October 2015 Archives

As Kent and I have noted, FBI Director Jim Comey has said that a "chill wind" of acerbic and visceral criticism of the police has very likely been a factor in less aggressive police work, coincident (to say the least) with a spike in murder and other violent crime over the last several months.

White House officials were irritated as they saw it as an effort to undermine their criminal justice reform efforts. They later said publicly that there was no evidence to back up Mr. Comey's claim about the rise in violence. On Thursday, the president met with Mr. Comey in the Oval Office to discuss his views. The White House declined to describe the conversation.

One of the oddities of federal gun law is that the right to bear arms is generally taken away only for felonies, but domestic violence is treated specially, and the right to own a gun can be taken away for a misdemeanor.

A recurring problem in both gun possession law and recidivist sentencing is dealing with the wide variety of ways that crimes are defined in the 50 states and handful of almost-states that make up our federal republic.  Yesterday, the U.S. Supreme Court took up the "misdemeanor crime of domestic violence" question in Voisine v. United States, No. 14-10154.  Amy Howe has this post at SCOTUSblog.

Counsel for the defendants asked the Court to take two questions:

1. Does a misdemeanor crime with the mens rea of recklessness qualify as a "misdemeanor crime of domestic violence" as defined by 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9)?

2. Are 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9) unconstitutional under the Second, Fifth, and Sixth Amendments and the Ex Post Facto Clause of the United States Constitution?

Mens rea means guilty mental state, an issue we discussed last term in relation to the Elonis case.  See, e.g., this post.

The high court took the statutory question, number 1, but said "fuggetaboutit" to the constitutional question, number 2.  No treat for Second Amendment fans this Halloween.

On Thursday, the Supreme Court of the United States denied a stay to Florida murderer Jerry Correll, who was an exemplar of why anything less than death is inadequate for some killers.  See prior post.  One thing about executions is that they force SCOTUS to a decision.  In most cases when the Supreme Court denies review it says little about the merits of the argument.  It may be that they are just waiting for a better vehicle.  When they say, in effect, "go ahead and fry him," it's a much stronger indication that a majority thinks his claim lacks merit.

Justices Breyer and Sotomayor dissented.  Justice Breyer, alone, reiterated his support for at least taking up what is known as the Lackey claim "whether nearly 30 years of incarceration under sentence of death is cruel and unusual punishment."  The oddity of that claim is that the long delay is over the vehement objection of the state and, in most cases, the victim's family, and the execution that the defendant seeks to have stayed brings an end to the supposedly cruel punishment he complains of.  The fact that no other justice joins this part is a good sign.

The other ground of dissent, which Justice Sotomayor does join, is that the case should be held for decision of an attack on Florida's capital sentencing system in Hurst v. Florida.  That attack is based on the Supreme Court's decision Ring v. Arizona (2002), which the Court held was not retroactive to cases final on direct appeal in Schriro v. Summerlin (2004).  In Correll, the Florida Supreme Court brushed off the Ring claim both on the merits and on nonretroactivity.  Whatever the Court may decide on the merits in Hurst, we can be confident that Summerlin is safe.  Seven Justices would not have let Florida go ahead and execute Correll if they thought otherwise.

The LA Times story begins:

About 6,000 drug offenders will be released from federal custody over the next few days, but some legal experts warn that the government has done too little to help many of them successfully reintegrate into society.

Death Row Inmate Challenges Execution:  Just days away from being executed, a Missouri death row inmate is arguing that his life should be spared because a brain tumor that left a hole in his head could cause seizures during a lethal injection.  Tracy Connor of NBC News reports that 55-year-old Ernest Johnson's attorneys have filed appeals to halt his November 3 execution in both federal and state court; a federal court petition states that the small hole left in his skull from the removal of a brain tumor in 2008 "will likely result in a severely painful execution" and he has requested the appointment of a "special master" in state court to determine whether he is mentally retarded. So far, the federal appeal has been dismissed by a judge.  In 1994 while on a crack binge, Johnson used a claw hammer to bludgeon shop workers Fred Jones, Mary Bratcher and Mable Scruggs to death in a robbery.  He has been sentenced to death three times.  He will be the seventh death row inmate executed in Missouri this year.

Video Surfaces of Waco Biker Shootout:  Surveillance footage and crime-scene photos recently obtained by CNN show the May shootout between rival biker gangs at a Twin Peaks restaurant in Waco, Tex., that left nine dead and resulted in hundreds of arrests.  Justin Wm. Moyer of the Washington Post reports that in a Facebook post, the Waco Sheriff's Department stated that neither the Waco Police Department nor the McLennan County District Attorney's Office authorized the release of the video or photographs, noting that the department is under a gag order.  A small group of individuals, including defense attorneys, had access to the footage and could be held legally and ethically responsible for its leak.  Details of the May 17 shootout, including who may have started the brawl, remain unclear.  The incident resulted in nine deaths, 177 arrests and the recovery of 480 weapons.  None of the individuals arrested have been charged with murder.

Federal Judge Orders Changes to MN Sex Offender Program:  In a 43-page order, a federal judge Thursday ordered Minnesota officials to make specific, immediate changes to the state's 21-year-old commitment program for sex offenders.  Elizabeth Mohr and Rachel E. Stassen-Berger of the Pioneer Press report that U.S. District Judge Donovan Frank deemed the Minnesota Sex Offender Program (MSOP) unconstitutional because the 700-plus offenders who have been civilly committed, either in lieu of or following prison sentences, are "effectively locked up indefinitely with no hope of release."  In his order, Frank directed state officials to begin reassessing all individuals in MSOP facilities, begin discharge proceedings for residents who should no longer be there, ensure less restrictive placement options for those eligible and start performing annual risk assessments on all residents. Minnesota Gov. Mark Dayton rejected the order, calling it "a potential risk to public safety," and the state filed an appeal within hours.

Robert Woodson has this article in the WSJ on fighting poverty, the compassionate conservatism of Jack Kemp, and Paul Ryan's low-profile efforts.  Crime is inevitably part of the mix, although not in the simplistic "poverty is the root cause of crime" mantra so beloved by our friends on the left.

Kemp's public record reveals that in the late 1970s the then-congressman persuaded his colleagues who were part of an initiative called the Opportunity Society to conduct a unique field hearing in the troubled Kenilworth-Parkside public-housing development in Washington, D.C. Kenilworth was at the forefront of a movement of associations of public-housing residents that strove to take on management duties for their developments, which had become crime-ridden, drug-plagued and dilapidated during years of neglect and opportunism under bureaucratic public-housing authorities.

Once the Kenilworth residents were empowered to take charge of their neighborhood, they drove out the drug dealers, reduced teen pregnancy and welfare dependency, and launched self-help initiatives.

Poverty and crime have an interaction more complex than either causing the other, and a deficit of personal responsibility is a root cause of both.

Baby Doe Abuse Case Closed Prematurely:  A report released Wednesday revealed that the decision made by the Department of Children and Families (DCF) to close two reports of abuse regarding "Baby Doe," whose remains were discovered in June near Boston, was premature.  CBS Boston reports that DCF said it was involved with two-year-old Bella Bond's case when she was an infant in 2012 and 2013, but both cases were subsequently closed.  It was also found that the agency improperly assessed the ability of Bella's mother, Rachelle Bond, to parent her daughter.  Bella's remains were identified in September after being discovered on Deer Island in June, allegedly murdered by 25-year-old Michael McCarthy, Rachelle Bond's boyfriend.  The new report, issued by the Office of the Child Advocate, concluded that "a higher level of response to the 2012 and 2013 abuse and neglect reports was warranted by DCF."  McCarthy, who believed Bella was possessed by demons when he killed her, is charged with murder and Rachelle Bond faces a charge of accessory after the fact.

OK Beheading Suspect Competent to Stand Trial:  An Oklahoma man accused of beheading a co-worker at a food-processing plant is competent to be tried for first-degree murder and other charges, a judge ruled Wednesday.  Tim Talley of the AP reports that the ruling means a trial can move forward in the case against 31-year-old Alton Nolan, who is charged in the September 2014 attack that killed 54-year-old Colleen Hufford and injured another co-worker at the Vaughan Foods plant in Oklahoma City.  Nolen's attorneys argued that he is mentally impaired and unable to help them prepare his defense, and thus should not stand trial.  A judge rejected the defense's claims following two days of testimony during which psychologists for both the prosecution and the defense offered opposing opinions regarding Nolen's competence.  In September of last year, Nolen, a recent convert to Islam who had just been suspended from his job at the plant, walked into the company's administrative office and severed Hufford's head with a large knife and then repeatedly stabbed another co-worker, Traci Johnson, before he was shot and wounded by Mark Vaughan, a reserve sheriff's deputy and CEO of the company.

NM Officer Shot Last Week Dies:  An Albuquerque police officer shot during a traffic stop last week died from his injuries early Thursday.  The AP reports that Officer Daniel Webster, a nine-year veteran of the force, suffered gunshot wounds to his upper body and jaw when 34-year-old Davon Lymon opened fire at him after being pulled over for riding a motorcycle with a stolen license plate.  When Lymon was apprehended following the shooting, he had a handcuff on his left wrist, indicating that Webster was in the process of arresting him at the time of the incident.  Lymon's prior criminal record includes charges of voluntary manslaughter, aggravated battery, kidnapping, fraud and forgery.  He currently faces one count of being a felon in possession of a firearm.  Law enforcement officials in the state are calling on the New Mexico legislature to increase resources for police and prosecutors in high-crime areas and to enact sentencing reforms, ensuring that people like Lymon are kept off the streets.

The WSJ has reprinted an excerpt from a speech by FBI Director James Comey on October 23.  The whole speech is on the FBI site and not copyrighted, so I will just copy the whole excerpt here.

Part of being clear-eyed about reality requires all of us to stare--and stare hard--at what is happening in this country this year. And to ask ourselves what's going on.

Because something deeply disturbing is happening all across America.

I have spoken of 2014 in this speech because something has changed in 2015. Far more people are being killed in America's cities this year than in many years. And let's be clear: far more people of color are being killed in America's cities this year.

And it's not the cops doing the killing.

The NYT's Room for Debate feature has this debate prompted by the murder of Officer Randolph Holder by a criminal out on a diversion program.  Included are pieces by CJLF President Michael Rushford and Heather MacDonald of the Manhattan Institute.

A big part of the energy behind sentencing "reform" takes root in the belief that we have not only too many people in prison, but the wrong people.  Under this view, prisons are packed with "low level drug offenders" ("pot offenders" is often implied), leaving insufficient room for the "truly dangerous."

[Contrary to President] Obama, the state prison population (which accounts for 87 percent of the nation's prisoners) is dominated by violent criminals and serial thieves. In 2013, drug offenders made up less than 16 percent of the state prison population, whereas violent felons were 54 percent of the rolls and property offenders, 19 percent. (See graph below.) Reducing drug admissions to 15 large state penitentiaries by half would lower those states' prison count by only 7 percent, according to the Urban Institute.

Sometimes there's nothing to do but smile and shake your head.  The story is here.

Laura Meckler reports in the WSJ:

Hillary Clinton said Wednesday she doesn't support abolishing the death penalty but would like to see it used more judiciously, another point of contrast with the most liberal members of her party and with her nearest rival for the Democratic presidential nomination.

*                            *                         *

"We have a lot of evidence now that the death penalty has been too frequently applied and very unfortunately, often times in a discriminatory way," she said during a question-and-answer session at a "Politics and Eggs" luncheon at St. Anselm College on Wednesday. She said she welcomed efforts by many states to revisit their policies.

"I do not favor abolishing it, however, because I think there are certain egregious cases that still deserve consideration of the death penalty, but I'd like to see those be very limited and rare," she said.

What evidence is there that it "has been too frequently applied"?  On the contrary, it is applied to only a tiny fraction of intentional criminal homicides.  All you have to do is read the facts of capital cases, like the Correll case discussed in my previous post, to know these sentences are thoroughly deserved and entirely just in nearly all cases.

The old discrimination claim that black defendants are more likely to be sentenced to death has been refuted time after time for decades now, even by the opponents' own studies.  The claim that the death penalty is less likely to be imposed if the victim is black would, if valid, be a claim that the death penalty is not imposed often enough.  But the claim is not valid, as explained in my OSJCL article.

Given the state of the Democratic Party today, Mrs. Clinton is under fire for not going far enough in the soft-on-crime direction.

Her position is, I suspect, calibrated for maximum political gain.  She believes, with justification, that the nomination is pretty much in the bag, and she is looking to the general election.

As noted in today's News Scan, Florida is scheduled to resume executions tomorrow by finally carrying out the thoroughly deserved and long overdue sentence of Jerry Correll.  Correll tortured his ex-wife, stabbed her, and raped her as she lay dying of an abdominal wound.  Her also murdered her mother and sister.  Then he murdered their five-year-old daughter.  According to the trial judge (quoted in the federal district court opinion),

[The medical examiner] testified Tuesday Correll lived approximately five minutes before losing consciousness. It is difficult to imagine the degree of emotional anguish suffered by that dying child. She had apparently witnessed the brutal murder of her mother and experienced the horror of her own father repeatedly driving a sharp knife into her chest.

*                                 *                                *

There is no reasonable explanation for her murder other than to permanently silence her as a witness to the death of her mother.

*                                 *                                *

This five year old child was clad only in her nighty and was clutching her cloth doll when she was brutally and repeatedly attacked by her own father.

Correll should have been executed in January.  What held it up?

Women and Children Turning Themselves in at Border:  In the border city of Laredo, Texas, U.S. Border Patrol agents say they are being sought out by groups of immigrant women and children arriving at the border and turning themselves in, a trend reminiscent of last year's border crisis that "appears to be the beginning of an influx."  Brandon Darby of Breitbart reports that Border officials note that how women and children show up at the border is a sign of a coming surge, because when illegal immigrants seek out agents to turn themselves in rather than attempt to elude authorities, it indicates training and knowledge "that they will be taken care of and ultimately released."  It is believed that dangerous cartels, most notably the Los Zetas and Gulf cartels, are assisting these groups across the border and into the U.S.  Agents report that they are seeing five to ten groups consisting of approximately three to five people per day, mostly Honduran, which they regard as a "significant uptick." 

FL Man to be Executed:  An Orlando man convicted of murdering four members of his family 30 years ago is scheduled to be executed this week, several months after it was postponed for attorneys to litigate the constitutionality of one of the lethal injection sedatives.  NBC Miami reports that 59-year-old Jerry Correll is set to be executed Thursday for the fatal stabbings of his former wife, her mother and sister, and the couple's five-year-old daughter.  Correll's attorneys argued that his history of alcohol use and resulting brain damage would render midazolam, one of the drugs used in executions, ineffective in knocking him unconscious.  They also argued that the time Correll has spent on death row amounts to cruel and unusual punishment.  All arguments were rejected by the Florida Supreme Court.  It will be the state's first execution since January.

Death Sentence Reinstated for OH Murderer:  A federal appeals court reinstated the death sentence last Thursday of an Ohio man who fatally shot his girlfriend, her young child and a university student in a drug and alcohol-fueled rage in 2005.  Eric Heisig of Cleveland reports that in a 2-1 decision, the 6^th Circuit Court of Appeals ruled that 55-year-old James Trimble's case does not need to be re-heard.  Trimble's death sentence was overturned in 2013 by a U.S. district court judge due to concerns regarding a particular member of the jury at the trial, who was chosen as an alternate and "single-mindedly favored the death penalty."  Prosecutor Vic Vigluicci is pleased with the 6^th court's decision to reinstate Trimble's death sentence, noting that he is "pretty much at the end of his rope as far as challenging his convictions."  An execution date has not been set.

I occasionally read liberal criminal law blogs to see which aspect of Amerika, a/k/a the Great Satan, deconstructionist legal thinking is criticizing at the moment.  A defense-oriented blog called Simple Justice recently had this entry to admonish FBI Director Comey for his "chill wind" remarks I blogged about here.

 

[A]dditional scrutiny and criticism of police officers in the wake of highly publicized episodes of police brutality may have led to an increase in violent crime in some cities as officers have become less aggressive.  If the cops have become hesitant to do their jobs in the wake of people being mad when they find out cops are being violent thugs, then that suggests, to me at least, that the cops don't think they can do their jobs without being violent thugs.

And if that is the case, maybe higher crime is the price we pay for cops not being violent thugs. Frankly, I'm OK with that.

What to make of this?

The LA Times was one of the biggest cheerleaders for Prop 47  --  an initiative which, with the Times' and other media support  --  won a decisive victory.  Prop 47 was the Golden State's version of what is known inside the Beltway as "sentencing reform."

In my last post, I warned Republicans to think twice before they use their power in Congress to go soft on crime by, among other things, giving lighter sentences and early release to thousands of heroin and meth traffickers.  As Americans rightly become more concerned about the surging crime they see around them, there will be a price to be paid if Congress gives a naive response. The bill will come due at the polls in a little less than 13 months.

FBI Director James Comey has made two recent speeches where he warns us there is an emerging trend of police officers standing down or demonstrating reluctance to engage criminals because they are worried about sparking a situation similar to the riots in Ferguson, Mo., and Baltimore. Comey's comments do not fit the Obama administration's narrative on crime, and drew criticism from civil rights activists, law enforcement unions and the White House. Well, what do these groups have in common?  That's easy -- they're almost all Democrats, and they may be going down a slippery slope of promoting policies that have the effect of being pro-crime and anti-gun at the same time. Calling Democrats "pro-crime" may sound a tad harsh, but if you are for inhibiting police activity, causing fewer arrests and making mass releases from prison, what else would you call it? The politics of this issue are not fully formed, but if the Democrats don't watch it, they run the risk of being the "pro-crime" party in the United States. The FBI director's observations serve as another reminder that crime is growing as an important issue in the 2016 elections.

Republicans control Congress and will properly be held to account for the legislation it adopts.  If the Republican Party wants to buy responsibility for going softer on crime in the midst of a violent crime wave, that is its choice to make. But it should do so with its eyes open.

Government data on actual crime rates in 2015 will not be released until next year, so it is not possible to know whether Americans' perceptions of rising crime this year reflect what is currently happening in the U.S. In many large cities across the country, violent crime rates have spiked in 2015, suggesting that national crime figures could be on the rise. News reports of this increased violence may account for the uptick in perceived violence in the latest poll.

If you read this without the references to Iran, and without otherwise knowing the source, how many of you could tell it was not from the ACLU?

The Iranian regime is...inviting the families of those killed by law enforcement to attend a discrimination conference in Iran Monday.

The third annual "New Horizons" conference will focus on "police brutality against blacks in America," according to the event announcement.

"We have invited 30 anti-Israel blacks from America to attend," Nader Talebzadeh, the event organizer said in an interview with Cinema Press, an Iranian news outlet.

"Blacks in America are the only group who utilize their right to protest, and Iran is the perfect place to host them and to initiate a direct relationship with this segment of the American population," Talebzadeh said, referring to the 3-day conference as a gathering of "human rights defenders" and "social activists."

Under the terms of the settlement of a lawsuit brought by CJLF on behalf of murder victims' families, today is the day that the California Department of Corrections and Rehabilitation must end its multiyear foot-dragging and initiate the process of establishing a new lethal injection protocol.  As of this writing, I have been told "through the grapevine" that the documents have been transmitted to the Office of Administrative Law, though I have not received official confirmation or copies of the documents.

The administrative process could take a year, but the restoration of justice in the Golden State is now within sight.

Illegal Immigrant Charged with Rape, Kidnapping:  A twice-deported Honduran illegal immigrant was formally charged this month by federal prosecutors for kidnapping his estranged girlfriend and repeatedly raping her at knifepoint during a trip from Missouri to New Jersey.  The AP reports that last May, 30-year-old Jose Amaya-Vasquez kidnapped the woman from a Kansas City parking lot and assaulted her repeatedly in Missouri, Pennsylvania and New Jersey as they traveled with their two-year-old child in tow, holding her against her will by threatening to kill her three children and mother in Honduras.  Amaya-Vasquez first entered the country illegally in 2005, but wasn't caught and deported until July 2014.  He was caught again two months later attempting to reenter the U.S. through Mexico, served 30 days in jail, and was deported and barred from reentering for another 20 years, an order he ignored.

Baltimore Police Begin Wearing Body Cams:  Baltimore equipped over 150 of their police officers with body cameras on Monday as part of a two-month pilot program to test cameras from three vendors before one is chosen for citywide use beginning next year.  Kevin Rector of the Baltimore Sun reports that officers have been instructed to activate their own cameras prior to citizen interactions and upload the footage to a cloud-based storage.  The department decided not to release the program's "draft policy" that was developed to determine how and when officers use their cameras, how officers can respond to citizen requests not to be filmed, how the department plans to use the footage and who will have access to the footage, leaving some citizens concerned over the lack of transparency.  Ultimately, city officials and citizens agree that equipping Baltimore's officers with body cameras will be an asset to the department by helping to "ensure fairness on each side."  It will take approximately two years to equip the city's 3,000 rank-and-file officers.

Police Officers Alerted to Possible Halloween Ambush:  The Federal Bureau of Investigation issued a bulletin to police departments in cities across the country warning that an anarchist group may be planning to ambush officers on Halloween.  Fox News reports that the group, called the National Liberation Militia, encouraged its supporters to create disturbances to lure law enforcement and then attack them ambush-style, in what they dubbed a "Halloween Revolt."  In New York City, where tensions are high after last week's fatal shooting of a police officer and the anti-police rally that followed, NYPD is monitoring the threat.

CA High Court Upholds Death Penalty in 1979 Murder:  The California Supreme Court unanimously upheld the murder conviction and death sentence on Monday of a man who raped and strangled an eight-year-old San Pablo girl in 1979.  The Contra Costa Times reports that 71-year-old Joseph Seferino Cordova was arrested in 2002 for the rape and murder of Cannie Bullock when a cold hit DNA match linked him to evidence found in the girl's body over two decades earlier.  He was convicted of murder and sentenced to death in 2007.  In Cordova's appeal of the murder conviction, he argues that there was an unfair delay in the prosecution because authorities should have suspected him sooner, as he was convicted in Colorado in 1992 for attempted sexual assault on a child and again in 1997 for sexual assault on a child.  That argument was rejected by the California high court on the basis that investigators possessed no evidence connecting Cordova to the crime until the 2002 cold hit.  His challenges to the use of the DNA evidence were also turned down by the court.  He will continue legal challenges to his conviction in the federal court system.

Until his death a few years ago, Prof. James Q. Wilson was arguably the foremost authority in the country on crime and justice issues.  Scott Johnson makes a strong case that the title now belongs to Heather McDonald:

Heather Mac Donald has made herself the most valuable player supporting law enforcement in the teeth of the generation-long movement against it originating in the American Civil Liberties Union. The movement has now culminated in Black Lives Matter and embedded itself inside the Obama administration. Celebrating its twenty-fifth anniversary, City Journal has just published Heather's powerful new essay on the subject under the title "The decriminalization delusion." I asked City Journal editor Brian Anderson for a brief introduction that might persuade readers to click on the link. Brian writes:

In "The Decriminalization Delusion," her deeply researched essay in our brand-new twenty-fifth anniversary issue, Heather Mac Donald shows how the growing movement to reduce incarceration (which has partisans on the right as well as the left) traffics in myths. The biggest myth of all, frequently promoted by President Obama, is that America's prisons and jails are filled with nonviolent drug users, kids who've just had a bad break or two. The reality is that prisons are dominated by thugs and serial thieves, as she noted as well in last week's Congressional testimony. If they're returned in large numbers to city streets, crime is sure to rise--and we're already seeing signs of it happening in California. This is the latest of Mac Donald's major essays on crime and punishment, which will be anthologized in a book in 2016.

Police Scrutiny Linked to Crime Rise, FBI Chief Says:  FBI Director James B. Comey said Friday that he believes heightened scrutiny and criticism of police officers brought on by highly publicized incidents of police brutality over the last year has led to less aggressive policing, resulting in an increase in violent crime in some cities.  Michael S. Schmidt and Matt Apuzzo of the NY Times report that though Comey acknowledges that he lacks hard, specific data at this time to back up his assertion, he has been told by many police leaders that their "officers, who normally would have stopped to question suspicious people, are opting to stay in their patrol cars for fear of having their encounters become worldwide video sensation."  Seattle Police Chief Kathleen O'Toole also notes that after being accused of discriminatory policing and excessive force, the Seattle Police Department instigated less stops, resulting in an uptick in crime in the city.  Comey will address the issue at the International Association of Chiefs of Police this week in Chicago.

The Sentencing Trap:  Mandatory minimum sentences and proactive policing born out of the Reagan era were the greatest public policy successes of the last two generations, according to Paul Mirengoff and William G. Otis in this article in the Weekly Standard, but now a group of senators is attempting to slash many of those mandatory minimums for federal crimes.  The Sentencing Reform and Corrections Act of 2015, sponsored by Sens. Chuck Schumer, Dick Durbin, Lindsey Graham, Mike Lee and Senate Judiciary Chairman Charles Grassley, would shorten mandatory sentences for repeat drug offenders, end the federal "three strikes" mandatory life provision and give federal judges greater license to exercise their discretion.  Mandatory minimums "succeeded spectacularly" in curbing the discretion of federal judges and contributed to 25 to 35 percent of the decline in crime, acknowledged even by some of the policy's harshest critics.  Mirengoff and Otis note that "criminal law exists to protect society from crime, not to protect criminals from jail."  

DHS Will Obey Order to Halt Detentions:  The U.S. Department of Homeland Security (DHS) said, without releasing details, that it is complying with a court order severely limiting its ability to hold illegal immigrant children and families in detention, which required compliance by last Friday.  Stephen Dinan of the Washington Times reports that the court order was the second blow to DHS following Pennsylvania officials' announcement that they will not be renewing the license for one of the key facilities used by U.S. Immigration and Customs Enforcement (ICE) to hold families.  The two moves together "will curtail the few remaining get-tough parts of President Obama's immigration policy."  Last summer marked the beginning of a huge surge of immigrant parents and children from Central American crossing the southern border, peaking at over 20,000 a month in early summer 2014 and spiking again at 10,000 a month in August and September of this year, and the policy of holding illegal immigrant families was a key response to the overwhelming wave.  Judge Dolly M. Gee, however, found that ICE's detention policy violated a decades-old court settlement, ruling that children and their mothers must be sped through the system and released as early as possible, and cannot be held in secure jail-like facilities.  

OSU Crash Suspect Charged With Murder:  The woman arrested after driving her car into the homecoming parade crowd on the campus of Oklahoma State University on Saturday, killing four people and injuring several others, is set to face a judge Monday on a charge of driving under the influence and four charges of second-degree murder.  Fox News reports that 25-year-old Adacia Chambers allegedly plowed her vehicle through a large crowd gathered at the OSU campus in Stillwater for the homecoming football game, killing 23-year-old Nakita Prabhakar Nakal, married couple Bonnie Jean Stone and Marvin Lyle Stone, both 65, and two-year-old Nash Lucas, all of whom died of multiple blunt-force injuries.  Chambers' lawyer told the press that Chambers neither smelled of alcohol when he met with her hours after the crash nor did she appear to be intoxicated, but asserted that "she's suffering from mental illness."  A witness reports seeing Chambers leaving her job at a fast food restaurant only one hour into her shift Saturday morning, but there are mixed reports on her mental state at the time that she left.  She reportedly has diabetes that she doesn't treat as well as insomnia.  In addition to the four fatalities, 46 others were injured, including four critically.

I noted in my post here that  --  as even its proponents do not dispute  --  the current sentencing reductions bill in the Senate would bring about the release of thousands of convicted drug felons without having any very good idea of what they are going to do after they return to the streets, and  --  in some ways even worse  --  no way of finding out.

When President Obama announced his appointment of Jim Comey to be FBI Director, he was greeted with wide acclaim, including from me.  Comey's intelligence, experience and  --  most importantly for that position, independence and political neutrality  --  won him plaudits from all over the spectrum.

Murder rates are soaring this year in many U.S. cities partly because police are holding back from aggressive tactics, fearful of being taped on smartphones and accused of brutality, FBI Director James Comey said on Friday.

When the Smarter Sentencing Act was up last year, one of its major backers  --  and one constantly touted by Democrats and pro-criminal groups  --  was Sen. Ted Cruz of Texas.  Cruz, known as very conservative, occasionally acerbic and brilliant, thought that we had gone too far with incarceration.  But he has now become a key actor opposing a watered-down version of the SSA.  

Speaking at the Judiciary meeting, Cruz said more than 7,000 prisoners could be released.

"None of us know what those 7,082 prisoners did, none of us know what the underlying conduct was that the prosecutors may have plea-bargained down under the existing sentencing laws, and that they may not have entered that plea bargain if they had known that the sentencing laws would be lessened," Cruz said. "When we're seeing violent crime spiking in our cities across the country, I think it would be a serious mistake for the Senate to pass legislation providing for 7,082 convicted criminals potentially to be released early."

Roll Call has this headline today:  "Popular Criminal Justice Bill Poses Political Risk."

At the Senate hearing on the Grassley-Durbin sentencing reductions bill a week ago, Paul Mirengoff picked up this quite revealing moment:

[T]here was an interesting exchange regarding where James Comey, the head of the FBI, stands on this bill. During her testimony, Deputy Attorney General Sally Yates seemed a little cagey on this subject. So Al Franken asked her flat out where Comey stands (it took him two shots to ask this coherently -- Yates had to ask him for clarification after his first attempt).

Yates answered that Comey supports "the goals of sentencing reform."

From Pat Sajak:  "Studies show 92% of stats are manipulated to make political or social points, but if repeated, are believed by 96%."

 Amy Brittain has this story in the Washington Post.  It's bottom line should not be news -- everyone should know this.

To identify trends among fatal shootings by police, The Post studied whether the individuals killed were unarmed or armed with weapons and reviewed the actions they took in the immediate moments before police shot them. The Post has compiled a database of all fatal shootings nationwide by officers in the line of duty in 2015.

[The story describes the case of bank robber Steven Snyder and Trooper Trevor Casper, who shot and killed each other, Snyder firing first.]

But only a small number of the shootings -- roughly 5 percent -- occurred under the kind of circumstances that raise doubt and draw public outcry, according to an analysis by The Washington Post. The vast majority of individuals shot and killed by police officers were, like Snyder, armed with guns and killed after attacking police officers or civilians or making other direct threats.

Jim Pasco, executive director of the national Fraternal Order of Police, said The Post's findings confirm what police officers already know.

Why doesn't everyone already know that?

Astrid Galvan and Justin Pitchard report for Association Press:

Compounding the nation's severe shortage of execution drugs, federal authorities have confiscated shipments of a lethal-injection chemical that Arizona and Texas tried to bring in from abroad, saying such imports are illegal.

The Food and Drug Administration said Friday that it impounded orders of sodium thiopental, an anesthetic that has been used in past executions in combination with drugs that paralyze the muscles and stop the heart. It currently has no legal uses in the U.S.

Multiple errors in the story here. Thiopental has also been used alone.  When Ohio pioneered the single-drug method, it used thiopental.  The drug was used in medical treatment for decades, and there is no prohibition against using it.  No company ever went through the FDA approval process for it, probably because it has been around since before such approvals were required. 

"Courts have concluded that sodium thiopental for the injection in humans is an unapproved drug and may not be imported into the country," FDA spokesman Jeff Ventura said in a statement.

Actually there is only one case.  The "courts," plural, are the District Court and Court of Appeals in that one case, Cook v. FDA. 

That case was wrongly decided, in my opinion.  The Supreme Court 30 years ago decided in Heckler v. Chaney that the FDA has discretion to not enforce the restrictions of the Food, Drug, and Cosmetic Act in a context where it was never meant to apply and where its requirements make no sense.  What is "safe and effective" for an execution drug?  Effective for this purpose is necessarily the ultimate unsafe.  However, the Cook court (the same court the Supreme Court reversed in Heckler) thought the importation law was distinguishable from the domestic use law at issue in Heckler.

The state have partly themselves to blame for not fighting that decision.  Now they need to vigorously take this up to the Supreme Court to have Cook overruled or get Congress to abrogate it by statute.  Prohibiting the importation of the drug that is clearly superior to the midazolam approved in Glossip is just crazy.

For the full background and a legislative proposal, see this paper.

Sari Horwitz reports for the WaPo:

No criminal charges will be filed in the two-year investigation into whether any IRS officials, including Lois Lerner, committed crimes in connection with the handling of tax-exemption applications by conservative groups, the Justice Department announced Friday.

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Rep. Darrell Issa (R-Calif.) criticized the Justice Dept.'s decision not to bring charges as "giving Lois Lerner a free pass" and called it "a low point of accountability in an Administration that is better known for punishing whistleblowers than the abuse and misconduct they expose."

"After stating that their investigation confirms that Tea Party and conservative groups were improperly targeted, they dismiss it merely as a byproduct of gross mismanagement and incompetence - ignoring volumes of evidence in the public record and efforts to obstruct legitimate inquires," Issa said in a statement.

Anti-Cop Rally Held in Times Square:  A mere two days after the gunning down of a New York City police officer by a career criminal in East Harlem, anti-police activists swarmed Times Square Thursday in protest of "police terror and murder."  Fox News reports that the demonstrators, decrying "victims of police murder," displayed pictures of Michael Brown next to "wanted" posters of Darren Wilson, carried black flags with the anarchy symbol, and one man suggested for "the whole justice system to be dismantled."  On Thursday evening, officer Randolph Holder, an African-American and second-generation police officer, was fatally shot after responding to a report of an armed robbery.  "People have had enough of the anti-cop protest," says President of Sergeants Benevolent Association Ed Mullins, describing the protesters as "a naysayer group."

Ole Miss Students Arrested in Alleged Hazing:  Five University of Mississippi students were arrested Friday for the brutal beating of another student earlier in the month.  The AP reports that Jeremy Boyle suffered a concussion, ruptured eardrum and several broken teeth after he was attacked by five people outside the Sigma Pi fraternity house in the early morning hours of Oct. 6.  Tucker Cole Steil, an 18-year-old freshman, was charged Friday with felony assault while four other freshman, all 19, were charged with misdemeanors including simple assault, hazing and theft.  An initial police report does not specify why the assault is being classified as hazing or what items were allegedly stolen.  The victim's father, Brian Boyle, believes his son's attackers did not face stiff enough penalties, saying they were simply "slapped on the wrist."  Many more joined in his outrage after the five attackers mugshots were published in the press, showing all but Steil grinning for the camera.

AB 109er Gets Life for Rape, Kidnapping:  A California man was sentenced Thursday to life in prison without the possibility of parole for the March 2013 kidnapping and rape of a 10-year-old girl, committed while he was released from prison under AB 109, California's prison realignment policy.  Miriam Hernandez of ABC 7 reports that 34-year-old Tobias Dustin Summers was convicted last month on 32 felony counts including sexual assault, kidnapping and burglary for kidnapping a young girl from her bedroom in Northridge at knifepoint and raping her repeatedly before releasing her.  He was arrested in Mexico one month later after checking himself into a rehab facility under a fake name.  Earlier reports reveal that Summers was released under AB 109 in July 2012 and had extensive criminal history that included convictions for kidnapping, robbery, possession of explosives and petty theft.

Malia Zimmerman has this article on Fox News titled 'Obvious Flight Risk': Toddler's brutal beating prompts call to withhold bail from illegal immigrants.  Here is a summary of the story:

In late July 2015, 27-year-old illegal immigrant Francisco Javier Chavez beat the two-year-old daughter of his live-in girlfriend to near-death in San Luis Obispo County, California.  He was arrested and jailed for the crime, but was granted bail by a judge and released from custody.  Two weeks later, on the day of his scheduled arraignment in August, Chavez failed to appear and hasn't been seen since.  Prior to the toddler's brutal beating, Chavez was convicted of assault and drug offenses, arrested for kidnapping, carjacking and child cruelty, and deported to his native Mexico in February 2014 but "found it easy to sneak back across the border."

A few weeks after Chavez's disappearing act, 52-year-old illegal immigrant and unlicensed driver Jose Enrique Vasquez was speeding down a residential street in San Bernardino County when he struck and killed two-year-old toddler Jonathan Montez and fled the scene.  He was arrested two weeks later and granted bail.  Vasquez's rap sheet included spousal abuse, battery of a police officer, driving without a license, driving under the influence, armed robbery, failure to appear in court, possession of false citizenship documents and eight deportations.

How did two illegal immigrants, arrested for horrific crimes, each with criminal histories that were not only serious in nature but indicative of flight risk and danger to public safety, be awarded bail?  Zimmerman notes:

The willingness of judges to grant bail to illegal immigrants charged with serious crimes  compounds the ongoing controversy surrounding so-called sanctuary cities.

NM Police Officer Shot, Suspect Arrested:  An Albuquerque police officer was shot in the head and neck and critically wounded during a traffic stop Wednesday night, and the suspect was arrested.  Blair Miller and Elizabeth Reed of KOB report that at the time of the arrest shortly after the shooting, 34-year-old Davon Lymon had a single handcuff on, indicating that the wounded officer was in the process of arresting Lymon when he was shot.  There was also evidence that the officer attempted to use his Taser.  Lymon has an extensive criminal history, including felony battery and kidnapping charges from a 2014 incident, a 2012 case for robbery and conspiracy that was dismissed, and a guilty plea on voluntary manslaughter, aggravated battery and conspiracy charges in the 2001 murder of 20-year-old Ronald Chanslor Jr., for which he served less than 10.5 years.  Police are still trying to track down a woman who was with Lymon when they were pulled over.  The eight-year veteran of the APD is in critical but stable condition.

Man Confesses to Road-Rage Killing:  A man confessed to Wednesday's fatal shooting of a four-year-old girl that occurred during a road-rage incident on a New Mexico freeway.  Mark Hudetz and Bob Seavey of the AP report that 32-year-old Tony Torrez was arrested Wednesday and admitted to shooting four-year-old Lilly Garcia, who was in the back seat of her father's car when Torrez opened fire at the vehicle, shooting her in the head.  The girl's father asserts that the shooting resulted from road-rage, but it is not yet clear what exactly caused the incident to escalate so violently.  Torrez has been charged with murder, assault, child abuse and other crimes.

This story gives us a glimpse of the future if sentencing reform passes.  It is not pretty.

Tyrone Howard, arrested for the murder of NYPD officer Randolph Holder, is described as a "career criminal" in this report by the NY CBS affiliate and Associated Press.

Police said Howard's arrest record goes back to when he was 13. In sum, the allegations included assault, robbery and a total of nine for the criminal sale of a controlled substance. Howard also had a record of two arrests for the criminal possession of marijuana, and others for public lewdness, criminal trespass and conspiracy.

Last year, Howard was placed in a drug diversion program meant to spare jail time for drug offenders to ease jail overcrowding. Police Commissioner Bill Bratton said that move was an incredibly bad idea.

"If ever there was a candidate for someone not to be diverted, it's this guy," Bratton said. "He's the poster boy for not being diverted."

Easy enough to say after the fact, but did he meet the criteria for these programs as they are actually administered?

NY Police Officer Killed in Shootout:  A New York City police officer was shot and killed Tuesday night during a shootout with a suspect with numerous prior convictions for drug-related offenses and wanted for a September shooting.  Fox News reports that 33-year-old Randolph Holder, a five-year veteran of the force, responded to a report of shots fired and an armed robbery in the city's East Harlem section, which led to a foot chase and an exchange of gunfire with the shooter, 30-year-old Tyrone Howard.  Holder was shot in the forehead and died in the hospital, and Howard suffered a leg wound but was released from the hospital into police custody Wednesday.  Three other men were also taken into custody and questioned.  Holder is the fourth NYPD officer to be killed in the line of duty in 11 months.

AR High Court Leaves Executions on Hold:  The Arkansas Supreme Court, following a ruling that a lower-court judge overstepped his jurisdiction by halting the executions of eight death row inmates, granted its own stay of execution Tuesday for the inmates who are challenging a new state law.  Claudia Lauer of the AP reports that executions will remain on hold to give the death row inmates time to challenge the constitutionality of the state's new secrecy law, which bans the state from disclosing its lethal injection drug supplier.  They argue that where and how the execution drugs are made is necessary to determine if it will lead to cruel and unusual punishment.  The inmates are also challenging the state's three-drug execution protocol, focusing on midazolam, a sedative under scrutiny after being used in executions in Oklahoma, Ohio and Arizona.  Attorney General Leslie Rutledge said, "While the Supreme Court's decision is not about the merits of the case, it is unfortunate that this further delays justice for the victims."

Convicted Cop Killer Sentenced to Death:  A jury condemned a man convicted of the 2011 ambush-style killing of a Texas Sheriff's deputy to death late Tuesday.  Paul Venema, Robert Taylor and Jessica Soto of KSAT report that 45-year-old Mark Anthony Gonzalez was found guilty last week of murdering Bexar County Sheriff's Deputy Kenneth Vann when he pulled up alongside Vann's patrol car in May 2011 and unloaded 46 shots from an assault rifle into the vehicle, killing him.  Gonzalez's request for a competency evaluation was granted by Judge Mary Roman, so he will not be formally sentenced until the evaluation is complete.  According to the prosecuting attorney, the results of the evaluation will not affect the death penalty punishment decided by the jury.

The Europeans love to lecture us for the supposed human-rights violation of punishing murderers sufficiently for the crimes they have committed, but a trial under way in France threatens one of the most fundamental of genuine human rights, freedom of speech.

Marine Le Pen is on trial for making a speech.  What did she say?  Henry Samuel has this article in the London Telegraph.  In 2010, Ms. Le Pen had this to say about mass prayer sessions being held by Muslims in the streets at the time:

"I'm sorry, but for those who really like to talk about the Second World War, if we're talking about occupation, we could talk about that (street prayers), because that is clearly an occupation of the territory," she said during the meeting.

"It is an occupation of sections of the territory, of neighbourhoods in which religious law applies, it is an occupation. There are no tanks, there are no soldiers, but it is an occupation anyhow, and it weighs on people."

Poorly chosen words?  Sure.  A crime?  Not in any country that understands what liberty is all about.

Dorothy Rabinowitz has this column in the WSJ on a movie called "Truth" that could have been produced by Big Brother's Ministry of. 

Ohio Halts Executions Until 2017:  Executions in Ohio are to be delayed until at least 2017 to give prison agencies extra time to secure supplies of hard-to-obtain lethal injection drugs.  Andrew Welsh-Huggins of the AP reports that warrants of reprieve were issued by Gov. John Kasich, allowing executions dates for 11 inmates scheduled to die next year and one scheduled for early 2017 to be pushed back through August 2019.  Franklin County Prosecutor Ron O'Brien expressed his disappointment in the push-back, stating that "these delays come in cases where inmates have long exhausted their appeals and there's no question of their guilt."  Strict supply and distribution restrictions implemented in recent years have made it extremely difficult for death penalty states to secure the proper lethal injection drugs.  Both Oklahoma and Arkansas also halted executions in recent weeks amid investigation and legal challenges.  Update:  A follow-up AP story is here.

Anti-Sanctuary City Bill Faces Key Senate Vote:  The White House threatened to veto a Republican-backed bill that would make it illegal for local governments in so-called sanctuary cities to ignore federal immigration detainers, and would withhold federal funding from cities that fail to cooperate.  Fox News reports that the veto threat of the Stop Sanctuary Cities Act comes ahead of a Senate test vote Tuesday afternoon.  The legislation needs 60 votes in order to advance, meaning that at least a half-dozen Democrat senators must vote in its favor.  In a written statement, the White House claims that the bill fails to offer comprehensive reforms to fix the U.S.'s broken immigration laws, but GOP backers argue that the new legislation is a first critical step toward combating the dangerous practice of ignoring federal immigration law.  The bill comes three months after 32-year-old Kate Steinle was shot and killed in San Francisco by an illegal immigrant with a felony record and five deportations.  San Francisco is just one of hundreds of sanctuary cites in the country.

Update:  The bill was blocked by Senate democrats on a 54-45 vote.

Heather MacDonald Argues Against Sentencing Bill:  Powerline blog has this post by John Hinderaker discussing Manhattan Institute Fellow Heather MacDonald's testimony before the Senate Judiciary Committee opposing S2123, a proposal to reduce federal sentences, which would result in the release of a large number of federal felons.  In her testimony Monday, MacDonald notes that the national narrative claiming that the U.S. prison system is irrationally draconian and racially biased is false and reinforced by a misconceived war on drugs.  She argues that racism, the war on drugs and police officers are responsible for neither mass incarceration nor any disproportionality of blacks in prison; violent crime is.  In her closing statement, she implores the committee to do the public a great service by rebutting the myth that the criminal justice system is racist.  The video recording of her testimony is available in the link provided.  The full hearing is on C-SPAN.

In the wake of the Oregon mass shooting, President Obama proposed new restrictions on firearms that presumptively law-abiding people want to buy.  This has been his reaction before, as the Washington Post notes. At the same time, he is, by his support for the SRCA of 2014 (the Senate's sentencing reform bill), proposing to be more lenient on gun violence when undertaken by felons (typically but not always drug dealers). Specifically, the President and other SRCA backers want dramatically to scale back the penalties of 18 USC 924(c), which at present mandates harsh punishment for carrying or using a gun in the commission of a federal felony,

I did not attend today's hearing on the Senate's sentencing reform legislation because I suspected it would be going through the motions.  This post by my friend (and co-author) Paul Mirengoff confirms my suspicions.

[T]he Committee saw fit to hold only three hours of hearings on [the bill]...,Moreover, the hearings took place on the Monday after a long recess, a nearly unprecedented move by the committee that minimized the number of Senators who were able to attend. By my count, only 11 Senators participated. The Committee has 19 members.

Officer Killed by Injured Suspect in Hospital:  A sheriff's deputy of a small Minnesota town was killed early Sunday at a St. Cloud Hospital when an injured suspect being treated there grabbed his gun and shot him.  Fox News reports that 60-year-old Steven Martin Sandberg of the Aitkin County Sheriff's Department was asked by the hospital to monitor 50-year-old Danny Leroy Hammond, a suspect charged with kidnapping, assault and terroristic threats against his wife and being treated for an undisclosed condition at the hospital.  A struggle ensued between Sandberg and Hammond, who was not handcuffed, and several shots were fired before security guards entered and subdued Hammond with a Taser.  Hammond became unresponsive and died after being taken into custody.  Sandberg had been with the sheriff's department since 1981.

Man Charged with Murder after Calling TV Station:  A Milwaukee man was charged with second-degree murder after calling a Milwaukee television news station and providing a "disturbingly" detailed story of a cold case involving a seventh-grade girl who was murdered over three decades ago.  The AP reports that 50-year-old Jose Ferreira was arrested and charged with the death of 13-year-old Carrie Ann Jopek, who went missing in 1982 while walking home from school and discovered deceased under a porch 17 months later.  The news station, WISN 12 News, didn't elaborate on the details given by Ferreira but alerted police because of what they described as "several red flags."  It is still unclear why Ferreira, who was a teenager at the time of Jopek's disappearance and murder, chose to call the station.  He made his first court appearance over the weekend.

More Carnage in Chicago:  Chicago saw another bloody weekend with 20 wounded and three killed, including a three-year-old boy who was fatally shot in the head accidentally by his six-year-old brother.  The Chicago Tribune reports that as of early Monday, the number of people fatally shot in the city has climbed to 404, 55 more than during the same period last year and 40 more than the year prior.  At least 2,434 people have been shot in the city this year, 347 more than in 2014 and 583 more than in 2013.

Senate Judiciary Takes Up ACLU-Supported Sentencing Bill:  The Senate Judiciary Committee will review a so-called compromise proposal today called the Sentencing Reform and Corrections Act of 2015.  Among the Act's supporters are longtime criminal defendant advocates including the ACLU, the American Bar Association, the NAACP, the Sentencing Project, the recently created Brennan Center and the ultra-liberal Center for American Progress.  The narrative around sentencing reform has created some very strange bedfellows.  Committee Chairman Chuck Grassley is a co-author of the bill (S2123) with Dick Durbin, Charles Schumer and Patrick Leahy,   A CJLF analysis. of the bill notes that it would reduce sentences for a number of criminals, including drug offenders who used a gun and habitual federal felons who used guns. These reforms would apply retroactively, leaving unelected federal judges with broad discretion to determine which inmates should be released from prison.   

CJLF is not a political organization.  The blog entries here support Republican policies more often than Democratic ones, but that is not uniformly the case.  CJLF (and I, as a guest contributor) support policies designed to suppress crime and create fewer crime victims.  If those policies originate with Eric Holder or Loretta Lynch (an opponent of pot legalization), so be it; in some ways, so much the better.

"Push polling" is the name given to poll questions designed by their sponsors to produce the answer they want. Reason Magazine, a libertarian outlet that supports drug legalization, recently reported on a poll commissioned by the pro-offender group Families Against Mandatory Minimums (FAMM).  The magazine breathlessly reports:

A new poll finds that more than three-quarters of Americans favor abolishing mandatory minimum sentences for nonviolent offenders, a big jump in support since the last time the question was asked. The survey, commissioned by Families Against Mandatory Minimums (FAMM) and conducted last week by Public Opinion Strategies, asked 800 registered voters, "Would you favor or oppose eliminating mandatory minimum prison sentences for nonviolent offenders so that judges have the ability to make sentencing decisions on a case‐by‐case basis?" Seventy-seven percent of the respondents thought that was a good idea, compared to 59 percent in 2008.

"Would you favor or oppose eliminating mandatory minimum prison sentences for nonviolent offenders so that judges have the ability to make sentencing decisions on a case‐by‐case basis, knowing that (1) the recidivism rate for offenders is 77%, (2) drug trafficking routinely breeds violence, and (3) judges' 'discretion' will virtually always be used to give more lenient sentences to criminals?"

The pro-sentencing reform side has regularly been touting their support from Republican stalwarts like Newt Gingrich, Rand Paul and Ed Meese.

Last week, a bipartisan group of U.S. senators, keenly aware of simmering voter discontent, stood together to announce a criminal justice reform bill purportedly designed to balance the wishes of the political left's sentencing reform movement and the conservative, "tough on crime" crowd on Capitol Hill.  But, in their effort to produce a compromise reform bill that would appease both sides, these D.C. insiders may again be creating more problems than they solve.

What's worse - and the ultimate sign of Beltway arrogance - is that the bill's sponsors propose passing it with only one short hearing.  In other words, like Obamacare, "We have to pass it to learn what's in it."  We believe that the Congress must hear from the law enforcement community, from prosecutors and judges, and other informed professionals who can fully explore and openly explain the bill's repercussions.  The world's most deliberative body owes no less to its constituents.  In its current form, this sweeping sentencing bill reduces too many mandatory minimum sentences, would result the early release thousands of violent criminals, and could make our streets far more dangerous.  Unless changed, this bill would also give current repeat drug conspirators - who arguably poison thousands of people a year with their illegal products - far less severe sentences. 

The Weekly Standard is a widely read and (I believe) influential magazine among conservatives.  It has a notable following within the Republican Party in our nation's capital.

Joanne Young reports in the Lincoln Journal Star:

Secretary of State John Gale said Friday that Nebraska voters will decide if a law abolishing the death penalty is repealed or retained, and the repeal will be on hold until the vote in November 2016.

*                                         *                                       *

At least 56,942 signatures were required to add the petition referendum to the ballot. Ten percent of registered voters' signatures, or at least 113,883, were required to keep the repeal from going into effect.

"More than 143,000 signatures were verified to our office from counties where signatures were collected, which was more than enough to meet each of those thresholds," explained Gale.

In addition, signatures of more than 5 percent of registered voters were collected in 85 of the state's 93 counties. This meets the constitutional distribution requirement of 38 counties for a referendum petition.

In other words, they not only met the requirements, they cleared the hurdles by wide margins.  Heartiest congratulations to the friends of justice in Nebraska!

Bernie Sanders and the Democratic debate audience may be sick of hearing about Mrs. Clinton's "damn emails," but news sources as diverse as the NYT and Fox still think the story is newsworthy.

Catherine Herridge and Pamela Browne report that the FBI is now focused on whether there was a violation of the Espionage Act, 18 U.S.C. §793(f).  That is a felony punishable by up to 10 years in prison, far more serious than the misdemeanor I noted back in August.  I have copied the text of the statute at the end of this post.

Matt Apuzzo and Michael Schmidt at the NYT note the reaction of FBI agents to President Obama's statement that "national security was [not] endangered."

Those statements angered F.B.I. agents who have been working for months to determine whether Ms. Clinton's email setup had in fact put any of the nation's secrets at risk, according to current and former law enforcement officials.

Investigators have not reached any conclusions about whether the information on the server had been compromised or whether to recommend charges, according to the law enforcement officials. But to investigators, it sounded as if Mr. Obama had already decided the answers to their questions and cleared anyone involved of wrongdoing.

OH Man on Electronic Monitor Raped Teen:  An Ohio teen was held captive for months and raped by a sex offender on electronic monitoring for a 2014 abduction case.  Lisa Cornwell of the AP reports that 20-year-old Cody Lee Jackson came into contact with the 14-year-old girl on Facebook in February while he was on electronic monitoring for a 2014 case in which he held two females against their will.  Jackson arranged for a taxi to deliver the girl to him on several occasions to have sexual intercourse.  By March, he was holding her captive in his apartment and refusing to let her leave, setting stringent rules for her and punishing her physically.  Jackson reportedly complied with all conditions of his monitoring and had a 20-year-old woman take the teen out of the apartment when he was being visited by parole officers.  After entering a guilty plea for the abduction case, Jackson was taken off monitoring and fled to Utah before his sentencing in August.  The teen was returned safely to her family and Jackson was captured and returned to Ohio last weekend.  He faces federal charges of coercion and enticement of a minor to engage in illegal sexual activity and production of child pornography, and state charges of rape, kidnapping, unlawful sexual contact with a minor and interference with custody.

Illegal Alien Sexual Predator Might be Released into U.S.:  A Mexican-national in the U.S. illegally, who pleaded guilty on Wednesday to charges of secretly filming a woman in a Texas Walmart bathroom, might be released into the U.S. under President Obama's Priority Enforcement Program (PEP).  Bob Price of Breitbart reports that Jose Santos Argueta was arrested in February and sentenced Wednesday to 270 days in jail, but the 243 days he has already spent behind bars since his arrest will be credited toward his sentence, meaning he could be released as early as next month despite an immigrant hold placed on him by federal authorities.  The PEP program, dubbed "Catch and Release 2.0" by a Breitbart reporter, replaced a more aggressive congressionally-mandated program that governed how U.S. Immigration and Customs Enforcement (ICE) officials dealt with criminal aliens. Texas sheriffs are concerned, stating that several people like Argueta have been released into American communities even after being turned over to federal authorities for deportation.

OK Halts all Executions until 2016:  Following the discovery that the incorrect drug was used to execute an inmate in January, Oklahoma Attorney General Scott Pruitt has agreed to delay all executions until 2016 when an investigation is completed.  The AP reports that a recent autopsy report revealed that the state used potassium acetate in the January execution of Charles Warner, contradicting a public statement that potassium chloride is the specified final drug in Oklahoma's three-drug lethal injection protocol.  The supplier that sent the potassium chloride instead of the potassium acetate says that the two drugs are "medically interchangeable" at the same quantity, though other pharmaceutical experts assert that potassium chloride is absorbed more quickly in the body and thus, more acetate would have to be administered to achieve the same effect.  A federal judge will need to approve the request made by AG Pruitt.

On Tuesday, while discussing the summary affirmance by the U.S. Supreme Court in Missud v. Court of Appeal of Cal., No. 15-5601, I engaged in some speculation as to why five Justices of the Supreme Court might have recused themselves.  Missud's certiorari petition is now available on the web.  It is nice to see one's speculation confirmed.  Here is Missud's List of Parties section:

All interested parties do not appear on the cover's caption. Well over 100 state & federal judge$ who already sold decisions, rigged hearings, railroaded actions, or otherwise scuttled a case, appeal, or writ should now be terrified of going to prison for at least Honest Services Fraud, 18 USC §201 Corruption, §1962 Racketeering, and §2381 Treason & Overthrow of Government.³

319 Million Americans who've had their constitutionally-mandated neutral judiciary commandeered by corporation$, $pecial intere$t$ & corrupt judge$ want their "government of and by the people" back, and are hence interested parties too.

Footnote 3 is a long list of judges ending in, you guessed it, "John Roberts, Clarence Thomas, Antonin Scalia, Anthony Kennedy, Samuel Alito."

James Ragland has this column in the Dallas Morning News.  He begins, "Let the record show that I was against the death penalty before I was for it."

He then recites some of the usual anti-DP arguments (which we have refuted, but I won't go into that now) as reasons one could argue for getting rid of the death penalty.

I tend to lean that way, too.

Until, that is, a case like Licho Escamilla's comes along, shattering my fragile and idealistic belief that there's a better way to derive justice.

There is much controversy today about sentencing murderers to life in prison without possibility of parole (LWOP).  The Supreme Court's decision in Roper v. Simmons -- permanently taking the death penalty off the table for under-18 murderers -- was still warm out of the laser printer when the drive to ban LWOP for them shifted into high gear.

Why not hold out a possibility of parole?  A sentence of life with parole for a killer often means a life sentence to opposing parole for the murder victim's family.  I have represented victims' families in a number of cases.  (See, e.g., this brief.)  In each case, they have been intensely interested in seeing the killer receive the full punishment he was sentenced to, whether that be death or truly spending the rest of his life in prison.

Now the Daily Beast has an interview with a particularly famous survivor, Yoko Ono:

Andrew Dugan has this report for the Gallup Poll with the above title.

Still, there is no denying that the opponents have made inroads.  The number of people answering "not in favor" to Gallup's poorly worded basic question is the highest it has been since before Furman v. Georgia in 1972, when the Supreme Court's audacious act of judicial activism precipitated a sharp drop in opposition and a sharp jump in support.

On the better-worded, but still less than ideal, question of whether the death penalty is presently imposed too often, about right, or not often enough, the sum of about right and not enough is still 2/3 of the population.  That remains a powerful supermajority in favor.  Dugan writes:

By many metrics -- the number of states that have banned the death penalty, the number of executions carried out or the actual population of inmates currently on death row -- the death penalty appears to be losing popularity in statehouses and courthouses across the country. But the public at large continues to support the use of the death penalty. A majority continue to assess the punishment as applied fairly, and a plurality wish it were applied more often.

The biggest problem is that the other side has all the megaphones.  Academia enforces adherence to anti-death-penalty dogma.  We saw that when the economists who dared to publish studies showing deterrence were hounded out of the field.  In journalism, balanced reporting is the exception, and propaganda pieces on the anti side dominate.

Yet despite all that, the side of justice still has two-thirds.  It's both discouraging and heartening at the side time.

CA Inmate Firefighting Unit has Included Violent Inmates for Years:  Two days after the AP reported that California corrections officials were considering expanding the criteria for inmate firefighters to include inmates with violent backgrounds, and one day after the AP reported that expansion would no longer be considered, corrections officials admitted Wednesday that 40 percent of the state's inmate firefighting crew have previous convictions for violent offenses.  The AP reports that corrections spokesman Jeffrey Callison says inmates with violent histories have been serving on the unit since the 1990s, and claims that the corrections department provided inaccurate information to the AP earlier this week because of "differing definitions of what constitutes a violent background."  As of September 30, 1,441 of the 3,732 inmate firefighters had committed a crime deemed violent under the California penal code.  Mike Lopez, president of the union representing state firefighters, has called for a full investigation.

Chaos in Immigration Courts:  Adult illegal immigrants currently wait an average of 1,071days (about three years) to receive a deportation hearing due to immigration courts being overly clogged by the surge of minors that flooded over the U.S.-Mexico border beginning last year.  Paul Bedard of the Washington Examiner reports that according to the report published by the Migration Policy Institute, between the start of the spring 2014 surge and now, approximately 102,000 unaccompanied children from Central America and Mexico were arrested at the border, though a staggering 61 percent of cases involving minors were still unresolved as of August 31.  Further, 86 percent, or 1 in 6, minors ordered deported fail to show up for legal hearings, leaving most deportation orders unexecuted.  In fiscal year 2014, 13,204 minors were ordered removed, but only 1,863 were actually deported.

Prof. Doug Berman saw the same Post article I blogged about this morning, and, as is typical, he has a ready reply.  In his post, he says:

[The Post reporter] is quite right to highlight the statistical reality that lots more imprisoned offenders are behind bars for violent offenses than for drug crimes.  But he fails to acknowledge that a considerable amount of violent crime is related to black market turf wars and that the failure to treat effectively drug addictions and related woes often drive property crimes.  American legal and social history should provide a ready reminder of these realities: violent and property crimes (and incarceration rates) spiked considerably during alcohol Prohibition not because of greater alcohol use but due to enhanced incentives for otherwise law-abiding people to profit in the black market from others' desire for a drink.

No as to both.

Given the relatively small share of drug offenders, ending the war on drugs would not significantly alter the racial disparity in incarceration rates, contrary to the conventional wisdom.

Blacks make up 37.5 percent of all state prisoners, about triple their share of the population as a whole, according to the Justice Department. If we released all 208,000 people currently in state prison on a drug charge, the proportion of African Americans in state prison would still be 37 percent. 

Emily Dalesio reports for AP:

A North Carolina man accused of trying to join al-Qaida-linked fighters in Syria should be forcibly injected with anti-psychotic medication to see if that will make him competent to face trial, a federal judge ruled Tuesday.

Basit Sheikh faces serious charges that need a trial and prison doctors could medicate him with limited side effects, U.S. District Judge Terrence Boyle said in his order. He put the order on hold, however, to allow an expected appeal. Court orders to forcibly medicate a suspect before trial are rare, but at least four similar cases in the appeals court region that includes North Carolina were later overturned.

*                                          *                                     *

Mexican Nationals Charged in TX Sex Trafficking Ring:  Seven Mexican nationals were convicted in Texas after admitting to enticing young girls and women from Mexico to be smuggled illegally into the U.S. across the porous southern border, and then using physical threats to force them to engage in prostitution in Houston-area bars.  Brandon Darby of Breitbart reports that an indictment against the leader, Gerardo Salazar, states that he operated a transnational sex trafficking ring with five associates, taking advantage of the open border to exploit Mexican women and young girls whom they lured with the hopes of finding work and a better life in the U.S.  The indictments against Salazar and his associates date back to 2005, the year Salazar fled to Mexico.  He was captured in 2010 and extradited to the U.S. in 2014.  He pleaded guilty to four charges of harboring illegal aliens for the purpose of prostitution.

CA Scraps Plan to Let Violent Inmates Fight Fires:  One day after it was first proposed, California corrections officials dropped a plan Tuesday that would have included inmates with violent backgrounds in the state's firefighting unit.  The AP reports that although inmates convicted of violent crimes such as assault and robbery will no longer be considered, the state still plans to expand the program to allow inmates who have up to seven years left to serve on their sentences rather than the current five.  California's inmate firefighting unit is the nation's oldest and largest, but its membership has been dwindling in recent years because lower-level offenders are being sent to county jails instead of state prisons.

Serial Killer Held in 4 OH Slayings:  An Ohio truck driver was indicted Tuesday on a multitude of charges including aggravated murder in the killings of one person in 1997 and three people this year.  CBS News reports that Robert Rembert was arrested last month after DNA evidence matched him with the rape and strangulation deaths of Rena Mae Payne in 1997 and Kimberly Hall in June of this year.  He is also charged with the shooting deaths of his cousin Jerry Rembert and another man, Morgan Nietzel, at his home in Cleveland one day prior to his September 21 arrest.  In 1998, Rembert was sentenced to six years after pleading guilty to voluntary manslaughter in the December 1997 fatal shooting of Dadren Lewis.  Rembert currently faces 10 counts of aggravated murder, as well as charges of kidnapping, rape, aggravated robbery, grand theft and gross abuse of a corpse.

Lie about them.

The Los Angeles Police Department continued to struggle in accurately classifying serious assaults last year, according to an audit released Tuesday.

The audit comes after a Times investigation last year revealed that the department had routinely misclassified serious assaults as minor offenses that weren't counted in the city's crime rate.

The new review examined one crime category: aggravated assault. Based on sampling done by auditors, officials estimate that there were actually 23% more aggravated assaults in 2014 than the LAPD originally reported.

Jack Gillum and Stephen Braun report for the Associated Press (emphasis added):

The private e-mail server running in Hillary Clinton's home basement when she was secretary of state was connected to the Internet in ways that made it more vulnerable to hackers while using software that could have been exploited, according to data and documents reviewed by The Associated Press.

Clinton's server, which handled her personal and State Department correspondence, appeared to allow users to connect openly over the Internet to control it remotely, according to detailed records compiled in 2012. Experts said the Microsoft remote desktop service wasn't intended for such use without additional protective measures, and was the subject of U.S. government and industry warnings at the time over attacks from even low-skilled intruders.

Records show that Clinton additionally operated two more devices on her home network in Chappaqua, N.Y., that also were directly accessible from the Internet. One contained similar remote-control software that also has suffered from security vulnerabilities, known as Virtual Network Computing, and the other appeared to be configured to run websites.

Seriously?  The Secretary of State's communications conducted over a server using notoriously hackable off-the-shelf Microsoft software?  This is even more grossly reckless than I thought.

"That's total amateur hour," said Marc Maiffret, who has founded two cybersecurity companies. He said permitting remote-access connections directly over the Internet would be the result of someone choosing convenience over security or failing to understand the risks. "Real enterprise-class security, with teams dedicated to these things, would not do this," he said.

In his book Admirable Evasions author and psychiatrist Theodore Dalrymple has these truisms:

It is more usual [in our modern world], however, to attribute good character to those those who behave badly than bad character to those who behave well (the latter propensity often being the consequence of envy).  I once heard a fond mother of a boy aged fifteen, who had burgled more than two hundred houses, say of him on the radio that "he's a good boy really," that is to say, a lad with a heart of gold, despite the considerable amount of misery to others that each of his crimes had almost certainty caused.  No doubt it is a natural and to some degree necessary thing for a mother to indulge in special pleading on behalf of her son, but it is absurd that it should be accorded any intellectual respect.

And:

The European Court of Human Rights recently ruled that whole-life sentences to prison are against Man's fundamental rights because they eliminate the possibility of repentance and redemption (known in the trade as rehabilitation).  Thus, the judges of a court that is supreme in matters relating to supposed human rights for a continent on which, within living memory, tens of millions of people have been systematically starved or abused to death or put to death industrially on an unimaginably vast scale, could conceive of no crime so terrible that the person who committed it was beyond earthly redemption.  On this basis, someone like Himmler, had he not committed suicide, or Beria, had he not been shot by his erstwhile colleagues, would have been eligible for parole, provided only that they showed reformed character by, for example, making toys for children or Braille books for the blind.

It has become standard issue that pot is, if not a form of "medicine," at least not harmful.  

The U.S. Supreme Court heard argument today in Montgomery v. Louisiana, No. 14-280.  The "merits" question is whether Miller v. Alabama (2012) -- which held that states can continue to sentence juvenile murders to life without parole but must give consideration to a lesser sentence -- applies retroactively so as to require resentencing of every killer sentenced to LWOP under a mandatory statute, even if the judgment was final on appeal years or even decades ago.

Before getting to that, though, there is a threshold question of the U.S. Supreme Court's jurisdiction to review the state court's decision not to apply Miller retroactively in a state habeas corpus case.  Does the state have to follow federal retroactivity law?  One of the two shoes dropped seven years ago in Danforth v. Minnesota (2008).  A state can, if it likes, apply a new rule retroactively in its own courts even if the federal rule of Teague v. Lane says the rule is not retroactive.  We have been waiting for the second shoe to drop ever since.

Justice Breyer asked in today's argument:

Danforth was the case saying that the states could be more generous. It wasn't a case -- this is a case that's the opposite of being generous: Can they be more stingy? And I cannot find anything in -- in Harlan -- maybe I'll read it again, but I can't find anything there, nor can I find anything in Danforth that answers the question.

I did not brief this question in the CJLF brief, believing the base was covered by others.  Considering that the question was discussed more than the merits in today's argument, maybe I should have.

CA May Allow Violent Inmate Firefighters:  Officials in California are considering an expansion of the state's inmate firefighting unit to allow inmates with violent backgrounds to work outside prison walls fighting wildfires, sparking a debate over public safety.  The AP reports that beginning next year, inmates convicted of violent offenses such as assault and robbery will be permitted to participate in the program, as well as inmates who have up to seven years left on their sentences instead of the current five.  Until now, even employing only nonviolent offenders resulted in hundreds of assaults and batteries, weapons possessions, indecent exposures and other crimes among inmate firefighters over the last decade.  Some officials are also concerned with the 43 unfenced, minimum-security camps scattered across the state that the inmates will be housed in, which with non-violent felons, averaged nine escapes each year.  California's inmate firefighting unit is the largest and oldest in the nation, and has dropped from 4,400 members to 3,800, under current reduced sentencing laws. 

Chicago Mayor Blames Crime Rise on Timid Police:  Chicago Mayor Rahm Emanuel says that Chicago police officers are becoming "fetal" out of fear that they will face career-ending consequences for actions taken during arrests, citing officers' second-guessing as the cause of the city's uptick in violence.  John Byrne of the Chicago Tribune reports that during a meeting with Attorney General Loretta Lynch in Washington, D.C., Emanuel contended that "what happened post-Baltimore, what happened post-Ferguson is having an impact."  He stressed that officers need to be encouraged to be proactive and engage in community policing without concern that their jobs are on the line.  The St. Louis County Police Department cites similar reasons for the police shortage they are facing. 

Republicans to Ram Criminal Justice Reform through Quickly:  Senate Republicans, in tune with the nation's crime rise and overly scrutinized police, have partnered with President Obama to liberalize federal sentencing policies and plan to get the criminal justice reform through "quickly."  Jeffrey H. Anderson of the Weekly Standard reports that the Senate Judiciary Committee has announced that it will hold a hearing on Monday October 19, and while amendments will be allowed, "bipartisan, bicameral support" will be maintained in order to move the bill along quickly.  Senator Jeff Sessions spoke on the bill Thursday, warning that we must be careful and cautious when considering legislation to cut prison sentences for drug traffickers and violent criminals.

And now, for something completely different ...

In today's orders list, the U.S. Supreme Court did not take up any new cases for full briefing and argument.  They did summarily dispose of a few cases.  Several were on the common ground that the lower court needs to take another look after the Supreme Court decided a similar issue in another case.  Dog bites man -- not news.  The court also refused to take up a long list of cases without stating a reason, also completely routine.

Missud v. Court of Appeal of Cal., No. 15-5601 is decidedly different.  The Court lacks a quorum because five Justices are recused, and by statute that results in a summary affirmance.  How did five Justices get recused?

Chandra Bozelko has this op-ed in the WSJ, including the above statement.  The opening line is, "I made $1.75 a day in prison and I never felt exploited."

"Exploited" is a favorite term of people stuck in the past who still view the world through Karl Marx's glasses.  One might as well try to do advanced mathematics with Roman numerals or study cutting-edge astronomy with Galileo's telescope.

Although I am skeptical of the claimed reduction in recidivism rates with most programs, I have long believed that prison employment is a program we need more of, and Bozelko provides strong personal, albeit anecdotal, support:

The clamor over low inmate pay neglects one essential fact, one that is central to the current preoccupation with justice reform: Inmate work programs are the best known way to rehabilitate prisoners. Honest work elevates people regardless of what they are paid. Work humanizes inmates; employed inmates seem less like caged animals. While they paid me less than two dollars a day, my supervisors valued me as a person and an employee, at a time when no one else did, including myself.

Memphis Police Officer Shot, Charges Filed:  Charges were filed Monday in the Sunday shooting death of an off-duty Memphis police officer.  Fox News reports that officer Terrence Olridge was fatally shot by his neighbor, 36-year-old Lorenzo Clark, after encountering him outside his home while he was on his way to work.  His four-month pregnant wife was inside when the two men exchanged gun fire and a reported 15 gunshots rang out.  Olridge started as a basic recruit with the Memphis Police Department in September 2014 and is the fourth Memphis police officer to be fatally shot in slightly more than four years.  Clark has so far been charged with felony possession of a firearm in connection with the shooting.  The nature of the encounter is unclear, though a woman in the neighborhood told police that she witnessed Clark in a previous hostile encounter with a different neighbor. 

Violent Crime Rises in Sacramento:  Violent crime in California's capital has increased 24 percent through August and property crime has risen eight percent, hitting the city's high-poverty areas the hardest.  Phillip Reese of the Sac Bee reports that through August, Sacramento police had responded to 2,511 violent crimes, eight of which were homicides, the most experienced in the city since 2010.  The numbers are even higher in certain low-income neighborhoods, where violent crime has soared 35 percent and property crime rose 24 percent.  Thus far in 2015, there have been 35 homicides, amounting to the most recorded by early October since 2008.  Police say that it's too early to determine the cause of the increase (though Proposition 47 is suspected) but city officials remain vigilant, reaching out to community leaders, putting more police on the street and tracking hot spots. 

Two Killed in CA with Stolen Gun:  Three young drifters with no known addresses used a handgun stolen from an unlocked car in San Francisco to rob and kill two people in separate incidents before fleeing to Oregon.  The AP reports that 23-year-old Morrison Haze Lampley, 24-year-old Sean Michael Angold and 18-year-old Lila Scott Alligood were arrested at an Oregon soup kitchen when regular diners, who are low-income or homeless, told an administrator that the three suspects were attempting to sell a Volkswagen Jetta station wagon, which belonged to one of the victims.  The handgun was reported stolen on October 1.  The body of 23-year-old Canadian tourist Audrey Carey was discovered October 3 in Golden Gate Park with a gunshot to her head, and 67-year-old yoga instructor Steve Carter was gunned down on a Marin County hiking trail on October 5.  Police believe the stolen gun was used in both crimes.  The three suspects are being held without bail in Oregon and will be returned to California to face charges. 

Gov. Brown Signs Bill that Could Let Illegal Aliens Vote:  California Gov. Jerry Brown signed a bill Saturday which will automatically register people to vote through the DMV, resulting in illegal aliens being allowed to vote if the Secretary of State's office fails to properly verify eligibility.  William Bigelow of Breitbart reports that Assembly Bill 1461, or the New Motor Vehicle Act, has been criticized as "a path to state sanctioned voter fraud," while Secretary of State Alex Padilla argues that the increase in voters will "make our democracy stronger."  A survey by the Public Policy Institute earlier this year found that among unregistered adults in the state, 49 percent lean Democratic and 22 percent lean Republican, highlighting Gov. Brown's strategy to cement the Democratic Party in the state.  Stephen Frank of the California Political Review warns that the bill will likely reduce voter turnout because "honest people will stop voting since illegal aliens will out vote them."

Steven Mazie, Supreme Court correspondent for the Economist, has this article in the WaPo, noting, "when the justices disagree, they rarely split neatly along ideological lines. In fact, of the 66 cases decided in the term that ended in June, only five resulted in a razor's-edge split along the left-right fault line."

All well and good, but I was struck by this line: "Ultraconservative Justice Clarence Thomas joined the four liberals against his right-wing brethren to allow Texas to refuse to issue a license plate featuring the Confederate battle flag."

Ultraconservative?  By what standard?

A little less than a year ago, California adopted its version of sentencing reform, called Prop 47.  Like other versions, it didn't change the criminal's behavior and wasn't designed to (which then and there should tell you something).  Instead, it changed only the state's reaction to that behavior, mostly by re-classifying a wide swath of felonies as misdemeanors.  For many, many purposes, that is de facto de-criminalizing them.

Robberies up 23 percent in San Francisco. Property theft up 11 percent in Los Angeles. Certain categories of crime rising 20 percent in Lake Tahoe, 36 percent in La Mirada, 22 percent in Chico and 68 percent in Desert Hot Springs.

Here is a bit of good news.  Don Thompson reports for AP:

SACRAMENTO, Calif. (AP) -- A U.S. airman hailed as a hero for helping thwart a European terror attack was upgraded from serious to fair condition Friday as he recovered from three stab wounds suffered in a late-night attack near a bar, UC Davis Medical Center officials said Friday, indicating that his vital signs are stable and normal and he is conscious.

Airman 1st Class Spencer Stone, 23, "is awake, able to get out of bed and in good spirits," the hospital said in a statement.

Folks opposed to laws that highly restrict or even ban firearm possession by law-abiding citizens often point to the potential of an armed citizen preventing a crime of violence.  The other side says that is very rare.

It does happen, though, and Eugene Volokh at the Volokh Conspiracy has a fine example.  The subsequent criminal case also points out a controversial aspect of the felony murder rule.

As the story begins, it is eerily similar to the Wichita Massacre case argued in the U.S. Supreme Court last week.

One of the interesting (and in my view, curious) aspects of the battle over sentencing reform is that conservatives are split (e.g., Sen. Grassley on one side and Sen. Sessions on the other).

Mayor: 70% of LA Homeless on Hard Drugs:  Los Angeles Mayor Eric Garcetti has declared a state of emergency as the city's homeless population has reached a record of 46,000.  An article by Seth Abramovitch in the Hollywood Reporter notes that many homeless are migrating from downtown's Skid Row to Westside neighborhoods like Pacific Palisades and Brentwood where many are living on beaches, in parks, backyards, vehicles and hillsides.  According to the Mayor the increase in homeless is comprised of veterans with mental health issues, emancipated foster youth and criminal offenders left on the streets by California's "Safe Neighborhoods and Schools Act" (Proposition 47) passed by voters last year.  Up to 70% are addicted to meth or other hard drugs.  Local law enforcement can do little under current circumstances, "If we are harder on the homeless, we usually get sued by advocates," said Garcetti.   A recent Los Angeles Times story also reports that violent and property crime are up significantly in LA.

Texas Murderer Sentenced to Death:  A Brazos County jury has decided that 22-year-old Gabriel Hall should receive the death penalty for the 2011 killing of a College Station man and seriously injuring his wife.  AP writer Michael Graczyk reports that this is the first death sentence given to a murderer in Texas this year.  The article is focused on the fact that there have been fewer death sentences nationally, "especially compared to the 1990s," as noted by death penalty opponent Richard Dieter, who failed to mention that there were also over 56,000 more murders in the US and  5,700 more in Texas during that decade.  Why did the jury sentence Hall to death instead of life without parole?  Sometimes the details of the crime provide the answer. This story from KTBX in College Station reports how Hall, then 18, shot and stabbed to death 68-year-old retired Texas A&M Professor Edwin Shaar in his garage, then walked into the kitchen and stabbed Shaar's 69-year-old wheelchair-bound wife Linda in the throat.  

Devlin Barrett has an article in the WSJ with the above headline in the printed paper. The online version, as of this writing, is headlined "Inadequate Data Hampers Law Enforcement in Fight Against Rising Crime."  I preferred the original.

As law-enforcement officials struggle to cope with a sudden, unexplained rise in violent crime in many cities, they find themselves hampered by an outdated system for gathering national crime data that leaves them blind on such basic questions as how many murders happened last month.

The article notes two deficiencies -- the long lag between crime and the official statistics and an undercount due to counting only the most serious crime in each incident.

Another serious deficiency with official crime counts is that they are only "crimes known to the police."  A crime committed but not reported does not show up in the official "crime rate."

This deficiency is particularly serious because there may be a toxic interaction between criminal justice policies and the statistics we use to measure the results, as SF Chron columnist Debra Saunders noted last week.

There is much attention being paid today to a report that Oklahoma used potassium acetate instead of potassium chloride in the execution of Charles Warner in January.  As near as I can determine, it is much ado about not much.

Abby Broyles of KFOR, who witnessed the execution, has this story.  She quotes a statement by Gov. Mary Fallin that DOC was advised that the two substances were "medically interchangeable."

It makes sense that they would be.  Both are potassium salts.  When such a salt dissolves, the positive potassium ion separates from the negative ion.  The purpose is to produce a massive increase of potassium ion in the blood, which causes cardiac arrest, and it should not matter what the negative ion is as long as it is nothing with a major biological effect of its own.

Sean Murphy of AP has this story, saying, "After the first drug was administered during Warner's execution, he said, 'My body is on fire.' But he showed no other obvious signs of distress."  That is inconsistent with Broyles' report which said that Warner's statement was made before any of the drugs were injected.  Both reporters were witnesses.  Whichever version is correct, he certainly made his statement before receiving the potassium, the drug that would cause painful burning if the inmate is not first sedated.

Swapping another drug for the one in the protocol should not be done, and the state is correct to hold executions until this is all straightened out, but there is no reason to believe that the swap caused any actual problem in the Warner execution.

Sanctuary Cities Grow to 340:  A report released Thursday by the Center for Immigration Studies reveals that the list of sanctuary cities in the U.S. has surpassed 340, shielding an average of 1,000 illegal immigrants a month from deportation last year, and over 2,000 of those have been arrested for more crimes.  Stephen Dinan of the Washington Times reports that Santa Clara County Jail in California, for example, has released 1,349 immigrants that U.S. Immigration and Customs Enforcement (ICE) specifically requested be held for pickup and deportation.  Over 16,000 illegal immigrants intended for deportation were released between January and June of this year.  The Homeland Security Secretary says that sanctuary cities' refusal to cooperate with federal authorities is one reason why deportations in fiscal year 2015, which ended October 1, are at their lowest level in 10 years and down 50 percent from their peak in 2012.  New legislation, passed in the House, would require the Secretary to publicly list sanctuary cities, withhold federal grant money from those jurisdictions, and create a mandatory five-year minimum prison sentence for any illegal immigrant found guilty of twice sneaking into the U.S. or sneaking back after receiving a felony conviction. 

Cop Lured from Vehicle, Beaten:  A California police officer was lured from his vehicle by a man and beaten early Monday while another man filmed the assault and encouraged the attacker.  Fox News reports that 20-year-old Juan Gomez approached the Sacramento police officer sitting in his cruiser around 12:30 a.m. and told him that there was a man with a gun nearby, and immediately assaulted the officer when he stepped out of the vehicle, attempting to take his firearm.  Another man, 35-year-old Jamaral Lee, saw the incident and began recording it on his cellphone, ignoring the officer's cries for help and shouting, "You can fight, but don't grab the officer's gun!"  to Gomez.  The officer was eventually aided by private security guards and treated at the hospital and released.  Gomez is charged with assault and battery on a police officer and resisting arrest, and Lee faces charges of assault and battery of a police officer, advocating injury to a police officer and resisting arrest.

Chicago: Mass Shooting Capital of America:  Chicago is America's mass shooting capital, and some of the city's worst neighborhoods are more dangerous to live in than the world's most murderous countries.  Justin Glawe of the Daily Beast reports that Chicago's West Garfield Park, with a population of 18,000, had 21 murders last year...a homicide rate of 116 per 100,000 residents.  The world homicide capitol, Honduras, has a homicide rate of just 90.  Other lethal Chicago neighborhoods including West Englewood, Englewood, Chatham and South Chicago, beat out the world's deadly nations of Venezuela, Belize, El Salvador and Guatemala.  A huge problem for the city is mass shootings - defined as having three or more victims - having had 192 as of July 25 of this year.  However, the outrage over these incidents is nonexistent compared to other mass shootings, such as last week's massacre in Roseburg, Oregon.  And for every person killed by gunfire in the Chicago, another four are shot and survive.  Illegal guns are a major contributor to the bloodshed, and Chicago police say that they recover an illegal firearm every 75 minutes. According to the Brady Campaign to Prevent Gun Violence, Illinois ranks 8th among the ten states with the most restrictive gun laws.    

As we have noted a number of times on this blog, the question wording in polls about the death penalty produces widely varying results.  The most common failure in poll questions on this subject is to ask a question that implies the respondent is being asked to specify a punishment for murder generally rather than the worst murders.  Punishment for the worst murders is the actual policy question to be decided.  Virtually no one today is arguing we should execute all murderers, yet poll respondents are regularly asked that.

Now we see a ray of light in the darkness.  The High Point University/News & Record Poll asked a question that is worded far better than the big boys at Gallup et al. seem to be able to manage.  A sample of 446 North Carolina residents were asked between Sept. 26 and Oct. 1:

"Thinking in general about your views of the death penalty, are there any crimes for which you believe people should receive the death penalty?"

Three Kansas capital cases were argued in two parts in the U.S. Supreme Court today.  The cases are those of the Carr brothers (the Wichita Massacre case) and of another murderer named Gleason.  The first hour considered an issue common to all three cases, the Kansas Supreme Court's strange decision that the standard jury instruction in the case is unconstitutional because it imposes a burden of proof beyond a reasonable doubt on the prosecution for the aggravating circumstances but does not tell the jury there is any burden of proof on the defendant for the mitigating circumstances.  The second hour considered the issue of trying the Carr brothers together.  The transcripts are here and here.

One indication that a lower court decision is tripe is when the lawyer for a respondent spends most of his argument trying to convince the Supreme Court to duck the issue.  That is what Jeffrey Green tried to do representing Gleason and Jonathan Carr, claiming that the Kansas Supreme Court did not really decide this case under the Eighth Amendment but instead under state law, which the U.S. Supreme Court has no jurisdiction to review.  He did not make much headway.  The high court decided long ago in Michigan v. Long that if a state court decision is unclear on whether its basis is state or federal they will assume it is federal.  The Chief notes at page 34, with a note of exasperation, "The whole point of Michigan against Long was so that we wouldn't have to do what we've been doing for the last 10 minutes, which is to debate whether a decision that mentions both Federal and State law is based on Federal or State law."  Not a good sign for the defendants.

The Attorney General of Kansas argued this part personally for the people of that state.  Such personal appearances are sometimes criticized by people who say the office holders should step back and leave argument to the career pros, but they do send a message of the importance of the matter, and oral argument is mostly for show anyway.

Border Vulnerable to Islamic State Terrorists:  The director of the Texas Department of Public Safety warned that the porous southern border may leave Americans vulnerable to a jihadist attack, citing persons with a "terrorism presence" having been caught infiltrating the Texas-Mexico border.  Kellan Howell of the Washington Times reports that Steven McCraw, speaking at the annual Texas Border Coalition meeting, said that an unsecure border with Mexico leaves Texas and other border states extremely vulnerable, "as is provides criminals and would-be terrorists from around the world a reliable means" to enter the nation undetected.  He affirmed that suspected Islamic State terrorists had successfully crossed the border into the U.S.

DOJ to Release 2,000 Criminal Aliens:  Border state Sheriffs are concerned with the U.S. Department of Justice's (DOJ) plan to release 6,000 federal inmates from prison, 2,000 of whom are foreign citizens.  Lana Shadwick of Breitbart reports that Jackson County, Texas Sheriff Aj (Andy) Louderback is hesitant to believe the federal government's claims that those 2,000 illegal immigrants "will be deported quickly," and will instead be protected under numerous categories outlined in the Priority Enforcement Program (PEP), which takes a select class of criminal aliens no longer picked up by U.S. Immigration and Customs Enforcement (ICE) and forces sheriffs to release them from county jails and into communities.  Louderback argues that "by creating PEP exceptions, the federal government is refusing to follow federal immigration laws that are on the books."  In the last year, deportations have fallen to the lowest level since 2006, and deportations for criminal aliens have also dropped to the lowest level since President Obama took office.  The 6,000 inmates will be released between October 30^th and November 2^nd.  Another 8,550 are eligible for release between November 1, 2015 and November 1, 2016.

Oregon Shooter's Mother Aware of his Mental Issues:  The mother of the man who stormed his community college classroom in Oregon last Thursday, gunning down his teacher and eight classmates, was aware of both his interest with guns and his mental health issues.  Suman Varandani of the International Business Times reports that Laurel Harper, a nurse and mother of gunman Chris Harper-Mercer, acknowledged in online posts that her son struggled with mental illness, but encouraged his fascination with guns and had several firearms stored in their home.  Harper allegedly confided in colleagues about the challenges raising her son, who she claims had Asperger's syndrome, and spoke of plans to place him in a psychiatric hospital in California before moving to Oregon in 2013.  She elaborated to the colleague that "the big problem is, when doesn't take his medication."

Former U.S. Attorney General Michael B. Mukasey, quoted in the WSJ:

How did we get to where we are today? Even before the 2008 election, the warning signs were there. The man who was to become U.S. Attorney General told an audience during the election campaign that the Bush administration had permitted abuses in fighting terrorism. He said there would have to be "a reckoning." During his subsequent tenure, in a moment of unguarded candor, he described himself as the President's "wingman." From the standpoint of the Justice Department, I can't overstate the demoralizing significance of an attorney general saying something like that. If I had ever described myself, during my tenure, as President Bush's wingman, I would have expected to come back to find the Justice Department building empty and a pile of resignations on my desk. Even Attorney General Robert Kennedy, President Kennedy's brother, to my knowledge never described himself in such terms. Yes, the attorney general is a member of the administration--but his principal responsibility is to provide neutral advice on what the law requires, not to fly in political formation.

Is the US Attorney in Manhattan bucking for the Well, Duh! Award?

Rebecca Davis O'Brien, Christopher M. Matthews and Farnaz Fassihi report in the WSJ:

A former president of the United Nations General Assembly and five others were accused Tuesday of engaging in a bribery scheme, part of what federal authorities said was a wider probe into corruption in the top ranks of the international body.

"We will be asking, is bribery business as usual at the U.N.?" said Preet Bharara, the U.S. attorney in Manhattan, at a news conference announcing the charges.

The more difficult question comes later in the story:

Messrs. Ashe and Lorenzo could be shielded by diplomatic immunity in certain circumstances, but the complaint said they can be prosecuted for crimes outside the scope of their official positions.

That is not my understanding of diplomatic immunity, but I don't pretend any expertise on the subject.

The Department of Justice is set to undertake the biggest legalized jailbreak in history.  That is not an exaggeration; it's a close paraphrase of today's Washington Post article, which begins:

TX Murderer to be Executed:  A Texas death row inmate is set to be executed Tuesday for the 1998 robbery and fatal shooting of a man for $8.  The AP reports that a clemency request was denied last week and no late appeals have been filed on behalf of 35-year-old Juan Martin Garcia, who robbed and fatally shot 36-year-old Hugh Solano in Houston 17 years ago when he was 18-years old.  Although Garcia admits to shooting Solano four times in the head and neck as Solano was getting into his car to go to work, he asserts that he should not face capital punishment because the jurors in his trial unfairly penalized him for refusing to take the witness stand in his own defense.  Following his arrest one week after Solano's death, evidence and testimony tied Garcia to at least eight aggravated robberies and two attempted capital murders in the weeks before and after the crime.  Garcia will be the 11^th inmate executed in Texas this year.

A Brutal September in Chicago:  September has come to an end in Chicago, marked by more homicides than any other month and the second-most shootings.  Kyle Bentle and Abe Epton of the Chicago Tribune report that according to the Tribune's data, last month was the city's deadliest September since 2002, with over 50 people shot in two consecutive weekends.  Four charts compiled by Tribune reporters from data about shooting victims show shootings by month and year, age and sex of shooting victims and homicides by month.  Most of the shootings and homicides are clustered in the city's south and west sides.

Previously Deported Criminal Alien Arrested at Border:  A previously deported criminal alien from El Salvador, convicted and deported for the kidnap and rape of a 12-year-old girl at gunpoint, was arrested trying to cross the porous U.S.-Mexico border into Texas.  Ildefonso Ortiz of Breitbart reports that 34-year-old Rene Vladimir Escobar Bautista was arrested near the border city of Hidalgo over the weekend as he attempted to re-enter the U.S.  Escobar was deported in 2003 for kidnapping a 12-year-old girl at gunpoint from her Long Island, New York home and taking her to North Carolina in 2001.  He pleaded guilty and spent 16 months in prison before being deported to his native El Salvador.  Several criminal alien sexual predators who have been previously deported have been arrested near the Texas border in recent weeks.

Oregon Shooter Leaves Behind Manifesto:  In a manifesto left behind by the man who gunned down nine people at a community college in Oregon last week before committing suicide, he ranted about not having a girlfriend and being surrounded by "crazy" people, referring to himself as "the sane one."  The AP reports that the couple-pages long manifesto was penned by 26-year-old Christopher Harper-Mercer, who opened fire at Umpqua Community College in Roseburg, Ore. last Thursday, killing nine and injuring nine others before killing himself after a shootout with police.  Harper-Mercer's mother has told investigators that her son was struggling with mental health issues, though the claim cannot be disclosed publicly due to the ongoing investigation.  Classes will resume at the college next week.

Even among people who deal with violent crime all the time, there are some crimes of such revolting depravity, such pure evil, that they knock us back in our chairs just reading about them.  The United States Supreme Court considers such a case tomorrow.  It is the notorious case of brothers Jonathan and Reginald Carr, whose crime spree culminated in a case called the Wichita Massacre.

The horrifying facts of the case are described briefly in CJLF's brief and press release.

The Federalist Society will have a "courthouse steps" teleforum.  Details at the end of this post.
 
The Kansas Supreme Court bent over backwards to overturn the supremely well-deserved sentences of the Carr brothers.  Along with a dubious holding on severance of the cases, the majority's far-fetched theory is that because the jury was instructed to find other matters beyond a reasonable doubt, the fact that the jury was not expressly instructed on the burden of proof for mitigation meant that the jury might have turned this around and imposed a similar burden on the defendant to prove mitigating circumstances.  Under this scenario, a jury supposedly might have ignored mitigation proved by a preponderance but not beyond a reasonable doubt and then unanimously agreed to a sentence that the jurors would not have thought just if they had considered those circumstances.

"Preposterous" barely describes this convoluted logic.

About a year ago, I noted a controversy about the U.S. Supreme Court making changes to its opinions without any public announcement. The Court has responded and made a change to the way it makes changes.

There is now a "revised" column in the slip opinions page.  When a slip opinion has been modified, the date of the modification will appear in that column, and it will link to a version of the opinion highlighting the changes and showing both old and new text.  A change-highlighted version of Miller v. Alabama is here as a sample.

A "what's new" summary of this and other changes that apparently came from the Court is available at SCOTUSblog, but oddly not on the Court's own website, at least not anywhere I can find it.

Gov. Brown Signs Racial Profiling Bill, Vetoes Date Rape Measure:  California Gov. Jerry Brown has signed a racial profiling bill and vetoed a measure involving date rape this Saturday.  David Siders of the Sac Bee reports that the racial profiling legislation, Assembly Bill 953, requires police officers to record the reason for each stop they make, the result and perceived race, gender and age of the individual stopped in order to "illuminate evidence of racial profiling."  Law enforcement groups argue that such a requirement burdens officers with needless paperwork, keeping them from their necessary duties.  Brown also vetoed 11 crime-related bills, including Senate Bill 333, which would have made it a felony to possess date-rape drugs with the intent to commit a sexual assault.  Under last year's ballot measure, Proposition 47, simple possession of date-rape drugs such as Rohypnol was reduced from a wobbler to a misdemeanor, igniting fierce opposition from prosecutors, law enforcement and the community. 

Post-Freddie Gray, Violence Still Plagues Baltimore:  Despite a slight drop, shootings and homicides are still high in Baltimore, where racial tensions and distrust in police continue to loom nearly six months after the death of an unarmed black man in police custody.  Edmund DeMarche of Fox News reports that although homicides in September represented a drop from the record-breaking four-decade high of 43 recorded in May and 45 seen in July, locals are still angry and police officers still demoralized post-Freddie Gray, whose death in April sparked rioting, looting and the arrests of six Baltimore police officers.  Lt. Gene Ryan, president of the Baltimore Fraternal Order of Police, says that following the April unrest, police officers are "being attacked at every different angle and they're not getting the support they need and deserve" from Mayor Stephanie Rawlings-Blake and other civic leaders.  University of Maryland law professor Michael Greenberger and other experts add that Baltimore's "less assertive" police force, stemming from either resentment, their treatment by city leaders or fear that they too can face arrest for doing their jobs, is reflecting unfavorably in the city's crime statistics.  

Police Challenged by Cyber Banging:  A younger generation of "cyber bangers" is challenging the LAPD as crime and gang violence, particularly in South Los Angeles, continues to climb.  Sandy Banks of the LA Times has this column describing how gangbangers of today have become bolder and less predictable, evolving "in ways that make them harder to rein in."  Banks explains that in the past, gangs were hierarchical, less impulsive and feuded over turf and colors; however, presently, gang shootings are more often linked to spats exchanged on social media - referred to as "cyber banging" - which has gang interventionists, police and the community baffled.  In August, half of the city's homicides occurred in South Los Angeles, 70 percent are believed to be gang-related, and LAPD's tried-and-true tactics of relying on veteran gang members, increasing patrols and engaging in community policing are not having the same effect on the younger generation of gang members as it has on those years before.  LAPD Deputy Chief Bill Scott says the department is working on recruiting new intervention crews of street-savvy, online sleuths to scour social media posts and decipher signs of trouble before violence is carried out on the streets.

My title is, obviously, a takeoff on the old rhyme, "An apple a day keeps the doctor away."

The Constitution guarantees counsel for defendants, but what does that mean beyond appointment of a person who is a member of the bar?  Will a hopeless incompetent who does nothing for the client do?  No.  Is an absolutely perfect performance that no one can find the slightest flaw in, even in hindsight, required?  No.  Where do we draw the line between those two extremes?  It's complicated.

The standard was set in the landmark case of Strickland v. Washington (1984), a case won by my good friend Carolyn Snurkowski of the Florida AG's Office.  As summarized by the Supreme Court today in Maryland v. Kulbicki, "Counsel is unconstitutionally ineffective if his performance is both deficient,meaning his errors are 'so serious' that he no longer functions as 'counsel,' and prejudicial, meaning his errors deprive the defendant of a fair trial."

No longer functioning as counsel is a very low standard, a performance so dismal that very few such claims should be granted, and the bar should proceed to revoke the license or at least impose some discipline on any lawyer who actually botches a client's case that badly.  That is how it was intended, but that is not how it is applied in practice.  Instead, courts often use ineffectiveness claims as ways to overturn verdicts they feel uncomfortable about, even though the lawyer actually did a decent job.

Today in Kulbicki, the U.S. Supreme Court reversed a decision of the highest court of Maryland in severe terms.   "Applying this standard in name only, the Court of Appeals of Maryland held that James Kulbicki's defense attorneys were unconstitutionally ineffective. We summarily reverse."

We are endlessly lectured about how "alternatives to incarceration" will cost less, keep us just as safe, and improve rehabilitation.

More than 240 inmates have slipped away from federal custody in the past three years while traveling to halfway houses, including several who committed bank robberies and a carjacking while on the lam, according to documents obtained by The Associated Press.

I previously linked a Washington Post story about the execution of serial killer and multiple rapist Alfred Prieto.  I want to quote some parts of it, however, to illustrate a number of points retentionists stress, but are mostly deep-sixed by the mainstream media.  My hat is off to the Post for allowing this story to be printed.

[T]he state of Virginia handles the execution of convicted murderers in a precise and professional way. Similarly, serial killer Alfredo R. Prieto lived the final moments of his life with his own version of professionalism, maintaining the same passive look he held through his three long trials in Fairfax, and defiantly refusing to show any remorse or regret as he issued a rehearsed final statement similar to a pro athlete being interviewed after a game. He thanked his "supporters" and then snapped, "Get it over with."

Obama Politicizes Gun Control Again:  In comments Thursday following the mass shooting that claimed nine lives at a rural community college in Oregon, President Obama used the tragedy as a platform to call for stricter gun control laws.  Susan Jones of CNS News reports that the president blasted "those who oppose any kind of common-sense gun legislation," as well as the National Rifle Association. Fox News' Bill O'Reilly, on his Thursday night program, directly criticized Obama for politicizing high-profile mass shootings while ignoring the bloodshed taking place in his hometown of Chicago.  On Thursday morning, 26-year-old Christopher Harper Mercer, described as an angry man with disdain for organized religion and seeking notoriety, opened fire on the quiet Umpqua Community College Campus in Roseburg, killing nine and injuring seven.  According to witnesses, he was allegedly targeting Christians before he was shot and killed during a gunfire exchange with police.  The former president of the college says that the school has only one unarmed security guard on duty at a time.

Two Found Guilty in Border Patrol Agent's Murder:  Two men were found guilty Thursday of murdering, with guns supplied by the U.S. government, a U.S. Border Patrol agent, whose death exposed the bungled gun-running Fast and Furious operation.  Aalia Shaheed of Fox News reports that Ivan Soto-Barraza and Jesus Sanchez-Meza, who were part of a five-man cartel rip crew patrolling the Arizona desert targeting drug smugglers to rob at gunpoint, were found guilty on nine charges, including first-degree murder and attempted armed robbery in the death of agent Brian Terry in 2010.  Terry's death revealed the botched Fast and Furious operation in which agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives allowed criminals to purchase guns with the intention of tracking them.  However, the agency lost track of many of the guns, including two AK47-style weapons discovered at the scene of Terry's death.  The two men face life sentences at their next court appearance in December.

UCR Omits Border Crimes, Paints Skewed Picture:  The FBI released its annual Uniform Crime Report (UCR) this week, summarizing violent crime statistics across the county in 2014, but omitted kidnapping and drug- or cartel-related crimes in their assessment, painting a misleading picture of the U.S.-Mexico border.  Sylvia Longmire of Breitbart reports that UCR data does not track crimes that are unique to the border, fooling the average reader into thinking that border communities, specifically in Texas, are "quiet with little criminal activity."  Data used to generate the UCR is voluntarily submitted by thousands of law enforcement agencies and no standards exist for how each agency classifies a particular crime, nor is there an audit process to ensure data uniformity.  Even if there were such standards and processes, the UCR still precludes kidnapping and drug-trafficking related crimes, which are common along the southern border.  Also, the UCR relies on crimes reported to the police and therefore, drug smugglers and illegal immigrants who are targets of border violence are far less likely to report crimes to law enforcement for fear of arrest and deportation.  Longmire notes that crime statistics are merely a starting point in crime analysis and "can be skewed many ways to prove a point or further an agenda."

Two CJLF Cases to be Heard by Supreme Court this Fall:  The U.S. Supreme Court begins its new term - which runs from October through July - on Monday, with arguments being heard on Monday, Tuesday and Wednesday of the first two weeks of the month.  Legal Director Kent S. Scheidegger has this article on The Federalist Society outlining the criminal cases on the high court's docket, two of which CJLF filed amicus briefs in support of the states,  Kansas v. Carr and Montgomery v. Lousiana.  Carr will be heard on Wednesday, October 7 and Montgomery will be heard on Tuesday, October 13.

"Machinery of death" is a favorite phrase of the abolitionist movement.  It was invented by Justice Harry Blackmun in order to justify his constitutionally obtuse, mostly lonely, and ever-so-sanctimonious opposition to the death penalty.

Atlantic, a frenetically anti-death penalty magazine, published a piece titled, "Virginia Executes Alfredo Prieto With Appeal Pending."  It starts:

The commonwealth of Virginia executed Alfredo Prieto at 9:17 p.m. on Thursday night, and, according to BuzzFeed's Chris Geidner, Prieto still had an appeal pending before the Supreme Court at the time of his death.

Virginia did not violate the law by executing Prieto, as Geidner notes, because no stay of execution was in force when the death warrant became active at 9 p.m. But states typically wait for the final ruling from the Supreme Court before beginning the execution process.

Among the provisions of the sentencing reform bill introduced yesterday is one that would alleviate sentences imposed under what is called 924(c) "stacking.'  At present, under 18 USC 924(c), a defendant who carries a gun in the course of committing a drug felony is subject to a 10 year mandatory minimum term for the firearm, in addition to the sentence for the drugs.  For a second and subsequent 924(c) offense, he is subject to consecutive mandatory terms of 25 years.  It was this sort of "stacking" that resulted in the decades-long prison term for repeat pot dealer Weldon Angelos. Angelos undertook a number of drug deals wearing, but not using, a pistol. (The judge in Angelos' case, now-Prof. Paul Cassell, believed the sentence was too harsh, and, on the facts of that case, I agree, as I have said).

Prof. Doug Berman is one of the leading sentencing experts in the country and a strong backer of the "reform" bill introduced yesterday in the Senate.  On the theory that information is more useful than ideology, I fully endorse his suggestion that we get some help from the Sentencing Commission in understanding the bill's many provisions.  As Doug says:

The full bill, which runs 141 pages and is available at this link, has so many notable parts;  I am already struggling to figure out what is what and to assess the good, the bad and the ugly of what can be found in this massive legislative proposal.  Moreover, without some basic (and not-so-basic) data about how many past, present and future federal cases could be readily impacted by various provisions, it is hard to know which are the most consequential elements of the bill from just a basic reading to the SRCA text .

Ergo, the question in the title of this post, which jumped into my head as I started to think about what to think about SRCA 2015.  I am sure it would take a very long time for the US Sentencing Commission to do a comprehensive analysis of all that appears in the SRCA 2015.  But I suspect the USSC and its terrific research staff might be able to compose quickly one of its terrific "Quick Facts" publications to aid those of us trying to better figure out what needs still be to figured out about this massive bill.

Notably and fittingly, in the press event announcing the SRCA 2015, Senator Chuck Schumer astutely described the sentencing and prison reform problem as a kind of Rubik's Cube with lots of interlocking and moving parts.  I am sincerely hopeful the US Sentencing Commission will commit itself in the days ahead to helping all of us fans of federal sentencing reform better figure out whether and how the different-colored pieces of the proposed SRCA 2015 match up.

Tom Jackman reports in the WaPo, "We watched what appeared to be an utterly painless death for a man who brutally killed nine people and devastated nine families, and here is how it unfolded:"

A federal judge in Richmond, Virginia has lifted the temporary restraining order imposed yesterday by another judge in Alexandria, permitting the execution of serial killer Alfredo Prieto.  He is scheduled for execution for the murders of Rachael Raver and Warren Fulton in Fairfax County, Virginia.  He is also sentenced to death in California for the murder of Yvette Woodruff in San Bernardino County.  Tom Jackman has this story in the WaPo.

Prieto's claim that he is intellectually disabled was tried to a jury and rejected unanimously by them in one of his Virginia trials.  On retrial of the penalty, his lawyers considered the claim so weak they didn't even try again.

Prieto really should have been executed in California.  See Bill's post earlier today, noting a column by Debra Saunders.  The California case had already been through direct appeal and a first state habeas, the primary reviews a defendant is entitled to, before Virginia even began.  After the Virginia case was finally solved by DNA many years after the murder, that state tried the case twice and got it all the way through direct appeal, state habeas, and federal habeas while the state and federal courts in California were still stalling on secondary reviews.

A final claim in the case is that Virginia's refusal (or inability) to say where Texas got the pentobarbital it supplied to Virginia was a problem.  If the drug has been tested for potency and purity, it doesn't matter where it came from. 

Sterility is not required.  That is a concern in medicine to prevent postoperative infections, but the whole point of this procedure is that there is no post-op.  The form of pentobarbital sold for euthanasia of dogs under the trade name Euthasol says right in the product insert that it is not sterile.

The U.S. Supreme Court denied review here and here.  No dissents are noted.

Update:  Mission accomplished.  David Savage has this story in the LA Times.

Illinois Officer Shot With Own Weapon:  The lead investigator in the case of the fatal shooting of an Illinois officer last month announced Thursday that the officer was shot twice with his own weapon and evidence indicates signs of a struggle.  Don Babwin of the AP reports that it was also revealed that nine unidentified DNA samples were found at the scene, and detectives are analyzing more than 100 samples taken since the officer's death to identify the sources of some of those samples.  On September 1, 52-year-old Fox Lake police Lt. Charles Gliniewicz was found shot to death after he radioed that he was in pursuit of three suspicious men in a remote area, sparking a massive manhunt that turned up nothing.  Questions have surrounded the investigation after the county coroner said he was unable to definitively rule the manner of death a homicide, suicide or accident, but detectives emphasized that the investigation is being conducted "strictly" as a homicide probe.

SC Officer Fatally Shot at Mall:  A police officer was fatally shot responding to a report of a suspicious person at a South Carolina mall on Wednesday.  The AP reports that 32-year-old Forest Acres Officer Greg Alia and another officer responded to the call and attempted to talk to the suspect, who then fled on foot through the Richland Mall in suburban Columbia.  Officer Alia pursued and confronted the suspect, there was a struggle and he was shot, according to Forest Acres police Chief Gene Sealy.  The suspect is in custody and being questioned, but the department has yet to release details about his identity or the charges against him.  Alia was a seven-year veteran of the force whose wife had recently had a baby.

LA Convict Accidentally Released:  A Louisiana murderer who was accidentally released from prison last week is still at large, and the Louisiana Department of Public Safety and Crime Stoppers have offered cash rewards for any information that leads to his capture.  Fox News reports that 32-year-old Benjueil Johnson, serving a 40-year sentence for manslaughter and being a felon in possession of a firearm, was mistakenly released on good behavior from Dixon Correctional Institute for prior charges on September 23 before being transferred to East Feliciana Parish jail to be booked on misdemeanor count of battery against a correctional officer.  After processing, Johnson was able to be post bond and walk free because the manslaughter conviction did not appear in his file.  Law enforcement was unaware of Johnson's release until Monday when someone who recognized him reported it.

MO's Juvenile Sex Offender Registry Challenged:  Attorneys for a 14-year-old Missouri juvenile who assaulted and attempted to rape his adult adoptive sister say that requiring him to register as a sex offender for life constitutes cruel and unusual punishment, contradicting the "rehabilitate and reintegrate" goal of the juvenile justice system.  Tony Rizzo of the Kansas City Star reports that the attorneys have filed an appeal for the juvenile, regarded only as S.C., arguing that juveniles should not be subjected to the same registration requirements as adult sex offenders.  However, the Missouri attorney general's office contests that they are within federal law in requiring certain juvenile offenders to register, citing the vicious nature of S.C.'s attempted rape on his 41-year-old sister.  The ACLU of Missouri has filed a brief in support of the juvenile, arguing that lifetime sex offender registration for juveniles increase their changes of recidivism by isolating them from important networks.  Nevertheless, appeals courts in the state "have found that sex offender registry laws are not criminal punishments, but are civil in nature and are designed with the 'rational basis' of giving the public information about individuals who pose a 'significant risk.'"