September 2015 Archives

California's New Death Row -- Virginia

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The title of this post is taken from Debra Saunders' spot-on and mind-bendingly ironic column in today's SF Gate. As Ms. Saunders notes:

California has a new Death Row -- it's called Virginia. Death penalty opponents, federal judges and defense attorneys have been so successful at blocking capital punishment in California that a San Quentin Death Row inmate has more to fear from being extradited for a capital murder to another state than seeing his sentence carried out here. There has been no execution in California since a federal judge effectively halted the practice in 2006.

There is undoubtedly someone more deserving of execution than the killer facing his imminent punishment in Virginia, but it's hard to think of one off-hand:

Take serial killer Alfredo Prieto. In 2005, Prieto was on San Quentin's Death Row for the 1990 rape and murder of 15-year-old Yvette Woodruff in Riverside County, when DNA evidence linked him to three 1988 murders in Virginia. Under Gov. Arnold Schwarzenegger, California sent Prieto to Virginia, where killers sentenced to death actually face the likelihood of execution. (Authorities say evidence links Prieto to nine murders.) In 2010, a Virginia jury sentenced Prieto to death for the murder of Rachel Raver and Warren Fulton, both 22. Prieto is scheduled for lethal injection at the Greensville Correctional Center in Virginia Thursday night. Just 13 inmates have been executed in California since the death penalty resumed in 1978. Prieto will become the second√ California Death Row prisoner to be executed in another state.

We will probably never know how many innocent people are dead because Prieto wasn't executed before now.

The Rewards of Backing Sentencing "Reform"

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There have been two very important conservative-leaning groups backing sentencing "reform":  The Heritage Foundation, which has been interested (as am I) in reform of non-mens rea criminal statutes; and the Koch Foundation, funded by the wealthy and libertarian Koch brothers.  Without those backers, it's questionable at best how much Republican support  --  support essential in the current, Republican-dominated Congress  -- sentencing "reform" would ever have obtained.

In the sentencing bill to be introduced tomorrow, there will be no effort whatever to achieve mens rea reform. Perhaps this will give Heritage cause to reconsider its position, although I have no information on that score.

The Koch brothers will be getting something different from merely being ignored. Their reward for signing on to sentencing "reform" will be, Politico reports, a full-scale attack from their erstwhile allies.

Welcome to the snakepit of backroom, inside-the-Beltway deals.
From the OK Gov:

I, Mary Fallin, Governor of the State of Oklahoma, pursuant to Section 10 of Article 6 of the Oklahoma Constitution, hereby grant a stay of the execution of Richard Eugene Glossip of thirty-seven days from the current scheduled date of execution, September 30, 2015. This stay is ordered due to the Department of Corrections having received potassium acetate as drug number three for the three-drug protocol. This stay will give the Department of Corrections and its attorneys the opportunity to determine whether potassium acetate is compliant with the execution protocol and/or to obtain potassium chloride. The execution for Richard Eugene Glossip is therefore scheduled for Friday, November 6, 2015.
Technically that is a reprieve, not a stay.  The referenced section of the state constitution says, "The Governor shall have power to grant after conviction, reprieves or leaves of absence not to exceed sixty (60) days, without the action of the Pardon and Parole Board."

Glossip's petition to the U.S. Supreme Court was denied today with only Justice Breyer noting a dissenting vote.  They evidently were not impressed with his actual innocence claim, in contrast to Troy Davis, where they sent the case to a federal district judge for a full evidentiary hearing (at the conclusion of which he declared Davis's innocence claim to be "smoke and mirrors.")

Odd that potassium chloride would present a problem.  That is nothing fancy, just a simple salt.  Non-sodium table salt substitute (yuck) is often potassium chloride.

News Scan

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Convicted VA Killer to be Executed:  Virginia Gov. Terry McAuliffe announced Monday that he will not intervene in the scheduled execution of a convicted serial murderer, allowing the execution to move forward this week.  Tom Jackman of the Washington Post reports that 49-year-old Alfredo Prieto received two death sentences in 2010 for the 1988 murderers of Rachel Raver and Warren Fulton III, and was also linked by DNA to another Northern Virginia murder that occurred that same year.  It is believed Prieto committed nine murders between 1988 and 1990.  He received a death sentence in California for the rape and murder of a 15-year-old girl.  Prieto's defense lawyers claimed he was mentally retarded in his 2007 and 2008 trials in an effort convince the juries to spare his life, but the juries in both trials convicted him of capital murder.  He faces death by lethal injection Thursday night.

US Failing to Stop People from Joining ISIS:  An extensive six-month review released Thursday conducted by the House Homeland Security Committee found that the Obama administration has failed to stop more than 250 Americans who have traveled overseas since 2011 to join or attempt to join terrorist groups in the Middle East, including ISIS.  Fox News reports that the final congressional report states that of the hundreds of Americans who have attempted to travel to Iraq or Syria, only a fraction have been thwarted by authorities.  It is estimated that over 25,000 Americans have joined Iraqi and Syrian jihadists.  Also noted in the report was the Obama administration's lack of strategy to identify those who try to return to carry out terrorist attacks in the U.S., adding that "several dozen" have managed to make it back successfully.

Toll of Criminal Aliens Revealed:  Government agencies that crunch crime numbers are unable or unwilling to inform the public of how many illegal immigrants are arrested within U.S. borders each year, likely because "these numbers would expose how serious the problem is and make our government look bad."  Malia Zimmerman of Fox News reports that examined a patchwork of local, state and federal statistics, revealing figures that show illegal immigrants are three times as likely to be convicted of murder as the general population and constitute more crime than their 3.5 percent share of the U.S. population would indicate.  Statistics compiled from agencies such as the U.S. Census Bureau, U.S. Sentencing Commission, Immigration and Customs Enforcement (ICE), the Government Accountability Office and the Bureau of Justice Statistics show that of the 11.7 million illegal immigrants in the U.S., account for 13.6 percent of all serious crimes committed - 12 percent of murder sentences, 20 percent of kidnapping sentences and 16 percent of drug trafficking sentences.  To make matter worse, many of these offenders are being released onto U.S. streets by ICE every year:  in 2014, the agency released 30,558 criminal aliens with a combined 79,059 criminal convictions including 86 homicides, 186 kidnappings and thousands of sexual assaults, domestic violence convictions and DUIs.  At least 10,246 more have been released as of August.  "It is no accident that local, state and federal governments go to great lengths to keep the data under wraps," critics say.

Rising Bloodshed in Los Angeles:  This past weekend, a total of 19 people were shot across Los Angeles, five of them fatally, highlighting the rising bloodshed the city is experiencing.  Kate Mather and Nicole Santa Cruz of the LA Times report that the rising violence is fueled mostly by gang-related activity, something the LAPD has been trying to reduce for months by deploying more officers into the streets.  Still, killings continue to rise, with homicides up 11 percent this year compared to 2014.  Officials have been approaching the heightened violence with new strategies, such as focusing their efforts elsewhere if a shooting appears to be an isolated attack in order to prevent further violence and conducting more probation and parole checks.  The department continues to participate in gang prevention and intervention efforts as well as youth outreach, which has been successful over the years in curbing gang-related crime.  An activist who works to curb gang violence, Aqeela Sherrills, says that in order for the LAPD to succeed in combating the bloodshed, the city has to shows it's really committed to community-based solutions, adding that "the response is not more police."

Georgia Completes Execution

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NBC News has this story, just breaking:

A Georgia woman who was executed despite a plea for mercy from Pope Francis sang "Amazing Grace" until as she was given a lethal injection, witnesses said.

Kelly Renee Gissendaner was put to death at 12:21 a.m. Wednesday after a flurry of last-minute appeals failed.

Gissendaner, who was sentenced to death for the 1997 stabbing murder of her husband at the hands of her lover, sobbed as she called the victim an "amazing man who died because of me."

Particularly noteworthy was this paragraph later in the article:

In the hours before her death, Gissendaner pressed a number of appeals, arguing that it was not fair she got death while the lover who killed her husband got a life sentence. She also said the execution drugs might be defective, and that she had turned her life around and found religion while in prison.

I must be missing the argument there that could not have been made many years before last night.  It strikes me that the time has long since come to sanction lawyers who intentionally clog the courts and make a spectacle of legal process by bad faith, last-minute, kitchen-sink appeals.


A Grain of Salt for the Coming Spin

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Word has it that a "bi-partisan" bill will be introduced in the Senate on Thursday for sentencing "reform."  I don't know what's in it specifically, but it is reported to contain some elements of "back-end" reform (a kind of watered-down return of parole), a somewhat expanded "safety valve" for existing mandatory minimums, and a scattering of new mandatory minimums.

There is going to be a great deal of spin about this bill, most of it in pre-packaged press releases from organizations that have not had much of a chance to study it (as no one will have at the time these press releases go out the door).  My purpose here is no more than to caution against swallowing the spin by identifying it for what it is.  I expect the bulk of it to hail the bill as the "breakthrough" for "reform" and to be on the breathless and gushing side. A minority will have a sourpuss, lowering-of-expectations slant, saying that this is a poorly disguised sell-out of what could have been a burgeoning movement to release the downtrodden of society.

I won't be signing up for either version. I will instead, for the moment, content myself with what I view as very likely to be the basics.  There are four of them.

First, the bill will not even resemble reformers' principal aim, the Justice Safety Valve Act, which would have effectively abolished mandatory minimums.  Second, it's unlikely (although not impossible) that it will even reduce the length of present mandatory minimum terms.  Third, it will add some new ones, meaning that, if it becomes law, we will have more MM's than we do now.  Fourth, of course it's a long, long way from becoming law.  Last year, the Senate Judiciary Committee passed a more ambitious bill (the so-called Smarter Sentencing Act), which, after being heralded as having "unstoppable momentum," went nowhere.

News Scan

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Glossip Denied Stay:  A condemned Oklahoma death row inmate's appeals and request for a stay of execution were denied by the state Court of Criminal Appeals, allowing the scheduled execution to move forward.  Mark Berman of the Washington Post reports that attorneys for Richard Glossip, a convicted murderer, requested that the state appeals court halt his execution, arguing that Glossip was improperly tried and sentenced due to reliance on witness testimony, but the court rejected the claims with a 3-2 vote, finding that his conviction was "not based solely on testimony of a codefendant."  Glossip was convicted and sentenced to death for the 1997 beating death of Barry Van Treese, a motel worker.  Though he was not convicted of personally killing Van Treese, he was found guilty of paying Justin Sneed, serving a life sentence without the possibility of parole, to kill him.  Glossip will be executed by lethal injection Wednesday morning.

Long Island Prosecutors Banned from Owning Guns:  The Nassau County District Attorney's Office on New York's Long Island is prohibiting its prosecutors from possessing handguns, even at home, which some criticize as unconstitutional.  Fox News reports that the Nassau County DA's office insists that their policy of banning prosecutors from owning handguns "is to ensure the safety and comfort of staff, victims, and witnesses," however, UCLA law professor Eugene Volokh says that such a policy violates an individual's Second Amendment rights.  Additionally, it contradicts an important state statute "under which a handgun collection can be considered a lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purpose."  Volokh notes that, given the nature of their professions, prosecutors often have special reasons for wanting to carry a gun to protect themselves and their families from harm and should have the same constitutional rights as everyone else.

PPIC Study says Crime Down, Costs Up since AB 109:  AB 109 - also known as realignment - California's four-year-old program enacted to reduce the state prison population by sending low-level felons to county jails, has not increased crime, but also has not reduced the costs of incarceration or the rates of recidivism as intended, according to a study published Monday by the Public Policy Institute of California.  Bob Egelko of SF Gate reports that the study, authored by Magnus Lofstrom and Brandon Martin, says that since Gov. Jerry Brown's prison realignment plan went into effect in 2011, the number of inmates has declined by 40,000 in state prisons and 18,000 overall, part of which stems from 2012's Proposition 36 (exempting some non-violent felons from life terms under three-strikes) and 2014's Proposition 47 (reducing certain felonies to misdemeanors).  The authors claim that rates of violent and property crime have fallen to "historic lows," with the exception of auto theft, which is 17 percent higher under AB 109.  Despite reducing the prison population, AB 109 has not reduced costs to corrections, according to the study, as California is paying more now than before the initiative was passed.  Additionally, recidivism has not decreased as intended, and though the figures show that inmates are returning to prison less, it is only because they are sent  to county jail instead.  The rate of new convictions has also increased, due to changes in the parole system.

Note:  The findings in PPIC's study are deceptive, misleading and fail to tell the whole story.  First, while AB 109 did result in a decreased prison population, it was at the expense of county jails, which are now overcrowded beyond manageability, with some bursting at the seams with bunk beds stacked three-high to compensate for the immediate influx of additional offenders following the bill's passage in 2011.  To make matters worse, many of these offenders are serving much longer sentences for more serious crimes.  Second, the study claims that violent crime has reached "historic lows" following AB 109, though LAPD's misclassification of nearly 1,200 violent crimes as misdemeanor offenses last year was not factored into this finding.  Nor does the study make any mention to the statistics disclosed by police departments themselves, such as LAPD Chief Charlie Beck reporting earlier this year that violent crime rose 26 percent and property crimes 11 percent in Los Angeles.  There are also scores of other police chiefs and law enforcement officials in the state have reported disappointing crime rates, all of them condemning AB 109, Proposition 47 or both (see here, here, here and here).

The Extent of the Drug Abuse Disaster

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It's often said by those who would legalize drugs and/or substantially reduce the punishment for trafficking in them that the real drug-related damage befalling our country arises, not from drug use, but from the "war" against drug use.

I am content to let the following story speak for itself. From CNN, July 7, 2015:  "Heroin-related overdose deaths quadruple since 2002."  The article starts out:

Heroin use is increasing rapidly across the United States among all age, race, income and ethnic groups, the Centers for Disease Control and Prevention announced Tuesday. And the increase comes with a devastating price: Deaths from heroin-related overdoses nearly quadrupled between 2002 and 2013.

Heroin use doubled among women and young adults ages 18 to 25, and more than doubled among non-Hispanic whites. Some of the highest increases were in groups with historically low rates of abuse: women, people with higher incomes and people who are privately insured.

In other words, as we lose our nerve in the war against drugs  --  to the point that Congress is (apparently) thinking breezily about lowering penalties for illicit drugs of every sort  --  the human toll is exploding, and reaching into groups where it was little known before.

Indeed,, a pro-legalization group, acknowledges in this chart that there were 17,000 deaths per year from illicit drugs (and that's using 2002 data), Moreover, in 2013, before this year's spike, there were 8,257 heroin overdose deaths alone.

It's not the drug war that kills.  It's drugs that kill.  

Crime Fell Slightly in 2014, FBI Says

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Devlin Barrett has this article with the above headline in the WSJ.

Violent crime fell slightly in the U.S. last year, according to data released Monday by the Federal Bureau of Investigation, although big-city police chiefs recently warned that the number of killings this year appears to be rising.

According to the FBI, the number of violent crimes fell 0.2% in 2014 compared with the previous year. Property crimes decreased by 4.3%, according to the data.

Last month, the Major Cities Chiefs Association held a meeting in Washington to discuss a spike in killings this summer. Some law-enforcement officials fear that trend may signal an end to two decades of falling crime rates.

Police made more than 11 million arrests in 2014, and about 73% of those arrested were male.

Murder and manslaughters decreased 0.5% to 13,472, according to the FBI estimates, while robberies fell 5.6%. Rape and aggravated assaults increased about 2%, the agency said.

There are multiple theories for the long decline in crime that began in the early 1990s. Some law-enforcement officials cite stricter enforcement of quality-of-life crimes, while others cite increased incarceration or improved tactics and technology.

General Election Neck-and-Neck

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Mostly off-topic

How the Heroin Business Operates to Kill

A chilling Washington Post story describes how heroin is a bigger business than ever, having spread its market from big cities to medium-sized communities like Dayton, Ohio.

Mexican cartels have overtaken the U.S. heroin trade, imposing an almost corporate discipline. They grow and process the drug themselves, increasingly replacing their traditional black tar with an innovative high-quality powder with mass market appeal: It can be smoked or snorted by newcomers as well as shot up by hard-core addicts.

They have broadened distribution beyond the old big-city heroin centers like Chicago or New York to target unlikely places such as Dayton. The midsize Midwestern city today is considered to be an epicenter of the heroin problem, with addicts buying and overdosing in unsettling droves. Crack dealers on street corners have been supplanted by heroin dealers ranging across a far wider landscape, almost invisible to law enforcement. They arrange deals by cellphone and deliver heroin like pizza.

Then there was this chilling line:

Pellets bursting [inside the carrier's intestine] was a courier's worst fear. Once in Lorain, Ohio, a courier started foaming at the mouth, and his handler called down to Mexico to figure out what to do. As authorities listened via wiretap, the handler was told to cut the courier open and retrieve the remaining drugs.

Libertarian theory looks upon the "opportunity" to traffic in drugs as a hallmark of individual freedom.  I look upon it as one of the most heartless and grotesque forms of murder.

The Common Denominator in Crime Reduction

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Jeremy Gormer and Annie Sweeney have this article in the Chicago Tribune titled "A tale of 3 cities: LA and NYC outpace Chicago in curbing violence," showing the correlation between immersive policing strategies employed in New York City and Los Angeles -- both past and present -- and the reduction in violence the two cities have experienced and maintained despite national crime spikes.  While each city's criminal problems are uniquely their own and different tactics are utilized by their respective police departments to address those problems, one commonality is glaringly obvious among them all:  An involved, hands-on police presence in the community equates to less violence.  John Jay College of Criminal Justice professor David Kennedy confirms this:

Everything we know about procedural justice and legitimacy says that when communities -- including offenders and potential offenders -- respect the police more and trust the police more, violent crimes go down.

The Long Conference

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One week from today is the First Monday in October, at which the U.S. Supreme Court begins its 2015-2016 term, officially known as the October 2015 Term.

Today the Justices meet in conference to go over the big stack of petitions built up over the summer asking them to take cases up for review.  About 99% of these petitions will be denied without comment.  This week we can expect a short orders list of the few cases they have taken.  Last year it was on Thursday.  Next Monday there will be long list of cases denied.

SCOTUS blog has its Cases to Watch List in three parts, here, here, and here.  On a quick read there don't appear to be any blockbusters in the criminal law area.

Mistweeting Justice Scalia

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Chris Schmidt has this post at ISCOTUS now, the moral of which is, "Tweets are a lousy way to get our coverage of public events."

Jennifer Pignolet of the Memphis Commercial Appeal tweeted live during a speech by Justice Scalia, "Ta[l]king now about the death penalty. Says he now has 4 colleagues who believe it's unconstitutional. He disagrees."  (Emphasis added.)  Just one small problem.  The "now" and the present-tense verb were completely wrong.  Schmidt reports,

Scalia did not say that four of his current colleagues are ready to strike down the death penalty.  What he said, as Pignolet of the Commercial Appeal reported in a follow-up article, was the following: "I sat with three colleagues who thought the death penalty is unconstitutional ... I sat with three colleagues, and there is now a fourth -- Justice Breyer has announced that he thinks the death penalty is unconstitutional."  This quotation clearly indicates that Scalia was looking backwards in time, to colleagues he sat with, not to his colleagues on the current Court.  He was not talking about Sotomayor or Kagan or Kennedy.  He was talking about William Brennan, Thurgood Marshall, and Harry Blackmun, each of whom denounced the death penalty as unconstitutional while sitting on the Court.  In talking about his four anti-death penalty colleagues, Scalia was not saying anything we didn't already know.

News Scan

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Texas Sends Virginia Execution Drug:  Virginia has an execution scheduled for Thursday and has received assistance from Texas to provide the state with pentobarbital, a lethal drug used in executions.  Michael Graczyk and Alanna Durkin of the AP reports that the three vials given to Virginia by Texas were legally purchased from a compounding pharmacy.  Death penalty opponents are upset because Texas is not legally obliged to reveal the pharmacy's identity.  Lawyers for Richard Glossip, a condemned Oklahoma inmate set to die this week, are challenging the trade, arguing that due to the difficulty of obtaining pentobarbital, Glossip faces lethal injection by midazolam, an alternative sedative.  Glossip also claims that the Texas-Virginia trade is proof that pentobarbital is still available.  Virginia will use the Texas-provided pentobarbital this week to execute 49-year-old Alfredo Rolando Prieto for the 1988 slaying of a young couple, who at the time of his conviction was already on death row in California for the rape and murder of a 15-year-old girl.

Prop 47 Could Purge DNA Database:  The fate of an estimated half-million DNA samples collected from felony arrestees in California is in question following the latest court battle over Proposition 47, the 2014 voter-approved measure which reduces  certain felonies to misdemeanors.  Kristina Davis of the San Diego Union-Tribune reports that the latest court ruling involved a San Diego teenager who applied to have his felony commercial burglary charge reclassified to a misdemeanor. That request was granted by the state's 4th District Court of Appeal, which also held that "voters intended Proposition 47's retroactive relief to result in the purging of existing DNA samples."  Approximately 2.5 million DNA samples are stored in California's Data Bank, and from April to June of this year, hits from the database aided 48,000 investigations.  Escondido Police Chief Craig Carter believes that "the removal of such a large portion of the DNA database would be detrimental to law enforcement."

AB 109 Rules Set Violent Parolee Free:  Last July, a parolee and known gang member from Indio, California, shot his girlfriend in the leg at an apartment complex and was arrested on suspicion of assault with a deadly weapon and being a felon in possession of a firearm.  Two weeks later, he was granted bail and released, returning to his girlfriend's apartment complex to shoot her again, this time paralyzing her.  Brooke Beare of KESQ reports that following 25-year-old Lawrence Moreno's arrest for the first shooting in July, a parole hold -- a no-bail status to ensure arrestees remain behind bars -- was placed on him, but it was then lifted allowing a judge to release Moreno on bail so that he could attempt to murder his girlfriend a second time.  Moreno was tracked to his home two days after the second shooting, and charged with two counts of attempted murder and one count each of burglary, witness intimidation and being a felon in possession of a firearm, in addition to nine sentence-enhancing allegations.

Note:  Prior to AB 109, a law enacted by Gov. Brown in 2011, a violent gangbanging felon such as Moreno would have been held without bail for shooting his girlfriend.  By simply being a felon in possession of a firearm, a violation of his parole conditions, his parole could have been revoked by the state, sending him back to prison for one year.  However, post-AB 109, parole violators are the responsibility of the county rather than the state, enabling judges to grant bail to violent parolees in spite of the consequences to public safety.

The Pro-Criminal Slant, Unabated

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I wrote recently about the extremist views of the legal academy  --  views that, as a whole, are more liberal than any other segment of the legal profession, including public defenders and civil rights lawyers.

One might think that, if liberalism in the original sense still survived, there would be some attempt to correct this imbalance.  But one would need to think again.  My Georgetown colleague, Prof. Nick Rosenkranz (one of a handful of conservatives on the faculty), notes on the Volokh Conspiracy:

John McGinnis has an excellent post over at Library of Law and Liberty (and cross-posted at our new Heterodox Academy), highlighting the rigid liberal orthodoxy of the Association of American Law Schools (AALS). AALS has just sent around the notice of its 2016 annual meeting, highlighting its "Speakers of Note." As Prof. McGinnis points out: "Of the thirteen announced, none is associated predominantly with Republican party, but eleven are associated with the Democratic Party. Many are prominent liberals. None is a conservative or libertarian." McGinnis argues that the conference would profit from including some other perspectives.

As Nick shows, liberals talk a good game about diversity of views.  They just never actually seem to do anything about it.

What Evidence-Based Reform Would Look Like

We are frequently lectured that the country should adopt "evidence-based" sentencing.  That opaque language is simply code for "reduced prison terms" (or, for many crimes, none at all, see, e.g., Prop 47).

Still, no sensible person can deny that sentencing should, in fact, be based on evidence  --  that is, we need to look honestly at what's happening in the world and make our decisions in light of what we see.

If we do that, two facts stand out.  First, since the evidence shows that increased incarceration has helped bring about a huge decrease in crime (crime rates are 50% lower than they were when "mass incarceration" took off 25 years ago), we should build upon that success rather than cash it in.  You change what's failing, not what's working.

Second, the evidence about what criminals do after release must also inform our thinking, and it is far more depressing. As last week's BJS report recounts (admittedly down in its seventh paragraph), slightly more than three-quarters of prisoners recidivate within five years of release, almost 30% for a violent crime.

In other words, our efforts to rehabilitate have been as much of a failure as our efforts to incapacitate have been a success.  (Not that this is new).

What to do?

My answer, with apologies for "going soft" in my old age, is that we have to treat inmates much better than we do now.

Where the Justice System Can Save Money

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Justice is expensive.  This is a fact we need to understand.  But to understand it is not to say that taxpayers should put up with every expense some sorehead litigant can think of to create.

And it's not death penalty litigation I'm talking about here.  It's the story of a Municipal judge in Cleveland who was suspended by the state Supreme Court for being an abusive, arrogant prig.  She's in a trial, of sorts, seeking to undo the suspension. Thus far, Cleveland taxpayers have paid out nearly a million dollars with no end in sight, and no prospect visible in the story that the suspension should or will be overturned.

This is not a criminal case, mind you.  Indeed, it's not a "case" at all in the conventional sense.  But it is Exhibit A for the proposition that procedure has run amok.  No sane system would put up with this.

Perhaps one reason Cleveland is putting up with it is that the Judge in question is the daughter of a once-powerful Cleveland politician. But even that falls short.

The story is here.  I wonder if we'll be hearing from anyone on the Ohio death penalty study commission who takes the view that the expenses of capital sentencing  -- which has at least the virtue of being morally significant  --  might be better handled if we put an end to nonsensical waste like this.  

News Scan

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Police Program Targets Likely Criminals:  Police departments across the country are engaged in a proactive policing experiment, relying on complex computer algorithms to pinpoint the people most likely to be involved in future violent crimes.    John Eligon and Timothy Williams of the NY Times report that the novel strategy, called predictive policing, is reminiscent of traditional policing, paying close attention to crime "hot spots" and recent parolees, but also using additional data such as social media activity, drug use and information about friendships to hone in on "hot people."  Kansas City, Missouri's program, known as the Kansas City No Violence Alliance (KC NoVA), sends the message to criminals that "the next time they, or anyone in their crews, commit a violent act, the police will come after everyone in the group for whatever offense they can make stick, no matter how petty."  In the year since the program has been in full effect, Kansas City has seen a significant decrease in homicides.

Police Look For Shared Gun Stashes:  Boston police are combating a disturbing trend involving guns stashed in common areas of the city and shared by gang members.  Kathy Curran of WCVB reports that police officers are recovering firearms, including semi-automatic weapons and revolvers, over wheel wells, on top and inside of dumpsters and hidden in other peculiar places such as abandoned furniture.  Shootings in Boston have risen 14 percent so far this year, and police believe that the city's 45 gangs are the primary exploiters of stash guns, since a shared gun works in their advantage by posing challenges to law enforcement and prosecutors.   So far this year, Boston police have recovered 500 guns from the streets, and a firearms analysis unit identified 22 used in multiple crimes.

12 Indicted in GA Prison Cell Phone Bust:  Twelve people, including inmates, parolees, civilians and two prison workers in the Georgia Department of Corrections, have been indicted on suspicion of having roles in crime rings that were carried out with cellphones smuggled into prisons.  The phones allow inmates to order killings, sell drugs hundreds of miles away and attempt to steal identities.  Valerie Hoff of WXIA reports that a federal grand jury returned charges Thursday, and the indictments reflect the major challenges prison officials face in an era rampant with Internet-enabled devices.  Since July 1, the GDOC has confiscated more than 1,000 illicit cellphones, and 7,000 last year.

News Scan

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Bill Allows Post-Trial Evidence in Capital Cases:  A legislative committee approved a revision to an Ohio capital punishment bill, determining that condemned killers may gather post-trial evidence in their death penalty cases as long as the information doesn't embarrass, annoy or unduly burden the witness involved.  WLWT reports that the bill, sponsored by Sen. Bill Seitz, revised current death penalty laws, which left it up to judges to decide whether condemned criminals can gather post-trial evidence at all.  Death penalty opponents argue that limits should not be imposed when it concerns the life of an individual, but supporters are assured that judges will "balance the interests of justice."  Another part of the legislation states that defense attorneys will not have a page limit on petitions for post-trial challenges or in their appeals if the challenges are denied.  prosecutors contend this will clog up the system with paperwork.  The bill was prompted by recommendations from an Ohio Supreme Court task force that studied the state's capital punishment law.

ICE Allowed Back in L.A. County Jails with Limits:  Los Angeles County Sheriff Jim McDonnell has initiated a new policy to allow federal agents to operate inside jails in order to target serious or violent criminals prior to their released.  Kate Linthicum of the LA Times reports that the new policy grants permission to U.S. Immigration and Customs Enforcement (ICE) access to all inmates being released from jail, but only allows them to interview those with serious convictions.  While Sheriff McDonnell states that the new protocol "appropriately balances public safety needs and the concerns of immigrant communities," immigrant advocates claim the policy is  "politically motivated and impacted by sensationalized tragedy," referring to the July 1 shooting death of Kathryn Steinle by an illegal immigrant in San Francisco.  Advocates for stricter immigration enforcement say that this is a step in the right direction.

Phoenix Freeway Shooter Charged:  A man suspected in some of the Phoenix-area freeway shootings was formally charged Wednesday.  The AP reports that 21-year-old Leslie Allen Merritt Jr., who was connected to four of the 11 shootings through ballistics tests, faces 16 counts, including aggravated assault, unlawful discharge of a weapon, disorderly conduct, endangerment and carrying out a drive-by shooting.  The shootings resulted in only one injury in August, when a bullet pierced a vehicle's windshield and the broken glass cut a 13-year-old passenger.  The investigation remains open due to the possibility of copycats.

Couple Dead After Standoff:  Two paranormal investigators featured on a reality TV show were found dead in their apartment following an hours-long standoff with police.  Henry Austin of NBC News reports that Mark and Debby Constantino, stars of Travel Channel's 'Ghost Adventures,' engaged police in a three-hour standoff at Mark's Sparks, NV apartment.  The drama unfolded after police tracked Debby's cell phone to the residence while investigating the Tuesday shooting death of her roommate in Reno, whom they believe is connected to the Constantinos.  When SWAT officers forced their way into the apartment, both Mark and Debby were found deceased.  Mark had recently been charged with kidnapping and domestic related charges against Debby. 

Simian Selfie Update

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Totally off-topic.

Another Bogus Atkins Claim

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Serial killer Alfredo Prieto is sentenced to death in two states, one of which actually carries out its sentences.  The anti-DP public relations machine is raising a stink with a claim that Prieto is intellectually disabled (formerly known as mentally retarded).  The U.S. Court of Appeals for the Fourth Circuit considered that claim in June.  After summarizing Prieto's evidence, the court said:

At the same time, however, the Commonwealth also presented extensive evidence that Prieto's adaptive functioning was not deficient. The jury heard from the prosecution that three prison psychologists had evaluated Prieto when he was incarcerated in California and that each had concluded that he was not intellectually disabled. One of these psychologists reported that Prieto's "cognitive functions were adequately developed, and that his level of conceptual thinking and reasoning were adequate for the formation of good judgement [sic]." The jury learned that Prieto had written his own prison grievances challenging his lack of access to recreation and had filed a pro se legal challenge to the conditions of his confinement on Virginia's death row. In these documents, Prieto employed accurate legal terminology and to prepare them, he conducted self-directed legal research. The jury received copies of Prieto's elementary and high school report cards indicating that he mostly received grades of "good" and "very good." The jury was reminded that Prieto acted alone in his crimes, and that he had exhibited leadership abilities when committing prior crimes.

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FL Deputy Shot to Death:  A Florida sheriff's deputy, who had come out of retirement to earn extra money for Disney World trips with his granddaughter, was shot and killed Tuesday while serving a domestic violence restraining order.  Fox News reports that 64-year-old Bill Myers, a 25-year veteran who initially retired in 2013, was shot multiple times in the head and back by 33-year-old Joel Dixon Smith at an attorney's office, where Smith was supposed to turn over his weapons to the officer.  Dixon fled the scene to a hotel where he barricaded himself inside a room, and was fatally shot by police when he burst through the door firing his weapon.  No one else was hurt.  Myers is the fourth deputy killed in Oklaloosa County since 2008.

Sex Offenders Have 1st Amendment Right to Photograph Children:  The Wisconsin Court of Appeals ruled Tuesday that a state law prohibiting registered sex offenders from photographing children in public violates their right to free speech.  Bruce Vielmetti of the Milwaukee Journal Sentinel reports that the decision reversed the conviction of 44-year-old Christopher J. Oatman, a convicted sex offender who received a 12-year prison sentence in 2011 when his probation agent discovered non-pornographic photographs of children taken on his cell phone, none of which involved nudity or obscenity.  The court's holding states that even sex offenders have free speech rights to take non-pornographic photographs of children in public places and "any law that restricts free speech on its content must be narrowly drawn to protect a compelling interest."  The Court held that while protecting children is certainly such an interest, the law failed to accomplish that and, furthermore, children are not harmed by non-pornographic, non-obscene images taken in public places.

Suspects in Border Agent's Murder Face Trial:  Trial begins Wednesday for two men charged in the death of a U.S. Border Patrol agent.  The AP reports that Jesus Leonel Sanchez-Meza and Ivan Soto-Barraza will be the first to face trial in the 2010 murder of Brian Terry that exposed Fast and Furious, a botched sting operation in which federal agents allowed criminals to buy guns with the intention of tracking them.  The operation soured when Alcohol, Tobacco, Firearms and Explosives agents lost track of 1,400 of the 2,000 guns in the sting, two of which were found at the scene of Terry's murder.  In December 2010, Sanchez-Meza and Soto-Barranza were with a group of men planning on robbing marijuana smugglers in the Arizona desert when they crossed paths with border agents and a gunfight ensued, resulting in Terry's death.  Two men in the group, Manuel Osorio-Arellanes and Rosario Rafael Burboa-Alvarez, have made plea deals and will face 30-year sentences, and two other suspects remain fugitives.  Sanchez-Meza and Soto-Barraza face multiple charges including first- and second-degree murder, assault on a federal officer and conspiracy to commit robbery.

Which Prisons to Visit?

Pope Francis has arrived in the United States, having said that he will meet with, not just the powerful, but the "marginalized," including prison inmates.

One might ask a couple of questions here.  One would be how US inmates got where they are.  And the answer would be by committing crime, usually violent crime. Another might be whether the Pope plans on meeting with the inmates' victims, and the answer is "no" (at least "no" so far as has been announced). Victims, I guess, can do without Papal grace.

But the question I want to ask is aptly discussed in today's Washington Post editorial. It asks why the Pope bypassed prisoners in Cuba  --  and instead had a cordial, smiling meeting with the tyrants who put them there in order to muzzle dissent, rather than because they committed any crime, as that word is understood in the United States and the rest of the Free World.

Thus, the Post notes: explain Pope Francis's behavior in Cuba? The pope is spending four days in a country whose Communist dictatorship has remained unrelenting in its repression of free speech, political dissent and other human rights despite a warming of relations with the Vatican and the United States. Yet by the end of his third day, the pope had said or done absolutely nothing that might discomfit his official hosts.

Pope Francis met with 89-year-old Fidel Castro, who holds no office in Cuba, but not with any members of the dissident community -- in or outside of prison. According to the Web site, two opposition activists were invited to greet the pope at Havana's cathedral Sunday but were arrested on the way. Dozens of other dissidents were detained when they attempted to attend an open air Mass.

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Death Penalty Upheld in 1986 Murder:  The Nevada Supreme Court upheld the death penalty Tuesday for a man convicted of abducting, sexually assaulting and strangling a Las Vegas woman.  Cy Ryan of the Las Vegas Sun reports that 60-year-old Richard Haberstroh argued the excessiveness of the death penalty, citing a family history of alcoholism, abuse and mental problems.  However, the court determined that the circumstances of the crime and his lengthy criminal history were sufficient to allow his death sentence to stand, and it was unanimously upheld.  In 1986, Haberstroh kidnapped 20-year-old Donna Kitowski from the parking lot of a Las Vegas grocery store and took her to the desert where she was robbed, sexually assaulted and strangled.  The attack left her with severe brain damage that led to her death.

Professor Sues Campus over Gun Ban:  An associate law professor at the University of Missouri has filed a lawsuit arguing that the university's ban on concealed weapons on campus violates his constitutional rights.  The AP reports that Royce de R. Barondes, who is licensed to carry a concealed firearm, filed the suit against the Board of Curators and President Tim Wolfe, contesting that the ban also violates a state law permitting the storage of guns in the passenger compartment of a vehicle by an adult with a permit and infringes on his right to keep and carry weapons for self-defense.  Last year, Missouri voters approved an amendment stating that Missouri residents "have an unalienable right to bear arms and any gun regulations must be subject to 'strict scrutiny.'"  The lawsuit is pending.

Previously Deported Sexual Predators Arrested at Border:  U.S. Border Patrol agents have made frequent arrests in recent weeks of previously deported sexual predators with criminal convictions attempting to cross the border.  Ildefonso Ortiz of Breitbart reports that two criminal aliens were arrested last month and another two last week.  Some were recently deported, including one man convicted of attempted sexual assault of a child and sentenced to just 30 days in prison before being deported in April.  U.S. officials are concerned of the impact that the new Priority Enforcement Program might have on public safety, as it has allowed many convicted criminal aliens to be released from custody and remain in the U.S.

U.S. Deports Wanted Illegal Alien:  A previously deported illegal immigrant, wanted for raping and killing a 14-year-old girl and murdering her father in Guatemala last June, has been turned over to Guatemalan authorities by the U.S. Customs and Border Patrol.  Katie McHugh of Breitbart reports that after 27-year-old Juan Figueroa-Martinez murdered the girl and her father, he fled to the U.S. where he roamed before being apprehended in August.  He was previously deported in March 2013 following an arrest in New Jersey.  It is not certain why Figueroa-Martinez chose to flee to the U.S. rather than a neighboring country, such as Mexico, though he may have been trying to avoid Mexico's tough immigration laws.

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Baby Doe Identified, Mother and Boyfriend Charged:  The mother of 'Baby Doe,' the young girl found dead inside a duffle bag dumped in Boston Harbor last June, was arrested last week along with her boyfriend in connection with the toddler's death.  Jan Ransom, John R. Ellement and Andy Rosen of the Boston Globe report that during an arraignment Monday, 40-year-old Rachelle Bond told the court that her 2 ½ -year-old daughter, Bella Bond, was killed one night in May after her boyfriend, 35-year-old Michael McCarthy, went to the girl's room to calm her down when she was refusing to go to bed.  After Bella died McCarthy said to Bond that "She was a demon anyway.  It was her time to die," and the two proceeded to put her body in the refrigerator and spend the next several days strung out on heroin.  Another man who lived in the home shortly before the murder told investigators that the couple was overly harsh to the toddler, yelling at and demeaning her often and locking her in a closet on at least two occasions.  McCarthy has been charged with murder and is being held without bail, and Bond faces a charge of accessory after the fact.

Three People Injured in AL Church Shooting:  A man faces three attempted murder counts following the shooting of his girlfriend, their infant and a clergyman at an Alabama church on Sunday.  The AP reports that 26-year-old James Junior Minter opened fire during a church service at the Oasis Tabernacle Church in East Selma, allegedly set off by a domestic dispute regarding child visitation.  Minter's girlfriend was shot in the jaw and shoulder, their one-month-old baby was struck in the hand and the clergyman was shot in the leg when he attempted to seize the weapon from the gunman.  All victims are in stable condition.  Minter may face additional charges.

New Spike in Illegal Immigrants:  U.S. officials say that there is a possibility of a new refugee influx amid a "notable increase" in the number of unaccompanied minors and families crossing the U.S.-Mexico border.  Evan Perez of CNN reports that although the spike in recent weeks is significantly smaller than what occurred in 2014, when as many as 10,000 children and 16,000 adults with children flooded across the border at crisis-levels, the unusual increase at a time of year when attempted border crossings tend to drop due to the heat has prompted the White House and Homeland Security to prepare for a new surge.  Some officials believe that the widely reported refugee crisis in Europe and the U.S.'s announcement of plans to accept refugees has encourage new surge in immigrants.  

Speaking of Reflecting Truth...

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My last entry built on an SL&P posting about fictionalized plea bargains that whitewash the defendant's behavior.That same blog now features an article titled, "Mass Incarceration Has Become the New Welfare." The thesis of the article, taking off from the work of black radical Ta-Nehisi Coates, is that America  --  ever the cruel, racist nest  --  has solved its welfare state problems by the morally indefensible expedient of building the "carcereal state" instead.

I shall refrain from addressing the premise of this view of things, or its implicit concession (or proclamation, I'm not sure which) that we would not, as the Left usually claims, save taxpayer money by de-incarceration. (Instead, we would simply move the expenditures to what the article views as a more benign expansion of welfare).  Instead, I want to highlight this paragraph (emphasis added):

But, in characteristic fashion, [Coates] goes beyond this, asking readers to think in new ways about disturbing phenomena that they may take for granted.  Bringing together Moynihan's concerns about black family structure with the cold fact of mass incarceration produces a striking conclusion: Mass incarceration actually causes crime.

Nowhere does the author cite facts to support this assertion, and it's not hard to see why.  Since 1991, as incarceration has skyrocketed (a fact no one disputes), crime has dropped by half.  On its face, the claim that "mass incarceration causes crime" is not merely wrong but preposterous  --  so much so that the idea that such a claim is made as part of a good-faith debate becomes impossible to believe.

When you want to have a good-faith debate, you at least try to tell the truth; you don't belligerently assert its inversion. 

Should Legal Outcomes Reflect the Truth?

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The title of this post asks a question to which the answer should be unanimous.  Of course legal outcomes should reflect the truth.  What's the alternative?  Fiction? Lying?

As this entry on SL&P shows, however, legal outcomes very often reflect a fable agreed to by the lawyers, rather than the truth.  In criminal cases, the great majority of outcomes  --  over 90%  --  are ordained in plea agreements.  As the article shows, however, in at least one category of cases (and in truth many others), plea agreements typically deep-six the truth in favor of some sanitized account  --  an account that, in the words of one frustrated judge, bears "no factual resemblance to what occurred."  The article notes:

Judge Michael P. Donnelly had seen enough by the time his spreadsheet of plea deals in sexual-assault cases reached nearly 200. In each case, the defendant pleaded guilty to a lesser crime that bore no factual resemblance to what occurred, allowing many to avoid sex-offender registration requirements.

Many rape cases involved pleas to aggravated assault, a crime involving serious bodily harm in which the defendant was provoked by the victim -- a scenario common in a drunken bar fight but wildly inconsistent with rape. "It's sidestepping the truth. It's legal fiction, nothing more than a lie," said Donnelly, a Cuyahoga County Common Pleas Court judge. "No one can defend this process. There is no ethical defense."

I regret to report that fictionalized and sanitized accounts of the defendant's behavior are hardly limited to sex cases.  They are epidemic.  Indeed they have a name: "swallowing the gun."  At the urging of defense counsel, prosecutors routinely agree to a dumbed-down  --  and, let's face it  --  largely whited-out account of the defendant's behavior in order to move the case and get to the next in a very long line.

Something needs to get done to change this. 

After the Republican Debate Wednesday night, numerous media outlets published "fact-check" stories regarding claims made during the debates.  So far I have not found a single "mainstream media" fact-check story that has questioned Carly Fiorina's whopper, "Two-thirds of the people in our prisons are there for non-violent offenses, mostly drug related."

As this pie chart illustrates (click on the graph for a larger view), that is not remotely close to the truth.  Why the silence?

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Friend of Charleston Shooter Charged:  A friend of Charleston shooter Dylann Roof, the man accused of gunning down nine black churchgoers during a Bible study, has been indicted on charges of concealing information related to the shooting and making false statements to the FBI.  Evan Perez and Catherine E. Shoichet of CNN report that 21-year-old Joey Meek, in the days after the shooting, told the press about Roof's drunken proclamations to start a race war and "do something crazy," and went as far as to hide Roof's gun from him, returning it the next day.  Meek allegedly informed prosecutors that he had no knowledge of any specifics Roof had planned before he shot and killed nine parishioners at the Emanuel African Methodist Episcopal church on June 17, but prosecutors believe this assertion is "false, fictitious and fraudulent." Meek insists that no one ever took Roof seriously, so he never thought much of the statements he made while he was drunk.

Judges Demand that Plea Deals Reflect Crime Committed:  An Ohio judge is leading change in the criminal justice system regarding plea bargaining in sexual assault cases, in which,defendants often plead guilty to lesser crimes bearing no factual resemblance to what occurred and avoid sex-offender registration requirements.  Randy Ludlow of the Columbus Dispatch reports that Judge Michael Donnelly, who has handled plea deals in nearly 200 sexual assault cases, says it is common for rape cases to plead down to aggravated assault, a crime "wildly inconsistent with rape," constitutes "legal fiction," and leaves victims "feeling like the justice system let them down."  Most other justice officials are in agreement with this notion, with the exception of criminal defense lawyers, who are concerned that their options to represent their clients will be limited and that the number of cases going to trial could increase if the issue is reformed.  Unless legislators object, the Ohio Supreme Court could amend court rules to require changes in felony plea deals to be factually based and reflect the crime that actually occurred.

Obama's Silence of Cop Murders Blasted:  The president of the National Sheriff's Association (NSA) called out President Obama and his administration's silence regarding multiple police officer assassinations over recent weeks and the escalating violence against the police.  Ildefonso Ortiz of Breitbart reports that NSA president and Laramie County, Wyoming sheriff Danny Glick says, "This is law enforcement, this is our community's people that are being killed because of these acts and we can't get a condemnation from the President of the United States - it is sad."  Glick emphasizes that the anti-law enforcement sentiment is supported by a vocal minority, while the majority of the nation is still behind the law enforcement community.  "This is a time to be vocal," he says, adding that we must stand in unison and "send a message to Washington DC."

The sentencing "reform" legislation apparently about to be introduced in the Senate would represent a step back from the system of determinate sentencing that has served our country so well for a generation. Contrary to the current liberal and libertarian anthem, our criminal justice system is hardly in "crisis."  The exact opposite is closer to the truth: Over the last 25 years, crime has fallen farther faster than at any time in the country's history. For reasons I have explained many times, see, e.g., here, we should build on, rather than pare back, this success.

Sentencing reform should be rejected strictly on the merits.  But it should also be rejected, if a point be made of it, because it will be political poison, certainly for Republicans, who hold the majority in Congress.

In order to see why, one need only ask three questions.

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Feds Investigating Friend of Charleston Shooter:  A friend of the man accused of gunning down nine black parishioners in a Charleston church is under investigation for allegedly lying to police and having knowledge of the crime before or after it was committed and failing to report it.  The AP reports that 21-year-old Joey Meek shared information regarding 21-year-old Dylann Roof to authorities and the press, and said that he contacted authorities when he recognized Roof in surveillance footage from the church.  Authorities believe that Meek was being dishonest with them during the investigation.  Federal authorities opted to inform Meek, who is currently on probation for possession of a stolen vehicle, that he was under investigation "in the hopes that the subject will get an attorney."  

Police Chief Forced to Retire over Facebook Post:  The police chief of a small costal town in North Carolina says he was forced to retire following a Facebook post decrying the Black Lives Matter movement.  CBS reports that in former Surf City Police Chief Mike Halstead's post, he labeled the Black Lives Matter movement as a "terrorist group" and criticized President Obama for dividing the U.S. racially.  Though the information was meant to be read by his friends, colleagues and peers, "it was a public statement and there are people that were offended."  Halstead apologized and deleted the open letter, which was originally posted on Sept. 3, but says he was forced to retire or face termination.  "I was thrown under the bus for expressing my 1st amendment rights and speaking the truth and concerns for law enforcement," he said in a later post.

NY Gov's Aide Shot Before Parade Dies:  An aide to New York Gov. Andrew Cuomo, who was in a coma after being shot hours before New York City's West Indian Day parade, died on Wednesday.  Fox News reports that 43-year-old Carey Gabay, a Harvard University-educated lawyer, was walking with his brother in the early morning hours of Sept. 7 near the Brooklyn parade route when he was caught in the crossfire between two rival gangs and shot in the head.  No arrests have been made in connection with the shooting, but police are actively investigating two well-known gangs in the area.  Gabay's shooting was just "one of several outburst of violence in the neighborhoods surrounding the parade."

Carly Fiorina and Sentencing Reform

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Carly Fiorina is a rising star in the Republican Party and there is much to like about her, in my view.  But she made a big blunder last night when she said that two-thirds of America's prisoners are incarcerated for non-violent offenses, most of them involving drugs.  As Slate Magazine commendably shows, the truth is vastly different:

The reason Fiorina's misstatement matters is that it makes it seem like ending mass incarceration will be a lot easier than it actually will be. She is far from alone in perpetuating this idea--President Obama has done it too, along with just about every other mainstream politician who has expressed support for criminal justice reform in recent years. But the truth is that if we want to significantly reduce the prison population, politicians have to be willing to make the criminal justice system less harsh toward violent offenders in addition to nonviolent ones, or at least rethink how we define the two categories.

Any meaningful sentencing "reform" in the United States is going to entail the release of thousands of violent offenders. There is simply no use (except political use) in denying this fact. Given the sky-high recidivism rate of such offenders (slightly over 70%), we need to ask ourselves whether this is a road we want to start down, no matter how benignly the first step is portrayed.  

UPDATE:  I now see that Kent and Steve have covered much the same ground, so I have deleted some repetitive material that was in my original post.

Prisoners: What are they in for?

As noted in Steve's post earlier today, at the Republican Presidential Debate last night, Carly Fiorina said, "We have the highest incarceration rates in the world.  Two-thirds of the people in our prisons are there for non-violent offenses, mostly drug related." Whether this is a whopping falsehood or a misleading half-truth depends on what she meant by "our."

Most People in Prison are Violent Offenders

Kudos to Leon Neyfakh of Slate for calling out GOP contender Carly Fiorina on her claim that most inmates in the United States are locked up for non-violent drug offenses.  This frequent quip made by so many so often it has become legend suffers from just one problem - it's dead wrong:

Though Fiorina was correct that the United States has the highest incarceration rate in the world--no other country comes close--the rest of her statement was false. In fact, when you look at the roughly 1.5 million people currently doing time in state and federal prisons, only about 300,000 of them are there primarily because of drug offenses, according to the most recent data from the Bureau of Justice Statistics. About half the state prison population--which, at 1.3 million people, represents the lion's share of the country's prisoners--is made up of individuals who are classified as violent offenders. (According to research by Fordham Law School professor John Pfaff, the percentage of drug offenders in state prisons peaked in 1990 at 22 percent and has been in decline since--meaning that, even when the percentage of drug offenders in state prisons was at its peak, roughly 4 out of 5 inmates were there due to a non-drug offense.)

Neyfarkh is fond of the idea that the best way to reduce the number of violent offenders is to just redefine what crimes we call violent.  He gives the example of felony murder:

Perhaps the best illustration of how a not-necessarily-violent person can be found guilty of a violent crime involves "felony murder." In many states, you can be convicted of felony murder for having been present when someone you are affiliated with committed a homicide, even if you never touched a weapon, let alone actually killed someone.
Notice how Neyfakh doesn't bother to mention what the underlying felony crime might be in these sorts of cases?   We shouldn't pretend our way out of the reality that most people in prison are there for dangerous behavior.  It's a tragic state of affairs but true. 

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Glossip Granted Stay:  An Oklahoma appeals court has granted an emergency two-week stay of execution for a death row inmate to allow judges time to consider his last-minute appeal that new evidence supports his claim that he was framed.  CBS News reports that 52-year-old Richard Eugene Glossip received a death sentence for ordering the 1997 fatal beating of Barry Van Treese, the owner of the motel where Glossip worked.  His first sentence in 1998 was overturned due to ineffective legal counsel, and he was retried and sentenced again in 2004.  His current appeal claims that a fellow inmate of Justin Sneed, the prosecution's key witness in Glossip's trial who received a life sentence in exchange for his testimony, said in an affidavit that he heard Sneed say that Glossip didn't do anything.  Earlier this year Glossip and two other murderers lost a U.S. Supreme Court case claiming that the state's three-drug execution protocol violated the Eighth Amendment.  Glossip's execution has been stayed until Sept. 30.

Charleston Shooter Wants to Deal:  The man accused of shooting nine parishioners at a church in South Carolina is willing to plead guilty to murder charges in order to avoid the death penalty, his attorney said Wednesday.  Harriet McLeod of Reuters reports that a guilty plea would also avoid a trial in the case against Dylann Roof, the 21-year-old white man who gunned down nine black churchgoers during a Bible study at Charleston's historic Emanuel African Methodist Episcopal church.  The case's latest hearing addresses whether a judge will release 911 calls and police reports about the June 17 massacre, all of which were sealed by a judge in July.  In addition to state murder charges, Roof faces 33 federal hate crime and weapons charges that could also result in a death sentence.

Border Sheriffs Fed Up With Feds:  Sheriffs from western states and along the border gathered for a conference in Sierra Vista, AZ, to discuss and collaborate on a "unified front" of the many issues affecting the U.S.-Mexico border's law enforcement community.  Ildefonso Ortiz of Breitbart reports that Danny Glick, President of the National Sheriffs' Association, was openly critical of the federal government's apathy and avoidance in facing the problem, stating "we are under assault and this administration refuses to do something about it."  Drug cartels were also a topic of concern at the conference.  Arizona State Senator Gail Griffin told how she woke up one morning in her house along the border to spot a cartel gunman armed with an AK-47 leading a pack of drug smugglers through her property.  The sheriffs are asking Washington to "pay attention, enforce the law and stop putting things on our back."

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37 Frat Members Charged in Student's Death:  Charges have been recommended by a grand jury for 37 fraternity members in the death of a New York City college freshman, who died in northeastern Pennsylvania during a brutal hazing ritual.  The AP reports that in Dec. 2013, 19-year-old Chun "Michael" Deng was blind-folded, weighted down with a backpack filled with 30 pounds of sand and forced to run a gauntlet as part of a fraternity "pledge" ritual.  Deng was knocked unconscious and fraternity members waited at least one hour before taking him to the hospital, where he died a day later from a severe brain injury.  An autopsy showed that Deng had suffered repeated trauma to the head, torso and thighs.  Third-degree murder charges were brought against the Pi Delta Psi fraternity and five Baruch College students, while the 32 other members face charges ranging from aggravated assault to hazing.

Flood of Illegals Fueling Heroin Epidemic:  A heroin epidemic is sweeping the country causing widespread suffering, crime and death, and it is largely fueled by the flood of illegal immigrants crossing into the U.S. through the southern border, where  most heroin is smuggled into the country.  Ethan Barton of the Daily Caller reports that according to president of the Laredo, Texas, chapter of the National Border Patrol Council, Hector Garza, "every single illegal alien that comes into the country goes through the hands of a drug cartel," regardless of whether or not they want help, and are often given a backpack filled with heroin before they cross into the U.S.  Given the well-documented link between drug trafficking and human smuggling/trafficking, border officials agree that increased manpower and up-to-date technology is needed to secure the border, which would then stifle the flood of drugs and illegal immigrants.

13 AB 109 Offenders Arrested in Compliance Sweep:  Last week, Riverside County Sheriff's Department and Murrieta Police Department, as part of a joint operation, arrested 13 people free under California's AB 109 in southwest Riverside County.  Alex Groves of the Press Enterprise reports that the operation took place on Wednesday, Sept. 9, and focused on locating recently released gang members, sex offenders and others who had violated the terms of their supervised releases.  Of the 13 suspects, most were arrested for drug- and gun-related counts, one was in possession of a stolen vehicle and several didn't provide accurate addresses as required.  AB 109, also known as realignment, was signed by Gov. Jerry Brown in 2011 in an effort to ease prison overcrowding by diverting offenders from state prison to county jails. 

Delta State Shooter Kills Self:  The man suspected of shooting and killing a Mississippi college professor and another woman on Monday morning, turned the gun on himself late Monday night when police closed in on him.  Ed Payne, Catherine E. Shoichet and Amy Fantz of CNN report that the suspect, Shannon Lamb, taught at Delta State University in Cleveland, MS, with slain history professor Ethan Schmidt.  He lived with Amy Prentiss, the woman found shot to death in her home 300 miles away from the university; however, "beyond that connection, authorities have not disclosed a motive."  Lamb had recently requested a reduced load of classes citing medical reasons, though he never explained the reasons to administrators.

Most people are familiar with the issue of false recovered memories that plagued the psychological profession back in the 1980s and 1990s.  The idea that a psychologist could elicit memories of abuse that the patient was not even aware existed led to some really awful miscarriages of justice thanks to that junk science.  Now comes a new study from Psychological Science:

Mindfulness Meditation Linked to False Memory Recall

The study suggests individuals who engage in mindfulness meditation may have less accurate memories than those who do not take part in the practice.

"This is especially interesting given that previous research has primarily focused on the beneficial aspects of mindfulness training and mindfulness-based interventions," notes first author Brent M. Wilson, of the Department of Psychology at the University of California-San Diego (UCSD).

Mindfulness meditation involves the act of eliminating distracting or negative thoughts, allowing intense awareness of one's senses and feelings.

The study (subscription required): "Increased False-Memory Susceptibility After Mindfulness Meditation."

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Illinois Lawmaker Pushes to Restore Death Penalty:  An Illinois lawmaker is planning to introduce a bill in the next  legislative session that would restore capital punishment in certain cases. The death penalty was abolished in the state in 2011.  Evie Allen of WSIL reports that Democratic state Senator Bill Haine, a former state's attorney for Madison County, will propose the bill to allow a death sentence in cases involving serial killings, the murder of a child, seniors, persons with disabilities, murders of witnesses, and murders of correctional and law enforcement officers.  Capital punishment was abolished in the state in 2011 by Gov. Pat Quinn, 12 years after Gov. George Ryan suspended executions and commuted the sentences of 167 death row inmates to life in prison.

Rookie Officer Killed in KY:  A Kentucky State Trooper was shot and killed Sunday evening by a suspect who was later fatally shot when he refused orders to drop his weapon.  Awr Hawkins of Breitbart reports that 31-year-old State Trooper Joseph Cameron Ponder was engaged in a high-speed chase when 25-year-old Joseph Thomas Johnson-Shanks sped off after being pulled over.  During the pursuit, Johnson-Shanks purposely slammed on his brakes, causing Ponder to crash his cruiser into his vehicle, and fired multiple shots at Ponder before taking off on foot, before being shot by another officer.  Ponder, a U.S. Navy veteran, had been a State Trooper only since January 2015.

Professor Fatally Shot on College Campus:  A history professor was fatally shot Monday morning in his office at Delta State University in northwestern Mississippi, and a manhunt for the killer is underway.  Fox News reports that the victim, Prof. Ethan Schmidt, was an assistant professor who had just published his second book and was a member of several organizations at the university.  The Cleveland, MS campus has been on lockdown since word of the incident spread, with students and faculty instructed to remain indoors and away from windows.  New information indicates that the suspect may be a faculty member who is also a person of interest in the killing of another woman, possibly in a love triangle.

Prison Worker Who Aided Escape Blames Depression:  The former New York prison worker who assisted in the elaborate June escape of two convicted murderers from a maximum-security prison near the Canadian border said that she was depressed at the time and her weakness was exploited by the two inmates.  The AP reports that 51-year-old Joyce Mitchell explained that she helped in the escape plan of Richard Matt and David Sweat because Matt had threatened harm to her family.  She claims, "I was going through depression and I guess they saw my weakness and that's how it all started."  Mitchell is accused of smuggling in tools that the two inmates used to break out of the Clinton Correctional Facility on June 6, prompting an intensive manhunt that ended three weeks later when Matt was fatally shot by police and Sweat was apprehended.  Mitchell pleaded guilty to smuggling the tools and faces up to seven years behind bars.

Crime and the Economy

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There has been much discussion lately of the direct costs of the criminal justice system.  Many people (too many, in my opinion) of conservative leanings have been sipping the soft-on-crime Kool-Aid because they are appalled by the high costs of locking up the very large number of criminals we have, and they have been too quick to accept the line that they aren't really that bad.

As long as we are talking dollars, we must not forget the economic costs of crime.  Crime causes people to spend time, effort, and money on unproductive self-defense measures that could be spent more productively.  Crime causes people to abandon or sell cheaply real estate that could be much more valuable.  Crime is a drag on the economy, like driving with one foot resting on the brake pedal while the other pushes the accelerator.

Stockton, California is a chronically depressed city.  Its government is just emerging from bankruptcy, and Forbes infamously branded it America's most miserable city a few years back.  Yet this weekend a developer actually got a group of people to come out from San Francisco, interested in possibly relocating to a building he is renovating downtown.  For those unfamiliar with intra-California regional attitudes, let me assure you that to get anyone in San Francisco interested in Stockton is huge.

A few hours later the developer was found dead in a downtown Stockton street, apparently murdered.  Joe Goldeen has this story in the Stockton Record.  What do the potential buyers think now?

America's Legal Order Begins to Fray

Heather MacDonald has this op-ed in the WSJ, subtitled "Amid the escalation of violent crime are signs of a breakdown of basic respect for law enforcement."

After two decades of the most remarkable crime drop in U.S. history, law enforcement has come to this: "I'm deliberately not getting involved in things I would have in the 1990s and 2000s," an emergency-services officer in New York City tells me. "I won't get out of my car for a reasonable-suspicion stop; I will if there's a violent felony committed in my presence."

A virulent antipolice campaign over the past year--initially fueled by a since-discredited narrative about a police shooting in Ferguson, Mo.--has made police officers reluctant to do their jobs. The Black Lives Matter movement proclaims that the police are a lethal threat to blacks and that the criminal-justice system is pervaded by racial bias. The media amplify that message on an almost daily basis. Officers now worry about becoming the latest racist cop of the week, losing their job or being indicted if a good-faith encounter with a suspect goes awry or is merely distorted by an incomplete cellphone video.

With police so discouraged, violent crime has surged in at least 35 American cities this year. The alarming murder increase prompted an emergency meeting of the Major Cities Chiefs Association last month. Homicides were up 76% in Milwaukee, 60% in St. Louis, and 56% in Baltimore through mid-August, compared with the same period in 2014; murder was up 47% in Minneapolis and 36% in Houston through mid-July.

Underincarceration Kills

We are often lectured that our country overincarcerates.  But there's depressing and vivid evidence that the problem is underincarceration.

Specifically, Washington Post columnist Colbert I. King, discussing "DC's summer of blood," notes this (emphasis added):

Police Chief Cathy L. Lanier's take on the current crime spree is that murder victims and suspects have in common previous run-ins with the law. Twenty-one of the homicide arrestees, she reported, were under supervision pending trial or on probation or parole at the time of the crime. Twenty-six of the murder victims were under court supervision. Ten individuals involved in homicides this year had previous homicide charges but were back on the streets. Six homicide victims had prior murder charges, she said. And almost half, or 45 percent, of the homicide arrestees had prior gun-related arrests.

So let's be clear about this.  Up to 31 human beings, most or all of them African American, are dead because their killers, who could have been in prison if we were more serious, were back on the street.

Do black lives matter?

As you might expect, the news doesn't get any better when we turn our attention to the city's juvenile justice system  --  a system whose intentional laxity certainly seems to promote violence.

Cutting Back the Excesses of the Lacey Act

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I noted here the wild overgrowth of the Lacey Act.  It started out as a conservation law, then sprawled beyond all comprehension.  It is Exhibit A in the effort to curb overcriminalization.  My former Georgetown Law student Jarrett Dieterle wrote an excellent case study about how an originally decently sensible statute can balloon beyond recognition.

I have often criticized Sen. Rand Paul, but he, together with Senate Majority Leader Mitch McConnell, deserve praise for their bill to pare back some of the Act's excessive criminal penalties.

News Scan

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SF Jails to Segregate Inmates by Gender Preference:  Los Angeles Times writer James Queally reports that by the end of this year, inmates in San Francisco jails will be housed based upon their preferred gender.   "It's not going to be based on genitalia alone," said San Francisco Sheriff Ross Mirkarimi. "We will have advisory committee, experts that help represent the transgender population," he added.  The announcement was hailed by head of the New York based Transgender Legal Defense & Education Fund as a possible "model for the nation."  Last month California became the first state in the nation to agree to pay for a transgender inmate's reassignment surgery.  

Missouri Child Rapist Executed:  After 26 years of appeals, Roderick Nunley was executed by lethal injection last week for the kidnap, rape and stabbing murder of 15-year-old Ann Harrison in 1989.  Kasey Babbitt and Monica Evans of Fox4kc report that on the morning of Mar. 22 of that year, the young girl was waiting in front of her home for the school bus when Nunley and an accomplice, who had been bingeing on crack cocaine, stuffed her in the trunk of a car they had just stolen.  As the girl begged for her life the duo took her to the basement of Nunley's mother's home, bound her with wire and raped her.  They then got knives from the kitchen and stabbed her 10 times in the torso before slitting her throat.  Her body was found 36 hours later in the trunk of the stolen car.    

TN High Court Upholds Death Sentence:  The Tennessee Supreme Court upheld the death sentence for rapist/murderer Rickey Bell, Jr. yesterday, as reported by the Tennessee State Court website.   A 2012 article from Fox19 reports on Bell's trial for the 2010 rape and murder of his employer's wife, 36-year-old mother of three Starr Harris, after an argument over his paycheck. The woman had been beaten to death.  DNA evidence helped link Bell to the rape and murder.  In upholding Bell's conviction and sentence, the Court concurred with a lower court finding that two of the four aggravating circumstances qualifying Bell for a death sentence were invalid, but noted that only one was required to uphold his sentence.   
Peggy Noonan has this column in the WSJ.  She is writing about the debate in Europe over how to deal with the refugee crisis, but what she says applies just as much to debates in this country over crime and punishment.

But here is a problem with Europe's decision-makers, and it connects to decision-makers in America.

Damning "the elites" is often a mindless, phony and manipulative game. Malice and delusion combine to produce the refrains: "Those fancy people in their Georgetown cocktail parties," "Those left-wing poseurs in their apartments in Brussels." This is social resentment parading as insight, envy posing as authenticity.

But in this crisis talk of "the elites" is pertinent. The gap between those who run governments and those who are governed has now grown huge and portends nothing good.

Rules on immigration and refugees are made by safe people. These are the people who help run countries, who have nice homes in nice neighborhoods and are protected by their status. Those who live with the effects of immigration and asylum law are those who are less safe, who see a less beautiful face in it because they are daily confronted with a less beautiful reality--normal human roughness, human tensions. Decision-makers fear things like harsh words from the writers of editorials; normal human beings fear things like street crime. Decision-makers have the luxury of seeing life in the abstract. Normal people feel the implications of their decisions in the particular.

Do Not Forget. Do Not Repeat.

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Fourteen years ago today, the worst crime in American history was committed.  For a time, we came together and realized that business as usual would not do.  Some people have very short memories, and many people have slipped back into the casual attitude toward national security that enabled Al Qaeda to perpetrate this crime.  Some contend that the Constitution requires us to dismantle the measures we put in place that successfully prevented a repeat of this crime.  It does not.

The great Justice Robert Jackson nailed it in 1949:  "The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."

Add to this the famous saying of George Santayana:  "Those who cannot remember the past are condemned to repeat it."

We must not forget.  We must not repeat.

"No Wonder You People Get Shot"

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No comment needed, or possible.

From the NBC affiliate in Boynton, Florida:

Police say a woman who was driving more than 30 mph over the speed limit pleaded with an officer to let her off with a warning.

When she was handed the ticket, she said: "No wonder you people get shot."

Police say 62-year-old Joy Feinberg, of Boynton Beach, was cited for speeding in a school zone Sept. 1. The Palm Beach Sheriff's Office released video of the traffic stop.

The $606 traffic citation says Feinberg was driving 51 mph in a 20 mph zone. She repeatedly asked for leniency, but the officer said he couldn't overlook speeding near a school.

I noticed this item on SL&P, from which I'm excerpting three paragraphs in the middle:

[C]onservatives have taken a harsh line on Black Lives Matter, a movement that includes calls for overhauling law enforcement and justice policies. Led by Fox News, conservatives have accused the protest movement, without basis, of inciting violence against police officers.  Trump accused Black Lives Matter this week of "looking for trouble" and suggested they were being "catered to" by Democrats.

The rhetoric has spread beyond Trump, which is of particular concern to criminal justice reform advocates. A few high-profile police deaths have prompted candidates like Sen. Ted Cruz (R-TX) and Wisconsin Gov. Scott Walker (R) to blame the Obama administration for, as Walker put it, "a tendency to use law enforcement as a scapegoat." New Jersey Gov. Chris Christie (R) has called for the return of stop and frisk, vowed to crack down on marijuana legalization, and blamed "liberal-leaning mayors and cities" and their "lax criminal justice policies" for the stabbing death of a former intern in Washington, D.C.

"There are two things that are troubling," said Inimai Chettiar, director of Justice at the Brennan Center. "One, that people are saying that there is a crime wave now and they're implying that crime is going to be going up as a permanent trajectory -- which is wrong -- and that second people are blaming criminal justice policies and particularly policing policies for this."...

Where to start?

WaPo Fact Checker Glenn Kessler reviews this statement by Hillary Clinton:  "It was fully above board. Everybody in the government with whom I emailed knew that I was using a personal email."

Kessler focuses on whether the statement is true and whether it amounts to evasion of record-keeping laws.  He does not discuss what I consider to be the far more serious problem.  (To be fair, that problem may not lie within his "fact-checking" mission.)

Is it a good thing that "everybody knew"?  If something is widely known within our government, then you can bet your bottom dollar it is known to the people who spy on our government. 

If Russian intelligence knows that the American Secretary of State's email is hosted on a "soft target" private server, is that a good thing?  Is it good if Chinese intelligence knows?  Is it good if Al-Qaeda knows?  No, no, and no.  Not just no, but hell no.  Even if the emails were not classified (and there is good reason to believe many of them were) people involved with secret information "talk around" it all the time.  Spies can add pieces to their jigsaw puzzle from unclassified correspondence.

This was gross recklessness, dereliction of duty, and probably criminal.  It should certainly be disqualifying for higher office.

News Scan

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De Blasio Abandons Proactive Policing:  Heather MacDonald has this article in the City Journal titled Complete Chaos and Out of Control, a critical response to the violence that unfolded at this year's West Indian American Day Parade in New York City.  The night before the parade is marked by all-night partying in the streets known as J'ouvert.  This year New York Police were ordered to take a hands-off approach.  The instructions as described by a sergeant:

"We are told 'Take glass bottles from people if they are drinking alcohol in public, and break the bottles so they can't be thrown at us later. But if they are drinking from plastic, let it go. If they are smoking weed in public, let it go.' J'ouvert [in particular] is where we are told not to do anything to cause a riot. There is very little enforcement going on, especially compared to the strict enforcement of public drinking at the St. Patrick's Day and Columbus Day parades."

As expected, multiple shootings, stabbings and assaults occurred over J'ouvert and during the parade. MacDonald notes that not enforcing the law for so called low level crimes invites more serious crime. This narrative is playing out in New York right now.

Executions to Resume in Arkansas:  Arkansas Governor Asa Hutchinson has set execution dates for eight murderers, ending a ten year moratorium caused by lawsuits claiming that the execution drugs used were unconstitutional.  Those lawsuits became moot after the U.S. Supreme Court's July 29 decision in Glossip v. Gross, which upheld the use of midazolam, an anesthetic murderers claimed was not effective.  The decision also requires plaintiffs bringing any future challenges to an execution protocol to present an available alternative protocol they deem complies with the Eighth Amendment.  The Associated Press reports that two Arkansas murderers are scheduled for execution each month from October to January.  
Stumbling across unconscious self-parody is one of the hazards of reading the news, and today it struck big time. The NACDL has come out with a "report" titled, "Federal Indigent Defense 2015: The Independence Imperative."  The press release (called a "news release") starts with this:

Washington, DC (Sept. 9, 2015) - After over 18 months of study, more than 130 individuals interviewed (including federal judges, federal defenders, Criminal Justice Act (CJA) panel attorneys, Administrative Office of the U.S. Courts (AO) personnel, and others, representing 49 states and all federal judicial circuits), hundreds of documents reviewed, and surveys conducted, the National Association of Criminal Defense Lawyers (NACDL) today officially releases a major report -- Federal Indigent Defense 2015: The Independence Imperative. The report, adopted by NACDL's Board of Directors at its recent annual meeting, reflects the significant work of NACDL's Task Force on Federal Indigent Defense and offers "Seven Fundamentals of a Robust Federal Indigent Defense System," which are set forth below.

You will not be shocked to learn that the "seven fundamentals" can easily be summarized in two words.  More moola.  What exactly this has to do with "independence" is not so clear, except that it's less embarrassing to say you want "more independence" than that you want "more moola" (although there is a degree of "independence" demanded, i.e., independence from much judicial supervision of how much money gets handed out).

How to put an honest assessment of this "report?"

News Scan

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20% of Illegals Caught at Border Have Criminal Records:  One out of every five illegal immigrants apprehended along the southern border in 2014 had a criminal record, according to the president of the National Border Patrol Council, Brandon Judd.  Stephen Dinan of the Washington Times reports that Judd testified to the House Oversight Committee that compared to the 486,000 total illegal immigrants caught by Border Patrol in 2014, only 91,000 were deported, and nearly half of those deported had aggravated felonies on their records.  He estimates that, based on what he is told by his agents, that the U.S.-Mexico border is 40 percent under operational control "if we're lucky."

Shots Fired at Police within Hours of Threat:  Shots were fired at police officers on Tuesday in Aurora, Colorado four hours after someone called 911 and made death threats against law enforcement in Denver and Aurora.  Bob Price of Breitbart reports that the anonymous caller said "it is time that you guys know we are no longer playing around with the police departments" and threatened "let us catch you by yourself and its shots fired."  No officers were killed or injured in the shooting incident that followed the threatening calls, though the department is still on edge in the wake of a string of violent attacks against police officers that have been carried out across the country over the past weeks.

Teen Charged with Encouraging Suicide:  A Massachusetts teen has been charged with involuntary manslaughter after text messages to her boyfriend appeared to show her urging him to kill himself.  Fox News reports that last July, 18-year-old Conrad Roy III, who had a history of depression and had attempted suicide two years prior, used a gasoline-operated water pump to poison himself with carbon monoxide inside his truck.  His girlfriend at the time, 18-year-old Michelle Carter, wrote messages to Roy on the day of his death saying "You can't think about it.  You just have to do it.  You said you were gonna do it.  Like I don't get why you aren't."  She further added "But I bet you're gonna be like 'Oh, it didn't work because I didn't tape the tube right' or something like that ... You seem to always have an excuse."  Prosecutors contend that Carter's messages show that she "wantonly and recklessly" pushed Roy to kill himself, though her attorney argues that her texts amount to protected speech and that the conversation clearly shows Roy's intention to take his own life.  Roy's family insists that Roy was coming out of his depression and was not displaying any signs that he was considering suicide.  Massachusetts does not have a law against assisted suicide, so some legal experts believe that charging Carter with manslaughter is a reach.

Las Vegas Police Officers Ambushed by Juvenile:  Another ambush-style attack against a police officer occurred over the weekend in Las Vegas when a suspect opened fire at two police officers sitting in a police cruiser at a red light.  Colton Lochhead of the Las Vegas Review-Journal reports that the suspect, whose identity has been withheld because he is a juvenile, shot at the police cruiser when it stopped in an intersection on route to a disturbance call, striking one of the officers non-fatally in the hand and surrendering to the other after a short foot chase.  Formal charges have not yet been filed, but authorities anticipate at least two counts of attempted murder.  Under Nevada law, a district attorney can try people 13 years or older as adults if they're facing murder or attempted murder charges.

About two weeks ago, I asked whether black lives matter to "Black Lives Matter."  My thesis was that robust incarceration and proactive policing have done more to actually protect black lives than all the BLM protests from here to the dark side of the moon.  It's the movement to cut back on prison and policing, not their use, that is putting black lives at risk.

Jason Riley of the WSJ picks up the theme in his column last night.

The great lie of the summer has been the Black Lives Matter movement.  It was founded on one falsehood--that a Ferguson, Mo., police officer shot a black suspect who was trying to surrender--and it is perpetuated by another: that trigger-happy cops are filling our morgues with young black men.

The reality is that Michael Brown is dead because he robbed a convenience store, assaulted a uniformed officer and then made a move for the officer's gun. The reality is that a cop is six times more likely to be killed by someone black than the reverse. The reality is that the Michael Browns are a much bigger threat to black lives than are the police. "Every year, the casualty count of black-on-black crime is twice that of the death toll of 9/11," wrote former New York City police detective Edward Conlon in a Journal essay on Saturday. "I don't understand how a movement called 'Black Lives Matter' can ignore the leading cause of death among young black men in the U.S., which is homicide by their peers."

That's what Judge Royce Lamberth of the United States District Court for the District of Columbia pondered as he considered a defense request to pare back the sentence of Melvin Butler, a key lieutenant of famed DC drug kingpin Rayful Edmond.  I think it fair to say that, in the 1980's, Edmond and his gang inspired more sheer dread than anything else in Washington, DC.

Butler has been incarcerated for 24 years.  The question before Judge Lamberth is whether the court should grant Butler the lower sentence he would be eligible for today under more recently revised sentencing guidelines. The Washington Post story, by Spencer Szu and Julie Zauzmer, puts it this way:

A move to lower the lengthy prison sentence of a top associate of one of Washington's most notorious drug lords has prompted a federal judge to ask whether the nation's nascent drive to reduce prison populations might already be going too far.

A New, Top-Notch Legal Blog

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We all know that Crime and Consequences is the No. 1 source for a conservative perspective on criminal law issues.  Kent by himself stands head and shoulders above the analytical ability of the huge majority of lawyers (and judges, for that matter).  It is no exaggeration to say that I have never met a more insightful or fair-minded advocate.

Today, I want to introduce a new entrant in the blogging world, the FedSoc Blog. Like the Volokh Conspiracy, it touches on all aspects of the law, including, from time-to-time, criminal law questions.

The quality of the bloggers boggles the mind; some of the best legal thinkers in America are among them.  They include, for example, Prof. Richard Epstein of New York University (and the Hoover Institution); Prof. Akhil Amar of Yale; former Attorney General Michael Mukasey; and (to have viewpoint diversity) Dean Erwin Chemerinsky of the University of California Irvine School of Law.

To keep things from getting too stratospheric, however, I also occasionally put up a post. I have just recently, repeating my discussion on C&C of what I view as the most important reasons to oppose the current versions of sentencing reform.

News Scan

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Settlement Reached in Freddie Gray Case:  A settlement has been reached between the city of Baltimore and the family of Freddie Gray, the 25-year-old black man whose death in police custody in April opened a deep wound in the racially-divided city.  Keith L. Alexander of the Washington Post reports that the proposed $6.4 million settlement "does not constitute an admission of liability on the part of the city, the Baltimore Police Department, individual Baltimore police officers" or anyone else who may be responsible for Gray's death, said Mayor Stephanie Rawlings-Blake in a statement Tuesday.  The settlement comes one week after preliminary hearings were held for the six Baltimore police officers charged in Gray's death, who each face varying charges and will be tried separately beginning in October.  Last April, Freddie Gray was arrested by Baltimore police officers and suffered a severe spinal cord injury while being transported in a police van.  His death one week later set off widespread rioting, the worst seen in decades.

3 Illegal Immigrants Charged in Death of Teen:  Three illegal immigrants have been charged with the murder of a 17-year-old Virginia high school student who was shot Friday morning on his way to the bus stop.  Fox News reports that Danny Centeno-Miranda, a native of El Salvador who had been living with relatives in the U.S. since 2013, was shot twice in the back by a 17-year-old whose name has been withheld from the public due to his age.  Two others, 20-year-old Henry Dominguez Vasquez and 18-year-old Juan Aguirre Zelaya, were charged as accessories.  Sheriff Mike Chapman says that the crime was not random and the department is probing possible gang connections between the suspects and victim.

Another CA City Questions Prop 47 Amid Rising Crime:  Barstow Police Chief Albert Ramirez Jr. has observed alarming upward trends in crime in the city this year, particularly burglary and robbery, and questions whether a state policy to blame.  Jose Quintero of the Desert Dispatch reports that violent crime in the isolated city is up 11 percent and property crime has risen 25 percent when compared to the same six-month period last year; most staggering are a 52 percent increase in burglaries and 50 percent uptick in robberies.  Since burglaries are often committed by drug addicts seeking stolen property to support their habit, Ramirez believes that Prop. 47, the measure approved by voters last November that reduced several drug offenses from felonies to misdemeanors, has resulted in more drug offenders on the streets looking for items to steal and trade, as they are often booked and cite-released on the same day as their arrest under the policy.  He contends that "too many convicts are back on the streets by way of lenient sentences," and has noticed an increase in the number of repeat offenders.

New Bill Protects Illegal Crime Victims from Deportation:  Proposed legislation in California that would grant deportation protection to illegal immigrants who have been victims of violent crime passed the state Assembly last Thursday with a unanimous vote of 66-0 and is heading to Gov. Jerry Brown's desk for his signature.  Daniel Nussbaum of Breitbart reports that SB 674, or the Immigrant Victims of Crime Equity Act, would require state and local law enforcement agencies to provide illegal immigrants who have cooperated with investigations necessary certifications to apply for special Victim of Criminal Activity visas.  Senate President Pro Tem Kevin de Leon, one of the bill's authors, believes this bill promotes overall public safety stating that "every time a criminal goes free because the victim fears deportation and the police, we are a little less safe."  California has approximately 2.5 million illegal immigrants.

I'm pleased that my friend Will Haun, a brilliant lawyer and rising leader of the conservative legal movement, joined with me in pointing to what both traditional and libertarian-leaning conservatives could agree on by way of an overhaul of the federal criminal justice system.  Our piece is out today in Forbes.  It begins:

It's good to see President Obama and members of Congress take an interest in criminal justice reform, but their emphasis is wide of the mark. Rather than focus on building on our success in decreasing crime rates, advocates of "sentencing reform" seem to think that massively decreasing incarceration will rebuild trust in the justice system. But truly restoring trust will not come merely from empowering the federal courts to lower sentences through more "discretion"--which they used carelessly in the 1960s and '70s--but from returning most law enforcement to the local level and criminal law to punishing the truly guilty.

Local communities' willingness to incarcerate those who were destroying their neighborhoods helped create far greater safety in inner cities across our country. In fact, our criminal justice system is arguably the most successful domestic program in the last half century. Today, we have more than five million fewer serious crimes per year than we did a generation ago. We have ten thousand fewer murders. The crime rate is half what it was in the early '90s.

DC Awash in Violence

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About twenty hours ago, I wrote that surges in both murder and heroin use "are happening as much as anywhere in our nation's capital, indeed within blocks of where Congress sits."

I think I'm giving myself the award for good timing, as the headline in this morning's Roll Call is, "Capitol Hill Grappling with DC Crime Spike."  The story starts:  

When Capitol Hill's police advisory council usually convenes to discuss crime and policing issues, a handful of residents show up. On Sept. 1, it was standing room only.

Capitol Hill residents and others living in the Metropolitan Police Department's 1st District gathered at the police station in southwest D.C. to voice concerns about the recent spike in violent crime rocking the nation's capital. In the front row sat 13 year-old Taije Chambliss, who walked into the station with help from a walker. Chambliss was recovering from being shot in a drive-by shooting on Aug. 30, just a few blocks from the police station.

"It's getting old," one clearly frustrated resident told 1st District Commander Jeff Brown. "It's getting increasingly more dangerous...."

"Keep your personals, your cell phones, things like that. It's a good idea to put those items away, draw less attention to yourself while riding the subway, walking the platforms, things of that nature," Byrd advised, also noting residents should try to travel in groups.

This would be laughable if it weren't the case that, in a few days, some legislators from this self-same Capitol Hill will likely announce legislation whose core premise is simple: "Criminals aren't the bad guys; they're victims of circumstance, including a system we helped create. No, the American people are the bad guys for being so mindlessly punitive.  Here, violent criminals, take these keys to the prison, walk out, and show us how well rehab works!"
Former NYC Police Commissioner Raymond Kelly gives his answer in this New York Times story.  It begins:

Former Police Commissioner Raymond W. Kelly said last week that Mayor Bill de Blasio's constraints on the stop-and-frisk strategy of the Bloomberg administration was to blame for the uptick in murders in New York City. Mr. Kelly also attributed the rise in homicides in other cities to a backlash to the killing last year of an unarmed black teenager by a white police officer in Ferguson, Mo.

"Murders are up," he said in an interview in conjunction with the release of his memoir. "And if you have a propensity to carry a gun and there's a policy to de-emphasize stop and question and frisk, it's only common sense you'll see more people carrying guns and more crime."

Now all we have to do is wait for the Leftists who populate legal academia to tell us how much more they know about it than the former police commissioner.  Not to worry, though  --  I'll bet a goodly sum we won't have to wait long.

From late spring through about the end of July, it was my sense that some kind of fairly significant sentencing "reform" bill was going to make more headway in this Congress than in the last, and conceivably could pass. More members of the majority party had expressed an openness to it than we had seen in the last Congress.

Probably the first sign of trouble was when the sentencing "reform" bill that had been promised before the August recess never showed up.  I expect that one (or several) will show up now, but their content and their prospects for passage seem diminished from what they had been just six weeks ago.

I think there are several reasons for this. 

Is Miller v. Alabama Retroactive?

In Miller v. Alabama, the Supreme Court declared that life-without-parole cannot be the mandatory sentence for murder when the murderer is 17 years, 364 days old or younger.  Of course, if he is one day older, then LWOP can be a mandatory sentence, and death is an allowed sentence.

Under the rule of Griffith v. Kentucky, Miller applies retroactively to all cases that were still on "direct appeal" on the date it came down.  "Direct appeal" is the initial appeal of the case on the trial record, as distinguished from "collateral review," further attacks on the judgment that typically come later, including habeas corpus and statutory substitutes for it.  The unresolved question, now before the high court in Montgomery v. Louisiana, is whether the Miller rule will reach back and require resentencing of every murderer sentenced under a mandatory LWOP statute for a crime committed a day or more before his 18th birthday, no matter how long ago that was.

CJLF's brief in the case was mailed in Monday.  The main argument of the brief is that the "first exception" to the anti-retroactivity rule of Teague v. Lane (1989) is properly understood as an "actual innocence" rule.  It applies only when the new rule renders the defendant innocent of the crime or ineligible for the punishment.

Readers of this blog and Sentencing Law and Policy may be interested in Part IV of the brief, where I go "heads up" with our friend Doug Berman.  He proposes that noncapital Eighth Amendment rules be exempted from Teague altogether.  Regular readers will not surprised to learn that I quite strongly disagree.

Ask Not What Your Dog Can Do for You...

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I've done my share of criticizing the criminal defense bar, but I understand that it's indispensable to justice.

Most of the time, in my experience, when the defense chooses to go to trial, what you're going to see is a dust storm designed to obscure the defendant's, shall we say, unfortunate behavior.  But make no mistake, there are times when defense counsel does heroic work in exposing gutter-level tactics by the prosecution.  I posted about one recently, and of course I noted (who didn't?) defense counsel's spectacular work dismantling the government's fake and, frankly, racist case against several members of the Duke lacrosse team.

Still, I had to laugh when I saw the story of one defense lawyer up to the old tricks. The case was about Martha Shoffner, one time Arkansas State Treasurer, who had her hand out for bribes from those who wanted a piece of the state's bond business. She made off with a paltry $36,000 for her trouble.

At sentencing:

[Defense attorney Chuck] Banks asked the court to show mercy on Shoffner, saying she "made a terrible, terrible error in judgment" and characterizing her as "gullible" and "clueless." He said that she was inclined to accept the bribes from Stephens in large part because she was in a bad financial situation, having underestimated the cost of commuting on a regular basis between Newport and Little Rock.

Banks asked Holmes to consider Shoffner's "good deeds," including her work for the Humane Society. He presented the court with a picture of her dog, Fred, and said he was moved by the fact that after Shoffner was first arrested, she asked Banks to call her sister to check on Fred.

I practiced in federal court for many years, and it never occurred to me that I could advance the ball by citing anyone's dog.  For that matter, it still hasn't.

We often hear that crime is bred by America's callousness, its class system, and its denying opportunity to those it excludes.  Of course, these are not the only explanations.

Q:  Who said that our country must realize

...that crime is generated by a lack of values that has largely gone unaddressed in our nation as a whole and in the black community in particular. Soaring unwed birthrates, absentee fathers, an aversion to work, an unwillingness to embrace societal standards and time-honored discipline -- all these factors have contributed to the problems we must now confront.

A: Pick one:

1.  Donald Trump when he thought the microphone was off
2.  The head of the Tea Party
3.  The John Birch Society
4.  The Imperial Klud of the KKK 

News Scan

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Gov. Brown Gets Date Rape Bill:  A bill intended to soften one impact of Proposition 47, the California voter-approved measure that reduced several drug and property crimes from felonies to misdemeanors, is heading to Gov. Jerry Brown's desk for consideration and signature.  Alexei Koseff of the Sac Bee reports that Senate Bill 333 was unanimously approved by the state Senate on Thursday with a 37-0 vote.  The bill would create a new felony for the possession of date rape drugs - which has been reduced to a misdemeanor under Prop. 47 - with the attempt to commit a sexual assault.  This would provide prosecutors with the option to bring charges against someone "for making preparations to commit an assault with a date rape drug - even if the assault was never attempted."

SF Pier Shooter to Stand Trial for Murder:  The illegal immigrant accused of fatally shooting a young woman on a San Francisco pier in July will go to trial for murder.  CBS News reports that Judge Brendan Conroy said he heard enough evidence during a preliminary hearing Friday to order the jury trial for 45-year-old Juan Francisco Lopez-Sanchez, the seven-time convicted felon and five-time deportee from Mexico.  He has confessed to the shooting of 32-year-old Kate Steinle, but claims that the gun fired accidentally.  The shooting has been at the center of a heated national debate regarding U.S. immigration laws after it was revealed that the Sheriff's Department released Lopez-Sanchez despite a federal request to detain him for deportation.  Sheriff Ross Mirkarimi says that he was simply adhering to city law that bars his jail from holding an inmate facing possible deportation, unless a warrant or some other judicial notice order is obtained by federal officials.  

Police Recruits Dwindle Amid Anti-Cop Climate:  Police departments nationwide are facing recruiting shortages, with some departments seeing the number of applications drop as much as 50 percent, amid growing anti-cop rhetoric that demonizes police, diminishes the job and puts targets on the backs of officers.  Fox News reports that recruitment has plummeted following the death of Michael Brown last year in Ferguson, MO, as well as the deaths of Eric Garner in New York and Freddie Gray in Baltimore, spawning the "Black Lives Matter" movement.  The group was formed to protest police brutality, though their language is growing more aggressive by the day, now with open calls for killing police officers.  Sgt. Delroy Burton, chairman of the DC police union in Washington, says his police force has seen nearly 600 officers resign over the past 19 months, and is currently 131 officers short.  "We're sitting ducks...And the vast majority supports this loud vocal minority," he says.   

Let's Do the Right Kind of Sentencing Reform

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It's all true.  I favor sentencing reform.  Just not the kind that's being floated now.  

I favor reform that will fix what's wrong with the system  --  an out-of-control regulatory state, bashing people and businesses for behavior laymen would not even understand to be wrong  --  and preserve what's right  -- incarceration for behavior nearly everyone understands is wrong, including dealing in hard drugs.  Such incarceration has helped bring down the crime rate by half in a single generation.

I've written before about the advantages of restoring mandatory sentencing guidelines, something the majority in Booker all but invited Congress to re-visit.  That is probably the main item most readers would see as "sentencing reform."  I want to focus this post, however, on the part of sentencing reform in which I agree with thoughtful people in such organizations as the Heritage Foundation.

Are Sentencing "Reformers" Getting Worried?

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In Washington, DC, one way of gauging whether you're making any headway is by the intensity of the opposition .When the other side is confident, you pass unnoticed. When they feel it slipping away, things get a little more.........heated.

I suppose, although there's no way I can be sure, that this is what accounts for the increasing interest in my opposition to mass sentencing reduction, opaquely labelled as sentencing "reform."  In late July, there were articles about me on successive days in Slate and Salon.  The former was, I thought, fair-minded and thoughtful, although the author, Mark Obbie, made clear his disagreement with my substantive views.  The latter was more personal.  I answered it here and here.

I see from today's edition of Sentencing Law and Policy that Ms. Julie Stewart, head of Families Against Mandatory Minimums (FAMM), has a piece in Reason Magazine, a libertarian publication, that essentially makes me out to be a know-nothing crackpot.  I have read only the SL&P summary, trusting it to be fair, but I don't believe that characterization overstates her view..

I think it unbecoming and unwise to get caught up in this sort of thing.  If you hold a controversial position, you can expect some heat.  And if you spend all your time answering your critics, you'll never do anything else.  You'll certainly abandon any hope of making your own points.  Accordingly, with the exceptions noted below, I am not going to engage with Ms. Stewart.  (If she seeks a live debate with me, that would be another matter).

I'm quite sure she's sincere. But, for reasons stated below and in hundreds of things I have said on this blog and elsewhere, I believe she is in error.

News Scan

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Charleston Shooter to Face Death Penalty:  Prosecutors in South Carolina stated in court documents that the death penalty will be sought for Dylann Roof, the 21-year-old man charged with the racially motivated massacre of nine black churchgoers in June.  The AP reports that prosecutors are pursuing the death penalty "because more than two people were killed, and the others' lives were put at risk" when Roof opened fire during a Bible study at the historic Emanuel African Methodist Episcopal Church.  On that evening in June, Roof, who is white and has expressed hatred for black people, went to the church's Bible study and sat in for about an hour before drawing a .45-caliber semiautomatic handgun and gunning down nine parishioners.  He has been indicted twice for the crime, in state court and in federal court.

Crime Rises in Downtown LA:  Rapid gentrification in downtown Los Angeles is "crashing up against the chronic poverty, homelessness and crime" that has long defined the city center, and new downtown dwellers have become easy targets for the increasingly aggressive street crime.  Ben Poston and Kate Mather of the LA Times report that violent crime in the areas of downtown, skid row and Chinatown is up more than 57 percent through the end of August compared to the same period last year, while property offenses increased almost 25 percent.  The LAPD has increased their presence in the vulnerable areas, deploying officers from the department's elite Metropolitan Division, though many officials believe that some of these areas, particularly skid row, needs the kind of help that police are unable to provide.  Officials acknowledge that Prop. 47, the voter-approved initiative that downgraded drug possession and minor thefts from felonies to misdemeanors, has left more offenders  on the streets and have observed a noticeable rise in property crime since its passage last November. 

Woman's Lie Diverted Manhunt for Illinois Officer's Killers:  The manhunt for the three suspects in the shooting death of an Illinois police officer was diverted by a woman who lied to police about witnessing two suspicious men near the scene of the murder.  Fox News reports that 30-year-old Kristen Kiefer made a 911 call on Wednesday evening, reporting that she spotted two men, one white and one black, near a cornfield while she was pulled over to the side of the road with car trouble about five miles from where Lt. Charles Joseph Gliniewicz was fatally shot on Tuesday.  Eight-five law enforcement officials, 11 police dogs and three air support units searched the area for five hours.  Kiefer later admitted that she lied about the report in an effort to seek attention from a family that employs her as a nanny.  She has been charged with disorderly conduct and falsifying a police report.

Baltimore Protesters Demand Due Process

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There was a hearing today in Baltimore in the Freddie Gray homicide case.  The court refused defense requests to dismiss the charges or remove States Attorney Marilyn Mosby.  It did, however, grant separate trials to the defendants.

Outside the courthouse, protesters demanded due process for the accused, who are all police officers.  They carried signs with slogans, "No Case Should Be a Circus," "Honor the Presumption of Innocence," and "No Trial in the Streets."  

Members of the media interviewed a number of protesters, who were quoted as saying such things as, "We'll accept an acquittal peacefully if that's what happens," and, "All defendants should have a chance to make their case before people condemn them."

The article covering it states............ummmm............well................maybe I'm getting this wrong.  The reaction I described is only what we'd see from academia or the ACLU for an axe murderer or child rapist.  Or maybe Mumia Abu Jamal.  The actual protest today  --  which wasn't much compared to the arson and riots we saw earlier  --  was, well, different from my description, and was covered in this local CBS News story.

If there was even a slight mention of Due Process, I missed it.

News Scan

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Kate Steinle's Family File Legal Claims:  The family of Kate Steinle, the young woman who was fatally shot two months ago in San Francisco by an illegal immigrant, filed wrongful death claims Tuesday against the sheriff of San Francisco, U.S. Immigration and Customs Enforcement (ICE) and the U.S. Bureau of Land Management (BLM).  Vic Lee of ABC 7 reports that in the suit, the Steinle family blames San Francisco Sheriff Ross Mirkarimi, who "made himself the king, judge and jury," ordering his deputies not to notify ICE on deportation detainees.  The second claim is against ICE, who the Steinles believe knew about Mirkarimi's lack of cooperation but did nothing to retrieve the man who would later murder their daughter.  The last claim names the Federal Bureau of Land Management, whose agent left his government-issued firearm inside his parked vehicle, which was stolen and allegedly used in the crime.  On July 1, 32-year-old Kate Steinle was fatally shot by Juan Francisco Lopez-Sanchez, an illegal immigrant that had been deported five times and had a criminal record consisting of seven felonies.  "The system failed my sister," says Kate's brother, Brad Steinle, adding "At this point, nobody has taken responsibility, accountability.  And nothing has changed."

Judge Refuses to Dismiss Charges in Freddie Gray Case:  Baltimore Circuit Court Judge Barry Williams denied a defense motion at a pretrial hearing Wednesday that argued for charges to be dropped against the six officers in the death of Freddie Gray, as well as another motion calling for the recusal of Baltimore State's Attorney Marilyn Mosby.  Ian Simpson of Reuters reports that attorneys for the six officers sought to have their clients' charges dropped due to prosecutorial misconduct on part of Mosby, though Judge Williams ruled that her controversial announcement of the charges to the predominantly black city "did not warrant dropping charges."  All six officers face second-degree assault, reckless endangerment and misconduct in office charges in the April death of 25-year-old Freddie Gray, who died a week after suffering a severe spinal cord injury while in police custody.  Three of the officers also face manslaughter charges, while the driver of the police van faces an additional charge of second-degree murder.  Protesters rallied outside the Baltimore courthouse, prompting law enforcement to enhance security.  Another pretrial hearing is scheduled for September 10, and the trial is set to begin October 13.

Hunt Widens for 3 Suspects in Death of Illinois Officer:  Hundreds of officers, dozens of police dogs and numerous helicopters continued an intensive manhunt Wednesday for three suspects who fatally shot an Illinois police officer on Tuesday morning.  The AP reports that officers are saturating the Lake County area, about an hour north of Chicago, leading to school lockdowns and the urging of residents to remain inside their locked homes.  All that is known about the suspects at this time is that one is black and two are white, as described by Lt. Charles Joseph Gliniewicz in the radio call he made shortly before he died from his injuries.  Gliniewicz, a three-decade member of the Fox Lake, Illinois police department and father of four sons, is the third law enforcement officer killed this year in the state.  His death reinforces the growing concern around the country that police officers are being deliberately targeted.

Yesterday, I noted that the "defense" that emails containing classified information may not have been marked classified was a weak argument for emails received by former SecState Clinton and no defense at all for those written and sent by her.  Today, Carol D. Leonnig and Rosalind S. Helderman report in the WaPo:

While she was secretary of state, Hillary Rodham Clinton wrote and sent at least six e-mails using her private server that contained what government officials now say is classified information, according to thousands of e-mails released by the State Department.

Although government officials deemed the e-mails classified after Clinton left office, they could complicate her efforts to move beyond the political fallout from the controversy. They suggest that her role in distributing sensitive material via her private e-mail system went beyond receiving notes written by others, and appears to contradict earlier public statements in which she denied sending or receiving e-mails containing classified information.

The classified e-mails, contained in thousands of pages of electronic correspondence that the State Department has released, stood out because of the heavy markings blocking out sentences and, in some cases, entire messages.
"At least six," of course, means at least six in those released so far.  There are surely many more.

Earlier on the same subject, former Attorney General Michael Mukasey had this article in the WSJ on August 14.
I have previously noted that the startling national spike in murder, and the coast-to-coast heroin epidemic, present obstacles to sentencing reform that were not foreseen only a few months ago.  See, e.g., Reason No. 7 in my Baker's Dozen.  I now read that the ever-observant Prof. Doug Berman has seen the same thing, in his comments here:

Especially with growing talk about violent crime increases in some cities and with sound-bite presidential campaigns now dominating the broader political conversation, I think the window for any meaningful federal sentencing reforms emerging from Congress is already starting to close.

As I've said before, Doug Berman is nobody's fool, and I think he shows his keenness again here.

I disagree with Doug only in thinking that it is not the talk about the surge in murder, but the surge itself, that's the problem for sentencing reformers.

Sentencing "reform" was never going to occur in a time of high crime, which focuses the mind far more effectively than back-slapping at the NACDL reception.  

If the public does not know from the numbers, it knows instinctively, that battling crime with more police and more prison has worked.  Sentencing reformers are at once cynical and shrewd to push their pro-criminal agenda at the very time the methods they most oppose have produced the complacency they most need.

Mass sentence reduction simply is not going to occur when the bodies are piling up. This is especially true now that reformers have admitted they seek early release of violent criminals and not just the joint smokers they spent years pretending would be the main objects of their beneficence.  But it was always true anyway.

So my advice to sentencing reformers echoes Doug's:  Ram this thing through now before America wakes up!
In her breathless, Holier-than-Thou article in the NYT a couple of weeks ago, Linda Greenhouse, a Senior Research Scholar and Lecturer at Yale Law School, told us that distaste for the death penalty had reached the point in the United States that "there is a widespread de facto moratorium in place, even in most of the 31 states that still have the death penalty on their books."

This was despite the fact, which Ms. Greenhouse understandably never mentioned, that, up to that point in 2015, there had been 19 executions in the country, or one approximately every twelve days.  Also omitted was the fact that, over the last five years, there were 206 executions, or slightly more than one every ten days.

Adding to Ms. Greenhouse's less-than-conventional definition of a "widespread de facto moratorium" on executions was the one last night, as reported by Yahoo News.
I've noted several times that the movement for a mass reduction of federal sentences has never been shown to have significant or broad support among the public (which is why it's opaquely named sentencing "reform"), and instead is being carried by special interests, lobbyists, think tanks and billionaires.  I thought it might be useful to provide a partial list so readers can see what I mean.
If you follow SSRN or any site featuring legal academics, you cannot help but notice that "scholarly" articles essentially always favor the defense.  Of course, some of them are thoughtful, and some essentially unhinged, see, e.g., here and here.

But one way or the other, they inevitably favor the defense.


Not Quite the Last Man

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Slate Magazine recently profiled my opposition to mass sentencing reduction (smoothly labeled "sentencing reform" by its backers) with an insightful article by Mark Obbie titled, "Last Man Standing."

I appreciate the bold portrayal, but, as former Deputy Attorney General George Terwilliger's op-ed today in the National Journal shows, I have company.  Mr. Terwilliger's piece begins:

Sentencing reform is a trendy topic among those concerned with criminal justice policy. It is a righteous cause if for no other reason than there is always room for improvement in the criminal justice system. But before we make wholesale changes in sentencing policy by abolishing mandatory sentences or abandoning incarceration in favor of alternative programs, we should give full and careful consideration to the risks to our communities and citizens, and thoroughly vet the alternatives.

Right now, legislators are rushing to overhaul sentencing policy, the Obama administration is advancing an unprecedented system of clemency for federal inmates, and commentary is buzzing with the conviction that the high rate of incarceration in the United States is a stain on our national reputation -- all without apparent consideration of the consequences.

News Scan


MO Man Faces Execution After 26 Years on Death Row:  A convicted murderer scheduled to be executed Tuesday evening in Missouri for the 1989 kidnapping, rape and murder of a 15-year-old girl is having his final appeals considered by the U.S. Supreme Court.  The AP reports that over two decades ago, Roderick Nunley, now 50, and accomplice Michael Taylor, who was executed last year, kidnapped Ann Harrison from the driveway of her Kansas City home as she waited for the school bus and took her to Nunley's mother's home, where she was raped and sodomized, then stabbed several times in the stomach and neck.  Her body was discovered three days later in the trunk of a car the two men stole on the day of her murder.  If the remaining appeals are rejected, Nunley will be the sixth death row inmate to be executed this year in the state.

Man who Killed Houston Officer had History of Mental Illness:  The man charged in Friday's ambush murder of a Houston sheriff's deputy at a gas station had a history of mental illness and was at one time declared mentally incompetent.  The AP reports that 30-year-old Shannon Miles has a criminal history dating back to 2005, including a 2012 arrest for aggravated assault with a deadly weapon that led to him being committed to a state mental hospital for several months.  He faced seven years in prison for the assault charge and was declared mentally incompetent, but the charge was later dropped when authorities could not locate the victim.  Last Friday, Miles opened fire from behind on 47-year-old Sheriff's Deputy Darren Goforth, firing a total of 15 shots, killing him.

Protests Planned Around Freddie Gray Hearings:  Hearings are to begin Wednesday in the case against six Baltimore police officers charged in the April arrest and death of Freddie Gray, and police prepare for possible unrest as at least 350 activists plan to protest at the courthouse and elsewhere in the city.  Kevin Rector of the Baltimore Sun reports that at the hearings, prosecutors and defense attorneys are to argue before the judge a number of issues, including whether the case should be dismissed, if Baltimore State's Attorney Marilyn Mosby should be recused, if the six officers should be tried together or separately and whether there should be a charge of venue for the trial, which is scheduled to begin October 13.  The Baltimore Police Department as well as the Baltimore Sheriff's Office "canceled leave to maximize availability of city officers" in anticipation of possible conflict.  In April, 25-year-old Gray died after suffering a spinal cord injury while in police custody, sparking protests against police brutality that erupted in citywide rioting, looting and arson.

TX Gang Threat Heightened by Drug Cartels:  According to the latest assessment by the Texas Department of Public Safety, gangs in Texas are especially threatening due to their "propensity for violence and close associations with ruthless Mexican cartels."  The Statesman reports that the state's Tier 1 gangs - Tango Blast and Tango cliques, the Texas Syndicate, the Texas Mexican Mafia, MS-13 and the Latin Kings - pose a significant threat to public safety because of their connections with the Mexicans cartels, cross-border crime, overall statewide presence and extremely high levels of violence.  Together, these gangs have a statewide membership totaling over 100,000.

AP on the Clinton email scandal

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AP has an article on the Hillary Clinton email scandal that is a prime example of why we sometimes feel that much of journalism is just an auxiliary to one side's campaign staff:

Experts in government secrecy law see almost no possibility of criminal action against Hillary Clinton or her top aides in connection with now-classified information sent over unsecure email while she was secretary of state, based on the public evidence thus far.
*                               *                         *  
By contrast [to the Petraeus and Deutch cases], there is no evidence of emails stored in Hillary Clinton's private server bearing classified markings. State Department officials say they don't believe that emails she sent or received included material classified at the time. And even if other government officials dispute that assertion, it is extremely difficult to prove anyone knowingly mishandled secrets.

"How can you be on notice if there are no markings?" said Leslie McAdoo, a lawyer who frequently handles security-clearance cases.
The picture is not nearly as clear as that first paragraph implies.

For starters, for outgoing email you write yourself, there won't be markings if you didn't put them there.  It is your responsibility to mark.  For incoming material, how do you know it's classified without markings?  The same way the person who should have put the markings knows to put them.  If your job is dealing with classified information, you have a responsibility to have some basic familiarity with the criteria, at least enough to ask someone if you are not sure.
The current issue of the Journal of Law and Economics has this article by Rasmus Landersø.  Here is the abstract:

This paper studies how longer incarceration spells affect offenders' labor market outcomes by using a reform that increased incarceration lengths by approximately 1 month. I use detailed register data for offenders who predominantly serve incarceration spells of 1-2 months. I analyze the sample for several years prior to and after incarceration and show that the reform led to an exogenous increase in incarceration lengths. I find that the longer incarceration spells result in lower unemployment rates and higher earnings, possibly because marginal increases in short incarceration spells improve conditions and incentives for rehabilitation, while the costs of jail related to these outcomes are unaffected. I show that the estimates are robust to different econometric specifications and further provide evidence that my results are not driven by changes in macroeconomic conditions.

I am skeptical about how that would generalize to different conditions, but it's an interesting result.
The US Court of Appeals for the Ninth Circuit held oral argument yesterday in Jones v. Davis, the case in which a federal district judge ruled that the extreme delays in California's death penalty render it unconstitutional as a violation of the defendant's rights.  Make no mistake, the delays are unconstitutional as well as unconscionable, but they are a violation of the rights of the murder victims' families under Article I, Section 28 of the California Constitution.  To the extent the delays occur in federal court (and that is a large extent), they are a violation of the rights of the victims' families under 18 U.S.C. §3771.  The remedy is to fix the delays.  Links to earlier posts are collected in this post.

Before the argument, I said that I was confident that the decision would be reversed on one of the several limitations on habeas corpus breached by Judge Carney.  After the argument, others are saying it looks that way as well.

National Review on Sentencing Reform

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National Review Online yesterday published my quick take on sentencing reform, "Six Reasons to Say No to Sentencing Reform."  Readers will recognize it as a condensed version of my entry, "A Baker's Dozen Reasons to Oppose Sentencing Reform."

The longer this debate drags on with little or no public disclosure of what our legislators are planning behind closed doors, the more the Donald Trump phenomenon resonates with me (not that I'll be voting for him, since I won't).

Trump has made himself a leading candidate by playing off public resentment toward a government the electorate sends to Washington to do one thing, but, once in office, ignores the voters to adopt some very different agenda supported by a lot of monied interests and cozy Beltway lobbyists  --  but with little to no public backing.

That fits sentencing reform to a tee.  The drive for mass sentencing reduction is flush with money from the super-rich, and is the cause celeb of burrowed-in lobbying groups like FAMM, the NACDL and Al Sharpton's National Action Network.  But if you're looking for an honest poll that asks ordinary people the question actually at issue here  --  "Do you favor shorter sentences for drug dealers?"  --  you'll be looking a long time.

"Pigs in a Blanket, Fry 'em Like Bacon"

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The title of this post is the chant used by the Black Lives Matter contingent at the Minnesota State Fair this last weekend.  "Pigs" of course refers to the police; "fry 'em" is slightly more obscure, although I doubt it means "give them a box of candy."

BLM used this chant hours after the report of the execution-style murder of a white Houston policeman, Darren Goforth, by a black man, Shannon Miles.  Miles' motive is not clear; he and Goforth had not had any prior experience with each other that is known about.

The BLM spokesman, Rashad Turner, explained that the chant is nonviolent because  --  ready now?  --  those are only words

Well, why not?  When prize-winning NYT journalist Linda Greenhouse can proclaim that the country has adopted a death penalty "moratorium" while it is executing a killer an average of every twelve days or so, why would anyone think that words are supposed to mean anything?

But perhaps more troubling than the rigged solipsism is the fact the the BLM movement  --  with all its potential for good  --  seems increasingly rooted in hate.

Hat tip to PowerLine.

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