounts. Grounded preventive justice offers a positive substitutive account of abolition that aims to displace criminal law enforcement through meaningful justice reinvestment to strengthen the social arm of the state and improve human welfare.  This positive substitutive abolitionist framework would operate by expanding social projects to prevent the need for carceral responses, decriminalizing less serious infractions, improving the design of spaces and products to reduce opportunities for offending, redeveloping and "greening" urban spaces, proliferating restorative forms of redress, and creating both safe harbors for individuals at risk of or fleeing violence and alternative livelihoods for persons subject to criminal law enforcement.  By exploring prison abolition and grounded preventive justice in tandem, this Article offers a positive ethical, legal, and institutional framework for conceptualizing abolition, crime prevention, and grounded justice together.

The title of this post is taken in part from Ed Whelan's column in NRO's Bench Memos. His observations are especially pertinent to the claim, repeated ad nauseum, that the death penalty is headed for extinction.

...five justices vote to overturn a death penalty as cruel and unusual punishment in violation of the Eighth Amendment but can't agree on a rationale. Each of the five justices instead issues his own opinion. Despite the fact that the Fifth and Fourteenth Amendments expressly assume the existence of the death penalty, Justices Brennan and Marshall each assert that the death penalty is in every instance an Eighth Amendment violation. 

Our decisions in this area have been animated in part by the recognition that because it is settled that capital punishment is constitutional, "[i]t necessarily follows that there must be a [constitutional] means of carrying it out." 

Second NY Prison Escapee Captured Alive:  Relief overwhelmed residents of upstate New York after the second prison escapee was captured alive near the Canadian border on Sunday after 22 days on the run.  Fox News reports that law enforcement spotted convicted murderer David Sweat on Sunday afternoon before hitting him with two non-fatal gun shots as he dashed for a line of trees.  Sweat's accomplice, Richard Matt, was fatally shot by police last Friday after failing to obey law  commands.  Sweat will face charges of escape and burglary, among others, when he recovers from his injuries.

CA Counties Must Examine Sex Offender Registration:  An April ruling by the California Supreme Court overrides justices' earlier decision regarding mandatory sex offender registration that allowed judges to exempt offenders who committed certain child sex crimes from registering, forcing counties to examine their sex offender registration requirements.  Brad Branan of the Sacramento Bee reports that the new ruling was in response to the case of Mike Grandinetti, convicted in 2006 of oral sex with a 17-year-old foster child under his care, exempted from registering as a sex offender under the previous ruling.  That decision allowed him to participate in the Miss Rio Linda Pageant with teenage girls, as well as in a program with at-risk juveniles.  Because exemption from registration was part of his plea agreement, Grandinetti may have a strong legal argument should prosecutors ask him to register as a sex offender.

Florida Death Penalty Faces Scrutiny from SCOTUS:  Florida's unique system of capital punishment, in which juries provide mere 'advisory' decisions to the judge's ultimate determination of whether to sentence someone to death, will be reviewed by  the U.S. Supreme Court.  Elaine Silvestrini of the Tampa Tribune reports that Florida is the only state among the 33 with a death penalty that permits judges to impose sentences different from jury recommendations and does not require juries to reach unanimous decisions on the existence of specific aggravated factors.  The U.S. Supreme Court will consider this fall whether 'the outlier state' needs to change their system.

Measure Introduced to Preserve Integrity of Jessica's Law:  New legislation authored by Senator Sharon Runner of California would make sex offender residency more "workable," but still maintain the integrity of the voter approved Jessica's Law, which lays out a 2,000 foot residency restriction from schools and parks for sex offenders.  Sacramento Today reports that SB 54 clarifies how 2,000 feet should be measured, ensures that only violent sex offenders are subject to the restriction and states that the Appellate Division of the Superior Court of each county has the primary jurisdiction to consolidate and hear petitions challenging the distance restriction.  The Senate Public Safety Committee will hear the bill on Tuesday.

Sonoma County Car Thefts on the Rise:  So far in 2015, at least five vehicles were stolen each day in Sonoma County, California, a sharp uptick in a crime that has already been on the rise in the county since 2013.  Julie Johnson of the Press Democrat reports that the AB 109 Prison Realignment program is believed to be responsible for the upswing, as researchers estimated that the measure increased the auto theft rate by about 17 percent from 2012 to 2013.  Rohnert Park Public Safety Sgt. Jeff Justice says that the "people being released from prisons early are the people who commit property crimes out on the streets."

1.  Justice Kennedy joined Justice Alito's strong opinion for the Court and did not pen any kind of concurrence.  For those who thought (or hoped) Justice Kennedy was on the verge of disbanding capital punishment, this is hugely important.

The opinion is here, 5-4, by Justice Alito.  I will have more later.

Update:  At the end, the opinion of the Court says,

Finally, we find it appropriate to respond to the principal dissent's groundless suggestion that our decision is tantamount to allowing prisoners to be "drawn and quartered, slowly tortured to death, or actually burned at the stake." Post, at 28. That is simply not true, and the principal dissent's resort to this outlandish rhetoric reveals the weakness of its legal arguments.

There is a side debate between Justices Scalia and Thomas and Justice Breyer regarding the constitutionality of capital punishment itself.  At first glance, Justice Breyer's argument appears to be all the usual stuff we have refuted time and again.

Update 2:  CJLF has this press release.

I realize that I am sometimes prone to overstatement, but I think readers will find the title of this entry justified.  The subject is a post on Sentencing Law & Policy titled, "A Second Chance: Re-biography as Just Compensation."  I will quote verbatim the opening paragraph of the tract it references:

Once upon a time, reinvention was an integral part of the myth of the American Dream. As the story went, one could leave the old country or old neighborhood, without looking back -- fashioning one's own second chance by stepping into a newer, better identity, crafting a redesigned life story out of whole cloth if necessary.  As one legal historian noted, "American culture and law put enormous emphasis on second chances." For most of the 20th Century, this notion of the second chance was also alive and well in the American criminal justice system, as rehabilitation was considered its primary goal.  My earlier article, "A Good Name: Applying Regulatory Takings Analysis to Reputational Damage Caused by Criminal History," couched the need for rebiography upon reentry in terms of the ongoing reputational damage suffered by the previously convicted.  Then, regulatory takings analysis was applied to that reputational damage.  In doing so, it analyzed the critical property-like characteristics of reputation, concluding that reputation is a form of "status property" and that such continued stigma attachment and reputational damage constitutes a "taking" without just compensation. Finally, it was argued that rebiography can serve as "just compensation" for this type of taking.

The WSJ's Washington Wire blog has this post on the remaining three cases of the current US Supreme Court term.  Word is they will all be decided tomorrow (Monday).

Something for everyone.  Here at C&C, we will be focused on Glossip v. Gross, the lethal injection with midazolam case.  Those who eat, sleep, and breathe politics will care most about the Arizona redistricting case.  Those who focus on issues of the environment and government regulatory overreach will be most interested in the power plant case.

I often find the book reviews in the WSJ to be entertaining reading over Saturday breakfast, even when I have no intention of ever reading the books reviewed.

William Rashbaum and Benjamin Mueller report for the NYT:

Richard W. Matt, one of the convicted murderers who staged an elaborate escape from New York's largest prison nearly three weeks ago, was shot and killed on Friday by a federal agent, two people with knowledge of the situation said.

The authorities encountered Mr. Matt after the inmate, who was on foot, tried to carjack a camper vehicle near Malone, N.Y., a third person with knowledge of the situation said. The driver sped away and called 911, and law enforcement officers responded.

There was a report of a second episode of gunfire as officers pursued David Sweat, the other inmate. The officers did not see Mr. Sweat, but they heard him running. His whereabouts was unclear.

Those who read the entry about the Weidert case in today's News Scan may wonder why Weidert was not sentenced to life without parole.  After all, isn't killing a witness to a crime to prevent his testimony "special circumstance" murder in California?

This case was decided in the darkest days of the California Supreme Court.  See People v. Weidert, 39 Cal.3d 836, 705 P.2d 380 (1985).  Cal. Supreme in those days bent over backward to resolve every conceivable issue -- and some inconceivable ones -- in favor of murderers.  Weidert was 17 1/2 at the time of the crime, and the court held that the circumstance of killing a witness to prevent his testimony in a criminal proceeding did not apply to a person who at least initially would have been in juvenile court for the underlying burglary.

CJLF filed an amicus brief to argue against this anomalous result.  (Not me, that was before my time here.)  Justice Lucas agreed with our position, as did Justice Mosk, but the court was so stacked against the law-abiding public at the time that the decision went 5-2 the other way.

Fourteen months later, the people of California tossed out three of the justices for their consistent tilt in favor of criminals.  That vote and the consequent vast improvement in the California Supreme Court remains to this day one of the strongest arguments against life tenure for judges.

High Court Strikes Down 'Vague' Part of Career Criminal Law:  Part of a law intended to keep violent repeat criminals in prison longer was struck down Friday by the Supreme Court in a ruling which states that the law's catchall phrase is too vague.  The AP reports that the Armed Career Criminal Act includes burglary, arson, extortion and the use of explosives as past crimes that can lead to a longer sentence, but then adds a crime that "otherwise involves conduct that presents a serious potential risk of physical injury to another."  Six justices agreed that the phrase was unconstitutional, determining that defendant Samuel James Johnson's prior convictions, which added five additional years to his 2012 sentence in which he pleaded guilty to federal weapons charges, does not qualify as a felony under the law.

Drug Smugglers Using the Skies:  Small, homemade planes flown  by drug smugglers have twice dropped bales of marijuana, totaling at 400 pounds, onto Arizona soil over the past week, indicating that drug cartels have taken to the skies.  Morgan Loew of KPHO reports that authorities believe that drug smugglers are experimenting with much even smaller aircraft  such as drones.  As technology advances, it is expected that drones will be able to "carry enough of a payload to make them viable drug smuggling vehicles."

ISIS Expansion Along U.S. Borders:  The U.S.-Mexico border has growing appeal for the Islamic State, the terrorist organization known as ISIS, due in part to the presence of powerful drug lords.  Siouxland News reports that the labyrinth of tunnels used by drug cartels to transport product from Mexico to the U.S. discreetly could easily turn into an "underground highway" for ISIS to gain access to the U.S.  Mexico's unstable leadership and ruthless drug cartels is creating an opportunity for terrorist organizations.  

Gov. Brown Considers Parole For Brutal Killer:  California Gov. Jerry Brown has until midnight to decide whether to block the parole for a man who buried alive a developmentally disabled Fresno-area man in 1980.  Don Thompson of the AP reports that 52-year-old David Weidert was sentenced to life in prison for the murder of 20-year-old Michael Morganti, who Weidert forced to dig his own grave before beating, stabbing, choking and burying him alive, to keep Morganti from testifying against him about a burglary.  A state panel has already granted Weidert parole, but Morganti's family, state lawmakers, Fresno County Sheriff and the California State Sheriff's Association are urging Gov. Brown to have it revoked.

Today the Supreme Court, 6-2-1, declared that the "residual clause" of the Armed Career Criminal Act is unconstitutional.

The ACCA has a "three strikes" provision for violent felony priors, defined as a crime punished by over a year in prison that :

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another

What the heck does that last part mean?  That's the problem.  Criminal laws need to be more clear than that, the majority says.  The rest of the law remains in force.

The case is Johnson v. United States, No. 13-7120.  Justices Kennedy and Thomas concur in the judgment overturning Johnson's sentence by applying rather than invalidating the statute.  That is, they believe the statute is constitutional but that possessing a short-barreled shotgun is not a violent felony under the statute.  Justice Alito dissents.

No Glossip today.  From a press coverage viewpoint, that's just as well, as the decision in a civil case will suck all the oxygen out of the room.  The Court has informed the press that Monday is the last day of the term, so we will definitely have a decision then.

I have noted several times on this blog how satirists sometimes imagine preposterous things and later someone really does or says what was once so absurd as to be funny.  Chief Justice Roberts gave us an example today in the health care decision, although he did not explicitly state the last part, instead expecting that everyone knows it.  He was explaining why some of the usual canons of statutory interpretation do not apply to this law because it is written so very badly.

The Affordable Care Act contains more than a few examples of inartful drafting. (To cite just one, the Act creates three separate Section 1563s. See 124 Stat. 270, 911, 912.) Several features of the Act's passage contributed to that unfortunate reality. Congress wrote key parts of the Act behind closed doors, rather than through "the traditional legislative process." ... And Congress passed much of the Act using a complicated budgetary procedure known as "reconciliation," which limited opportunities for debate and amendment, and bypassed the Senate's normal 60-vote filibuster requirement. ...  As a result, the Act does not reflect the type of care and deliberation that one might expect of such significant legislation. Cf. Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L.Rev. 527, 545 (1947) (describing a cartoon "in which a senator tells his colleagues 'I admit this new bill is too complicated to understand. We'll just have to pass it to find out what it means.'").

In the 1940s, that fictional senator's statement was so absurd that a cartoonist made it up for laughs, but in 2010 the Speaker of the House, Nancy Pelosi, said it for real. 

Prop 47 Blamed for Increased Thefts:  Law enforcement officials in a Central California town are pointing at Proposition 47, the voter-approved "Save Neighborhoods and Schools" initiative that reduced several felony offenses to misdemeanors, as the culprit in the rise of thefts.  Jackson Moore of the Dinuba Sentinel reports that Dinuba Police Chief Devon Popovich says that his department has seen a significant spike in thefts and drug offenses since Prop 47 passed last November.  Popovich acknowledges that while it has reduced the prison population, it certainly has not reduced crime or made neighborhoods safe.

Released Illegal Aliens Not Tracked or Registered:  Illegal immigrants convicted of rape, child molestation and other sex crimes are free in American communities without being tracked or registering as sex offenders.  Katie McHugh of Breitbart reports that the issue has been worsened by the 2001 Supreme Court ruling Zadvydas v. Davis, which determined that immigrants convicted of violent crimes can't be held for more than six months if their home country refuses to take them back.  Under the ruling, 134,000 criminal aliens have been released onto American streets is just three years.

Suspect in Fatal Crash Deported Three Times:  A man accused of causing a crash that killed a sports journalist in an Oklahoma town had previously been deported three times.  News 9 reports that 26-year-old Gustavo Castillo Gutierrez, driving without a valid driver's license, made an illegal U-turn in front of Bob Barry Jr. who was thrown off of his motorcycle, sustaining fatal injuries.  Gutierrez had been voluntarily returned to Mexico three times, twice in 2010 and again in 2013.

2^nd Officer Accused of Helping NY Inmates Escape:  A corrections officer at the Clinton Correctional Facility in upstate New York was charged on Wednesday with bringing a screwdriver and pliers into the maximum-security prison in exchange for paintings given to him by the two convicted murderers who escaped earlier this month.  Tom Winter of NBC News reports that 57-year-old Gene Palmer's arrest suggests that the escape may be part of a larger conspiracy involving multiple prison workers, who worked together to carry out the Shawshank Redemption-style breakout of David Sweat and Richard Matt.  Palmer faces charges of promoting prison contraband, two counts of tampering with evidence and official misconduct.  The massive manhunt for the two escapees is still ongoing.

Cop-Fleeing Car Jumps Curb, Kills 2 Children:  A driver fleeing Detroit police officers killed two children and injured four other bystanders when the car jumped a curb after a 75-second high speed chase that reached speeds of 80 MPH.  Daniel Bethencourt of the Detroit Free Press reports that the chase ensued when the two officers decided to pull the vehicle over after spotting one of the two occupants with a handgun.  The two children that died were ages two and six.  The driver and passenger of the fleeing vehicle were arrested at the scene.

Myron Magnet minces no words in the City Journal:

Twenty-three prior arrests, including menacing someone with a machete five years ago, and this madman is still walking the streets? Seeing a passerby's video of Sook Yeong Im, a pretty young Korean tourist, lying on the 40th Street sidewalk after crazy career criminal Frederick Young, 43, had twice slashed open her arm with his viciously honed weapon--exposing muscle fiber and sending blood spurting everywhere--brought back in an instant the knot of fear New Yorkers carried in their stomachs in the pre-Rudy Giuliani era, when out-of-control crime was killing not just one person every four hours, 365 days a year, but also was killing Gotham itself. That the assault occurred in Bryant Park at 11:30 on a sun-drenched early-summer morning, as the victim was looking for a seat after her yoga class, seemed to unravel just about every gain that the tireless efforts of thousands over 20 years had achieved to make New York once more the capital of the world. Suddenly, it seems we're back to Son of Sam or the Wild Man of West 96th Street.

The subtitle of the piece, BTW, is It's De Blasio Time, and madmen with machetes are on the loose.

There will be lots of headlines and discussion about two U.S. Supreme Court decisions today on "disparate impact" and Obamacare, but we are still waiting for Glossip v. Gross.  Maybe tomorrow.

A discussion of pot always stirs the pot, as it were, but perhaps even more interesting, from the professorial point of view, is a discussion of the current dispute between Oklahoma and Nebraska, on the one hand, and Colorado, on the other. The state law in the former two forbids pot,  as does federal law.  Colorado state law permits recreational use of the drug.

Alicia Parlapiano, Adam Liptak, and Jeremy Bowers write in the NYT:

The Supreme Court under Chief Justice John G. Roberts Jr. has been a conservative court. But even conservative courts have liberal terms - and the current term is leaning left as it enters its final two weeks.

The court has issued liberal decisions in 54 percent of the cases in which it had announced decisions as of June 22, according to the Supreme Court Database, using a widely accepted standard developed by political scientists.

If you have access behind the paywall at National Law Journal, you might think I agree with that assessment.  My view is more nuanced than a brief blurb in a newspaper article can explain.

I have remarked more than once on the shortcomings of the labels "liberal" and "conservative."  Sometimes they work, as I noted Monday.  Sometimes they don't.

In the cases I follow closely (criminal, habeas corpus, law-enforcement-related civil), the number of wins for the "liberal" side this term (the defendant, the habeas petitioner, the prisoner, the person challenging police action) is to some extent a function of the cases the Supreme Court has taken up.  There are several where even a pro-law-enforcement type like me thinks the "other" side properly won.

Judge Barry Silverman, writing the opinion for the U.S. Court of Appeals for the Ninth Circuit in United States v. Rodriguez, No. 14-10122 today:

There ought to be a law against shining a laser pointer at an aircraft. In fact, there is, and it's punishable by up to five years in prison, as appellant Sergio Rodriguez discovered for himself. Rodriguez, his girlfriend, and their kids were fooling around with a laser pointer one summer evening in the courtyard of their apartment complex - trying to see just how far it could go - and they shined it at overflying helicopters. Rodriguez was convicted of Aiming a Laser Pointer at an Aircraft, in violation of 18 U.S.C. § 39A, and was sentenced to the maximum sentence: five years in prison. Rodriguez does not challenge that conviction.

He also was convicted of another crime stemming from the same conduct - Attempting to Interfere with the Safe Operation of an Aircraft, in violation of 18 U.S.C. § 32(a)(5) and (8). That crime requires proof of a willful attempt to interfere with the operator of an aircraft, with either the intent to endanger others or reckless disregard for human life. Rodriguez was charged with and found guilty of the reckless variety, and for that offense, was sentenced to fourteen years in prison.

Dzhokhar Tsarnaev apologized to his victims today, at least those (being quite a few) who are still alive to be able to hear it. CNN has the story.

U.S. Won't Prosecute Hostages' Families Who Pay Ransom:  Families of Americans held hostage by terror groups will not face prosecution if they communicate with or pay ransom to captors, outlined in a broad review of U.S. hostage guidelines released Wednesday.  The AP reports that there will be no formal change to the law, but the Obama administration has clarified that the Justice Department will not prosecute anyone for paying ransom.  The government is still banned from directly paying ransom or facilitating payments for families.  Four Americans have been killed by the Islamic State terror group since last summer, and two other American hostages have been killed in recent months.

DHS to Release More Illegal Immigrant Families:  Even though a recent report revealed that 84 percent of Central American families who illegally entered the U.S. last year seeking asylum failed to appear in court, the Obama administration proceeded to further reduce family detention.  Caroline May of Breitbart reports that Department of Homeland Security (DHS) Security Sec. Jeh Johnson has approved a new plan which allows U.S. Immigration and Customs Enforcement (ICE) to offer release on monetary bond to illegal immigrant families who state a credible fear of persecution in their home countries.  Family detention will continue for those who are not seeking relief.

NY Prison Worker Hid Tools in Meat:  The prison tailor accused of assisting murdererss David Sweat and Richard Matt in the escape from a New York prison reportedly smuggled tools in hamburger that made it through the main gate.  Shimon Prokupecz, Steve Almasy and Jethro Muller of CNN report that Joyce Mitchell admitted to putting hacksaw blades and drill bits into hamburger, placed it in a freezer in the tailor shop after getting it through the main gate, and passed it off to corrections officer Gene Palmer to bring to the inmates' cell area.  Palmer did not put the package containing the meat through the metal detector - a violation of prison policy - though prosecutors don't believe he had any knowledge of what was concealed in the meat.  Convicted murderers Sweat and Matt are still on the run after 19 days.

Policies, Criticisms Hinder Border Protection:  The El Paso-area U.S. Border Patrol union is calling on the National Border Patrol Council to address policy changes that limit agents' ability to do their jobs and that open them up to public scrutiny.  Aaron Martinez of the El Paso Times reports that the biggest issue facing Border Patrol agents is that they are being "vilified" for incidents involving use of force, despite the fact that their use of lethal force is seven times lower than the national average.  Another problem involves recent policy changes, one in which restricts agents from searching for drugs at train and bus stations.

Most Illegal Immigrants Skipped Court Date:  New data reveals that the policies implemented last year to address the surge of Central American immigrants across the border has failed to stop the influx of thousands more this year, the majority of whom don't show up to court when charged with a crime.  William La Jeunesse of Fox News reports that according to statistics released by the Department of Justice Executive Office of Immigration Review, 84 percent of those adults with children who were allowed to remain free pending trial absconded.  The "credible fear" argument often used by Central American immigrant women and children is rejected by judges 92 percent of the time, making running away is a good option.

Dallas Murder Rate on the Rise:  The month of June in Dallas, Texas has been a violent one, with 22 homicides in 22 days, an 18 percent increase.  J.D. Miles of CBS DFW reports that last June, there were only seven homicides.  The Dallas Police Department has not yet commented on possible causes or solutions.

Stabbing Suspect Released Then Rearrested:  A Sacramento man, arrested Sunday for attacking three men with a knife, was released on bail Monday.  Ben Egel of the Sacramento Bee reports that Timothy Brownell 25, assaulted three local musicians in midtown at about 11:45 p.m. Sunday evening stabbing one man in the side, one in the arm and cutting a third in the hand.  Following Brownell's release on bail Monday, police issued a new warrant for his arrest after learning that the assault may have been a hate crime.  One may ask why was this clearly dangerous suspect granted bail in the first place?    

USCA 9 has scheduled oral argument in Jones v. Davis for August 31 at 9:30 in Pasadena.  We don't know who the panel is yet.

This is the case where a federal district judge in California said that because the opponents of the death penalty have been successful in obstructing the will of the people they now get to throw it out altogether.  See prior posts:

August 21, 2014, with links to earlier posts.

Jones v. Chappell Appeal, August 26, 2014

Jones v. Chappell Brief, December 2, 2014

CJLF Brief in Jones v. Davis, December 11, 2014

The panel is critical.  If we get a majority of persons of sense, the decision will be reversed at this point.  If not, we will have to go higher -- possibly (but not likely) the Ninth Circuit pseudo-en-banc, and failing that to the Supreme Court.  I am confident that the Supreme Court will take the case and reverse if it comes to that, but hopefully we will get a reversal earlier.

So often when the media perceive a "crisis," we hear the call for a "national conversation" about what should be done.  There have been repeated calls for a "national conversation" about race, the war on drugs and its consequences, policing, and "mass incarceration."  An outrage, we are told, needs the nation's focused attention, and, more than that, our action.

The horrific shooting in Charleston has prompted the Governor of South Carolina to call for removal of the Confederate battle flag from the statehouse grounds, Josh Dawsey reports for the WSJ.

Along with the underlying Fourth Amendment question, Los Angeles v. Patel, decided today by the U.S. Supreme Court, has some interesting discussion about facial versus as-applied attacks on statutes (or ordinances).

Can a court really "strike down" a statute, as we so often casually say when discussing a constitutional case?  No, not really.  Repeal of a statute is a legislative function.  The theory of judicial review, as explained way back in Marbury v. Madison, is that the court must decide the case, and if the higher law of the Constitution points to one result and the lower law of the statute points to the other, the higher law must govern.  That does not wipe the statute off the books, though.  The statute at issue in Marbury gave the Supreme Court the authority to issue writs of mandamus, and it still had that authority under that statute after Marbury as long as it exercised the authority in its appellate jurisdiction, such as issuing it to control a lower court, and not by expanding its original jurisdiction beyond constitutional limits.

But can a court decide that a statute is completely void?

Violent Crime Up in Sacramento:  A spike of assaults and robberies has brought violent crime in Sacramento, CA to a 25 percent increase this year, though it "doesn't necessarily point to a yearlong trend."  Richard Change of the Sacramento Bee reports that aggravated assaults and robberies have both risen by 23 percent, rapes have increased by 59 percent and homicides jumped 27 percent in the first five months of 2015.  Former Sacramento County Sheriff John McGinness believes that the AB 109 prison realignment program and Prop 47 are the cause of the city's growth in crime.

SC Continues to Fight for Drug Supply:  South Carolina Gov. Nikki Haley publicly stated that the 21-year-old man who shot dead nine churchgoers during a Bible study at a historic African American church in Charleston, South Carolina "absolutely" should be put to death, though the state continues to struggle to secure one of the drugs needed for lethal injection.  Seanna Adcox of the AP reports that the state's supply expired in 2013 and is not permitted to purchase any more, according to Corrections Director Bryan Stirling.  The state currently has 44 inmates on death row and carried out its last execution in 2011.  The church shooter, Dylann Roof, is due back in court in October.  His execution order is still years away.

Manhunt for Escaped Killers Heats Up:  The manhunt for escaped New York murderers Richard Matt and David Sweat has energized after their DNA was reportedly found in a burglarized cabin 20 miles west of the Clinton Correctional Facility from where they escaped.  Law enforcement has neither confirmed nor denied the new information while the investigation is still active.  Matthew Diebel of USA Today reports that law enforcement has encouraged the public to be vigilant and on high alert for the two suspects, but to remain extremely cautious.  The two inmates used power tools to break out of the maximum-security prison near the Canadian border on June 6 and have been at large ever since.

Five States Have No Hate Crime Laws:  In the wake of the tragic shooting last week in which a white man shot and killed nine black parishioners inside of Charleston's historic Emanuel AME Church, the state is unable to pursue hate crime charges against defendant Dylann Roof because there is no such law on the books.  Rudy Williams of Local Memphis reports that South Carolina is one of just five states that have no hate crime laws, along with Arkansas, Georgia, Michigan and Wyoming.  . 

No decision in Glossip v. Gross.

The Supreme Court decided two criminal-related civil cases.  In Los Angeles v. Patel, the Court struck down as unconstitutional on its face an LA ordinance letting the police inspect the guest registries of hotels at any time without a warrant.  That is constitutional for junkyards, but, no, people are not the same as wrecked cars.

The second case is Kingsley v. Henderson.  Pretrial detainees who claim that excessive force was used against them face a lower bar to recovery than convicted criminals.

Both cases were decided 5-4, with the "liberals" plus Justice Kennedy being the majority.  (I generally don't care for those labels, but sometimes the simplistic model works.)

It also bears noting that Spider Man made an appearance in the high court in a patent/contract case, Kimble v. Marvel Entertainment LLC.  How he made it through the court's tight security in that outfit I do not know.  Justice Kagan has a good time with it, including a Spidey quote from 1962:  "[I]n this world, with great power there must also come--great responsibility."

The next decision day is Thursday.

Texas Murderer Executed:  A Texas murderer was executed Thursday evening for the 2001 murder of a 75-year-old auto repair shop owner.  Michael Graczyk of the AP reports that Gregory Russeau robbed James Syverston at his shop in East Texas, fatally beat him and stole his vehicle before being apprehended at a drug house.  He became the 17^th convicted killer to die by lethal injection in the nation this year and the ninth in the state.

High Court Reinstates CA Murderer's Death Sentence:  In a 5-4 decision, the U.S. Supreme Court justices reinstated the conviction and death sentence of a California murderer on Thursday, ruling that the defendant was not entitled to argue that prosecutors excluded minority jurors from his 1989 trial.  Sam Hananel of the AP reports that Hector Ayala was sentenced to death for a triple murder that occurred during a drug robbery in San Diego.  The court determined that while there were trial errors, such as the trial judge allowing prosecutors to explain their reasons for excusing jurors when Ayala's lawyers were not present, they were ultimately harmless.

Three L.A. Gangs Unite to Control Trafficking:  A racketeering indictment against 22 gang members says that three rival Los Angeles gangs formed a rare alliance to control drug trafficking and crime in Northeast Los Angeles.  The AP reports that 55-year-old alleged Mexican Mafia member Arnold Gonzalez, serving a life sentence for murder, ordered the truce from his prison cell, uniting the Frogtown, Toonerville and Rascal gangs to divvy up profits.  The unification is described as a "unique and dangerous turn of events."

4 Shootings in 28 Hours in Fresno:  Four people have been shot in four separate shooting incidents over the last few days in Fresno, California, all occurring within a 28-hour period.  Corin Hoggard of ABC 30 reports that police attribute drug and gang problems to the increased violence in some areas, and also see "a multitude of issues" stemming from AB 109 and Prop 47.  Suspects from some of the shootings are still at large.

CHP to Begin Testing Body Cameras Next Year:  The California Highway Patrol (CHP) will begin testing body cameras next year under a proposal included in the state budget that is being considered today by lawmakers.  Don Thompson of the AP reports that the budget gives the CHP $1 million to develop policies that address law enforcement's use of body cameras by January 1 before a sampling of officers start testing the cameras in four areas of the state.  It will take an estimated $10 million to expand the program to every one of the state's 8,000 CHP officers.

Second Cartel Surveillance System Found Near Border:  Mexican authorities have dismantled yet another sophisticated video surveillance system set up by the Gulf Cartel near the U.S.-Mexico border to stay one step ahead of law enforcement, their rivals and their future victims.  Ildefonso Ortiz of Breitbart reports that 39 cameras were set up all around the city of Reynosa, just across the border from McAllen, Texas, under orders from the Gulf Cartel.  This discovery is similar to another seized in May which had 52 cameras placed around the city, some of which were wireless and controlled remotely.

Yesterday in the comments to Bill's post, Doug Berman raised the question of whether the Charleston killer should be prosecuted in state or federal court.  I will repost my answer here:

State. No question in my mind.

Unlike the Boston Marathon, this was not a national and international event but rather a local church. Also, there is no reason, at this point, to believe this murderer's attack was any kind of terrorist attack on the United States as a nation, as Tsarnaev's was.

There is no state action here, and any effect on interstate commerce is very tenuous. There was a time, half a century ago, when federal criminal law needed to be stretched to cover local cases of violence by individuals with no state action involved because state and local government was unable or unwilling to deliver justice and thus people were denied equal protection of the laws. Those days are long behind us.

Events are moving right along.  Valerie Bauerlein reports in the WSJ:

Alexandra Petri at the WaPo weighs in on the controversy of who should be ejected to make room for a woman on US currency.

In Davis v. Ayala, the Supreme Court today once again touched on the question of how the habeas corpus reforms enacted by Congress in 1996 interact with the limitations created in case law in the two decades prior.

Ayala claimed that the prosecution exercised peremptory challenges of jurors based on racial bias.  The trial judge permitted the prosecutor to state his legitimate reasons for the challenges to the judge, without the defense attorney present, and rejected the defense's claim.  On appeal, the California Supreme Court said that it was error under state law to exclude the defense.  It did not answer the question of whether that was a federal constitutional error because, if it was, it was harmless beyond a reasonable doubt, the standard required on direct appeal under Chapman v. California.  That is, the record was sufficiently developed that the court could say it would have made no difference if defense counsel had been in the room.

Three years before AEDPA, when federal courts in habeas corpus were still redeciding from scratch issues already fully considered by the state courts, the Supreme Court decided in Brecht v. Abrahamson that a judgment would not be overturned on collateral attack unless there was actual prejudice.

With the enactment of AEDPA and the "deference" standard, should a federal court decide (1) if the state court's "beyond a reasonable doubt" holding was "reasonable"; (2) if there was "actual prejudice" under Brecht; or (3) both?

Eleven years ago, the US Supreme Court upended its jurisprudence of the Confrontation Clause in Crawford v. Washington.  Because the test for the statements to be excluded under that clause was so different from prior law and because the Court left so much to be defined, no one was really sure whether the new rule would be broader or narrower than the old one once the dust settled.  Would federal constitutional confrontation challenges (as distinguished from state-law evidentiary challenges under the hearsay rule) apply to more out-of-court statements or fewer?

Today in Ohio v. Clark, a six-Justice majority of the Supreme Court took a big step toward making Crawford a narrow rule, with a seventh Justice holding out for a position that is narrower still (I think).  Justice Scalia is apoplectic, but I think his criticisms are off base.

If you were fleeing by car from a horrible crime, one for which you are likely to get the death penalty if caught, wouldn't you take scrupulous care to observe all traffic laws so you don't get stopped by the police?  Disregard for the law across the board seems to be such a pervasive character trait in some people that they can't, apparently.

Robert Costa, Lindsey Bever, J. Freedom du Lac and Sari Horwitz report in the WaPo, "Charleston Police Chief Greg Mullen said [Dylann] Roof was arrested during a traffic stop in Shelby, N.C., just after 11 a.m., roughly 14 hours after officers responded to the shooting at Emanuel AME."

President Obama made some remarks about the Charleston church massacre. They were notable both for what they included and what they omitted.

 "We don't have all the facts, but we do know that once again innocent people were killed in part because someone who wanted to inflict harm had no trouble getting their hands on a gun," he continued. "Now is the time for mourning and for healing, but let's be clear: At some point, we as a country will have to reckon with the fact that this type of mass violence does not happen in other advanced countries.  It doesn't happen in other places with this kind of frequency."

More Judges Sought for TX Immigration Backlog:  The number of Texas-based immigration cases gridlocked in federal courts has increased by 58 percent in less than two years, with a total of 77,000 pending cases.  Julian Aguilar of the Texas Tribune reports that a Texas Congressman has proposed securing money for an additional 55 immigration judges to make a dent in the backlog.  Texas currently has 31 immigration judges.  A member of the House Appropriations Committee predicts that "every court or processing center [in Texas] will go up" when the judges are hired.

Shooting Spree Kills 9 at SC Church:  The 21-year-old man who opened fire inside of a South Carolina church shortly after 9 PM on Wednesday evening, killing nine people, was captured and arrested in a traffic stop on Thursday over 240 miles away from the crime scene.  Fox News reports that Dylann Roof sat in the pews of the Emanuel Episcopal Church, a historic African American church, for an hour before opening fire with a .45-caliber pistol he received for his 21^st birthday and fleeing the scene.  Since Roof is white and the shooting occurred at an African American church, the Department of Justice has opened up a hate crime investigation to determine if his actions were racially motivated.

Supreme Court Rules in Favor of TX on Confederate Flag License Plates:  The U.S. Supreme Court ruled Thursday that Texas authorities were justified in refusing the issuance of specialty license plates bearing a Confederate battle flag.  David G. Savage of the LA Times reports that in a 5-4 decision, the justices determined that a state-issued license plate is government speech rather than the private speech of a motorist, and thus, not applicable to the free speech clause.  The dissenting justices argue the opposite, calling it "blatant viewpoint discrimination" to reject one group's message as offensive.

Lawyers and law professors have a tendency, I have found over the years, to become entranced by the nuances of the latest Supreme Court decision while overlooking the elephant in front of their eyes.

The Supreme Court in Davis v. Ayala held, 5-4, that the Ninth Circuit erred in granting habeas to a California triple murderer.  The case is most notable, in my view, for its disciplined application of the harmless error doctrine and its respect for the AEDPA.  I also can't help thinking that the Court is becoming impatient with interminable delays fostered by years of procedural disputes long past the time, and having next to nothing to do with, the ascertainment of the defendant's factual guilt. Thus the majority opinion, written by Justice Alito, begins:

A quarter-century after a California jury convicted Hector Ayala of triple murder and sentenced him to death, the Court of Appeals for the Ninth Circuit granted Ayala's application for a writ of habeas corpus and ordered the State to retry or release him. The Ninth Circuit's decision was based on the procedure used by the trial judge in ruling on Ayala's objections under Batson v. Kentucky, 476 U.S. 79 (1986), to some of the prosecution's peremptory challenges of prospective jurors. The trial judge allowed the prosecutor to explain the basis for those strikes outside the presence of the defense so as not to disclose trial strategy.  On direct appeal, the California Supreme Court found that if this procedure violated any federal constitutional right, the error was harmless beyond a reasonable doubt.  The Ninth Circuit, however, held that the error was harmful.

The Ninth Circuit's decision was based on the misapplication of basic rules regarding harmless error.  Assuming without deciding that a federal constitutional error occurred, the error was harmless under Brecht v. Abrahamson, 507 U.S. 619 (1993), and the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254(d).

The US Supreme Court has unanimously reversed the Ohio Supreme Court's decision to exclude from evidence a teacher's testimony about the statements made by an abused child.  I will update this post after I have had time to read the decision.  The fact that it is a solid majority, with six Justices joining the opinion without qualification, should bring some clarity to a confused area of law.

Update:  CJLF has this press release.

Just when the "Drugs-Aren't-That-Bad-and-Besides-Drug-Laws-Are-Racist" gang is pushing to lower sentences for "non-violent" drug offenses, reality steps in.  Hence I bring you this story from today's Washington Post, titled, "DC Wants Synthetic Drug Suppliers to Get More Than Just a Slap on the Wrist'."  DC, of course, is run entirely by liberal Democrats; this is not Chuck Grassley or Mitch McConnell we're talking about.

D.C. Mayor Muriel E. Bowser vowed Monday to crack down hard on suppliers of synthetic drugs after a spike in overdoses sent dozens to area hospitals in the past month.

Bowser plans to introduce emergency legislation this week that would give the D.C. police chief authority to shut down any business found selling the drugs for a period of 96 hours while police investigate.

The legislation would also institute a "two-strike rule," allowing the police chief to shut down any two-time offenders for a period of up to 30 days, coupled with a $10,000 fine -- five times as much as the current penalty.

Judge Rules MN Sex Offender Program Unconstitutional:  Minnesota's sex offender program violates the fundamental rights of over 700 people locked up indefinitely upon completion of their prison sentences, a federal judge ruled Wednesday.  Steve Karnowski of the AP reports that U.S. District Judge Donovan Frank ordered legislators to reach a program remedy by August, which must include the creation of alternate less restrictive facilities, or he will impose his own.  The 2011 class-action lawsuit filed for residents of the state's two secured facilities argues that the commitment of sex offenders after they've finished their prison sentences is unconstitutional on the grounds that "hardly anyone ever gets out."

Man who Provided Guns for Texas Cartoon Contest Arrested:  A Phoenix man identified as the third person who helped orchestrate last month's shootout at the "Draw Muhammad" cartoon contest in Garland, Texas had aspirations to join ISIS and attack the Super Bowl.  Fox News reports that Abdul Malik Abdul Kareem provided the guns used by Elton Simpson and Nadir Soofi to attack the event, where they were both fatally shot by security guards.  Kareem was arrested last week on charges of conspiracy, making false statements and interstate transportation of firearms with intent to commit a felony.

Senator Proposes GPS Implants to Track Violent Convicts:  With two escaped murderers from an upstate New York prison still on the loose, a New York Senator proposes implanting tiny GPS devices under convicts' skin to track them.  CBS New York reports that the proposal, introduced by State Sen. Kathy Marchione, is not only a way to improve public safety but also strengthen prison staff's ability to control inmates within institutions.  Local residents are split on the idea, with half believing the measure to be unconstitutional.  Legislators say that only the most violent convicts would be implanted.

FBI Targets ISIS Supporters:  The FBI is currently engaged in a broad campaign to disrupt potential terrorists inspired by Islamic State, a terrorist group also known as ISIS, and expects to make several arrests before July 4^th.  Aaron Katersky and Pierre Thomas of ABC News report that hundreds of investigations are active in all 50 states, mostly targeting suspected ISIS supporters.  Authorities have arrested five suspected supporters since last month's attack at the "Draw Muhammad" event in Garland, Texas.

Adam Freedman has this book review in the City Journal with the above subtitle.  The title is Against Judicial Activism, and he reviews The Constitution: An Introduction by Michael Stokes Paulsen and Luke Paulsen.

It is interesting to compare the views of the the reviewer, the reviewed, and myself on the basic principle and specific applications.  Freedman says, "The Paulsens are at their best when critiquing the modern era of judicial activism. In their telling, the Warren Court (1953-69) produced 'careless' decisions, because the justices were focused on achieving policy goals rather than upholding the law."  Not sure I would have used the word "careless," but otherwise we are all agreed on that.  I shake my head whenever I hear activist justices such as Warren, Douglas, Brennan, and Marshall referred to as defenders of the Constitution.  In fact, they were gross violators of Constitutional Right Number One -- the right of the people to govern themselves through the democratic process.  Any time a judge usurps to the judiciary a question of policy that the Constitution actually leaves to the people, he violates the Constitution every bit as much as the notorious Sheriff Screws did.  The subheading of the review, which I chose to be the title of this post, is exactly right.

Today the U.S. Court of Appeals for the Ninth Circuit hears argument en banc in a controversial gun control case.  The summary to the three-judge panel opinion describes the case:

The panel reversed the district court's summary judgment and held that a responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense.

Plaintiffs challenged a County of San Diego policy which interpreted California's restriction on carrying handguns in public. California generally prohibits the open or concealed carriage of a handgun, whether loaded or unloaded, in public locations, absent the showing of, among other things, good cause. Under San Diego's policy, concern for one's personal safety alone is not considered good cause.

Ashby Jones has this article in the WSJ.  The court has this case page.  The oral argument is here.

From the Answers to Questions Practically No One Is Asking File ... Did a statute enacted almost 20 years ago abrogate a Supreme Court decision rendered almost 40 years ago with hardly anyone noticing, even though this involves a very heavily litigated area of law?  Nope, even the Ninth Circuit won't buy that.

Hundreds of Murders Linked to Release of Immigrants:  New data reveals that 121 illegal immigrants released into U.S. communities by the Obama administration went on to commit murder.  Stephen Dinan of the Washington Times reports that most of the immigrants were released under the discretion of U.S. Immigration and Customs Enforcement (ICE), who contest that a criminal record is not sufficient to qualify for mandatory detention under their policies.  ICE stiffened their policies this year, and now has a supervisor approve cases in which the agency plans to release immigrants with serious criminal records.

Gang Members Responsible for Violence in TN City:  After four people were injured in shootings over the past two days, law enforcement in Chattanooga, Tennessee believe that a rivalry between 12-15 gang members is driving the city's violence.  Sara Sidery of WRCB reports that according to Fred Fletcher, the city's Chief of Police, there is "a lot of mobility between traditionally established groups" with members breaking off and forming their own groups, igniting conflict.  The city has seen nine total shootings in recent weeks, six of which occurred all in the same week.

ICE's Sex Offender Policies Face Criticism:  A Boston Globe investigation found that hundreds of convicted rapists and child molesters who do not have American citizenship are released into U.S. communities because their home countries refuse to take them back.  Jeff Goldman of NJ reports on the Globe's findings, which show that after sex offenders complete their sentences, U.S. Immigration and Customs Enforcement (ICE) fails to ensure that they register with local authorities.  A 2001 Supreme Court ruling, which states that ICE is not permitted to detain immigrants indefinitely once they complete their prison term, is at the root of the issue.

Actions of Social Workers Investigated After Beating of Boy:  The actions of social workers overseeing the family of a 13-month-old Los Angeles boy are being investigated after he was found brutally beaten last week.  Garrett Therolf of the LA Times reports that Fernando Garcia was found with bruises and burns on his body and the boyfriend of his mother, who Fernando was reportedly fearful of, was arrested on suspicion of child abuse.  Two domestic violence reports in the boy's mother's past leave the Department of Child and Family Services confused as to why the social workers didn't take a more "assertive and probing approach."  Fernando is not expected to survive his injuries.

One of the central arguments for abolishing the death penalty is that life "with no possibility of parole" will keep us just as safe and will impose all the retribution we need (or should tolerate) in the 21st Century.  We heard this over and over in Boston Marathon case:  That if we'd just put Tsarnaev in jail for life, he'd be miserable for decades, contemplating the suffering he caused.

As we have noted on this blog, Heather MacDonald has dared to tell the truth about the real-world effect the attacks on policing are having.  Naturally, the forces of Political Correctness have criticized her.  In this op-ed in the WSJ, MacDonald responds to the critics.  Here is the concluding paragraph:

Activists and many criminologists may continue to deny the importance of proactive policing, even as shootings increase, but its effectiveness was central to America's remarkable crime reduction of the past two decades. Police departments must constantly reinforce the message of courtesy and respect, and train officers to minimize the use of force. But when the police back off, crime eventually goes up. If anti-cop vituperation tapers off in the coming months and police start to feel supported in their work, the recent crime increases may also taper off. If the media-saturated agitation continues, however, the new normal may be less policing and more crime.

Escaped NY Prisoners Planned to Kill Prison Worker's Husband:  The two convicted murderers who escaped from a New York maximum security prison over a week ago were allegedly planning on killing the husband of the prison worker accused of helping them escape.  Fox News reports that 51-year-old Joyce Mitchell had planned on picking up David Sweat and Richard Matt in her vehicle to drive them to her home, but instead checked herself into a hospital after getting cold feet.  Mitchell reportedly befriended the inmates and smuggled in contraband and power tools for them.

Realignment Causes Violence, Smuggling in SLO Jails:  The San Luis Obispo County Sheriff's Office continues to face challenges of violence and smuggling at the County Jail due to a changing inmate population that shifted after prison realignment, also known as AB 109, was passed in 2011.  Matt Fountain of the San Luis Obispo Tribune reports that an increased presence of dangerous AB 109 inmates has caused an uptick in assaults, violence and gang politics, and their proficiency in drug smuggling has caused a surge of contraband in the jail.  At any given time, 30 to 35 percent of jail inmates in the San Luis Obispo County Jail are AB 109 inmates.

Border Violence Spikes Due to Drug Cartel Infighting:  The bloody rivalry between Sinaloa cartel cells known as Los Memos and Los Salazar have caused violence and danger to surge at the U.S.-Mexico border, evident in a slew of gun battles that have occurred over the last few months.  Perla Tevizo of the Arizona Daily Star reports that the Sinaloa cartel has decentralized over the years, resulting in "sporadic, violent power struggles between plaza bosses in Northern Sonora" as the cells attempt to take control of drug smuggling areas.  The western corridor of the Border Patrol's Tucson sector has been the busiest drug smuggling route for years and the site of increasing violence.

Missouri Seeks Death Penalty for Illinois Murderer:  Prosecutors in Missouri are seeking the death penalty for a man serving multiple life sentences for six slayings in Illinois and is now accused of murdering an Arkansas couple.  The AP reports that 35-year-old Nicholas Sheley attacked Tim and Jill Estes as they left a graduation party at a hotel in Festus, Missouri in 2008, abducting and murdering them.  Sheley is currently serving six life sentences in Illinois for a string of slayings that began in his hometown.  He was extradited to Missouri in February.  An arraignment is scheduled in July.

Judge Reduces Bonds for 'Waco 17,' Seizes Guns from President:  Of the 170 bikers arrested after the Twin Peaks shoot-out in Waco, Texas last month, 120 of them are out of jail on reduced bonds, and the chapter president of one of the clubs is about to join them.  Lana Shadwick of Breitbart reports that Judge Ralph Strother reduced the bond of the Cossacks Motorcycle Club Waco chapter president John Wilson, but has ordered him to turn over all of the guns in his home, which total at around 30.  Other conditions of Wilson's release include wearing an ankle monitor and avoiding other members of the club.

Man Linked to Dallas Police HQ Shooting was Mentally Unstable:  The man who sprayed the front of the Dallas Police Headquarters with bullets before leading police on a car chase just after midnight on Saturday was mentally unstable, according to his family members.  The AP reports that James Boulware, who was fatally shot by police during the incident, was delusional and showed signs of violence in the past, including choking his mother in 2013.  Boulware's family says they tried to get him help, but he was declared sane.  No one else was harmed in the weekend shooting.  Fourteen officers who were involved are on standard administrative leave pending investigation.

Before a prisoner can file a habeas corpus petition in federal court collaterally attacking his state conviction, he must first exhaust all his remedies in state court.  See 28 U.S.C. §2254(b).  Additional rules governing federal habeas corpus require that the federal court look at why the state courts denied relief.

The "procedural default" rule says that if the prisoner failed to make his claim in the manner and within the time required by established state rules, and the state courts rejected his claim for that reason, the federal court cannot consider the claim either unless one of the exceptions to the rule applies.  (Actual innocence is an exception.)  What does the federal court do when the last state court decision simply says "denied" but an earlier decision has a full explanation?

Way back in 1991, in the case of Ylst v. Nunnemaker, CJLF helped establish the "look through" rule.  Is that rule still in effect?  The Supreme Court today turned down a case on that question, but Justice Ginsburg shared some thoughts on the question even while agreeing that this case was not the right vehicle to resolve it.

The U.S. Supreme Court issued decisions today, but none in the major cases.  Mata v. Lynch deals with a procedural glitch in reviewing the deportation of an alien for committing a crime.  The Court took up Bruce v. Samuels, a Prison Litigation Reform Act case on how we deal with litigious inmates.

More decisions will be handed down Thursday.

Tracy Overstreet reports for the Grand Island Independent:

The Nebraska Sheriffs' Association has voted unanimously to back a petition aimed at restoring the death penalty.

The group met on Wednesday morning in Grand Island at the Nebraska Law Enforcement Training Center.

Federal Aid to Screen Illegal Aliens in Local Jails:  The sheriff in Harford County, Maryland has requested federal aid from the U.S. Immigration and Customs Enforcement (ICE) to participate in the Delegation of Authority Program, which helps law enforcement conduct more comprehensive reviews of the immigration status of people arrested and booked in their jails.  Allan Vought of the Baltimore Sun reports that part of the aid will be put toward training 10 correctional officers, who would screen every person arrested in the county in a uniform manner that will "unquestionably identify all illegal immigrants."  The program is believed to benefit the community by putting immigration and customs enforcement in the hands of the locals.

Killer Freed From Prison:   A man sentenced to life in prison for the 1985 murder of a Redding, California woman was released from the California Medical Facility in Vacaville on Monday after nearly 30 years behind bars.  Erika So of KRCR reports that 85-year-old Howard Glen Burgess murdered Ramona Young, whose body was dumped near a lake in a duffel bag with a strap wrapped around her neck.  Burgess was granted parole last year, had it overturned by Gov. Jerry Brown, filed a writ of habeas corpus and had it granted after a series of parole hearings.  Ramona Young's family members learned of Burgess' release just five days before he walked free.

Woman Murdered While Waiting For Gun Permit:  A New Jersey woman was stabbed to death by her violent ex-boyfriend on the driveway of her home last Wednesday, two days after checking the status of the gun permit she applied for in April.  Perry Chiaramonte of Fox News reports that 39-year-old Carol Browne had filed a restraining order against 45-year-old Michael Eitel and installed surveillance cameras around her home, fearing that he would harm her after several threats were made against her.  Legislators in New Jersey, a state that has some of the strictest gun laws in the country, are planning to introduce a bill that would fast-track the handgun permit process for applicants who have obtained restraining orders.  Eitel was discovered dead three days later of a self-inflicted gunshot wound in the garage of another ex-girlfriend.  

Teenage ISIS Recruiter Pleads Guilty:  A Virginia teen pleaded guilty to federal charges of providing material support to the Islamic State (ISIS), facing up to 15 years in prison if convicted.  Wesley Bruer and Pamela Brown of CNN report that 17-year-old Ali Shukri Amin helped another teen travel to Syria to join ISIS and also passed messages between the terror group's contacts.  The case further exemplifies the power of social media as a recruitment tool that is beginning to resonate with many Americans, and also shows that such a tool is equally powerful in intercepting terrorist activities.  Amin faces sentencing on August 28.

State's Attorney Asked Police to Target Freddie Gray Corner:  According to an email sent to the division chief of the Crime Strategies Unit, Baltimore, State's Attorney Marilyn Mosby requested that police focus drug enforcement efforts on the corner where Freddie Gray was chased by officers before allegedly suffering a fatal injury in police custody.  Kevin Rector of the Baltimore Sun reports that the new information reinforces the need to remove Mosby from the case because "this is a case where the witness and the prosecutor are one and the same."  Mosby's office has argued against previous requests for her removal from the case and had no immediate response to a request for comment regarding the new findings.

Amtrak Engineer Did Not Use Phone at Time of Crash:  Phone records show that Brandon Bostian, the Amtrak engineer who was operating the train that crashed near Philadelphia last month, was not using his phone at the time of the accident, which left eight people dead and hundreds injured.  Rene Marsh, Jason Hanna and Matthew Hoye of CNN report that Bostian claims no memory of the crash, saying that he is unable to recall anything that happened after he pulled the train's whistle three miles before the crash.  Though records indicate that he wasn't using his phone, investigators still need to determine whether the phone was turned off.

Female Prison Worker Supplied Tools to Escaped Killers:  Sources say that a female prison work supervisor gave two convicted murderers the power tools used to escape from a New York maximum-security prison last Friday.  Fox News reports that 51-year-old Joyce Mitchell gave Richard Matt and David Sweat power tools that they used to cut through steel walls, and also planned to provide a getaway vehicle for the escape but instead checked herself into a hospital following a panic attack.  To date no charges have been filed against her.  The two escapees are still at large.

144 Illegals Arrested Near Border:  Two separate stash house raids conducted in Texas border cities have resulted in the arrests of 144 illegal immigrants.  Ildefonso Ortiz of Breitbart reports that authorities were alerted to the locations of the stash houses after a series of interviews with people in custody.  So far this year, the U.S. Border Patrol has processed approximately 96,000 detentions, numbers that indicate "the beginning stages of a new migration wave."

Drug Use the Root Cause of Portland's Crime Spike:  Drug use may be the root cause of Portland, Oregon's spike in violent crime, according to the city's police department.  David Hench of the Portland Press Herald reports that there have been seven incidents in which a perpetrator brandished a gun or a knife in the course of a robbery, which acting Chief Vern Malloch believes to be a way for criminals to feed their drug habit.  The department notes that there have not been any comparable upticks in crime in the past.

Gun Trafficking Bill Targets Police:  New legislation requires police departments to provide federal authorities with information regarding guns recovered at crime scenes before becoming eligible for federal funding.  Time Devaney of The Hill reports that police departments must indicate how many guns they recovered the previous year, how many were sent to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) for tracing, and provide the reason why any guns were not submitted.  Currently, less than one-third of police departments use ATF's gun tracing database as a resource.

The Huffington Post, an anti-death penalty outlet, has a story about the escape from maximum security of two New York killers.  It's titled, "Escaped Murderers Left Behind Racist 'Have a Nice Day' Note."  The story begins thusly:

Richard Matt and David Sweat, the two men who were discovered this weekend to have escaped a maximum security prison in upstate New York, left a parting message: "Have a nice day!" But they certainly didn't mean it in a nice way.

Matt, 48, and Sweat, 34, reportedly left the taunting note prior to their escape. The two men, both convicted murderers, were discovered missing early Saturday morning from the Clinton Correctional Facility in Dannemora, New York...

The note also includes a racist image -- a "yellow square of paper with a smiling, bucktoothed face," as the Associated Press describes it.

We'll find out part of the answer today, when Missouri Gov. Jay Nixon makes his decision whether to cancel the pending execution of Richard Strong.

Strong brutally stabbed and slashed 23-year-old Eva Washington and two-year-old Zandrea Thomas to death after an argument in October, 2000 at the couple's apartment in St. Ann.

Strong spared his own daughter that he had fathered with Washington, Alyshia Strong, who was 3 months old at the time. She has asked Gov. Nixon to commute his sentence to life in prison, saying that he is an important part of her life.

A member of the family of Washington and Thomas who declined to give his name called Missourinet and said that they are, "sorry for the parents ... his parents ... and of course the daughter, our cousin, but right now he has to pay for what he's done, and we're ready for closure. Right now we would like for this man to be executed today and that would give us closure."

The Federalist Society Teleforum on the Facebook threats case, Elonis v. United States, previously noted here, is now available as a podcast.

The speakers are John Elwood, who argued the case for Elonis in the Supreme Court, and CJLF Legal Director Kent Scheidegger, who wrote an amicus brief supporting the government.

Execution for Missouri Murderer Scheduled Tuesday:  A Missouri man who stabbed his girlfriend and her 2-year-old daughter to death with a butcher knife in 2000 is scheduled to die by lethal injection on Tuesday evening.  The AP reports that 47-year-old Richard Strong will be the fourth inmate executed this year in the state.

Ohio Court Hears Arguments Over Repeat Execution Attempt:  Lawyers for an Ohio death row inmate argue that the execution of the country's only survivor of a botched lethal injection constitutes cruel and unusual punishment and double jeopardy.  Andrew Welsh-Huggins of the AP reports that Romell Broom, sentenced to die for the rape and murder of a 14-year-old girl in 1984, was supposed to be executed in 2009, but the execution team's failure to find a suitable vein after two hours led to the governor putting it on hold.  Prosecutors say that double jeopardy doesn't apply in this case because the drugs never entered Broom's veins.  The Ohio Supreme Court will hear arguments on Tuesday.

El Salvadorian Teen Gangsters Rape NY Girl:  Three teenage MS-13 gang members from El Salvador have been charged with the rape of a 16-year-old New York girl, whom the gangsters forced into a wooded area near a golf course where she was brutally assaulted by two of them while the third kept watch.  Chelsea Schilling of WND reports that the three teens would have qualified as "unaccompanied alien children" under the Deferred Action for Childhood Arrivals (DACA) program if they had a parent in the U.S.  It is yet to be confirmed whether they were initially brought to the states as part of that program.  MS-13, or Mara Salvatrucha, is a "highly organized and well-funded" gang in Central America that has infiltrated at least 33 U.S. states.

Border Surge Resumes:  The National Border Patrol Council says that the numbers of unaccompanied minors and incomplete family units have begun to increase in what appears to be the "opening stages" of a major surge resembling last summer's soaring numbers.  Brandon Darby of Breitbart reports that Border Patrol agent Chris Cabrera saw two groups of women and children, totaling 70, at the border in just one hour.  These illegal aliens are seeking out agents directly instead of trying to elude them, which is "really the mark that indicates a coming crisis," says Cabrera.

Tougher Parole Bill Moves Forward:  The Senate has approved legislation co-sponsored by New York State Senator Tom O'Mara, Assemblyman Phil Palmesano, legislative colleagues and family members of murder victims that extends the time period that murderers and other violent felony offenders have to wait to apply for parole.  My Twin Tiers reports that S.1483/A.1680 would extend the time frame between parole hearings from two to five years for violent felony offenders.  Sponsors and supporters of the measure say that prolonging the time period helps to spare families of victims repeated anguish and pain.

Heather MacDonald of the Manhattan Institute is as good as it gets in the debate whether the police are actually an occupying racist army (and let's face it, that  -- sometimes in disguised form, and sometimes not so disguised  --  is the accusation on the table).

New York Times columnist Charles Blow is angry again. This time he's angry at me, among other "tough on crime, fear-mongering iron fist-ers." Also, of course, at the cops. I had debated Blow last week about a Wall Street Journal op-ed of mine on depolicing and crime. Blow followed up with an online column in the Times entitled "Romanticizing 'Broken Windows' Policing." It exemplifies the confusions of the Left about crime and policing.

My article had proposed that a rise in violent crime in many cities across the country may be the result of officers' backing off from proactive policing. The last nine months have seen non-stop agitation against the police profession. Officers have routinely been called racists, murderers, and scourges of black communities. Arrests in inner-city communities are even more tense than usual, thanks to the media's constant amplification of the "racist cop" meme. Cops are becoming reluctant to engage in discretionary enforcement, according to their own reports, for fear that if an encounter becomes confrontational, they will become the latest YouTube racist-cop sensation -- or, worse, could find themselves indicted for a crime. 

The puzzle for the police is what critics like Blow want them to do -- police proactively and be accused of racism, or back off and wait for people to get shot and be accused of a dereliction of duty?

The article is chock full of facts and well worth the read.

My hat is off to the criminal defense bar and its allied interests on their relentlessness in attacking mandatory minimum sentencing.  There was yet another article straight from their agenda on the front page of the Sunday Washington Post.  It was an unvarnished puff piece about Judge Mark Bennett of Iowa.  

Debated to Death:  In this piece in the Register-Guard, District Attorney Joshua Marquis discusses the relentless political, legal and moral debate surrounding capital punishment in the wake of conservative Nebraska's decision to abolish the death penalty.

Murderers Who Escaped Prison Have Grisly Pasts: As day three ensues in the manhunt for New York inmates David Sweat and Richard Matt, the convicted murderers who busted out of prison in upstate New York, schools in the area have ramped up security and a prison staff member is being questioned as a possible accomplice.  Barbara Goldberg and Scott Malone of Reuters report that Sweat was serving a life sentence for killing a sheriff's deputy, and Matt was convicted of breaking the neck of a 76-year-old businessman and dismembering his body.  The escapees, the first in to break out of the maximum security prison in 150 years, are described as "really dangerous individuals."

Released Felon Kills Officer: A probe into the circumstances surrounding the release of a repeat offender who went on to murder a police officer is being conducted by New Mexico's attorney general.  The AP reports that 28-year-old Andrew Romero fatally shot officer Gregg "Nigel" Benner on Memorial Day.  Romero, a convicted felon, was on probation for crimes that warranted a 13-year jail sentence.

Sheriff Joe: Dems Want Immigrants For Votes:  Arizona Sheriff Joe Arpaio says that Democrats are interested in immigration reform mainly because of their belief that the newly legalized residents will vote for Democrats when they eventually obtain voting rights.  WND reports that President Obama's former immigration adviser Eliseo Medina previously boasted that granting citizenship to millions of illegals would "ensure a 'progressive' governing coalition for the long term."  Arpaio notes that illegal drugs crossing the border are the main issue the nation should be focusing on regarding immigration, rather than obtaining voting rights for them.

Judge & Lawmakers Seek Shut Down Of Detention Centers: As U.S. Immigration and Customs Enforcement works to expand two large detention centers in anticipation for the next wave of migrant families from Central America, a federal judge and Congressional Democrats are working to shut them down completely.  Breitbart News reports that House and Senate Democrats are demanding an end to family detention and improve conditions at detention centers.  The Department of Homeland Security argues that the centers are "necessary to stamp out widespread belief among migrants that the government is doling out 'permisos' for them to stay."

Men In Child Sex Sting Worked With Children: Among the 22 men arrested in a Florida undercover child sex sting were employees at Disney's Magic Kingdom, SeaWorld and Universal Studios, and one was a youth counselor.  Fox News reports that the men, who made arrangements online for sex with agents posing as underage girls, displayed "outrageous and deviant" communications and desires, according to Polk County Sheriff Grady Judd.  The theme parks have terminated the suspects arrested in the sting.

I learned of this today:

An Ad Hoc Committee to conduct a comprehensive and impartial review of the administration and operation of the Criminal Justice Act (CJA) has begun accepting public comments at the following address: CJAStudy@ao.uscourts.gov. It also is anticipated that in the course of its work the committee will hold public hearings.

The CJA was enacted to create a system for providing defense services to financially eligible federal criminal defendants. It became effective fifty years ago this year. Judicial Conference policy supports a periodic, comprehensive, and impartial review of the CJA program.

My own view is that those who undertake CJA defense are, on the whole, quite good, and earn all they get if not more.  I also think, however, that if we can afford more for the defense of criminals, we can afford more to keep them, after conviction, incarcerated and away from the public.

The constant refrain that "we just don't have the money for prison" is tripe. The BOP budget, like every aspect of the federal government's budget, is less a description of fiscal reality than of political priorities.  If this Administration wanted to shift its priorities toward keeping the crime rate low (rather than, for example, funding its gargantuan clemency initiative), it could easily do so.  And should.

Not too much criminal law action in the U.S. Supreme Court today.  The Court's lone opinion has to do with which branch of government gets to decide whether Jerusalem is in Israel.

The Court took up for full briefing and argument next term the case of Luis v. United States, No. 14-419.  The Question Presented is "Whether the pretrial restraint of a criminal defendant's legitimate, untainted assets (those not traceable to a criminal offense) needed to retain counsel of choice violates the Fifth and Sixth Amendments."

The Court turned down a San Francisco gun control case over a dissent by Justice Thomas.

The Court turned down the petition of embassy bomber Wadih El-Hage.  The Second Circuit opinion is here.  Justices Sotomayor and Kagan are recused.  This complex, long-running case was in the Second Circuit while Justice Sotomayor was there, and there was no doubt some involvement of the Solicitor General's Office during Justice Kagan's tenure.  I wrote an amicus brief in the District Court regarding the speedy trial claim of a co-defendant, Ghailani.

Life imprisonment in maximum security guarantees that a murderer will never leave the prison, right?  Wrong.  Apparently it is possible to get one's hands on power tools even in the "max."  AP reports:

Two convicted murderers used power tools to cut through steel and shimmied through a steam pipe to escape from a maximum-security prison near the Canadian border, leaving behind a taunting note urging authorities to "Have a nice day."

The elaborate escape Saturday from an upstate New York prison had hundreds of local, state and federal law enforcement officers searching through the night for one man imprisoned for killing a sheriff's deputy and another who dismembered his boss.

The Huffington Post reports that Senate Majority Leader Mitch McConnell has said that no more of President Obama's circuit court nominees will be confirmed.

Last time I mentioned religion and the death penalty I touched off quite a discussion in the comments.  Today's WSJ has letters on that subject in response to an earlier article.

Personally, I stay completely out of doctrinal debates, but the comments are open.

Hack Exposes Millions of U.S. Workers: At least four million current and former government employees have had their personal data hacked in one of the largest breaches of its kind, believed to have originated in China.  Ted Bridis, Ken Dilanian and Eric Tucker of the AP report that the breach was first detected in April, but appears to have started sometime last year, with the main objective of accessing Social Security numbers.  This is the third major foreign intrusion into a federal computer system that has occurred in the past year.

Possible Serial Shooter on the Loose in CO: Northern Colorado residents' fear is mounting after three shootings within 15 miles of each other have left two dead and one wounded, leading to speculation that the crimes may have been committed by one person.  Fox News reports that detectives have not publicly substantiated a connection in the shootings, but are actively working with a task force and have offered a $10,000 reward for information.  Motorists have also reported a string of broken windows since the first shooting, in which a woman was shot in the neck while driving her vehicle on the highway, but it has not been confirmed if they are he results of gunshots.

Jailed Imam Radicalized Dozens Behind Bars: A former U.S. Marine turned Muslim radical, imprisoned on a gun charge, has been kept in shackles and solitary confinement by Florida prison officials for three years due to his proficiency at turning fellow prisoners into extreme jihadists.  Malia Zimmerman of Fox News reports that Marcus Dwayne Robertson, also known as Imam Abu Taubah, was once the bodyguard for the blind sheik behind the 1993 World Trade Center bombing and the gang leader of a violent New York gang called Ali Baba and the Forty Thieves.  Reportedly "good at selling the dream of jihad," Robertson allegedly radicalized at least 36 inmates while behind bars, convincing them to take up arms overseas. 

de Blazio's Chickens Come Home to Roost:  New York Mayor Bill de Blazio, who campaigned for office by labeling the NYPD as racist, is beginning to see the impact of his depolicing policies.  In a New York Daily News article Mahattan Institute scholar Heather MacDonald reports that murders in the Big Apple are up nearly 20% and arrests are down dramatically, as the department abandons the proactive policing in black neighborhoods, where 78% of all shootings occur.  There are no winners with politically correct policing, but the biggest losers are the shooting victims, most of whom are black.

Amnestied Illegals Allowed to Access Tax Credits for Illegal Work: Illegal immigrants granted executive amnesty and Social Security numbers can access Earned Income Tax Credits for years they were working in the country illegal, regardless of whether or not they filed tax returns in the past, according to the IRS commissioner.  Caroline May of Breitbart reports that amnestied illegal immigrants are permitted to claim up to three years prior in back taxes.  This will result in illegal immigrants receiving tens of thousands of dollars in back tax refunds.

The Federalist Society has a teleforum today on Elonis v. United States:

Description:

On Monday, June 1, the U.S. Supreme Court overturned the conviction of Anthony Douglas Elonis, who was prosecuted under a 1939 law prohibiting the communication of threats for allegedly threatening his estranged wife via Facebook. Has the Supreme Court clarified the legal status of violent speech on the internet, or merely added to the confusion? Our experts will discuss the opinion and its implications.

• John Elwood, Partner, Vinson & Elkins LLP
• Kent S. Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation

Agenda:

Call begins at 3:00 p.m. Eastern Time.

That's noon here on the Left Coast.

John argued the case for Elonis in the Supreme Court.  I wrote an amicus brief supporting the government.

The call-in number is 888-752-3232.  No other code is required.  We should have time for questions.  If you miss the live call but still want to listen, I expect the FedSoc will post it as a podcast in a few days.

On May 1, Baltimore State's Attorney Marilyn Mosby staged a glitzy press conference to announce charges against six Baltimore police officers related to the death, in police custody, of small-time drug dealer Freddie Gray.  The announcement was something of a show  --  exactly what you'd expect when a yearning for publicity trumps professional restraint. I have discussed it several times, e.g., here.

"have a duty to ensure a fair and impartial process for all parties involved" and "will not be baited into litigating this case through the media."

A few post-settlement developments in the California lethal injection suit, Winchell & Alexander v. Beard, last noted here.

Yesterday, June 3, Judge Chang signed the stipulated judgment.  Applications to intervene in the case were set for hearing tomorrow, June 5.  The applicants were Mitchell Sims, the "slice of murder" killer sentenced to death in two states, represented at taxpayer expense by the Habeas Corpus Resource Center, and Michael Morales and Tiequon Cox, the men who murdered my clients' family members, represented by David Senior and, curiously, Jenner & Block, contra bono publico.  Today, the court entered an order that the applications were moot in light of the settlement and cancelling the hearing.

CJLF's legal director, Kent Scheidegger, was a recent guest on KFI's "The John and Ken Show" discussing the death penalty.  Listen to the broadcast here.

Boston Terror Suspect Planned Attack on Pamela Geller:  The terror suspect who was fatally shot by law enforcement on Tuesday for charging at them with a knife had originally targeted the political activist who sponsored last month's "Draw Muhammad" cartoon contest.  Fox New reports that Usaama Rahim planned to behead Pamela Geller, the organizer of the event in Garland, Texas that was targeted by two radicalized Muslim gunmen.  The FBI says that Rahim had plotted the attack for a week, purchasing three fighting knives and a sharpener.

'Threat Level 1' Criminal Aliens Released by the Thousands:  The Department of Homeland Security (DHS) have discretionarily released over 3,700 "Threat Level 1" illegal immigrant criminals from custody onto U.S. soil over the past year.  Stephen Dinan of the Washington Times reports that DHS officials "have implied that their hands are tied by court rulings," but the numbers show that 57 percent of the criminal aliens that were released last year were done so at the discretion of U.S. Immigration and Customs Enforcement (ICE).  ICE officials claim that released criminals are equipped with electronic monitoring, but nearly all of them violated the terms of their release.

NE Petition Seeks to Bring Death Penalty to Public Vote:  A petition drive to bring the issue of capital punishment to a public vote is gaining steam in Nebraska, one week after the state's legislature overrode Gov. Pete Ricketts' veto to abolish the death penalty.  Alexandra Stone of KETV reports that death penalty supporters filed a referendum on Monday, initiating the petition process, with the goal of taking the debate to the polls.  If 10 percent of registered voters sign the petition, the repeal would be suspended until the voters decide the issue. 

Retrial Granted in Chandra Levy Case:  The man convicted in 2010 for the 2001 murder of federal intern Chandra Levy has been granted a new trial by a Washington judge.  Spencer S. Hsu of the Washington Post reports that the DC Public Defender claims that Ingmar Guandique's conviction was based on a lie spun by a former cellmates seeking favorable treatment from prosecutors, in exchange for testifying that Guandique confessed to the crime.  Although Guandique had assaulted two women in the same park where Levy was abducted and her remains were recovered, there are no eyewitnesses, forensic evidence or medical cause of death linking him to Levy's murder. 

Legislatures and courts sometimes act against the will of the people, and we saw an especially egregious instance of that in Nebraska, where the legislature last week abolished the death penalty.  

Actions have consequences.  So do failures to act.

Jacob Gershman reports in the WSJ:

Efforts to limit seizures of money, homes and other property from people who may never be convicted of a crime are stalling out amid a wave of pressure from prosecutors and police.

Critics have taken aim at the confiscatory powers over concerns that authorities have too much latitude and often too strong a financial incentive when deciding whether to seize property suspected of being tied to criminal activity.

But after New Mexico passed a law this spring hailed by civil-liberties groups as a breakthrough in their effort to rein in states' forfeiture programs, prosecutor and police associations stepped up their own lobbying campaign, warning legislators that passing such laws would deprive them of a potent crime-fighting tool and rip a hole in law-enforcement budgets.

Their effort, at least at the state level, appears to be working. At least a dozen states considered bills restricting or even abolishing forfeiture that isn't accompanied by a conviction or gives law enforcement less control over forfeited proceeds. But most measures failed to pass.

Bill Gives Longer Sentences to Certain Sex Offenders:  The California Senate has approved a bill that would give violent sex offenders who disable their GPS tracking devices longer prison sentences.  Tony Saavedra of the OC Register reports that SB 722, proposed by Sen. Patricia Bates, would make the crime a felony punishable by three years in state prison.  The measure was introduced in response to the arrests of two homeless sex offenders who kidnapped and murdered four women in the Los Angeles area.

Texas Inmate Scheduled For Execution:  A Texas murderer, convicted of killing four men over three decades ago, is scheduled to be put to death Wednesday evening.  Michael Graczyk of ABC News reports that Lester Bower Jr. fatally shot four men at an airplane hangar in 1983 after stealing an airplane he had intended to buy from one of the victims.  In an effort to halt the execution, his attorneys argue that jurors did not have the opportunity to consider that Bower had no previous criminal record, and that the 5^th U.S. Circuit Court of Appeals used an incorrect legal standard when it denied him an appeal 10 years ago.  Bower will be the eighth person executed by lethal injection in the state this year, and will become the oldest, at age 67.   Update:  The U.S. Supreme Court has denied review of the Fifth Circuit's decision, denied a separate petition for a writ of habeas corpus, and denied stays of execution in both cases.  No dissents are indicated.  The orders are here and here.

Prop. 47 DNA Fix Passes CA Assembly:  Legislation seeking to reform changes made after the passage of Proposition 47 last November was passed by the California Assembly on Tuesday, reauthorizing DNA sample collection for crimes downgraded to misdemeanors.  Jeremy B. White of the Sacramento Bee reports that AB 390 requires law enforcement to collect DNA from persons convicted of certain misdemeanors and for those who have past convictions for violent misdemeanor offenses.  The bill passed 64-2.

Grenade Black Market Uncovered In Border Town:  McAllen, Texas, a city bordering Mexico, is the site of a "bustling" black market for grenades and explosive devices, as revealed during an undercover sting operation.  Ildefonso Ortiz of Breitbart reports that two men were arrested by ATF agents for trying to sell 10 live grenades to a government informant.  Across the border, violence within Mexico's Gulf Cartel is escalating into a "fierce internal struggle," with a series of grenade attacks occurring just last week.

Joanne Young reports for the Lincoln Journal-Star:

The words of disappointment from some Nebraskans about the recent vote to repeal the state's death penalty has turned to action.

Nebraskans for the Death Penalty turned in its initial filing Monday with Nebraska Secretary of State John Gale, aimed at restoring the death penalty by repealing a bill (LB268) passed by the Legislature in May.

The first action in the referendum petition process would be to gather enough signatures to keep the bill from going into effect in late August.

If the group is successful in getting the required 10 percent of signatures by Aug. 27 -- somewhere between 112,000 to 115,000, depending on the number of registered voters on the date it is to be turned in -- the law would not go into effect and the question of restoring the death penalty would be put on the November 2016 general election ballot.

With signatures from 5 percent of registered voters in 38 counties, the bill would go into effect in three months from the end of the session, but voters would be able to vote in November 2016 on whether to repeal or restore the death penalty.

Grant Schulte reports for AP:

Death penalty supporters on Monday announced a campaign to ask voters to reinstate capital punishment in Nebraska after lawmakers voted to abolish it.

The new group Nebraskans for the Death Penalty will gather signatures in their effort to overturn the law passed last week that prevents the state from carrying out executions. If the group collects enough signatures, the issue would go before voters in the November 2016 general election.

I have previously noted on this blog the infamous clemency granted by former California Governor Schwarzenegger to the son of a political buddy, as well as my assessment that attempts to fix this judicially were hopeless.  (See posts here and here.)  Today we got the expected result from the California Court of Appeal, Third District, in an unpublished decision (C072785):

We are compelled to conclude that, while Schwarzenegger's conduct could be seen as deserving of censure and grossly unjust, it was not illegal. Marsy's Law, despite its obviously expansive protection of victims' rights does not restrict the executive's clemency powers under California Constitution, article V, section 8, subdivision (a) or the clemency statutes, and we must affirm the judgment. Our holding is limited to subdivision (a) executive clemency and does not apply to the Governor's power under subdivision (b) of the same constitutional provision to reverse or modify a parole decision of the Board of Parole Hearings "on the basis of the same factors" the board is required to consider.

The California Department of Corrections and Rehabilitation, after years of delay, will finally go forward to establish a new lethal injection protocol as a result of a settlement in a suit brought by CJLF.

As noted earlier on this blog (see Feb 1, Mar 5), CJLF filed a lawsuit on behalf of Bradley Winchell and Kermit Alexander, family members of murder victims, to force CDCR to move forward with a new protocol.  CDCR tried and failed to have our suit thrown out.  We have now reached a settlement.

Under the settlement, CDCR will have 120 days from the date of the U.S. Supreme Court's decision in Glossip v. Gross (podcast here) to draft the protocol and submit it under the state's Administrative Procedure Act.

That is not the end, but the beginning of the end.  It will be necessary to defend the new protocol through the APA process, lift the injunction in the now-moot federal court suit over the three-drug protocol, and obtain a supply of whatever drugs the new protocol requires.  Even so, we finally see a light at the end of a tunnel that has been dark for much too long.

Don Thompson has this story for AP.  Maura Dolan has this story in the LA Times.  Howard Mintz has this story in the San Jose Mercury-News.

Boston Bomber's Friend Sentenced To Prison:  Dias Kadyrbayev, a college friend of Boston Marathon bomber Dzhokhar Tsarnaev, has been sentenced to six years in prison for impeding the investigation into the 2013 attacks.  The AP reports that Kadyrbayev removed items from Tsarnaev's dorm room after recognizing him in photos released by the FBI following the bombings.  He pleaded guilty last year to obstruction of justice and conspiracy charges.

NYPD Refining 'Stop and Frisk:'  An uptick in murders and shootings in New York City is leading the NYPD toward refining the controversial "Stop and Frisk" policy.  Jim Dolan of ABC 7 reports that the department intends to use the policy in a "more targeted manner in specific areas where crime is up," and won't employ it in areas where crime is steady.  So far this year, 22 more murders have occurred in the city than at the same time last year.

TSA Fails Numerous Security Tests:  In trials conducted at dozens of airports to test airport security, undercover Department of Homeland Security (DHS) investigators were able to successfully sneak fake explosives and banned weapons passed Transportation Security Administration (TSA) agents at a rate of 95 percent.  Aliza Chasan of the New York Daily News reports that TSA was immediately directed to implement a series of actions in response to the findings, in which they have complied.

Bill Makes it a Felony for Sex Offenders to Skip Hearing:  The New York Senate passed a bill on Monday that would make it a felony for a sex offender to fail to appear at a court hearing where the offender's risk level is to be determined.  Julie Sherwood of the Penfield Post reports that S.4765 would also make it a violation of the Sex Offender Registration Act for a sex offender to fail to annually verify his or her address.  Another bill, S.4776, aims to expand information available on the state's online sex offender registry.

Man Killed by Boston Police Part of Terror Network:  A suspected Islamist extremist fatally shot in Boston on Tuesday was part of a broader terror investigation being conducted by the U.S. Joint Terrorism Task Force.  Ray Sanchez, Evan Perez and Shimon Prokupecz of CNN report that Usaama Rahim, who belonged to an ad hoc terror network, was shot dead when he waved a large military-style knife at officers.  The FBI had been tracking Rahim and his associates for some time, and attempted to approach him after observing his behavior grow more threatening on social media.

Peter Hall of the Allentown Morning Call has this story on the Elonis case.  The story includes this nugget:

The U.S. Attorney's Office in Philadelphia was reviewing the decision and considering its options, including a "likely retrial" for Elonis, First Assistant U.S. Attorney Louis Lappen said Monday in a statement.

And this one:

Elonis served 44 months in federal custody from his arrest in 2010 until his release in February 2014. He is again behind bars after being charged by Freemansburg police in April with assault and harassment for allegedly throwing a metal pot at his girlfriend's mother.

Even though he has already done the time, it is important that the conviction remain on this sleazoid's record for the purpose of recidivist sentencing.

Elonis v. United States, the subject of two earlier posts today, was argued December 1, 2014, and decided today, exactly six months later.  The actual decision is only that the "reasonable person" test for what is a threat, in use in all but two of the federal circuits, is insufficient as a matter of statutory interpretation.  The actual test is undecided.  The requirements of the First Amendment in this area are undecided.

And this took you six months to write, Mr. Chief Justice?

No, of course it didn't.  The Court is famously secretive about its internal deliberations, but I just have to believe that something far more significant had been the subject of much debate, but the author of that broader opinion could not put together a majority for it.  So, perhaps the decision was that a narrow but controlling opinion that does not settle enough is better than a fractured multi-opinion decision that leaves everyone scratching their heads and perhaps settles nothing at all.

I don't think it was that hard a case.  The widely accepted "default" rule of interpretation from the Model Penal Code^* is that when a criminal statute has no express mental element, then either purpose, knowledge, or recklessness will do.  Given that the Court has resolved long ago that recklessness is sufficient for First Amendment purposes, even in criminal cases (Garrison v. Louisiana (1964), cited in my brief and Justice Alito's opinion), the doctrine of constitutional avoidance provides no basis for deviating from the standard rule.

If the Court really feels it needs more briefing on this point, it should grant rehearing (whether the Government asks it to or not), take more briefing, and schedule reargument for next October.

Brent Kendall has this story in the WSJ on the Elonis case, noted earlier here. Included is this remarkable passage:

"We're pleased that the Supreme Court saw the case for what it was: A criminal conviction for a 'crime' of speech based on only a showing of negligence," Elonis lawyer John Elwood said in a written statement. "We are confident Mr. Elonis will be vindicated" when the case returns to the lower courts, he said.

Are you serious, John?  Under the standard you conceded at oral argument -- knowledge that the statement would be perceived as a threat -- your client is stone cold guilty.  Unless you get a jury of total loons, they are going to have no difficulty at all concluding that he had to know that his revolting threats would be perceived as such.

CA to Extend Obamacare To Illegals:  The California Senate Appropriations Committee amended and passed SB 4, a $1 billion measure to extend Obamacare to all illegal aliens.  Chriss W. Street of Breitbart reports that the legislation "directly extends free Medi-Cal access to those under the age of 19 and provides California taxpayer funded free or highly subsidized coverage equivalent to Medi-Cal."  The costs of SB 4 after it was amended have yet to be estimated, but the original bill's costs were estimated at $740 million per year.

Gang-Related Shootings On The Rise In Portland, OR:  Portland, Oregon is breaking crime records for the month of May following several gang-related shootings.  Jennifer Dowling of KOIN 6 reports that 25 shootings were reported throughout the month of May.  Both police and residents are concerned by the increased gang violence in the city that has grown more brazen, with shootings committed in broad daylight.  So far this year, there have been 65 reported gun-related incidents.

Sailor Killed In Road Rage Incident:  A road rage incident last Thursday resulted in the death of a who was a 20-year U.S. Navy veteran.  Fox News reports that Chief Petty Officer Zachary Buob was killed on I-5 near San Diego by Darla Jackson, who rammed the back of his motorcycle with her car, knocked him off and ran him over in the middle of rush-hour traffic.  Jackson's mother says her daughter is wrongfully charged and a victim "because the motorcyclist was driving erratically."  Jackson was charged with Buob's murder on Friday.

NE Inmates Sue Over Crowded Conditions:  Over two dozen Nebraska inmates are suing the state prison system and its director arguing that the prison's overcrowded conditions violate their civil rights.  The AP reports that the two separate lawsuits have been filed regarding the Diagnostic & Evaluation Center in Lincoln, which was at 335 percent capacity at the end of April.  Prisoners claim that such massive overcrowding has caused disease to spread and burdened the prison's medical staff.

Low Probation Funding Causing Increased Crime:  Florida probation officers say that the Department of Corrections' (DOC) failure to address resource shortages has led to the occurrence of preventable crime in Tampa Bay, including a rash of sexual assaults and homicides.  Noah Pransky of WTSP reports that the continued penny-pinching and overall lack of funds has caused the department to prohibit officers from searching the phones and computers of sex offenders, a particularly frustrating aspect of the DOC budget cuts.  Florida's probation program has been ignored by state lawmakers, who attribute the entire DOC funding into prisons rather than community corrections.  Gov. Rick Scott says he is working with the DOC to make improvements.

The U.S. Supreme Court today decided the Facebook threats case, United States v. Elonis.  Unfortunately, the Court left unanswered two major questions -- one on the required mental state for the offense and the other on the limits of the First Amendment.

Elonis made statements on his Facebook page regarding his wife and others that, in context, most reasonable people would regard as threats.  The jury was instructed on a "reasonable person" test, in accordance with the overwhelming weight of authority, and found him guilty.

Citing a Ninth Circuit case, Elonis argued that he could only be convicted if he subjectively intended the statements to be threats, regardless of how obviously they are threatening.  Today's opinion, citing the oral argument transcript says, "There is no dispute that the mental state requirement in Section 875(c) is satisfied if the defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat."  But that certainly was disputed prior to the oral argument.  Elonis was going for only the first part, what the Model Penal Code calls "purpose" as distinguished from "knowledge."  Under that view, a person could make the most explicit threats, scaring the hell out of the victim, and then defend on the basis he was "just kidding."  Attacking that extreme view was the primary reason CJLF filed a brief in this case.  The Court rejects it today.

A third mental state that the Model Penal Code considers sufficient for criminal liability is "recklessness."  Even if the maker of a threatening statement does not subjectively know it will be perceived as a threat, does he violate the statute if he acts with reckless disregard of that possibility?  That important question was briefed, albeit briefly, in Part I B of our brief.  The parties did not brief it, though, so the Court declines to rule on it and on the First Amendment question of whether recklessness is constitutionally sufficient. 

Justice Alito, concurring in part and dissenting in part, nails it:

Did the jury need to find that Elonis had the purpose of conveying a true threat? Was it enough if he knew that his words conveyed such a threat? Would recklessness suffice? The Court declines to say. Attorneys and judges are left to guess.

Four days ago, as May wound down, I asked what happens when we paint the police as villains, rather than pointing to the thieves, thugs and muggers.  This is a particularly acute question in Baltimore, and a good deal of evidence was already in.