January 2016 Archives

Every now and again, a single case crystalizes an argument so powerfully that there's not much left to say.  Recently, I wrote about one such case, the triple murder (of a mother and her two daughters, aged 10 and 7) by a crack dealer with a violent history who was out on early release because of Congress's 2010 version of "sentencing reform."  Had he remained in jail for his original sentence, the mother and the two kids would be alive today.

We all know that errors in sentencing are inevitable, because errors in human judgment are inevitable.  Accordingly, we know that some inmates will be incarcerated too long, and others, not long enough.  

The only adult question, then, is this:  Who should bear the risks and costs of inevitable error  --  the criminal, who made his own choice and assumed his own risks, or the future victim, who never had a chance?

The question answers itself.

So does the question posed by Judge Jack Weinstein's most recent adventure in judicial defiance:  Does a felony-level child pornographer deserve a prison sentence of zero?
Yesterday I was on KPCC's Air Talk with Larry Mantle.  The program page with audio is here. The topic of discussion was Gov. Brown's initiative to make every convicted felon eligible for parole at the completion of the base term for the present offense, effectively giving the parole board the power to wipe out all sentence enhancements imposed for prior convictions, no matter how many or how violent.

As usual, the other guest was someone who disagreed with me, and as usual Mr. Mantle was quite evenhanded in moderating.

The most interesting moment occurred during a call-in.  The caller frankly admitted that she had gone to prison for manufacturing drugs for sale, and after getting out she returned to the drug trade.  Even so, she insisted it was totally unfair that she got a sentence enhancement for the prior.  I was quite taken aback.  Judge for yourself whether I had a good answer.

News Scan

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TX Cop Killer Executed:  A Texas man who was convicted in the 2007 murder of a Texas Parks and Wildlife Game Warden was executed Wednesday.  Bob Price of Breitbart reports that 35-year-old James Garrett Freeman was sentenced to death by lethal injection for killing 34-year-old Game Warden Justin Hurst.  Hurst had spotted Freeman hunting at night from his truck when a high-speed chase ensued, ending when Freeman emerged from his disabled vehicle and mercilessly fired several rounds from a .357 Sig caliber pistol and an AK-47 at Hurst and other officers.Hurst, a 12-year veteran of the Texas Parks and Wildlife Department, was the 18th Texas game warden killed in the line of duty since the position was created in 1895. Freeman is the second person to be executed in the state this year.

Criminals, not Cops, Most Threaten Black Lives:  A report by the Manhattan Institute for Policy Research contradicts claims made by the Black Lives Matter movement, finding that a higher percentage of whites and Hispanics are killed by police and the bigger threat to blacks comes from violent criminals within their own communities.  Jose R. Gonzalez of CNS News reports that Manhattan senior fellow Heather Mac Donald found that four percent of black homicide victims are killed by police compared with 12 percent of white and Hispanic victims, while the number of blacks killed by other blacks is 90 percent.  The report concludes that the BLM movement "has been a counterproductive distraction from the real violence facing black communities: violence from criminals, not the police."

Jail Teacher Arrested for Helping Inmates Escape:  A jail teacher has been arrested for allegedly assisting three inmates escape from a California jail last week.  Gillian Flaccus and Robert Jablon of the AP report that 44-year-old English as a second language teacher Nooshafarin Ravaghi, part of the inmate program since 2014, is believed to have developed a relationship with the probable mastermind of the breakout, 37-year-old Hussein Nayeri, and provided him and two other inmates, 43-year-old Bac Duong and 20-year-old Jonathan Tieu, with Google maps to plot an escape route from the Orange County jail.  Whether her role may have been deeper is still being investigated, including whether she provided tools the inmates used to cut through the metal gate and rebar.  All three inmates were awaiting trial for violent crimes, such as torture and murder, when they managed an elaborate escape in which they crawled through plumbing tunnels, reached an unguarded section of the roof and rappelled down with bed linens.  One of them, Duong, was ordered deported to Vietnam in 1998, but never was. Update:  Duong has turned himself in.  The other two escapees are still at large.

Gov. Brown's Plan Will Affect Plea Bargaining:  Legal experts say that California Gov. Jerry Brown's proposed plan to give more inmates a chance for early release will likely diminish prosecutors' leverage in negotiating plea bargains.  Maura Dolan and Marisa Gerber of the LA Times report that a provision in Brown's proposal would allow for a parole hearing after inmates complete their sentences for their base crime, regardless of the inmate serving consecutive sentences or having sentencing enhancements, which will result in some loss of power for prosecutors in negotiating plea deals with defendants.  CJLF legal director Kent Scheidegger agrees with other legal experts that the plan is "dismantling a system that was carefully put together over time," and fears the defense bar may even try to use the measure to gut the three-strikes law.  "When we have a huge crime problem, we do something about it," he said.  "And when crime rates drop, people forget about it and we go back to old fallacies."  

Delaware Death Penalty Repeal Defeated

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I am told that the Delaware House of Representatives today voted down the death penalty repeal bill (SB 40), 16-23.

I feel like it's the Battle of the Bulge in World War II.  The enemy has made a hard thrust and gained some ground, but we have now stopped his advance, and a renewed push in the right direction is in the near future.

Update:  Randall Chase has this report for AP.
CalNonCalCrimeChanges2014_2015.gifAs noted previously on this blog, the FBI recently announced the Preliminary Semiannual Uniform Crime Report covering the first half of 2015 for cities over 100,000.  I have totaled the crime counts for violent and property crimes for 2014 and 2015 and computed the percent changes for California cities versus cities in other states.  Click on the graph for a larger view.

California has (1) court orders overriding state law to release prisoners because of overcrowded conditions caused by the Legislature's failure to build enough prison space, (2) the "realignment" program moving prisoners from state prison to overcrowded county jails where they are either released or push out prisoners who would otherwise be in jail, and (3) Proposition 47, which reduced many felonies to misdemeanors.  Between these measures, the state has seriously softened its approach to crime and put many criminals on the street who would otherwise be in custody.  Although other states are taking more modest measures to reduce prison populations, nowhere else do we see this headlong rush to push criminals out the gates.  One would expect, then, that California would have much worse results than other states, and that is exactly what we see.

What is Governor Brown's plan?  Push even more criminals onto the streets. 

News Scan

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Hundreds of Illegals Smuggled in just 3 Months:  Since the start of the 2016 fiscal year, which began on Oct. 1, 2015, over 200 illegal immigrants have been discovered in car trunks, tractor trailers or in other dangerous situations at the hands of Mexican cartels, in an attempt to evade inspection checkpoints in the Rio Grande Valley.  Ildefonso Ortiz of Breitbart reports that in 2014, a shift in human smuggling routes transformed the Rio Grande Valley into the main corridor used by the Gulf Cartel to smuggle thousands of illegal immigrants from Central America into Texas.  The U.S. Border Patrol says that the involvement of cartels in human smuggling and trafficking puts the lives of immigrants and the public in "extreme danger." 

Hundreds of DHS Badges, Guns, Cell Phones Lost or Stolen:  Inventory reports have exposed that, in the span of 31 months between 2012 and 2015, hundreds of badges, credentials, cell phones and guns belonging to Department of Homeland Security (DHS) employees have been lost or stolen.  Adam Shaw of Fox News reports that the information, obtained by a Colorado-based online news site via a Freedom of Information Act request, show that over 1,300 badges, 165 firearms and 589 cell phones were lost or stolen; most of the credentials belonged to Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE) and U.S. Citizenship and Immigration Services (USCIS) employees, while lost or stolen guns mostly belonged to CBP as well.  The revelation raises serious concerns over national security and the danger posed to the U.S. if the missing items get into the wrong hands.

Traffickers Shipping Weed Out of CO:  Law enforcement officials say that illegal drug traffickers are exploiting Colorado's legal marijuana marketplace, growing weed among the state's sanctioned pot warehouses and farms before secretly shipping it to other states for significant profit.  The AP reports that in one case, the owner of a skydiving company made millions when he sold hundreds of pounds of Colorado pot in Minnesota after transporting it via his planes.  Another case involved a Denver man who sent more than 100 pot-filled FedEx packages to Buffalo, New York, where the shipment was divvied up among drug dealers and sold.  While tourists who buy retail pot and attempt to bring it to their out-of-state residences also adds to the problem, it's the larger-scale traffickers who move to the state specifically to grow the drug and ship it to more lucrative markets that is concerning authorities.  These cases confirm the fears by marijuana opponents that the state's "much-watched experiment in legal pot would invite more illegal trafficking to other states where the drug is strictly forbidden."

More People Murdered Last Year than in 2014:  Homicides rose nearly 17 percent in America's 50 largest cities last year, the greatest increase in lethal violence since 1990.  Max Ehrenfreund and Denise Lu of the Washington Post report that an analysis by Wonkblog of preliminary crime data found that approximately 770 more people were killed in major cities in 2015 than in 2014, marking the worst annual change in a quarter century and the first interruption in a steady decline in homicides.  Experts say it's too early to know what is to blame for the surge, whether it's the Ferguson effect, the exploding heroin epidemic, reduced police department budgets or soft-on-crime reforms that have led to the decline in less convicts behind bars.

I blogged here about the enormous increase in murder our country experienced in 2015.  This is after a generation of consistent decreases.

Time to confess error.  My estimate of the extent of the murder spike (14.6%) was too low.  The Washington Post's very liberal Wonkblog says, "The number of homicides in the country's 50 largest cities rose nearly 17 percent last year."

A murder increase of that size across the 50 largest cities is a national crisis, there's no other way to put it.  To give some actual numbers, Wonkblog continues, "analysis of preliminary crime data found that about 770 more people were killed in major cities last year than the year before..." In other words, the increase in murder in 2015 was more than 25 times the total number of killers executed that year.

Where's the White House emergency news conference?

And what's the explanation for this disaster?  As usual, that's where the pro-criminal crowd gets fuzzy.  
If a person is convicted of burglary of a home, has prior convictions for rape and murder, and had a gun in his waistband when he broke into the home, how long should we keep him in prison?

Under California sentencing law, the violent priors and the gun use result in major sentence enhancements that extend the term far beyond that for burglary alone.  Yet Governor Jerry Brown has proposed an initiative that would make this career criminal eligible for parole after he has served his term for the burglary alone, which could be 2, 4, or 6 years.  (Penal Code §461(a).)  That is insane.

John Myers has this story in the LA Times.  It quotes me on a version of the above example, although the quote is a bit truncated.

Is it an answer to say we can trust the parole board not to let him out too early?  No, our experience from an earlier era when the parole board had nearly unlimited power demonstrates that we cannot.  That was why we needed to pass the tougher laws in the first place.

Will Hillary Get Indicted?

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Three Justice Department veterans  --  one at the top and two in the middle  --  think so.  I am one of those in the middle.  The story is here.

The Oregon Occupiers

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The WaPo has several articles on the Oregon wildlife refuge occupiers:  Sarah Larimer and Niraj Chokski on the eight in custody, Michael Miller on LaVoy Finicum, who was killed, and Sarah Kaplan, Adam Goldman, and Mark Berman on efforts to recover the refuge from the remaining occupiers.  In the WSJ, Jim Carlton and Devlin Barrett also cover the latter point.

Personally, I have little use for people who protest by occupying property that is not theirs and has nothing to do with the dispute.  That goes for the Occupy movement of a few years ago, the current protest, and all the way back to the Vietnam War when protesting students staged sit-ins at campus facilities that had nothing to do with the war.

The sit-ins at segregated lunch counters during the civil rights movement were different.  The lunch counter operators were perpetrators of the injustice at issue.

The main beef of the current occupiers is the violation of their constitutional right to graze cattle on land that does not belong to them without paying fees to the owner of the land, i.e., the federal government.  I don't recall reading that in the Constitution, but maybe it's part of the "living document."

News Scan

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CA Jailers Move to Improve Anti-Escape Measures:  As the manhunt intensifies for the three inmates who escaped an Orange County jail Friday, sheriff's officials at the nine jails in the Inland Empire region of Southern California hope to learn how the prisoners managed the daring breakout to help improve the security of their own lockups.  Brian Rokos of the Press Enterprise reports that to prevent escapes, some facilities have constructed better fences, situated a deputy at the front gate to greet all arrivals and now escort all inmates to various locations inside the jails, including the low-level offenders who were previously allowed to walk freely.  Jail officials point to AB 109, passed in 2011 to ease prison overcrowding, as part of the problem since there are now more dangerous felons serving longer sentences in county jails throughout the state, giving them more time to plot an escape.  "We knew our facilities were not ready for this kind of inmate," said Shannon Dicus, deputy chief for corrections in San Bernardino County. 

New Orleans Officer Shot, Suspect Charged: A New Orleans sheriff's deputy was shot five times on Tuesday serving a warrant with federal drug agents. The AP reports that 35-year-old Deputy Stephen Arnold was in critical condition following the five shots, one of which entered his neck, and immediately rushed into surgery. It is unclear whether or not he has sustained neurological damage. The suspect, 26-year-old Jarvis Hardy, was taken into custody and charged with attempted first degree murder and narcotics violations.  

Homeless Camp Shooting Leaves 2 Dead:  A Tuesday night shooting at a Seattle homeless encampment known as "The Jungle" ended in the deaths of two homeless people and the wounding of three others.  Lisa Baumann of the AP reports that the particular encampment "has been unmanageable and out of control for decades," said Mayor Ed Murray, who declared a state of emergency regarding homelessness in November and now wonders if he acted too late.  Police are currently tracking down two persons of interest in the case and believe the shooting was "very targeted," assuring the public that it is not in any immediate danger.

Gov. Brown Doubles Down on Sentencing Reform:  Calif. Gov. Jerry Brown is to announce a ballot measure on Wednesday that would overhaul the state's current sentencing laws, likely reducing the length of time some felons serve in prison.  David Siders of the Sac Bee reports that Brown says he hopes to return to greater discretion in sentencing, moving away from the state's determinate sentencing system that he helped create in his previous years as governor.  When Brown took office in 2011, he enacted AB 109, also known as prison realignment, which resulted in the early release of thousands of felons, and last year, he vetoed several crime-related bills, including one focused on date rape, reasoning that "multiplication and particularization of criminal behavior" would make the state's criminal code more complex.  Brown's pro-criminal approach to criminal justice reform has and will continue to benefit felons like this one with a history of domestic violence charges, who was out on parole when he assaulted his estranged wife and injured her two-year-old child in the process.

CJLF Website Under Construction

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CJLF's main web site will be under construction today.  Hopefully we will have a new, redesigned site in operation by the end of the business day, Pacific Time.

A Turkey of a Justice Department

Advocates for federal sentencing "reform" and other pro-criminal priorities of President Obama's Justice Department want us to entrust early release decisions to, among others, the United States Attorneys and judges the President has appointed.

These are the same good people who have determined who'll be allowed to occupy the seat beside you on your next flight.  And no, I'm not talking about a Jihadist who might blow up the plane.

Breaking News: Dog Doesn't Bite Man

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As the old journalism saying (or perhaps cliche) goes, if a dog bites a man, that's not news, but if a man bites a dog, that's news.  So how much less newsworthy is it if a dog does not bite a man?

An anti-death-penalty organization breathlessly announced in an email today the "BREAKING" news that (gasp! horrors!) the United States Supreme Court has denied review in a case where the defendant sought to raise, for the umpteenth time, the question the high court settled definitively forty years ago this coming July -- no, the Constitution does not forbid capital punishment.

The case is Walter v. Pennsylvania, No. 15-650.  SCOTUSblog has a case page on it, though I don't know why.

Would it be news if SCOTUS turned down a petition asking it to decide if federal courts had authority to decide whether a statute is constitutional, a question it decided in 1803?  How about one asking for a decision on whether racial segregation of public schools is constitutional, a question it decided in 1954?  Gregg v. Georgia is no less solid than those precedents.

What is the point of the email?  This "really bad news" is an occasion to send the organization money.
Yesterday's big criminal law news was the U.S. Supreme Court's decision in Montgomery v. Louisiana.  See my prior post and today's News Scan.  However, the decision in Musacchio v. United States, No. 14-1095, is also worth noting.

A conviction can be reversed on appeal if the evidence at trial is clearly not sufficient to establish the elements of the crime.  In Jackson v. Virginia (1979), the Supreme Court made this a federal constitutional rule.  Suppose (1) the elements of a crime are A, B, and C; (2) the judge erroneously instructs the jury they must find A, B, C, and D; (3) on appeal the appellate court finds plenty of evidence to support elements A, B, and C but none on D.  Is that reversible Jackson error?  No.  Jackson concerns only what the elements the jury should have been instructed on, not what they were instructed on.

If the defendant didn't raise a statute of limitations defense at trial, can he raise it on appeal?  Not unless Congress has made the time limit jurisdictional, which it rarely does and did not do for the crime involved in this case.  How about the plain error rule?  No.  If the defendant does not bring it up, the failure of the trial court judge to do so sua sponte is not error, plain or otherwise.

That's the short version.  For a longer version, see Rory Little's post at SCOTUSblog.
Yesterday, Mike Rushford wrote a post detailing the dismal experiences California has had implementing its version of dumbed-down sentencing and early release called "realignment."  Realignment was signed by Gov. Brown roughly five years ago, in April 2011, in response to years of problems with prison overcrowding.

As Mike noted, the results have ranged from disappointing to dreadful.  One promise of realignment has been kept, true:  The state has about 30,000 fewer prison inmates.  But the main promise to the electorate  --  cost savings  --  has been shredded.  As Mike pointed out, the state is spending two billion more per year now on incarceration than when the reforms were adopted.  That would be T-W-O  B-I-L-L-I-O-N.

The other main promise was that Californians would be just as safe.  Crime wouldn't increase; if anything, it would decrease, as the state adopted a more humane attitude and spent more on social services (which it has certainly done to the point of non-trivial bankruptcy concerns).

What has become of that critical promise?

News Scan

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Air Force OKs Guns on Base:  In the aftermath of the July 2015 shooting at a Tennessee recruiting station and reserve center that claimed five lives, the Air Force informed commanding officers around the nation that they may authorize personnel under their supervision to carry a concealed firearm, even off-duty and out of uniform. Perry Chiaramonte of Fox News reports that in the past, the U.S. military reserved the right to permit open and concealed carry, but has shown discretion in allowing soldiers to carry on base.  Following Muhammad Youseef Abdulazeez's shooting rampage last July that killed four Marines and a Navy sailor in Chattanooga, the Air Force decided to review active-shooter incidents in the United States.  President of the Crime Prevention Research Center John Lott expressed support of the decision, stating, "Concealed handgun permit holders have stopped dozens of what would have clearly been mass public shootings." 

High Court Scraps Mandatory LWOP Sentences for Juveniles:  In a 6-3 decision, the Supreme Court ruled Monday that prisoners who were sentenced to life without parole as teenagers must be able to seek parole once they are adults.  Andrew Blake of the Washington Times reports that the decision, stemming from an earlier decision handed down by the high court in 2012, was made in response to a challenge brought by 69-year-old Henry Montgomery, who was sentenced to life in prison without parole when he was 17 years of age for the 1963 killing of a Louisiana sheriff's deputy.  The Supreme Court's ruling that mandatory life imprisonment for minors violates the U.S. Constitution's ban on cruel and unusual punishment means that Montgomery and as many as 1,500 others are now able to petition for release.

ISIS Running a Fake Document Industry:  A French official said Monday that the Islamic State (ISIS) has managed to set up a "true industry of fake passports," sparking national security concerns in Europe and the United States.  Rudy Takala of the Washington Examiner reports that French Interior Minister Bernard Cazeneuve said that the terror group has seized passports in Iraq, Syria and Libya, and suggested establishing a task force in Greece to prevent migrants from using forged documents to enter the European Union.  Following November's terrorist attacks in Paris that killed hundreds, it was discovered that at least two of the perpetrators entered Europe through Greece posing as refugees.  The news is especially worrying to Homeland Security officials in the U.S., who are doubtful of the Obama administration's assurance that its plan to accept 70,000 refugees this coming year will post minimal security risk.

FL Man Planned to Radicalize, Murder Boss:  A Florida man intent on becoming radicalized allegedly plotted a killing spree following a "day of allegiance."  Fox News reports that 20-year-old Enrique Dominguez told a co-worker earlier this month that he'd purchased a shotgun to murder his boss and then showed the co-worker ISIS execution videos.  In a search of his home, investigators found a bag with a clown mask, duct tape, plastic wrap, gloves and two large knives.  He was arrested Friday and charged with aggravated assault, however, will only need to post $5,000 bond and remain on house arrest while awaiting trial.


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Ryan Knutson has this article in the WSJ on the dangers of Texting While Intoxicated.  There's an app for that.
Following up on my earlier post, here is a second draft of amendments to Florida Statutes.  I have rearranged and expanded some of the provisions and also added comments explaining some of the language.

Another issue is what to do about the existing judgments.  I have some thoughts on that, also, but I don't want to delay the publication of this proposal.
There has been quite a bit of discussion on this blog about legislation (S2123) before Congress that would reduce federal sentences for so-called non-violent drug offenders, including some with gun allegations, and allow early release for thousands of offenders convicted under previous law.  The Sentencing Reform and Corrections Act is supported by several of the same anti-incarceration advocates who supported California's "Public Safety Realignment Act" (adopted in 2011),  "The Three Strikes Reform Act" (Proposition 36 passed in 2012), and "The Safe Neighborhoods and Schools Act" (Proposition 47 passed in 2014).  Together, those measures reclassified most property and drug crimes as low-level, non-violent offenses, restricted the sentences of criminals convicted of those crimes to county jail, eliminated the third strike 25-to-life sentence for habitual criminals whose third conviction was not a violent felony, and allowed for the early release of thousands of criminals sentenced under previous law. 

S2123, while not as extensive as the California reforms, would do many of the same things.   

The Slow Drip of the Eighth Amendment

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My friend Prof. Josh Blackman at the Law School of the University of South Texas is more pessimistic than I about the prospects that the Supreme Court will outlaw the death penalty, but he does a brilliant job of describing the Court's potentially "abolition-by-slow-drip" jurisprudence:

I freely admit that I find the 8th Amendment uninteresting. At least five Justices have made up their mind that the death penalty needs to be eliminated, but because they don't want to do it all at once, they are systematically, step-by-step, making it harder and harder to execute someone.

The article is worth your read for Josh's acidly humorous description of the back-and-forth between Justices Scalia and Kennedy. 

I am not for the moment going to describe at length why I think Josh is wrong about the death penalty's ultimate fate.  Suffice it to say that I'm decently sure that rejecting per se abolition has four sure votes (Roberts, Scalia, Thomas and Alito) and two likely ones (Kennedy and Kagan).

Justice Kennedy has a good deal of skepticism about the death penalty (see, among numerous other sources, his opinion for the Court in Kennedy v. Louisiana), but is slightly too mindful of precedent  --  and perhaps the longstanding national consensus favoring capital punishment  -- to go for outright abolition (see his agreement without concurrence in the Court's opinion in Glossip).

Justice Kagan said at her confirmation hearing that she did not share the view of Justice Marshall (for whom she clerked) that the death penalty is per se unconstitutional.  Instead, she said capital punishment is settled law "going forward."  She also did not join Justice Breyer's broad-brush dissent in Glossip, and was with the majority in last week's opinion in Kansas v. Carr, in opposition to Justice Sotomayor. 
I blogged here, here and here about the murder this month of two children and their mother by a man, Wendell Callahan, who should and would have been in federal prison but for the early release he was given under a 2010 version of sentencing "reform."  Callahan was a hard drug dealer (crack cocaine) who had his sentence twice reduced.  He was said at the time to be no threat to public safety. This was simply false.  At best, those who took this position were forecasting a future they could not know. At worst, they were lying (having plenty of reason to know, from Callahan's violent past, that he was a threat).  In either event, two little girls and their mother wound up paying the ultimate price for their mendacity.

This horrible story illustrates what sentencing "reform" is actually going to cost if Congress is foolish enough to go ahead with a version of it even more sweeping and reckless than the 2010 edition.  Perhaps not surprisingly, the mainstream media has buried the Columbus early release massacre story, apparently taking the view that some black lives matter more than others.

We should thus be thankful that Sen. Tom Cotton (R-AR) has taken up the cause. Apparently, his advocacy is gaining new adherents to the opposition of the Establishment's sentencing reform bill, the SRCA.  In particular, I thought these paragraphs from today's Politico were telling and very encouraging:

[S]entencing changes are triggering the biggest -- and most vivid -- rift among Republicans. Cotton and other Republicans pointed to a triple murder earlier this month in Columbus, Ohio, in which a man is accused of killing an ex-girlfriend and two of her children. The suspect, Wendell Callahan, had his prison sentence on drug charges reduced twice for a total of more than four years, according to The Columbus Dispatch....

Cotton isn't alone. Other Senate Republicans, including Sens. Jim Risch of Idaho and David Perdue of Georgia, also registered their strong opposition during the lunch, even as Sen. Mike Lee (R-Utah) vigorously defended the bill, which he helped negotiate.

Until sentencing "reformers" are willing to come clean about specifically how much violence the country should tolerate from the thousands of felons they aim to release early, Congress should refuse to move on this bill.  It's bad enough to buy a pig in a poke, but worse still once you already know the pig can kill you.

News Scan

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DNA Bloodtest Predicts Suspects' Age:  Forensic biomedical scientists at the University of Leuven in Belgium have developed a unique test of blood samples that has the ability to predict the age of an individual within a four-year range.  Jim Drury of the Global Post reports that lead researcher Bram Bekaert and his team advanced a test that examines a set of four age-associated DNA methylation markers, testing them against hundreds of blood samples from crime victims whose age was known and correlating the chronological age.  The results determined individuals' age in the blood samples with a margin of error of 3.75 years across the age range.  A similar test was conducted on a smaller sample of teeth in which the team determined an individual's age with a margin of error of 4.86 years.  The two tests will play a critical role in narrowing down and identifying suspects in both active and cold criminal cases.

Three Violent Criminals Escape from CA Jail:  Authorities are scrambling to locate three violent criminals that escaped a Southern California maximum-security jail on Friday, marking the first escape at the jail in over 20 years.  The AP reports that Jonathan Tieu, 20; Bac Duong, 43, and Hossein Nayeri, 37, were all awaiting trial for violent crimes in unrelated cases at Central Men's Jail in Santa Ana when they disappeared from a dormitory shared by 65 other inmates shortly after an early morning headcount.  The escape is described as elaborate and sophisticated and went unnoticed for 16 hours.  The escapees include Tieu, facing charges of murder, attempted murder and shooting at an inhabited dwelling; Nayeri, charged with kidnapping, torture, aggravated mayhem and burglary; and Duong, who faces charges of attempted murder, assault with a deadly weapon, shooting at an inhabited dwelling and being an ex-felon in possession of a firearm.  A probe is underway to determine if the men received any help from inside or outside the jail.

International Flight Passengers Skip Customs:  For the second confirmed time in recent months, passengers arriving at JFK Airport on an international flight were cleared to exit without first going through Customs and Border Protection checkpoints.  Victoria Bekiempis and Denis Slattery of the NY Daily News report that travelers on American Airlines Flight 1223 from Cancun, Mexico, were allowed to leave the airport without airline and security officials checking their bags or passports.  One passenger even approached a TSA agent to inform them what happened, but was told he was free to go.  Hours later, the passenger, and presumably others, were contacted and told to return to the airport to compete the customs process.  A similar incident occurred in November involving another American Airlines flight from Cancun, just two days after ISIS released a video threatening New York City with a terrorist attack.  The oversights confirm concerns that terrorists could slip into the United States undetected.  In a statement, the airline admitted to the security blunder but provided no information as to what they were doing to address it.

NM Gets Tough on Crime:  As states around the country ditch tough-on-crime measures, for more lenient sentencing refroms, New Mexico lawmakers are taking the opposite approach.  Morgan Lee and Mary Hudetz of CNS News report that legislators and Gov. Susana Martinez are behind 20 pieces of proposed legislation aimed at cracking down on criminals and extending prison terms for violent career felons, repeat DWI offenders, parole jumpers and crimes related to child pornography.  The package also includes a mandatory-minimum sentencing measure, expansion of the state's three-strikes law, making the targeted killing of a police officer a hate crime and adding a constitutional amendment to overhaul bail rules in the state.  Multiple polls across the state show that for the first time since the financial crisis, crime has overtaken the economy as the top concern among New Mexico residents. 

In some corners of the Bizarro World of left-wing academia, freedom of speech and freedom of the press are limited to expression of Politically Correct ideas.  What do you call it when a Politically Incorrect student journalist tries to cover a protest, and a professor of communications, no less, calls for "some muscle" to forcibly remove him?  The City of Columbia prosecutor calls it assault in the third degree.

Erik Wemple, media blogger for the WaPo, reports:

Melissa Click, an assistant professor of communication at the University of Missouri, has been charged with third-degree assault by the city of Columbia prosecutor's office, an assistant at that office confirmed today to the Erik Wemple Blog. The arrest comes months after Click was captured on video asking for "some muscle" to counter a student journalist at a November protest at the university. She also pushed the student journalist's camera.
The U.S. Supreme Court today made Miller v. Alabama fully retroactive to all cases, no matter how old.  States that had mandatory life-without-parole for 17-year-old murderers must now either hold new sentencing hearings or make them eligible for parole, the Court said in Montgomery v. Louisiana.  It characterized the Miller rule as a "substantive" rule for retroactivity purposes.  Families of victims of juvenile murderers who adamantly oppose release therefore receive life sentences of appearing at parole hearings and reliving their tragedies. That result is disappointing but not unexpected.  CJLF's brief is here.

Also, the Court said that it had jurisdiction to review a state collateral review decision for retroactivity.  In essence, the federal rule of Teague v. Lane provides a floor (Montgomery) but not a ceiling (Danforth v. Minnesota) on retroactivity in state collateral review proceedings.  I don't have a problem with that part and didn't brief the point.  This is one more reason for states to adopt Teague for their own systems.  No point giving convicts the "head I win, tails we take it over" that results from dual standards.

A First Draft of a Florida Fix

After the break is my first cut at a post-Hurst fix for Florida's capital sentencing statute.

A Note on Stale Comment Threads

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I am getting an increasing number of comments, nearly all of them critical, posted to old comment threads where there has not been any activity for a while.  For critical comments on active threads, I usually don't need to respond because the regular commenters here will point out where the criticism goes awry (if it does, and it usually does).  For an old thread, though, the regulars will not see it, but it is there on our blog and needs to be addressed, taking up time.

If the blog software had the capability, I would close threads to comments automatically after a week of inactivity. Since it does not, I will generally close a stale thread to further comments after answering (or sometimes not publishing) such a comment.

News Scan

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New CA Execution Method under Scrutiny:  As California begins to discuss its new execution method after years of debate and stagnation, death penalty opponents are lashing out at reforms they argue amounts to "human experimentation."  Howard Mintz of the San Jose Mercury News reports that back in November, state prison officials proposed a new lethal injection procedure, moving from a three-drug cocktail to just one lethal drug, and now the anti-death penalty crowd is arguing that the state is risking experimentation on its condemned inmates because two of the four drug options have never been used in executions.  Death penalty supporters, however, counter-argue that opposing groups, such as the ACLU, are putting up "invalid roadblocks" to executions in an effort to thwart them.  A public hearing will be heard Friday to air the new procedure and, at some point, a San Francisco federal judge is expected to consider its legality.

Parolee Arrested for Murder:  A Colorado parolee facing charges of murder was touted as a model of success by a state parole administrator just 16 days before the fatal stabbing of a homeless man.  Kirk Mitchell of the Denver Post reports that 44-year-old Calvin Johnson faces one count of first-degree murder in the New Year's Day death of 50-year-old Teodoro Leon III, who was stabbed 10 times in the head, face, torso and back.  A few weeks before the murder, on Dec. 16, deputy director of parole Alison Morgan discussed Johnson's success overcoming troubles linked to mental illness with the Joint Judiciary Committee, saying of his progress, "all of this is working, really very successfully."

Police and Sheriffs Team up in Chicago Gang Fight:  The Chicago Police Department and the Cook County Sheriff's Office announced Wednesday that they are teaming up to combat gangs and remove illegal guns from the streets.  Jeremy Gorner of the Chicago Tribune reports that though the partnership is nothing new, it will be more coordinated than before, targeting gangs in some of the most violent districts in the city and aided by interim police Superintendent John Escalante and Sheriff Tom Dart.  The partnership is to continue through the end of January and will then shift focus to other police districts in February.  The city is off to a violent start this year; as of Tuesday, 190 people have been shot across the city, more than double than the year earlier, which saw only 78 shooting victims by this time.  Homicides have risen this year as well, with 29 so far compared with 16 the year prior.

Alabama and Hurst

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Jo Deann Campbell was raped and murdered 23 years ago.  She was 23 years old.  It took as long as her entire too-short life to carry out justice in this case.  See today's News Scan and this article by Kent Faulk at AL.com.

The perpetrator argued against Alabama's execution protocol, similar to the one upheld by the Supreme Court last year in Glossip v. Gross.  He did not appear to get any traction with that, and the execution "went exactly as planned," according to the Prison Commissioner.

He also argued that last week's decision in Hurst v. Florida, discussed here, applies to Alabama's system.  The Court did not buy it and denied relief, although Justice Breyer did buy it.  Justices Sotomayor and Ginsburg seemed inclined to it on the merits but said that procedural obstacles would preclude relief.  They could be referring to the procedural default rule, the anti-retroactivity rule of Teague v. Lane, the deference rule of 28 U.S.C. §2254(d), or all three.

What do the other six Justices think?  They may well agree with the Alabama AG's argument, which is substantially the same as the one in my post earlier today:

"Second, and more importantly, unlike in Florida, the jury in Brooks's case specifically found the aggravating circumstances necessary to impose the death penalty. Specifically, the jury's unanimous guilty verdicts of capital murder during the course of a robbery, burglary, and rape, proved the existence of an aggravating circumstance under Alabama law," according to the AG's brief.
The Supreme Court needs to clear this up immediately.  This is much too important to leave hanging.
Among those who favor lowering sentences for heroin traffickers, the surge in overdose deaths is a problem.  They understand that the public is unlikely to want to water-down the penalties for the people helping to produce the surge.  Thus it has become a popular refrain that the major driver of the problem is not smack pushers but, instead, opioid addiction driven by "Big Pharma" and unethical pain doctors.

The difficulty, as is often the case with sentencing reform advocates, is that the refrain is made up, as Brian Blake at the Hudson Institute explains:

A new, peer-reviewed article in the New England Journal of Medicine contradicts the White House claim that the huge increase in heroin overdose deaths--440 percent in the past seven years--is directly related to prescription pain killers and changes in prescribing policies aimed at making them harder to obtain and abuse.

The article, authored by some of the federal government's leading addiction researchers at the National Institute on Drug Abuse, the Food and Drug Administration, and the Centers for Disease Control and Prevention, surveys dozens of recent, peer-reviewed studies on heroin use, initiation patterns, overdose deaths, and the effects of policy changes in prescribing opioids. Ultimately, they find "there is no consistent evidence of an association between the implementation of policies related to prescription opioids and increases in the rates of heroin use or deaths." Instead, the authors conclude that "heroin market forces, including increased accessibility, reduced price, and high purity of heroin appear to be major drivers of the recent increases in rates of heroin use."

Update:  See the follow-up post, regarding an execution in Alabama which the Supreme Court allowed to go forward even though the murderer was making a Hurst claim.

Throughout the United States Supreme Court's modern capital punishment jurisprudence, it has clearly distinguished two separate determinations to be made in capital sentencing.  The difference is explained in, among many other cases Tuilaepa v. California, 512 U.S. 967, 970-971 (1994):

Our capital punishment cases under the Eighth Amendment address two different aspects of the capital decision-making process: the eligibility decision and the selection decision. To be eligible for the death penalty, the defendant must be convicted of a crime for which the death penalty is a proportionate punishment. Coker v. Georgia, 433 U. S. 584 (1977). To render a defendant eligible for the death penalty in a homicide case, we have indicated that the trier of fact must convict the defendant of murder and find one "aggravating circumstance" (or its equivalent) at either the guilt or penalty phase.
*            *            *
We have imposed a separate requirement for the selection decision, where the sentencer determines whether a defendant eligible for the death penalty should in fact receive that sentence. "What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime."

Different requirements apply to these two decisions.  Most pertinently here, Ring v. Arizona, 536 U.S. 584, 597-598, n. 4 (2002) very explicitly confines its jury trial holding to the eligibility decision, i.e., the finding of at least one aggravating circumstance, and not to the weighing or the ultimate penalty decision.

Did the Supreme Court in Hurst v. Florida throw away the distinction between these two decisions that it has so carefully constructed and explained over so many years?  Some people are claiming it did.  I find that inconceivable, particularly since just a week later the Court reasserted the distinction in Kansas v. Carr, an opinion joined by eight Justices, including six who joined the Hurst opinion.

Yet the people making that claim have some sloppy language in the Hurst opinion to back them up.

News Scan

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AL Man Faces Execution:  A condemned Alabama murderer is set to be executed by lethal injection Thursday evening, marking the first time the state has put a prisoner to death in more than two years.  Kim Chandler of the AP reports that attorneys for 43-year-old Christopher Eugene Brooks unsuccessfully argued Wednesday to halt the execution, claiming further court review of the state's execution protocol was needed before being used for the first time.  However, lawyers for the state countered that the new drug combination, which changed two of the three drugs in the procedure, is "virtually identical" to the one Florida has used several times without incident and argued that Brooks was simply attempting to delay his execution.  Brooks was convicted in 1993 for the rape and murder of 23-year-old Jo Deann Campbell, who was found bludgeoned and sexually assaulted under her bed after Brooks had spent the night at her house.  

San Fernando Valley Homicides Spike:  Police data indicates that homicides in Southern California's San Fernando Valley surpassed Los Angeles increases.  Brenda Gazzar of the L.A. Daily News reports that while homicides citywide in Los Angeles increased about 9 percent over last year and 13 percent over two years ago, the Valley, which is located north of the Los Angeles Basin, saw a spike of 14 percent in 2015 over the previous year and a staggering 46 percent over 2013.  Believed to be contributing to the concerning surge is increased homelessness, lower costs for heroin and methamphetamine, and the implementation of Prop. 47, a ballot measure passed in November 2014 which downgraded several crimes such as drug possession and minor theft from felonies to misdemeanors.

CO Bill Aims to Reduce Number of Juror Votes in Death Penalty Cases:  Colorado lawmakers have introduced new legislation that could make it easier for juries to sentence a defendant to death.  Marshall Zelinger of the Denver Channel reports that the bill, called SB 64, would remove the unanimous voting requirement for death sentences, changing the standard to just nine out of 12 jurors voting for the death penalty for it to be enforced.  The legislation follows last year's high-profile trial of Aurora theater shooter James Eagan Holmes, who was found guilty on multiple counts of murder but skirted the death penalty when jurors could not reach a unanimous decision, with nine jurors "firm," two "on the fence" and one "absolute no," according to one of the jurors.  "For one person to be able to decide for everyone, it's kind of ridiculous," added the juror.  Of the 31 states that impose capital punishment, Alabama, Florida and Delaware are the only states that do not require a unanimous jury decision.

Barstow Police Need More Resources:  A city councilman in Barstow, Calif., says that the city needs additional resources to combat the "alarming" increase in crime brought on by soft-on-crime legislation enacted in the state in recent years.  Mike Lamb of Desert Dispatch reports that Councilman Richard Harpole spoke during Tuesday's Council meeting, stating that crime in Barstow, located about 100 miles northeast of Los Angeles, is up "in every single category in part one crimes" and blames the spike on AB 109 and Prop. 47.  He emphasized that the increase in crime is "not a reflection of our Police Department" but rather, recent legislation implemented that simply slaps criminals on the wrist and sends them on their way.  Harpole suggests adding two more investigators to the police department that are specially trained to focus on career criminals in order to "build the type of cases that will require prison time."

News Scan

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'Fast and Furious' Rifle Found in El Chapo Cache:  A .50-caliber rifle capable of taking down a helicopter found in the house where Joaquin "El Chapo" Guzman was staying was funneled through the bungled gun-smuggling operation known as Fast and Furious.  William La Jeunesse of Fox News reports that the Fast and Furious sting investigation comprised of federal agents allowing criminals to buy guns in Phoenix-area shops with the intent of tracking them, but instead, agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives lost track of 1,400 of the 2,000 guns involved.  The discovery marks the third time a weapon from the botched operation has been found at a high-profile Mexican crime scene.

Over Half a Million People Overstayed Visas in 2015:  A government report released Tuesday evening revealed that over 500,000 foreign nationals who received temporary visas to enter the U.S. overstayed their permits last year.  Anna Giaritelli of the Washington Examiner reports that the report, which only includes figures from the Visa Waiver Program and B Visa program, shows that a total of 527,127 people visiting through visa programs have remained in the country without legal status or lawful presence, and 90 percent were still present in the U.S. through the end of last year.  The report came just as the Senate Subcommittee on Immigration and the National Interest was ready to question Homeland Security officials on why the Obama administration has failed to enforce immigration laws by removing visa overstays and refusing to implement a tracking system.

FBI Probing Professor for ISIS Ties:  A Kent State University professor who made headlines in 2011 for shouting "Death to Israel" at a public lecture is being investigation by the FBI for possible connections to the Islamic State terror group.  Cody Derespina of Fox News reports that associate history professor Julio Cesar Pino, also known as Assad Jibril Pino, is a Cuban-born convert to Islam who allegedly made posts to his Facebook page praising Osama bin Laden and encouraging Al Qaeda fighters to merge with the black-clad terror army.  Pino has denied allegations that he is connected to or in support of ISIS.  He continues to teach classes while the investigation is underway and the FBI has assured Kent State that there is no threat to campus.

The Right Kind of Sentencing Reform

Does the country need sentencing "reform" that would release drug traffickers early, on the false promise that they are "non-violent"?  Wendell Callahan, the knife-wielding cocaine dealer given not one but two sentencing "reform" breaks, has already shown us the answer.

Does the country need sentencing reform in which people who don't know, and have no sensible reason to know, that they have broken the law, are no longer sent to prison?

Senator Orin Hatch and House Judiciary Chairman Bob Goodlatte think so, and I agree.  They make their case here; I made mine in the Harvard Journal of Law and Public Policy, here.
The United States Supreme Court today decided the case of Kansas v. Carr, along with the companion case of Kansas v. Gleason.  The Carr brothers are Kansas's exemplar of why the death penalty is necessary.  Their crime spree of robbery, murder, home invasion, and rape is truly a case where any lesser penalty would be a mockery of justice.

Kansas is a conservative state, but because it selects its state supreme court justices in the worst possible way, it has a court that bends over backwards to help murderers escape justice.  It often invokes the federal constitution to do so in order to prevent its decisions from being abrogated by the legislature.  Those clearly erroneous decisions can be reversed by the United States Supreme Court, however, and today's decision is not the first.

And when the Kansas Supreme Court time and again invalidates death sentences because it says the Federal Constitution requires it, "review by this Court, far from undermining state autonomy, is the only possible way to vindicate it." Ibid. "When we correct a state court's federal errors, we return power to the State, and to its people." Ibid.
Justice Scalia wrote the opinion from the Court, and he quoted his own powerful concurring opinion in Kansas v. Marsh (2006), elevating that language from concurrence to controlling precedent.  Bravo.

In the capital sentencing regime that has been built since the 1976 cases, the process consists of two distinct steps -- eligibility and selection.  Blurring that distinction is an error, because the two decisions are quite different.  The jury instruction issue in this case illustrates the importance of keeping that distinction clear.

Murders Up 6.2%, FBI Data Show

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Official crime statistics are slow to confirm what common sense tells us is likely to happen and what anecdotal evidence tells us is happening.  There is a lag between cause and effect and another lag between effect and the official statistics.  But eventually the facts, "stubborn things," do come in.

Devlin Barrett has this article in the WSJ, with the above headline in the print version (slightly different online).

Murders rose 6.2% in the first half of 2015, according to preliminary crime data released Tuesday by the Federal Bureau of Investigation, figures that are likely to further fuel the current political debates about crime, policing and sentencing.

Violent crime overall increased 1.7%, the FBI found, while property crimes decreased 4.2%, compared with the first six months of 2014. Police chiefs from around the country had warned about an apparent surge in recent months.

Prior Convictions, Once Again

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A chronic headache in writing and applying laws dealing with prior convictions is that the prior may have come from a different jurisdiction, and many crimes are defined differently across jurisdictions.  The U.S. Supreme Court has struggled for years with the Armed Career Criminal Act to determine what convictions count as priors.

Today the Supreme Court took up Mathis v. United States, No. 15-6092.  The Question Presented is:

Whether a predicate prior conviction under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), must qualify as such under the elements of the offense simpliciter, without extending the modified categorical approach to separate statutory definitional provisions that merely establish the means by which referenced elements may be satisfied rather than stating alternative elements or versions of the offense?
Paragraph (e)(1) is the "three strikes" provision:

News Scan

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Supreme Court to Rule on Immigration:  The Supreme Court justices agreed Tuesday to review President Obama's plan to shield five million illegal immigrants from deportation in a review of a lower court rulings that blocked the sweeping executive actions from going into effect.  Fox News reports that the Obama administration's plan primarily benefits the parents of U.S. citizens and lawful permanent residents, bringing the Deferred Action for Parents of Americans program into the forefront of the issue.  Critics argue that Obama's plan is unconstitutional because he overrode the legislative authority in Congress, bypassing the "constitutionally ordained legislative process" to rewrite the law unilaterally.  The case is likely to be argued in April and decided by June.

FL Courts Face Death Penalty Dilemma:  Between now and April 5, five death penalty trials are scheduled in a Florida court, which is a problem, given that the U.S. Supreme Court ruled last week that the state's death penalty procedures are unconstitutional.  Larry Hannan of the Florida Times-Union reports that the high court ruled on Jan. 12 that Florida's death penalty is unconstitutional because the final decision on life in prison or death is decided by a judge rather than a jury.  An attorney representing one of the condemned inmates scheduled for trial in the coming months said that the Florida Supreme Court could either issue an emergency ruling, or the Legislature could act quickly to amend the death penalty sentencing law.  Each option will take considerable time, making it unlikely that any case is to move forward anytime soon.  Whichever option is taken, their remains the question of whether defendants can be tried under a new statute that was passed after they committed their crimes.

NYPD Ordered to Purge Counter-Terror Docs:  A U.S. court has directed the New York Police Department to remove an extensive report from its website that pertains to the rise of Islamic extremists in the West and counter-terrorism efforts as part of a settlement reached earlier this month with Muslim community advocates.  Adam Kredo of the Free Beacon reports that the case, spearheaded by the American Civil Liberties Union (ACLU) since 2013, focused heavily on NYPD's 2007 radicalization report from its website.  The report examined how radical individuals make their way to the U.S. and carry out terror attacks, in an effort to provide local law enforcement with information about domestic terrorists and their operations.  Several legal and national security experts are critical of the court decision, noting that it will not only diminish officers' understanding of how terrorists organize and operate, but is also "part of a larger campaign by Muslim advocacy organizations in the United States to dismantle surveillance programs on that community."

U.S. Begins Screening Refugees' Social Media Accounts:  The U.S. Citizenship and Immigration Services (USCIS), the agency that screens refugees, announced Sunday that they are now permitted to probe the social media accounts of Iraqi and Syrian refugees.  Stephen Dinan of the Washington Times reports that USCIS director Leon Rodriguez says that though the agency will now be able to screen refugees' social media accounts for potential terrorism-related clues, it is likely improbable that they will be able to check the accounts of all 8 million immigration applications the agency receives each year, forcing  them to prioritize and target only specific programs or countries.  The agency has been faced with recent scrutiny following several high-profile events, such as last month's terror attacks in San Bernardino when it was reported that the jihadist couple responsible for the attack had posted online swearing allegiance to the Islamic State, and the arrest earlier this month of a man who traveled to Syria to fight after being admitted as a refugee in 2012.  The Senate will vote Wednesday on whether to require President Obama's chiefs of intelligence, Homeland Security and the FBI to certify every refugee is low-risk before being admitted to the U.S.

I should have listened to Yogi Berra and not made predictions, especially about the future.  The U.S. Supreme Court's orders list this morning does include certiorari grants as well as denials, and the Court did take up United States v. Texas, No. 15-674, even while turning down Arpaio v. Obama, No-15-643.

Questions Presented follow the break.
Martin Luther King gave his "I Have A Dream" speech in August 1963.  Very regrettably, it took the country a full generation to embrace one of the most beneficial programs for African Americans in its history  --  the adoption of criminal justice reform. In the late 1980's and for the next few years, the federal government, with many of the states following suit, adopted determinate sentencing. Decades of unlimited discretion exercised by (mostly white) judges was out; rule-based sentencing was in. Focusing on the offender, black or white, was out; focusing on the offense was in. 

Determinate sentencing theory was not the only innovation that took root at about that time.  So did hiring more police and requiring more proactive policing.  For years, calls in the black community for more action against the crime that was ravaging it went unheeded, as the white majority looked the other way.  All that started to change.

A generation later, the results are in. They are heartening, and the country should be proud of them.  There are more than 10,000 fewer murders per year now than there were in the early 1990's.  Since our population is about 13% African-American, that means that roughly 1300 fewer African Americans are murdered per year now than then.  And that figure is sure to be low, because blacks are disproportionately victims of murder (as they are disproportionately victims of crime generally).  It would probably be more accurate to say that there are 3000 fewer African American murder victims per year now than there were in the early 1990's.

It would be a tragedy and a disgrace to turn back the clock on reforms that helped save the lives of so many African-Americans.

News Scan

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Uber will Hire Ex-Felons under Prop 47:  Uber, the ride-sharing company, announced last week that it plans to hire ex-felons whose felony sentences have been reduced to misdemeanors under California's Proposition 47.  William Bigelow of Breitbart reports that previously, Uber barred the hiring of drivers with felonies, even those whose felonies were reduced to misdemeanors under the voter-approved measure, but have since notified disqualified applicants to inform them that they are now eligible to apply despite their criminal records.  Contrary to state taxi companies, Uber uses court records rather than Live Scan, which relies on an FBI database and fingerprinting technology, to perform background checks, prompting district attorneys in San Francisco and Los Angeles to criticize the checks as "completely worthless."  Last August, the ride-sharing company made headlines reporting that it had hired registered sex offenders, identity thieves, burglars, a kidnapper and a convicted murderer.

Suspect who Killed OH Cop Arrested:  A man with a lengthy criminal history who had alleged plans to kill cops was arrested Monday for gunning down an Ohio police officer.  Fox News reports that 32-year-old Herschel Ray Jones III was arrested for killing Danville Officer Thomas Cottrell behind the Danville Municipal Building shortly before midnight, taking the officer's service weapon and cruiser.  A short time before the shooting occurred, Jones' ex-girlfriend called police to warn them that Jones "had weapons and was looking to kill an officer."  Jones had priors dating back to 2001 for breaking and entering, burglary, receiving stolen property and carrying a concealed weapon.  He served four years in prison after being convicted in 2011 for receiving stolen property and possession of chemicals for manufacture of drugs, and was released in April 2015.

Comey v. Holder on Policing and Racism:  The contrasting views between FBI Director James Comey and former Attorney General Eric Holder on race, crime and the police, and the fact that Holder's statements were given much more attention than Comey's, exemplifies the tendency for the mainstream to bury its head in the sand in spite of "essentially irrefutable data" that shows the disproportionate amount of crime committed by people of color.  Barry Latzer has this op-ed in the Washington Examiner arguing that while Comey explained that our problem with race and policing "is rooted in the reality of high crime in minority communities and the way our police are affected by it," Holder asserts that the "overrepresentation of young men of color in our criminal justice system" is a product of racism.  Data from the Centers for Disease Control and nationwide Census Bureau crime victimization surveys show that blacks commit, on a per capita basis, about two to five times the prison eligible offenses as whites.  Blacks are more likely to be victims as well, suggesting the tendency of victims and perpetrators to share the same demographics, with 94% of black homicide victims killed by black murderers. Comey's remarks coupled with data show that the over representation of people of color in our criminal justice system is "not a reflection of police racism but rather of misconduct by African-Americans."

I have put up several entries about the horrific slashing murders of three African Americans by a drug dealer prematurely, but deliberately, set loose from federal prison under the FSA, Congress's 2010 precursor to the even more sweeping and reckless sentencing proposals now being considered.  See, e.g., my posts here, here and here.

As I have noted, the responsibility for this early release travesty starts with Congress but hardly ends there.  It was the Sentencing Commission  --  already aware of a high repeat-crime rate for drug dealers  --  that then decided to give retroactive application to the newly reduced sentences.  

As to this particular Ohio murder spree against blacks, responsibility extends to the killer's lawyer (whose name I do not yet know by am trying to find out).  The attorney told the court that his client was not a danger to the community  --  an assertion that, given the client's previous and (apparently) repeat violent criminal behavior, the lawyer either knew at the time was false, or recklessly disregarded whether it was false or not.  All this was compounded when the US Attorney's Office, so it is reported, agreed to the early release motion.  Whether it also agreed with the specific false statement that the defendant was not a danger to the community, I don't know.

This case is a scandal.  Have we as a country decided that little children rather than adult thugs should bear the unavoidable risks of error  --  either too much prison or too little  --  in our sentencing laws?  If not, this case by itself should end the drive for lower sentences and early release.  After all, the question whether children or traffickers should bear the risks of sentencing error answers itself.

New U.S. Supreme Court Cases

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The U.S. Supreme Court has issued a short orders list out of its Friday conference today.

The one criminal case taken up is the corruption conviction of former Virginia Governor Robert McDonnell.  The question presented is:

Under the federal bribery statute, Hobbs Act, and honest-services fraud statute, 18 U.S.C. §§ 201, 1346, 1951, it is a felony to agree to take "official action" in exchange for money, campaign contributions, or any other thing of value. The question presented is whether "official action" is limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and whether the jury must be so instructed; or, if not so limited, whether the Hobbs Act and honest-services fraud statute are unconstitutional.
The Court declined a second question on jury voir dire and pretrial publicity.

Also taken up was law-enforcement-related civil case, Manuel v. City of Joliet, No. 14-9496.  "The question presented is whether an individual's Fourth Amendment right to be free from unreasonable seizure continues beyond legal process so as to allow a malicious prosecution claim based upon the Fourth Amendment."

A long orders list will likely be issued Tuesday.  (Monday is a government holiday.)  If the usual pattern holds, all the grants are on today's list, and Tuesday's list will be all denials.

News Scan

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Californians Split on Death Penalty:  A new Field Poll released Friday indicates that California voters are equally divided between abolishing death penalty and shortening the path to execution.  State voters are likely to face this on the November ballot.  Howard Mintz of the San Jose Mercury News reports that the poll found that 47 percent of voters favor replacing the state's capital punishment with life in prison without parole, while 48 percent support proposals to speed up the "notoriously slow" system, In 2012, voters rejected an effort to abolish California's death penalty by a 52 to 48 margin, and supporters of an accelerated appeals process predict that 2016 will result in the same outcome.  In the event that both measures are approved come November, the one with the most votes would settle the dispute.  California, with the largest death row in the country, with 750 condemned murderers, has not carried out an execution for nearly a decade because of legal challenges to the state's lethal injection process. 

Former Inmate Arrested in Murder of Sheriff's Deputy:  Following the discovery of a sheriff's deputy in a shallow grave near her Louisiana home earlier this week, an ex-convict has been arrested in connection with her murder.  Bill Fuller of the AP reports that the body of 69-year-old Sulyn Prince, who worked in the control room at the Bayou Dorcheat Correctional Center and was a 12-year employee of the Webster Parish jail, was found late Monday.  Evidence in her Homer home led to the arrest of 35-year-old Jermaine Johnson, Prince's neighbor and a former inmate of the jail where Prince worked.  In 2009, Johnson was indicted on an aggravated rape charge and held in Webster Parish jail until 2015 when he pleaded guilty to simple rape, was sentence to the five years he had already served and released.  He faces a charge of second-degree murder, which carries a mandatory life sentence.  Details regarding motive and how Prince was killed have not been made public.

Feds Want to Lower The Blood-Alcohol Limit:  A list of policies that the National Transportation Safety Board (NTSB) hopes to implement nationally were released Wednesday, consisting of recommendations to reduce the current 0.08 blood alcohol content (BAC) limit and ban all cell phone use while driving, including hands-free technology.  Elizabeth Harrington of the Free Beacon reports that the NTSB is pushing for states to lower the threshold for DWI/DUI to 0.05 BAC "because research clearly shows that most people are impaired by the time they reach 0.05."  If implemented, a 0.05 BAC level would reduce the number of drinks an average weight man could consume to two, while women could have just one.  The agency also recommends a complete ban on hands-free technology in cars, noting that "[h]ands-free cell phone use causes cognitive distraction."

Police Chiefs, Sheriffs Urge Call to Arms:  Law enforcement officials nationwide are openly encouraging responsible gun ownership, believing guns allow citizens to defend themselves when police are unable to.  Fox News reports that police chiefs and sheriffs in rural and big-city departments around the country, including Florida, Oklahoma, Wisconsin.  Even states with the strictest gun laws like California, Maryland and Michigan, some chiefs and sheriffs are urging citizens to arm themselves.  Many departments are taking steps to make it easier for law-abiding citizens to obtain handgun permits.  The changing attitude partly reflects the attitudes of the people they serve, who have grown more concerned for their safety in the face of "the ever-increasing crime and violence in many communities.  According to the Crime Prevention Research Center, the number of concealed handgun permits soared from 4.6 million in 2007 to 12.8 million in 2015.  A 2000 Gallup poll showed that 35 percent of the population felt safer with a gun in the house.  By 2014, the poll found that 63% of respondents reported feeling safer with a gun.   

When Black Lives Matter, and When They Don't

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Black lives always matter.  But in the eyes of the Left, and the sentencing reform crowd (Left and Right), there is a different slant. Black lives matter when the police can be targeted for their loss, but they do not matter when they are lost because of retroactive sentencing reduction that sets the killer loose. The movement to reduce legally imposed sentences for felony-level drug trafficking is so important that, if black people get murdered in the rush  --  well, hey, ya know, stuff happens.

That's a strong statement, I understand.  But the reaction to the Ferguson shooting of a black man, when compared to the reaction to the murders of three black people  --  an adult woman and two children in Columbus, Ohio by a drug trafficker who was out on early release  -- leaves room for no other conclusion.  

Another Voice Against Sentencing "Reform"

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This piece gets right to the point.  It starts:

With murders dramatically on the rise in America's cities and drug overdoses escalating nationwide, an October headline in The Washington Post proclaims "Justice Department set to free 6,000 prisoners, largest one-time release." It summarizes the result of a series of allegedly "compassionate" policy changes that portend to deliver more violence, more addiction and higher rates of poverty and distress.... 

The "nonviolent" description [for those to whom early release would apply] is erroneous, given overdose deaths, the funding of terrorist organizations by global drug traffickers and the murders and other acts of violence committed by drug operators against competitors, witnesses, customers and law enforcement.

The early prisoner releases are, according to The Post, "an effort to reduce overcrowding and provide relief to drug offenders who received harsh sentences over the past three decades." The outcome of the early releases of drug offenders is that the criminal overcrowding will be transferred from prisons to certain neighborhoods that already are inundated with criminals and drugs.

All this applies with at least equal force to the statutory early release mechanisms now being quietly hustled through Congress in the SRCA, and all of it shows why Congress should reject the bill.

News Scan

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OH Home Explosion was Arson:  A house fire and explosion that shook an Ohio neighborhood Monday evening, killing a family of four, was determined by investigators to be arson.  The AP reports that Jeffrey and Cynthia Mather perished in the Northfield Center Township home, along with their eight- and 12-year-old daughters.  The family's remains were discovered on the first floor of the home, the mother and two daughters at the front of the home and the father in the rear.  The state fire marshal's office announced Wednesday that investigators have determined the cause of the fire, which they believe was intentionally set, but are not yet releasing details as the investigation is ongoing.  A medical examiner says murder-suicide is a possible motive, but it will take weeks to make a definitive ruling.  

Twitter Sued for 'Allowing' ISIS to Spread Propaganda:  A lawsuit filed against Twitter by the family of a Florida man killed in a terror attack in Jordan claims the social media company has "knowingly permitted" Islamic State (ISIS) terrorists to spread their propaganda online.  Kellen Howell of the Washington Times reports that the family of 46-year-old Lloyd "Carl" Fields Jr. filed the lawsuit Wednesday in U.S. District Court in San Francisco, alleging Twitter provided "material support" that has been "instrumental in the rise of ISIS," the terrorist group that took credit for the Nov. 9 terror attack that killed Fields and another American at the International Police Training Center in Amman.  Between January and July 2015, Twitter users submitted 1,003 content removal requests worldwide, 42 percent of which the company complied with; however, it did not comply with any of the 25 requests submitted by U.S. police or government agencies.  The suit claims ISIS has an estimated 70,000 Twitter accounts, posting 90 tweets per minute.  Twitter says the lawsuit is "without merit."

Language Barrier Claims Delay 2 Trials:  Two Texas men facing serious criminal charges are using language-speaking claims to delay their trials, in what has been described as an emerging pattern in Tom Green County.  Lana Shadwick of Breitbart reports that 74-year-old Jesus Hernandez Ramos, charged with aggravated sexual assault of a child, was speaking English with his court-appointed attorney up until Wednesday, when he claimed an "inability to speak English" as a reason he could not speak with his attorney.  He then refused an interpreter and requested a Spanish-speaking attorney, delaying the case until February.  The other man, 41-year-old Miguel Hernandez, who fired a gun inside a home he was burglarizing, employed the same tactics and succeeding in delaying his case as well.  Such delays cost counties $$ when lawyers are replaced and have to start over, but judges "frequently have their hands tied" when a defendant claims a language barrier because if they do not follow the defendant's request, the case could be reversed on appeal.

No Clear Motive in Louisiana Theater Shooting:  A handwritten journal left behind by the man who opened fire in a Louisiana movie theater last summer doesn't provide a clear motive for the deadly shooting, but does give details of a troubled, mentally unstable man "filled with hatred for his country and for people who didn't share his views."  Michael Kunzelman and Rebecca Santana of the AP report that in the 40-page journal found in a Lafayette motel room, 59-year-old gunman John Russell Houser described the U.S. as a "filth farm" filled with "soft targets."  He railed against gays, women and blacks" and wrote of how he designed a new logo for the Islamic State.  His last entry, written shortly before the shooting on July 23, included the start time of the movie and his final words, that he was leaving the journal "in hopes of truth, my death all but assured."  That evening, Houser opened fire during the movie "Trainwreck," killing 33-year-old Jillian Johnson and 21-year-old Mayci Breaux and wounding nine others before committing suicide. In 2008, after relatives claimed that he was a danger to himself and others, a judge ordered Houser detained for mental evaluation but did not have him involuntarily committed.  This  allowed him to pass a federal background check and legally purchase the .40-caliber handgun used in the rampage. 

No Recidivism to See Here, Move Along

Together with the knowingly false refrain that those given early release under sentencing "reform" will be limited to low level, non-violent types, we hear even more frequently that they are at "low risk" to re-offend.  Every time I've mentioned the Justice Department's own 77% figure for the recidivism rate of drug offenders, the point has been ridiculed or minimized.

The minimization effort is understandable, because propping up the myth of "they'll-go-straight-this-time" is necessary for the success of the sentencing reform agenda. If reformers told the plain truth  --  that, according to DOJ's largest study ever, slightly over three-quarters of felony-level drug inmates go back to crime after release  --  no one would be in a big rush to release them earlier. More crime faster isn't a big sell. The reform agenda would implode.

In the real world, the only surprising thing about recidivism from the beneficiaries of sentencing reform is how little time it takes them to get back in business.  Thus I bring you the story of today's Mr. Nicey, Jason Saunders.  Saunders was sentenced for a crack cocaine offense in June 2014.  He got 41 months.  But because of retroactively lighter sentences engineered by our carefree federal Sentencing Commission, Saunders' sentence was reduced, and he was released in November 2015.

He was arrested on January 6, 2016.  But it was not for precisely the same offense. He had moved up to heroin.  Specifically, he was arrested for robbery of 480 heroin stamps.

Still, no recidivism worth mentioning here, people, move along...................

Simulacrum of Sin

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The Atlantic has a story about Shin Takagi.  Mr. Takagi manufacturers anatomically correct lifelike child sex dolls for pedophiles to use, as he puts it, to help "people express their desires, legally and ethically. It's not worth living if you have to live with repressed desire." 

To be a conscious person is to have repressed desires.  One need not be a devoted Freudian to accept the plain fact that everyone has desires for what he or she cannot have. It is a mark of maturity (and one would think rather obvious) that life can be lived and even enjoyed without indulging in every desire of the heart.  Indeed, wisdom would say that is a life that is mastered.
The title of this post is the answer I expect to hear (if there's any answer at all) from the pro-sentencing reform side when they respond to the three murders that were committed in Columbus, Ohio by a convicted drug felon out on early release because of an earlier version of "sentencing reform."  They will say, I think, that we're all doing our best to release only "low level, non-violent" offenders, but mistakes cannot be avoided in human life.  So, yes, something like this was bound to happen, but errors are inevitable.

My first response is:  And when did you admit this a few years ago when you were pushing the FSA version of sentencing reform? Where are you admitting it now? Could someone quote for me, for example, any FAMM press release saying in decipherable language that, "yes, some violent men are going to be released, and, yes, they are going to kill other people when, under the old system, they would still have been in jail."

Should I wait?

My second response is:  It's absolutely true that mistakes are inevitable.

It is for exactly that reason that Congress should have rejected the earlier version of sentencing "reform," and, even more so, should reject its present incarnation.

If We Can Save Even One Child...

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President Obama has said that, if we can save even one child from a violent death by stronger gun control, we should do it. Indeed, conscience requires us to do it.  The tape of his remarks is here; the "one child" statement is toward the end.

Question:  For those who expressed no disagreement with the President's view, then, if we can save even one child by preserving our present sentencing system instead of diluting it, should we?

I ask because, as I noted in this post, we have already lost two children we know about (and one adult) to retroactive, dumbed-down federal drug sentencing.  If we can prevent more child murder by keeping serious sentences, should we  --  or, in the name of a hidebound, feckless and false "criminals-are-victims" ideology, should we look the other way?

The End for Sentencing Reform?

I bring you this tragic and shameful story from the Columbus Dispatch:

The man charged with killing an ex-girlfriend and two of her children in a North Side stabbing rampage early on Tuesday likely would have been deep into a 12 1/2-year federal prison sentence if sentencing guidelines for convicted crack dealers had remained unchanged.

Wendell L. Callahan, 35, twice benefited from changes in federal sentencing guidelines, which reduced his sentence by a total of more than four years, from the 150 months he was first given in 2007, to 110 months in 2008 including time served, and 100 months in 2011.

Translation:  Three people, including two children, are dead today because of early release from a duly imposed, lawful and fully deserved federal drug trafficking sentence.

How many times were we lectured that those released under lowered sentencing rules would be only "low level, non-violent offenders?" I don't know, exactly. Hundreds if not thousands.

Question:  How many more lives are the congressmen and senators who support the SRCA willing to see sacrificed for their "we've-been-too-tough" agenda?

An exact number, please, gentlemen.  We want to remember who you are on election day.  And we will.

Ferguson Effect in LA

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Manhattan Institute scholar Heather McDonald makes the case that as a result of a narrative advanced by the Black Lives Matter movement labeling police racists, proactive policing had declined, contributing to a dramatic increase in crime reported in Los Angeles.  Her piece in today's Los Angeles Times documents sharp rises in violent crimes, including homicides, assaults and shootings in many U.S. cities.  As this is going on a bipartisan coalition in Congress is poised to pass a bill that would cut sentences for drug dealers and allow several thousand dealers and habitual felons to be released early from federal prison back into already violent and drug infested cities.  What could possibly go wrong?

News Scan

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ISIS Growing Faster than Al Qaeda:  A former top CIA official told Congress Tuesday that the Islamic State (ISIS) is gaining affiliates "faster than Al Qaeda ever did," testifying that the number of militant groups now swearing allegiance to the terrorist organization has grown to cover 20 countries, from nearly nothing just one year ago.  Fox News reports that Michael Morell, President Obama's former deputy and acting CIA director, told the House Armed Services Committee that ISIS poses a "significant strategic and lethal threat" to the U.S. and Europe, warning that the group is "almost certainly" working to wage attacks on U.S. targets, as they have successfully done in Europe.  Another U.S. intelligence official says that over 36,000 foreign fighters, at least 6,600 of whom hold Western passports, have traveled to Syria from at least 120 countries to train and fight alongside ISIS, up from an estimated 20,000 foreign fighters last year.  Morell's testimony came after an ISIS-affiliated suicide bomber detonated a bomb in a tourist-heavy area of Istanbul, killing 10 people, nine of whom were German tourists, and wounding 15 others.

Jury Sentences CA Double Murderer to Death:  After just one hour of deliberation on Monday an Orange County jury unanimously decided to sentence a double murderer to death for killing two friends in a plot to steal their savings to pay for his wedding.  Kelly Puente of the OC Register reports that 31-year-old Daniel Wozniak, a local actor from Costa Mesa, was found guilty on Dec. 16 of murdering his 26-year-old neighbor and Army veteran Samuel Herr and 23-year-old Juri "Julie" Kibuishi in 2010 to steal more than $60,000 in savings Herr had earned from combat service in Afghanistan to bankroll his wedding.  In May 2010, Wozniak lured Herr to the Joint Forces Training Base in Los Alamitos, where he shot and killed him, returning the next day to cut of his head, hand and forearm before tossing the body parts in a park and heading to a Fullerton theater to perform in a musical.  The following day, Wozniak used Herr's cell phone to lure Kibuishi to Herr's apartment, fatally shooting her and pulling her pants down to make it look as if Herr had sexually assaulted and killed her.  Wozniak's ex-fiancée, Rachel Buffett, who played a role in the murders, pleaded guilty to felony charges of being an accessory after the fact for lying to Costa Mesa police detectives.  Wozniak's next court appearance is March 11, where Superior Court Judge John Conley will decide whether to follow the jury's verdict of capital punishment or sentence Wozniak to life in prison without parole.

Illegal Immigration Surges Again:  New Border Patrol numbers show that in just the first three months of the fiscal year, almost 40,000 illegal immigrant families and unaccompanied minors from Central America have been caught at the southwest border.  Stephen Dinan of the Washington Times reports that in December alone, almost 9,000 families were apprehended, a 38 percent increase compared to November and the highest total ever for the last month of the year.  Additionally, 6,800 unaccompanied minors were caught in December, a 21 percent increase over November.  In response to the latest flood of illegal immigration, extremely unusual during this time of year, the Department of Homeland Security (DHS) began conducting a series of raids earlier this month in an effort to track down and deport some of the women and children caught in 2014, who have been ordered deported but are refusing to leave.  The White House stands by DHS's decision to conduct the raids in the hope that seeing deportations will discourage others in Central America from making the trip to the U.S.  These latest numbers mark the largest number of families and unaccompanied minors in a single month since late spring 2014.

CA City Sees Uptick in Gang Violence:  A man shot Tuesday afternoon in Santa Ana, Calif., marked the 27th shooting or stabbing in the city since the start of the new year, and police say most of the incidents are gang-related.  Greg Lee of ABC 7 reports that Santa Ana Police Chief Carlos Rojas says the uptick in gang violence is "a real big concern for us at the police department," noting that the amount violence and handguns are proliferating. The Santa Ana Police Department Gang Unit plans to utilize compliance sweeps more often than in the past to combat the increased gang violence, while officers will "do what it takes to curb the violence one gun and one arrest at a time."  Many of the known gang members on probation in the city fall under AB 109, or prison realignment, the 2011 state law that releases  so-called "low-level" offenders from prison.

An NYT Hatchet Job on Ted Cruz

David Brooks has this column in the NYT on Ted Cruz, and it can only be described as a hatchet job.  CJLF does not endorse candidates and takes no position on the Republican primary.*  However, I do think we should correct misrepresentations about the candidates when they fall within our area of expertise.
CJLF is very pleased to announce an addition to our legal staff.  Kymberlee Stapleton was previously a recipient of our 2002-2003 fellowship and did fine work for the cause of justice.  She has now returned as a more seasoned and experienced attorney.  We will now be able to take on more cases to further advance the cause.  She may even find some time to blog here.  Welcome back, Kym.

News Scan

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CA County Report Discusses Prop. 47:  Stanislaus County released a 17-page report on Friday discussing the initial impact of Proposition 47, an initiative that "offers no justice for victims of crime," which County officials will hear presented Tuesday.  Ken Carlson of the Modesto Bee reports that the report analyzes the effects of Prop 47, approved by voters in November 2014 to reclassify certain felonies as misdemeanors and allow property and drug offenders to reduce their sentences, which led to an immediate decrease in the number of people arrested and booked in county jail in the month that is passed.  The measure has led a 40 percent decrease in felony cases submitted to District Attorney Birgit Fladager for review in the county, and she filed charges in 5,800 less cases the first year under Prop 47 compared to the year prior.  While felony prosecutions are down 30 percent in Stanislaus County, misdemeanor cases have risen 10 percent, and Fladager believes this is because people given citations for property crimes are reoffending at a quicker rate since they face no time behind bars.  Many of the criminals who skirt jail time are also skipping alternative work programs and out-of-custody drug treatment "because of the reduced emphasis on incarceration in criminal justice" says Sheriff Adam Christianson. 

113 Radicalized Terrorists Identified:  Sens. Jeff Sessions and Ted Cruz said Monday that, since early 2014, 113 individuals have been implicated in radical Islamic terrorist plots on U.S. soil.  Stephen Dinan of the Washington Times reports that the senators reached the latest total after adding 41 new names to their list, including two Iraqi refugees who were arrested last week on separate terrorism-related charges.  Sessions, chairman of the Senate's immigration subcommittee, and Cruz, a leading Republican presidential candidate, said that the information is "critical" given President Obama's plan to admit 10,000 Syrian refugees to the U.S. this year.  In response, White House officials say they "have faith in the ability of screeners to keep out bad actors," though at least 14 of the 113 individuals implicated in terrorism were admitted to the U.S. as refugees. 

Border Patrol Criticizes Sean Penn:  Following actor Sean Penn's publicized interview with Mexican cartel drug lord and mass murderer Joaquin "El Chapo" Guzman Loera, described as a publicity stunt for Penn to secure a multi-million dollar role in any future movie about him, the National Border Patrol Council (NBPC) was quick to denounce it.  Brandon Darby of Breitbart reports that El Chapo and his affiliates, part of the notorious Sinaloa cartel, are responsible for tons of drugs, illegal immigrants and trafficked human beings illicitly crossing the U.S.-Mexico border, as well as the deaths of up to 125,000 people in Mexico.  Months ago, when El Chapo was still a fugitive after he escaped from a maximum security prison, Penn attempted to secretly meet with him for an interview which led the Mexican military straight to him.  In the wake of El Chapo's recapture last week, Rolling Stone magazine published Penn's account, which many have criticized as having glorified the brutal mass murderer and drug lord.  U.S. Border Patrol Agent Shawn Moran, Vice President and spokesman for the NBPC, a union representing about 17,000 Border Patrol agents, stated, "Sean Penn and others who would celebrate [El Chapo] or capitalize on his situation only further put law enforcement on both sides of the border in danger."

In 1976, the U.S. Supreme Court reviewed and approved the Florida system of capital punishment in Proffitt v. Florida.  In that system, the jury enters the verdict of guilt of first-degree murder and makes a recommendation on sentence, but the trial judge makes the final decision on sentence and makes the essential finding that at least one "aggravating circumstance" exists.

The Florida Supreme Court added a gloss that the judge's "override" would, in practice, only work in one direction.  A jury recommendation of life in prison was essentially final, while a jury's recommendation of death could be overridden.  The Florida system is thus more favorable to the defendant than leaving the decision to the jury alone.

Over the years, the Supreme Court more than once rejected claims that this system or the similar systems of other states violated anything in the Constitution.  Then in the 2002 case of Ring v. Arizona, the Supreme Court stabbed the states and the people in the back and simply changed its collective mind, accepting the argument it had previously, unequivocally rejected.  Stare decisis, the principle of observing precedent, was thrown overboard, and the decision did not even mention the massive reliance of the states on the earlier decisions.

Most of the states with similar systems went with jury verdicts on both the aggravating circumstance and the final sentencing decision, although Nebraska kept a hybrid system where the jury finds the circumstance and three judges find the sentence.

The Florida Legislature stuck with its system, hoping that the courts would find it distinguishable from the Arizona system struck down in Ring, a foolish and unnecessary risk.  In most capital cases the existence of at least one aggravating circumstances is perfectly obvious, and there is virtually no cost in having the jury go ahead and make the finding.  Today the U.S. Supreme Court decided 7-1-1 in Hurst v. Florida that the Florida system does indeed violate Ring.

How many of the existing judgments can be salvaged?  The Supreme Court said it left harmless error analysis to the state courts.  In many cases, a jury verdict on a concurrent or prior crime can establish an aggravating circumstance.  Today's decision will be fully retroactive for cases on direct appeal, but its application to cases on collateral review is uncertain.

The first thing the Florida Legislature needs to do is fix its system.  And do it right this time.

Connecticut Death Penalty Hearing

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Generally speaking, legislatures can make reductions in punishments retroactive to old cases or not, as they choose.  The Connecticut Legislature's repeal of the death penalty was unambiguously not retroactive, and politically it would not have passed without that savings clause.  The ink was not dry on the bill before the anti-death-penalty crowd attacked that clause of their own bill.  In a shocking act of judicial activism, the Connecticut Supreme Court in Santiago v. State declared the death penalty unconstitutional despite having rejected that claim many times over the years and despite the established history of nonretroactive changes in sentencing law in that state.

Last Thursday's News Scan noted the oral argument in the case of State v. Peeler, in which the state asks the Supreme Court to reconsider its decision.  Video of the argument is now available here.

The defense lawyer's argument is really painful to watch.  He just keeps insisting over and over that the Santiago decision must be respected as final.  So why did Santiago itself not respect as final all the earlier cases rejecting constitutional attacks on the death penalty?  The defense side seems to think that precedent is a ratchet.  No decision favoring the prosecution is ever final.  Every one is subject to constant attack.  But once the defense wins a point, it becomes absolutely sacrosanct.  This is utter nonsense.

A decision should receive no more respect as precedent than it gave to precedent.
The Heritage Foundation will have a program with the above title from noon to 1 p.m. on Thursday, Jan. 21.  The event page is here.  Live streaming will be available.  The speaker is Craig Lerner, Associate Dean for Academic Affairs and Professor Law, George Mason School of Law.  Cully Stimson is the host.  The program description follows the break.

News Scan

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Crime Soars in Downtown L.A.:  An article in last week's News Scan showed that crime was rising all over Los Angeles in all categories, but in Downtown L.A. in particular, violent and property crimes are soaring significantly.  Eddie Kim of Los Angeles Downtown News reports that in LAPD's Central Division, which covers nearly all of Downtown, violent crime in 2015 shot up 52 percent over 2014 levels, while property crime spiked 28 percent.  Specifically, aggravated assaults jumped 63 percent, robberies soared 42 percent, vehicle thefts surged 65 percent and burglaries increased 43 percent.  Central Division Capt. Mike Oreb believes that the factors contributing to the overall rise in crime include gentrification, Downtown's status as a tour destination, the influx of thousands of new residents, a rise in the homeless population and prison-reform policies such as AB 109 and Prop 47.  To combat the surge, the LAPD is transferring some officers from the elite Metropolitan Division to assist in Central, and are looking to establish partnerships with the city and county to bring mental health and addiction treatment to the area.

3 Radical Associates of Terror Suspect at Large, PA Police Warned:  A tip to the Philadelphia police warned that three "radical" associates of a self-proclaimed ISIS-inspired gunman who attempted to assassinate a police officer last Thursday are on the loose and that "the threat to police is not over."  Fox News reports that the tipster informed law enforcement that 30-year-old Edward Archer, accused of shooting and wounding Officer Jesse Hartnett while he sat in his patrol car, was associated with three other men who were described as "more radical" than Archer.  Late last Thursday, Archer approached Hartnett's patrol car and opened fire, firing 13 shots into the vehicle, hitting the officer three times.  Harnett managed to get out of his vehicle, and return fire, wounding him before he was captured by other officers a block away.  Following his arrest, Archer, told authorities he was "following Allah" and pledged allegiance to the Islamic State.  Despite traveling to Mecca, and possibly Saudi Arabia in 2011 and Egypt in 2012, Archer's brother, Shane, believes the shooting was more closely related to "police mistreatment of black men" than religion.  Archer faces charges of attempted murder, aggravated assault, assault of a law enforcement officer and several firearms crimes.

Trial of Freddie Gray Van Driver Delayed:  The trial of Caesar Goodson, one of the six Baltimore police officers charged in the death of Freddie Gray, was delayed by a state appeals court that said it needed time to address whether another officer should be compelled to testify against him.  Juliet Linderman and David Dishneau of the AP report that Goodson, the driver of the police van that transported Gray, faces the most serious charge of second-degree murder, which carries a maximum sentence of 30 years in prison if convicted, contingent on prosecutors' ability to prove that Goodson was "so callous in his disregard for Gray's life that he deliberately allowed him to die."  The officer who was ordered to testify against him, William Porter, argued that the order violates his Fifth Amendment right against self-incrimination, running the risk of being in contempt of court or committing perjury.  The Maryland appeals court put the ruling on hold until it reaches a decision.  In the meantime, while Goodson's trial is delayed, Porter's retrial is postponed indefinitely pending further proceedings.  His first trial ended in a mistrial last month.

2015 Sets New Record for Terror Plots in U.S.:  A tally released Friday by the Heritage Foundation revealed that last year saw the most terrorist attacks and plots in the U.S. since Sept. 11, 2001, announced just as a number of high-profile arrests and indictments dominated the media.  Stephen Dinan and Andrea Noble of the Washington Times report that the 13 total Islamist-inspired attacks and plots that were uncovered last year were more than the previous three years combined, and the start of 2016 appears to be following the same concerning trend with last Thursday's attack on a Philadelphia police officer by a man who proclaimed allegiance to the Islamic State terror group, and two separate terror-related indictments of two Iraqi refugees reported by the Justice Department.  Lawmakers on Capitol Hill say that the fact that the two refugees were allowed into U.S. shows that major holes exist in President Obama's security plans.  House Foreign Affairs Committee Chairman Ed Royce also stressed that "ISIS cannot be contained, it must be defeated," suggesting the need to "eliminate sanctuaries and counter ISIS's ability to recruit and radicalize over the Internet."

The Marshall Project, a liberal but not unhinged group, has a commentary out with this appalling news:  The "national spike in murder [in 2015 is] the largest single-year increase since at least 1960."

If this does not set off alarms in Congress and in the states, nothing will.  But what we see instead of alarm is a snarling complacency, in which the problem is not murder but  --  ready now?  --  the death penalty.  This would be the death penalty the great majority of Americans continue to think is a morally acceptable punishment for (at least) the most aggravated murders.

The other aggressively complacent response is that, for all these many prior years when murder and other sorts of violent crime have been decreasing, we've been too tough on criminals  --  so now, in the wake of an astonishing murder surge, we should go easier and start emptying out the prisons!

This is what passes for "logic" in academia and some parts of Congress.
BuzzFeed tells us that Pres. Obama will have, among his guests at the State of the Union address, a convicted securities swindler and former international fugitive, Ms. Sue Ellen Allen.  Ms. Allen will not be introduced as a person wrongly convicted.  Instead, she will be introduced, it appears, to illustrate the "compassionate side" of the President's criminal justice reform package.  It seems that, after her release from seven years of incarceration, Ms. Allen frequently returns to prison to help less fortunate inmates get an education and prepare to re-integrate after release.

Efforts like this are all to the good  --  but not if the real purpose of showcasing Ms. Allen is to divert attention from less heralded heroes of our criminal justice system. Those would include, for example, crime victims who have overcome the injury and loss inflicted on them by dishonest or violent people; thousands of police whose proactive work has helped so dramatically drive down national crime victimization (now about half what it was 25 years ago); and prosecutors who bring justice to the wrongdoer and, in so doing, the beginnings of an understanding that makes rehabilitation for him possible.

The Republican response to Obama's address will be delivered by Gov. Nikki Haley of South Carolina.  After the break, I suggest some guests Gov. Haley might have with her to illustrate these central themes in criminal justice  --  themes Mr. Obama seems prepared to walk past.

Notes on Crime Statistics

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Carl Bialik has this post at 538 Blog on crime statistics and why they can be confusing and manipulated.  It's a useful post on the technical aspects, but the "spin" aspect of it is annoying.  Bialik tries to soft-pedal the increase in homicides.  A 14% jump in a single year is huge.

Bialik says, "For what it's worth, homicides are up -- though probably by less than what you've read."  What's with the "probably"?  Is he implying that most news media have exaggerated the increase?  From what I have read, most media are fully complicit in the soft-peddling.

"So-called justifiable homicides don't count toward the FBI definition."  So-called?  They are called that because they are that.  Would you point at an oak tree and say it is a "so-called oak"?

Bialik discusses the problem of crimes being defined differently in different jurisdictions, which is indeed a huge problem in crime statistics.  (It's even worse when you go international.)  He talks about the NYPD's reporting of "shootings" and the FBI's UCR category of "aggravated assault."  He quotes a criminologist saying (correctly), the latter is more deserving of confidence.  Then he tosses in, "Unfortunately, the FBI doesn't separate assaults by firearm from other assaults for individual cities in the data it reports."  Why unfortunate?  If you need to choose between classifying assaults by harm caused and classifying them by weapon used, it seems to me that harm caused is by far the more important.  Ideally, you could classify them both ways, but resources limit what you can do, so the ideal is rarely achieved.

News Scan

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Man Tries to Execute Officer:  In what police are calling an "attempted assassination," a Philadelphia police officer was shot several times during an ambush late Thursday night.  Justin Finch and Rahel Solomon of CBS report that 33-year-old Officer Jesse Hartnett, a five-year veteran of the force, was sitting in his patrol car when he was approached by 30-year-old Edward Archer who fired 13 shots through the driver's side of the car, striking Harnett three times in the arm.  Harnett returned fire, hitting Archer at least three times before he attempted to escape on foot and was apprehended quickly by police.  Archer has reportedly offered a full confession, saying he shot the officer in the name of Islam.  The FBI is assisting in the investigation.

Two Mideast Refugees Face Terror Charges:  Two Iraqi-born Palestinians who came to the U.S. as refugees are facing terror-related charges in California and Texas courts on Friday for supporting the Islamic State.  Fox News reports that 24-year-old Omar Faraj Saeed Al Hardan, the first person to be charged under federal law in an ISIS-related case this year, arrived in the U.S. in 2009 and became a legal permanent resident in 2011, settling in the Houston area.  He faces charges of trying to provide support to ISIS, and was found to have lied on both his citizenship application and during his interview with Immigration and Customs Enforcement.  The other suspect, 23-year-old Aws Mohammed Younis Al-Jayab of Sacramento, Calif., who arrived in the U.S. in 2012, is accused of traveling to Syria to fight alongside terrorist organizations and lying to government investigators about it. He faces up to eight years in prison if convicted.  Unsealed court documents do not indicate whether the two cases are connected, though an affidavit says Al-Jayab communicated with an unnamed individual living in Texas in 2013 to see if he could receive training in various weapons.  Since April 2013, 80 people have been charged under federal law in an ISIS-related case.

DHS Begins to Deport Illegals Caught in Raids:  The Department of Homeland Security (DHS) said Thursday that it has already deported 77 of the 121 illegal immigrants it rounded up during weekend raids in North Carolina, Georgia and Texas.  Stephen Dinan of the Washington Times reports that U.S. Immigration and Customs Enforcement (ICE), in an effort to appease criticism from immigrant-rights groups, noted that all immigrants that were deported so far had gone through immigration courts, exhausted all of their appeals and did not qualify for asylum.  The 77 have been deported to the Central American countries of Honduras, Guatemala and El Salvador, with immigrants-rights groups winning stays for five families.

The U.S. Supreme Court today took up for full briefing and argument the case of Welch v. United States, No. 15-6418

This case began in the Southern District of Florida, where the defendant filed a motion to vacate (28 U.S.C. §2255) his conviction and his sentence under the Armed Career Criminal Act.  The District Court denied the motion and denied a certificate of appealability (COA).  Welch sought a COA from the Court of Appeals, arguing that his plea was involuntary because the government "reneged" on his 10-year deal, and he got 15 to life instead.  He also claimed his Florida priors were invalid.

In a supplemental application, he asked for the case to be held for the Supreme Court's decision in Johnson v. United States, No. 13-7120.  The Eleventh Circuit did not hold it and denied Welch's application June 9, 2015.  The Supreme Court decided Johnson on June 26 and struck down the "residual clause" of the ACCA as unconstitutionally vague.

Curious that this is a grant for full briefing and argument and not a "vacate and remand for reconsideration in light of" Johnson.  The certiorari papers are not available online yet.

Does Johnson qualify for the "first Teague exception," making it retroactive on collateral review?  Yes, I think so.  The substantive statute was declared unconstitutional.  It is not a rule of procedure.

Update:  Lyle Denniston had this post yesterday at SCOTUSblog on another case presenting an issue of Johnson retroactivity, where the Solicitor General agreed that the Court should take the issue up.  If that is why the Court has taken Welch, then I can predict what will happen.  The Court will appoint an amicus to argue against retroactivity.  The amicus will get a footnote in the opinion praising his her efforts and a unanimous ruling against him her.

Update 2 (1/15):  Helgi C. Walker of Gibson Dunn has been "invited to brief and argue this case, as amicus curiae, in support of the judgment below."

Coming: A New Crime Wave

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The title of this post repeats the title of a news story recounting an interview with Assistant US Attorney Steve Cook on the Laura Ingraham show.  Cook is President of the National Association of Assistant United States Attorneys, an organization of 1200 to 1300 career (i.e., non-political) federal prosecutors.  

The career people often act as a counter-weight to their politically-appointed superiors.  The careerists (of whom I was one for a time) see this as essential to maintain the integrity and non-political character of the Justice Department; the political appointees (of whom I was one more recently) see it as a bureaucratic drag on the mandate they believe they earned to set their own priorities.

Cook has been an AUSA for many years, and had some alarming, and illuminating, things to say, principally that the SCRA (the "reform" bill presently pending in the Senate) "would reverse [a quarter century of] gains by letting dangerous criminals out of prison."
Drug legalization is one of those topics, like the death penalty, on which minds seem to be made up.  I have been debating both for years, and only two people have told me they changed positions afterward (both went from opposing to supporting the death penalty).

I thus present the rarest of finds, a libertarian, Robert VerBruggen, who, in light of the evidence of suffering and death created by the snowballing heroin and opioid epidemic, has taken a second look at his previous position favoring legalization.  His essay is here.  I can't say that he now enthusiastically shares my view that continued criminalization of drugs is the correct course, but he seems largely to have come around based on this key insight:  If we legalize drugs, we lose one barrier to their use.  With that barrier gone, more will get used.  When more get used, the amount of damage they cause is likely to explode.  Therefore, on balance, a decent regard for the well-being of our fellow creatures counsels that drugs remain illegal. 

What makes the essay so powerful is VerBruggen's understanding  --  common among libertarians  --  that our present system has plenty of holes in it and plenty of costs.  And what makes it so convincing is that he then asks the only adult question: Would the proposed alternative on balance be better?  He now seems to think the answer is no.

It's a short essay, worth your time.

Simian Selfie Update

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For those who can't get enough of this off-topic topic ... 

News Scan

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CT Prosecutors Challenge Death Penalty Ban:  Connecticut prosecutors argued Thursday that the state's Supreme Court made a "critical mistake" when it ruled that a 2012 law ending capital punishment in the state applied retroactively to the 11 inmates already on death row.  Richard Weizel of Reuters reports that last August, in the case of Santiago v. State, the state's high court ruled 4-3 that a 2012 state law banning the issuance of new death sentences, but permitting the executions to be carried out for people previously condemned, amounted to cruel and unusual punishment.  In another capital murder case before the court, Senior Assistant State's Attorney Harry Weller argued that "the court overreached its authority when it determined that legislators could not exempt people previously sentenced to death from the new ban on punishment."  The court is expected to make a ruling over the next few months.  Connecticut is one of 19 U.S. states that have banned the death penalty, their last prisoner executed in 2005.

German Vigilante Group to Protect Women From Migrants:  In the wake of hundreds of sexual assaults in the German city of Cologne on New Year's Eve by male migrants from the Middle East , a vigilante group in the neighboring city of Dusseldorf launched on Facebook Wednesday night, intent on providing protection and major events and in city centers to German women. Oliver Lane of Breitbart reports that the group, called "Dusseldorf is Watching," already has 2,300 members and quickly received criticism from local police, who voiced their stance against "self-proclaimed vigilantes."  The founder of the group, however, assures that they do not intend to employ vigilante justice or violence; rather, they simply plan to be "present and attentive" at major public events and on weekend evenings.  During New Year's Eve festivities in Cologne and other German cities, hundreds of women reported being sexually assaulted by large groups of men described as Arab appearing, which overwhelmed police forces.  

Obama Hires 'Army' of Pardon Lawyers:  A "small army" of pardon lawyers is about to be hired by the Justice Department, suggesting that President Obama is expecting an active pardon period at the end of his term.  Paul Bedard of the Washington Examiner reports that although it is typical for presidents to issue pardons to prisoners in their last months in office, the current plan to expand the Office of the Pardon Attorney by adding 16 new lawyers indicates President Obama's pardon period is likely to be "busier than normal."  The president has already granted 250 pardons and commutations during his term, more than former President George W. Bush doled out during his full eight years in office.  The move will potentially cost $2.26 million.

Officer Asks Court to Block Forced Testimony in Gray Case:  A Baltimore police officer charged in the death of Freddie Gray is fighting a ruling that would force him to testify against a colleague, arguing that it violates his Fifth Amendment rights against self-incrimination.  The AP reports that William Porter, whose trial ended in a mistrial last month, asked the Maryland Court of Special Appeals to block a Baltimore Circuit Judge's ruling compelling him to take the stand in Officer Caesar Goodman's trial or face jail time.  Porter's attorney, argues that prosecutors will be unable to differentiate what they heard in Porter's first trial as a defendant from his testimony as a witness.  Porter's Immunity from trial for his testimony. A longtime Baltimore defense attorney, not involved with the case, emphasizes the difficulty this decision presents to achieving fair trials in future cases involving multiple defendants, noting that "the judge is essentially saying there is no difference between a witness and a defendant, so long as immunity is granted."  Goodson, the driver of the police van, is the second officer to be tried in the April death of Freddie Gray and is facing charges ranging from manslaughter to second-degree murder.  Porter's retrial is scheduled for June 13.  Update:  The Maryland Court of Special Appeals agreed Friday to stay Judge Williams' order compelling Porter to take the stand in Goodson's trial.

One of many awful features of the sentencing reduction (called sentencing "reform") bill pending in the Senate is its retroactive effect:  Drug dealers by the thousands would be able to march into federal court, most with attorneys you're paying for, to argue that their behavior wasn't all that bad.  Instead of responding to the legion of new cases in need of initial adjudication, federal prosecutors (also on your dime) will have to respond to these motions, creating an even bigger backlog on the docket than we have now, and doing so with cases that ended long ago.

On the face of it, does this sound like a good thing for the cost or efficiency of the criminal justice system?

But it gets worse.  In the middle of a drug overdose epidemic fueled by, among other things, heroin and abuse of prescription opioids, people like Dr. Vincent Colangelo will be using the proposed dumbing-down of statutory penalties, just as we see they are now using the dumbing-down of sentencing guideline ranges:

A man who made millions operating a half a dozen pill mills in South Florida wants his prison sentence reduced.

The attorney for Vincent Colangelo has asked a Miami judge to reduce his sentence from 20 years to 16 years. Attorney Alvin Entin says a retroactive change in federal sentencing guidelines justifies the reduction.

Colangelo was sentenced in 2012 after pleading guilty to federal drug, money-laundering and tax charges. Court documents show he operated six pain clinics that made an estimated $22 million in profits through illegal sale of oxycodone and other drugs.

Six other people were charged in the case. South Florida was once the nation's pill mill leader, but new laws and tougher law enforcement has all but eliminated them.

That last sentence is particularly interesting.  New laws and tougher enforcement have helped take down one source of a huge amount of human misery.  But now we propose  --  through federal sentencing "reform"  --  to turn away from this success and re-embrace failure.  And pay for all of it with hefty amounts of taxpayer dollars.

The anti-incarceration crowd has had a surprising amount of success in recent years getting some people of generally conservative leanings to support their efforts.  The pitch has been that reducing prison populations will cut government spending, and there are few things more musical to the conservative ear than cutting government spending.  A funny thing happened on the way to reality.

Robin Respaut has this article for Reuters:

In 2012, under court order to reduce prison overcrowding, California announced an ambitious criminal justice reform plan that promised not only to meet the court mandate but also to improve criminal sentencing and "save billions of dollars."

Now, three years after implementing the changes, California has reduced its prison population by some 30,000 inmates, and the state is in the vanguard of a prison reform movement spreading across the country, with support from both the right and the left.

But the promise of savings - a chief goal of prison reform nationwide - has not been realized. Instead, costs have risen.
...are engaged in their own, ummmmm, zealous work, as explained in this WSJ Law Blog story concerning prominent criminal defense attorney Robert Simels:

The U.S. 2nd Circuit Court of Appeals upheld Simels' 2009 convictions on attempted obstruction of justice and bribery, and the 14-year-prison sentence given to him by U.S. District Judge John Gleeson in Brooklyn, but vacated his conviction on two counts relating to importation and possession of electronic surveillance equipment.

Simels' lawyers didn't respond to requests for comment. A spokesman for federal prosecutors in Brooklyn said they were still reviewing the decision and would not comment.

Simels...was convicted in connection with an attempt to tamper with a witness against his client Shaheed Khan, a cocaine trafficker from Guyana who ultimately pleaded guilty to charges in the U.S. Prosecutors in Brooklyn made a case against Simels, who was retained by Khan for $1.4 million, in part with help from a federal informant connected to the drug trafficker, who taped meetings with the attorney.

There are two points to be remembered from this story.  One is the criminal defense bar is not the uniformly pristine, Knight-on-a-White-Horse, Constitution-shielding sentinel its PR machine portrays.  There are bad actors among defense lawyers, just as there are among Brady-hiding prosecutors and gun-happy cops.  Every profession has its bad apples, and defense lawyers, notwithstanding their gentle treatment in the press, are right in there with everyone else.  It's just more popular, and politically more rewarding, to bash cops and prosecutors, which is why it gets done more often and more loudly.  By contrast, no one ever got a piece in Salon, or tenure for that matter, doing a dissertation about the wonderfulness of cops.

The second point is this Simels story, like the Mike Nifong story, is easy to bullhorn all over town to drive whatever one's agenda might be.  If you take the worst one-half of one percent of ANY profession's behavior and repeat it in 30 blogs, 10 op-ed's and 5 network broadcasts, you can make that profession out to be a cesspool.  It's my impression that Radley Balko does exactly that in his obsession with the police.

But it's cheap and misleading.  If you want to know what defense lawyers, prosecutors and cops act like, it's easy to find out: Go to your local court and sit there for a week watching random cases.

It's possible you'll see people who left good faith far behind, and put out every slick argument they think they might get away with.  But I doubt it.  I suspect you'll see what I did for about 20 years  --  able and almost always honest advocacy.  Counsel see cases from different angles, sure; our system is designed so that they will.   But only through a dark, tiny and distorted lens will you see any segment of the legal profession in the light in which Mr. Balko, for example, presents the police.

I am not an optimist by nature, but I can tell you from long experience in litigation that the grim picture of competing thugs and cheaters we see painted in so many places simply is not true.

Find out for yourself  --  visit that courtroom.

This New York Times editorial spills the beans on the realistically possible scope of Pres. Obama's plans for mass clemency. Its most revealing sentences are:

After seven years in office, Mr. Obama has issued a total of 184 commutations and 66 pardons -- more grants, as the White House wasted no time in pointing out, than the last six presidents combined....By the administration's own estimates, [however], as many as 10,000 people could be released under the new criteria, former Attorney General Eric Holder Jr. told The Washington Post this month. So why is Mr. Obama continuing to make grants in the single or double digits?

The NYT misses the obvious answer to this question.  Mr. Obama, a shrewd politician if nothing else, is waiting for Republicans, sometimes (and often aptly) called the Stupid Party, to give him political cover.  He knows that, at his urging and with his support, the Republican Senate is considering its own mass clemency, to wit, a bill that would significantly lower sentences and do so retroactively.  That this is markedly unpopular with the public has not sunk in with the Stupid Party, at least not yet.

Why should Mr. Obama take the (fully deserved) political risks of mass clemency when the Stupid Party will do the work for him  --  and take the blame too?  Mr. Obama can kill two birds (actually, three) with one stone  --  he'll stoke his core liberal interest groups, weaken America with more crime, and quite plausibly pin it all on the political opposition!

Republicans often chide Obama for being full of himself.  But if he pulls off a trifecta like that, who could blame him?

The only fly in the ointment is that Republicans might wake up at the last minute and make Obama do the lifting for, and take  ownership of, his own pro-criminal agenda.  True, revived alertness from Republicans will do nothing to save the country from the Presidentially-engineered recidivist crime wave  --  this on top of the present murder and heroin crime wave  --  but it will have at least the virtue of pinning responsibility for it where it belongs.

Will the Republicans wake up?  Some, like Sen. Mike Lee, seem too ideologically dug in to hear the alarm clock.  But there is realistic hope that more serious men, like Senate Majority Leader Mitch McConnell, will understand how Republican-sponsored mass clemency will weaken both the Party, and more importantly, the country, and let the Senate sentence reduction bill die the quiet legislative death it deserves.

That way, if and when Obama goes through with his mass executive clemencies  --  say, the day after the election we're having in ten months  --  at least it will be clear who owns the ensuing recidivism spree.
No, they are not.  As explained here, it was the outcry from black neighborhoods in the inner cities that gave rise to tougher sentencing in both state (see, e.g., the Rockefeller laws in New York) and federal law.

And it worked.  As crime plummeted over the last quarter century, African Americans benefited tremendously.  Indeed, because blacks are disproportionately victims of crime, reduced crime disproportionately benefits them.

Why people want to return to the crime-ridden soft sentencing policies of the past is a mystery.  It is all the more mysterious for those concerned with the well-being of the huge majority in black communities who simply want to live in the peace and safety tougher sentencing and more proactive police work have helped bring them.

Almost no sensible person denies that if we legalize drugs, more drugs will get used.  Such is the nature of temptation, not to mention dependency and addiction.

What will happen if more drugs get used?

More of this.  

I know some very smart people who support drug legalization.  I respectfully but emphatically disagree.  A legal system with an ounce of humanity will take considerable trouble, and impose considerable penalties, to reduce the chances that a tragic and horrible death like the one described in the story will happen.  

No system is infallible, and we should understand that not all drug use can be prevented. But to give up the effort because it's hard, expensive and (like all competing systems) capable of error strikes me as close to indecent.

News Scan

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Federal Prisons a Breeding Ground for Terrorists:  As more and more home-grown terrorists are locked up in America's federal prisons, experts are becoming worried that prisons, where terrorists are more likely to spread their beliefs than renounce them, have become breeding grounds for radical Islam.  Fox News reports that the advent of the Islamic State terrorist group, or ISIS, and their aggressive recruitment of Americans has resulted in the imprisonment of 71 people in the U.S. on ISIS-related charges, including 56 arrests in 2015 alone, the most terrorism arrests in a single year since September 2001.  Moreover, there are hundreds more in federal prisoners serving time for terrorist activities related to other terror groups, 100 of which are scheduled for release in the next five years, and there is a possibility that more terror suspects could be transferred to U.S. prisons from Guantanamo Bay.  The FBI says that radicalized inmates are concerning for many reasons, including the possibility they could urge other prisoners to attend radical mosques upon being released from prison, their heightened risk of inciting violence against prison staff and other inmates, and their passage of skills used in terrorism activities to others.  

New Gun Measures Would Have Had no Effect on Mass Shooters:  Following President Obama's announcement Tuesday of executive action to expand background checks at gun shows, flea markets and online sales and add more staff to process them, an Associated Press review shows that the measures would have had "no impact" on several of the most notorious mass shooters in recent years.  Michael R. Sisak of CNS News reports that in some recent U.S. mass shootings, such as those in Sandy Hook and San Bernardino, the shooters used weapons purchased by others.  In Aurora, Co., and the Navy Yard in Washington, D.C., while the shooters had mental health issues they were cleared to buy weapons because federal background checks only looked into criminal histories and court-ordered commitments for signes of mental illness.  A former Bureau of Alcohol, Tobacco, Firearms and Explosives agent says the new regulations won't make it easier to secure convictions against unlicensed gun dealers because the rules remain too vague to help investigators, who already face an uphill battle prosecuting individuals that sell a small number of firearms.

Lethal Heroin Hits MA:  A deadly strain of heroin has struck western Massachusetts, killing eight people in one week amid a regional and national epidemic.  Sarah Jorgensen of CNN reports that the deaths were concentrated in a few small cities in the state, prompting police in the area to warn the public about the lethal strain, dubbed "Hollywood" heroin.  According to the Massachusetts Department of Public Health, between 2012 and 2014, there was a 63 percent increase in opioid-related deaths in the state, and a total of 1,089 people died of opioid-related overdoses in 2014 alone.  The rest of the nation is not immune from the problem:  the Center for Disease Control and Prevention says that, nationally, deaths from drug overdoses reached an all-time high in 2014 and, from 2013 to 2014, deaths from overdoses of prescription drugs and heroin rose 14 percent, maintaining its position as the leading cause of unintentional death for Americans.  This past weekend, police in Springfield, Mass., seized 9,000 bags of heroin with the "Hollywood" stamp on it and arrested four individuals.  An investigation to determine what makes this particular strain so dangerous is still ongoing.

Sheriff Joe v. Barry O.

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On January 15, the U.S. Supreme Court will consider in conference whether to take up the case of Arpaio v. Obama, No. 15-643.  This is a challenge to the effective nullification of large portions of immigration law through nonenforcement.  The D.C. Circuit dismissed on standing.  See my prior post.

The certiorari petition is here.  The SG's brief in opposition is here.  Sheriff Joe's reply was filed December 30, but I haven't found it online.

The petition, by Larry Klayman of Freedom Watch, has 10 questions presented.  Not the way I would have done it, but we all have our own style.

On the same conference list, presenting largely the same issues, is United States v. Texas, No. 15-674.  Texas won in the Fifth Circuit at the preliminary injunction stage.  SCOTUSblog's case page has the pertinent documents.  In this case, the Solicitor General is the petitioner.  Unlike us mere mortals, the SG gets a large portion of his certiorari petitions granted.  That's good for Sheriff Joe, because if they take one it makes it considerably easier to take the other.

An Avoidable Tragedy

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"Activists," academics, and others in the "I'm-smarter-than-you-are" crowd tell us that when the cops are routinely denounced as thugs, when a big city mayor says that rioters throwing bricks and bottles at them  must be given "space to destroy," and when that same city's state's attorney holds a political rally news conference at which she lifts murder charges against the police like a head on a pole, there will be no effect on crime.

News Scan

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Teen Killed by Mistakenly Released Inmate:  A Washington teen who was murdered last year was killed by a man who should have been locked up in prison at the time of his killing.  Chris Ingalls of KING 5 News reports that 17-year-old Caesar Medina was fatally shot during a botched robbery at a Spokane tattoo parlor last May by 25-year-old Jeremiah Smith, who was later arrested and charged with first degree murder for the crime.  It was recently discovered, however, that Smith was one of 3,200 inmates in Washington State that were released early over the past 13 years because of a software glitch that miscalculated inmates' release dates.  Prison officials say that 30 offenders have been re-arrested and at least three were found to have committed new crimes when they should have been incarcerated.  These numbers are expected to grow.

FL Serial Killer to be Executed:  After decades of legal gymnastics, a Florida serial killer's date with death has finally arrived after the Florida Supreme Court struck down a request last month to stay the execution.  Dan Sullivan of the Tampa Bay Times reports that 53-year-old Oscar Ray Bolin Jr. was given three death sentences, the first in 1991, for the brutal murders of two young women and one teenage girl in 1986, but they were all overturned by 1995 when the state high court ruled that jurors should not have heard damning testimony from Bolin's ex-wife (deceased after the third trial) because he never waived his spousal privilege.  Bolin was tried again and convicted three more times, receiving death sentences from three more juries, but again, higher courts overturned the convictions because of legal errors.  Fortunately, the death sentence for his third conviction stuck in 2001, another came in 2007.  In 2012, at his 10th and final trial, he received a life sentence for one of the murders.     He is set to die by lethal injection on Jan. 7.  Update:  Bolin was executed Thursday evening by lethal injection after the Supreme Court rejected his final appeal without comment.

DHS Sweep of Illegals Begins:  In an effort to offset another surge of illegal immigrants from Central America, the Department of Homeland Security (DHS) Secretary Jeh Johnson announced Monday that a series of raids have been launched to deport some of the arrivals.  Stephen Dinan of the Washington Times reports that Johnson said that the first round of raids focused on Georgia, Texas and North Carolina and netted a total of 121 illegal immigrants, a minute fraction of the more than 110,000 Central Americans that jumped the border of the past year and a half.  U.S. officials are concerned with the possibility of another surge this year following a federal judge's ruling this summer that immigrant families, along with unaccompanied minors, must be released from detention quickly, mounting fears that yet another lax immigration policy will invite a new mass migration of immigrants from south of the border.  Jessica Vaughan, policy studies director at the Center for Immigration Studies, believes that the DHS  move could act as a deterrent but, "Until people believe that if they try to come here illegally they'll definitely be sent home quickly, it's not going to have any effect."  

News Scan

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Crime in L.A. Up in all Categories in 2015:  End-of-the-year crime figures show that in 2015, every category of crime rose across Los Angeles for the first time in over a decade, with all 21 LAPD divisions reporting crime increases.  Ben Poston of the LA Times reports that overall violent crime in neighborhoods all over the city increased 19.9 percent while property crime spiked 10.3 percent, marking the second consecutive year that violent crime rose and the first time since 2003 that both violent and property crime increased.  Analysis of the data uncovers alarming increases in several violent crime sub-categories, including rape (8.6%), robbery (12.3%), and aggravated assault (27.5%), as well as increases in homicides (10.2%) and shooting victims (12.6%).  When property crime is broken down, figures confirm surges in burglaries (4.8%), personal thefts (6.3%), thefts from vehicles (15.1%) and motor vehicle thefts (16.7%).  After more than 10 years of steep declines in crime, Los Angeles joins the growing number of large U.S. cities that have reported serious increases in crime.

CA Death Row Inmates Don't Fear Execution:  A rare tour by officials of California's death row and death chamber at San Quentin State Prison last Tuesday provided the outside world with a glimpse of life inside the prison that houses the majority of the state's 750 condemned inmates, revealing that they spend little time worrying about executions.  Sudhin Thanawala of the AP reports that the tour comes as the state replaces its three-drug lethal injection protocol with a one-drug protocol.  In 2016, California voters may get a chance to vote on competing death penalty measures - one to expedite executions, and another that would scrap it altogether.   Jan. 17 marks the 10-year anniversary of the last execution in the state.

Massive Backlog of Untested Rape Kits in FL:  A report released Monday reveals that Florida has a backlog of over 13,000 untested and unprocessed rape kits that will cost the state significant time and money to address.  Tamara Lush of the AP reports that the Florida Department of Law Enforcement (FDLE), which conducted the study which  concluded that of the 13,345 kits that have not been tested, 41% were because the victim decided not to proceed with the investigation and in 31%, the state attorney's office declined to prosecute.  Other common reasons included a suspect's guilty plea, death of a victim or a victim declining to file a police report.  Last November, Gov. Rick Scott announced plans to seek $8.5 million to help process the backlog, but estimations range from $9 million to $32 million.  The most efficient and economical way to manage the issue, says the FDLE, is through outsourcing.  

Most Homicides Since 2008 in CA Capital:  A drastic increase in homicides in 2015 has Sacramento police trying to figure out the cause.  Tom Miller of KCRA reports that the number of homicides in the city last year totaled to 43, up from 28 in 2014, making 2015 the deadliest year in the state's capital city since 2008.  Adding to the concern is a decrease in the number of homicide cases solved, with just 49 percent of cases solved in 2015 compared to 87 percent in 2014.  City police hope that new technologies and more help from the community can turn things around.

To start the new year, here are a few notesAffluenza.png on affluenza, parenting, and root causes of crime.

The cartoon on the left is by Benjamin Schwartz of the New Yorker.  Click on it for a larger view.

Debra Saunders has this column in the San Francisco Chronicle.

While the defense attempted in this case is widely regarded as ludicrous, with its emphasis on affluence as a mitigating circumstance in a criminal case, the underlying problem of indulgent, permissive parenting is a much more serious and pervasive one.  It is not limited to the wealthy. 

Two weeks ago, Leonard Sax, a practicing physician, had this op-ed in the WSJ on the pandemic disrespectfulness of children today and the role of parents and popular culture in causing that problem.  His article is titled "Parenting in the Age of Awfulness."

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