November 2015 Archives

Teens, Confessions, and Culpability

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Maura Dolan has this article in the L.A. Times about the controversies regarding police questioning of teenagers and, in a few cases, children about serious crimes.  Some people are arguing for bright-line rules to the effect that police can never question young people below some arbitrary cut-off age without a lawyer present, which for all practical purposes means they can't question them at all.  As Justice Robert Jackson noted long ago, "any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances."*

A related issue is the culpability of minors for crimes.  The story says,

Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation, said he would like Miranda rights to be eliminated and all interrogations videotaped. He called the brain research about adolescents' legal culpability "a bunch of hooey."
Not quite.  There is research about adolescents' brain development and mental capacity, and then there are extrapolations from that research about adolescents' legal culpability.  It is the latter that I said are "a bunch of hooey."  For example, there is no doubt that a process of central nervous system development called myelination is a work in progress in the late teen years.  However, there is a great deal of doubt whether this fact and other products of research support the kinds of sweeping conclusions in cases such as Graham v. Florida and Miller v. Alabama.

On the Miranda point, the Supreme Court in Miranda expressly said that the procedures it laid out were not the last word, and it would be competent for legislatures to substitute other procedures to protect the right against compelled self-incrimination.  Video recording of interrogations is an alternative that should be considered.

News Scan

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First Freddie Gray Trial Begins:  Stakes are high in Baltimore as the trial for one of six police officers indicted in the April death of Freddie Gray begins Monday with jury selection.  Juliet Linderman of the AP reports that Officer William Porter, accused of failing to get medical help for Gray during a 45-minute trip in a police van, faces charges of assault, manslaughter, reckless endangerment and misconduct in office.  The five other officers will be tried separately beginning in January, and trials are expected to last until the spring.  Gray, a 25-year-old black man, was arrested in April, initially handcuffed and placed in the back of the police van, and later had his legs shackled while the van made several stops over the course of 45 minutes.  He was discovered unresponsive and died one week later of a spinal injury, sparking rioting and unrest that continues to plague the city.  An acquittal could result in further protests and unrest while a conviction could damage the city's police department.  "The future of the city is at stake," says Police Commissioner Kevin Davis.

Less Debate, More Action Needed for Refugees:  In a radio interview, border Congressman Henry Cueller (D-Laredo) said that rather than debate over the fate of Syrian refugees, the U.S. needs a plan of action for handling the coming flood of people from the Middle East, as they are already showing up at the southern border.  WOAI reports that two groups of Syrians, mainly families, have already entered the U.S. by crossing over from Mexico and claiming political asylum, adding to an increased surge in asylum-seekers from Central America as well as a large number of Cubans flooding into the U.S.   When refugees arrive at the southern border, standard procedure places them in detention centers, though many are released on bonds or ankle monitors after only a few months.  Cueller suggests that the U.S. collaborate with Mexico to make it more difficult for refugees to gain access to the U.S., noting that they successfully stopped 174,000 people last year attempting to enter the U.S.

U of C Threat Linked to Laquan McDonald Shooting:  An online threat causing the cancellation of classes and closure of the University of Chicago Hyde Park campus Monday has resulted in one person being taken into custody.  Jodi S. Cohen and Lolly Bowean of the Chicago Tribune report that the arrested individual is a student at the University of Illinois at Chicago, and posted a threat online outlining his plan to shoot and kill 16 white students and/or staff members in the campus quad, citing last year's fatal shooting of 17-year-old black teenager Laquan McDonald by white Chicago police officer Jason Van Dyke.  Van Dyke shot McDonald 16 times and was charged last week with first-degree murder.  

Burglar Stuck in Chimney Died when Fire is Lit:  A burglar stuck in the chimney of a California home died after the homeowner lit a fire in the fireplace.  Fox News reports that 19-year-old Cody Caldwell is believed to have climbed into the chimney Friday night to burgle the Central California home, and was stuck for almost 24 hours when the male homeowner returned home Saturday afternoon and lit a fire.  The homeowner attempted to put out the fire when he heard Caldwell screaming, and when firefighters arrived and dismantled the chimney, it was too late.  Caldwell died of burns and smoke inhalation.  His criminal history was not immediately available.

News Scan

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Police Agencies Lose Military Gear:  Surplus military equipment which has been donated to local police agencies since 1997, is being recalled by the Obama Administration.  Adam Shaw of Fox News reports that an Executive Order issued by the President following the 2014 riots in Ferguson, Mo, requires police departments to return armored personnel carriers, weapons, ammunition, and protective gear in order to reduce concerns about the militarization of police, which he said gives people the impression that they are an "occupying force."  Sheriffs are speaking out, noting that the personnel carriers protect officers and are used for rescues.  One Alabama Sheriff told Fox News " As has been demonstrated in Paris....the response to those kind of attacks in the U.S. will be local law enforcement and whatever resources we have on hand now will be what we can bring to the table if that happens."   

Missouri High Court Overturns Murder Conviction:  In a 4-3 ruling announced yesterday, the Missouri Supreme Court overturned the murder conviction and death sentence of Reginald Clemons for the 1991 rape and murder of two sisters.  Jim Salter of the Associated Press reports that Clemons was less than two weeks from execution in 2009 when a federal appeals court granted a stay based upon concerns about the lethal injection process.  A special master appointed in 2012 to review the case reported that he found no direct evidence of Clemons' innocence but determined that procedural errors and the withholding of evidence by prosecutors were not the harmless errors characterized by earlier court rulings.  During that review Clemons took the fifth 30 times.  Clemons and three accomplices were found guilty of the 1991 robbery, gang-rape and the murder of two sisters by throwing them off an abandoned bridge.  The victims' cousin, a firefighter, who witnessed the attack, was forced to jump off the bridge, but he survived to identify Clemons and his accomplices.  The opinion is this case (Reginald Clemons v. Steve Larkin) is worth reading.
The tape of the Federalist Society teleforum I had the opportunity to join with Judge Alex Kozinski is not yet available.  When it is, I'll post the link.

In the meantime, I can repeat only half the discussion, to wit, my opening statement.  (Judge Kozinski did not prepare a written opening).

Our debate continued what has become a national examination of some extremely important topics in criminal law, including what some call "incarceration nation," imploding crime rates, policing and police behavior, the reliability of forensic evidence, the increasing number of non-mens rea offenses, prosecutorial immunity, and plea bargaining, among many others.

Although the Judge and I had our disagreements, the breadth and sharpness of his knowledge was something to behold.

My opening is below.
Opinion Research Corporation, polling Nov. 19 - 22, asked a sample of 1008 adults the following:  "Thinking about the criminal justice system, which comes closer to your view  --  that we have too many drug traffickers in prison for too long, or that we don't do enough to keep drug traffickers off the street?"

The result was not close:  58% said we're not doing enough to keep traffickers off the street, while only half that number, 30%, said we have too many traffickers in prison for too long.

The poll is devastating to the sentencing "reform" bills now pending in Congress. Those bills would reduce sentences for drug convictions (the Senate bill would do so retroactively as well), and the overwhelming majority of prison sentences imposed for federal drug offenses are for trafficking, not mere possession or use.

In other words, the American public, by a bigger margin than in any Presidential election in history, wants more done to keep traffickers off the street, not more done to put them back there.

Memo to Congress:  Wake up.

News Scan

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4th Jury Sentences Oregon Killer to Death:  For the 4th time since 1989, an Oregon jury has sentenced serial murderer Dayton Leroy Rogers to death.  Steven DuBois of the Associated Press reports that Rodgers was convicted of the 1980s torture and murder of eight women.  He was dubbed the Molalla Forest Killer because he dumped his victim's bodies in a forest near the small town of Molalla.  Rogers has also received a life sentence for the 1987 stabbing murder of a Portland woman and has been tied to the murder of another woman whose body was discovered in 2013.  The Oregon Supreme Court has overturned Rogers' death sentence in 1992, 2000, and 2012.  Perhaps that court should just do away with those annoying sentencing juries.

Lifelong Child Predator Gets a Break in PA:  An Allentown man who began his criminal career with the 1965 rapes of an 8-year-old boy with cerebral palsy and his 9-year-old brother, will serve a short term in county jail before release on probation for stalking a 13-year-old boy earlier this year.  Laurie Mason Schroeder of the Morning Call reports that Clyde Ruppel had previously completed a 15 year prison sentence for the multiple rapes of two 12-year-old boys at public parks in Doylestown.  He was not under parole supervision at the time of the current crime because he served the entire time of the prior sentence behind bars.  He also had convictions for masturbating in front of children and showing them pornography.  At sentencing, the Lehigh County prosecutor called Ruppel "a pedophile who will never stop," and asked the judge to sentence him to five years in prison, but the judge agreed with the public defender who said "the community is better served if he is under supervision," rather than behind bars.  

Can DNA Testing Be Too Sensitive?

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Forensic DNA testing has gotten better and better over the years, giving us definitive answers from samples that previously would have been too small or too degraded.

Generally, that has been a good thing.  For example, the "wrongly executed" Roger Coleman and the "exonerated" Timothy Hennis were both proved guilty by conclusive DNA matches after the technology improved.

However, DNA testing is now getting so sensitive that it can pick up a person's DNA from a place he has never been or an object he has never touched by transfer from someone else.  Ben Knight has this article at Yahoo News.

The problem, of course, is not in the science but in the interpretation.  The answer to the rhetorical question of the caption is no.  DNA testing cannot be too sensitive, but the results of ultrasensitive tests must be interpreted with great caution.
I noted here that tomorrow, Tuesday November 24 at 3 pm EST, Judge Alex Kozinski and I will be talking over the failings (or successes) of the criminal justice system.  After introductory statements of 10 to 12 minutes each, we'll be taking audience questions.

The call-in number is 888-752-3232.  

Neither of us has much of a reputation as a wallflower, so if you have something about the system that's been bothering you, now is the chance to speak up with a question.
 Melissa Korn and Douglas Belkin report in the WSJ:

Student protests over racial grievances on college campuses gained momentum this past week, but they also generated a backlash among classmates who believe protesters' tactics are creating an atmosphere of intimidation designed to stifle debate.

The criticism is bubbling up around the country as protesters have claimed wins in the form of resignations of senior administrators and promises for more resources and better representation for minority groups.

At the University of Missouri, where the protests climaxed two weeks ago with the resignation of the school president, Ian Paris said he was prompted to speak out when classmates told him they disagreed with some of the demands protesters had made but were afraid to speak out.

"If you disagree with anything they're saying, you will instantly be denounced as a bigot and attacked on social media," said Mr. Paris, a 21-year-old senior. "The most jarring part of all this is to see the administration going along with it."
Yup.  I wore a uniform on a college campus for four years in the wake of the Vietnam War.  The people running the universities today are the kindred spirits of the people who gave me static then.  They never did believe in diversity of opinion, despite calling themselves Free Speech Movement and such.  A campus purged of all Politically Incorrect elements was always their ideal.

So if you want to be a rebellious youth, the way to do it is to rebel against Political Correctness, not for it.

News Scan

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GA Inmate Executed:  A Georgia man convicted of raping and murdering a woman he met at a night club over two decades ago was executed Thursday evening after losing a last-minute round of appeals.  The AP reports that a Butts County Superior Court judge, the Georgia Supreme Court, the U.S. Supreme Court and the Georgia Board of Pardons and Paroles all denied 50-year-old Marcus Ray Johnson's challenges and appeals of his conviction for the rape and murder of Angela Sizemore in 1994.  After meeting at an Albany nightclub, Johnson and Sizemore were seen drinking heavily and leaving together.  Sizemore's body was discovered in her SUV the next morning with 41 stab wounds made by a small, dull knife, and she had also been sexually assaulted with a pecan branch.  Johnson's attorney unsuccessfully argued that his life should be spared because doubts remain about his guilt, though prosecutors said that there was no doubt that Johnson is Sizemore's killer.  His execution was the last scheduled execution this year.

Parole Denied for 3rd Chowchilla Bus Kidnapper:  The third man involved in the hijacking of a school bus full of California children almost four decades ago has been denied parole for the 16th time.  The AP reports that 64-year-old Frederick Woods, the last of the three kidnappers still behind bars, was denied parole due to disciplinary infractions, including possession of pornography and contraband cellphones, as well as the testimony of several victims.  The other two convicted kidnappers, brothers James and Richard Schoenfeld, were released from prison in recent years; Richard was ordered released in 2012 by an appeals court and Gov. Jerry Brown paroled James in August.  In July 1976, the three men, who had plotted for over a year to get $5 million ransom from the state Board of Education, kidnapped 26 schoolchildren, aged 5 to 14, and their bus driver near Chowchilla, driving them miles away and burying them in a ventilated underground bunker.  The victims managed to dig themselves out more than a day later.  Woods will be able to apply for parole again in three years.

Obama Action Shields Most Illegals from Deportation:  President Obama's executive actions announced exactly one year ago, including protecting more than 80 percent of illegal immigrants from deportation, are moving forward.  Stephen Dinan of the Washington Times reports that the actions include changes to the legal immigration system, such as making it easier for spouses of guest workers to also find jobs; allowing foreigners who study science and technology at U.S. universities to remain and work in the country longer; pushing legal immigrants to apply for citizenship; and waiving the penalty on illegal immigrant spouses or children of legal permanent residents so they no longer have to go to their home countries to await legal status.  These policies, if adhered to strictly, will effectively shield 9.6 million of the approximately 11.5 million illegal immigrants in the country from any danger of deportation.  Regarding enforcement, Homeland Security Secretary Jeh Johnson, at Obama's direction, said that most "rank-and-file" illegal immigrants would be safe from deportation while energies are focused on serious criminals, gang members and other security threats.  Johnson said, however, that even some illegals with serious criminal offenses on their records could be allowed to stay in the U.S. if mitigating factors exist, such as "deep" family or community ties.  The Obama administration has "truly dismembered the immigration system, from the Border Patrol to the immigration courts," says Center for Immigration Studies policy director Jessica Vaughan. 

The Federalist Society will be hosting a teleforum next Tuesday at 3 pm EST titled, "Pros and Cons:  Our Criminal Justice System at Work."  The participants will be Judge Alex Kozinski of the US Court of Appeals for the Ninth Circuit, and yours truly.

The topic is introduced as follows:

Our panelists will discuss the criminal justice system generally, and the role of the prosecutor in particular.  Some argue that, with the weight of the state and its resources on one side, including a deep book of potential crimes, the deck is unfairly stacked against criminal defendants.  Others argue that police and prosecutors act in good faith, and credit them with incapacitating career criminals, trimming recidivism, and causing a plunge in national crime statistics.  Who has the better of the argument?

Judge Kozinski has been outspoken on this subject, see, e.g., his preface here to the 44th Edition of Georgetown Law's Annual Review of Criminal Procedure. 

There will be an opportunity for call-in questions.  A lively time should be had by all.

The Shell Game on the Federal Prison Population

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On Wednesday, the pretend-neutral but actually hard Left Pew Charitable Trusts put out a study titled, "Prison Time Surges for Federal Inmates."  

I did a double take when I saw this, because I know for a fact that the federal prison population is in decline and has been declining for at least the last 24 months (I think it's actually 30 months, but I'm not sure).  I don't know anyone who even disputes this.  So I asked myself what is going on with Pew.

This is what is going on:  The study slams the door at the end of 2012.  The most plausible reason I can think of that Pew headlines with the present tense  --  claiming that prison time "surges"  --  is that its report was timed to coincide with the House Judiciary Committee's approval of the Sentencing Reform Act of 2015.  One of the most important reasons urged in support of that bill is that the prison population, and hence prison costs, are out of control.

It would undermine that rationale for Pew to issue a report titled, "Federal Prison Population Decline Continues," although that would more nearly capture the truth of the matter.

Bottom line:  The Pew report has about the same degree of trustworthiness as Linda Greenhouse's claim that the country has embraced a "widespread de facto moratorium" on executions, when, this year, we have had one every 13 days. 

Agree With Me Or Get Out

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Liberal fascism continues its march through the political landscape, now with a pro-pot scattering of Congressmen demanding the removal of DEA Acting Administrator Chuck Rosenberg.  Rosenberg's sin, it seems, is that he said that "medical" marijuana is "a joke."

The Washington Post's story is, "A growing number of lawmakers wants Obama to fire the nation's top drug cop."   The "growing number" is a total of seven (out of 535 senators and representatives) (and the story cites no evidence of "growth").  The story starts:

A bipartisan group of seven lawmakers today called on the president to fire the acting leader of the Drug Enforcement Administration, Chuck Rosenberg. They join nearly 100,000 people who've signed an online petition similarly calling for Rosenberg's removal after he infuriated patients and advocates by dismissing medical marijuana as "a joke" earlier this month.

Rosenberg's statements are "indicative of a throwback ideology rooted in a failed War on Drugs," the letter, spearheaded by Rep. Earl Blumenauer (D.-Or.), begins. 

One might forgive a fellow who was appointed to lead the Congressionally-mandated effort to suppress drug use for not sharing the view that the effort has failed, especially since we have no way of knowing what levels of drug use would be but for that effort.  Still, you get the point.  You either agree with the views of the 1.3% of legislators who signed the letter, or you are unfit for office. 



Who's Getting Out of Prison Early?

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Congress is currently considering legislation that would provide lower sentences and early release to thousand of federal felons. There are many questions to be asked about this proposal.  One of the most important is whether we'll learn anything from California's experience  --  California having, in the last few years, given early release to more prisoners than all the other states combined.

This came about for two reasons.  First was the Plata decision and Gov. Brown's congruent "realignment" program.  Second was Prop 47, which has been in place for a year, and whose poor results have been chronicled in more C&C entries than I can catalog (even while being predictably pooh-poohed by the NYT). 

A central part of the advocacy for both California's release plan and the one being considered by Congress is the firm promise that those released early will be "low level, low risk" offenders.

Do you believe that?  Do you believe that the people in government who  -- sentencing reform advocates insist  --  have spent decades making error-filled decisions about whom to imprison and for how long will now make spot-on decisions about whom to release and how early?

Steve Hayward on PowerLine has some disturbing news for the gullible.

More Remuneration for Defense Counsel

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I agree with the defense bar more often than it (and sometimes, I) feel comfortable about, but what can I say? The NACDL is right in believing, among other things, that custodial police questioning should be videotaped, prison conditions improved, and defense lawyers better paid.

Better paid, yes, but not like this.

And before the yelping starts, let me say up front that this is an unusual case for sure  --  but no more unusual than the prosecutor's sending some bedeviled defendant away for 50 years by hiding Brady material, something defense blogs portray as an everyday occurrence.

Yes, yes, the great majority of prosecutors and defense lawyers are honest people, so far as I have reason to believe.  But it does annoy me when the ideological element of the defense bar gets on its high horse, proclaiming that it alone defends the Constitution, while mean-spirited prosecutors come to their offices aiming to tear it up.  The main problem with this stuff is not that it's so false; it's that it's so stultifying.

It was bearing in mind this Holier-than-Thou, We-Are-the-Guardians-of-the-Law attitude that made me laugh when I came to this paragraph in the story about "how defense counsel gets paid:"

The second [client] also knew Benavides from a previous relationship, said the affidavit. During one of her court cases, Benavides approached her and said he knew the judge and could get her an attorney's bond and a fair deal. She hired him, and after she bonded out of jail, Benavides asked her to meet him at a friend's office. Whenever they met there, they would have sex. Once, they had sex in a jury room in the courthouse.






Prosecutor Responds to Linda Greenhouse

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Kentucky prosecutor Ian Sonego emailed Kent in response to this recent post regarding Linda Greenhouse's criticism of CJLF. It reads:

 

I have been a prosecutor in Kentucky since 1980, and I started working on my first death penalty case in 1981. I worked on many death penalty cases after that. I have been a speaker at the 2015 Kentucky prosecutors death penalty conference and at the 2015 death penalty conference presented by the National Association of District Attorneys. 

 

The arguments made in the amicus curiae (friend of the court) briefs filed by CJLF (Kent Scheidegger) and the comments in support of crime victims, law enforcement, and the death penalty, as presented by CJLF (Kent Scheidegger or Mr. Rushford) to the news media reporters generally conform to my views and the views of most of the prosecutors that I know. The award that Kent received from the Association of Government Attorneys in Capital Litigation (a multi-state group of prosecutors who prosecute cases in which the death penalty is requested) in recognition of his advocacy in support of the death penalty is also significant. 

 

Unfortunately, working as a prosecutor does not necessary make someone a good spokesperson in dealing with news reporters. I would not classify myself as a good media spokesperson in spite of my years of work in the court system. 



News Scan

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ISIS Video Threatens NYC:  New York City officials confirmed the release of a new Islamic State propaganda video Thursday threatening attacks on the city, though authorities assure the public that there are no "specific threats."  Jim Michaels of USA Today reports that the video, the authenticity of which has not been verified, shows images of bombs and suicide bombers readying for an attack, with shots of Herald Square and Times Square.  The NYPD released a statement saying that the department is continuing to work with the FBI, Joint Terrorism Task Force and the entire intelligence community to ensure the safety of the city.  Many major U.S. cities, New York City included, ramped up security in the wake of Friday's massacre in Paris that killed 129 people for which the Islamic State claimed responsibility.

Officer Fatally Shot in Car, Possibly Targeted:  A Los Angeles-area police officer was fatally shot in his personal vehicle in the parking lot of the police station where he worked, and law enforcement believes he was specifically targeted.  Veronica Rocha and Richard Winton of the LA Times report that 29-year-old Downey police officer Ricardo Galvez, a five-year police veteran and former Marine, was on duty but out of uniform in his personal vehicle when he was shot late Wednesday by two suspects who first fled the scene in a vehicle, and then on foot when another officer pursued them after hearing gunfire.  Lt. John Corina of the Los Angeles County Sheriff's Department believes that Galvez knew the shooters, as detectives weren't aware of any threats toward the department or its officers prior to the shooting.  A search for the suspects continued Thursday, with three people detained so far.  Galvez is the first Downey police officer to be killed in the line of duty in nearly 35 years.  Update:  The AP reports that three young men, ages 21, 18 and 16, were arrested within hours of Galvez's shooting, in what investigators say was a botched robbery attempt.

Central American Minors Surge Again at TX Border:  Following a months-long decrease in unaccompanied alien children from Central America surging the southern border last summer, a dramatic spike in the number of arrivals has occurred recently, bringing early fall migration levels to the highest ever in at least six years.  Dylan Baddour of Chron reports that according to the U.S. Border Patrol, 7,390 unaccompanied minors, primarily from Honduras, El Salvador and Guatemala, were caught crossing the border in August and September, the most recent months with available data, representing an 85 percent increase over the same period last year.  Migration Policy Institute deputy director Marc Rosenblum credits the spike to continued and increasing violence in Central America, as well as the advent of "door-to-door" smugglers, who operate in Central American villages and offer complete trips to the U.S. for thousands of dollars.  This new network of smugglers has "totally broken down" the seasonality of migration, which used to always decline in the months of August and September.  When solo children are apprehended, they are first sent to shelters, and then placed with friends, family or foster care in the U.S.

Ex-Subway Pitchman Sentenced:  Ex-Subway spokesman Jared Fogle was sentenced Thursday in federal court to more than 15 years in prison after pleading guilty to child pornography and sex crime charges.  Fox News reports that 38-year-old father of two, who is famous for being Subway's spokesman after shedding hundreds of pounds in college eating the chain's sandwiches, agreed to plead guilty in August to one count each of traveling to engage in illicit sexual conduct with a minor and distribution and receipt of child pornography.  Fogle admittedly paid for sex with girls as young as 16 and received child pornography from the former executive director of his charity, Russell Taylor, who secretly filmed 12 minors using hidden cameras in his Indianapolis home.  Taylor has pleaded guilty to child exploitation and child pornography charges.  The 14 victims of Fogle are each receiving $100,000 in restitution.  Subway ended its relationship with Fogle following the July raid of his suburban Indianapolis home.

Is Infallibility Required?

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A major topic in the debate about whether and under what conditions the United States should admit Syrian refugees is whether vetting them can give us ironclad assurance that no terrorists will sneak in among the legions of innocent people.  In essence, many Americans, certainly including conservatives, would like to see an infallible system.

There are reasonable arguments on both sides of the general refugee debate. Obama is correct that American values and history counsel providing a home for those who flee oppression and want freedom.  His critics are correct that, just as America cannot be the world'd policeman, it cannot be the world's homeless shelter. For one thing, as Sen. Jeff Sessions has noted, it would cost $55 billion.

I am not at this point going to take sides on the overall merits.  My point is more limited:  Those who say that we should accept the refugees, while arguing that our vetting system is robust and reliable, admit it's not infallible.

This is wise, since nothing human beings do is infallible.  Liberals taking the refugees' side acknowledge, explicitly or otherwise, that we could make a mistake.  If we do, and the mistake turns out to be Abdelhamid Abaaoud, we could lose dozens or hundreds of innocents to a gruesome terrorist attack.  But we should open our borders anyway, they say, because the risk, though grave, is small, and the payoff large.

Question:  Why do liberals not see the same thing in the death penalty debate?  The stakes are high (as they are in dealing with terrorism) and the system cannot be made infallible (as with vetting for Jihadists).  But the risk of executing the innocent is extremely small, and the payoff  --  the only punishment that even remotely fits the crime  --  large.

This is what abolitionists miss:  Human life does not provide the luxury of absolutes. We live in a world of tradeoff's, a world in which infallibility is unavailable.  Just as in the refugee debate, the outcome depends on whether what you get is worth what you give up.  In keeping the death penalty for ghastly murder, it is.

France Kills A Murderer

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AP reports:

The Belgian extremist suspected of masterminding the deadly attacks in Paris died a day ago along with his female cousin in a police raid on a suburban apartment building, French officials said Thursday, adding it was still not clear exactly how he died.

The body of Abdelhamid Abaaoud, 27, was found in the building targeted Wednesday in the chaotic, bloody raid in the Paris suburb of Saint-Denis and was identified based on skin samples, the Paris prosecutor's office said Thursday.

Congratulations, France.  Well done.

Now stop criticizing us when we kill our murderers.

Too Much Objectivity in Journalism?

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Mia Carr, writing in the Harvard Crimson, describes one of the weirdest speeches I have read about in a long time -- a complaint that American journalists are too objective.  Really.  And the worst sin of all, it seems, is quoting CJLF.  I'm not making this up, honest.

I have been practicing in the Supreme Court for almost three decades now, and I have followed press coverage of the Court during that time.  The most biased Supreme Court reporter for any mainstream news organization, hands down, was Linda Greenhouse during the time she covered the Court for the NYT.  There are worse ones for some of the "new media" outfits, but none for the old line media that claim to be straight news sources.  Ms. Greenhouse regularly presented Supreme Court cases from a monotonically Politically Correct viewpoint.

Ms. Greenhouse is delivering a series of lectures at Harvard, and here is her complaint:

In her lecture, titled "Stories," Greenhouse argued that the media's overemphasis on objectivity diminishes its ability to present issues accurately.
*                          *                        *
According to Greenhouse, an even larger problem is the use of what she calls "'he said, she said' journalism," where reporters juxtapose oppositional views, even if the issue cannot be divided neatly into two sides or if one of the views has no merit.

"Presenting two sides without further explication or context...inevitably poses a sense of balance or equivalence," Greenhouse said. She used the example of the debate over the vaccination of children, saying vaccination opponents who have no scientific basis for their claims about the danger of vaccines are often given equal voice in coverage of the topic.
It is true that there are some controversies where one side is completely baseless, and the antivaxx wackos are a good example.  See this post.  But do American journalists really present the two sides of this controversy as equally credible?  Not that I have seen.

Most controversies, though, do not fall into either of the categories she describes.  There generally are two sides, and there generally is not a scientific basis for declaring either side unquestionably wrong.  So in those circumstances, is the reporter's mere personal opinion that one side is right a valid basis for giving the readers only that side?  Is there something wrong with giving the readers a taste of the viewpoint from each side?  Ms. Greenhouse thinks so, and guess who is her example.
This is one reason.  It is not the main reason or close to it, in my view.  At the same time, anyone with experience in criminal litigation knows that judges vary widely in temperament, ideology, outlook and background, and that even the same judge can vary markedly from one day to the next depending, for example, on whether he had a fight with his wife that morning.

The principal reason Congress cut back on the previously almost unlimited sentencing discretion of judges in the Sentencing Reform Act of 1984 is simple:  It didn't work.  It produced wide and irrational disparity, and it had meandered hither and yon for 25 years while crime exploded. The public demanded something better and Congress complied, with (so far as crime rate statistics suggest) excellent results.

Judges, by the nature of the business, must have a good deal of sentencing discretion a good deal of the time. Under our present system, they do.  But judges are human beings, and human beings operate better with rules than without them. The news report with which I led off this entry is an extreme example of this fact, but a fact it is, in extreme cases and in more typical ones.
The U.S. House Judiciary Committee has this press release on a package of bills that, if the descriptions are accurate, may actually make improvements in the criminal law.

In recent years, it seems like every package labeled "reform" has actually been a proposal to condemn us to repeat the soft-on-crime errors of the Age of Aquarius. 

According to the press release, these four bills would address (1) the required mental state where the statute specifies none, (2) acts made criminal by regulations rather than statutes, (3) acts that never should have been made criminal in the first place, and (4) just plain drafting errors.  These are all genuine problems that genuinely need fixing.

I hope to have time soon to look at the actual bill language and see if the bills live up to their billing.

And I am really looking forward to citing the Fix the Footnotes Act of 2015 in a Supreme Court brief.

The Latest in Customer Service

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You cannot make this up.  From NBC News reports:

NBC News has learned that ISIS is using a web-savvy new tactic to expand its global operational footprint -- a 24-hour Jihadi Help Desk to help its foot soldiers spread its message worldwide, recruit followers and launch more attacks on foreign soil.

Counterterrorism analysts affiliated with the U.S. Army tell NBC News that the ISIS help desk, manned by a half-dozen senior operatives around the clock, was established with the express purpose of helping would-be jihadists use encryption and other secure communications in order to evade detection by law enforcement and intelligence authorities.

The relatively new development -- which law enforcement and intel officials say has ramped up over the past year -- is alarming because it allows potentially thousands of ISIS followers to move about and plan operations without any hint of activity showing up in their massive collection of signals intelligence.


I wish the Help Desk at Georgetown Law were as good at sending me the class roster. 

A Revealing Moment at the HuffPo

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Erik Wemple, who writes a blog on media issues at the WaPo, has this post on union organizing efforts at Huffington Post.  I was struck by this paragraph:

The document touts the merits of a progressive news outlet internalizing its principles: "Unionizing is one way for us to stand by the ideals we often preach on our site," notes the letter.
The signers of the letter are not, for the most part, opinion writers designated as such.  Their titles imply that they are in the straight news business.  Yet they see it as their job to "preach" their "ideals."

The danger is that too many people today are getting most or all their news from people who have no dedication whatever to objective reporting.  As the line between advocacy and reporting becomes ever more blurred, "facts" that are either undetermined or outright false become accepted as absolute truth by people who never hear them questioned.  Elections and the direction of our society may turn on widely believed myths with no connection to reality.

News Scan

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TX Murderer to be Executed:  A Texas murderer is scheduled to be executed by lethal injection Wednesday evening for killing his daughter and two stepdaughters in a 2000 mobile home blaze.  Jon Herskovitz of Reuters reports that a new lawyer for 36-year-old Raphael Holiday filed a last-minute appeal arguing that Holiday's federally appointed counsel "acted against his wishes and abandoned further rounds of court filing to spare his life," which was rejected by the Texas Attorney General's office, who said such a claim "should not be given any credence."  Holiday was convicted of killing 7-year-old Tierra Lynch, 5-year-old Jasmine DuPaul and 1-year-old Justice Holiday six months after his common law wife at the time, Tami Wilkerson, obtained a restraining order against him for sexually assaulting Tierra.  After attempting to reconcile with Wilkerson, he returned to the mobile home they once shared and forced the girls' grandmother at gunpoint to douse the home in gasoline before igniting it.  The charred bodies of the three little girls were later discovered huddled together.  Holiday will be the 531st inmate executed by the state of Texas since the death penalty was reinstated in 1976.  Update:  The execution was carried out 2 1/2 hours later than scheduled, Michael Graczyk reports for AP, because the trial judge stopped the execution after the defendant's trial lawyer filed a new appeal, but that order was overturned by the state's highest criminal court.

Manhunt for Human Smuggler who Assaulted Officer:  A man dubbed by Border Patrol agents as "one of San Diego's most dangerous human smugglers" is the subject of an intensive federal manhunt after he assaulted a Border Patrol agent with a rock last weekend during a failed border-crossing in Southern California.  Fox News Latino reports that 39-year-old Martel Valencia-Cortez, a Mexican national who has been involved in several human smuggling incidents dating as far back as 1997, was smuggling 14 illegal immigrants Sunday evening when he struck a border agent in the face with a softball-sized rock and fled towards Mexico as officials began closing in on him.  Valencia-Cortez was released from federal custody in September after serving a three-year sentence for alien smuggling.  He is known to carry a gun and resort to violent and dangerous conduct to avoid capture.  The injured agent was treated for cuts and bruises.

AG Lynch Contradicts FBI on Screening Refugees:  Despite FBI Director James Comey's statement to a House committee in October that checking incoming Syrian refugees against a database is extremely difficult, if not impossible, unless the U.S. has actual data on the refugees, Attorney General Loretta Lynch insisted before the House Judiciary Committee Tuesday that the U.S. will be able to safely process refugees.  Pete Kasperowicz of the Washington Examiner reports that Lynch defended the current system of checking refugees against government databases, and added that interviews and "other forms of screening" will result in a thorough and proper vetting process.  Committee Chairman Bob Goodlatte echoed Comey's concerns of the country's vulnerability when it comes to people from Syria, given that officials cannot obtain information from a country in disarray.  The debate over whether or not to accept Syrian refugees has grown heated following Friday's deadly terror attacks in Paris, in which is was confirmed that at least one of the terrorists posed as a Syrian refugee to enter Europe.  House Speaker Paul Ryan is looking into legislation that could slow down President Obama's plan to admit 10,000 Syrian refugees next year.

Baltimore Reaches Highest Ever Homicide Rate:  Baltimore just surpassed it record level homicide rate, officially making 2015 the deadliest year, per capita, in the city's history.  Kevin Rector and Justin Fenton of the Baltimore Sun report that homicides reached the 300 mark on Sunday after a man was stabbed to death, the first time since 1999 that the city has seen that many homicides in one year.  Five more men were shot dead as of Tuesday evening, pushing the city's per capita homicide rate to 48.97 per 100,000 residents, breaking the 1993 record.  University of Baltimore criminologist Jeffrey Ian Ross says that the per capita figure "puts Baltimore's violent year in perspective compared to other cities also experiencing increased violence," noting that while violence has spiked considerably in cities like Chicago and Washington, D.C., the per capita rates of those cities are still far below the record-breaking levels set during the 1990s.  Since the April death of Freddie Gray in police custody that sparked citywide unrest, there has been more than a killing per day.  The Baltimore Police Department plans to announce a new community stabilization initiative in the near future.

Justice Waits While Lawyers Bicker

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SL&P has this story suggesting that the main problem in a Texas multiple child murder case from more than 15 years ago is that  --  ready now?  --  the defendant's lawyers aren't being aggressive enough in pushing a last minute clemency appeal. The story's first eight paragraphs amount to a hit on the killer's present counsel for declining to push the 16th year of litigation into the 17th (and beyond, I suppose).

You will not be surprised to hear that the story does not (1) advance any claim of factual innocence; (2) detail the prior multiple efforts to reverse the sentence, or (3) explain any plausible grounds for either judicial or executive hesitation at this late date.  It's basically a hit piece on lawyers who decline to game the system out to infinity.

In that sense, it's an apt display of what's wrong with the administration of the death penalty, and of the insufferable self-importance of lawyers.  It never seems to occur to the people quoted in the article that legal outcomes should depend on the behavior of the parties, not the behavior of the attorneys.

Still, far, far down the page, we get our first glimpse into what the case is actually about:

Holiday [the petitioner] was convicted of intentionally setting fire to his wife's home near College Station in September 2000, killing her three little girls. He forced the children's grandmother to douse the home in gasoline. After igniting the fumes, Holiday watched from outside as flames engulfed the couch where authorities later found the corpses of 7-year-old Tierra Lynch, 5-year-old Jasmine DuPaul and 1-year-old Justice Holiday huddled together. Volberding and Kretzer were appointed in February 2011 to represent Holiday in his federal appeals. They filed a 286-page petition in federal court, alleging dozens of mistakes in Holiday's case, ranging from assertions that he was intellectually disabled to charges that clemency is so rarely granted in Texas that the process has become meaningless....

Oh, OK.  The problem is not that lawyers file absurd claims for years.  The problem is that at some point, they stop.
Congress, by far the least trusted of public institutions, is about to test how oblivious it can be to amply justified public alarm.

A new Washington Post story is grim, but might conceivably get our legislators to wake up:


Crime has become the biggest problem in Washington, D.C. residents say, far surpassing concerns about the economy and the quality of public schools for the first time in almost a decade, according to a new Washington Post poll.

After a year in which homicides have spiked, fewer D.C. residents said their neighborhood is safe, the poll found. Following high-profile attacks that have rattled neighborhoods from Chevy Chase in upper Northwest to Anacostia in Southeast, 1 in 4 respondents said they feel "not too" or "not at all" safe in their communities, up from less than 1 in 5 in 2011. More than 1 in 3 said crime is the biggest problem facing the city, up from 12 percent four years ago.

The concern comes as the nation's cities have seen homicide rates reverse after more than two decades of steady declines.


This same thing is happening from coast to coast.  For the first time in a generation, crime is spiking.  So here's the bottom line question:  Is this the moment Congress will choose to go easier on those  --  largely drug pushers  --  doing the spiking?  Is Congress really that obtuse?  That uncaring?  That hoodwinked or bullied by billionaire money pushing the Obama/Sharpton "America-is-too-mean" agenda?

As Congress considers the SRCA, we may soon find out.

The title of this post is the position taken by (pick one):

A.  Secretary of State John Kerry.
B.  The Ayatollah.
C.  Osama Bin Laden.
D.  The head of ISIS.
E.  Timothy McVeigh.

The correct answer is A, Secretary of State John Kerry.  The Weekly Standard published the full quotation (emphasis in the Standard):

"In the last days, obviously, that has been particularly put to the test," Kerry said, according to a State Department transcript. "There's something different [from the Paris massacre] about what happened from Charlie Hebdo, and I think everybody would feel that. There was a sort of particularized focus and perhaps even a legitimacy in terms of - not a legitimacy, but a rationale that you could attach yourself to somehow and say, okay, they're really angry because of this and that.

Impeachment is still in the Constitution, isn't it?


News Scan

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LA Group Admits Losing Track of Refugee:  Catholic Charities, the group that assisted a Syrian refugee resettle in Louisiana, has revealed that it doesn't know where the refugee is because the group is simply "on the receiving end" and doesn't track the refugees they place.  Michelle Fields of Breitbart reports that after helping a refugee settle in Baton Rouge, the group claims that the individual left the state entirely, though no one knows where.  Louisiana Gov. Bobby Jindal, who says that refugees began being placed in New Orleans last week without his knowledge or the state's involvement, wrote a letter to President Obama on Monday demanding more information regarding Syrian refugees.  Jindal is one of the many U.S. governors who this week have publicly rejected Obama's resettlement plan over renewed concerned about Syrian refugees in the wake of Friday's deadly terror attacks in Paris, in which at least one terrorist was in possession of a Syrian passport and entered Europe by posing as a refugee.

Six Murdered at TX Campsite:  Six people, including a young child, were killed over the weekend at a rural campsite southeast of Dallas and law enforcement have a suspect in custody.  Fox News reports that 33-year-old William Hudson is, so far, charged with one count of murder in the deaths of Thomas Karp, who had recently purchased the land where the massacre took place, his girlfriend Hannah Johnson, her 77-year-old father Carl Johnson, her young son Kade and two other males.  Few details have emerged in the case, including the victims' causes of death or a possible motive, which is unclear given that Hudson did not appear to know any of the victims.  Carl Johnson's wife, Cynthia, survived by hiding in the woods while her family was being slain.  Anderson County Sheriff Greg Taylor says Hudson was picked up weeks ago for a separate assault and acknowledges that he is "violent."

Some might believe that the darkest outcome of the Paris attacks is the choking grief and irremediable loss of the families of the dead. Others would say the lifelong disfigurement of survivors.  Some would say the end of the notion that civilized life is safe.  Still others will say the stain of sadness that has settled into one of the world's greatest and (formerly) most festive cities.


You read that right.  The story begins:

In a civil rights suit over the New York City Police Department's surveillance of New Jersey Muslims, the Nov. 13 terrorist attacks in Paris could make it harder for the plaintiffs to get a fair trial, according to some involved in the case, as well as some outside observers.

For those who need translation (probably not that many given how far "journalism" has decayed), let me help.  

"A fair trial" = "A trial at which reality is excluded." 

"Some involved in the suit" = "Plaintiffs' lawyers and their hired consultants."

"Outside observers" = "Pro-Muslim consultants who weren't hired this time but hope to be for the next case."
A:  The killer's feelings about his time on death row.

That is not an exaggeration.  This article goes into painful length about what killer Richard Glossip feels about being held in a cell near the execution chamber ("It is torture beyond what anybody can believe."). Not one word is said about the feelings of his victim.  Indeed the victim's name (Barry Van Treese) is never even mentioned.

As I said in an earlier post, abolitionism has become a moral sickness.

One More Reason to Support the Death Penalty

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Jimmy Carter Calls For Death Penalty Abolition.

Long ago, I was asked what my advice would be for the then-incoming Reagan Administration.  My answer was simple: Figure out what Jimmy Carter would have done, and do the opposite.

Sheriff Joe, the Prez, and Standing

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Today the U.S. Supreme Court Clerk docketed the certiorari petition in Arpaio v. Obama, No. 15-643.  Here are the first and last paragraphs of Judge Janice Brown's concurring opinion in the D.C. Circuit, No. 14-5325.

Today we hold that the elected Sheriff of the nation's fourth largest county, located mere miles from our border with Mexico, cannot challenge the federal government's deliberate nonenforcement of the immigration laws. I agree with my colleagues that the state of the law on standing "requires, or at least counsels, the result here reached." Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 798 (D.C. Cir. 1987). But, recognizing that Sheriff Arpaio's claims reflect the widespread perception that the administration's prosecutorial discretion meme is constitutionally problematic, I write separately to emphasize the narrowness of today's ruling, and note the consequences of our modern obsession with a myopic and constrained notion of standing.
*                           *                       *
No doubt the modern approach to standing serves to reduce our caseload. But there are much more important matters at stake. "Some [litigants] need bread; others need Shakespeare; others need their rightful place in the national society--what they all need is processors of law who will consider the people's needs more significant than administrative convenience." Id. at 1005 (quoting Edmond Cahn, Law in the Consumer Perspective, 112 U. PA. L. REV. 1, 13 (1963)). Our approach to standing, I fear, too often stifles constitutional challenges, ultimately elevating the courts' convenience over constitutional efficacy and the needs of our citizenry.
Sounds to me like an invitation to the Supreme Court to take this up.

Are Libertarians Knowingly Abetting Terror?

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It's becoming increasingly clear that the Paris terrorists were using "dark channels" to plan their attacks.  A "dark channel" is a means of encrypted communication protected by methods so sophisticated the FBI and other agencies cannot decode them.

In the wake of Edward Snowden's revelations, libertarians were up in arms about protecting "privacy," as if little Susie's diary were what intelligence agencies are interested in.  FBI Director Jim Comey has warned about this, but to no avail.

As Benjamin Wittes of the Brookings Institution now writes, however:

Evidence that terrorists were, in fact, using strong end-to-end encryption to kill people could be game-changing in a debate that has heretofore been defined by anxieties about NSA. The tech companies won the first round of the current encryption battles in large measure because the concerns the intelligence and law enforcement community have about "going dark," while acutely real to them, are pretty hypothetical on public evidence. All that could change in an instant were it to emerge that the Paris attackers were using technology specifically chosen to secure their communications from those charged with stopping terrorist attacks.

Libertarians do a lot of chest-thumping about how much they're trying to protect the Constitution (that they alone care about, apparently).  In an age of a politicized Justice Department, who can much blame them?  But here's a question they need to consider:  If we are blinded to grotesque terrorist plans because of libertarian breast-beating about "privacy," will it be the libertarians who pay the price  --  or little Susie, out with her mother for a celebration at a restaurant in Paris?

Briefing at the Senate on Sentencing "Reform"

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A week ago, at a Federalist Society function at the Senate Visitors Center, I had the opportunity to brief the audience  --  including, I think, quite a number of Senators' staffers  --  on the proposed sentencing "reform" bill that was passed out of the Senate Judiciary Committee.  The briefing took the form of a debate, with three panelists favoring the bill and three opposed.  The debate was not recorded, so unfortunately I cannot reproduce it here.

I did, however, write out my opening statement, which I set forth below.  One point I made near the end, which I want to emphasize here, is that those of my Republican friends who think passing this bill will be politically advantageous are making a big mistake.

In Washington, DC, and around the country, we are in the midst of a murder spree and a heroin epidemic of the kind we have not seen in decades.  Republicans control both the House and Senate, and if they pass a bill taking it easier on federal felons  -- which is, for practical purposes, the main thing this bill is about  --  they should, and they will, pay the price at the polls.

Once again, Obama has fleeced many members of what is sometimes called the Stupid Party into carrying water for his pro-criminal agenda.  If Republicans persist in this foolhardy enterprise, they will have done more than usual to earn the name.

A Masterpiece of Bad Timing

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Last Friday morning, the reliably pro-criminal New York Times published its most recent puff piece about opposition to the death penalty. A few hours later, 129 (so far) unsuspecting and defenseless people were murdered in Paris in one of most ghastly terrorist attacks in memory.  Hostages taken in a theater were shot dead in the face, one by one.

Kent has written that there is a principled position in opposition to the death penalty, and he, not I, speaks for CJLF.  I used to think as Kent does about that; I no longer do.

The idea that there are no circumstances in which the death penalty should be imposed has entered the land of the preposterous.  It can no longer be viewed as an error; in my view, it's a moral sickness.

It is almost universally agreed that the punishment should fit the crime.  The notion that a prison term, no matter what its length, fits the Paris crime simply cannot be held in good faith, and neither is the idea that we cannot determine with certainty who the culprits are.  Indeed, I suspect the French already know, as do we.

And make no mistake, this is coming to our cities, including, I strongly suspect, the one where my wife works and I teach law. It's just a matter of when.

Monkey See, Monkey Sue

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Eugene Volokh at VC quotes extensively from the motion to dismiss in the simian selfie copyright case.  See also prior posts here and here and here.

Multiple Terror Attacks in Paris

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The face of pure evil showed itself again in Paris today.  Stacy Meichtry, Inti Landauro and Thomas Varela report for the WSJ:

PARIS--Terror swept the French capital late Friday as a series of attacks--in a bustling nightlife district and outside a soccer stadium--left more than 100 people dead in one of the bloodiest assaults in the country's history.

The sheer scale of the mayhem--six separate attacks--left authorities reeling. The government declared a state of emergency, sending military forces onto the streets of Paris, sealing off roads and reinstating border controls. Sirens blared across the city as police and emergency workers rushed to respond.

Kermit Alexander Profile

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Debra Saunders has this article in the SF Chronicle on Kermit Alexander.

Former San Francisco 49ers star Kermit Alexander is death penalty opponents' worst nightmare. Foes of the death penalty argue that the criminal justice system is skewed against African Americans and that prosecutors are less likely to seek the death penalty when victims are black. Alexander is an African American who grew up in the projects of Los Angeles. So were the four members of his family slain in a 1984 contract killing gone wrong. He has watched the three black men convicted for the murders try to escape responsibility for their crimes. In prison Darren Williams -- the Rolling 60s Crips gang member in charge of the contract hit to kill a disabled woman who lived two doors down the street -- has his own website, Free Darren Williams, with a link, "Black Lives Matter."

"Black lives matter," Alexander, 74, repeated as I spoke with him and his wife, Tami, recently, "What about my family? They didn't matter."
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November 2014: The Criminal Justice Legal Foundation, Kermit Alexander and Bradley Winchell -- the brother of Morales' murder victim Terri Winchell, 17, below -- sue the Department of Corrections and Rehabilitation for delaying executions by not issuing a one-drug lethal-injection.

November 2015: The Department of Corrections officials propose a new one-drug lethal-injection protocol.

Will California ever enforce its death penalty?

California's death penalty has been on hold since 2006, when a federal judge ruled against the state's three-drug protocol. For nearly a decade, Sacramento dragged its feet rather than update the protocol. In the name of victims' families, the Criminal Justice Legal Foundation sued to make the state act. This month, corrections officials complied by proposing a one-drug lethal-injection protocol.

News Scan

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NY Prison Escapee Pleads Guilty:  One of the two convicted murderers who escaped from a maximum-security prison in upstate New York over the summer pleaded guilty Friday.  Lorenzo Ferrigno and Jason Hanna of CNN report that 35-year-old David Sweat, already serving a life sentence for a murder conviction, broke out of the Clinton Correctional Facility with his breakout partner Richard Matt, also a convicted murderer, on June 6 with the help of power tools provided by a prison staff member.  The two men were on the run for over three weeks, sparking an intensive manhunt that ended June 28.  Matt was shot and killed by law enforcement and Sweat was wounded and captured two days later.  The prison worker who assisted Sweat and Matt's escape, Joyce Mitchell, was sentenced to up to seven years in prison for first-degree felony promoting prison contraband and fourth-degree misdemeanor criminal facilitation for her role in the elaborate scheme.  Sweat's faces an additional 14 years on top of his life sentence, and he is scheduled to be sentenced February 3.

Third Expert Says Cop in Tamir Rice Case Justified:  In a report released Thursday by the Cuyahoga County prosecutor, a third expert found that the fatal shooting of 12-year-old black boy, Tamir Rice, by white Cleveland police officer Timothy Loehmann last year was "objectively reasonable."  Polly Mosendz of Newsweek reports that the latest report was conducted by W. Ken Katsaris, a certified Florida law enforcement officer, instructor and consultant with over three decades of experience, who reviewed the 911 call that prompted police response to the park where Rice was located, information provided by the dispatcher and the officers' actions upon arrival.  Following analysis of the 911 call, Katsaris found that the dispatcher should have provided Loehmann and his partner more information about the initial 911 call, such as the caller's statement that the person he saw holding a gun was "probably a juvenile" and that the gun was "probably fake."  After reviewing surveillance video of the incident, Katsaris determined that Loehmann had "only a split second" to make a decision when he saw Rice moving toward his waist band.  "It's simply obvious that the officers had reasonable belief that Rice was armed," he concluded.

Pregnant Wife of IN Pastor Murdered:  The suspect accused of murdering an Indianapolis pastor's pregnant wife during a home invasion earlier this week has been caught on several security cameras, and a picture is to be released by law enforcement to the public "in the near future."  Fox News reports that 28-year-old Amanda Blackburn was fatally shot in the head inside her home Tuesday morning during a home invasion robbery while her 15-month-old son slept in his crib upstairs.  Investigators believe that the suspect saw an opportunity while burglarizing another home to target the Blackburn home after spotting Pastor Davey Blackburn, Amanda's husband who has been ruled out as a suspect, leaving for the gym.  Indianapolis Police Chief Richard Hite says that the home invasion wasn't typical, noting that there was no forced entry into the home.  This leads his department to believe that there may be additional suspects.

News Scan

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Officer Run Over by 3-Time Deportee:  The man who ran over a Dallas police officer Monday outside a night club before being shot by police was an illegal immigrant who had been deported three times.  Claire Z. Cardona of the Dallas Morning News reports that 29-year-old Mexican-national Eduardo Gonzalez-Rios was escorted out of a night club on Monday evening and asked to leave the premises.  He then got into his SUV and backed into one of the three officers present, jumped a curb and ran "completely over" Sr. Corporal Ed Lujan, and backed over him again before attempting to drive away.  The two other officers at the scene fired their weapons and struck Gonzalez-Rios in the arm.  Lujan is recovering in the hospital with a broken sternum, nose, ribs, tibia and ankle, and a fractured vertebra and skull.  Gonzalez-Rios has been charged with three counts of aggravated assault against a public servant and is being detained on an immigrant hold by federal authorities.  His previous encounters with the feds were in Texas in 2004 and again in 2005, and in Missouri in 2011, for which he faced deportation.

Grand Jury Indicted Hundreds of Twin Peaks Bikers:  It took a grand jury in McLennan County, Texas, just nine hours to indict 106 bikers in connection with the deadly May shootout that resulted in the deaths of nine people and dozens of injuries.  Lana Shadwick of Breitbart reports that the bikers have all been indicted for the crime of engaging in organized criminal activity, a first-degree felony that carries a possible sentence of life in prison or 15 to 99 years, stemming from the May 17 brawl at a Twin Peaks restaurant in Waco, where over 175 total arrests were made.  The bikers insist that they were at the restaurant to attend a regular meeting regarding motorcycle issues, but police characterized the meeting as "a gathering of criminal biker gangs with violent intent."  The grand jury, which will return November 18, has yet to consider evidence against 80 other bikers.

LAPD Officer-Involved Shootings Increase:  The president of the Los Angeles Police Commission said Tuesday that the increase in officer-involved shootings this year is an "alarming development" that must be addressed.  Elizabeth Hsing-Huei Chou of the LA Daily News reports that Matt Johnson, backed by fellow commissioners and LAPD Chief Charlie Beck, made several proposals to combat officer-involved shootings, which jumped from 23 last year to 45 this year, to act as "tools to guide us on how and where we can improve the department."  Johnson's recommendations include:  a comparison of Los Angeles' officer-involved shootings and other uses of force with agencies across the country, analyzing changes in training and policies that have occurred over the past 10 years, looking deeper into implementing wider use of non-lethal weapons during interactions with suspects carrying weapons that are not firearms or those who are mentally ill, annual reporting of use-of-force cases, and involving the Office of the Inspector General to monitor and report back on police training programs. Chief Beck says it is "very heartening to see that the commissioner and I share a vision of what needs to happen."

The U.S. Court of Appeals has reversed the decision of the Federal District Court that had said California's death penalty was unconstitutional because of excessive delays.  The case is explained in my after-argument post.  CJLF has a press release.

Veterans Day 2015

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VeteransDay.jpg
To all who served in defense of our freedom, thank you. 

I have noted this on the blog before, but it bears repeating.  Statesmen may proclaim freedom until the cows come home, but the declarations are only scraps of paper unless and until the forces of freedom win the war.

The people who volunteer to fight that fight sacrifice much.  At a minimum, they give up much of their own freedom for the duration of their service and accept a life of discipline and obedience.  Too often, they sacrifice much more, lives and limbs.  We must not forget that or fail to respect it.

News Scan

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Suspect Released Under Prop 47 Shoots at Officers:  California's Proposition 47, voter-approved legislation that reduces certain felonies to misdemeanors, is once again under fire after a convicted felon released from custody under the measure was charged Monday with firing shots at a police officer during a vehicle chase in Santa Ana.  Alexander Nguyen of My News LA reports that 28-year-old Jimmy Hoang Truong led officers on a two-hour, high-speed chase Saturday after failing to pull over his vehicle.  He then fired shots at pursuing officers and refused to surrender even when his vehicle was disabled, initiating a three-hour standoff that involved the SWAT team and hostage negotiators.  He was arrested after surrendering Sunday and charged Monday with attempted murder of a peace officer.  Truong had two felony drug convictions from 2012 and 2013 that were reduced to misdemeanors under Prop. 47 and he was not placed on parole, probation or post-release community supervision for either.  This year, he was arrested three times in April and received three misdemeanors counts a few months later.  "This is not the kind of person we want roaming our neighborhoods unsupervised," says John Franks, president of the Santa Ana Police Officers Association.

Appeals Court Rules Against Obama's Immigration Plan:  The U.S. Court of Appeals for the 5th Circuit in New Orleans ruled against President Obama's plan to shield up to five million illegal immigrants from deportation Monday.  David Nakamura of the Washington Post reports that the 2-1 ruling comes months after the same court denied an emergency request from the Justice Department.  In the wake of the decision, the Obama administration announced Tuesday that it will ask the Supreme Court to overturn the lower court injunction, "likely setting up a final battle" next year in the high court.  Last year, President Obama announced plans to use executive action to expand the 2012 Deferred Action for Childhood Arrivals (DACA) program and allow the illegal immigrant parents of U.S. children to remain in the U.S. and apply for three-year work permits.  Monday's decision blocks these plans.  There are an estimated 11 million immigrants living in the country illegally.

Realignment a Threat to All Californians:  In this piece in the Orange County Register, John Phillips warns all Californians that "bad policy can completely wreck your life," using AB 109, the 2011 law that transfers responsibility for supervising certain felons from state prison to county jail in an effort to reduce prison crowding, as an example.  The case of Tobias Summers puts into perspective the "total disaster" of AB 109: Summers' criminal history dates back to 1997 and includes three prison terms, the most recent ending in August 2012, and a stint in jail for a 2013 probation violation.  Following the 2013 violation, Summers was transferred from state custody to Los Angeles County's probation department for post-release community supervision in March, checking in with his probation officer and passing drug tests.  However, the day after meeting with his probation officer, Summers broke into the home of a 10-year-old Northridge girl who he kidnapped and raped repeatedly before releasing her and fleeing to Mexico, where he was eventually captured.  He was convicted of 32 charges in September and sentenced to life without parole.  The father of the 10-year-old victim wrote, "Had [Summers] been supervised by the state, I believe it much more likely that he would have gone back to prison when he violated the terms of his parole/probation in 2013."  L.A. County Supervision Mike Antonovich agrees that the policy is a "proven threat to public safety."

"Noble-Cause Corruption"

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Catching up a bit, this article by Paige St. John in the LA Times is a couple weeks old now and not on topic, but it introduces an important term to express a form of deceit that I have seen many times but did not have a term for.

Cal. Gov. Jerry Brown last month tied the rash of destructive fires to carbon emissions.  One small problem, say the scientists.  There is no scientific basis for that connection.

University of Colorado climate change specialist Roger Pielke said Brown is engaging in "noble-cause corruption."

Pielke said it is easier to make a political case for change using immediate and local threats, rather than those on a global scale, especially given the subtleties of climate change research, which features probabilities subject to wide margins of error and contradiction by other findings.

"That is the nature of politics," Pielke said, "but sometimes the science really has to matter."
Sometimes?

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Heather Mac Donald Talks Ferguson Effect:  In this article in the Providence Journal, Manhattan Institute Fellow Heather Mac Donald offers her take on the Ferguson effect and FBI Director James Comey's recent remarks on the topic that came under fire.  Mac Donald presents data to support Comey's position that the rising violence in many American cities is likely related to a drop in proactive policing brought on by civil unrest in Ferguson, Mo., and Baltimore, Md.  As of October 23, murders were up 76 percent in Milwaukee, 60 percent in St. Louis, 56 percent in Baltimore, 47 percent in Minneapolis and 36 percent in Houston, exemplifying how widespread the bloodshed is.  Her findings also show that officers are backing off discretionary policing:  arrests were down 10 percent in Los Angeles during the first half of 2015 even as crime spiked 20 percent, and summonses for low-level, quality-of-life offenses dropped 26 percent in New York City in the same time period.  Mac Donald concludes, "When officer disengage, the result is not a boon for black lives ... Rather, criminals become emboldened, leading to this year's bloodbath."

Cop Slugged by Illegal Immigrant Gang Member:  A Frederick County, Maryland sheriff's deputy was slugged by an illegal immigrant gang member out on bond as he worked on a traffic report inside in vehicle last week.  Stephen Dinan of the Washington Times reports that 18-year-old MS-13 gang member Jose Misael Reyes-Reyes, free on bond awaiting a deportation hearing for weapons charges he received in June, approached Deputy First Class Greg Morton as he sat in his police cruiser Thursday morning and began banging on the back window before reaching through a half-open window and slugging the deputy in the face.  He also kicked the deputy as he attempted to escape arrest.  Reyes-Reyes is potentially part of the recent surge of unaccompanied illegal immigrant minors from Central America, and it is unclear why he was released on bond given his status as an illegal immigrant gang member.  Frederick Sheriff Chuck Jenkins expressed concerns that "the unprovoked assault was part of a growing trend of violence against police."  Furthermore, "this attack shows the risk that the Obama administration is creating with its hands-off immigration enforcement policies," says Center for Immigration Studies policy director Jessica Vaughan. 

Baltimore Violence Continues at a Rate Not Seen in Years:  Violence continues to plague Baltimore, and with 294 homicides as of Sunday, the city is on the fast track to surpassing 300 homicides this year for the first time since 1999.  Kevin Rector of the Baltimore Sun reports that as of the end of October, homicides citywide were up 55 percent and nonfatal shootings increased 76 percent, while business robberies, carjackings, street robberies and burglaries spiked 125, 76, 14 and 11 percent, respectively.  Baltimore Police Commissioner Kevin Davis says, "There is an idea somewhere out on the street that this amount of violence is perhaps an ideal or opportune time for someone with a score to settle to take advantage of this time and settle that score," noting that whether related to drugs, gangs or retaliation, there is no randomness associated with the violence.  His department is taking several steps to curb the carnage, which erupted following the April death of unarmed black man Freddie Gray in police custody, such as moving all district-level nonfatal shooting detectives into a centralized unit at police headquarters to increase information sharing between them and the homicide unit, maintaining their success with removing guns from the streets, increasing training for officers and adhering to the newly launched body camera pilot program.

Use of Force and Suing Police Officers

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Today, after multiple relistings, the U.S. Supreme Court summarily decided Mullenix v. Luna, No. 14-1143.

On the night of March 23, 2010, Sergeant Randy Baker of the Tulia, Texas Police Department followed Israel Leija, Jr., to a drive-in restaurant, with a warrant for his arrest. 773 F. 3d 712, 715-716 (CA5 2014). When Baker approached Leija's car and informed him that he was under arrest, Leija sped off, headed for Interstate 27. 2013 WL 4017124, *1 (ND Tex., Aug. 7, 2013). Baker gave chase and was quickly joined by Trooper Gabriel Rodriguez of the Texas Department of Public Safety (DPS). 773
F. 3d, at 716.

Leija entered the interstate and led the officers on an 18-minute chase at speeds between 85 and 110 miles per hour. Ibid. Twice during the chase, Leija called the Tulia Police dispatcher, claiming to have a gun and threatening to shoot at police officers if they did not abandon their pursuit. The dispatcher relayed Leija's threats, together with a report that Leija might be intoxicated, to all concerned officers.
So when the natural consequences of Leija's voluntary choices follow in due course, what does his widow do?  Sue the police officer, of course.  The person actually at fault is dead, and she has his estate anyway, such as it is.

Under Supreme Court precedent, police officers are immune from suit so long as the law is not clearly established that their acts are illegal under the circumstances.  In immunity cases, as in habeas corpus cases, lower federal courts regularly try to avoid the rule by defining the "clearly established" law at an excessive level of generality.  Summary reversal of such decisions has taken up an inordinate portion of the Supreme Court's docket for some years now.  This one is reversed with only one dissent, by Justice Sotomayor.
Nine years after its three-drug protocol was halted by a "preliminary" injunction (still in effect) by a federal judge who said the state could go ahead with executions via a single-drug protocol, the California Department of Corrections and Rehabilitation has finally started the administrative process to official adopt such a method.  The California Notice Register entry is here.  The full document is on CDCR's website.

On April 26, 2012, three and a half years ago, CDCR informed the California Court of Appeal it had been directed to begin work on alternatives, including a single-drug method.  What happened?  It does not take that long to develop a protocol, particularly when Ohio had already been doing it for three years at that point.

They just sat on it in gross dereliction of duty.  CJLF, representing Bradley Winchell and Kermit Alexander, family members of murder victims, had to sue them to make them simply do their jobs.

Today's announcement is a big step forward.  There are presently two injunctions in force, one against the three-drug protocol and one against using a protocol that has not been through the Administrative Procedure Act process.  Both are erroneous, in my opinion, but completing this process will render them both moot.  Then California can resume the long delayed justice in its very worst murder cases.

This is a red-letter day in the fight for justice.

The story is covered by Paige St. John for the LA Times, Don Thompson for AP, and Tracy Connor for NBC.

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Kansas Killers Death Sentence Upheld:  A Kansas man convicted of murdering multiple women had his death sentence upheld Friday by the Kansas Supreme Court, marking the first time Kansas' high court upheld a death sentence since the state's reinstatement of capital punishment in 1994.  The AP reports that 71-year-old John E. Robinson Sr. is accused of killing seven women and a teenage girl in Kansas and Missouri over the course of several years by using the Internet to lure them with promises of work or sex, and stuffed some of them into barrels on his property.  He raised over 100 issues during his appeal.

Feds Lose Track of Most Border-Surge Teens:  Numerous sources indicate that the unaccompanied alien children (UAC) pouring over the border from Central America are not on the radar of government agencies and NGO contractors, and court records show that about half of them fail to appear for immigration court hearings.  Jessica Vaughan of the Center for Immigration Studies reports that since October 1, 2014, 77,824 UACs have been released into the U.S., discounting the approximately 40,000 who arrived in 2012 and 2013.  Of these thousands, only 35 percent bothered to attend legal orientation programs, 48 percent have skipped out on hearings and 60 percent of those whose cases are completed have been ordered deported, though very few have.  New arrivals accelerated sharply from July through September of this year because, according to Border Patrol agent Chris Cabrera, "Most believe that they will either not be caught, or even if they are caught, they will not be deported."

KY Officer Dies After Being Shot in the Head:  A Kentucky police officer who was shot earlier this week while searching for a robbery suspect died in the hospital Friday morning.  Lindsey Bever of the Washington Post reports that 33-year-old Daniel Ellis, a seven-year veteran of the Richmond Police Department, was shot in the head Wednesday morning when he and another officer went to an apartment to look for 34-year-old Raleigh Sizemore, who was suspected in an armed robbery of a woman at a gas station.  Sizemore was non-fatally wounded in the incident, treated and released into police custody.  He faces charges of attempted murder of a police officer and unlawful imprisonment, which will certainly be elevated now that Ellis has died.  Two other people in the apartment, 25-year-old Gregory Ratliff and 44-year-old Rita Creech, have been charged with complicity to commit murder and first degree robbery, respectively.  Ellis is the second police officer to be killed by gunfire in Kentucky this year, and the 32nd to be killed on-duty.  

I have criticized media "fact-checker" columns from time-to-time, as they occasionally show political bias and a loose association with the truth themselves.  WaPo fact-checker Glenn Kessler gets it right this time, though, with four statements by President Obama and candidates Carly Fiorina, Bernie Sanders, and Hillary Clinton. 

But the statements ... also reflect a basic misunderstanding of the data on prison populations. We've listed the statements in order, from the least egregious to the most outlandish, to demonstrate how -- almost like a game of telephone -- the facts get increasingly unmoored from the actual data. It's a complex issue, which leads itself to facile explanations.

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DEA Chief Agrees with FBI Chief on Ferguson Effect:  The nation's top drug enforcement official echoed the sentiments of FBI Director James Comey Wednesday when he called Comey's remarks that violent crime surges in many major cities may be linked to police officers' reluctance to engage suspects as "spot on."  Kevin Johnson of USA Today reports that the chief of the Drug Enforcement Administration (DEA) Chuck Rosenberg says he believes Comey's comments were "thoughtful and measured" when he suggested that the "Ferguson effect," a term coined following civil unrest last year in Ferguson, Mo. to describe law enforcement's hesitance to do their jobs out of fear of causing similar unrest, is possibly contributing to the uptick in violence in cities across the nation, such as Baltimore, Chicago, St. Louis and Milwaukee.  Milwaukee Police Chief Edward Flynn adds that "police in cities feel like they are not being supported by the federal government," and that coupled with a general breakdown of public support for officers is affecting the way communities are being policed. 

CA Univ. Attacker Praised by ISIS:  The student who was killed by University of California Merced police after stabbing four people on campus Wednesday received praise on Twitter Thursday from ISIS, which last week released videos encouraging lone wolf stabbing attacks.  Fox News reports that the attacker, 18-year-old freshman Faisal Mohammad, was described by his roommate as a loner, and a witness said that he was "having fun" and smiling he was stabbing fellow students.  Mohammad, a computer science and engineering major, began stabbing people with a large hunting knife around the start of an 8 a.m. class before being fatally shot by pursuing campus officers, who acted quickly.  Mohammad's backpack has been detonated by police and they are in the process of testing a substance found inside.  All four stabbing victims are expected to survive. 

Drug Overdoses Kill more than Guns, Car Crashes:  The Drug Enforcement Administration announced Wednesday that drug overdose deaths are the leading cause of injury death in the United States, surpassing motor vehicle and gun deaths.  Susan Jones of CNS News reports that in 2013, the most recent year for which data is available, 46,471 Americans died as a result of drug overdoses, more than half of which were attributed to prescription painkillers and heroin.  In comparison, the Center for Disease Control and Prevention tallied motor vehicle deaths at 35,369 and firearms deaths at 33,636.  The National Drug Threat Assessment concludes that "Mexican gangs remain the greatest criminal drug threat to the United States."

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SF Sheriff Loses Reelection Bid:  The San Francisco Sheriff central in the national debate over "sanctuary cities" lost his reelection bid Tuesday.  Fox News reports that 54-year-old Ross Mirkarimi was thrust into the national spotlight in July, when illegal immigrant Francisco Sanchez shot and killed 32-year-old Kate Steinle after being released from his jail three months before, despite a request from federal immigration officials to keep him detained for deportation.  Mirkarimi responded to criticism by defending San Francisco' sanctuary city policies, "taking the practice to a new level under his leadership."  Other high-profile controversies continued to plague Mirkarimi, including flunking a marksmanship test and having his driver's license temporarily suspended for failing to properly report a minor accident while driving a department-issued car.  Mirkarimi will be succeeded by Vicki Hennessy, a former sheriff's official who previously described the city's sanctuary city policies, which routinely ignore and fail to cooperate with U.S. Immigration and Customs Enforcement, as "misguided."

OH Rejects Marijuana Legislation:  Ohio voters voted down a ballot proposal Tuesday that would have legalized both recreational and medical marijuana, with 65 percent of voters opposed to the measure and 35 percent in favor.  Julie Carr Smyth of My Way reports that the proposed state constitutional amendment, Issue 3, would have permitted adults aged 21 and older to use, purchase or grow certain amounts of marijuana and allowed others to use it as medicine.  One component of the measure, which states that growing facilities were to be controlled by a few private investors, was heavily criticized by opponents as a "marijuana monopoly" and became a separate ballot question that passed.  Even supporters of legalized marijuana voted against Issue 3 because it "was designed and built primarily to garner massive exclusive profits for a small group of self-selected wealthy investors."  Other supporters have called Tuesday's defeat "relatively insignificant" and "a bump in the road."

TX Gov. Strips State Grant Funding from Sanctuary City Sheriffs:  Following an order by Dallas County Sheriff Lupe Valdez to scale back on honoring detainers from U.S. Immigration and Customs Enforcement (ICE), Texas Gov. Greg Abbott announced a new plan to strip state grant funding from county sheriffs that adhere to "sanctuary city" policies.  Bob Price of Breitbart reports that Abbott's new standards require Texas sheriff's departments seeking grants from the Governor's Criminal Justice Division (CJD) to fully honor ICE's detention requests for criminal immigrants.  He has also suggested new legislation to be considered by 2017, including new laws making it illegal for a Texas sheriff to ignore an ICE detainer and holding counties financially responsible for the actions of any illegal immigrant released because of an ignored ICE detainer.  "It is vitally important that sheriffs lead by example and enforce the rule of law," said Gov. Abbott in a written statement.

Individual-Reaction Execution Claims

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Yesterday the U.S. Supreme Court granted a stay of execution to a Missouri murderer.  AP reports:

Death row inmate Ernest Lee Johnson, who was convicted of beating three people to death with a claw hammer, was scheduled to die at 6 p.m. Tuesday at the Missouri state prison in Bonne Terre. But the Supreme Court on Tuesday night granted a stay while the 8th U.S. Circuit Court of Appeals considers whether a complaint from Johnson was properly dismissed.

Johnson, 55, claims that the execution drug Missouri uses could cause painful seizures because he still has part of a benign tumor in his brain, and surgery to remove the rest of the tumor in 2008 forced the removal of up to 20 percent of his brain tissue.
Two cases is a little early to declare a trend, but this is the second case in a row where the murderer is claiming that an execution protocol would be cruel as applied to him because of some individual medical condition, as opposed to its use generally.  In Florida, the state supreme court sent the issue back to the trial court, which took evidence and rejected it.  See this post.  The U.S. Supreme Court denied a further stay without dissent on this ground, although two justices dissented on other grounds.  See this post

That evidently didn't happen in the Missouri case.  The Supreme Court's order states, "Because petitioner's complaint was dismissed for failure to state a claim, the State was not required to submit any evidence refuting this allegation. In the currently pending appeal, the Court of Appeals will be required to decide whether petitioner's complaint was properly dismissed for failure to state a claim or whether the case should have been permitted to progress to the summary judgment stage."

Johnson murdered three people in a convenience store robbery in 1994:  Mary Bratcher, Fred Jones, and Mabel Scruggs.  Being beaten to death with a claw hammer is far worse than anything at issue in the present litigation.
Heather Haddon has this article in the WSJ with the above headline.  The subhead is "New Hampshire poll participants put it above jobs and economy as something candidates should address."

I am pleased to see this important issue getting attention.  However, there is a big difference between saying this is something candidates must address and coming to a consensus on how to address it.  One thing we don't need is vague, boundless faith in "treatment" without an awareness of how difficult it is to keep addicts in treatment.
It wasn't too much of a surprise to see persons of sense prevail in Ohio.  The Buckeye State is, after all, the essence of middle America.  But here is some more good election news from a place that does not give us much.  Vivian Ho and Michael Cabanatuan report for the San Francisco Chronicle:

Former Chief Deputy Sheriff Vicki Hennessy won her bid Tuesday to unseat Sheriff Ross Mirkarimi, who cast himself as an innovator in the hidebound law-enforcement community but was dragged down by a series of personal and professional controversies.

In the race to lead the agency whose primary role is overseeing San Francisco's jails, Hennessy ran a low-key campaign that drew support from the deputies' union and nearly every politician at City Hall. She called herself an effective manager. Mirkarimi claimed she was too much of an insider to push through needed reforms.
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[Mayor Ed] Lee was quick to blame poor leadership for the department mishaps to follow, including the release of a man from jail who could have been deported but is now charged with fatally shooting 32-year-old Kathryn Steinle on an Embarcadero pier in July. The case sparked a national immigration debate.

Big Pot Crashes and Burns in Ohio

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Ohio's obnoxious marijuana legalization initiative went down to a crushing defeat yesterday, Christopher Ingraham reports in the WaPo.

Voters rejected the measure with 64 percent opposed and only 36 percent in favor. It was defeated in every single one of Ohio's 88 counties, some of which voted against the bill by huge margins, according to preliminary numbers: 55 percentage points in Holmes County. 60 in Mercer. 65 in Putnam.

The bill was likely doomed to fail from the get-go for a variety of reasons. It was an off-off election year, where voters are older and more conservative. Ohio has never exactly been a bastion of marijuana culture. And most crucially, the bill would have created a state-mandated oligopoly on the production of marijuana, with a handful of the measure's wealthy backers as the primary beneficiaries.
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New CA Initiative to End Sanctuary Cities:  A new ballot initiative has been introduced that aims to eliminate sanctuary cities in California by implementing federal law at the state level.  Adelle Nazarian of Breitbart reports that the measure, titled the" Davis-Oliver and Kate's Law, Protecting Americans," would require local law enforcement officials to notify the Department of Homeland Security (DHS) about any detainers that call for the surrender of criminal aliens to federal authorities.  It would also require them to notify the DHS Secretary with identifying information about every illegal immigrant with questionable status and to do so in a timely manner.  The initiative has been sent to California Attorney General Kamala Harris for title and summary.

Competing Death Penalty Measures Possible on CA 2016 Ballot:  Opposing death penalty measures were introduced last week in California, both of which require death row inmates to work and pay restitution to victims, inviting the possibility that they may end up on the November 2016 ballot together.  Maura Dolan and Marisa Gerber of the LA Times reports that a measure introduced by a pro-death penalty group, "designed to prod the California Supreme Court," seeks to speed up executions in the state, reducing the time from conviction to execution from 30 years down to 10 to 15 years.  The anti-death penalty initiative submitted for state review would entail work and payment of restitution to victims, but would replace capital punishment with life in prison.  Both sides are still working to raise the necessary sums to assure ballot placement.  Nearly 750 inmates remain on California's death row, the largest in the nation.

Dashcam Video Contradicts Woman's Profiling Claim:  After a column was published in the Dallas Morning News by a Texas journalism professor claiming that she was targeting unfairly by police for "walking while black," a review of the dashcam footage reveals that she was making false accusations.  Perry Chiaramonte of Fox News reports that University of North Texas dean of journalism Dorothy Bland claims that during a morning walk in Corinth, Tex., on Oct. 24, she was stopped by two officers who flashed their lights and sirens and offered her no explanation for the stop.  A review of the video taken by the patrol car's dashcam, however, shows the two officers getting out of their car without turning on sirens and approaching Bland, who can be seen walking in the middle of the street, to inform her that it would be safer to walk on the side of the street.  They explained further that a truck that she hadn't seen earlier was attempting to get around her.  

KY High Court Upholds Death Sentence:  WKRC reports that the Kentucky Supreme Court rejected the appeal of Gregory Wilson, sentenced to death for kidnapping, raping and killing Deborah Pooly in 1987.  Wilson's latest appeal challenged an earlier denial of a DNA test.

Bill Shaw, Deputy Air Marshall?:  On a flight from Los Angeles to Philadelphia, CJLF board member Bill Shaw helped subdue a passenger who disrupted the flight by standing in front of the cockpit door and ranting about 911.  Bill and another man managed to subdue the culprit and escort him to a seat, where he was strapped in by the crew for the remainder of the flight.  Fox 29 reports on the story here.

Jonathan Adler has this post at the Volokh Conspiracy.  The title is his description of Issue 3 on the Ohio ballot.

Issue 3 would create a marijuana "monopoly" (actually, an oligopoly) consisting of 10 producers who would have their exclusive rights to engage in the commercial production of marijuana enshrined in the state constitution. The campaign in support of Issue 3 -- so-called Responsible Ohio -- is predictably supported by those who would hold these exclusive rights. This is crony capitalism at its worst.
As I have mentioned on this blog before, I see a legalized marijuana industry as a greater threat than legalization as such.  Legal producers with a First Amendment right to promote their product will increase consumption considerably above and beyond what legalization alone will do, as we have seen so disastrously with tobacco, and that is not good.

My solution, given that I think legalization is inevitable, is for the government to monopolize the business itself, as some states do with liquor at the retail level and many states do with the numbers racket at the wholesale level.  Few seem to be interested in that, though.  Some people are dead set against legalization in any form despite the seeming inevitability, and some are gung ho for maximizing consumption despite the medical evidence of ill effects and the slim-to-none benefits.

The legislature has put another proposition on the same ballot forbidding putting monopolies in the state constitution.  What happens if they both pass?  In California we have a nice, clear rule.  If two contradictory measures pass on the same ballot, the one that gets more votes prevails.  (Article II ยง 10(b).)  Apparently Ohio has no clear answer.
A:  When, in an article in Politico, the other side is quoted giving an answer like this (emphasis added):

[W]hile the [percentage of those who re-offend after early release is] small - and a recent study shows they re-offend at the same rate as those who served their full terms, about 45 percent -- it only takes one example for a 30-second campaign ad. [Steve Cook, President of NAAUSA] said they've already found a case in Chattanooga, Tennessee, where a former federal inmate would have been in jail on the day he killed a man in 2011, if not for a sped-up release.

"When criminals are in custody, they're not victimizing the good and honest citizens in our community," Cook said. "When they're out on the street, they are."

Those types of arguments are "so old school," said [Holly] Harris [of the U.S. Justice Action Network]. "It just sounds old and dated and just so out of tune with where we are in society."

Translation:  "Where we are in society = "deep-sixing inconvenient facts in 'fact-based sentencing'."

Former USAO appellate chief turned National Review analyst Andy McCarthy uses the curious Dennis Hastert case to pull back the curtain on what is really going on with "sentencing reform."  He notes:

Mandatory minimum sentences and strict sentencing guidelines for serious offenses were enacted precisely because judges, often in collusion with prosecutors [Ed. note: and virtually always at the urging of defense counsel], were systematically releasing serious offenders, allowing them to continue preying on society. While the "man-mins" and guidelines helped dramatically reduce crime, the left-leaning legal profession agitated against them. One result is "fact" pleading -- the sort of shenanigans that we see in the Hastert case: a willfully false rendition of the facts in order to sidestep sentencing enhancements required by law.

That is what sentencing "reform" has in store for us. The proposals may call for careful judicial fact finding before a felon is released. But the law already calls for careful judicial fact finding when the felon is sentenced. What we frequently get, instead, is careful judicial evasion -- often aided and abetted, it must be noted, by the Justice Department. It may be that careful fact finding would result in the release of some prisoners who should be released; but the breed of "fact" finding we are apt to get from sentencing "reform" will result in the mass release of incorrigible, violent criminals.

McCarthy's article is a goldmine about how the federal criminal justice system works on the inside, and well worth your read.  Sentencing reform is getting as far as it is only because the public has no idea about how many breaks for criminals are already built into the system, though hidden from view.
Cliff Kincaid has this post at Accuracy in Media:

Before Senator Ted Cruz (R-TX) electrified conservatives with his denunciation of liberal media bias at the GOP presidential debate last week, he took a little-noticed position on a major crime bill before the Senate that set him apart from the politically powerful Koch brothers. Taking the side of law-and-order conservatives on an issue that could emerge as a major focus of the 2016 presidential campaign, Cruz came out against the Sentencing Reform and Corrections Act (S. 2123) on the grounds that the legislation, which will retroactively reduce the sentences of thousands of federal prison inmates, could lead to the release of violent criminals, some convicted of using weapons while engaged in other crimes. He said the Senate bill would release "illegal aliens with criminal convictions" when a "major crime wave" is already sweeping the nation.

In an extraordinary development, the Koch brothers decided to publicly go after Cruz. Echoing the views of the libertarian billionaires, whose network of conservative advocacy groups was planning to spend $889 million on the 2016 campaign, Mark Holden, Senior Vice President & General Counsel of Koch Industries, Inc., issued a statement denouncing the Texas senator by name. He said, "We are disappointed that some members, including Senator Cruz, who have supported the need for reform and been strong supporters of the Bill of Rights, did not support this bill."
Strong supporters of the Bill of Rights?  Since when does supporting the Bill of Rights require supporting badly written, ill-conceived legislation that goes much too far in bringing back the evils that the 1984 sentencing reform was enacted to correct?  See CJLF's analysis of S. 2123.

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Man Shoots, Kills Three in Broad Daylight:  A man gunned down three people in broad daylight on Saturday morning in Colorado Springs, in what appears to be a random act, before being killed in a shootout with police.  CBS News reports that the shooter, whose identity has not been released, roamed near downtown Colorado Springs armed with an AR-15 rifle and a revolver on Halloween morning, fatally shooting a young man riding his bicycle and then two women sitting on the porch of a sober living home.  The suspect shot out the window of a police squad car before officers returned fire, killing him.  Witnesses say the gunman "walked calmly and collectedly" during the shootings, as if "he was having a stroll in the park."  At this point in the investigation, the motive is a mystery.

FBI to Probe Slain Illinois Cop's Mental State:  The FBI is mounting a comprehensive study of the mental state of an Illinois police officer who died two months ago, in order to determine whether he was murdered or committed suicide.  Matt Finn of Fox News reports that 52-year-old Fox Lake lieutenant Joseph Gliniewicz was found gunned down by his own service weapon in a rural area on Sept. 1 after he radioed that he was in pursuit of three suspects on foot, but after two months of investigation, local authorities have more questions than answers about how he died.  Some believe that Gliniewicz was distraught about an internal police department asset and an inventory check, though one of the officer's longtime friends who met with him the day before he died says that he saw no indication of suicidal thought or behavior.  The FBI will compile a victimology report of Gliniewicz by analyzing his behavior, mental state and actions. 

Illegal Immigrants Still Believe in Free Passes:  Between July 7 and Sept. 30 of this year, federal agents interviewed 345 illegal immigrants traveling with family members to the U.S., and their answers indicate that immigrants are still under the impression that once they reach the U.S., they will be permitted to stay and collect public benefits.  The AP reports that almost one year after the Obama administration launched a public relations campaign in Mexico and Central America to dispel rumors of free passes into the U.S., the interview summaries, compiled in reports by the U.S. Customs and Border Protection's office, suggest that those efforts are failing.  When interviewed, illegal immigrants "consistently cited opportunities to obtain permission to stay in the U.S., claim asylum and receive unspecified benefits."  Additionally, 181 of the 345 immigrants interviewed said that reports about the release of immigrant families influenced their decision to travel to the U.S.  Although the report is "not intended to be a comprehensive analysis of this situation," it does exemplify the consequences of the Obama administration's lax immigration policies.  Beginning last summer, an unprecedented number of immigrant children and families surged across southern border, reaching over 136,000 people by the end of the 2014 fiscal year.  The surge dipped during the current fiscal year, but has picked back up again in the last three months.

The Washington Post supports a currently pending bill that would go easier or heroin pushers, but has the honesty to publish this story showing in heartbreaking detail the human damage these people bring about.

Let's assume arguendo that pot sentences can sometimes be too harsh.  What is the earthly excuse for voting to go easier on heroin dealers?  Do our senators and representatives have no clue about the ongoing, deadly heroin epidemic?  Or the ravages this drug causes even when it doesn't kill you?  Or is it that they don't care? As long as those billionaire-funded political contributions keep coming in, hey, look, stuff happens.

Read the story and decide for yourself whether now is the time to go soft on heroin dealers.  It begins:

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