December 2015 Archives

The Year in Review, Looney Tune Version

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The notorious Brennan Center published, in the Huffington Post, a "Year in Review" piece about criminal justice "reform" in 2015.  As excerpted on SL&P, it starts as follows:

April: A significant number of candidates running for President contributed essays to a book on criminal justice reform, entitled Solutions: American Leaders Speak Out on Criminal Justice.  New York Times White House correspondent Peter Baker wrote, "The last time a Clinton and a Bush ran for president, the country was awash in crime and the two parties were competing to show who could be tougher on murderers, rapists and drug dealers.  But more than two decades later, declared and presumed candidates for president are competing over how to reverse what they see as the policy excesses of the 1990s and the mass incarceration that has followed."

With the streets still smoldering in Baltimore, Hillary Clinton gives a speech declaring, "It's time to end the era of mass incarceration." 

July: Former President Bill Clinton concedes that the 1994 Crime Bill, which imposed harsh sentences for many crimes and provided incentive funding to states to build more prison beds, "made the problem worse."...


I'll stop there and reflect on how this might be written by an organization more concerned with crime victims than with criminals.

The "Ferguson Effect" Is Real

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For those of you who would rather watch Heather Mac Donald than read her, Mary Kissel of WSJ has this video interview.

News Scan

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Parolee Charged with Murder:  A parolee who killed his girlfriend and father, and also critically wounded his sister, last week during a rampage in Riverside and San Bernardino counties was charged Tuesday with murder and attempted murder.  My Valley News reports that 38-year-old Jason Lynn Barton, who has prior convictions for spousal abuse, use of illegal drugs and assault resulting in great bodily injury, shot his girlfriend Wednesday during an argument outside of a gas station, and then stole a running vehicle that he used to drive to where his father and sister were located, shooting them both multiple times in the street.  Barton immediately fled the scene and drove to San Diego, where he was unaccounted for until Thursday morning after employees at a restaurant alerted authorities when they saw Barton come in possessing a firearm.  A brief confrontation ensued when police arrived, but Barton eventually surrendered and was arrested.  Along with the two murder counts and attempted murder charge, Barton faces a special circumstance allegation of taking multiple lives in the same crime and sentence-enhancing gun and great bodily injury allegations.

Brief Asks High Court to Uphold Amnesty Suspension:  A brief submitted to the U.S. Supreme Court Tuesday by Texas Attorney General Ken Paxton requests that the high court uphold a federal appeal court's November decision to suspend President Obama's attempt to grant amnesty to over 4 million illegal immigrants and ignore the federal government's petitions for further review of the case.  Anna Giaritelli of the Washington Examiner reports that the brief argues that Obama's actions on immigration are an "affront to the rule of law" and that rewriting national immigration law "requires the full and careful consideration of Congress."  The federal government was sued by 26 states last January for disregarding Congress' legislative authority over immigration policy in order to grant lawful presence and welfare benefits to almost one-third of the total illegal immigrant population, and a total of three courts have ruled in favor of the Texas-led state coalition.  A decision by the Supreme Court on whether it will review the case this term is expected in early 2016.

Two Myanmar Men Sentenced to Death for Murder of British Tourists:  A Thai court has sentenced two Myanmar migrant workers to death for murdering two British vacationers last year on Thailand's Koh Tae Island.  ABC News reports that Zaw Lin and Win Zaw Tun, both 22, will face execution for killing 24-year-old David Miller and raping and killing 23-year-old Hannah Witheridge on a Thai beach in September 2014; Miller was struck in the head by a single blow with a garden hoe and dragged to shallow surf where he drowned, and Witheridge was raped and bludgeoned to death, also with the garden hoe.  The Myanmar men were arrested shortly after the couple's bodies were found and confessed to the crime to Thai police, but later recanted, insisting that the confessions were made under duress.  But DNA evidence on Witheridge's body, along with the suspects being in possession of Miller's phone and sunglasses at the time of their arrest, led to their convictions.  Defense attorneys for the two men have accused Thai police of mishandling the case and will likely appeal the guilty verdict.

Rape Victim Forced to Call Boyfriend Calls 911 Instead:  A kidnapped Georgia woman who was assaulted early Monday called 911 after her attacker told her to call her boyfriend so he could hear her being raped.  Fox News reports that Daeontae Smith, the dispatcher, took the woman's call and played along, acting as though he was her boyfriend and alerted police when she revealed her location.  Police were dispatched to the scene where the alleged attacker, 27-year-old Robert Giles, was arrested in the act.  He faces charges of rape, false imprisonment and obstruction.

The National Association of Assistant United States Attorneys has issued a press release questioning the President's mass clemency, and asking for disclosure of more information about its recipients.  NAAUSA notes:

On Friday, December 18, President Obama, working in conjunction with the Justice Department, ordered the early release of another 91 convicted drug traffickers from fully lawful sentences their criminal behavior had earned. This brings to approximately 150 the number of traffickers given early release through executive clemency in just the last 14 months.

When it announced the clemency project, the Administration committed to granting clemency only if six specific criteria were met, including that the defendant was a non-violent, low-level offender, did not have a significant criminal history, and had no history of violence. Sadly, that has not been the case.

In fact, many of the drug traffickers being released had armed themselves (one with 40 firearms); many were leaders or supervisors in their crimes (one was the lead defendant in a 69 day trial); many had multiple prior felony convictions (one had 8 prior felony drug trafficking convictions); and the vast majority were involved in conspiracies to distribute large quantities of dangerous drugs, often hundreds of thousands of dollars' worth of methamphetamine or cocaine.

Significantly, these clemency releases are in addition to the 46,000 drug traffickers who are being released through retroactive softer sentences the White House and the Justice Department sought from the U. S. Sentencing Commission. As has been widely reported, 6,000 to 8,000 of these convicted drug traffickers were released early last month, and another 8,500 will be released in the next ten months. 

No one is claiming these released traffickers are innocent, nor that the drugs they trafficked are harmless. No one is claiming that some -- probably most -- won't do it again. In fact, this class of drug offenders deals in potentially lethal drugs and has a high rate of recidivism (up to 77% according to a study by the Bureau of Justice Statistics). And no one can provide certainty that addicts - the young, the old, the weak and the vulnerable - will not die as a result of these releases.

News Scan

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Latest Surge of Illegals is Significant:  Recent statistics from U.S. Customs and Border Protection (CBP) show that illegal immigration by unaccompanied minors and family units surged significantly during the first two months of FY2016 compared to the same period in FY2015.  Penny Starr of CNS News reports that CBP revealed that unaccompanied alien children (UAC) apprehended at the U.S-Mexico border between Oct. 1 and Nov. 30, 2015 increased 106 percent compared to the same period last year, with 10,588 UACs taken into custody this year and just 5,129 last year.  Family units comprised an even larger increase, so far spiking by 173 percent in the first two months of FY2016, with a total of 12,505 apprehensions versus 4,577 in FY2015.  CBP, in spite of its own alarming numbers, reaffirmed that the Obama administration is working "aggressively" to secure the U.S. border.

TX May Seek Prison for 'Affluenza' Teen:  Texas officials announced Tuesday that they may seek adult prison for the "affluenza" teen, whose controversial defense in juvenile court that being spoiled by his parents blinded him to the consequences of a drunk-driving accident that killed four people.  Fox News reports that 18-year-old Ethan Couch, his blond hair dyed brown in an effort to disguise his identity, and his mother, Tonya, were captured in Puerto Vallarta by Mexican authorities on Monday, nearly two weeks after Couch failed to show up for a probation appointment and could not be located.  Tarrant County Sheriff Dee Anderson says it appears that the duo planned their escape and believes that they fled in late November after a video surfaced showing what appears to be Couch at a party where people were drinking alcohol.  Drinking alcohol would have violated the 10 year probation Couch received instead of a prison sentence for a June 2013 drunk-driving accident, involving a drunk 16-year-old Couch slamming his car into disabled SUV on the side of a dark road, killing four people and injuring several others.  Couch and his mother will be returned to the U.S. on Tuesday, where the teen will attend a scheduled court hearing next month to determine whether his case will be moved to adult court and his mother will face charges of hindering an apprehension.

Two Arrested on Suspicion of Planning Holiday Attacks in Belgium:  An investigation revealing "the threat of serious attacks that would target emblematic places in Brussels" during the end-of-year holidays has brought about the arrests of two people in Belgium on suspicion of planning terror attacks.  The AP reports that a source close to the investigation says that the Belgian capital's main square was one of the suspected targets.  Two male suspects were arrested following searches Sunday and Monday in the Brussels area, in which military-type training uniforms, propaganda materials from the Islamic State and computer material were seized, but no weapons or explosives were discovered.  The federal prosecution's office declined to make any more details public, but ensured that the probe was not connected to the Nov. 13 Paris attacks that killed 130 and injured hundreds more.  Belgium is one of the leading European sources for foreigners recruited to fight for the Islamic State and other extremist Islamic organizations.  The alarming information likely has the FBI and other U.S. officials on high alert for possible attacks in the U.S. during the festive New Year's holiday.

...was the line handed out by Attorney General Loretta Lynch.  And I suppose that's true, at least until one looks at the data, which USA Today did in this story, titled, "Providence one of many US police forces feeling Ferguson aftershocks."  It notes:

In the past 16 months, the so-called "Ferguson Effect" has become a staple in the American vernacular. Yet very few agree on what exactly that means and what it may portend for the future relationship between law enforcement and the communities they serve.

Actually, we have seen a relationship.  Murder is spiking across the country after more than two decades of sharp decline.  If people want to convince themselves that the incidence of murder has nothing to do with the frequency and aggressiveness of police work, they are free to do so  --  and, for political ends, they will.

In Chicago, now roiled by the police shooting of a black teenager, Mayor Rahm Emanuel suggested earlier this year that the national backlash against allegations of police brutality following Ferguson had caused police to disengage, resulting in recent spikes in violent crime. FBI Director James Comey drew the ire of the White House in October when, like Emanuel, he proposed that recent surges in violence may be explained by "a chill wind that has blown through law enforcement.'' Milwaukee Police Chief Ed Flynn, meanwhile, recently lamented that local law enforcement had all but been abandoned by the federal government, which has mounted more than 20 investigations of local police operations since 2009, with the most critical examination prompted by the shooting of black teenager by a white police officer in Ferguson.

My friend and former colleague Chuck Rosenberg, now head of the DEA, has said the same thing.

The debate about whether there is a Ferguson Effect is just so much politically-engineered hot air.  When important power centers like the White House, DOJ's Civil Rights Division, and Al Sharpton's National Action Network are relentlessly portraying cops as racist bullies, if not Nazis, the police are going to feel the intimidation that's intended for them.  This is not rocket science.

A little less than two years ago, now-18 year-old Ethan Couch was sentenced for an automobile collision he caused two years before, in which he killed four people.  Four homicides might lead one to think at least a little jail time was in the offing, but what with "restorative justice" and a nifty psychologist's report, jail time was not to be. Instead, as the Washington Post reports:

Couch was sentenced to a drug-and-alcohol-free probation...; a psychologist and the teen's lawyers argued in his defense that the then-16-year-old's reckless behavior was a result of "affluenza."

I would love to have been a fly on the wall when the hired "psychologist" and the defense lawyer came up with that one.  I could be drunk and stoned and contemplating for ten years and still not have ginned up "affluenza" (a "syndrome" created by wealthy parents who fail to enforce discipline).  But I have never been a match for the creativity of the defense bar and its experts.

Anyway, this week brings us the news that, in the course of the sobered-up life his alleged "probation" was supposed to bring him, Mr. Couch took off for the super-plush resort of Puerto Vallarta, Mexico.  This was after a home video surfaced of his playing a rugged game of beer pong.  He and his mother, who was evidently financing this study in responsible living while staying with him, have now been taken into custody.

Lots of lessons here, but I'll settle for just two:  First, letting a defense shrink tell the tale at sentencing isn't that good an idea; and second, a much better idea would be sharply cabining the discretion of judges so that, no matter how foolish or naive or (in some cases) bought-off they are, serious crimes will get serious sentences. There is no reason we should live with this sort of song-and-dance travesty of justice.


That Didn't Take Long

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I noted last week that Washington state, ever in the vanguard of progressive criminal justice (such as its Governor's refusal to carry out lawful executions), had given early release to thousands of prisoners.  This was earlier than intended, mind you, and it was less progressivism than garden-variety carelessness, despite the numerous assurances we hear that early release programs will be carried out with great discretion.  They will, so we are told, keep us just as safe as we are now.

No doubt, unless you're Lindsay Hill, or, more correctly, the late Lindsay Hill.  Here's the story:

A Washington state prisoner mistakenly released early because of a computer error has been charged with killing his girlfriend in a car crash when he should have been behind bars, officials said Monday.

The revelation comes a week after Gov. Jay Inslee announced that a software coding error led as many as 3,200 offenders to be wrongly released since 2002. He has ordered a review of prisoner releases ahead of a broad fix to the software problem, which is expected early next month.

One of those freed was Robert Jackson, 38, who walked out of prison Aug. 10, four months too soon. He had been convicted of robbery with a deadly weapon and should have been released Dec. 6.

During that time, he fled from a Nov. 11 wreck in Bellevue that killed his girlfriend Lindsay Hill, 35, who was riding in the car he was driving, according to prosecutors and Department of Corrections officials.

Jackson has been charged with vehicular homicide and felony hit-and-run and is being held in jail on $2 million bail, prosecutors said.

He was speeding and impaired by drugs or alcohol at the time of the accident, prosecutors said.


Gosh, what a surprise that a previously convicted felon would flout the law again!



What To Do When Murder Is Spiking?

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The thing to do is reduce the police force to its smallest size in a decade.

This is the upside-down thinking of the nation's capital, Washington, DC.  The Washington Post has the story:

The number of D.C. police officers in the District has fallen below 3,800, its lowest level in a decade, breaking a threshold that top District officials once warned would be dangerously thin in a city that continues to grow.

This a perfect match to the other sort of thinking going on in DC, to wit, that the thing to do when heroin usage and overdose deaths are spiking is to reduce the penalties for heroin dealers.  That, however (plus reducing penalties for other wonderful drugs like meth), is the main thing sentencing reform, and particularly the SRCA, is about.

If there is some definition for this other than insanity, I'd love to hear it.

P.S.  As you will see in the Post story, the increase in the DC murder rate since 2012 has been shocking.  There were 13.9 murder victims per 100,000 population in 2012, compared to 23.7 today.  That is a 70% increase in three years.  As Kent has noted, perhaps the Brennan Center and other pro-criminal groups will be able to tell us why this just isn't all that bad.

News Scan

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No Indictment in Tamir Rice Case: A grand jury declined to charge a white police officer or his partner in the death of a 12-year-old black boy, who was fatally shot in November 2014 while carrying a pellet gun.  Fox News reports that Cuyahoga County Prosecutor Timothy J. McGinty announced Monday that the grand jury, which had been meeting since mid-October, decided not to indict patrolman Timothy Loehmann was shooting Tamir Rice, calling the case "a perfect storm of human error," but that no crime was committed.  The case largely centered around brief, grainy surveillance footage showing the encounter, which prosecutors had argued would be "misleading"because it "provides an incomplete picture" when viewed alone. Experts hired by both the prosecution and the Rice family testified and presented opposite findings over whether the shooting was justified and the grand jury, the burden of proof of which is to only decide that a crime might have been committed, concluded that no crime occurred.

L.A. County Seeks Lower Homicide Clearance Rate:
With nearly half of the homicides in Los Angeles County between Jan. 1, 2000, to Dec. 31, 2010, unsolved, local law enforcement is looking for ways improve the homicide clearance rate.  Sarah Favot of the L.A. Daily News reports that an analysis of homicide data over the 11-year period between found only 51.5% of homicide cases had been solved.  To find the solutions for improvement, LA County officials are looking at retired Santa Ana Police Chief Paul Walters, whose 25-year tenure as the chief of that urban city where the clearance rate went from 28% in 1993 to 83% in 2012.  Walters took several steps to help solve homicides as acting chief, including the creation of a gang homicide unit that was handled by gang specialists, development of a DNA cold case unite made up of retired detectives; regular collaboration with the FBI and the Orange County District Attorney's Office; the hiring of his own firearms examiner to avoid the 18-month wait for the county to process ballistics; setting up a Strike Force Team that analyzed crime trends, and utilized a large donation to establish a gang homicide reward program. 

Judges, Conscience, and Dictatorship

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Judge Harry Pregerson of the U.S. Court of Appeals for the Ninth Circuit recently took senior status.  That means he may still sit on three-judge panels but will no longer participate in the court's decisions to rehear a particularly important case before an 11-judge panel or sit on such larger panels.  Maura Dolan has this article in the L.A. Times.  It is mostly favorable, as articles on such occasions tend to be, but there is one dissenting view expressed.

The headline is, "Judge Harry Pregerson, leaving the bench at 92, always followed his conscience."  Sounds nice, doesn't it?  I mean, who could criticize a person for following his conscience?  Well, there is a big difference between "conscience" in personal conduct and "conscience" as used in this context.  Here, "conscience" is little more than a high falutin word for "opinion."  On matters of great public controversy, both sides believe they are right, and a judge who decides on the basis of which opinion he agrees with rather than on the basis of the law is acting as a dictator, not a judge.
Here's a follow-up on my Boxing Day post.  That big city murder increase dismissed as a mere 11% in a single year in the Brennan Center's preliminary figures turns out to be 14.6% in the final figures, according to this press release.  That is nearly one in seven.  And what could cause this?

The preliminary report examined five cities with particularly high murder rates -- Baltimore, Detroit, Milwaukee, New Orleans, and St. Louis -- and found these cities also had significantly lower incomes, higher poverty rates, higher unemployment, and falling populations than the national average.
"There are none so blind as those who will not see."  These are also cities where the police are under severe attack.

Spinning the Murder Surge

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Heather MacDonald has this op-ed in the WSJ exposing the Brennan Center's attempts to paper over the rise in murders and the "Ferguson effect."  An 11% rise in homicides in a single year is a horrifying spike, but MacDonald notes how the Brennan Center soft-pedals it, and several media outlets join in a subjective classification of the rise as "slight" etc. without giving their readers the benefit of the actual number.

The puzzle is why these progressives are so intent on denying that such depolicing is occurring and that it is affecting public safety.

   The answer lies in the enduring commitment of antipolice progressives to the "root causes" theory of crime. The Brennan Center study closes by hypothesizing that lower incomes, higher poverty rates, falling populations and high unemployment are driving the rising murder rates in Baltimore, Detroit, Milwaukee, New Orleans and St. Louis. But those aspects of urban life haven't dramatically worsened over the past year and a half. What has changed is the climate for law enforcement.
The fact that spin from an ideologically driven organization like the Brennan Center has gotten as much credence as it has in the press is a symptom of a major problem in American society.  There is a gross imbalance in the number and funding of nonprofit organizations interested in crime issues.  The Manhattan Institute (where MacDonald works) and CJLF are outnumbered and outspent by the Brennan Center, the Marshall Project, the Urban Institute, the Pew organizations, the Death Penalty Information Center, and on and on.  [Hint:  If an organization is named for one of the two most pro-criminal Supreme Court Justices in American history, it is not a neutral source of information.]  The capacity of these organizations to pump out reports that seem to support the leftist agenda but do not hold up to examination exceeds the capacity of organizations of contrary viewpoints to make and publicize the examinations.

In addition, both the press and academia are populated by people whose spectrum of viewpoints is shifted at least one sigma left of the American median, if not two.  Assertions that fit with the general set of assumptions of the left simply do not get as much scrutiny as those that run contrary to those assumptions.

This combination of factors produces a dangerous situation where spin goes insufficiently challenged.  If such spin leads to wrong policies in matters of life and death, the potential consequences are grave indeed.

The Myth of Over-Incarceration

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Advocates of alternative sentencing gained a new ally with the election of President Barack Obama, who has both personally and through Attorney General Eric Holder, condemned the tough on crime sentencing policies of the 80s and 90s.  An article In the Criminal Justice Legal Foundation's fall Advisory examines the factual basis for the claim that the United States is locking up far too many low-level offenders.   

News Scan

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3,000 Prisoners Mistakenly Freed Early:  Since 2002, 3,000 prisoners in Washington have been released early by mistake due to a software error by the state's Department of Corrections.  Rachel la Corte of the AP reports that a 2002 state Supreme Court ruling required the Department of Corrections to apply good-behavior credits earned in county jail to state prison sentences, but the programming fix gave prisoners with sentencing enhancements too much good-time credit, resulting in the release of 3,200 offenders.  The Department of Corrections was first alerted of the computer glitch in December 2012 and had announced that it would be fixed the same month, but it wasn't.  A broad fix to the software problem is expected to be in place by early January.  In the meantime, officials are working to track down the affected offenders, the complete list of whom are unknown.  So far, seven individuals have been identified as needing to serve additional time.  When asked if mistakenly released prisoners are committing new crimes, general counsel for Gov. Jay Inslee's office didn't have an answer.

Fewer Illegals Deported as Amnesty Kicks in:  As the president's amnesty begins taking effect, the number of deportations from the U.S. in 2015 dropped dramatically, highlighting the "willful neglect" of the Obama administration.  Stephen Dinan of the Washington Times reports that President Obama's amnesty order, which has shielded most illegal immigrants from even the fear of deportation, has led to a 32 percent drop in removals from the interior of the country and a 27 percent overall drop of deportations over the last year, which are only a little more than half of what they were in 2012 when the administration was setting records for removals.  This year, U.S. Immigration and Customs Enforcement (ICE) deported 63,127 illegal immigrants, down from 87,000 in 2014, believed to be affected by sanctuary cities refusing to cooperate with federal authorities, as well as Homeland Security's shifting of resources to the border instead of focusing on the immigrants in the interior.

Thousands of Shootings in Gun-Controlled Chicago:  In Chicago, a city with a ban on assault weapons, a violence tax on every gun and bullet sold, strict limitations on the quantity and location of gun stores and an array of other tight gun control regulations, there have been nearly 3,000 shootings victims this year.  Awr Hawkins of Breitbart reports that, year-to-date, there have been a total of 2,887 shooting victims in the city, exemplifying the failure of Chicago's gun control efforts, which have made it more difficult for law-abiding citizens to acquire guns needed for self-defense while simultaneously making them less safe.  This weekend alone, three people were shot dead and 26 more were wounded, a typical day in modern Chicago.

...until it actually starts, in which case.....well......you can read about it here.

This is enough to make Prop 47 seem like a model of paying attention.

Users, Dealers, Politics and New Hampshire

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Heroin addicts suffer in ways difficult to describe  --  before they die.  They should be helped by whatever means we can find.  It is past time that Presidential candidates started taking note of the heroin epidemic now spreading across the country.  It's also the politically prudent thing to do, since one of the most ravaged states is the first primary state, New Hampshire.  The LA Times has the story.

It's obvious that among the first things we should do to fight heroin addiction is incapacitate those who feed it  -- the dealers. This is not rocket science.  Yet there is pending in Congress a bill that would do the opposite  -- put dealers back on the street sooner than they would get there under present law.

This is not just ill-considered policy.  It's crazy.  It's also inhumane.  If you're trying to counteract the effects of poison, you don't decrease the costs of being a poison merchant.  But that is exactly what sentencing reform legislation would do.

Many libertarians want to legalize drugs, but the country, by a huge margin, does not, and this is especially true of heroin and the other hard drugs. The reason is simple. Americans have learned what hard drugs do.  By a 2-1 margin, they want Congress to increase the measures taken to keep dealers off the street, not put them back there earlier.

Presidential candidates, senators and representatives, are you listening?


News Scan

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PA Gov. Postpones Executions:  Pennsylvania Gov. Tom Wolf's authority to postpone executions in the state was upheld Monday by the state's high court.  Marc Levy of the Morning Call reports that Wolf, who says the death penalty system is "riddled with flaws, making it error prone," has issued temporary reprieves in the cases of five convicted killers.  Philadelphia District Attorney Seth Williams challenged the governor in court, arguing that reprieves had never been meant or used to indefinitely postpone an execution, but it was rejected in a unanimous decision by the high court, which ruled that the governor's "constitutional power to issue reprieves never required a specific end date...."  Wolf announced that the moratorium will remain in effect until he receives a report from a legislative commission, expected in 2016.  The Philadelphia prosecutor's office, while respectful of the court's decision, expressed disappointment in a statement extending "condolences to the victims of these horrendous crimes, who will not soon see the justice that was imposed by the jury and upheld by the courts."  The last year an inmate was executed in the state was 1999.

Somali Citizen Smuggling People across Border:  A citizen of Somalia, operating within the United States, was arrested for smuggling illegal immigrants across the U.S.-Mexico border in Arizona.  Sylvia Longmire of Breitbart reports that Omar Haji Mohamed was stopped at a border checkpoint near a Native American reservation, the Tohono O'odham Nation, which is a haven for human smugglers and drug traffickers because accessibility in the region for U.S. Border Patrol agents is limited due to conflicts between the agency and tribal leadership.  The Department of Homeland Security granted Somali nationals temporary protective status (TPS) in 1991, which provides Somali citizens who have resided in the U.S. continuously since 2012 relief from deportation through 2017.  As more of these reports come to light, the challenges with our immigration system become all the more clear:  refugees and other immigrants shielded from deportation, unwillingness to cooperate with federal authorities and a frighteningly porous border.

Arguments to Delay MO Execution Lacking:  A Missouri state attorney said in a court filing Monday that the argument to delay the execution of a convicted triple murderer fails to satisfy the requirement to show his chosen alternative execution method to the state's lethal injection protocol is feasible and readily available.  Alan Burdziak of the Columbia Daily Tribune reports that 55-year-old Ernest Lee Johnson, was initially scheduled to be put to death on Nov. 3.  He appealed to the Eighth Circuit Court of Appeals claiming that occasional seizures brought on by a 2008 brain surgery will be triggered by the lethal injection drug, pentobarbital, and cause significant pain.  To comply with Glossip Johnson asked for the alternative of the gas chamber.  Missouri Assistant Attorney General Gregory Goodwin said in his filing that Johnson, who was required by precedent to offer an alternative method of execution that could be readily implemented, did not provide evidence that his chosen alternative, death by lethal gas, would reduce his risk of severe pain.  Additionally, Goodwin argued that Johnson waited to file his claim long after the five-year statute of limitations expired, holding "his claim in reserve, hoping to avoid his execution date."  Johnson has until Jan. 4 to respond to Goodwin.

Baltimore Homicides Still Breaking Records:  As homicides continue to mount in Baltimore, the second-highest total on record has been reached - 336.  Kevin Rector and Sean Welsh of the Baltimore Sun report that the soaring number of murders has put the city's per-capita homicide rate at 54 per 100,000 residents, the highest in Baltimore history.  Only one other year, 1993, saw more homicides deaths, 353, but also had 100,000 more residents.  The year took a hellish turn in April following the death of Freddie Gray in police custody, which sparked violent rioting and enduring unrest.  Six Baltimore police officers were arrested and charged with crimes ranging from misconduct to murder in connection with Gray's death, and the first trial, in the case of Officer William Porter, resulted in a mistrial last week.  His new trial date is set for June 13.

Simultaneous v. Sequential Lineups

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One thing we know from studying studies is that you should not make radical changes based on a single study but rather wait for the result to be confirmed by other studies.  You don't know how "robust" a result is until an issue has been studied multiple ways by multiple researchers.  How many times would you have stopped and restarted drinking coffee if you went with every study that came along?

A while back there was some research that indicated that sequential lineups -- where the witness looks at suspects or pictures one at a time -- were far better than simultaneous ones where the witness looks at a group at once.  There was a rush to codify this preference into rigid requirements.  Well, that may not be right.  Bradley Fikes reports in the San Diego Union Tribune on a study indicating, among other things "simultaneous lineups were, if anything, diagnostically superior to sequential lineups. These results suggest that recent reforms in the legal system, which were based on the results of older research, may need to be reevaluated."

Another important finding is that the witness's confidence at the first observation is an important indication of accuracy, much more so than the witness's demeanor at trial that juries must usually go on.

Minorities' Trust in Police Nearly Doubles

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I am not necessarily an optimist by nature, but news today from Gallup put a smile on my face.  For the same reason, it will doubtless bring frowns to those who've been insisting that, in order to gain the confidence of minorities, the police must bow their heads in shame and quit arresting crooks.  This is how today's Gallup story leads off:

After dipping to 48% in 2014 amid a national firestorm over police treatment of young black men, the rating Americans give the honesty and ethical standards of police has rebounded to 56%. This is more consistent with the 54% to 58% ratings Gallup found between 2010 and 2013....Four in 10 nonwhites now rate the ethical standards of police as very high or high -- a sharp increase from the 23% who held this view in 2014.

This is particularly encouraging because the anti-police propaganda has, if anything, accelerated in 2015 with, for example, the continuing, aggressive mendacity of the Black Lives Matter movement, as chronicled here.

I might add that trust in police is two and a half times the trust in lawyers, which, at 21%, might hopefully make attorneys more open to re-examining their "client-always-first, truth-always-second" ethos.  With that as their ethical "standard," how much trust do they think they deserve?

Finally, I am grateful that Gallup did not poll trust in law professors.

UPDATE: I wrote this before I saw Kent's post, but I'm leaving it up because it takes a slightly different slant. I also do not entirely agree with Kent's observation about trust in lawyers not being as bad as you might think.   When only one in five people thinks well of the legal profession, what you have is a profession that needs to change the way it does business. 

News Scan

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Car Plows into Vegas Crowd, Kills One:  A homeless Oregon woman who had been living in her car with her toddler in Las Vegas for one week has been charged with intentionally plowing her vehicle into a crowd of pedestrians on a busy section of the Las Vegas Strip several times on Sunday night, killing one and injuring 37.  Fox News reports that the driver, identified as 24-year-old Lakeisha Holloway, had her three-year-old child in tow when she "went up and off [the] streets," two or three times at 30 to 40 mph into multiple crowds of pedestrians.  An Arizona woman, 32-year-old Jessica Valenzuela, vacationing with her husband was identified as the fatality.  Holloway was apprehended away from the scene and taken into custody, where she was booked on charges including murder, first degree child abuse or neglect and failing to stop at the scene of an accident.  LVMPD Deputy Chief Brett Zimmerman said that the tragic incident, while deliberate, was not an act of terrorism.

Gangs Move from Drugs to White-Collar Crimes:  Law enforcement officials say street gangs are notably transitioning away from crimes like drug and gun running to white-collar crimes such as identity theft and credit card fraud, "giving up the old ways of making an illicit income in exchange for easier crimes with shorter sentences."  Colleen Long of the AP reports that last week, New York Police Commissioner William Bratton wrote an editorial describing the "astonishing degree" of white-collar crimes committed by gang members.  Federal officials in Florida have seen more gang members arrested for such offenses.  Al Pasqual, director of fraud security at the consulting firm Javelin Strategy and Research, says that some of the appeal stems from the resulting prison sentence, noting that selling crack can bring about 10 years under federal minimums while white-collar crimes can carry less than a year.  The challenges come as gangs grow more organized, recruiting people to help steal devices and cash checks, moving from scam to scam as authorities close in and passing the knowledge along to each other.  In New York City, home to the nation's largest police department, the grand larceny division now works closely with detectives from the gang unit to tackle the new and rising problem.

No Proof SB Terrorists Met Before Visa Issued:  After reviewing the full immigration file, a House Judiciary Committee revealed that the two San Bernardino terrorists were approved for a fiancé visa despite there being no concrete proof they had ever met in person, which is one of the visa's requirements.  Stephen Dinan of the Washington Times reports that the Obama administration insists it followed proper procedures and saw no red flags that would have prevented the approval of Tashfeen Malik's K-1 visa, which allowed her to enter the U.S., marry Syed Farook and, earlier this month, go on a shooting rampage at Farook's workplace, killing 14 and wounding 22.  But Republicans and Democrats alike argue that there were signs that should have raised questions, including messages Malik exchanged on social media and an inaccurate address on her application.  The latest information shows that the only evidence the couple had of meeting was a statement provided by Farook saying that the two met in Saudi Arabia and copies of pages from their passports showing entry and exit stamps, which, even if true, is not sufficient proof of meeting.  Immigration officials have discussed adding or changing timing of interviews and broadening their social media screening to strengthen the vetting process.

Condescension Squared on the Death Penalty

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For sniffing arrogance surrounded by blunderbuss error, it would be hard to top the Economist piece noted here about the supposed demise of the death penalty in America.  It maintains, for example:

The proof is overwhelming: capital punishment is dying. Statistically and politically, it is already mortally wounded, even as it staggers through an indeterminate -- but probably brief -- swansong.

While readers might want to have a look at the article for its record-setting Holier-than-thou attitude, they might also want to get a lesson on the myriad ways in which abolitionists are trying to lie their way to success.
Chicago has probably the strictest gun control law in the country.  Illinois long since abolished the death penalty (but unlike California, has never put the question to the people directly).

We are endlessly lectured that these two major items on the liberal agenda will keep us safe, as well as help us become, as President Obama (once a Chicago resident) might say, "the people we truly are."

Yes, well, read all about it.
The recent spate of police-bashing apparently has not made a long-term impact on Americans' opinions of police officers.  Lydia Saad has this report for Gallup with the above title:

After dipping to 48% in 2014 amid a national firestorm over police treatment of young black men, the rating Americans give the honesty and ethical standards of police has rebounded to 56%. This is more consistent with the 54% to 58% ratings Gallup found between 2010 and 2013.

Four in 10 nonwhites now rate the ethical standards of police as very high or high -- a sharp increase from the 23% who held this view in 2014. A steep drop in nonwhites' ratings of the police in 2014 was the sole cause of the profession's overall ratings dip last year. While nonwhites' attitudes have not rebounded to their pre-2014 levels, the slight increase in whites' positive views of the police this year, from 59% to 64%, coupled with the rise in nonwhites' ratings, pushes the overall percentage back to the "normal" range seen in recent years.
Gallup's long-term trend graph shows that the 56% number is higher than at any time in the first 23 years they asked the question, 1977-2000.  This opinion of the police started off a dismal 37% in 1977, climbed slowly with a couple setbacks until 2000, then spiked after 9/11.

Among the professions, nurses are still tops in the public's ethics esteem.  Lawyers don't do as badly as you might think, a tad below the middle.

Part Terrorist, Part Gangster

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Anthony Faiola and Souad Mekhennet report in the WaPo:

BRUSSELS -- The recent terrorist attacks in Paris have brought into sharper focus the rise of a new breed of jihadists, one that blurs the line between organized crime and Islamist extremism, using skills honed in lawbreaking in the service of violent radicalism.

The Islamic State is constructing an army of loyalists from Europe that includes an increasing number of street toughs and ex-cons as the nature of radicalization evolves in the era of its self-proclaimed caliphate. Rather than leave behind lives of crime, some adherents are using their illicit talents to finance recruiting rings and travel costs for foreign fighters even as their backgrounds give them potentially easier access to cash and weapons, posing a new kind of challenge to European authorities.
For too long, the attitude has been that private citizens should be passive in the face of crime, running or hiding.  "Don't be a hero" was the mentality.  But we need heroes.  It was the heroic passengers of United Flight 93 on 9/11/01 who prevented the plane from slamming into the U.S. Capitol.  It was the heroes on the French train who prevented a massacre.

In some cases, running or hiding may be the right response.  If the professionals are on the scene, it is best to leave it to them.  Other times, though, the combined efforts of multiple people, even if unarmed, can end the killing, and more companies are now including active response in their active shooter training.  Michael Rosenwald has this story in the WaPo.

How the Democrats Would Abuse Criminal Law

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C&C necessarily talks about politics, but the central subject here lies elsewhere. Readers may have noticed that I have not been shy about criticizing Republican Donald Trump's xenophobic, know-nothing blowhardism and Republican Sen. Mike Lee's unthinking sponsorship of the dumbed-down sentencing bill masquerading as sentencing "reform."  I have likewise dished it out to Republican felons Bernie Kerik and Illinois Gov. George Ryan, the latter having repeatedly sold his office before becoming a Holier-than-thou death penalty critic.

In order to provide equal time, as it were, I now want to cite Kevin Williamson's regrettably insightful article in the National Review.  One takeaway from it is that among the best ways to erode respect for law and faith in its enforcement is to abuse the power it confers. I think it prudent not to wait for the leading Democratic candidates to show that Williamson is wrong:

Donald Trump may talk like a brownshirt, but the Democrats mean business. For those of you keeping track, the Democrats and their allies on the left have now: voted in the Senate to repeal the First Amendment, proposed imprisoning people for holding the wrong views on global warming, sought to prohibit the showing of a film critical of Hillary Rodham Clinton, proposed banning politically unpopular academic research, demanded that funding politically unpopular organizations and causes be made a crime and that the RICO organized-crime statute be used as a weapon against targeted political groups. They have filed felony charges against a Republican governor for vetoing a piece of legislation, engaged in naked political persecutions of members of Congress, and used the IRS and the ATF as weapons against political critics.

This is not to mention that, as a spin-off of the Benghazi scandal, the current Administration has created what is to my knowledge America's only political prisoner.

 
The North Carolina Supreme Court has sent back to the trial court the cases on that state's ill-conceived, misnamed, and since repealed "Racial Justice Act."  The purpose of that act is to defeat rather than promote justice, and it allows murderers to overturn their sentences based on the kind of statistics-based arguments rejected by the U.S. Supreme Court in McCleskey v. Kemp.  (See my law review article for background on the racial statistics controversy.)

Jacob Gershman has this article in the WSJ.

The state supreme court vacated the decisions in favor of the murderers, but it did so on the narrow ground that the trial judge did not allow the prosecution sufficient time to gather evidence to rebut a large study submitted to support the claim.  That means the case goes on. 

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Debate Over Parole for Teens Revived:  The conviction of a Massachusetts teen for the brutal rape and murder of his high school math teacher has revived a debate over parole for teen killers and the urging of lawmakers to toughen prison sentences.  Christian M. Wade of the Gloucester Times reports that 16-year-old Phillip Chism was 14 in 2013 when he followed his 24-year-old algebra teacher, Colleen Ritzer, into a school bathroom, strangled her, stabbed her at least 16 times with a  box cutter, raped her and then dumped her body in the woods near the school.  He was found guilty of first-degree murder on Wednesday after being tried as an adult, but will still be eligible for parole in 13 to 23 years due to his juvenile status.  In 2012, the U.S. Supreme Court struck down mandatory life sentences for juveniles convicted of first-degree murder as a violation of the Eighth Amendment.  A year later the Massachusetts high court followed with a similar ruling, announcing that sentences of life without parole for juveniles "fail to account for a young defendant's likelihood of rehabilitation."  In 2014, new state guidelines were set by legislation requiring juveniles convicted of first-degree murder to serve 20 to 30 years before becoming eligible for parole, but this changed after Chism murdered Ritzer, and he will be sentenced in January under the guidelines outlined by the state's high court.  "The reality that families like mine and the Ritzers might have to face parole hearings is devastating," says Sean Aylward, whose 16-year-old sister was beaten to death in 1992.

Manhunt Underway for 'Affluenza' Teen:  After failing to show up for an appointment with his probation officer on Tuesday and disappearing from the home he shared with his mother, a manhunt is underway for the rich Texas teenager described as having "affluenza" while on trial for killing four people in a drunk-driving crash in 2013.  Elizabeth Chuck of NBC News reports that Tarrant County Sheriff Dee Anderson says he "wasn't surprised at all" to learn that 18-year-old Ethan Couch ran, adding that he has a "gut feeling" that the teen and his wealthy mother Tanya, also missing, have "gone a long way," and expect the search to take a long time.  In June 2013, at the age of 16, Couch drunkenly plowed his truck into four people on a Texas road, killing them and injuring several others.  At his trial, a psychologist testified on Couch's behalf, saying that the spoiled teen was afflicted with "affluenza," which rendered his ability to distinguish right from wrong due to his privileged upbringing and parental coddling.  Couch received 10 years of probation and order to attend rehab, but no jail time.  U.S. Marshals and the FBI continue to search for Couch and his mother.

Spending Bill Funds Sanctuary Cities:  On Wednesday, in a speech on the Senate floor, Sen. Jeff Sessions, R-AL, expressed outrage over the omnibus spending bill recently introduced by Congress, criticizing it as an abuse of executive power that "will fund the president's entire lawless immigration agenda."  Jenna Lifhits of the Washington Free Beacon reports that Sessions condemned the bill for advancing an array of items on Obama's agenda, such as allowing the president to let any number of refugees into the country as he wants; the issuance of at least 170,000 green cards to migrants from Muslim countries over the next year; the funding of sanctuary cities, which provides shelter for illegal aliens; and the quadrupling of the number of foreign workers accepted as part of the controversial H-2B foreign worker visa program, from 66,000 to 254,000.    The bill will also provide more than $1.6 billion to resettle illegal immigrants arriving at the U.S. border through 2018.

The reason is that Barack Obama will do the "reforming" all by himself.  He showed this again today by issuing yet more (literal) "get-out-of-jail-free" cards.  He has now issued more commutations than his immediate four predecessors combined  -- Ronald Reagan, George H. W. Bush, Bill Clinton, and George W. Bush.  But that's OK, because we know that Obama is a more humane and far-sighted man than any of those cretins.  Either that, or his political base is rooted in criminality and the Soros-funded interest groups that speak up for it, and him.

There several notable things about today's dozens of clemencies  --  notable for their implications about politics, governance, and justice.  For now, I want to discuss just one: The red flag raised for pro-sentencing "reform" Republicans.

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Illegal Minors Report Ease of Access to US:  Illegal immigrant minors are sharing their immigration experiences with their family and friends back in Central America, encouraging them to make the journey to the U.S. because it's "so easy" and the chance of deportation is slim to none.  Paul Bedard of the Washington Examiner reports that upon arrival, illegals are telling Border Patrol officials that they know they will be freed once they make it across the border, and are texting friends and relatives back home pictures of what they regard as a "permiso," or free pass.  A new surge at the border, according to policy studies director Jessica Vaughan of the Center for Immigration Studies, is partly attributed by a believed assurance among illegals that they will no longer face a possibility of extended detention, or deportation for that matter, because a federal judge ordered the Department of Homeland Security (DHS) to close family and child detention centers.  DHS says that since 2009, it has apprehended roughly 122,700 unaccompanied alien children from El Salvador, Guatemala and Honduras, but has deported just 7,700, or six percent.

Friend of San Bernardino Shooters Faces Criminal Charges:  The first criminal charges brought in connection to the deadly terrorist attack in San Bernardino, Calif., earlier this month are against the former neighbor and longtime friend of the shooters.  Kellan Howell of the Washington Times reports that federal prosecutors have arrested and are bringing criminal gun charges against Enrique Marquez, who was a friend and former neighbor of gunman Syed Farook, for purchasing two semi-automatic rifles three years ago that Farook and his wife, Tashfeen Malik, used to gun down 14 people at a holiday party.  Marquez explained to officials that he bought the guns as a favor to Farook so he could avoid a background check and being put on record as the buyer.  He also revealed his and Farook's plan to conduct some kind of attack in 2010 that was scrapped after several unrelated terrorism arrests in the southern California area.  Charges could be filed as early as Thursday.  Update:  Marquez has been charged with one count of conspiracy to support terrorism, one count of lying on a gun purchase form and one count of defrauding the immigration system by entering into a sham marriage with a Russian immigrant.  The conspiracy charge carries a maximum of 15 years in prison, and he faces 10 years each for the firearms and visa charges.

Mistrial Declared in First Freddie Gray Trial:  The future of the case against the first of six Baltimore police officers tried in the death of Freddie Gray is "up in the air" after a mistrial was declared Wednesday when jurors failed to reach a verdict.  Miriam Khan and Meghan Keneally of ABC News report that officer William Porter was charged with second-degree assault, involuntary manslaughter, reckless endangerment and misconduct in officer for failing to get medical attention for Gray, who died in April after suffering a spinal injury in the back of a police transport van.  The jury could not reach a unanimous verdict on any of the charges.  Porter's mistrial may complicate the other cases while a decision is made on whether to push the other trials back, in order to retry Porter. It is possible that the state may offer a plea deal to Porter in exchange for his testimony.  If  another trial is scheduled, there is a chance it may be moved out of Baltimore.  The breakdown of the hung jury has not been released, and prosecutors and defense attorneys have been ordered by the judge not to discuss details of the case publicly.

Visas Are Focus of House Oversight Hearing:  At a House oversight hearing examining immigrant vetting in the wake of the deadly terrorist attacks in Paris and San Bernardino, Calif., the assistant secretary for the Bureau of Consular Affairs was asked if she had any idea of the present locations of thousands of individuals who have had their visas revoked, to which she replied, "I don't know."  Fox News reports that Michele Thoren Bond said that the U.S. has revoked over 122,000 visas since 2001, including 9,500 because of the threat of terrorism, but the whereabouts of these foreigners is unknown.  The shocking admission comes as scrutiny mounts on the government background examinations of people seeking entry to the country.   The nationwide concern follows news that one of the San Bernardino shooters came to the U.S. last year on a K-1 fiancée visa despite the fact that the she is believed to have already been radicalized and posted radical statements on social media that were overlooked.  Leon Rodriguez, director of U.S. Citizenship and Immigration Services, confirmed the House committee's fears when he told them that reviews of visa applicants' social media posts "aren't being done in an abundant manner."  

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TX Explores Creating State-Level Immigration Laws:  A Deputy Texas attorney told lawmakers that, if "crafted carefully," they  can write laws allowing the state to crack down on illegal immigrants and illegal border crossers without conflicting with the U.S. Constitution.  Julian Aguilar of the Texas Tribune reports that Texas Deputy Attorney General Brantley Starr says that, despite the U.S. Supreme Court's ruling that immigration is "one of the few enumerated powers the federal government has," the states do "have the ability to create state-level offenses that have an immigration element to them as long as they are sufficiently unique."  Starr referenced House Bill 11, signed by Gov. Greg Abbott in June, which made it a state felony to smuggle someone into the U.S. for pay by adding new state-level elements without seizing deportation powers from the federal government.  The law has already assisted state police in apprehending criminals that federal agents may have released.

Death Penalty May be on 2016 CA Ballot:  Two groups, one in favor of and one opposed to capital punishment, have drafted initiatives and preparing to collect signatures for measures that would give Californians the choice between more expeditious executions or none at all.  Scott Shafer of KQED reports that one of the proposals, called "The Justice that Works Act of 2016," would scrap executions altogether, converting existing death sentences to life in prison without the possibility of parole.  The other measure, the "Death Penalty Reform and Savings Act of 2016," would limit inmate appeals to prevent the process from dragging on for decades, resulting in faster executions.  Additionally, it would give the California Department of Corrections and Rehabilitation (CDCR) greater freedom in housing death row inmates and require them to work, with 70 percent of their earnings going to crime victims.  The proposal is currently being reviewed by the Attorney General's office, and if it, along with the anti-death penalty measure, is green lighted, there will be 180 days to acquire the necessary signatures to put the measures before voters on the November 2016 ballot.  

Over 30 Immigrants Admitted to U.S. Tied to Terrorism:  The office of Sen. Jeff Sessions highlighted on Tuesday an unsettling number of terrorists who were recently granted access to the U.S. through its immigration system.  Caroline May of Breitbart reports that Sessions, the chairman of the Subcommittee on Immigration and the National Interest, provided over 30 examples of immigrants admitted to the U.S. who were recently implicated in terrorist activities, reinforcing his concern with passing a spending bill that fails to place limitations on admissions to the U.S., particularly refugee admissions.  He has warned against President Obama's "blank refugee check" and passing a spending deal without "limiting language," and has stated that Congress needs to take back control of the immigration program.  Sessions' office noted that the 30 examples listed represent only a "partial inventory" of migrants recently implicated in terrorism.

Murders.jpg
Why is the number of death sentences down in the United States?  There is no one reason, but the most obvious and obviously large factor is that the number of murders is way down from the early 90s peak.

Don't look for that fact to appear prominently in the annual report of the Death Penalty Information Center.  After all, it doesn't fit the agenda.  The dramatic drop in crime in the 1990s with a continuing downward trend to the present is, in part, a success of America's getting tough on crime in the 80s and 90s.  The deterrent effect of capital punishment (which there is good reason to believe is real and substantial despite what a certain biased committee's report says) is likely a factor.

What are the other factors?  Anecdotally, I have had trial prosecutors tell me that murders that warrant the death penalty are a smaller proportion of the murders as well, although I can't quantify that.  Some prosecuting offices that were previously unselective in asking for the death penalty have become more selective.  That's a good thing.  Anti-DP organizations always say we should reserve the death penalty for the very worst, but when we actually do that they cite the result as evidence the death penalty is in decline.

Finally, and most disturbingly, there is a fatigue factor.  I think it is true that some prosecuting offices do not seek the death penalty in cases where it is warranted because the obstruction of the review and execution processes leads them to believe the sentences will not be carried out.  The resulting miscarriage of justice is all the more reason to fix those processes.

One final note -- the DPIC continues to intentionally mislead about its own nature in its press releases.  "DPIC tracks data on the death penalty, but does not take a position on capital punishment."  What utter nonsense.  Every single thing DPIC does is to oppose the death penalty.  The data they present are carefully filtered so that only facts supporting the abolition argument are presented.  Does anyone seriously think that Soros would dump his money into a neutral source of information?  The fact that they have not adopted a formal resolution calling for the abolition of the death penalty does not mean they have not taken a position.  The entire body of their work is a position.

CJLF and DPIC are both advocacy organizations.  The difference is that we are honest about it.

Ashby Jones has this article in the WSJ.  Lawrence Hurley reports for Reuters, and Tracy Connor reports for NBC.

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MD Man Received Thousands from ISIS:  A Maryland man was arrested Friday and charged with several terror-related offenses concerning his receipt of almost $9,000 in wire transfers in recent months from Islamic State terror group contacts in Egypt and Syria.  Kevin Johnson of USA Today reports that 30-year-old Mohamed Elshinawy is alleged to have received a total of $8,700 dispersed in small amounts between March and June of this year with instructions to use the funds for "operational purposes."  Elshinawy was initially questioned by FBI agents in mid-July, in which he provided false information about the source of the money.  He eventually admitted that the Egyptian contact that provided the money was an ISIL operator, but claimed that he was using the terror group to obtain money for his own personal use.  Court records that show Elshinawy pledged his allegiance to ISIL in February.  No terrorist plot has been connected to Elshinawy, though some of the wire transfers occurred around the July 4 holiday when the U.S. was on heightened alert following threats of terror strikes.  He faces charges of providing material support to ISIL, obstruction, making false statements to investigators and falsifying or concealing material facts in the investigation.  

Stay of Execution Denied:  The Alabama Supreme Court on Monday unanimously denied a death row inmate's request to halt his execution next month.  Kent Faulk of AL reports that attorneys for convicted murderer Christopher Eugene Brooks argued that he and five other inmates are waiting for a final evidentiary hearing regarding whether the state's new three-drug lethal injection protocol violates the Eighth Amendment.  The Alabama Attorney General's Office argued that Brooks did not intervene in the other inmates' lawsuits - which were filed a year ago - until November "in an apparent effort to delay his execution."  In 1993, Brooks was convicted of the murder of 23-year-old Jo Deann Campbell, who he met in New York in 1991.  About a year later, after Brooks spent the night at Campbell's Alabama apartment with his friend Robert Leeper, Campbell was discovered stuffed under her bed and had been badly beaten and raped.  Brooks was linked to the crime through DNA recovered in the apartment and on the victim's body.  Leeper was charged but not convicted due to a lack of DNA evidence linking him to the crime.  He was sentenced to five years for credit card fraud relating to Campbell's stolen credit card that he used to make purchases after her death.  Brooks' execution is scheduled for Jan. 21 and will be the first in the state in 2.5 years and the first using the new drug combination.

Two Kids Found Dead in CA Storage Unit:  After questioning and arresting two individuals on charges related to abusing one child, California investigators were led to a storage unit in Redding where two other young children were discovered dead.  The Redding Record Searchlight reports that 39-year-old Tami Joy Huntsman and 17-year-old Gonzalo Curiel, who had recently moved from Salinas and were currently residing in a town southeast of Redding, were arrested Friday on child abuse charges of a nine-year-old girl, who was emaciated and showed signs of torture.  After questioning by Plumas County authorities, Curiel revealed the location of the Redding storage unit, where the bodies of a three-year-old girl and a six-year-old boy were found Sunday night.  The nine-year-old is currently in Protective Child Custody and receiving treatment.  Two older children, 12-year-old male and female twins, were placed in foster care after being found at the home of the suspects' friend.  In addition to the charges relating to the surviving child, Huntsman and Curiel face charges of mayhem, torture and murder in the deaths of the two youngest victims.

The 2015 Lie of the Year

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Lying is not exactly new to political and ideological movements, but every year seems to bring a bumper crop, and 2015 had more than its share.  The Washington Post collects some of the leaders.  Among this year's winners were Donald Trump (thrice), Hillary Clinton, John Kerry, and, of course, Barack Obama.

As respects criminal law, the Post's biggest winner was  --  drum roll  --  the anthem of the Black Lives Matter movement, "Hands up, don't shoot!"

This phrase became a rallying cry for protests after the fatal shooting of a black 18-year-old by a white police officer, Darren Wilson. Witness accounts spread after the shooting that Michael Brown had his hands raised in surrender, mouthing the words "Don't shoot" as his last words before being shot execution-style. Democratic lawmakers raised their hands in solidarity on the House floor. But various investigations concluded this did not happen -- and that Wilson acted out of self-defense and was justified in killing Brown.

The odd and discomfiting thing is that, even knowing that its rallying cry is a fabrication, the BLM movement keeps right on using it, and using it belligerently.

  

Crime Is Worse Than You Thought -- Much Worse

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There is no credible doubt that crime has fallen dramatically in the last generation, because of increased use of incarceration, more police, more aggressive and proactive policing, the aging of the most crime-prone component of the population, and probably several other factors.  But even given this welcome fact, we have vastly more crime than gets reported.

The crime figures I have been using (and almost all other bloggers and academics use) are taken from the Uniform Crime Reports compiled by the FBI.  That source, however, gives only reported crimes.  The number of unreported crimes is staggering. As you can see from the chart below derived from the BJS National Crime Victimization Survey (see here), almost all types of crime are massively under-reported.  The chart shows that theft  -- perhaps the most common crime  --  is under-reported by over 70%; rape and sexual assault by about 65%; simple assault by 60%; burglary by just over 40%; and robbery by just under 40%. Indeed, it would seem that the only crimes that routinely get reported are auto theft and (although the chart does not show this) murder.

I have taken this chart from Vox, a liberal source.

Tell me again that now is the time to become complacent about crime.

E-Threat Closes 1000+ L.A. Schools

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AP reports:

LOS ANGELES (AP) -- All schools in the vast Los Angeles Unified School District have been ordered closed due to a threat, a spokeswoman Ellen Morgan said Tuesday.
John Hinderaker spills the beans on an Obama Administration policy that intentionally blinded the United States to information that might have prevented the San Bernardino murders:

Today on Good Morning America, John Cohen, a former acting under-secretary of the Department of Homeland Security and now a national security consultant for ABC News, dropped a bombshell: over the objections of security-minded DHS personnel, the Obama administration secretly barred DHS from looking at postings on social media by visa applicants like Tashfeen Malik:

Fearing a civil liberties backlash and "bad public relations" for the Obama administration, Homeland Security Secretary Jeh Johnson refused in early 2014 to end a secret U.S. policy that prohibited immigration officials from reviewing the social media messages of all foreign citizens applying for U.S. visas, a former senior department official said. ...

Former DHS under-secretary Cohen said he and others pressed hard for just such a policy change in 2014 that would allow a review of publicly-posted social media messages as terror group followers increasingly used Twitter and Facebook to show their allegiance to a variety of jihadist groups.


The 14 people who were murdered by Jihadists in California no longer have civil liberties.  Do they count?

P.S.  The idea that there is a privacy interest in what you intentionally post on social media  --  that's  S-O-C-I-A-L  M-E-D-I-A  --  is a thousand miles beyond preposterous.

P.P.S.  You gotta love the idea of the government's "secretly" adopting a policy to protect civil liberties.


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Most Gun Control Policies Ineffective, Study Finds:  A report published earlier this month suggested that the policies proposed by gun control activists over the years are ineffective, concluding that "regulating firearms was less important than focusing on who possesses those firearms."  Stephen Gutowski of the Washington Free Beacon reports that the study, authored by David Kopel and published Dec. 1 by the Cato Institute, analyzed real-world examples of universal background checks, bans on high-capacity magazines, and  bans on assault weapons in the U.S. and internationally to determine their effectiveness, finding that improved access to mental health care "would likely have the biggest impact on preventing both mass shootings and everyday violent crime."  Kopel notes that approximately one-fifth of U.S. homicides are committed by individuals with severe mental illness, so rather than infringe on the constitutional rights of responsible, law-abiding firearms owners, the focus should be on thwarting dangerous individuals from legal access to guns.

CA Murderer to Face Death Penalty:  A California sex offender and convicted murderer, indicted last year for the murders of four women in Anaheim, will face the death penalty for his crimes, says the Orange County District Attorney's office.  Matt Coker of the OC Weekly reports that 46-year-old Steven Dean Gordon was indicted by a grand jury on Oct. 2, 2014 on four felony counts of special circumstances murder during the commission of a rape, kidnapping, lying in wait and multiple murders, and faces an additional four felony counts of forcible rape.  Gordon's co-defendant, 29-year-old Franc Cano, has been indicted on the same charges.  Gordon and Cano, who were both registered sex offenders under federal supervision through GSP anklets at the time of the murders, camped together in the back of a paint and body shop, where they would bring their victims to rape and kill them.  Pretrial hearings for the killers are scheduled to take place next month.

US Army's Bergdahl to Face Court-Martial:  The military charges against the U.S. Army sergeant and former Taliban prisoner in Afghanistan were referred on Monday for trial by general court-martial, according to the U.S. Army Forces Command.  Jon Herskovitz of Reuters reports that prosecutors announced that there is sufficient evidence against 29-year-old U.S. Army Sergeant Bowe Bergdahl to hold him for trial on charges of desertion and misbehavior before the enemy, which were handed down earlier this year.  He faces a possible life sentence if convicted for misbehavior.  Bergdahl made headlines in 2014 when he was released by the Taliban following five years of captivity in exchange for five Taliban leaders.  Bergdahl is suspected of being a Taliban sympathizer, and U.S. military prosecutors believe he deliberately left his post, planning for it weeks in advance.  The date of the arraignment hearing will be announced later.

CA Chooses Not to Enforce Sex Offender Law:  The California Department of Corrections and Rehabilitation (CDCR) is allowing 76% of the sex offenders released from state prison to live near parks and schools, in direct conflict with Jessica's Law, an initiative adopted by voters in 2006.  A New York Times story by AP writer Don Thompson reports that the Jessica's Law prohibited convicted sex offenders from living within 2000 feet of parks and schools.  A California Supreme Court decision last March (In re Taylor) lifted the residency restriction in San Diego County, finding it impossible to enforce, but declined to do so for the state's other 57 counties. Weeks after the decision the CDCR announced that it would only enforce the restriction for child molesters, but an investigation by Thompson found that CDCR's own numbers show that it is actually not being enforced for many child molesters.   CDCR spokesman Jeffery Callison told the reporter, "a parole agent cannot simply prevent a parolee from living near a school or park because the offender committed a crime against a child."  The CDCR answers directly to Governor Jerry Brown. 


Is Prison Criminogenic?

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I've been debating for years the question whether prison is criminogenic, i.e., whether imprisonment increases crime.  Doug Berman, among others, has consistently said that prison is indeed criminogenic; I take the opposite view.  I think the evidence is overwhelming that imprisonment decreases crime.

One of the things I like about Doug is that he'll do something most other defense-inclined bloggers won't  -- post evidence contrary to his view.  He has done so again today in this entry (emphasis added):

Whether punishment promotes or deters future criminal activity by the convicted offender is a key public policy concern. Longer prison sentences further isolate offenders from the legitimate labor force and may promote the formation of criminal networks in prison.  On the other hand, greater initial punishment may have a deterrence effect on the individual being punished, sometimes called "specific deterrence," through learning or the rehabilitative effect of prison.

We test the effect of prison sentence length on recidivism by exploiting a unique quasi-experimental design from adult sentences within a courthouse in Seattle, Washington.  Offenders who plead guilty are randomly assigned to a sentencing judge, which leads to random differences in prison sentence length depending on the sentencing judge's proclivities. We find that one-month extra prison sentence reduces the rate of recidivism by about one percentage point, with possibly larger effects for those with limited criminal histories. However, the reduction in recidivism comes almost entirely in the first year of release, which we interpret as consistent with prison's rehabilitative role.

That's one item, but the argument that prison reduces crime is far more robust than that.





Summary Reversal on Excusing Jurors

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The U.S. Supreme Court has once again summarily reversed a federal court of appeals for failure to obey Congress's landmark reform of habeas corpus law in 1996.  Once again, it is a capital case in a circuit divisible by 3.

Because juries in the penalty phase of capital cases must be unanimous, it is particularly important to remove from the jury those members of the venire who will not actually weigh the aggravating and mitigating circumstance but instead will automatically vote against the death penalty no matter what.  This is particularly important in states which stupidly do not require the jury to deliberate to unanimity one way or the other but instead allow a single holdout juror to veto the decision of the other eleven.

People often do not state their views straightforwardly.  Sometimes they are dishonest, but more often they just haven't thought them all the way through themselves.  Determining which jurors are "Witherspoon/Witt" excludable therefore involves some judgment.  The trial judge, who sees the venire members live and in full context, is entitled to considerable deference in making this judgment.  However, anti-death-penalty judges who are just itching to overturn a death sentence regardless of how richly deserved it may be find jury selection to be a fertile source of excuses to nullify a law they disagree with.  To forbid such misuse of the law and limit the lower federal courts' power to overturn state decisions to cases of clear error, Congress enacted the "deference" provision of the Antiterrorism and Effective Death Penalty Act of 1996.  Federal district and circuit judges who regard themselves as infinitely superior to state supreme court justices hate this law and regularly ignore its mandate.  This is particularly common in the Third, Sixth, and Ninth Circuits.  Reversing them has become a significant part of the Supreme Court's workload.

In today's decision in White v. Wheeler, the Court includes the following admonition without dissent:

As a final matter, this Court again advises the Court of Appeals that the provisions of AEDPA apply with full force even when reviewing a conviction and sentence imposing the death penalty.
The fact that it is necessary for the high court to so admonish the federal appellate courts is a sad commentary on the state of our judiciary.  Judges who cannot or will not decide capital cases fairly should not sit on them.  They should be excludable just like the jurors.  If they will not recuse themselves, perhaps it is time to establish a challenge for cause.  How about a rule that a federal court of appeals judge who is three times reversed by the Supreme Court for failure to obey AEDPA in a capital case will sit on no more capital cases?

Jonathan Adler has this post at the Volokh Conspiracy.

The ACLU, Protecting Your Rights.

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Unless you happen to support Donald Trump, in which case you should get shot.

And no, the ACLU itself did not make this statement, but a board member of its Colorado chapter did.  He since resigned and, surprise of surprises, is unavailable for comment.

Here is the story.
A few years ago, California voters adopted the Louisiana system of elections, the one that gave us the famous campaign slogan of "Vote for the Crook.  It's Important."  (The alternative was a Klansman.)  When we cast our ballots for U.S. Senate 11 months from now, the choice won't be quite that unpalatable, but Republicans may very well have to swallow hard and choose between two Democrats:  Attorney General Kamala Harris and Congresswoman Loretta Sanchez.  It seems Ms. Sanchez has raised some hackles with a Politically Incorrect statement.  Christopher Cadelago reports for the SacBee:

Sanchez, a candidate for the U.S. Senate, said that between 5 and 20 percent of Muslims want to form a caliphate to target Western norms.

"They are not content enough to have their way of looking at the world, they want to put their way on everybody in the world," Sanchez said on "PoliticKING with Larry King." "And again, I don't know how big that is, and depending on who you talk to, but they are certainly, they are willing to go to extremes. They are willing to use and they do use terrorism."
Saying "between 5 and 20 percent" wasn't a good idea.  Her follow-up "I don't know how big that is" is completely correct.  Nobody knows.  Islamic extremism exists, and regardless of how large the fraction is, this is a reality that cannot be ignored.  Willingness to speak uncomfortable truths places a checkmark in Ms. Sanchez's column, in my view.

On a related issue, Rudy Giuliani has an op-ed in the WSJ on calling things by their proper names.
Daniel Henniger has this column in the WSJ asserting that this year "law and order" will make a comeback as an issue in the presidential campaign, to the benefit of Republicans.

Too late. The days when the Democrats could claim to be the party of personal or national security are long gone. In 1968, Richard Nixon tagged them with it. This time, they've done it to themselves.

With the four Democratic presidents from FDR to LBJ, security was a partisan debate over details. Since 1970 and the Democrats' long march left, providing for the common defense has been leaching out of the party's DNA.
I hope he is right that this issue will get a higher profile.  He is certainly right about the Democrats being bankrupt on the issue, though unfortunately we have had considerable leaching in the Republican Party as well.

And then of course there is Donald Trump.  He is right that more people who murder police officers should be executed, but how many ways is this proposal (reported by Ben Kamisar at the Hill) unconstitutional?

"One of the first things I'd do in terms of executive order, if I win, will be to sign a strong, strong statement that would go out to the country, out to the world, anybody killing a police man, a police woman, a police officer, anybody killing a police officer, the death penalty is going to happen," he said.
The letter mentioned in today's News Scan is available here.

News Scan

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Top LE Officials Oppose Sentencing Reform:  Forty former top federal law enforcement officials, in a letter sent to Senate leaders, have called to halt the rolling back of mandatory minimum sentences and leave the current sentencing regime alone.  Dan Friedman of the Washington Examiner reports that the group, which includes former New York mayor and U.S. Attorney Rudy Giuliani, former Attorney General John Ashcroft and drug control czar William Bennett, argued in a letter that, "Mandatory minimums and proactive law enforcement measures have caused a dramatic reduction in crime over the past 25 years, an achievement we cannot afford to give back." While critics of mandatory minimums claim that its use results in disproportionate incarceration of black men for nonviolent crimes, the former officials warn that retroactively altering previously-applied sentencing guidelines would allow thousands of armed career criminals to be released from prison, noting that the proposed legislation would "roll back mandatory minimums for gun crimes like a bar on felons possessing firearms."

Patrol Officers See Changes as Tensions Rise:  Following several deadly, high profile confrontations between police officers and unarmed black men over the course of more than a year, officers are taking notice that the job has changed due to increased tension.  Jeffrey Collins of the AP reports that beat cops and their supervisors are worried that heightened fear of public scrutiny might cause officers to "overthink what should be split-second decisions in dangerous situations, putting themselves or others at risk."  Officers also express a new fear of being ambushed, such as Sgt. Jeff Weed of the Lexington County Sheriff's Department, who stated that he no longer feels secure doing paperwork while sitting in an empty lot in his patrol car.  A South Carolina deputy, Shane Reece, says that he gets more attention while on patrol than he used to; whether the attention is positive or negative, "Both sides are more vocal.  You don't get to go quietly many places anymore."  Departments nationwide have begun using body cameras as "an unflinching witness to an incident."  Officers are being encouraged to get out of their patrol cars and interact with the public so that when videos of incidents are widely publicized and scrutinized, people can better recognize police officers as people, not just uniforms.

Gitmo Detainee Released by Obama Seen in Terror Video:  A former Guantanamo inmate released by an insistent Obama administration, adamant that he would not fall back into terrorism, has resurfaced as a top al Qaeda leader in a video urging Muslims to kill Americans.  Rowan Scarborough of the Washington Times reports that Ibrahim al-Qosi, once a close associate of Osama bin Laden, was released in 2012 by the Defense Department to his native Sudan after he pleaded guilty to a minor terrorism charge, and the Sudanese government was supposed to reintegrate him into society as a law-abiding citizen.  Instead, al-Qosi is now chief spokesman for al Qaeda in the Arabian Peninsula, featured in a video urging "individual jihad" on Americans, also known as lone wolf attacks.  According to a Director of National Intelligence report, of the 653 Gitmo prisoners released as of last summer, 117 have been confirmed as terrorists and another 79 have been suspected of re-engaging in terrorism.  President Obama has vowed to close the facility in Cuba, transferring the remaining 107 prisoners to the U.S., but has been met with fierce opposition from Republicans concerned that the inmates are too dangerous to be moved and that the White House has failed to submit a plan on how to accomplish the closing and transfers.

The Defense Bar, At It Again

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To clear out the underbrush at the outset:  No, I do not think defendants should go without counsel.  Yes, I think counsel should be zealous.  But no, being zealous does not include disrespecting the considered wishes of the client, or misleading the court or jury about the client's mental state.  

On Wednesday, Robert Dear, who murdered three people including a police officer at an abortion clinic in Colorado, "blurted out," as the press likes to put these things, the truth:  ""I am guilty, [I want] no trial. I am a warrior for the babies!"

The Denver Post story goes on to recount that Dear is a "deeply religious man" and "conflicted."  I have no doubt of this, although I wish he had been "conflicted" enough to stand down from murder and try some different "remedy," such as, for example, explaining to abortion providers why he believes they are horribly wrong and should stop.

My focus, however, is not on Dear, but on his defense lawyers, including lead public defender Daniel King.  Public defenders, like all other defense counsel, are employed to advance the interests of the client as the client sees them, not as the lawyer sees them.  Apparently this does not apply in Colorado.

Andrew Wolfson has this article in the Courier-Journal centered on Facebook posts made by Jefferson Circuit Judge Olu Stevens regarding the racial makeup of juries, and the subsequent debate that erupted between him and Commonwealth's Attorney Tom Wine.  The debate begs the question of whether or not it is proper for a judge, who has taken an oath to be impartial, to publicly blast attorneys or opine on legal issues on social media.  Some background to the story:

The fiery dispute between Stephens and Wine arose when the judge dismissed a jury panel in November 2014 because it had no black members - even though the prosecution had nothing to do with that result.
Wine then asked the Kentucky Supreme Court to clarify whether judges have that power when there is no evidence minorities have been removed for discriminatory reasons. Stephens in turn took to his Facebook page to blast Wine as trying to "protect the right to impanel all-white juries" in a series of posts that suggested the prosecutor is racist.

Stevens said that while the panel was drawn at random - and the black juror was struck at random - the defendant was denied a right to a jury representative of a county in which about 21 percent of residents are black.
Here is some of what Judge Stevens had to say on Facebook:

A Blow Against Over-incarceration

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As we have often been told, America is incarceration-happy.  A legacy of our Puritan and racist past, our criminal justice system imprisons non-violent offenders for mindlessly long terms.  This is why the United States has 25% of the world's prisoners but only 5% of its population.

I am thus happy to report that in nearby Montgomery County, Maryland, the judge abjured any prison term for Kenneth Saltzman, a productive family man with (so far as the story recounts) no prior criminal history.  Indeed, it's questionable whether, in a less uptight and more liberty-oriented country, Saltzman would even have been convicted of a crime.  As it was, his sentence was a $5000 fine.

His offense?  Hosting a party.  That's it.  That's was all he was charged with, and all he did.

Still, some punitive, cowboy sorehead was not satisfied, and complained to the media:

"I just can't believe you can walk in and write a $5,000 check, and I'm never getting my son back," Pamela Murk [a former mother] said, according to [a local TV] station.

Sentencing reformers, be of good cheer.  You have had your share of success. Maryland law does not allow any prison at all for this offense.  Enjoy your handiwork.
FBI Director Jim Comey was a superb choice for the job, as I noted two and a half years ago when he was tapped.  Among the reasons for my high opinion of him is his independence from political influence, a quality essential in someone with that kind of power, and more essential than ever in a Justice Department as politicized as this one has become.

Jim did not disappoint when he appeared before the Senate this week and was asked by Sen. Jeff Sessions  -- another man of great integrity and judgment  -- about federal mandatory minimum sentencing statutes and the prospects for more crime if, in a fit of complacency, Congress were to relax them.

Paul Mirengoff on Powerline has the story.

It's a relief, and in my view essential to liberty, to have someone like Jim Comey in that position.

What Not To Do During a Traffic Stop

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Here is a friendly video holiday reminder from the Seattle Police Department.

News Scan

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Friend who Bought Guns for SB Terrorist to be Indicted:  Federal authorities are set to bring charges against the former neighbor of one of the San Bernardino shooters, who allegedly purchased two of the guns used in last week's terrorist attacks.   Fox News reports that 24-year-old Enrique Marquez, who is married to the sister-in-law of gunman Syed Farook's older brother, legally purchased the AR-15 rifles that Farook and his wife Tashfeen Malik used in the deadly attack, and is expected to be indicted after providing "substantial information" to investigators about the radicalized couple.  It is believed that Marquez bought the rifles and gave or sold them to Farook back in 2012, after the two discussed executing an attack somewhere in the Los Angeles area.  The plan was abandoned by the friends following the arrests of four people in Riverside County on an unrelated terror case.  Friends of Marquez have told authorities that he seldom spoke of his family or marriage, and was either converted or in the process of converting to Islam.  He checked into a mental facility shortly after the carnage unfolded last Wednesday, but his current location is not clear.  It is not clear the specific charges he'll face.

US Launches Trial of Biometric Scanner at Border Crossing:  U.S. Customs and Border Protection have begun a trial run to test out biometric screening at the U.S.-Mexico border by capturing facial and eye scans of foreigners entering the country at San Diego's Otay Mesa port of entry on foot.  Elliot Spagat of the AP reports that by February, foreigners going to Mexico on foot through the checkpoint will also get scanned, and the trial run will last through June.  Marc Rosenblum, deputy director of U.S. immigration policy at the Migration Policy Institute, said that capturing biometrics from people leaving the country would fix "the biggest deficiency in the whole system."  Jim Williams, a former Department of Homeland Security official, echoed that sentiment saying, "We have historically controlled our borders coming in but not going out."  A Pew Hispanic Center study conducted in 2006 estimated that between 40 and 50 percent of people in the U.S. illegally overstayed their visas, and use of biometric screening at the nation's fourth-busiest border crossing will hopefully help to remedy the problem.

Ex-Subway Associate Sentenced on Child Porn Charges:  The former director of the Jared Foundation, a nonprofit started by ex-Subway pitchman Jared Fogle to combat childhood obesity, was sentenced to 27 years in prison Thursday for producing child pornography.  Rick Callahan of the AP reports that 44-year-old Russell Taylor plead guilty in September to child exploitation and child porn charges, and admitted using hidden cameras to secretly film 12 children inside his Indianapolis-area homes for the production of child porn.  After serving his full sentence, he will be on lifetime supervision.  Taylor gave former Subway spokesman Fogle photos or videos of eight of the 12 victims and "encouraged him to produce more," leading to Fogle's arrest and conviction.  Last month, Fogle was sentenced to more than 15 years in prison after pleading guilty to trading child pornography and having sex with two underage prostitutes.

Race Huckstering Goes Over the Edge

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You might think this story is from the Onion, but, regrettably, it's not:

The Black Student Union at Lebanon Valley College has made a number of demands of the college, and one is prompting considerable backlash. The students want the college to rename Lynch Memorial Hall, PennLive reported. The building is named for Clyde A. Lynch (right), an alumnus who was president of the college from 1932 to 1950, and who died in office. He is credited with helping to keep the college functioning and growing during the Depression, no easy task for a small college without a large endowment. Students who are pushing for the name change say that the name "Lynch" has racist associations because of lynching. 

Memo to the Attorney General:  Please change your name to Loretta Smith.


News Scan

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San Bernardino Shooters Radicalized Before Marriage:  FBI Director James Comey told the Senate Judiciary Committee on Wednesday that the married couple who carried out last week's terrorist attack in San Bernardino that claimed 14 lives "were radicalized for quite a long time," even before their courtship began online.  Richard A. Serrano of the LA Times reports that the new information suggests that the shooters, U.S. citizen Syed Rizwan Farook and his Pakistani wife Tashfeen Malik, began planning a terrorist attack before their engagement and prior to her moving to the U.S. on a fiancée visa in 2014.  The investigation shows that the two were talking to each other about jihad and martyrdom as early as 2013.  A friend of Farook also told authorities that he and an unidentified individual conspired to carry out an attack in 2012 but "got spooked" and abandoned the plan. The FBI investigation also revealed that Farook and Malik may have attempted to alter their semiautomatic weapons to render them more deadly, and that Malik gave an incorrect address in Pakistan on her K-1 visa application as a possible attempt to "hide her family's ties to Islamic militant elements in the Punjab area."  

Obama Admin. Scrambles as Border Surge Continues:  Migration into the U.S. typically remains low through the winter, however, "this year has defied that trend," prompting the Obama administration to implement emergency measures to cope with the continued illegal immigration problem it thought was over.  Stephen Dinan of the Washington Times reports that just two months into the new fiscal year, the number of unaccompanied alien children caught at the border has reached 10,500, more than twice the number at the same point last year.  The number of families - mostly women and children - trying to cross has spiked as well, with over 12,500 people caught, a staggering 173 percent increase over last year.  Jessica Vaughan, policy studies director at the Center for Immigration Studies, says, "What the new arrivals are telling the Border Patrol is that they came because they knew they would be allowed to stay" under President Obama's lenient deportation policies that release them into the U.S. where they can "earn a place in the shadows" while awaiting court dates that take years to come.

House Passes Visa Waiver Reform Bill:  With strong bipartisan support, the House on Tuesday passed a bill imposing new restrictions on a visa waiver program that has welcomed approximately 20 million people into the U.S. each year.  Karoun Demirjian of the Washington Post reports that the bill was approved on a 407 to 19 vote, and aims to increase information sharing between the United States and the 38 countries whose passport-holders are permitted to the visit the country absent a visa.  The measure would require countries participating in the waiver program to issue passports with embedded chips containing biometric data, report information about stolen passports to Interpol and share information about known or suspected terrorists.  Additionally, the House bill would require Syrian and Iraqi nationals and any passport-holder of a waiver country who has traveled to Syria, Iraq, Iran or Sudan since the beginning of the Syrian civil war in March 2011 to "submit to the traditional visa approval process," which compels them to be subject to an in-person interview.  A separate Senate bill, which has not yet been scheduled for a vote, aims to prevent individuals who have traveled to Iraq or Syria from using the program for a total of five years.  Under both measures, the Department of Homeland Security secretary will have the authority to remove countries from the waiver system.

I promised to furnish a link for the conversation between Judge Alex Kozinski and me, and it is now available, here.  I want to thank Judge Kozinski for the many insights he shared, and the Federalist Society for hosting a lively and wide-ranging discussion.

News Scan

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Gas Chamber Proposed by MO Murderers:  Two murderers on Missouri's death row claim that they are "too ill to be killed" by lethal injection. Tony Rizzo of the Kansas City Star reports that 47-year-old Russell Bucklew, sentenced to death in 1996 and granted a stay of execution in May 2014, argues that a "a rare, dangerous and sometimes debilitating congenital condition"  creates a significant risk that lethal injection would cause a painful execution.  55-year-old Ernest Johnson, facing execution for murdering three people during a 1994 robbery, won a high court stay last month, and now claims that a brain tumor has created a defect which might trigger seizures and convulsions during lethal injection.  Attorneys for the inmates are required to propose an alternative execution method and both have proposed the gas chamber, though no one has been put to death by lethal gas in the state since 1965.  The state's gas chamber is inside the now-closed Jefferson City prison.  Bucklew's attorneys insist that Missouri officials would have "plenty of time" to repair it if they choose to.

Syrian-born US Citizen Supplied Militants:  A U.S. citizen originally from Syria has been charged with smuggling rifle scopes, night-vision goggles and other military-style gear from the United States to Islamic militants in Syria.  Ben Nuckols of the AP reports that 50-year-old Amin al-Baroudi provided the insurgent group Ahrar el-Sham, which fights alongside al-Qaida's official branch in Syria and wants to establish an Islamic state, with gear between 2011 and 2013, confiding in an unnamed conspirator that he planned to bring $30,000 worth of material to Syria and train people how to use it.  He faces four charges related to violations of U.S. sanctions against Syria, and Commerce Department restrictions on exports there.  He is not accused of shipping any weapons.

Burglary Suspect Hides in Lake, Eaten by Gator:  A suspected burglar, attempting to evade capture, jumped in a Florida lake where he was killed by an 11-foot alligator.  Fox News reports that 22-year-old Matthew Riggins,was seen with another suspect walking behind homes in Barefoot Bay on Nov. 13, but police were unable to locate them.  Riggins was reported missing the following day, and his body was discovered 10 days later in a nearby lake with injuries indicative of being pulled under by the alligator and drowned.  After the alligator was killed, Riggins' hand and foot were found in its stomach.  A second person has been taken into custody for the burglaries. 

News Scan

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ISIS Targeted Refugee Program in Enter US:  The head of the House Homeland Security Committee said Monday that the U.S. government has information indicating that individuals tied to Syrian terrorist groups gave attempted to exploit the refugee program to gain access to the United States.  Julian Hattem of The Hill reports that Rep. Michael McCaul (R-Texas), speaking at the National Defense University, did not go into details nor did he reveal who specifically provided the information, describing sources only as "elements of the intelligence community."  The debate surrounding Syrian and Iraqi refugees intensified following the terror attacks in Paris last month and in San Bernardino last week, with critics warning that the program is vulnerable to infiltration by Islamic State adherents.  President Obama is determined to bring in 10,000 Syrian refugees over the next year, and Republicans and Democrats alike are "wary of the president's plans." 

GA Murderer to be Executed:  A Georgia man convicted of murdering his mother's friend in 1992 is set to be executed Tuesday, nine months after his original scheduled execution was put on hold when the compound lethal injection drug became cloudy.  Jeremy Gray of AL reports that Brian Keith Terrell's attorneys have appealed Tuesday's execution over concerns with the lethal injection drugs, the constitutionality of which is front and center in the death penalty debate.  In 1992, Terrell was caught by his mother's friend, 70-year-old John Watson, stealing checks from him.  Watson informed Terrell's mother and the police but agreed not to press charges as long as most of the money was returned.  On the day Terrell was supposed to return Watson's money, he showed up at his residence and shot him multiple times, then beat him so brutally that a bone penetrated into his skull.  Update: Terrell was executed early Wednesday.

How Often Do the Police Use Force?

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To watch the media's endless replay of bodycam or smart phone recordings, you would think the police get up in the morning eager to see who they can bully, slug, menace, grab, punch, push, throw to the ground or otherwise brutalize.  I recall one episode recently in which a school security officer In Columbia, SC, was shown, in the words of Reason Magazine, as he "tackled a girl who was sitting in her desk, dragged her across the room, pinned her, and arrested her."  The Reason article included a tape of the episode, which was re-played in the accompanying news segment not fewer than eighteen times.

Q:  Why does it get re-played eighteen times?

A:  To create the impression that this kind of thing goes on endlessly.

Q:  How often does it actually go on, when we look at data rather than anecdote?

A:  Next to never.

Q:  How do we know that?

A:  From this DOJ study, quietly released three weeks ago, which states, inter alia, "[A]n annual average of 44 million U.S. residents age 16 or older had one or more face-to-face contacts with police from 2002 to 2011, and an estimated 1.6 percent experienced the threat or use of nonfatal force during the most recent contact."

Or put differently, 98.4% did not.  And this tracks the experience (1) as perceived unfiltered by the citizen, not as understood by the officer, and (2) it includes threats (i.e., words) in addition to actual force.

I regret to report that this sort of grossly misleading use of anecdote has become routine in public debate.

Items of No Interest

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The ISIS massacre in Paris occurred on Friday night, November 13, a little more than three weeks ago.  The massacre in San Bernardino occurred last Wednesday, December 2.  I believe it's safe to say that these have been the most discussed news stories in the United States, and possibly in the world, from the time they happened until now; I would bet considerable money on the proposition that they have been the most discussed crime stories.

One would think, then, that blogs about criminal law issues would have seen extensive discussion of the multitude of issues these events suggest.  Among them are electronic (and other) surveillance, legal and illegal immigration, gun control, the forcefulness of the police response (which killed several suspects, obviously without trial), and the appropriate sentences for those found to have aided the terrorists in each instance.

I have therefore been nonplussed, to say the least, to see that not a single word about any of these questions  -- indeed no mention of any kind  --  has been made on one of the most widely read and eclectic criminal law blogs, Sentencing Law and Policy.  Not a word by the author, the redoubtable Prof. Doug Berman, and none by any of his numerous commenters. In the meantime, SL&P has covered such things as Tennessee's fetal assault law, Hegel's theory of punishment, and "Stray Kittens Strut Their Stuff in Prison."  

Criminal law blogs are private property and may choose their subjects as their owners see fit. I have no portfolio to patrol anyone else's choice of topics. That said, the total silence about Paris and San Bernardino is, I think, revealing.  My guess is that one reason for the blackout is that the audience for SL&P is overwhelmingly against the death penalty, while, for the mind-numbing savagery of crimes like these, any lesser punishment would strike most Americans as a mockery of justice. Perhaps, then, silence is the best option.
I recently posted a poll (link here) taken by Opinion Research Corporation showing that, by 2-1, the public prefers doing more to keep drug traffickers off the street to doing more to reduce their numbers in the prison population.

These results can hardly surprise anyone.  Gallup recently found that 70% of Americans think crime is rising, up sharply from last year.  Of course a big majority wants to do more to keep drug pushers off the street rather than put them back there. This is not rocket science.

Why, then, are so many establishment Republicans in Congress, including John Cornyn, Chuck Grassley and (in the House) Bob Goodlatte pushing a bill whose main purpose and effect would be to let drug traffickers (including heroin traffickers) out of prison months or years early? And why would they want to do this when (a) the drug offender recidivism rate is an astonishing 77%; (b) murder (often drug related) and heroin usage is spiking in cities across the country; and (c) the public is on to (a) and (b)? 

Hint/preview:  Why do so many Republicans say they prefer a chest-thumping, classless blowhard like Donald Trump to more established leaders like Sen. Ted Cruz or Sen. Marco Rubio?

Studies, Experts, and Other Baloney

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Kent posted an admonition to take with a grain of salt (or maybe ten grains) any solemn pronouncement you hear or read in which "experts" release a "study" that shows X.

As usual, Kent nails it.  Academia, including legal academia, is chock full of largely self-annointed (and media-annointed) "experts" with one thing in common: a Leftist and pro-criminal bias.  This is not uniformly true (for example, see Prof. John Pfaff's work noted by Steve Erickson here, or Campbell Law Prof. Zach Bolitho), but a pro-criminal bias is endemic in both law schools and think tanks.

What this brought to mind was a bunch of "experts" often cited in the liberal press, such as the Washington Post (just today) and the New York Times.  That would be the Brennan Center operating out of New York City.

The Brennan Center is to incarceration what the DPIC is to the death penalty:  An organization that fronts itself as a source of information while making less prominent its actual purpose  --  to crusade for the interests of criminals.  This is very much why it is sought out for its "expert" views (while CJLF occupies Linda Greenhouse's doghouse and, according to her, should be shunned).

It was the Brennan Center that discovered, contrary to the findings of every credible researcher who has looked at the question (not to mention common sense), that the country's markedly increased willingness over the last generation to incarcerate people who commit crime has had next to nothing to do with the marked decrease in crime.  I covered the Brennan Center's preposterous "study" here.  

WaPo fact checker Michelle Ye Hee Lee had this article Thursday on President Obama's various statements after mass shootings, which are not fully consistent with each other or with the facts.  The article also has a cautionary nugget about what "experts say" and what "studies show."

Mr. Obama gets the maximum Four Pinocchios (reserved for "whoppers") for his December 1 statement in Paris, "I say this every time we've got one of these mass shootings: This just doesn't happen in other countries."  Wow.

The President's other, more nuanced statements about the relative frequency of such incidents get the milder Two Pinocchio rating ("significant omissions and/or exaggerations").  To check the facts, Ms. Lee consults experts Adam Lankford and John Lott and gets very different answers.

Astute readers might notice how Lankford and Lott both compared the United States to grouped European countries, but their conclusions are vastly different. Lott says the rate is about the same, while Lankford says the rate is five times higher in the United States. How is this possible? The researchers are looking at different sets of years and different sets of countries. (Lott looked at Europe as a whole; Lankford at the European Union.) Lott uses a broader measure of mass shootings than Lankford does. Lankford looks at the number of shooters; Lott uses fatalities and shooting incidents. This is an example of how the data and definition can be adjusted to show different findings about mass shootings, even using a per capita rate.
Lots and lots of choices have to be made in setting up a study, many seemingly benign in themselves.  If a person wants to reach a particular result, it is easy as pie to run the numbers 16 different ways, pick the way that best supports your agenda, and throw the others in the trash.

This is why the viewpoint one-sidedness of American academia and the well-funded nonprofits is so very dangerous.  The truth comes out much more clearly when there are people on both sides doing these kinds of studies, but academic conservatives are an endangered species, and those who do "come out" are targeted by neo-McCarthyists determined to achieve ideological purity.

Be very, very skeptical about what "studies show" and "experts say."  
A neighbor of the Jihadist killers in San Bernardino noticed that something suspicious was going on next door, but said nothing about it out of fear of being labelled a "racist."  Here's the story:

Neighbors of San Bernardino shooter Syed Rizwan Farook told ABC Wednesday that they noticed "suspicious activity" at Farook's home recently, but did not report it for fear of being called racist....

Aaron Elswick -- a neighbor of Farook's mother in Redland -- said that another neighbor told him "they had I guess been receiving packages -- quite a few packages within a short amount of time, and they were actually doing a lot of work out in the garage."

"She was kind of suspicious and wanted to report it," Elswick explained, "but she said she didn't want to profile."

When the authorities finally searched the house, too late for the 14 murder victims, they found an arsenal of automatic weapons and what amounted to a bomb factory.

Unfortunately, it turns out that Mr. Elswick has more to fear than merely being branded a racist.  As noted, he might realistically have feared an investigation by Attorney General Lynch.

President Obama says he abhors "gun violence."  Having helped mold a culture in which people are cowed from reporting the possibility that Middle Eastern neighbors could be stockpiling AK-47's, my guess is that his abhoring has just begun. But don't count on his asking Ms. Lynch to change her watch-your-mouth priorities.

P.S.  Liberals would often tell us that, if we start to curtail our freedoms out of fear, the terrorists will have won. This turns out to be true, just not in the way they wanted us to believe.


ISIS lauds killers as "martyrs"

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To follow up on Kent's post, ISIS has now given the San Bernardino killers its highest accolade: martyr.  NBC News has the story:

A new radio message released by ISIS on Saturday calls the California couple who gunned down 14 people at a holiday party "supporters" -- but stops short of the terror group taking direct credit for the attack.

An announcer with the al-Bayan radio morning report recounts the slaughter in San Bernardino, and asks for "Allah to accept them (the shooters) among the martyrs," according to a translation provided by global security firm and NBC News analyst Flashpoint Intelligence.

Since ISIS has only compliments for the killers and their putative devotion to Allah, I think it need not worry about a "hate speech" prosecution from the Attorney General.

This is what it has come to:  What really rings this Administration's bell is not ISIS itself  --  terrorism's JV team  -- but criticism of the identifiably Islamic thought from which ISIS springs.

P.S.  As the last link shows, White House spokesman Josh Earnest said three months ago that his boss's "JV team" remark "was referring to groups that "do not have designs on attacking the West or on attacking the United States ... they certainly don't have the capability of attacking the West." Note to residents of San Bernardino, CA: You are not in the West.
  

The San Bernardino Massacre

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I have held off commenting on the San Bernardino massacre until more was known.  Today's WSJ has a number of articles on the emerging picture and the policy dilemmas we faced as we decide what to do to reduce the risk of such horrors.

Attorney General to Free Speech: Drop Dead

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Attorney General Loretta Lynch doesn't want you saying offensive stuff about Islam or Muslims.  And if you don't wise up, she's prepared to do something about it.

Hence this story from ABC News:

"Obviously this is a country that is based on free speech," Lynch told the audience at the Muslim Advocates dinner in Arlington, VA. "But when that edges towards violence...we will take action."

I don't know exactly what "edges towards violence" means, and I think there used to be this thing called the "void-for-vagueness" doctrine circumscribing the actions of prosecutors.  But Ms. Lynch is only Attorney General, so I can't expect her to know everything. 

Still, I want to take this opportunity to test the new limits (or non-limits) on prosecution of speech by saying some things that could quite plausibly be viewed as "edging toward violence."  DOJ, I hope you're listening.

News Scan

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SoCal Jihadist Wife Pledged Allegiance to ISIS:  The mysterious Pakistani woman who gunned down 14 people at a San Bernardino holiday party with her husband pledged allegiance to the Islamic State on social media before the attack "in what appears to be concrete evidence that the rampage was at least inspired, if not directed, by the terrorist group."  Fox News reports that Tashfeen Malik, wife of partner-in-crime Syed Rizwan Farook, posted a pledge on Facebook to ISIS leader and self-proclaimed "caliph" Abu Bakr al-Baghdadi under a different name and then deleted it, and authorities are now beginning to suspect that she radicalized her new husband, transforming him from "an aloof county restaurant inspector into her cohort in carnage."  Through few details have emerged about Malik, including her picture, what is known is that she and Farook, a U.S. citizen of Pakistani descent, met online and became engaged in September 2013 when Farook traveled to Saudi Arabia.  Malik then applied for a K-1 (fiancée) visa in May 2014 and was brought to the U.S. two months later.  Following their marriage and the passage of background checks, she was issued a conditional green card in July 2015, two months after the birth of the couple's daughter.  The couple stormed a holiday party hosted by Farook's employer at a social services office Wednesday morning, shooting 14 people fatally and injuring 21 others, and both died hours later during a shootout with police.  Investigators believe their deaths prevented a second attack.

Immigration Court Caseload Triples in Four Years:  The director of the Justice Department's Executive Office for Immigration Review (EOIR) told Congress Thursday that the number of pending cases before immigration courts has tripled between 2011 and 2015, while the number of immigration judges has declined.  Pete Kasperowicz of the Washington Examiner reports that Juan Osuna told the House Judiciary Committee that at the end of FY 2015, EOIR's immigration courts had 457,106 cases pending, an increase of more than 298,171 cases that were pending at the end of FY 2011; this amounts to an increase of nearly 300,000 from 2011's 158,000 pending cases.  He noted that last year's surge of illegal immigrants has put extra pressure on the courts, which are dealing with the overwhelming situation by prioritizing only the most dangerous immigrants.  Exacerbating the problem further, there were only 257 judges nationwide as of this month compared to the 273 in 2011, prior to a hiring freeze.  Fortunately, two dozen immigrant judge candidates are going through the final stages of the hiring process.

Order for AR to Release Execution Drug Source on Hold:  The Arkansas Supreme Court granted a request to temporarily put on hold a mandate to turn over information about the source of its execution drugs.  Claudia Lauer of the AP reports that the decision stems from a lawsuit filed by death row inmates challenging the constitutionality of the secrecy portion of the state's execution law.  Pulaski County Circuit Court Judge Wendell Griffen sided with the inmates, ordering the release of the information on the grounds that "drug suppliers do not have the constitutional right to be free from criticism."  The inmates involved in the litigation further argue that the secrecy law violates a settlement in an earlier lawsuit that guaranteed inmates the information, though the state asserts that the agreement is "not a binding contract."  The Arkansas attorney general's office plans to appeal Griffen's ruling.

In Praise of Boring Words

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James Hagerty at the WSJ has this story on what is apparently the latest stupid fad in education:

English teachers were once satisfied if they could prevent their pupils from splitting infinitives. Now some also want to stop them from using words like "good," "bad," "fun" and "said."

"We call them dead words," said (or declared) Leilen Shelton, a middle school teacher in Costa Mesa, Calif. She and many others strive to purge pupils' compositions of words deemed vague or dull.

"There are so many more sophisticated, rich words to use," said (or affirmed) Ms. Shelton, whose manual "Banish Boring Words" has sold nearly 80,000 copies since 2009.

Her pupils know better than to use a boring word like "said." As Ms. Shelton put it, " 'Said' doesn't have any emotion. You might use barked. Maybe howled. Demanded. Cackled. I have a list."
I thought about posting a refutation of this nonsense but haven't have time.  Fortunately, Alexandra Petri at the WaPo comes to the rescue.

News Scan

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Police, Feds Probe Terror as Motive in SoCal Massacre:  Local law enforcement and federal authorities are probing terrorism as a possible motive in the Wednesday morning massacre at a holiday party at a social services office in San Bernardino that left 14 dead and 21 injured.  Fox News reports that the married suspects, 28-year-old Syed Rizwan Farook, a U.S.-born citizen of Pakistani descent, and 27-year-old Tashfeen Malik, a Pakistani in the U.S. on a K-1 visa, stormed a holiday party taking place at the Inland Regional Center, clad in tactical gear and armed with assault rifles, unleashing carnage before being killed hours later in a shootout with police.  Farook, an employee of the county health department that was hosting the party, was described by his co-workers as a devout Muslim who had traveled to Saudi Arabia for a month this past spring and recently grew out his beard.  Explosive devises were discovered in the facility where the shooting occurred, as well as in the SUV the couple fled in following the attack and in their home in nearby Redlands, which police described as an "IED factory."  San Bernardino Police Chief Jarrod Burguan said Farook and Malik "came prepared to do what they did, as if they were on a mission," and when speaking of the myriad explosives found in their home said, "Clearly, they were equipped to do another attack."  A man who was working in the area near the couple's home told police he noticed "a half-dozen Middle Eastern men in the area in recent weeks," but didn't report it to authorities because he didn't want to racially profile.

Thousands of Criminal Aliens Roam Freely in the U.S.:  Several lawmakers and the director of Immigration and Customs Enforcement (ICE) confirm that approximately 179,029 illegal immigrants convicted of committing crimes, including violent ones, are roaming freely across the U.S. and committing new crimes "every day."  Adam Kredo of the Washington Free Beacon reports that ICE Director Sarah Saldana revealed at a hearing that between 30,000 and 40,000 illegal immigrants previously convicted of crimes have been released from custody in recent years "due to legal restrictions on how long the agency can detain and individual."  Saldana also confirmed that "overall apprehensions on the border are declining" and ICE's "removal numbers are lower than they have been in recent years."  The total number of illegal immigrant criminals in the country is in the millions, with American citizens "paying the price while law enforcement officers are instructed to look the other way."

Woman's Murder Highlights AB 109 Fears:  A San Mateo man arrested Monday for the fatal stabbing of his ex-girlfriend over the weekend, just days after being released from prison under AB 109, confirms fears among anti-domestic violence advocates:  lethal consequences are resulting from California's solution to solve prison overcrowding.  Bill Silverfarb of the San Mateo Daily Journal reports that 22-year-old Anthony Kirincic was arrested back in late September for beating his former girlfriend, 34-year-old Colleen Straw, so badly that she had to be hospitalized and police initially sought an attempted murder charge.  However, the District Attorney's Office offered Kirincic a deal when they found insufficient evidence for attempted murder:  120 days in jail.  He served only 60 before being released under realignment, a law enacted by Gov. Brown in 2011 to combat prison overcrowding by "closing the revolving door of low-level inmates cycling in and out of state prisons."  Then this past Saturday, just days after his release, Kirincic returned to Straw's residence, despite being ordered to have no contact with her, and stabbed her in the neck, killing her. 

News Scan

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Study Finds 300 Active ISIS Supporters in the US:  A study released Tuesday reveals that approximately 300 American or U.S.-based Islamic State (ISIS) sympathizers have been identified as active online recruiters for the terror group.  Fox News reports that the study, titled "ISIS in America: From Retweets to Raqqa" and conducted by George Washington University's Program on Extremism, found that recruiters primarily use Twitter to convince others to travel to Iraq or Syria to join ISIS, saying that about 250 Americans had traveled or attempted to travel to the Middle East.  The study also concluded that, since March 2014, 71 people had been charged in the U.S. with ISIS-related activities, 56 of which occurred this year alone.  There are currently 900 active investigations against ISIS sympathizers in all 50 states.

SF 'Witch Killers' Considered for Parole:  Due to a recent federal ruling, California prison officials must consider parole for the murderous married couple known as the "San Francisco witch killers," who were each sentenced to 75 years to life for three murders they committed three decades ago.  Paul Elias of the AP reports that 73-year-old Suzan Carson has a parole hearing on Wednesday to see if is eligible for release, and her husband, Michael "Bear" Carson, canceled his June 30 parole hearing but will become eligible again in 2020.  The couple, who describe themselves as Muslim "warriors," were convicted of killing three people between 1981 and 1983 "during a drug-fueled quest to rid the world of witches."  Their chance at freedom angers the families of their victims, who describe the two as "unrepentant," having never expressed remorse or renounced their beliefs.  Parole consideration for the Carsons stemmed from a federal ruling to combat overcrowding by granting parole hearings to inmates older than 60 who have served more than 25 years of their sentence.

Obama Expands ICE Powers:  The Obama administration has created a new form allowing local authorities to hold illegal immigrants for deportation even absent of the top priorities the president laid out last year.  Stephen Dinan of the Washington Times reports that the detainer request form, called the I-247X, gives Immigration and Customs Enforcement (ICE) the power to ask local police to hold illegal immigrants for pickup even if they don't have serious criminal records or terrorism ties, covering those caught trying to jump the border, anyone who arrived illegally after Jan. 1, 2014, those who have overstayed their visas, and those ignoring recent deportation court orders.  However, the new tool does not override sanctuary cities, though security analysts commend the move and ICE director Sarah Saldana says it "will help strengthen cooperation with local law enforcement agencies."

Equitable Tolling

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The current argument session of the U.S. Supreme Court is pretty thin on criminal law.  There is one federal case involving some narrow issues, Musacchio v. United States, No. 14-1095, argued Monday.

Supreme Court decisions in civil cases may affect criminal and habeas cases, though.  That is particularly true of habeas, which is technically a civil case.  Yesterday the high court heard argument in a case involving equitable tolling of statutes of limitation, and the main precedent being discussed was Holland v. Florida, 560 U.S. 631 (2010), a capital habeas case (and one of my losses).

Habeas practitioners may want to keep an eye out for the decision in Menominee Tribe of Wis. v. United States, No. 14-510.  Perhaps it will shed some light on "extraordinary circumstances."  SCOTUSblog's case page is here. Ronald Mann has this report on the oral argument and thinks it looks grim for the tribe (and, therefore, good for the government).

News Scan

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OH High Court Overturns Murderer's Death Sentence:  The Ohio Supreme Court, in a 4-3 decision, overturned the death sentence of a man convicted of brutally beating his neighbor to death in 1998.  WCPO reports that in their opinion, the justices mainly cited mitigating factors in the case of murderer Rayshawn Johnson, including his childhood, drug addiction and developmental issues, writing that such factors outweighed any aggravating circumstances against him.  The justices added that Johnson's attorneys did not adequately investigate his background and present it to the jury.  The case has been sent back to Hamilton County court for re-sentencing.

HHS Running Out of Beds for Illegal Youths:  The Department of Health and Human Services (HHS) has warned Congress that it is getting close to running out of beds to house the large number of unaccompanied alien children crossing into the U.S. from south of the border.  Paul Bedard of the Washington Examiner reports that HHS confirms that 5,200 immigrants arrived in November, up 269 percent over last November and more than twice the 2014 surge.  HHS' Office of Refugee Resettlement, responsible for housing the youths with the Administration for Children and Families, has approximately 6,600 children in its care and a bed capacity of 8,400.

Boston Bomber's Lawyers Argue for New Trial:  Lawyers for Boston Marathon bomber Dzhokhar Tsarnaev are arguing before a judge Tuesday for a new trial to be granted.  The AP reports that in a motion related to a U.S. Supreme Court ruling handed down after Tsarnaev's trial in June centering on the legal definition of a "crime of violence," Tsarnaev's defense team argues that the high court's ruling puts 15 of his convictions in jeopardy because the court struck down part of the definition as "constitutionally vague."  The attorneys claim that this ruling requires those 15 counts to be thrown out and that a new trial should be granted because "the jury's imposition of the death penalty on other counts likely was influenced by the 15 counts related to crimes of violence."  Additionally, they argue Tsarnaev deserves a trial in a different location due to intense media coverage in the greater Boston area that could have contributed to a lack of impartiality by the jurors.  Tsarnaev and his brother detonated twin bombs placed near the finish line of the Boston Marathon in 2013, killing three and injuring over 260.  He was convicted of 30 federal charges and sentenced to death.

Kent on KCRW's "Which Way, L.A.?"  CJLF Legal Director Kent Scheidegger was a featured guest on KCRW Monday to discuss the admissibility of confessions of teenagers and, in a few cases, children.  The discussion focuses on the case of a 10-year-old boy who spontaneously told the police he killed his father before any questioning began.  The segment can be heard here.

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