July 2015 Archives

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Man Killed Good Samaritans Because Daughter Laughed at Him:  A Native American couple was shot and killed, and their daughter shot and wounded, after they stopped along a Montana roadside on Wednesday to help a man whose vehicle had run out of gas, all because the daughter "laughed" at the stranded motorist.  Fox News reports that 18-year-old Jesus Deniz, a Mexican national and green card holder, shot and killed 51-year-old Jason Shane and 47-year-old Tana Shane, and shot and wounded their 26-year-old daughter Jorah Shane in the back as she fled, "because he was getting tired of waiting around, and because the daughter laughed at him."  Deniz was out on bond after being arrested last month for burglary in Wyoming, but authorities could not deport him because he was not convicted of the crime.

Illegal Immigration Prevention Spending a Waste of Money:  The Obama administration's efforts to bolster society in Honduras, Guatemala and El Salvador by flooding their economy with hundreds of millions of dollars to prevent more surges in immigration, has proven to be in vain, likely due to corruption or incompetence among Central American governments and the continued belief among Central Americans that the U.S. has a lax attitude regarding immigration.  Stephen Dinan of the Washington Times reports that the Government Accountability Office (GAO) released a report Wednesday on last summer's surge of migrants, which saw a total of 70,000 children traveling without parents and more than 60,000 children and parents traveling together, stating that "confusing and lenient U.S. policies pushed illegal immigrants to make the crossing," and in particular, Obama's 2012 Deferred Action for Childhood Arrivals (DACA) program.  Homeland Security and State Department officials have launched a "massive information campaign" to warn would-be immigrants of the dangers of the journey and that they will not qualify for amnesty.

Mistrial Declared in Shooting by AB 109 Probationer:  A deadlocked jury led to a mistrial in the case of two alleged gang members charged with capital murder for the fatal shooting of an innocent bystander, who was caught in gang crossfire in Pasadena on Christmas Day in 2012.  Brian Day of the San Gabriel Valley Tribune reports that 23-year-old Larry Darnell Bishop and 27-year-old Donald Harris, both Bloods gang members, opened fire at a rival gang member and inadvertently shot and killed 49-year-old Victor McClinton as he walked with a friend to put a Christmas gift in the friend's car.  Bishop was released from custody without supervision under California's prison realignment program, also known as AB 109, six months before the shooting after serving less than one-year of a two-year sentence for a previous assault with a deadly weapon, and had two prior felony convictions as well.  Prosecutors have not decided whether they will retry the case.

Escaped PA Inmate Suspected of Killing Woman:  Police are searching for an escaped inmate suspected of killing a woman after walking away from a work-release program on Thursday morning in western Pennsylvania.  The AP reports that 38-year-old Robert Crissman, in jail for violating probation on a drug charge, ran away from the jail after going outside to retrieve meals from a truck that he was to deliver to other inmates.  Later in a nearby home, the body of 55-year-old Tammy Long was discovered.  Authorities were able to confirm that Crissman, who is still at large, did visit Long's home but have not released information regarding her cause of death.

Michele Hanisee, Vice President of the Association of Los Angeles Deputy District Attorneys, has this post at the ADDA Blog.

The world contains extremely dangerous and evil people who cannot be deterred by threat of incarceration.  I'm not talking about the average gang murder or robbery gone bad.  I am talking about the people who rape infants to death, who kidnap, torture, rape and murder children, who target police officers in the line of duty, who kill not just one, but a half dozen or dozen or more innocent victims in serial and mass murders.  These people are the reason why California still needs a death penalty.
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Once California has an execution protocol in place, there is little the Governor or the Attorney General can do to thwart the implementation of the law.   After all appeals are final, jurisdiction over these cases returns to the local District Attorney and the local courts.   It is the local District Attorney and court who then schedule an execution date.  CDCR has no more power to refuse compliance than they have to refuse to accept a sentenced prisoner for housing.

It is important to remember that only a jury of one's peers can impose death - not the police, not the District Attorney, not the judge.  Jury verdicts are rendered by the citizens of the community because they have the strongest interest in keeping their communities safe and protecting residents from the criminals who would prey on them.  The people of this state voted to keep the death penalty and the Governor and Department of Corrections have an obligation to honor the will of the voters and impose the law of this state.
The Marshall Project, a soft-on-crime advocacy organization masquerading as a journalism organization, has this article claiming that Dylann Roof is an anomaly in that he is a white person who will likely face the death penalty for the murder of black people, dragging out the old race-of-victim bias claim again.

They quote raw numbers on race and executions from another masquerading organization, the Death Penalty Information Center.  But raw numbers mean nothing because of the apples-and-oranges problem.  Patterns of offending are not uniform across races, and a comparison of two groups that differ in ways other than the variable of interest proves absolutely zilch.  That is lesson one of day one of an elementary social science class, but if your purpose is to inflame rather than inform, you can just skip right over that.

Then there is this gem:

Slate Article on Bill Otis

Mark Obbie has this article in Slate with the subtitle, "Nothing can stop the bipartisan coalition pressing for criminal justice reform. Nothing, except maybe Bill Otis."

The title of the article is "Meet the last man standing."  The thesis is that Bill is the only voice opposing the movement to soften sentencing.  It is good to see Bill's prominence as an advocate recognized, particularly by a partisan outlet for the other side.  The assertion that he is the only one is, of course, preposterous.  The exaggeration is even greater than the earlier National Journal article about me and the death penalty.

Former Attorney General Michael Mukasey is a stronger advocate in this fight than the article lets on.  As noted in this post, the Association of Assistant United States Attorneys has done significant work in this area. CJLF is also an important voice, although we have focused more on California than on the present federal controversy.

Despite the article's deficiencies, Bill's forcefulness and effectiveness as an advocate makes him a force to be reckoned with, and the recognition of that fact is well deserved.

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664,607 Illegals Granted Amnesty:  Under the Obama administration's Deferred Action for Childhood Arrival (DACA) program that went into effect in 2012, 664,607 illegal immigrants have been granted amnesty, many of whom have connections to fraud, terrorism and gangs, according to the U.S. Citizenship and Immigration Services (USCIS) agency.  Paul Bedard of the Washington Examiner reports that the USCIS is also producing 144,275 employment documents each month, and applicants for permanent residence have risen from 3,000 per month to 7,500.  Of the 664,607 applications approved as of March, at least 49 had gang ties, six had a possible link to terrorism and 3,959 had indicators of fraud.

CA Teen Charged as Adult in Killing of 8-year-old Neighbor:  A 15-year-old Santa Cruz boy is being charged as an adult for the kidnapping, rape and murder of an 8-year-old girl at a community artist complex where they both lived.  The AP reports that according to a charging document, Adrian Jerry Gonzalez lured Madyson Middleton into his family's apartment, tied her up, sexually assaulted, killed her and dumped her body in a recycling bin, where it was discovered Monday evening.  Authorities haven't been able to determine a motive yet for why Gonzalez, who could spend the rest of his life in prison, killed the "alternately shy and gregarious" girl.

Baltimore Monthly Homicide Count Reaching Historic High for Second Time:  For the second time this year, Baltimore's homicide count is reaching a historic high.  The AP reports that as of Wednesday night, a total of 46 people were murdered in the month of July.  The month of May had 46 homicides as well, which made it the deadliest month on record since August 1990.  Baltimore has seen 186 homicides in 2015, a nearly 60 percent increase over the same time last year.

TX Judge Declares State's Online Solicitation Law Unconstitutional:  The Texas law prohibiting the use of the internet or any other electronic communication to arrange a meeting with a minor for sexual relations was declared unconstitutional Wednesday afternoon by a district court judge, who ruled that the law is a violation of the First Amendment.  Bob Price of Breitbart reports that Judge Kelly W. Case's 9th District Court ruling derived from Texas v. Paquette and "could have a devastating effect on prosecutions of online sexual predators if allowed to stand."  In that case, defendant Daniel Paquette, charged with using email to solicit a minor for sex, argued that the law infringed on the right to freedom of speech on the grounds that many internet users engage in the sexual fantasy 'ageplay,' "where one or more participants in a sexual-oriented conversation falsely represent themselves to be underage children."  The defendant's motion for dismissal was granted by Judge Case, and the indictment was thrown out.  Montgomery County 1st Assistant District Attorney Phil Grant will appeal the ruling to the 9th Circuit Court of Appeals.

Jails More Dangerous Under AB 109:  Because of AB 109, also known as realignment, California jails are more dangerous and a greater challenge to manage than they were before, according to James Ramos, chairman of the San Bernardino County Board of Supervisors; John McMahon, San Bernardino County Sheriff; and Greg Devereaux, San Bernardino County CEO, in this piece on the SB Sun.  Since AB 109 took effect in 2011, they have seen inmate-on-staff assaults in local jails more than double from 21 in 2010 to 49 in 2014, while inmate-on-inmate assaults nearly doubled from 364 to 630.  Additionally, medical costs in all aspects - prescriptions, monthly doctor visits, off-site clinic referrals, hospital admissions and treatment for diseases - have soared due to increased demand from inmates serving longer sentences, putting a heavy financial burden on county taxpayers.  The three authors note that this is not a unique issue to San Bernardino County; the same is true for nearly all of the California's 58 counties because "the state has essentially transformed [our jails] into prisons."

The Other Side of the Story

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It's hardly news by now that I oppose the proposed mass sentencing reduction  --  for both garden-variety drug dealers and classic violent criminals  --  that goes under the deliberately vague name of sentencing "reform."

My view is a minority among academia-oriented and think-tank culture that dominates inside the Beltway.  In the interest of robust debate, I want to present the other side of the story from Prof. Frank Bowman, a friend of mine from many years ago, when we worked together on the Attorney General's Advisory Subcommittee on sentencing.  This was back in the mid- and late 1980's, at the dawn of the Sentencing Reform Act of 1984.

Frank is one of the leading experts in the country on federal sentencing policy. Although we now see things differently on that score, I am pleased that Frank gave me permission to re-print a note he sent me in response to yesterday's Slate article profiling my efforts in this area.

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Illegal Immigrant Freed by Feds Suspected of Murder:  An illegal immigrant, released earlier this month by Ohio sheriff's deputies after U.S. Customs and Border Protection agents instructed them not to hold him, is now suspected of murdering one woman, wounding another and attempting to rape a 14-year-old girl.  Edmund DeMarche of Fox News reports that Painesville Municipal Court Judge Michael Cicconetti says he doesn't understand how federal authorities could have ordered the release of 35-year-old Juan Emmanuel Razo on July 7, considering he had no green card, birth certificate or driver's license to verify his identity.  At the time, Border Protection officials informed local deputies that Razo was an illegal immigrant from Mexico, but would not pick him up for deportation because he hadn't committed a crime at that point.  Razo is being held on $10 million bond.  His public defender entered a not guilty pleaTuesday, despite Razo's confession.

Rumored Threats of Gang Violence Spread on Social Media:  A rumored competition spreading on social media under the hashtag #100Days100Nights has South Los Angeles residents afraid to step outside.  The objective is to pit gangs against each other to see who can murder 100 people first.  Amy Powell of ABC 7 reports that the hashtag started appearing online over the weekend while police responded to several shootings in the area resulting in a tactical alert.  LAPD Assistant Chief George Villegas says that the post has spread in circular, word-of-mouth manner that creates a challenge for law enforcement to identify any one particular gang or gang member as the original poster.  LAPD officials have increased patrols throughout the South Los Angeles area in case the threats are carried out.

MS-13 Recruiting Newly Arrived Migrant Children in NY:  Latin street gangs, chiefly MS-13, are seeking more than 3,000 new recruits, targeting Central American migrant children under the age of 18 who have recently settled in the Long Island, New York area, according to authorities in Nassau and Suffolk counties.  Fox News Latino reports that departments across Long Island have been closely monitoring other Latin American gangs such as the Latin Kings, Netas and Surenos, but MS-13, with as many as 10,000 members in 46 states, is the most concerning.  Like most immigrant organized crime groups, MS-13 starts by targeting their own community, and the vulnerability and susceptibility of the young migrants from Central and South America gives the notorious and ruthless gang the advantage to expand.

Capital Case Prosecutors Convention

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The Association of Government Attorneys in Capital Litigation (AGACL) opens its 36th annual conference today in Charleston, SC.  Its agenda is here.  I have the honor of addressing the General Session on Friday afternoon.  The subject will go under the broad heading, "Death Penalty Policy."

I'm planning it in three parts  --  a description of where I think the country is right now on capital punishment; the most effective answers I have seen over the years to abolitionist arguments; and a call to action in defense of the death penalty.

Any suggestions as to what in particular readers think it might be useful for me to say would be welcome. 

Heroin Deaths, Out of Control

The Washington Examiner has the grim story:

Heroin deaths are spiking in the U.S., concerning lawmakers who proclaim it an epidemic and public health issue.

Between 2012-13, the number of U.S. drug overdose deaths resulting from heroin spiked from 5,900 to 8,200, said Michael Botticelli, director of the White House Office of National Drug Policy Center.

"I've been with [the] DEA almost 30 years, and I have to tell you, I've never seen it this bad," Jack Riley, acting deputy administrator of the Drug Enforcement Administration, said at a House judiciary subcommittee hearingTuesday.

Only in a parallel universe could our lawmakers be considering lighter sentencing for heroin at a time that its lethal impact has never been more appalling.

If there is to be a vote in Congress on lowering drug sentences, it should be taken one drug at a time.  There may be many who would vote to lower sentences for pot. But if there are those who also want to lower sentences for heroin (or meth or Ecstasy or numerous other hard drugs), it would improve visibility and accountability if legislators would stand up, one at a time, and say so, drug-by-drug.

There was a day when liberals and libertarians agreed that visibility and accountability were valuable qualities in government.  We may see soon if that is still their view.

Ann Rule

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Levi Pulkkinen reports for the Seattle Post-Intelligencer:

Northwest true crime author Ann Rule has died.

Rule, 83, had been in declining health in recent years. She appears to have died Sunday night at a Seattle-area hospital.

Andrea Vitalich, Deputy Prosecuting Attorney in King County, Washington noted her passing.

Ann Rule was an asset to true-crime writing: she did not sugar-coat the horrible things her subjects did to other human beings, she did not glamorize her subjects, she was a meticulous researcher, and she always paid respectful tribute to the victims.  She was well-liked and well-respected by everyone in law enforcement who knew her.  She was also a very nice person.

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CA Teen Arrested After Body of Missing Girl Found:  A 15-year-old male neighbor was arrested after authorities discovered the remains of who they believe to be an 8-year-old Santa Cruz girl that disappeared on Sunday.  Fox News reports that Madyson Middleton was last seen on Sunday riding her scooter around the Tannery Arts Center, an artist community and housing center where she lived with her mother.  The suspected teen, who lives at the complex with his family, is described by neighbors as "polite and well-liked," and his relationship with Madyson is not yet clear.  The housing center is located in a busy area populated by businesses, and a major construction project is going on nearby.

Prison Worker Pleads Guilty to Aiding Escapees:  The former prison employee accused of helping two convicted murderers escape from a maximum security prison in upstate New York last month plead guilty to the charges on Tuesday.  Emily Shapiro of ABC News reports that 51-year-old Joyce Mitchell allegedly provided tools to two inmates serving life sentences, Richard Matt and David Sweat, by concealing them in hamburger meat.  A three-week manhunt, which began on June 6, ended with Matt fatally shot and Sweat shot and apprehended with non-fatal injuries.  Mitchell pleaded guilty to first-degree promoting criminal contraband and fourth-degree criminal facilitation, facing a sentence of 2 ½ to seven years.  She will be sentenced on September 28.  David Sweat's case for first-degree escape will go to a grand jury early next month.

Attacks by Homeless Increase in NYC:  Two recent violent attacks perpetrated by homeless persons in New York City have prompted City Hall and NYPD to urgently address homelessness in the city.  Arthur Chi'en of Fox 5 reports that one of the attacks involved a 72-year-old architect, who was stabbed in the neck with a pair of scissors by a homeless woman while waiting on a street corner; the other victim was a tourist leaving his hotel, who was clubbed in the face by a homeless man.  The NYPD plans to put one-third of its officers through intensive training over the next year to deal with the homeless problem, but Police Commissioner Bratton says that handling this generally non-criminal crisis will be difficult because "we can't arrest out way out of this problem."

Man Killed by WV Escort Possible Serial Killer:  A man who was shot and killed by a West Virginia escort after he attacked and attempted to strangle her is being eyed as a possible serial murderer in three states.  Cristina Corbin of Fox News reports that 45-year-old Neal Falls knocked on the door of a Charleston, West Virginia prostitute on July 18, asked her "live or die?" when she answered, and attempted to assault her.  She shot and killed him with his handgun that he put down during the altercation.  Upon inspection of his vehicle after the crime, authorities say they discovered an arsenal of items that aroused suspicion that he could be responsible for the killings of sex workers in Nevada, Illinois and Ohio.  Falls has no known criminal history.  The FBI is assisting in the multi-state probe.

U.S. Spent Nearly 2 Billion Jailing Criminal Aliens:  A new study of state and federal data reveals that in fiscal year 2014, American taxpayers paid approximately $1.87 billion to incarcerate illegal immigrants, almost all of which was shouldered by the states.  Joel Gehrke of the National Review reports that 92 percent, or $1.71 billion, came from the states, while the other eight percent was paid for by federal-government reimbursements administered through the State Criminal Alien Assistance Program (SCAAP).  However, SCAAP's funds have declined in recent years, leading many state and local jurisdictions to opt out of the program, which causes the cost of holding inmates to rise.  This financial burden is also "exacerbated by policies designed to defy federal immigration status."

Killers and Rapists, Rejoice!

One thing my father taught me was to thank God for your opponents.  As usual, he was right.

My opponents in the sentencing reform battle  --  those favoring mass sentencing reduction and the additional crime that is certain to come with it  --  have been shrewd up to now in being relatively quiet about the fact they they favor releasing killers, rapists and muggers of all sorts along with the fabled "low-level, non-violent" offender.

But, giddy (and careless) with new momentum as more and more Republicans allow themselves to be bull-rushed into sentencing "reform," the other side has prematurely tipped its hand.

It was never about just "low-level, non-violent" offenders; that was the head fake. It was about creating a new violent crime wave in America (something that is already happening as serious policing has come under attack and, in California, Prop 47's dumbing down of the criminal code has started to do its work).

Hat tip to Doug Berman for putting up two op-eds that spell it out.
California's capital punishment opponents have a problem.  Despite about a thousand capital judgments in the post-Gregg era (beginning with the passage of the Deukmejian bill in 1977), they don't have a single substantiated case of an actually innocent person receiving that sentence.  So they have to make some up.

SF Chrontrarian Debra Saunders has this column on the CNN series Death Row Stories and its episode on Kevin Cooper.  First, she notes a prior episode of the series.

Last year, CNN's "Death Row Stories" ran an episode about a California woman convicted of first-degree murder, then freed when a federal judge overturned the verdict because prosecutors withheld evidence. I had a few issues with the episode, in part because Gloria Killian was not tried for capital murder and never spent a minute on Death Row. I wrote at the time, CNN should rename the series, narrated by capital-punishment opponent Susan Sarandon, "Death Row Propaganda."
On to Cooper:

When the tests finally were done, DNA nailed Cooper to the crime scene, where he claimed never to have been. In 2004, [defense investigator Paul] Ingels told me, "It proves, beyond any shadow of a doubt, that Kevin Cooper was involved in the murders."

When Cooper's lawyers devised this elaborate story about officials framing Cooper by manipulating DNA, forensics expert Dr. Edward T. Blake objected because he relies on those tests to exonerate innocent convicts. When I asked Blake if Cooper is guilty, Blake answered, "Yeah, he's guilty, as determined by the trial and the failure of a very extensive post-conviction investigation to prove otherwise." Blake also had worked for Cooper's defense team.

I've covered a lot of crime stories. I've never had two people who worked for the defense tell me an inmate is guilty.
Saunders has more on the case in a blog post.

Rory Little has this summary at SCOTUSblog of the criminal and related cases for the coming Supreme Court term.  What I found most interesting, though, is what is not there.  Not a single case of a state prisoner challenging his conviction or sentence in federal court has been scheduled for oral argument next term.

The full list of cases taken up for the next term so far is here.  Not a single "CFH" on the list.  There are two "CSH" cases, where the Supreme Court has taken a habeas corpus (or equivalent) case directly from the state courts.  There are four "CSY" cases, straight criminal appeals from state courts.  (Two of these arise from the same case, and a third presents a common question with the two.  CJLF has filed a single brief in all three.)  There are three "CFY" cases, federal criminal appeals.

Federal habeas for state prisoners lies at the crossroads of federalism, criminal law, and protection of individual rights, and that intersection has been the site of many collisions.  It has occupied a disproportionate amount of the Supreme Court's docket for many years.  Maybe not this year.

There are, of course, many more cases to be added.  Daniels v. Webster, discussed in this post by Ian Sonego, is a federal-prisoner habeas case that is highly likely to be added to the docket.

In addition to argued cases, there are summary dispositions, and chastising federal courts that just can't stand the fact that Congress took them down a peg in 1996 will doubtless be among those.  Even so, this could be the lightest term for state-prisoner federal habeas in some time.

As Rory notes, the reason for the Supreme Court to take criminal and habeas cases directly from the state courts is to get straight to the underlying issue without dealing with the limitations placed on the federal habeas remedy by Congress or the Supreme Court itself.  Perhaps the Court believes that the major questions of habeas procedure and limitations have largely been addressed and wishes to devote more attention to the underlying criminal law and procedure questions.

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Court: Prop 47 Applies Equally to Minors:  A three-judge panel of the California State District Court of Appeal ruled Thursday that Proposition 47, the November 2014 voter-approved initiative that reduced some low-level felonies to misdemeanors, applies equally to juvenile offenders as well as adults.  Kristina Davis of the San Diego Union-Tribune reports that the ruling, in the case of one San Diego County teen convicted of commercial burglary in 2013, sets a new precedent for more than 100 other minors in the county, who can now petition to have their previous qualifying convictions reclassified as misdemeanors.  The teen in this case has also requested to have his DNA expunged from the state database since DNA collection does not apply to misdemeanors.  The District Attorney's office has yet to announce if it will appeal the ruling.  

Another Bloody Weekend in Baltimore:  Baltimore saw 15 shootings, three of them fatal, and at least one stabbing between Friday evening and Monday morning, culminating in yet another violent weekend in the struggling city.  Colin Campbell and Sean Welsh of the Baltimore Sun report that seven of the shootings occurred between 10 p.m. Friday and 9 a.m. Saturday.  Police are still seeking information related to all of this weekend's incidences.

Youngest Juveniles Ever Charged As Adults for 1st-Degree Murder to be Released:  The youngest Americans ever to face adult charges for first-degree murder are set to be released from prison in two weeks, sixteen years after their crime.  Fox News reports that Curtis and Catherine Jones, Florida siblings who were 12 and 13 when they killed their father's girlfriend, claiming that she did nothing to protect them from sexual abuse by a male relative.  They had initially planned to kill the male relative as well as their father.  They pleaded to second-degree murder in 1999 and received 18-year sentences.  They will both be on probation for the rest of their lives.

Body Count on the Rise in St. Louis:  The homicide rate in St. Louis, Missouri is on track to reach its highest level in 20 years, putting increased pressure on Mayor Francis Slay, who won control of the police department two years ago in order to hold it more accountable, to take action.  Nicholas J.C. Pistor of St. Louis Post-Dispatch reports that murders have already surpassed 100 this year, 60 percent higher than the same time last year, thrusting Slay into "unfamiliar territory."  However, most of the pressure to fix the homicide problem will fall on Police Chief Sam Dotson, who unveiled a crime-fighting partnership Monday, involving 50 police officers from St. Louis and St. Louis County that will work with federal agents to reduce the bloodshed, focusing on violent offenders and drug traffickers.

Gang Crime Down in Dallas:  Police officials in Dallas, Texas say that gang-related crime is down in the city despite recent, high-profile violence, but gang experts are not convinced that the trend is permanent.  Tristan Hallman of the Dallas News reports that gang expert Greg Knox of the National Gang Crime Research Center says that federal authorities have managed to weaken the centralized hierarchy of gangs, making them more of a neighborhood clique rather than a regional or national power, but cautions that "their networks still exist."  Another expert, Pastor Omar Jahwar, a former gang member who now participates in gang intervention, says that gangs of today lack leadership and understanding of gangs' histories and "rules of the game," leading to reckless, reactive violence.  

Chicago Bloodshed Continues:  Reeling in violence along with several other major cities across the nation, Chicago ended its weekend with seven dead and 35 wounded from shooting incidents.  Peter Nickeas and Megan Crepeau of the Chicago Tribune report that the weekend's close has brought this year's total homicides in the city to 263 and total gunshot victims to 1,532.  Both homicides and non-fatal shootings have increased over the previous years in the city.

A Wall That Does WHAT Back?

When I saw this in my paper this morning, I thought at first that it was an Onion story mistakenly picked up as real.
Last Wednesday was the 20th anniversary of the murders of two toddlers, Michael and Alex Smith, by their mother, Susan Smith.  Ms. Smith was having an affair and hoped to run off with a man who didn't want to be burdened with kids  --  who can, after all, be quite a load at that age.  She dealt with this by strapping them in seat belts in her car, which she then rolled into a lake.  

In one of the more spectacular miscarriages of justice I can remember, the jury rejected a death sentence and gave her life.

She is taking full advantage.  This story, from ABC news, is chock full of lessons for those of us interested in criminal law, and capital cases in particular. 
Is it a crime for a governor to threaten to veto a funding bill because he does not believe the head of the office being funded can be trusted to use the money appropriately?  Of course not.  We elect governors and other officials to make such judgments.

Yesterday, the Texas Third Court of Appeals threw out one of the charges brought against former Governor Rick Perry.  This WSJ editorial summarizes the case:

A special prosecutor in notorious Travis County essentially charged Mr. Perry for exercising his constitutional right to oppose and veto an act of the legislature. Mr. Perry threatened to veto a funding bill for the Travis County District Attorney's Public Integrity Unit unless D.A. Rosemary Lehmberg resigned. She had been arrested and pleaded guilty to drunk driving, but she refused to resign and Mr. Perry followed through with the veto. The charges boil down to criminalizing routine political debate and controversies.
The procedural mechanism invoked by Perry is a pretrial writ of habeas corpus.  Under Texas case law, this procedure can only be used for facial challenges to statutes, not "as applied" challenges.  The Court of Appeal held that the Coercion of Public Servant statute was unconstitutional on its face.  It regulates speech, and its prohibition of threats is not limited to "true threats" within the meaning of the U.S. Supreme Court cases on that point.

Perry's challenge to the charge of Abuse of Official Capacity is not cognizable in this proceeding, so that one will have to be thrown out at some point down the line.

French Surveillance Law Upheld

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Sam Schechner and Matthew Dalton report in the WSJ:

PARIS--France's top constitutional court mostly upheld a new French surveillance law that would give intelligence services broad new powers to spy in France and abroad.

The court-backed provisions of the law allow a wide range of new surveillance techniques meant for the Internet age, including the collection of "metadata" about online traffic and the use of software that can monitor every keystroke on a computer. The court said intelligence services can use these tools without approval of a judge, though the government must still seek permission from an independent body created to oversee surveillance activities.

The court, known as the Constitutional Council, did strike down a provision of the law that would allow emergency surveillance without the approval of the prime minister or another minister in the government.

Pollard Release Imminent?

Devlin Barrett reports for the WSJ:

The Obama administration is preparing to release convicted Israeli spy Jonathan Pollard from prison, according to U.S. officials, some of whom hope the move will smooth relations with Israel in the wake of the Iran nuclear deal.

Such a decision would end a decadeslong fight over Mr. Pollard, who was arrested on charges of spying for Israel in 1985 and later sentenced to life in prison. The case has long been a source of tension between the U.S. and Israel, which has argued that a life sentence for spying on behalf of a close U.S. partner is too harsh. Israel has for years sought Mr. Pollard's early release, only to be rejected by the U.S.

Now, some U.S. officials are pushing for Mr. Pollard's release in a matter of weeks. Others expect it could take months, possibly until his parole consideration date in November.
Such a deal for Israel.  First we sign the most toothless agreement since Neville Chamberlain came back from Munich in 1938 waving a document and claiming "peace in our time," an agreement that practically guarantees that a country determined to wipe Israel off the map will acquire nuclear weapons.  But not to worry, we will make it up by releasing one spy.
A:  So awful  --  because so radically pro-criminal  --  that even the Obama administration can't bite down on it.

I didn't think I would ever type that sentence, but there is no other conclusion to be drawn from today's BuzzFeed article, which begins:

The Obama administration objects to key provisions in a bipartisan criminal justice bill in the House that has picked up support from both the tough-on-crime end of the Republican Party and advocates of overhauling federal prison sentencing guidelines, BuzzFeed News has learned.

The bill's sponsors say the Safe, Accountable, Fair, Effective Justice Reinvestment Act of 2015 -- or SAFE Act -- takes the best ideas from state criminal justice efforts in recent years and applies them to the federal system, but Obama administration officials have told supporters of the bill they don't like several of its provisions, including a key one that would essentially create a federal version of the drug court programs an increasing number of states use to divert low-level, first-time drug offenders away from prison and into probation.

Ah yes, the proverbial "low-level, first-time" drug offender.  Not that sentencing "reform" aims to stop there, or anywhere near there, and not that the "low-level, first time" drug offender is the harmless choir boy so often presented to us, as Kent pointed out in his comment just today.

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Three Killed, Including Gunman, at a Louisiana Movie Theater:  A lone gunman opened fire inside of a packed Lafayette, Louisiana movie theater Thursday evening, killing two and injuring several others before turning the gun on himself.  Tom Winter, Tracy Connor and Erik Ortiz of NBC News report that 59-year-old John Russell Houser was described as a drifter, and his former wife told authorities that she had all guns from their home removed due to his history of "extreme erratic behavior" and mental problems.  Police are still investigating a possible motive for why Houser gunned down moviegoers during the 7:10 p.m. screening of the comedy "Trainwreck."  Lafayette Police Chief Jim Craft says that, due to the recovery of disguises and license plates in Houser's motel room, they believe that the event was planned and he intended to leave alive.

Sanctuary Cities Become Havens to Avoid Lawsuits:  Some sanctuary cities become havens for illegal immigrants and refuse to enforce federal immigration policies "not because of any moral obligation to immigrants," but rather, for fear of lawsuits.  The AP reports that sanctuary cities across the nation are under fire since July 1, when Kathryn Steinle was shot and killed while walking on a San Francisco pier by an illegal immigrant with seven felonies and five prior deportations.  He was released into the community even though U.S. Immigration and Customs Enforcement sought to deport for a sixth time.  House Republicans passed a bill Thursday to push cities that refuse to share information with federal immigration authorities, and plan to introduce legislation that specifically addresses the release of immigrants sought by federal authorities for deportation.   

Prop 47 Plays 'Significant' Role in LA County Crime Rise:  Los Angeles County Sheriff Jim McDonnell says that Proposition 47, the voter-approved initiative that downgrades certain felonies to misdemeanors, plays "a significant role" in the rising crime rate throughout Los Angeles County, and has eliminated incentive for drug addicts to seek treatment.  Tami Abdollah of the AP reports that so far this year, violent crime has increased 3.39 percent and property crime has gone up 6.9 percent, while county treatment rolls for drug addicts are down 60 percent.  Los Angeles County was experiencing a 10-year trend of crime reduction and was at 50-year lows in many areas, up until the passage of Prop 47 last November.  "It would be naïve to say that 47 didn't play a major role in that," McDonnell adds.

87% of Illegal Immigrants to Remain in the U.S.:  A new report by the Migration Policy Institute (MPI) concludes that President Obama's executive action on immigration enforcement will provide "a degree of protection" to an estimated 87 percent of illegal immigrants in the U.S., who in turn, will not face threat of deportation.  Caroline May of Breitbart reports that the Obama administration's plan to replace the Secure Communities program with the Priority Enforcement Program (PEP) will have a significant impact on immigration enforcement, with an estimated reduction of 25,000 interior deportations from the U.S. annually.  MPI also estimates that only 13 percent of illegal immigrants would be considered enforcement priorities under the new policy guidelines, compared to 27 percent under the 2010-11 guidelines.

Those who think it's time to roll back sentencing for drugs might want to take in next Tuesday's House Judiciary Committee hearing about the on-the-ground realities with one of America's most notorious drugs, heroin.

But please remember what a person puts into his own body is no one else's business.  If the person happens to be an addict, on on his or her way to addiction, or is a teenager prostituting herself to get money for the next fix, or is one hit away from an overdose death, hey, look, that's the way the cookie crumbles.  

Here is the notice of the hearing.
This story from Roll Call says a good deal about who will win and who will lose if mandatory minimum sentencing is dumbed down or eliminated  --  not that any of this was hard to understand before.

The headline of the story is "Convicted Republicans call for mandatory minimums changes".  It's about three formerly high-level Republicans, Kevin Ring, Bernie Kerik, and Pat Nolan, all of whom discussed with Congressional staffers the supposed evils of mandatory minimum sentencing (although, oddly, none of their sentences resulted from mandatory minimums).

What the three have in common is that they are convicted felons, and the offenses for which they served time involved corruption, influence peddling and/or dishonesty. It's telling that this sort of resume' is what the sentencing reform side views as making you an "expert" on questions of public policy. Some of us might say that the more apt term for this outlook would be "conflict of interest" or "unreconstructed self-justification."

What might be even more telling is that Washington is now so completely engulfed by interest group culture that ex-cons are considered, in the Beltway's lobbyist lingo, "stakeholders" in "the system."

Will Committee staffers bring in Blago next?  How about Dzhokhar Tsarnaev? They've got even bigger "stakes" to "hold."
The Supreme Court established the basic framework of capital sentencing in the mid-1970s and then tinkered with it for some years thereafter.  Under this framework, a state cannot make all murderers eligible to even be considered for the death penalty.  There must be some additional factor beyond the basic requirements of murder.  It has to be a reasonably objective one.  "Especially heinous, atrocious, and cruel" won't do.

The methods vary by state.  Texas defined a higher degree of murder called "capital murder."  Most states have a designated list of "aggravating circumstances."  California calls its list "special circumstances" because we just have to be different.

In some states the plus factors are found concurrently with guilt.  In others they are decided along with the decision on penalty.  Colorado apparently "trifurcates" its capital trials, sandwiching an "aggravating factor" phase between the guilt and penalty phases.  (California does that with the prior murder circumstance only.  All the rest are decided concurrently with guilt.)

Are the following factors true in the case of the Aurora shooting?

• Intentionally killing a child under the age of 12.

• Killing more than two people during the same criminal act

• Creating a grave risk of death to people other than the 12 victims.

• Committing the murders in an especially heinous, cruel or depraved manner.

• Ambushing the victims.

The jury did not find the first one, apparently not satisfied on the specific intent requirement.  What's that fourth one?  Hopefully the jury got a "narrowing" instruction to define that more precisely.

Jordan Steffen and John Ingold have this story in the Denver Post.  Maria LaGanga has this story in the LA Times.

Trafficking in Human Organs

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In answer to a question received from a correspondent, which others may be asking as well, the federal law prohibiting trafficking in human organs is 42 U.S.C. § 274e.
WaPo editorial writer Charles Lane has this article on sanctuary cities:

In reality, there is no free lunch. In the alternate reality known as the American political debate, however, that's the only kind on the menu.

Conservatives say tax cuts boost economic growth, which yields higher revenue. No need to worry about bigger budget deficits.

Meanwhile, over on the left, we have laws and policies in more than 200 jurisdictions, including some of the largest cities and counties in the country, that are meant to protect immigrant communities by preventing local authorities from cooperating with federal deportations of undocumented immigrants who have run-ins with the law.

Advocates claim that "sanctuary," as they call it, achieves a moral goal -- peace of mind for people who, whatever their immigration status, are often longtime residents, leading productive lives -- at little or no practical risk or cost to anyone.
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Guest post by Ian Sonego:

The en banc Seventh Circuit has ruled 6-5 that a federal prisoner under a death sentence may circumvent the prohibition upon successive collateral attacks in 28 U.S.C. § 2255(h), which is similar to 28 U.S.C. § 2244(b)(2)[limiting successive habeas petitions filed by state prisoners in federal courts], by filing a habeas petition under 28 U.S.C. § 2241 in the district where he is incarcerated instead of the district where he was convicted and sentenced. Webster v. Daniels, 784 F.3d 1123 (7th Cir. May 1, 2015)(en banc)(No. 14-1049).

Federal prisoners under death sentences are incarcerated in the federal prison in the State of Indiana, which is within the Seventh Circuit.

News Scan

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Two Teen Relatives Held in Fatal Stabbing Deaths of Family:  A silent 911 call led police to a suburban Tulsa home, where the bodies of five people were discovered with fatal stab wounds, and apprehended two teenage male relatives of the victims who attempted to flee in nearby woods.  The AP reports that the deceased include adults and juveniles, though a girl survived but is in critical condition with stab wounds, and another child was left unharmed.  According to neighbors in the upper-middle class neighborhood of Broken Arrow, where violent crime is rare, the children in the family were home-schooled and "kept on a tight leash."  Broken Arrow police have sought the Oklahoma State Bureau of Investigation for assistance.

Man with Gang Ties Arrested in CA Police Officer's Shooting Death:  A police sergeant in Hayward, California was shot and killed Wednesday during an early morning traffic stop by a man with alleged gang ties.  Fox News reports that 21-year-old Mark Estrada fatally shot 48-year-old Sgt. Scott Lunger, a 15-year veteran of the force, without warning after he was pulled over for swerving and driving erratically.  Estrada received non-fatal gunshot wounds that Lunger's partner, who was unharmed, fired.  Lunger is the second San Francisco Bay Area officer killed in the line of duty this year.  Estrada has been arrested for the shooting and is currently under police watch in a hospital while he recovers from his injuries.

Illegal Alien Crime Wave in Texas:  An internal report by the Texas Department of Public Safety reveals that illegal immigrants are responsible for thousands of crimes in the state, many of them violent.  J. Christian Adams of PJ Media reports that according to the report's analysis, illegal immigrants committed 611,234 unique crimes, 2,993 of which were homicides, in Texas alone.  Between October 2008 and April 2014, 177,588 criminal alien defendants were booked into Texas county jails, according to the Secure Communities initiative, an information-sharing program between the Department of Homeland Security and the Department of Justice.  However, the actual number is likely much higher, as the Secure Communities initiative is only able to tag and identify criminal aliens that have already been fingerprinted.

First Responder

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The KKK held a rally in South Carolina to protest removal of the Confederate flag.  One of the protesters, wearing a swastika T-shirt, became ill from heat exhaustion.  Leroy Smith, Director of the South Carolina Department of Public Safety, rendered assistance.

Seanna Adcox has this story for AP.
Judge Alex Kozinski has a preface to the current issue of Georgetown Law Review that has been the subject of much discussion.  Eugene Volokh has reproduced it, minus the footnotes, in a series of posts at the Volokh Conspiracy.  The first one is here.  Volokh describes Kozinski as a "conservative" in the title of the initial post and a "libertarianish conservative" in the text, but lately he has been more libertarian than conservative, at least in criminal law.

Reading the brief segment on habeas corpus, and specifically on the "deference" standard of 28 U.S.C. § 2254 (in this post on VC), I thought of our old friend the elephant in the living room.  That is the huge problem that everyone knows about and no one wants to talk about, so they talk about other things.

Here is the Volokh version (sans footnotes) in the indented block quotes with interlaced comments by your humble blogger.  AEDPA refers to the Antiterrorism and Effective Death Penalty Act of 1996.

Prior to AEDPA taking effect in 1996, the federal courts provided a final safeguard for the relatively rare but compelling cases where the state courts had allowed a miscarriage of justice to occur.
Cases where the federal courts prevented a miscarriage of justice were rare.  But what about the cases where the federal courts caused a miscarriage of justice?  That is the elephant in the living room.  Are you going to address that?  Are you even going to mention it?

News Scan

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Thousands of Violent Felons to be Released in November:  As a result of the U.S. Sentencing Commission's decision to lower federal sentencing for all drug trafficking and distribution crimes, thousands of dangerous felons will be released from federal prison this November.  Kerry Picket of the Daily Caller reports that among the potential released are inmates with violent backgrounds that committed crimes ranging from assault to murder.  In early 2014, the Sentencing Commission made a two-level reduction in the base offense levels for all drug trafficking and distribution offenses that could impose mandatory minimum sentences.  The result "will be to reward drug traffickers and distributors who possessed a firearm, committed a crime of violence or had prior convictions," says House Judiciary Chairman Bob Goodlatte and Senate Judiciary Committee Chairman Chuck Grassley.

Charleston Shooter to Face Hate Crime Charge:  The man accused of gunning down nine black church members at a historic African American church in Charleston, South Carolina is to be indicted Wednesday on a federal hate crime charge.  The AP reports that 21-year-old Dylann Roof is already facing state charges including nine counts of murder for the June 17 shootings at Emanuel African Methodist Episcopal Church during a bible study.  It has not been said whether state prosecutors will seek the death penalty.

U.S. Attempts to Revoke Citizenship of Imam:  Justice Department officials are hoping to win denaturalization of a Somali-born man because he attempted to conceal past associations with Islamic groups in Afghanistan and Pakistan.  Bryan Denson of Oregon Live reports that Mohamed Sheikh Abdiraham Kariye, the imam of Portland, Oregon's largest mosque, failed to tell immigration officials that he raised money, recruited fighters, and provided training for insurgents battling the Soviet military during the 1980s war in Afghanistan, and possibly had direct dealings with Osama bin Laden at a time.  The revelation of Kariye's deception came out of a joint investigation conducted by the FBI and U.S. Immigration and Customs Enforcement.

Killing Prompts Wyoming Tribe to Seek Hate Crime Prosecution:  The Northern Arapaho Tribe is imploring federal authorities to file hate crime charges against a Wyoming man after he fatally shot one tribe member and wounded another at a detox center on Saturday.  Ben Neary of the AP reports that 32-year-old city parks worker Roy Clyde told investigators that he shot the victims as they lay in bed at the Center of Hope detox center in Riverton, Wyoming because he was "incensed by homeless people drinking and relieving themselves in local parks."  Chairman of the Northern Arapaho Business Council Dean Goggles says that violence against Indian people is a growing trend in the city of 11,000 residents, and tribal leaders intend to travel to Washington, D.C., next week to address the matter with federal officials.  Clyde has been charged with murder and attempted murder.

Investigators Ponder Niagara Falls Serial Killer:  Two slayings in Niagara Falls occurring nearly three years apart but showing strikingly similar circumstances, has New York investigators wondering whether a serial killer is in the community.  Kevin Conlon of CNN reports that the dismembered remains of 30-year-old Loretta Gates were found in various areas of the city in September 2012, and last month, the headless, limbless torso of Terri Lynn Bill, who "was like an aunt to Gates," was discovered.  Niagara Falls Police Capt. Kelly Rizzo says that nearly 100 investigators canvassed targeted areas around the city on Tuesday and are "definitely closer to figuring out who did it based on the information we got."

Jason Riley has this piece in the WSJ  with the above title:

Why the fate of criminals should matter more than the fate of crime victims is a question that went largely unasked, let alone answered, during last week's bipartisan celebration of President Obama's decision to release dozens of individuals from prison and push for looser sentencing guidelines.
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Higher black incarceration rates reflect higher black crime rates, but like many liberal critics of "mass incarceration" the president would rather focus on the behavior of police and prosecutors, not the behavior of the young black men responsible for so much lawbreaking. Not surprisingly, the poor and working-class blacks who are the primary victims of black criminality tend to have different priorities.
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Occasionally, an honest liberal, like the one who taught Mr. Obama at Harvard Law School, will state the obvious. "The most lethal danger facing African Americans in their daily lives," wrote Prof. Randall Kennedy in these pages 21 years ago, "is not white, racist officials of the state, but private, violent criminals, typically black, who attack those most vulnerable to them without regard for racial identity."

Partial Reversal for Blagojevich

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Rod Blagojevich, former governor of the state where about as many former governors are felons as not, won a partial reversal from the Seventh Circuit today.  From United States v. Blagojevich, USCA 7, No. 11-3853:

Blagojevich now asks us to hold that the evidence is insufficient to convict him on any count. The argument is frivolous. The evidence, much of it from Blagojevich's own mouth, is overwhelming. To the extent there are factual disputes, the jury was entitled to credit the prosecution's evidence and to find that Blagojevich acted with the knowledge required for conviction.

But a problem in the way the instructions told the jury to consider the evidence requires us to vacate the convictions on counts that concern Blagojevich's proposal to appoint Valerie Jarrett to the Senate in exchange for an appointment to the Cabinet. A jury could have found that Blagojevich asked the President‑elect for a private‑sector job, or for funds that he could control, but the instructions permitted the jury to convict even if it found that his only request of Sen. Obama was for a position in the Cabinet. The instructions treated all proposals alike. We conclude, however, that they are legally different: a proposal to trade one public act for another, a form of logrolling, is fundamentally unlike the swap of an official act for a private payment.

Because the instructions do not enable us to be sure that the jury found that Blagojevich offered to trade the appointment for a private salary after leaving the Governorship, these convictions cannot stand. Compare Yates v. United States, 354 U.S. 298 (1957), and United States v. Rivera Borrero, 771 F.3d 973 (7th Cir. 2014), with Griffin v. United States, 502 U.S. 46 (1991). (Perhaps because the jury deadlocked at the first trial, the United States does not seriously contend that any error was harmless; a one‑line statement in the brief differs from an argument. Cf. Hedgpeth v. Pulido, 555 U.S. 57, 60-62 (2008) (an error of this kind is not "structural").)

News Scan

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Suspect in 5 Homicides Believed to Have Killed Toddler:  Police in Northern California say that a suspect in the murders of five people whose bodies were found in a Modesto home over the weekend is also believed to be responsible for the death of a two-year-old left in his care last year.  The AP reports that Martin "Marty" Martinez had been under investigation for the toddler's death since October 2014, and was being sought by law enforcement for arrest this weekend when the bodies of Martinez's mother and daughter, an unidentified five-year-old girl and the mother of the toddler he killed last year were discovered in his home.  Martinez was taken into custody early Sunday morning, and authorities are preparing to formally charge him with five homicides.

New Bill Would Withhold Federal Funds from Sanctuary Cities:  New legislation to be voted on this week by the House would punish sanctuary cities by withholding federal funds, in an effort to incentivize them to cooperate with federal immigration authorities.  Stephen Dinan of the Washington Times reports that according to the Migration Policy Institute, more than 350 jurisdictions across the U.S. have some sort of sanctuary policy limiting cooperation with federal immigration authorities.  The issue has heated up quickly since the July 1 shooting death of Kathryn Steinle in San Francisco by a five-time deported criminal alien, who admittedly chose San Francisco due to their sanctuary status and lenient policies that allowed him to remain in the country without fear of deportation.  Steinle's father testified to the Senate Judiciary Committee on Tuesday in support of the bill.  See this post earlier today.

Teenager Latest Unintended Victim of Tulsa's Gang Violence:  A 16-year-old girl was shot and killed in the passenger seat of her boyfriend's vehicle by gang members who were attempting to aim at her boyfriend but killed her instead, making the teen the third unintended victim of gang violence in recent weeks around Tulsa, Oklahoma.  Lori Fullbright of News on 6 reports that Deouijanae Terry was inadvertently thrust into the middle of a gang rivalry, as Tulsa's largest gang, the Hoover Crips, continue to fight with three smaller gangs that have teamed up against them.  Terry's killer is still at large, and very likely may remain that way, since witnesses have a tendency to withhold valuable information regarding gang crimes, "which leads to more shootings, and the cycle continues."

The Revolving Door of Deportation:  Hillary Chabot of the Boston Herald highlights the latest deportation order failure and its revolving door effect in this piece, regarding two illegal immigrants who are currently under investigation in the shooting death of a Massachusetts grandmother on July 4.  Wilton Lara-Calmona and Jose M. Lara-Mejia, both Dominican Republic nationals, shot and killed 41-year-old nurse Mirta Rivera while she slept in her bed, after a bullet fired through the ceiling from the upstairs apartment where the men lived.  Both of the men were previously ordered deported, but remained in the country illegally.  Jessica Vaughan, director of policy studies with the Center for Immigration Studies, says that considering the lax immigration enforcement on part of the Obama administration, "Basically, we're hanging a 'welcome back' sign" for illegal immigrants.  Lara-Calmona and Lara-Mejia have been charged with trafficking heroin and cocaine, and are the prime suspects in the death of Rivera, which authorities are still investigating.

Convicted CA Murderer Eligible for Parole:  A California man convicted murdering a Stanislaus County couple over three decades ago is now eligible for parole.  Rina Nakano of Fox 40 reports that in 1979, Jeffrey Allen Maria, just shy of his 18th birthday, and three accomplices knocked on the door of Phil and Kathy Ronzo's home and lied about their car being out of gas, then murdered Phil with a baseball bat and axe, and raped and killed Kathy.  Maria's parole eligibility resulted from Senate Bill 260, in effect since January of 2014, which gives relief to juvenile offenders charged with adult sentences.  The Parole Board has 120 days to review Maria's case, after which Gov. Jerry Brown will have up to 30 days to decide whether to uphold, deny or take no action.HaveH

The academic debate on whether increased ownership of guns by law-abiding citizens reduces crime continues.  John Lott has been the leading advocate for the "yes" side of that debate.  He has a new paper on SSRN, with John Whitley and Rebehak Riley, titled Concealed Carry Permit Holders Across the United States.  The abstract follows the break.
The father of Katherine Steinle testified a few minutes ago before the Senate Judiciary Committee.  His prepared statement follows the break. The Committee's hearing page is here.

Fingerprint Match Admissibility

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The California Court of Appeal, Third District, today rejected an attack on the reliability and admissibility of fingerprint match evidence in People v. Rivas, C027621.

Prison Transgender Case Moot?

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The clerk of the U.S. Court of Appeals for the Ninth Circuit today entered this order in Michelle-Lael Norsworthy v. Jeffrey Beard, et al, No. 15-15712:

The Defendants-Appellants' Reply Brief informed the court that "A panel of the Board of Parole Hearings has since provisionally granted Ms. Norsworthy parole." Reply Brief at 22. The parties are ordered to file status reports on or before Tuesday, July 28, 2015 regarding whether this case may be mooted by the Board of Parole Hearings panel's decision and commenting as to any possible effect on whether this court should conduct the oral argument scheduled for Thursday, August 13, 2015. The parties are further ordered to update this court within 7 days of any parole decision regarding the Plaintiff-Appellee.
The National Association of Assistant US Attorneys has a report with the above title, issued last Friday.  NAAUSA President Steve Cook wrote a reply op-ed in  USA Today, in opposition to the main editorial which says all the same stuff you would expect.  David Murray and John Walters have this post on the Weekly Standard's blog.
Adam Liptak covers the U.S. Supreme Court for the New York Times.  Naturally, he leans the opposite way from my point of view.  That seems to be pretty much a job requirement to work at the NYT.  Even so, his coverage is generally perceptive and shows some balance, unlike the NYT's coverage prior to his tenure.

That is why I was surprised to see him go completely off the rails in this article, published today, on the Supreme Court's summary disposition cases.  The headline reads "Supreme Court's Unsigned Rulings Show a Narrow View of Rights." Liptak may not have written the headline, but in this case the headline writer did capture the misguided spirit of the article.

WASHINGTON -- The Supreme Court decided 66 cases in the usual way this last term, after full briefing and oral arguments. It also quietly issued eight other decisions.

Those rulings, more than 10 percent of the court's docket, were brief and unsigned. Presumably meant to correct errors so glaring that they did not warrant extended consideration, they nonetheless illuminated a trend in the court's work.

In most of them, one of two things happened. Prisoners challenging their convictions lost. Or law enforcement officials accused of wrongdoing won.
For criminal cases, there is a very good reason why most summary SCOTUS decisions go against the prisoners challenging their convictions.  Think you might find out what that reason is by reading the article?  Alas, no.

News Scan

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Over Half of New CA Driver's Licenses go to Illegals:  More than half of the driver's licenses issued in California this year went to illegal immigrants, reflecting the new law's success that extends licenses to people regardless of residency status.  Jeremy B. White of the Sac Bee reports that as of June, 687,000 illegal immigrants applied for licenses, and the DMV has issued 397,000 so far, which accounts for 52 percent of the total licenses issued.  Immigration advocates pushed the new law, which passed in 2013 and went into effect this year, to ensure that illegals "already on the roads undergo DMV training and buy auto insurance."

TN Shooter Had Depression, Used Drugs:  A person close to the family of the Kuwaiti-born man, who opened fire on two military sites in Chattanooga, Tennessee last week killing five people, says that he was treated by a psychiatrist for depression during adolescence, fought drug and alcohol use recently, and allegedly traveled to Jordan last year to "clean up."  Jay Reeves and Michael Biesecker of the AP report that the family of 24-year-old Muhammad Youssef Abdulazeez, fatally shot by law enforcement during one of the shootouts, believes his personal issues are at the root of last week's shootings, emphasizing his recent struggles including a drunken driving arrest and loss of employment due to a failed drug test.  Counterterrorism investigators continue to probe the engineering graduate's overseas travels to determine whether he was inspired or directed by any terrorist organization.  His family explains that although critical of U.S. policy in the Mideast, "His feelings didn't seem extreme."

Prop 47 Touted as Cause for Chino's Burglary Spike:  The police department in Chino, California has seen a spike in residential burglaries this year, receiving 88 reports of home burglaries compared with 65 during the same period in 2014.  Kevin J. Keckeisen of Champion Newspapers reports that Chino Police Chief Karen Comstock and Chino Hills Police Capt. Robert Guillen have noted the impact on crime since the passage of Proposition 47 in November 2014, which reduces certain felonies to misdemeanors, many of which are property and drug crimes.  Comstock says that criminals have become wise to the boundaries of the law, taking care to steal items valued at less than $950 in order to avoid being booked into jail.  Ultimately, "Prop 47 has been advantageous to the criminal offenders.  It has not been advantageous to the law abiding citizens in communities."

2.5 Million Illegal Immigrants Came to U.S. Under Obama:  Under President Obama, approximately 2.5 million illegal immigrants have flowed into the U.S. from 2009 to 2013, according to new analyses from the Center for Migration Studies and the Pew Research Center.  Paul Bedard of the Washington Examiner reports that the millions of illegal immigrants either snuck into the country illegally or overstayed temporary visas.  The Center for Immigration Studies says that had the U.S. not allowed so many new illegal immigrants to settle in the country since 2009, the total number would have fallen by 2.5 million, but the surge of new arrivals has resulted in the opposite effect.

AB 109, Prop 47 Contribute to Spike in Glendale Crime:  Violent and property crime have increased in the southern  California city of Glendale through June of this year when compared to the same period last year, according to the Glendale Police Department.  Alene Tchekmedyian of the LA Times reports that property crimes increased by 7 percent, with an 11 percent increase in grand- and petty-theft cases, and violent crime increased by 10 percent.  Police officials believe that the state's realignment program known as AB 109, which diverts low-level offenders from state prisons to county jails, and Proposition 47, a voter-approved initiative that reduces penalties for several criminal offenses, are responsible for the spike in overall crime around the city.

Way Beyond Unhinged

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Criminal justice, sentencing, and police behavior  --  especially behavior toward African Americans  -- have become contentious issues.  As one would expect, they have shown up in the race for each party's Presidential nomination.  They have opened a window on (1) what treatment is given speakers with opposing viewpoints, and (2) what, in some circles, is considered an "opposing viewpoint."

The appalling state of play was summed up in this headline from CNN:  "O'Malley Apologizes for Saying 'All Lives Matter" at Liberal Conference."  The first three paragraphs of this extremely depressing story are:

Democratic presidential candidate Martin O'Malley apologized on Saturday for saying "All lives matter" while discussing police violence against African-Americans with liberal demonstrators.

Several dozen demonstrators interrupted the former Maryland governor while he was speaking here at the Netroots Nation conference, a gathering of liberal activists, demanding that he address criminal justice and police brutality. When they shouted, "Black lives matter!" a rallying cry of protests that broke out after several black Americans were killed at the hands of police in recent months, O'Malley responded: "Black lives matter. White lives matter. All lives matter."

The demonstrators, who were mostly black, responded by booing him and shouting him down. 

When the President of the United States hypes racial grievance at every turn, this is what you get.

In my last entry, I introduced Daniel Horowitz's analysis of the origin of the push for mass de-incarceration (called by the intentionally opaque name "sentencing reform"), and where the movement is headed.  I want to continue to explore the ideological anchors of "sentencing reform," and what they tell us about the movement's eventual destination.  (Hint:  Although sentencing reform has attracted some prominent libertarian allies, libertarianism is not its wellspring, nor liberty its goal):

Horowitz notes:

Given Obama's disregard for enforcing laws he dislikes and his aggressive desire to transform the country and dismantle law enforcement, this development [much greater use of clemency than in recent decades] should put goose bumps on anyone concerned with the rule of law, aka, most Americans outside of public policy circles. If Obama is this alacritous to sign a get-out-of-jail free card with 18 months left to his presidency, it's clear that this is the tip of the iceberg. 

This is, in an odd way, a bit unfair to Obama, who has disregarded laws he likes, not just those he doesn't.  He has, for example, repeatedly ignored ACA deadlines when it became clear that enforcing them as written would be politically inapt.

The more troubling question for our purposes, however, is what exactly lies beneath the tip of the sentencing transformation iceberg.

Daniel Horowitz has a wonderfully perceptive article in Conservative Review about President Obama's clemencies last week, and his overall push for criminal justice "reform."  I repeat several paragraphs verbatim:

With much of Obama's amnesty for illegal aliens on hold as a result of [a federal district] court's injunction, the legislator-in-chief is looking for every remaining opportunity to fundamentally transform America from the Oval Office...  His next conquest is the dismantling of law and order and criminal justice laws that have helped lead to a miraculous decline in violent crime over the past two decades.

On Monday, Obama announced his plan to commute the sentences of 46 drug offenders serving time in federal prison, bringing the total number of commutations to 86 since he has taken office.  He even had time to write them a personal letter as he ignored the family of Kate Steinle and other victims of violent crime, such as Kevin Southerland who was gruesomely stabbed to death on the subway right in the nation's capital.  While libertarians and some conservatives are supportive of targeted changes to drug laws, everyone should be gravely concerned about where this is coming from and where it's headed. 

Good point.  How is it that the President found time to pay an amicable and understanding call on convicted traffickers in hard drugs, but couldn't so much as have an Assistant Secretary drop a line to murder victims' families?  Or, for that matter, to the families of the two policemen assassinated in New York?

Continuing with the term summary (part 1 was yesterday), here are the federal criminal law cases, the prisoner rights cases, and a trio of summary error corrections.

Federal Criminal Law

Yates v. United States, February 25, 2015, 5-4 on the judgment, 4-1-4 on reasoning.  The Sarbanes-Oxley law, enacted to address financial fraud, prohibits among other things destroying a "tangible object" to obstruct an investigation.  Does that cover throwing fish overboard to obstruct a charge of a size limit violation?  No.  Justice Ginsburg wrote the plurality opinion, joined by Chief Justice Roberts, Justice Breyer, and Justice Sotomayor.  Justice Alito wrote a concurrence, and cast the deciding vote on the judgment, with a different path to the same result.  Justice Kagan, joined by Justices Scalia, Kennedy, and Thomas dissented from the Court's departure from what she sees as the plain language of the statute.

Henderson v. United States, May 18, 2015, 9-0.  If, in the course of a criminal case, the government gains control of the defendant's guns and upon conviction he can no longer possess them, can he direct their transfer to someone else?  Yes, so long as steps are taken to insure the transferee is not a straw man.  Justice Kagan wrote the opinion for a unanimous Court.
Sentencing "reform" is the name given to across-the-board sentencing reduction, both prospectively and (in the plans of "reformers") retroactively as well.  Although most often and most loudly advertised as intended for "low-level, non-violent" offenders, it will not be limited to that.  As "reformers" tend to admit toward the bottom of whatever press release they're putting out, they fully aim for violent criminals to benefit as well.  If there is any limit on the types of violence (e.g., child rape) they would exclude from these new benefits, I haven't heard about it.  I think the reason for this is simple: Once you see the criminal as the victim, and society as the (often racist) oppressor, it's only fair that all criminals get their reductions. America's rottenness, according to this theory, is not limited just to its treatment of drug pushers.

Recently, an increasing number of Republican legislators and candidates have been signing on to sentencing "reform," although their plans might be disappointing, in some ways at least, to the more vocal "reform" advocates.

The question is, why the change in some Republicans' outlook?  It's not a change in the public's outlook  -- I know of not a single poll in which the public prefers large-scale (or, indeed, any) sentencing reduction to preserving our gains against crime.  

Something else is afoot with Republican politicians.  What is it?
I don't think I need to say a great deal about this Washington Post story, which begins:

A Silver Spring man was sentenced to 80 months in prison Friday following a February crash in which the man drove his SUV onto a downtown Washington sidewalk during afternoon rush hour, striking and killing an attorney on his way to night classes at Georgetown University's law school...Prosecutors said [the defendant, James] Chandler, was high on PCP at the time of the crash....

According to prosecutors, on Feb. 23, around 4:50 p.m., Chandler drove his SUV at nearly 60 miles per hour in a 25 mph zone west on H Street NW, between Second and Fourth streets, striking two other vehicles without stopping. As Chandler crossed Fourth Street and struck the curb of the corner of Fourth and H streets NW, his vehicle mounted the sidewalk.

Prosecutors said evidence showed that Chandler never tried to apply his brakes or take any actions to avoid the crash.

It could just as easily have been me.  I have walked that street many times on the way to teach.

This comes at the same time Congress is set to consider lowering drug sentences, because everyone should have the right to control what he puts into his own body, etc.

News Scan

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Chattanooga Shooter Traveled to Middle East:  The gunman who opened fire at a military recruitment center and a Naval Operations Support Center Thursday, killing four Marines, allegedly took multiple trips to the Middle East, authorities say.  Fox News reports that 24-year-old Mohammad Youssef Abulazeez, a Kuwaiti-born Chattanooga resident, stayed in Jordan for seven months in 2014 and may have also traveled to Yemen.  Federal authorities are looking into the possibility that the shooting was an act of terrorism, but have not yet uncovered any evidence that connects Abulazeez directly with Islamic extremists.  Abulazeez opened fire from his vehicle at a military recruitment center Thursday morning, then drove to a Naval Operations Support Center, crashed through the gate and gunned down four Marines.  He was fatally shot by police.

Cops Hunt Sex Offender After Four People Shot in Three Towns:  A massive manhunt for a registered sex offender is underway in northern Maine, after he fled in a stolen pulp truck following the shootings of four people in three towns.  Fox News reports that 35-year-old Anthony Lord, a lifetime registrant on the Maine Sex Offender Registry list, is considered armed and dangerous.  Maine State Police have converged on one of the three towns, locking it down completely, while they continue to track him down.

Lawmakers Shelve Bill to Change Part of Prop 47:  A bill intended to fix an "unintended consequence" of Proposition 47, a voter-approved initiative that reduced criminal penalties for some non-violent offenders, has been shelved by California lawmakers, passing the Assembly but failing in the Senate Public Safety Committee.  The AP reports that Assemblyman Jim Cooper's AB390 would allow authorities to continue collecting DNA samples from criminals convicted of crimes that were previously felonies but have since been classified as misdemeanors under the initiative, which was passed in November 2014.  Cooper says that nearly 80 percent of DNA involves crimes that are now misdemeanors. 

AB 109 Probationer Arrested in Robbery of Elderly Woman:  A man being supervised under California's realignment program, known as AB 109, was arrested Wednesday in connection with a home invasion robbery of an elderly Burbank woman who was left with a fractured clavicle, broken nose and bruises all over her body.  The Burbank Leader reports that 27-year-old Lonnie Garcia, who was released from prison about one month ago, knocked on 89-year-old Gerri Dickinson's door, forced his way inside, tied a sheet around her neck, knocked her to the ground, threatened to shoot her and ransacked her home.  Garcia's criminal record includes two burglary convictions, one in 2010 and the other in 2012, as well as a conviction for possessing a controlled substance for sale.  "If it wasn't for AB 109, the gentleman would still be in custody," says Burbank Police Sgt. Claudio Losacco.

The Politicization of Academia

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The WSJ has this editorial:

Academics claim to revere open debate but often recoil when they see the genuine article. Witness the campaign some scholars--loosely defined--are waging against Heather Mac Donald for challenging university pieties about a recent surge in violent crime.
*                                        *                                     *

The American Society of Criminology claims to pursue "scholarly, scientific, and professional knowledge," but a better description of its priorities is one-sided inquiry and activist politics.

Earlier this year former ASC president Joanne Belknap of the University of Colorado at Boulder published a call for "criminology activism" among crime experts, citing their responsibility to "advocate for social and legal justice." The society's journal has since shifted toward papers that downplay particular crime trends and emphasize a policy agenda that opposes broken-windows policing or much attention to black-on-black violence. In the process it has abandoned its old role as a forum for a healthy clash of ideas.

Here is the first part of my two-part wrapup of the criminal cases in the Supreme Court term from October 2014 to July 2015.

The Big Cases

Ohio v. Clark, June 18, 2015, 9-0 on the judgment, two dissenting votes on the main issue and one hard to classify vote.

The question is whether a statement of a very young child to a teacher regarding who abused him is "testimonial" and therefore subject to exclusion under the Confrontation Clause, and whether it makes a different that the teacher is a mandatory reporter under the state's child abuse reporting statute.  This opinion goes a very long way toward cutting back the expansive definition of "testimonial" statements - and therefore the range of evidence excluded by the Confrontation Clause - that had been stated in Davis v. Washington (2006).  Although the Court does not categorically shield all statements to anyone other than law enforcement officers from exclusion under Crawford, we can see that such exclusion is going to be very much the exception and not the rule.  State-law hearsay rules will now be the primary authority for whether such statements are admitted. 

Justice Alito wrote the opinion.  Justice Scalia, joined by Justice Ginsburg, would preserve Davis in its original breadth, though they agree that it is not so broad as to cover this child's statements.  Justice Thomas continues to go his own way, focusing on the formality of the statements, a criterion obviously lacking here.

This case will likely have the largest impact of any of the term.  It is a huge win for prosecuting violent crime generally and domestic violence in particular.  The fact that only two Justices voted for a broad definition of "testimonial" statements is particularly striking.  CJLF's brief is here.

Aurora Verdict

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Sadie Gurman reports for AP:

CENTENNIAL, Colo. (AP) -- Jurors convicted Colorado theater shooter James Holmes on Thursday in the chilling 2012 attack on defenseless moviegoers at a midnight Batman premiere, rejecting defense arguments that the former graduate student was insane and driven to murder by delusions.

The 27-year-old Holmes, who had been working toward his Ph.D. in neuroscience, could get the death penalty for the massacre that left 12 people dead and dozens of others wounded.

Jurors took about 12 hours over a day and a half to review all 165 charges. The same panel must now decide whether Holmes should pay with his life.

Harmless Error

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What does it mean that an error is harmless?

Well, here is what seems to be a pretty good example.  Suppose a jury is told that the perpetrator's DNA matches the defendant's, and that the chance of that being a coincidence is 1 in 43,000,000,000,000,000,000,000.  Later, an error is discovered in the database from which that figure was generated.  It should have been 1 in 40,000,000,000,000,000,000,000. Does that matter?  Either one equals waaaaaaay less than reasonable doubt.

If I understand this AP article by Michael Graczyk correctly, that is the claim that caused the Texas Court of Criminal Appeals to stay the execution of Clifton Lamar Williams for the brutal beating, stabbing, and arson death of Cecelia Schneider, 93, of Tyler, Texas.

Still, to the extent there is any confusion on an issue affecting the actual guilt determination, it is right to be super careful.  On the other hand, we should have a rule against last-minute stays on issues that have nothing to do with guilt, say no less than 30 days before the execution.

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Shootings Occur at Two Naval Reserve Centers in TN:  Lockdowns at a community college and a hospital in Chattanooga, Tennessee ensued after a police officer was reportedly wounded and four Marines killed when a gunman opened fire at a Naval Reserve Center on Thursday.  Fox News reports that law enforcement says that the shooter was in his car, stopped in front of the recruiting facility, shot at the building and drove off.  John Harmon, spokesman for the Tennessee Highway Patrol, says that several shootings have occurred in several different locations, though it is not known if they are related.  The alleged shooter is confirmed to be dead.

Texas CO Killed by Inmate:  A corrections officer at a northeast Texas prison was beaten to death Wednesday by an inmate he was escorting to his cell.  The AP reports that 37-year-old Billy Joel Tracy, whose criminal record shows seven felonies of which three involve assaults on corrections officers, was serving a life sentence for robbery and aggravated assault when he fatally attacked 47-year-old Timothy Davison with an object.  A prison agency spokesman says that the facility, the Tedford Unit, was properly staffed and had not been the scene of recent serious security problems.  The incident is still under investigation.

Convicted Felon Immigrant Accused in Fatal Stabbing:  An immigrant released from prison in January after serving a sentence for attempted murder is back in custody, charged with murder in the death of a Connecticut woman last month.  The AP reports that 40-year-old Jean Jacques of Haiti stabbed 25-year-old Casey Chadwick to death in her apartment, stuffing her body into a closet and stealing drugs.  Jacques was qualified for deportation due to the illegal use of a gun during a 1996 deadly shooting, and state officials have said that he was released from prison into the custody of U.S. Immigration and Customs Enforcement, but somehow managed to find employment rather than be returned to his home country.

Another CA County Feeling the Effects of Prop 47:  Ventura County Sheriff Geoff Dean is "convinced that Prop. 47 is having a significant impact on the increase in not only property crimes but violent crimes, too."  Chris O'Neal of the VC Reporter reports that since the passage of Proposition 47 in November, a measure that reduces certain felonies to misdemeanors, misdemeanor warrant arrests are up by 18 percent, while misdemeanor filings are projected to increase by 30.5 percent in 2015.  Sheriff Dean says that many of the increasing crimes involve substance-abuse offenders committing robberies and assaults.  Since they no longer face jail time or are required to attend treatment programs for drug offenses, they remain on the streets committing crimes to support their habit.   

Man Faces Weapons, Drug Charges After 41st Arrest:  A Rhode Island man faces drug and weapons charges after being arrested for the 41st time.  The AP reports that 30-year-old Brandon Haynes was charged with several drug offenses and with being a felon in possession of a firearm after the police found a loaded handgun, three bags of marijuana and drug packaging material in his vehicle.  His criminal history includes 38 arrests in Massachusetts and two in Rhode Island, and he recently served an 18 month sentence for assault and other crimes.

Felon Immigrant Arrested for Rape, Beating:  A foreign-born alien with four felonies in four states and seeking help with his immigration papers has been arrested in South Carolina for raping and beating the woman who was helping him.  Brandon Darby of Breitbart reports that Zenen Alvarez-Alguezabal threatened to kill the victim if she told police, but she managed to escape and report the incident.  The Senaca Police Department has been contacted for comment regarding the suspect's immigration status.


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Inmate Praises Death Penalty Before Execution:  A Missouri death row inmate, convicted of the 2001 rape and murder of a 19-year-old woman, was executed Tuesday after the U.S. Supreme Court rebuffed the last of his appeals and Gov. Jay Nixon rejected his request for clemency.  The AP reports that 55-year-old David Zink, in a final written statement, says that he hopes his execution will bring peace to the victim's family, offering his "sincerest apologies" for his actions.  He also had this to say to fellow death row inmates:

"For those who remain on death row, understand that everyone is going to die. Statistically speaking, we have a much easier death than most. So I encourage you to embrace it and celebrate our true liberation before society figures it out and condemns us to life without parole and we too will die a lingering death."

Baltimore Joins Forces with Feds to Curb Crime:  Baltimore city authorities have teamed up with federal authorities, creating a "war room" to curb the crime wave that has plagued the city since the April death of a young black man in police custody.  Maggie Ybarra of the Washington Times reports that Mayor Stephanie Rawlings-Black, interim Police Commissioner Kevin Davis and State's Attorney Marilyn Mosby announced at a Sunday press conference their plans to establish an around-the-clock fusion center focused on violent crime, stating that the police department has identified "four different groups of bad guys who are responsible for a disproportionate amount of violence."  Over the weekend, 20 people were shot, and 24 have been killed in July.  The city's homicide toll has reached 168 since the start of the year.

Sanctuaries Release 8,000 Criminal Aliens:  During an eight-month period covered by a Freedom of Information Act, "no less than 276 state and local jurisdictions with immigration sanctuary policies released 8,145 criminal aliens who were facing deportation," according to the Center for Immigration Studies.  Elizabeth MacDonald of Fox Business reports that 1,900 of the released offenders were arrested for other crimes, while two-thirds had serious, prior criminal histories at the time of their release.  The report comes in response to immigrants' continued abuse of non-immigrant work visas, 9.9 million of which were issued in FY 2014.  Approximately 40% of the estimated 11 million illegal immigrants in the U.S. overstayed their non-immigrant visas.

TX Murderer Set to Die Thursday:  A Texas death row inmate is scheduled to die this Thursday for the 2005 murder of an elderly woman in East Texas.  Michael Graczyk of the AP reports that 31-year-old Clifton Lamar Williams broke into the home of 93-year-old Cecelia Schneider to steal money for cocaine, fatally beat and stabbed her, set her body and bed on fire, and fled in her vehicle.  He will become the 10th inmate put to death in the state this year.

Indiana Man Convicted of 53 Counts in Deadly Home Explosion:  Now that a jury convicted an Indiana man of murder, arson, and conspiracy to commit insurance fraud, a judge must consider his eligibility for a life without parole sentence for a 2012 home explosion that gutted a subdivision and killed two people.  The AP reports that the jury convicted 46-year-old Mark Leonard of the 53 counts against him after deliberating for just under four hours total.  He waived his right to have the jury decide whether to recommend a sentence of life without parole on the two counts of murder in the deaths of John and Jennifer Longworth.  In 2012, Leonard masterminded a plan with his then-girlfriend and half-brother to blow up the home for $300,000 in insurance.  Half-brother Bob Leonard will face a trial in mid-January on the same charges, and trials for two other individuals are to be scheduled.

San Jose Police Utilizing New Tactic for Suppressing Gang Violence:  Violence had been declining in San Jose, California until the summer arrived, prompting police to launch a new tactic that aims to stem the sudden spike of gang-related crimes in the city.  Chris Nguyen of ABC 7 News reports that the San Jose Police Department implemented a gang suppression staffing model, ramping up enforcement efforts in five different areas throughout the city "with the goal of being highly visible to help deter more crimes from happening."  The department plans to use the strategy for the duration of the summer, and adjust it depending on the program's results.

Is the Criminal Justice System Broken?

There are two central themes in the President's Criminals-Are-Cool week-long campaign:  That the criminal justice system is "broken," and that the way to fix it is through softer sentencing and earlier release for convicted felons, mostly including (so far) dealers in hard drugs.

As I show after the break, both themes are breathtakingly false.  For now, however, I want to ask why the press (and almost all of academia) is so ready to believe them.  I think the answer is deeper than merely their affinity for a Democratic President.  The answer hinges on who the questioner thinks is more worth focusing on.

The outlook taken by the President and his backers focuses on convicts.  They are, in the view of leftist ideology, "the other"  --  the downtrodden, the "marginalized," society's victims.  Questions about how, specifically, they wound up in prison are not encouraged, nor are questions about their exact number. Simply letting it go with the catchy phrase "incarceration nation" will do.  (In fact, zero point seven percent of the population is incarcerated and ninety-nine point three percent is not).

The opposing outlook focuses on normal people with families and jobs, people who are not looking to make a fast buck stealing or swindling or selling coke to your 15 year-old.  To these people, is the criminal justice system "broken?"

News Scan

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MO to Execute Man who Killed Teen:  A Missouri death row inmate who was convicted of murdering a teenage girl in 2001 to avoid going back to prison after rear ending her vehicle is scheduled to die by lethal injection Tuesday evening.  Sarah Forhetz and Gene Hartley of KY 3 report that 55-year-old David Zink murdered 19-year-old Amanda Morton, whose body was discovered strangled in a cemetery with a broken neck, and her spinal cord had been sliced with a knife.  Zink is part of a lawsuit along with a group of other death row inmates filed against state officials, alleging its lethal injection protocol is unconstitutional.  He will become the fifth inmate executed in Missouri this year.

Gang Violence in Chicago Continues to Claim Lives:  The body count continues to rise as gang violence surges in Chicago, with 28 shot and six killed before the weekend even came to a close.  Warner Todd Huston of Breitbart reports that one of the victims is a one-year-old who was being pushed in a stroller by his mother when a car fleeing a gang shooting jumped a curb and ran him over.  Another victim, a 12-year-old, was shot in the leg in a South side neighborhood, but survived.  Since the start of the year, 1,416 people have been shot in the city.

Lawyer Charged in CA Kidnapping that Police Called a Hoax:  A disbarred Harvard-trained attorney has been charged with the March kidnapping of a California woman that law enforcement initially determined was a hoax.  Fox News reports that Matthew Miller was charged last month in a home-invasion robbery that shared similarities to the kidnapping, which alerted authorities to his possible involvement.  In March, the 29-year-old woman was abducted in Vallejo by kidnappers who demanded an $8,500 ransom, though she turned up safe in her hometown of Huntington Beach hours before the ransom was due, claiming to have been dropped off.  The victim's boyfriend, present in the Vallejo home during the time the woman was allegedly abducted, maintains that the kidnapping was real.  Law enforcement continues to investigate.

More than 1,800 Illegal Immigrants Committed Crimes After Release:  A report released by the U.S. Immigration and Customs Enforcement (ICE) on Monday reveals that more than 1,800 immigrants that the federal government wanted to deport were instead released into American communities only to be re-arrested for an array of offenses.  The AP reports that the top crimes for which illegals were re-arrested for included drug violations and drunk driving, though examples of more severe offenses were cited in the report as well.  Over 250 jurisdictions across the country, some of which are regarded as "sanctuary cities," have stopped honoring immigration detainers, a policy that led to the release of illegal immigrant Juan Francisco Lopez-Sanchez, who went on to murder 32-year-old Kathryn Steinle in a busy San Francisco tourist area.

Son of Police Captain Charged in Connection with ISIS Terror Plot:  The son of a Boston police chief, who was one of the first responders at the scene of the 2013 Boston Marathon bombings, has been arrested and charged in connection with a plot to engage in terrorism on behalf of the Islamic State, or ISIS.  Dan Hausle and Victoria Warren of WHDH report that 23-year-old Alexander Ciccolo's conversation with a cooperating witness was audio-recorded, in which he shared plans to set off improvised explosive devices in crowded areas such as college cafeterias and attack police stations.  He is also charged with being a felon in possession of firearms.

Courts Could Give SF Sanctuary in Potential Suit Over Illegal Immigration:  The parents of Kathryn Steinle, the young woman killed this month by an illegal immigrant, say that they have not yet begun to consider legal action against the city of San Francisco for the immigration policies some are blaming for their daughter's death, though past attempts to sue "sanctuary cities" would indicate that the possibility of a lawsuit overturning the policy is miniscule.  Perry Chiaramonte of Fox News reports that if the Steinles decide to sue, criminal defense attorney Anna R. Yum says that the key to winning the case would be to show "that the city violated a state or federal law aimed at preventing violent crimes by illegal aliens."  Convicted felon and five-time deportee Juan Francisco Lopez-Sanchez shot and killed Kathryn Steinle on July 1 as she walked along a pier with her father.  

Do criminals owe a debt to society, or is it the other way 'round?  

The Obama Administration's answer is no longer open to serious doubt.  As ABC News reports:

The 46 sentence reductions [Obama granted today] are the most presidential commutations in a single day since at least the administration of President Lyndon Johnson, according to the White House. Overall, Obama has commuted sentences of 89 people, surpassing the combined number of commutations granted by Presidents Ronald Reagan, George H.W. Bush, Bill Clinton and George W. Bush.

They represent a sliver of all those seeking clemency: Justice Department statistics show that roughly 2,100 commutation petitions have been received so far this fiscal year, and about 7,900 are pending.

White House counsel Neil Eggleston predicted the president would issue even more commutations before leaving office, but added that "clemency alone will not fix decades of overly punitive sentencing policies."

The president this week is devoting considerable attention to criminal justice. In addition to his speech Tuesday [to the NAACP Convention] in Philadelphia, he is to become the first sitting president to visit a federal prison when he goes to the El Reno Federal Correctional Institution outside of Oklahoma City on Thursday. He'll meet with both law enforcement officials and inmates.

Some might think that "overly punitive sentencing policies" had something to do with the dramatic drop in crime in the last quarter century, but that goes unmentioned in the story and unseen in the President's outlook.  

News Scan

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CA County Struggles with Increased Service Demand from AB 109:  Spreading thin from California's prison realignment program, known as AB 109, millions of dollars in upgrades and more staff are needed in San Bernardino County jails to address the issues the measure has caused.  Joe Nelson of the Sun reports that new sergeants have been assigned to the county's busiest facility, and $3 million has been allocated for the FY 2015-2016 budget for staffing mental health workers alone.  Prison Law Office director Donald Spector blames realignment, noting "AB 109 exacerbated pre-existing conditions at some jails."

Girl Kidnapped and Assaulted by Illegal Immigrant:  A 13-year-old girl reported missing last Tuesday in Florida was found inside a Michigan home with a 23-year-old illegal immigrant from Mexico.  WNDU reports that Aurelio Hernandez-Gomez allegedly sexually assaulted the young girl, was arrested for criminal sexual conduct and jailed.  Arrangements have been made to reunite the girl with her parents in Florida.

Cities Nationwide See Surges in Homicides:  After years of plummeting crime numbers in police departments across the county, homicides have spiked in several major U.S. cities such as Houston, St. Louis, New Orleans, Baltimore, New York and Chicago.  Don Babwin of the AP reports that concern surrounds whether the recent surges "reflect a confluence of recent shifts" such as distrust of police, apprehensive officers avoiding public condemnation, budget cuts within law enforcement agencies and lack of federal funding.  Additionally, the restrictions regarding the use of police stop-and-frisk tactics is believed to also be contributing to the intensified bloodshed, with Professor Peter Moskos suggesting that if we don't want thousands of people stopped for the seizure of a few guns, then "we will have to accept that murders are going to go up 10 percent."

Parents of Murdered NE Woman Joins Effort to Get DP on Ballot:  "There are a few individuals in this world who are just purely evil, and no amount of resources or medication provided to them is going to change it," says Teri Roberts, the mother of a murder victim and one of the people fighting to gather signatures of referendum petitions that will allow Nebraskan voters to decide the fate of the death penalty.  Matt Miller of the World-Herald reports before the Legislature repealed capital punishment in May, Nikko Jenkins faced the death penalty for murdering four people in Omaha shortly after being released from prison in 2013.  Nebraskans for the Death Penalty, a group formed after the repeal, are working diligently to meet the August 27 deadline of 57,500 signatures of registered voters in the state to qualify the issue for the ballot.

Obama Commutes Sentences of 46 Drug Offenders:  President Obama commuted the sentences of 46 drug offenders serving time in federal prisons as a part of his administration's effort to reform the criminal justice system, adding to the list of 30 individuals that have already received clemency since December of last year.  Sari Horwitz and Juliet Eilperin of the Washington Post report that the president's decision to release the inmates aims to reduce operating costs and overcrowding in federal prisons, and to relieve inmates who were sent to prison in the 1980s under "harsh sentencing guidelines."  Over 35,000 inmates, or about 16 percent of the federal prison population, have applied for early release since Obama's announcement last year of his plans to grant clemency.

How Dylann Roof Got the Murder Weapon

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Scott Johnson reports:

After Dylann Roof murdered nine pastors and churchgoers in the course of Bible study in Charleston, President Obama couldn't wait to use the occasion for his narrow political purposes. "Let's be clear," he said with urgency in his voice. "At some point we as a country will have to reckon with the fact that this type of mass violence ... doesn't happen in other places with this kind of frequency. And it is in our power to do something about it." The implication, of course, was that additional gun control legislation was required but that his political opponents refused to see the light.

Now we learn in whose power it was to do something about it, and it wasn't anyone Obama was talking about. The Washington Post reports: "Dylann Roof, who is accused of killing nine people at a church in South Carolina three weeks ago, was only able to purchase the gun used in the attack because of breakdowns in the FBI's background-check system, FBI Director James B. Comey said Friday." The White House, of course, declines to comment.

I said at the time of his nomination that Jim Comey was a man of integrity.  I feel vindicated today.  As to his boss, I have as much comment as the White House.

The End of Crime Reduction

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Sentencing reformers have been celebrating their successes in the states, and to be honest, they've had more than a few.  The word "reform" of course, is just code for "shortening sentences for felons so they can get back in business more quickly."

The emotive engine of sentencing "reform" does not stop with shorter sentences.  It's the same engine that powers the call for more passive policing, curbing or ending the death penalty, and (perhaps most notably in recent times) perpetuating the "Hands Up, Don't Shoot" hoax, in which a white policeman, Darren Wilson, was driven off the force and out of town by a fabulist yarn of racist murder.  In fact, Wilson acted in self-defense against the aggressive behavior of a man who outweighed him by 85 pounds.

More police, more focused policing (including but not limited to stop-and-frisk), and more incarceration are three of the most important factors in the massive crime reduction the country has enjoyed over the last generation.  Out of forgetfulness and complacency (by some) and contempt for the United States (by others), there has been a sustained attack on these things.

Sooner or later, the attack was going to take a toll.

As heroin use and murder surge from coast to coast, that time is now.

Obama to Apologize to Criminals

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President Obama will make a trip to a federal prison in Oklahoma and will meet with, among others, inmates.  "Inmates" is another word for "criminals."  The story is here.

I'll take bets here and now that the President will have a great deal more to say about what's wrong with "the system" than what might have been wrong with the behavior of the inmates  --  the behavior that got them sent to prison in the first place.

Really.  I invite bets.  Any takers?

Obama, of course, is scarcely alone in thinking the problem is not in the behavior of hoodlums, but the behavior of the rest of us. Republicans like Rand Paul, Newt Gingrich and numerous others are increasingly falling for the line that criminals are victims (victims of our callousness, that is) and it's the rest of us who need to Get Our Minds Right.

With this thinking so prevalent in Washington and other places like legal academia, the era of falling crime is coming to an end.  We will all be hurt by this, but those who will be hurt the most are those living in the most crime-ridden areas.  This conspicuously would not include White House staff, congressmen and senators, and Soros- or Koch-funded think tanks. 

News Scan

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NY Police Chiefs Fed Up with Parole System:  Police chiefs in Monroe County, New York are standing together to demand reforms to the state's parole system, following the violent arrest of a parolee that had been out on parole for just two months before committing a string of robberies.  Sean Lahman and Joe Hand of the Democrat & Chronicle report that Gates Police Chief James VanBrederode is exasperated by the lack of supervision violent offenders are receiving on parole, calling it "an embarrassment to the law enforcement community."  Police arrested parolee Shaun Zimmer, previously incarcerated on a 2008 burglary charge, for seven armed robberies after a violent confrontation involving an assault on a police officer with a knife.  Another incident occurred in April, in which a man out on parole for a violent offense opened fire inside of a pub, wounding six and killing one.

Woman Gave Vital Info that Led to Raid of Subway Spokesman's Home:  A woman who spoke to Subway spokesman Jared Fogle on several occasions more than a decade ago told investigators that he often made "surprising and inappropriate remarks" containing subject matter that was "similar to what the FBI found when they raided his home."  Fox News reports that authorities had the Florida woman wear a wire and record phone conversations with Fogle, leading to the FBI raid of his home this week.  The development follows the May arrest of Russell Taylor, the former executive of Fogle's charity, the Jared Foundation, on seven counts of production of child pornography and one count of possession of child pornography.  Subway has suspended its relationship with Fogle, who has not been charged with any crime at this point in the investigation.

Charleston Shooter Sold Gun Illegally:  Dylann Roof, the man who gunned down nine African American parishioners at a historically black church in Charleston, South Carolina, should not have been able to purchase a gun, the FBI said Friday.  Pete Williams and Halimah Abdullah of NBC News report that an alleged background check flaw allowed Roof to illegally purchase a .45-caliber Glock handgun shortly after his 21st birthday in April, despite a pending drug charge.  Federal law prohibits the sale of a firearm to anyone who is "under indictment for" a felony, and a separate provision bars the sale of a firearm to anyone who is an "unlawful user" of any controlled substance.

SF Sheriff Defends Release of Illegal Immigrant Charged with Murder:  San Francisco's sheriff, under heavy fire for the release of an illegal immigrant who has been charged in the shooting death of a young woman, is defending his department's decision, claiming that federal authorities failed to provide legal basis to continue holding him.  Paul J. Elias of the AP reports that Sheriff Ross Mirkarimi says that his department followed procedure and local laws when they released Juan Francisco Lopez-Sanchez, a five-time deportee and illegal immigrant with seven felony drug convictions, who went on to shoot and kill 32-year-old Kathryn Steinle while she walked along a busy pier with her father.  Information reveals that the San Francisco Sheriff's office released Sanchez despite a federal immigration request asking them to hold him until U.S. authorities could take him into custody for deportation proceedings.  Advocates for stricter immigration enforcement hope that this incident "leads to closer collaboration between local law enforcement and immigration authorities."

California Attorney General Kamala Harris released four annual reports on July 1 regarding crime and juvenile justice in the state, the summary for which can be read here.  The reports "present statistics for reported crimes, arrests, disposition of adult felony arrests, adults placed on probation, full-time criminal justice personnel, citizens' complaints against peace officers, domestic violence related calls for assistance, and law enforcement officers killed or assaulted."

The four reports, titled Crime in California 2014, Homicide in California 2014, Hate Crime in California 2014, and Juvenile Justice in California 2014, show an overall drop in crime rates in the state.  However, AG Harris' reports do not accurately represent crime rates in the state; rather, her reports show her proficiency at cherry picking statistics.  Here are some things she decided was not worth including:

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OK Sets Execution Dates for Inmates who Lost Supreme Court Case:  The three Oklahoma death row  inmates who lost a battle to have the U.S. Supreme Court halt their executions, claiming problems with the state's lethal injection drugs, had their execution dates set on Wednesday by the Oklahoma Court of Criminal Appeals.  Heide Brandes of Reuters reports that Richard Glossip will be executed on Sept. 16, Benjamin Cole on Oct. 7 and John Grant on Oct. 28 of this year.  In April 2014, all state executions were suspected following a problematic lethal injection of convicted murderer Clayton Lockett, igniting arguments over whether the anesthesia used achieved the level of unconsciousness required for executions.  Last month, the Supreme Court found that the drug did not constitute cruel and unusual punishment, allowing Oklahoma to resume executions.

CA County Jails Taking in More Repeat Felons:  According to a recent report, fewer ex-felons are returning to California state prisons - because they're going to county jails instead.  Brian Rokos of the Press Enterprise reports that the pattern coincides with the passage of AB 109, or prison realignment, in 2011, which sends parole violators back to county jail rather returning them to the prison system.  An influx of more serious criminals into county jails, along with rampant overcrowding as a result of realignment, has caused increased violence in the state's county jails.  Since Gov. Jerry Brown signed AB 109 into law, the number of inmate-on-inmate assaults almost doubled, from the mid-300s to the 600s.  Sacramento County Sheriff Scott Jones responded to the report on KFBK radio this morning.

Baltimore Mayor Fires Police Commissioner:  Baltimore mayor fired the city's police commissioner Wednesday, citing the recent spike in homicides following the death of an unarmed black man in police custody as cause for a change in leadership.  The AP reports that Mayor Stephanie Rawlings-Blake said that increasing criticism of Police Commissioner Anthony Batts' leadership was becoming "a distraction that was preventing the city from moving ahead."  Arrests have plummeted and homicides have spiked since the city broke out into riots almost three months ago over the death of Freddie Gray, who died of injuries sustained while in police custody, for which six Baltimore police officers have been arrested.  Deputy Police Commissioner Kevin Davis, who has been with the agency since January, will serve as interim commissioner.

Recent Homicide Spotlights Midwestern Gang Violence:  A fatal shooting in Omaha, Nebraska carried out by a 12-year-old boy with gang connections has called attention to gang violence in the Midwest, an area that is burdening a resurgence of gun assault incidents.  Erik Ortiz of NBC News reports that retaliation by nearly a dozen gangs have been blamed for Omaha's increase in violence, as Police Chief Todd Schmaderer emphasized that "what you're seeing is today's victim becomes tomorrow's suspect."  On June 29, 12-year-old Jerrell Milton, along with two teenage accomplices, fatally shot a 31-year-old man during an alleged drug deal before feeling 400 miles to Minneapolis, where he was eventually apprehended last Tuesday.  All three suspects have gang ties and have been extradited back to Nebraska to face murder charges.

TN Bank Exec and Family Kidnapped, Forced to Rob Bank:  A Knoxville, Tennessee bank executive and his family were held hostage by two armed home invaders Tuesday morning, who rounded up the family into their own vehicle and forced the executive to rob the bank where he works while his family was held at gunpoint.  Fox News reports that Tanner Harris was ordered by the masked robbers to withdraw an undisclosed sum of money while his wife, Abbey Harris, and their five-month-old baby were held in the car outside.  The robbers fled with Abbey and the child after receiving the money, but the two were left unharmed with the vehicle on an abandoned road.  FBI agents believe the same kidnappers may be responsible for a similar crime that took place three months ago, in which a credit union CEO's family was kidnapped in the same manner. 

Map Reveals Vast Network of Sanctuaries for Illegals:  Following the July 1 shooting death of Kathryn Steinle by criminal alien Francisco Sanchez in San Francisco, the U.S. Center for Immigration Studies published a map detailing counties, cities and entire states where officials are barred from cooperating with the U.S. Immigration and Customs Enforcement (ICE).  Katie McHugh of Breitbart reports that policies vary from city to city and state to state, North Dakota's being particularly extreme, where state penitentiary policy forbids the state from honoring any ICE detainer and will therefore not cooperate with immigration officials, even if the detainee is a rapist or murderer.  The 2016 presidential election will give presidential candidates the opportunity to call for and outline reformation to the "immigration policies the elite of both parties designed without [Americans'] consent."

The ABC News affiliate in Omaha has this story about a family that has volunteered with the Nebraska citizens' effort to allow the electorate to have its say on the legislature's death penalty repeal.  

As the story points out, billionaire George Soros has donated $400,000 to the effort to deny giving the voters their say.  I'm glad at least that he's such a fan of participatory democracy.  If I'm remembering correctly, he and his allies were backers of getting the death penalty on the ballot for voters to have their say in California in 2012 (Prop 34).  Perhaps the experience there (the death penalty won by a little less than half a million votes) convinced abolitionists that voters should be kept out of it.

Contributions to Nebraskans for the Death Penalty can be made here.

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Surge in LA Crime in First Six Months of Year:  Overall crime in Los Angeles through the first six months of the year has risen by about 12 percent, ending more than a decade of consecutive declines dating back to 2003.  Kate Mather and Ben Poston of the LA Times report that violent crime in the city has jumped 21 percent, particularly in the category of aggravated assault, and property crime has climbed 10 percent.  In April, Los Angeles Mayor Eric Garcetti faced criticism after announcing plans to double the number of LAPD's elite, tactical metro police officers to swarm high-crime neighborhoods, due to public belief that their presence would "undermine years of progress the department has made in building better relationships with communities."  It is unclear whether the expansion of LAPD's Metropolitan Division has had an impact on the city's crime rates.

Gun in SF Killing Stolen from Federal Agent's Vehicle:  The gun used in the shooting death of a woman walking on a San Francisco pier last week was stolen from a vehicle belonging to a federal Bureau of Land Management agent, sources say.  Sara Sidner and Ed Payne of CNN report that illegal immigrant and six-time deportee Juan Francisco Lopez-Sanchez shot and killed 32-year-old Kate Steinle last Wednesday as she walked along the busy pier with her father.  Investigators are still determining how Lopez-Sanchez ultimately obtained the weapon, which was the agent's personal firearm, not official.  Note: stealing a firearm valued at under $950 in California is a misdemeanor under Prop. 47, adopted last fall with the high profile  support of San Francisco District Attorney George Gascon. 

Missing Baby's Body Found in River:  The body of the infant, who was reportedly being held by his father as he plunged from a bridge into the Connecticut River on Sunday night, has been recovered.  Shawn R. Beals and Alaine Griffin of the Hartford Courant report that 7-month-old Aaden Moreno's father, 22-year-old Tony Moreno, and his mother were in the middle of filing a child custody application after a judge refused to grant the mother a restraining order against Moreno because he was not convinced of a "continuous threat of present physical pain or physical injury."  Tony Moreno was rescued from the river, hospitalized and arraigned on murder and capital felony charges.

Illegals Make Up 37% of Federal Sentences in FY 2014:  Though only 3.5 percent of the U.S. population, illegal immigrants accounted for 36.7 percent of federal sentences in FY 2014 following criminal convictions, according to the U.S. Sentencing Commission (USSC).  Caroline May of Breitbart reports that when broken down categorically, illegal immigrants represented 16.8 percent of drug trafficking cases, 20 percent of kidnapping cases, 74.1 percent of drug possession cases, 12 percent of murder convictions and 91.6 percent of immigration violations.  The USSC does not include state or death penalty cases and only has data for federal offenders sentenced under the Sentencing Reform Act of 1984.

Top 5 Districts for Criminal Cases on Mexican Border:  A staggering 41.7 percent of federal criminal cases filed nationwide by attorneys in U.S. district courts in FY 2014 were in the five districts that sit along the U.S.-Mexico border, according to the U.S. Justice Department.  Terence P. Jeffrey of CNS News reports that the same five border districts - located in California, Arizona, New Mexico, Southern Texas and Western Texas - also had the most defendants found guilty as a result of cases filed in U.S. district courts.  A single U.S. attorney's office in Western Texas had a total of 5,832 cases filed in FY 2014, while the sum of every federal case filed in the 17 U.S. district courts spanning the Canadian border totaled at only 5,257.

Prison Riot Sparks Concern of Escape:  Unrest that began at a privately run Arizona prison on July 1 and lasted for days following a corrections officer's attempt to stop an inmate-on-inmate assault has prompted Gov. Doug Ducey to initiate a probe into the facility that has a history of security problems.  Bob Christie of the AP reports that a full-blown riot broke out on July 2, resulting in trashed housing units and injured guards and inmates.  The rioting has some worried of an escape occurring amid the chaos; especially considering prisons Director Charles Ryan's scathing review regarding the facility's security flaws and poor operational practices.  Thousands of inmates have been transferred to other facilities while the damage is repaired.

What Happens When We Lose Our Nerve

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What happens is that we return to past failures.  An article in Quadrant begins:

Welcome to the 1970s! In New York, anyway, one of the decades Tom Wolfe denominated "purple" has made a stunning comeback. Consider crime. After a precipitous decline that began under the mayoralty of Rudy Giuliani and continued under Michael Bloomberg, violent crime has soared in the city. From May 2014 to the end of May this year, shootings increased almost 10 per cent while murders jumped a stunning 19.5 per cent during the same period. Meanwhile, Central Park has once again become a haven for thieves and muggers. "Police are investigating another mugging in Central Park," begins a May 20 story in the New York Post, "the latest in a string of robberies that has residents on edge."

It continues:

The centrepiece of Bill de Blasio's mayoral campaign in 2013 was a promise to end one of the most effective weapons against violent crime: "stop and frisk", the practice by the police of stopping, questioning and, in some cases, frisking suspicious characters. De Blasio wanted to end the practice because the overwhelming majority of those stopped and frisked were Black. The reason for this was that the overwhelming majority of suspicious characters that the police encountered were Black, but that reality did not prevent de Blasio from pretending that the practice was inexcusably racist. Former Police Commissioner Ray Kelly warned that "people would suffer" if the prophylactic practice was abandoned. No matter. It was too good an opportunity for a left-wing demagogue to ignore.

I don't subscribe to everything the author argues, but I very much subscribe to the underlying thesis:  If we turn away from standards, and the enforcement of standards, that made life safer and better, it will return to being more dangerous and worse.

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6-Time Deportee Charged in Felony Hit-and-Run:  An illegal immigrant that was deported six times has been charged in the felony hit-and-run of an Arizona mother and her two young children.  Brandon Darby of Breitbart reports that Manuel Perez-Vasquez admitted to being high on marijuana at the time of the accident, which caused severe lacerations to the woman's five-year-old son.  Both children, the other aged two, were hospitalized following the accident.

Border Reports Back Trump's Claims:  After presidential candidate Donald Trump's remarks on illegal immigrants during the announcement of his candidacy sparked public outrage and criticism, reports from the U.S. Border Patrol show that his statements, while blunt, are "not inherently wrong."  Ben Graham of MRC TV reports that according to Border Patrol's records, there have been 40 cases of sexual abuse by illegal immigrants this year, many of which involve children and minors.  Additionally, just under $3.5 million worth of marijuana was seized in Arizona from Mexican nationals this past Thursday alone.

Bill Cosby Testified to Getting Drugs to Give Women:  According to documents that were unsealed on Monday, comedian Bill Cosby testified in a 2005 sexual abuse case that he acquired Quaaludes with the intent of giving them to women he wanted to have sex with, and stated the he did in fact drug "at least one woman."  The AP reports that the documents were finally released after years of objection from Cosby's lawyers, who sought to keep the documents sealed to save their client from embarrassment.  The lawsuit, filed by a Temple University employee, was settled for an undisclosed amount in 2006.  Cosby, the 77-year-old comedy legend, has been accused of sexual misconduct by over two dozen women dating back more than four decades.  In most cases, the statute of limitations has expired, and Cosby has never been criminally charged.

Search Underway for Baby Whose Father Jumped off Bridge with Him:  A 22-year-old man, rescued from the Connecticut River on Sunday, is believed to have jumped off of a bridge with his infant son, who is still unaccounted for.  Ashley Fantz of CNN reports that Tony Moreno stood on the Arrigoni Bridge threatening to commit suicide while holding his seven-month-old son Aaden in his arms on Sunday evening, according to witness accounts.  Court records show an open child custody case between Moreno and Aaden's mother, as well as a restraining order recently filed by the mother against Moreno.  Moreno is hospitalized in critical condition and has not yet been charged with a crime.

Subway Pitchman's Home Raided:  State and federal authorities searched the suburban Indiana home of Subway spokesman Jared Fogle on Tuesday just over two months after the former director of his charity was arrested on child pornography charges.  Fox News reports that Fogle was present while electronics were taken from the home and examined in an evidence truck parked outside.  Russell Taylor, former executive director of the Jared Foundation, faces seven counts of production of child pornography and one count of possession of child pornography.  Fogle stated that the foundation will be "severing all ties" with Taylor.

Stars and Bars Update

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Only marginally on topic, I know, but ...

Sanctuary Cities and Blood

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Miriam Jordan and Zusha Elinson report for the WSJ:

The fatal shooting of a woman in San Francisco last week, allegedly by an illegal immigrant man convicted of seven felonies and previously deported to Mexico, has sparked a debate about the extent to which local law enforcement and federal immigration authorities should cooperate.

At issue is the Department of Homeland Security's practice of seeking to identify potentially deportable individuals in jails or prisons nationwide by issuing a "detainer," a request rather than an order to extend the individual's detention.

Kathryn Steinle, 32 years old, was walking with her father along Pier 14 on the evening of July 1 when she was shot in her upper torso, police said. She later died at a hospital.

*                               *                             *

On March 26, [the suspect, Francisco] Sanchez was booked into the San Francisco County Jail on a local drug-related warrant after serving a federal prison term, the city's sheriff's office said. The next day, Mr. Sanchez appeared in San Francisco Superior Court and the drug charges were dismissed.

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No 'Legal Basis' to Hold Illegal Immigrant Suspected in SF Shooting:  The illegal immigrant suspected in the shooting death of a young woman on a San Francisco pier last week has seven felony convictions on his record and had been deported five times previously.  The AP reports that U.S. Immigration and Customs Enforcement issued a detainer on Francisco Sanchez in March of this year for a drug warrant, but it was not honored because federal detention orders are not a legal basis to hold someone, and he was released in April.  San Francisco is a "sanctuary city" and does not turn over illegal immigrants unless there's an active warrant out for their arrest.  Kathryn Steinle was shot to death while walking along a busy pier with her father Wednesday evening in what authorities believe was a random attack.

Gruesome Fourth of July Weekend in Chicago:  Seven homicides in two days, including the death of a 7-year-old boy, have left the city of Chicago reeling and the police superintendent demanding for repair to the "broken system."  Holly Yan and Leslie Holland of CNN report that there were an additional 40 non-fatal shootings as well, and police say they recovered one illegal gun per hour across the city since Friday morning.  Though statistics show a decrease in violent incidents compared with last year, law enforcement believes that the flow of guns into the city needs curtailing. 

AB 109 Offender Arrested with Loaded Gun, Meth:  A felon from Big Bear, California wanted for violating the terms and conditions of his post release community supervision under the AB 109 prison realignment law was arrested with a large amount of methamphetamine and a loaded 12-gauge shotgun.  The San Bernardino Sun reports that 25-year-old James Wilson has been booked on suspicion of possessing a firearm, possessing a controlled substance while armed, being under the influence while armed and possessing a controlled substance for sale.

Oops, Wrong Sniper

The Stockton Record has this story on a locally notorious murder and the DA's decision to seek the death penalty. It's a good story overall, but I was taken aback by this passage:

Virginia, Scheidegger said, executed Lee Boyd Malvo, also known as the "D.C. Sniper," in less than six years. "And that's entirely doable (in California)," he said.
Of course, it was the mastermind of the D.C. Sniper conspiracy, John Allen Muhammad, who was executed.  I just referred to him as "the D.C. Sniper," as I usually do, when I spoke with the reporter.  The accomplice Lee Boyd Malvo was a juvenile at the time of the crimes and was not executed.

Update:  The Record has corrected the article.

The parenthetical "(in California)" is also added.  I think it is doable to get our state processes done in five years with the proper reforms.  Then the federal courts will have to have deadlines set by implementing Chapter 154, which would be about three years.  Realistically we are looking at about eight years.

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Criminals Adapting to CA's Prop 47:  Though too early to comprehensively assess how California's Prop 47, the voter approved initiative that went into effect in November 2014 downgrading certain felonies to misdemeanors, law enforcement in Riverside County say that one result is clear:  offenders have adjusted their behavior to push the limits of the new law.  Sheriff Stan Sniff has this piece in the Desert Sun, stating that deputies have noticed that individuals arrested for theft have been careful not to exceed the $950 cutoff, and one man even admitted that what attracted him to mail theft was the lenient treatment the crime received under the law.  With police officers' duties to detain offenders stifled, and with no real consequences to "minor" criminals for their crimes, the price of Prop 47 is "steep for the public, while slight for the perpetrators."

'All Clear' at the DC Navy Yard After Reports of Gunfire:  A massive police response ensued after gunfire was reported at the same Washington Navy Yard where a gunman killed 12 people in 2013, but authorities issued an "all clear" following an extensive search.  Fox News reports that word of the shooting came after the news that the FBI was establishing command centers around the country to monitor potential terrorist threats around the Fourth of July weekend.  Retired Navy Capt. Chuck Nash says he is not aware of any specific threat.

New Warden, New Security Measures:  Clinton Correctional Facility in upstate New York is implementing a range of new security measures following the escape of two convicted murderers, leaving new superintendent Michael Kilpatrick, a 30-year correction veteran, with great responsibility.  Michael Virtanen of the AP reports that the new measures include ramped-up searches of inmates' cells, staffing changes to ensure more effective bed checks and installation of security gates in the facility's tunnels.  One of the two escapees, Richard Matt, was shot dead by police and the other, David Sweat, was captured alive after a three-week manhunt.  The former superintendent, two of his deputies and nine other staff members have been placed on paid leave while an internal review is conducted.

Justice Breyer's Dubious Authorities

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The following is a guest post by Connecticut Senior Assistant State's Attorney Harry Weller, commenting on Justice Breyer's dissenting opinion in Glossip v. Gross on Monday. The Connecticut Superior Court decision referred to is In re Death Penalty Disparity Claims (Oct. 11, 2013), previously noted in this post.   As always, opinions expressed by guest bloggers are their own.

I was taken aback when I read Justice Breyer's reference to Prof. John Donohue's law review article about racial bias in Connecticut's administration of its capital sentencing scheme. That a United States Supreme Court Justice would quote an article about a study that was thoroughly rejected in litigation is astonishing. This is especially so in this instance, when the proponents of Donohue's study kept his written report from the habeas court to also block admission, on hearsay grounds, of the devastating and unqualified evisceration of his study by the state's expert.

I'm equally concerned that Justice Breyer cited the report without questioning the validity of Donohue's "egregiousness" scale. After all, Donohue just made up the scale and never tested it objectively to determine whether it indicated anything meaningful or relevant about  Connecticut's capital sentencing scheme. Thereafter, when his egregiousness results--compiled by law students from scrubbed summaries--disagreed with the results dictated by the statutory criteria for imposing a death sentence--as evaluated by experienced prosecutors, judges, and juries based on all the evidence--Donohue determined that the latter were arbitrary.

Glossip v. Gross Podcast

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For those of you who can't get enough of my commentary on Glossip v. Gross (and I know you're out there), yesterday's FedSoc teleforum is now available as a podcast.

Seriously, I'm told that the number of downloads of the podcast versions of the teleforums greatly exceeds the live participation on the calls, and I thank the Federalist Society both for hosting the teleforum and making the podcast available so promptly.

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NYPD on High Alert for Terror Attack:  The Tri-State area is on hyper-alert for the threat of a terror attack during the Fourth of July holiday as the Islamic State (ISIS) continues to actively radicalize people in the area and orders their followers to "kill the enemy" during the Ramadan holiday.  CBS New York reports that five people have been arrested in New York and New Jersey recently on terror-related charges, the latest being 23-year-old Alaa Saadeh, who is believed to be part of a group planning to detonate a pressure cooker bomb at a New York landmark.  The Department of Homeland Security has ordered the NYPD and 18,000 other law enforcement agencies across the nation to be "especially vigilant and prepared."

Bill Aims to Stop Illegal Immigrant 'Catch and Release' Practices:  Congressman Matt Salmon has introduced a bill that aims to halt criminal alien "catch and release" practices, in response to the murder of a young Arizona man at the hands of an illegal immigrant who was out on bond after a burglary conviction.  Nicole Garcia of Fox News 10 reports that Apolinar Altamirano shot and killed 21-year-old convenience store worker Grant Ronnebeck over a pack of cigarettes.  HB 2941, or "Grant's Law," requires U.S. Immigration and Customs Enforcement to keep criminal aliens detained for at least 90 days, after which they would be put in the front of the line for deportation.

Chicago Communities Brace for Violent Weekend:  As the Fourth of July weekend approaches, Chicago's South and West side residents brace for the "seemingly inevitable" violence that has come to be associated with the celebration.  Jeremy Gorner and Lolly Bowean of the Chicago Tribune report that last year's Fourth of July festivities resulted in 14 people dead and 66 wounded in just 3 ½ days, many of which were attributed to gang violence.  Homicides and shootings have risen sharply in the city in the first half of 2015, prompting law enforcement and even trauma doctors to mentally prepare for what the weekend may bring.

NY Prison Escapees Broke Out Twice:  David Sweat, one of the two convicted murderers who broke out of a New York prison and went on the run for weeks before being shot and captured, told authorities that he and his accomplice Richard Matt, fatally shot by police while on the run, conducted a "dry run" of their escape the night before their plan reached fruition.  Fox News reports that Sweat claims to have used a hacksaw blade to cut holes in the steel walls of his and Matt's cells and in the 24-inch steam pipe they crawled through to reach the catwalk in the bowels of the prison, where they reached the outside of the prison through a manhole.  He also claims that the two navigated the pipe from 11:30 p.m. to 5 a.m. in the days before their planned breakout.  As details of the plan continue to unfold, more Clinton Correctional Facility prison officials are being put on leave, including the superintendent, his deputy and 10 other employees.

A small newspaper in central Pennsylvania published an editorial on Monday hailing Governor Tom Wolf's statewide moratorium on the death penalty.  It begins with a quote from novelist Raymond Chandler claiming that law is not justice but rather an imperfect mechanism that randomly jets out results - sometimes we get what we call justice; sometimes naught. 


The editorial proceeds by mentioning the case that led to the moratorium:  Hubert Lester Michael Jr.  Michael was convicted of the murder of 16 year old Trista Eng.  Eng had posted an ad to sell a chair, which Michael responded to.  Later Michael picked her up while she was hitchhiking. He bound, raped and killed her.  Eng's life was over at 16 because she posted an ad to sell someone a chair.   Her family is left to pick up the pieces. 


To which the editorial staff at the York Daily Record state:

All of us feel for these families. Many of us will never fully understand what they are going through.

And certainly, for them, and for many others, the death penalty is an emotional issue. But for the sake of justice, however imperfect, we have to be able to take a rational look at the death penalty and its purpose, its cost and its flaws, no matter how difficult that may be.

Mr. Michael is a poor candidate for this kind of rational reflection. He admitted his crimes. He had a history of brutality. He is a monster. It is easy to say, as York County District Attorney Thomas Kearney did, that he is "the poster child" for the death penalty.

Perhaps Mr. Michael deserves death.

But he is not what this debate is entirely about.

The rational debate about the death penalty is - at base - really about retributive justice.  The abolition movement is fond of recounting the "death is different" motto, which the Supreme Court invoked at least as far back as 1977.  But that is precisely the point: murder is a uniquely grievous crime that calls upon any civilized and orderly society to punish in an exceptional manner.   Society, of course, wants to deter murder and it wants to preserve the safety of its citizens, but justice, at least in this world, is an entirely human enterprise and it derives from the simple idea that people deserve to be punished when they have transgressed seriously against the social norms embodied in the law.

There is no "perhaps" in Michael's just deserts; what he deserves is worse than death but he mercifully gets less.  The conversation, though, is about deserving.  It is emotional but that does not render it irrational.  The touchstone of our humanity is that we can feel for others: the families of the victims; the outrage at the conduct of someone like Michael; the loss of safety that we all experience upon hearing of a horrendous crime; the brief thought: that could have been my child.  It is this same emotional affair that lends us to extend a lesser punishment for those who have truly extenuating circumstances.  Justice is not cold nor should it be because it is an entirely human endeavor not a mechanical one.   The debate about the death penalty does include concerns about its reliability as does the entire criminal justice system, but it is, at heart, a debate about what people like Hubert Lester Michael deserve and that is reason at its best. 

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