February 2016 Archives

News Scan

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Border Crossings Surge Dramatically in FY 2016:  The first four months of FY 2016 show significant increases in both Unaccompanied Alien Children and family units when compared to the same period in FY 2015, according to a U.S. Customs and Border Protection report released last Friday.  Bob Price of Breitbart reports that the total number of border crossings of alien minors along the border rose 102%, with an increase of 624% in the Big Bend Sector, 697% in the Yuma Sector, 339% in the El Paso Sector and 100% in the Rio Grande Sector.  Incomplete family units crossing the border spiked as well, totaling an overall 171% jump, with the Big Bend and El Paso increasing in excess of 500% and Yuma showing a 1033% rise.  Texas Gov. Greg Abbott, who expressed his alarm about the border crisis in September, plans to extend deployment of the Texas National Guard and increase other state law enforcement activities along the border.

Immigration Files of Boston Bomber Released:  Homeland Security has released the immigration documents of Tamerlan Tsarnaev, one of the men who, along with his younger brother Dzhokhar Tsarnaev, set off explosives at the finish line of the Boston Marathon in April 2013, killing three people and injuring over 260.  Suman Varandani of the IB Times reports that the immigration documents contained 206 pages of files on Tamerlan and his friend Ibragim Todashev, showing the two as "ethnic Chechens from Russia, struggling with unemployment and poverty while trying to make a future in the U.S."  However, Tamerlan had expressed interest in his application to change his name to that of an early Islamic scholar, and also disclosed a 2009 arrest for assaulting a former girlfriend and that he had recently traveled overseas, which authorities said should have raised concerns among U.S. Citizenship and Immigration Services (USCIS) officials.  USCIS stated that they found no errors in the processing of the two men.  Tamerlan was killed in a gun battle with police after the 2013 bombings, and Todashev was killed a month later in Florida by an FBI agent.  Dzhokhar Tsarnaev was sentenced to death last year after being found guilty on all charges against him for his role in the bombings.

NH Senate May Suspend the Death Penalty:  The New Hampshire Senate is to vote on a bill this week that would "suspend" the use of the death penalty without repealing it.  The AP reports that the bill states that capital punishment in the New Hampshire would be suspended until "methods exist to ensure that the [it] cannot be imposed on an innocent person."  The last execution in the state was in 1939, and it currently has only one death row inmate, Michael Addison, who was convicted of killing a police officer in 2006.  The bill will be voted on in a Senate session of Thursday, and its outcome is expected to be determined by one or two votes.

Certiorari Denied to Joseph Edward Duncan

Joseph Edward Duncan is a serial murderer and rapist who thoroughly deserves his death sentence.  His Murderpedia entry is here

At one point, Duncan apparently understood himself that his sentence was just, and he declined to appeal it.  His "standby counsel" filed a notice of appeal with no authority to do so.  The capital defense bar apparently regards "volunteering" as per se proof of insanity, and lawyers regularly rush in and try to overrule any client who seeks to dismiss reviews of his death sentence.

Duncan later changed his mind, but too late.  The District Court found that Duncan was mentally competent, struck the void notice filed by standby counsel, and denied Duncan's motion to withdraw his waiver.  The Ninth Circuit affirmed.  Today the U.S. Supreme Court denied the certiorari petition in Duncan v. United States, No. 15-6408.

The Unprotected

Peggy Noonan has this column in the WSJ, titled Trump and the Rise of the Unprotected: Why political professionals are struggling to make sense of the world they created.

But I keep thinking of how Donald Trump got to be the very likely Republican nominee. There are many answers and reasons, but my thoughts keep revolving around the idea of protection. It is a theme that has been something of a preoccupation in this space over the years, but I think I am seeing it now grow into an overall political dynamic throughout the West.

There are the protected and the unprotected. The protected make public policy. The unprotected live in it. The unprotected are starting to push back, powerfully.

The protected are the accomplished, the secure, the successful--those who have power or access to it. They are protected from much of the roughness of the world. More to the point, they are protected from the world they have created. Again, they make public policy and have for some time.
Democrats are outraged that the Republican-controlled Senate might simply refuse to hold hearings on a qualified Supreme Court nomination made by President Obama, leaving the filling of the seat to the next President.

Marc Thiessen has yet another "where you stand depends on where you sit" story in the WaPo:

On Jan. 27, 1992, President [George H. W.] Bush nominated [John G.] Roberts to serve on the U.S. Court of Appeals for the District of Columbia Circuit. Roberts was immensely qualified for the job. He had served since 1989 as principal deputy solicitor general of the United States, arguing 39 cases before the Supreme Court, making him one of the country's most experienced Supreme Court litigators.

But his nomination to the federal bench was dead on arrival at [Sen. Joseph] Biden's Senate Judiciary Committee. Biden refused to even hold a hearing on Roberts's nomination, much less a vote in committee or on the Senate floor. Roberts's nomination died in committee and was withdrawn on Oct. 8, 1992. It was only about a decade later that he was re-nominated to the federal bench by President George W. Bush -- and we all know the rest of the story.
Democrats have no monopoly on hypocrisy in this area, as I have noted before, but they do seem to be taking it to a new level.  They are calling the stalling unconstitutional.  No, it is not that, and I don't recall any Republicans saying it was when the shoe was on the other foot.  This is bare-knuckle politics, and it seems that with every cycle the Democrats take nastiness to a new level when they are blockers and scream louder when they are the blockees.

News Scan

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Ruling Blocks CA Gov's Prison Parole Initiative:  The Sacramento County Superior Court blocked California Gov. Jerry Brown's proposed November ballot initiative Thursday.  As written, the initiative would allow non-violent felons with multiple violent priors to be eligible for parole with good behavior after serving the base term for the current crime.  Keith Carls of KEYT reports that the judge ruled that California Attorney General Kamala Harris did not comply with state law and "abused her discretion" when she approved the filing of Brown's initiative as an amendment to a different measure, but that "the changes are so dramatic they, in effect, create a new proposal."  Opponents of the initiative, including the California District Attorney's Association, have applauded the court's decision for not only stopping a bad policy but also calling out the manipulation of the initiative system.  The proponents of the initiative have appealed the ruling.  Here is columnist Dan Walters' take.

Three Killed in KS Workplace Shooting:  Three people were killed and several other injured Thursday during a shooting rampage in Kansas by their co-worker who had been served a restraining order just two hours before.  Fox News reports that 38-year-old Cedric Ford, after being served the protection order, went to the Excel Industries plant where he was an employee, shooting three people on the way there and 15 more when he stormed the lawnmower parts factory.  Ford, who was killed in the attack by police gunfire, had several felony convictions in Florida and misdemeanor in Kansas.  He reportedly showed no indication he would go on a killing spree when the retraining order was served, but it is likely what triggered the tragic event.

Obama Admin to Crack Down on Sanctuary Cities:  Marking a major shift in policy, the Obama administration promises to begin cracking down on sanctuary cities, planning to bar them from receiving federal grant money for refusing to cooperate with immigration laws.  Stephen Dinan of the Washington Times reports that U.S. Attorney General Loretta Lynch told Congress on Wednesday that in addition to withholding federal grant money from cities and counties that refuse to deport illegal immigrants, the federal Bureau of Prisons will no longer release illegal immigrants to sanctuary cities, instead turning them over to immigration authorities for deportation.  The Justice Department says a city or country could not only lose money, but also face criminal prosecution for failing to comply with U.S. Immigration and Customs Enforcement agents.  In 2014, sanctuary cities refused approximately 15,000 requests to hold illegal immigrants for deportation and released them into communities.
A:  No.

In all the talk about how the President is going to persuade (some might say "snooker" or "bully") Senate Republicans into accepting his nominee to replace Justice Scalia, one question seems never to get asked:  Do Americans actually want a more liberal Supreme Court?

That is what they are 100% certain to get with anyone Mr. Obama nominates. Justice Scalia was almost universally viewed as the leader of the conservative Justices.  He was probably the most conservative Justice of my lifetime.

As the Court was about to begin its Term last October, with Justice Scalia still sitting, Gallup asked whether respondents thought the Court was too liberal, too conservative, or about right.  The results:  40% about right, 20% too conservative, and 37% too liberal.  In other words, roughly twice as many Americans thought the Court is too liberal as thought it's too conservative.

Put another way, over three-quarters of the country thought the Court with Justice Scalia was either about right or too liberal.

When Mr. Obama comes persuading, or snookering, or bullying, that's all the Republicans need to say:  "The country does not want the Court moved to the Left, and we are going to do what the country wants, not what the Administration wants. The country will have the opportunity in November to take a different direction if it so chooses, and we are going to preserve that opportunity for democracy to work."  End of story.

Heroin Strikes; One State Fights Back

In the ground war against the heroin epidemic, Kentucky goes on offense.  Note the lopsided vote:

Anyone convicted of selling any amount of heroin for the first time would be a felon in Kentucky under a bill that has cleared the state Senate.

The Senate voted 31-6 to approve the bill on Wednesday. Kentucky lowered penalties for some heroin dealers in 2011. Since then, heroin use has increased significantly and overdose deaths have soared.

State Sen. John Schickel of Union said he voted to lower the penalties in 2011 and has regretted it ever since. Some Democrats opposed the bill, arguing it would put low-level addicts behind bars without treating their underlying substance abuse problem.

Could someone remind me which state Senate Majority Leader Mitch McConnell represents?

The One Day Trial Balloon

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CBS News and some Twitter feeds are reporting that Gov. Brian Sandoval has asked not to be considered for the Supreme Court. Yesterday, the anti-Scalia Left was giddy that President Obama might have outfoxed the Stupid Party again.  See this post on SL&P.

So much for that.

I don't know the reason he withdrew so quickly.  One could be that White House Counsel's Office discovered some scandal or conflict of interest that was going to be a problem.  Another could be that the hydraulic pressure within the Democratic Party is demanding an aggressively far Left candidate.  A third is that the White House did some calls yesterday and figured out, correctly, that it couldn't hoodwink enough Republican senators to get Sandoval through.

The optimist in me would like to think that Gov. Sandoval sat down with himself and concluded that, for adept as he might be as a state politician, he has nothing approaching the learning, intellect, or legal compass to qualify him to succeed a giant like Antonin Scalia.

If that's it, my hat is off to Brian Sandoval.

Marco Rubio on Sentencing "Reform"

Sen. Marco Rubio is in a battle with Ted Cruz and Donald Trump for the Republican nomination.  Trump is ahead and seems to have the advantage going forward.  But nothing is fixed in politics (did you ever hear of Brian Sandoval for the Supreme Court before yesterday?), and Rubio is an excellent speaker.  He could be the "bridge candidate" who unites more Establishment types with down-the-line conservatives.  Taken together, those two groups constitute a majority of Republican voters.

Rubio was asked on a Fox News citizen forum about prison reform and "mass incarceration."  He did not repeat the Establishment Received Wisdom that we need to adopt some of the sentencing reduction bills presently treading water in Congress. Instead, he said the bills are largely misconceived, because the people actually serving federal time are not mere users or addicts, but dealers and violent criminals. He also said he would preserve our gains against crime.  The video is here.

I think that means Rubio just came out against the SRCA.  We already knew that Cruz voted against it in Committee.  Donald Trump has not spoken to the issue directly that I know about, but seems to be very hard line, wanting an automatic death penalty for cop killers.

When the Party's three leading Presidential candidates are on the same side of an issue, that pretty well tells you where the center of the Party is.  That, in turn, gives you a good clue about what the Party's Senate Majority Leader is going to do.

Thank you, Marco Rubio.

The New Data on Eyewitness Testimony

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The current issue of the Monitor has a short article on some new data regarding eyewitness testimony.  For many years, various psychological experts have insisted that sequential lineups are vastly superior to simultaneous lineups.  Now, perhaps, the reverse is true:

By some estimates, around a third of law enforcement agencies in the United States now use the sequential format, says John Wixted, PhD, a psychologist at the University of California, San Diego. But, he says, that switch might have been a mistake.

Wixted is one of several scientists, along with Clark and Scott Gronlund, PhD, a psychologist at the University of Oklahoma, who have championed a statistical method called receiver operating characteristic (ROC) analysis, a method widely used in other fields to measure the accuracy of diagnostic systems.

Using that analysis, sequential lineups don't appear to be beneficial -- and might lead to slightly more misidentifications than simultaneous lineups, Gronlund and Wixted have reported (Current Directions in Psychological Science, 2014). The problem, they say, is that previous analytical methods confounded accuracy with a witness's willingness to choose a suspect. In other words, sequential lineups seem to make people less likely to make a choice at all. But when they do pick a suspect, they might be at greater risk of making the wrong choice. "It turns out sequential lineups are inferior," says Wixted.

And what about eyewitness confidence?

For many years, researchers didn't think an eyewitness's confidence revealed much about his or her accuracy in identifying a suspect, says Wixted. A confident eyewitness could be just as likely to get the ID right -- or wrong -- as a less confident witness. But in the last two decades, numerous analyses have converged on the fact that eyewitness confidence is actually a strong indicator of accuracy.

The Right Kind of Criminal Justice Reform

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Dumbing down punishment for intentional and dangerous behavior that a child would know is wrong does not commend itself as sensible "reform."  It's simply a national loss of nerve.  Since the early 1990's, we have succeeded in scaling back crime in a way matched by few if any domestic programs.  Legal academia and pro-criminal types to the contrary, we should preserve, not dilute, the things that have worked to make us massively safer than we used to be:  More prison, more police, and more aggressive policing.  

In other words, we should take "yes" for an answer.  If thieves, strong-arms and drug pushers want to stay unincarcerated, fine. They can get a normal job like the rest of us.  They might even find that work, unlike smack, won't kill you.

But there is an important sort of criminal justice reform we should adopt.  No one should go to prison, or be threatened with prison, for behavior a normal person would not understand to be wrong, much less illegal.

My friend John Malcolm of Heritage, and former debate partner Judge Michael Mukasey, make the case here.


A Risible Prosecution Gets Tossed

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Prosecutors must and do have wide discretion in deciding what charges to bring and against whom.  Most of the bellyaching against them is just PR work done by the defense bar.  Better to paint the prosecutor as Satan than come to terms with the fact that your client is a hood.

Occasionally, however, criminal defense lawyers are the heroes they claim to be, and prosecutors need to be stepped back by the judicial branch.  Thus I was happy to see the prosecution reproached by the highest criminal court in Texas for perhaps the most blatantly political, and absurd, prosecution I have ever seen:  A bunch of leftist prosecutors indicted then-Gov. Rick Perry for "threatening" to use his constitutional power to veto funding legislation.  Good grief.

The Duke rape hoax indictment, together with this case, show that the deference due prosecutors, while broad, cannot be unlimited.

The story is here.
A:  We find out soon enough that crime is the problem.

Buried as the penultimate paragraph in this story is a telling line about the shooter, Ruben Cervantes: 

A search of public records reveals Cervantes has a long criminal history and was out on AB 109 when that shooting happened.
Oh, OK, and what is AB 109?  Most people wouldn't know.
It's the California program quietly and indirectly to shuffle criminals back onto the street without ever saying up front what it's doing.
A: Because Gov. Sandoval, though like David Souter nominally a Republican, is a liberal, a buddy of Harry Reid, and a guy who's so political he resigned a federal judgeship after serving less than four years in order to run for governor (giving Obama the seat to fill).

I thought this paragraph from a Politico article quite revealing:

But even compared to Kasich, Sandoval's record wouldn't be easy [for Republicans] to embrace if you're running for president. The tax increases Sandoval signed have since funded a landmark overhaul in public education--likely to become his signature achievement and a bold gamble meant to turn around what is frequently ranked the worst state education system in the country. Yet education is simply the most recent of a long list of Sandoval's conservative heresies: The abortion rights governor has embraced Obamacare; lauded immigration reform and DREAMers; fiercely championed renewable energy; and taken lesser known actions on police body cameras, driver's licenses for undocumented aliens and multiple moves to squelch Republican-led tort reform.

The idea that a Republican Senate would go in the tank for Mr. Sandoval is a Scalia anti-matter pipe dream (which of course is why the press is pumping it).

Once again:  It's not about the particular nominee.  It's about whether the electorate in a little over eight months should have a say in the direction of the Supreme Court for the next generation.  

Only Eight Justices? So What

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Josh Blackman and Ilya Shapiro have this op-ed with the above title in the WSJ.  They recount the history* of Supreme Court vacancies and note that the Court has managed with short-handedness before.  A few cases are affirmed 4-4 without setting a precedent and a few are deferred for decision later, but there is no large-scale disruption.

One of the cases which may well be affected in the present term is Utah v. Strieff.  This is a Fourth Amendment case that could be decided on narrow grounds by applying existing "attenuation" case law to the facts of the case, or it could be a vehicle for the Court to take a bolder step to take another sizable chunk out of judicially fabricated Fourth Amendment exclusionary rule.  Orin Kerr had this preview on SCOTUSblog on February 3rd, before Justice Scalia's death.  CJLF's brief urged the bold approach, taking an originalist viewpoint that would have been right up Justice Scalia's alley. 

Alas, the argument on Monday lacked Justice Scalia's unique contribution.  The six Justices who spoke seemed divided 3-3.  Justice Thomas was characteristically silent, and Justice Breyer was uncharacteristically silent.  What to make of the latter?  We will have to wait and see.

News Scan

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Nearly All Unaccompanied Minors Stay in the US:  Of the 127,000 unaccompanied minors from Central America who have arrived at the border in the last two-and-a-half years, only 4,680, or a little over 3%, have been returned to their countries, Sen. Jeff Sessions said on Tuesday.  Joel Gehrke of the Washington Examiner reports that Sessions, during a Senate Judiciary Hearing, stated that he finds it hard to believe that every young person that arrives from Central America is entitled to asylum or entry into the U.S.  He and other immigration officials argue that the border crisis "could be mitigated" if there are consequences to illegal immigration activity.  They say that the current federal policy of placing unaccompanied minors into the legal system to have their refugee status adjudicated, rather than returning them to their homes, is "attracting" minors to make the journey to the U.S.  Leading members of the Judiciary Committee expect the flow of illegal immigrant children to rise in record numbers in 2016.

CA Man Released on AB 109 Sentenced for Attempted Murder:
  A Bakersfield, Calif., man with a long criminal history was sentenced to 63 years to life in prison on Friday for the 2013 shooting of a pregnant woman while he was out on AB 109.  Mimi Elkalla of Bakersfield Now reports that Ruben Cervantes shot the victim because he did not want her to keep the baby she was pregnant with.  The woman and baby both survived, although the woman is now permanently paralyzed and still uses a feeding tube.

Slashing Attacks in NYC Spike Dramatically:  A dramatic spike in random slashing attacks in New York City has residents and tourists frightened and experts confounded.  Fox News reports that from the start of the year through Sunday, 567 slashing incidents have been recorded -- a 20% increase over the same period in 2015 -- and average about 10 attacks per day.  Twelve people have been killed, while most are left with facial injuries, and many are targeted on the city's subway.  Police and criminologists have yet to identify a pattern for the slashing attacks, but believe that it could simply be the result of a copycat effect, since rises in these types of attacks have not occurred in other metropolitan areas in the U.S. 

So Much for That

The National Journal has a story today with this headline:  "Senate Judiciary Committee Republicans Close Ranks on Scalia Seat."

The Senate Judiciary Committee's Republican members have closed ranks against holding hearings or a vote on any nominee President Barack Obama puts forward for Justice Antonin Scalia's seat until after the November election. Emerging from a committee meeting on Tuesday, GOP members told reporters the "consensus view" was to take no action at all on Obama's upcoming pick. They formalized their position in a letter to Majority Leader Mitch McConnell, R-Kentucky, signed by every Republican on the committee.

This is not that hard to understand.  Even if Obama names a so-called moderate, it will tilt the Court to the left.  With Scalia, it was a 4-1-4 Court.  With a "moderate" replacing Scalia, it becomes a 4-2-3 Court.  The liberals only have to pick off one; the conservatives would have to get both.  Any way you slice it, that is a tilt to the left.

And that assumes  the moderate would actually be a moderate  --  an assumption Republicans would be foolish to indulge. Far more likely is that Obama comes up with a liberal in disguise, or some supposed "centrist" who magically "evolves" on the Court. "Fool me once...," as they say.

Stats Matter

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The Ferguson effect is undoubtedly being downplayed by the left.  Heather Mac Donald has this piece in the City Journal addressing the way researchers have tried to obscure its existence.  The subject of the piece is a recent paper published in the Journal of Criminal Justice and authored by four University of Colorado Boulder researchers and sociologist David Pyrooz, in which they "created a complex econometric model that analyzed monthly rates of change in crime rates in 81 U.S. cities with populations of 200,000 or more."  Some of the their findings:

The researchers found that in the 12 months before Michael Brown was shot in Ferguson, Missouri--the event that catalyzed the Black Lives Matter movement--major felony crime, averaged across all 81 cities, was going down. In the 12 months after Brown was shot, that aggregate drop in crime slowed down considerably. But that deceleration of the crime drop was not large enough to be deemed statistically significant, say the criminologists. Therefore, they conclude, "there is no systematic evidence of a Ferguson Effect on aggregate crime rates throughout the large U.S. cities . . . in this study."

Mac Donald clarifies:

[T]he existence of a Ferguson effect does not depend on its operating uniformly across the country in cities with very different demographics. When the researchers disaggregated crime trends by city, they found that the variance among those individual city trends had tripled after Ferguson. That is, before the Brown shooting, individual cities' crime rates tended to move downward together; after Ferguson, their crime rates were all over the map. Some cities had sharp increases in aggregate crime, while others continued their downward trajectory. The variance in homicide trends was even greater--nearly six times as large after Ferguson. And what cities had the largest post-Ferguson homicide surges? Precisely those that the Ferguson effect would predict: cities with high black populations, low white populations, and high preexisting rates of violent crime.

News Scan

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Chicago Homicides Keep Breaking Records:  Thus far in 2016, homicides and shootings in Chicago have doubled and more than doubled, respectively, over the same period last year.  Alexandra Chachkevitch and Megan Crepeau of the Chicago Tribune report that over the weekend, four people were killed, with two more killed Monday morning, and a total of 32 people were shot.  The youngest victim was a three-year-old boy who was shot in the leg by a stray bullet fired in a gang fight, but fortunately he survived.  Since the first of the year, the city has recorded 95 homicides, compared to 47 last year, and 420 shooting incidents, compared to 193.

Supervised Injection Facility Proposed:  The mayor of an upstate New York city has proposed a plan to open up a supervised injection facility that would permit addicts to shoot up heroin and other opioids on government property under the supervision of medical professionals.  Cory Derespina of Fox News reports that Ithaca Mayor Svante Myrick believes the plan will keep addicts safe and allow them to be directed to addiction services, though opponents find the proposal "tantamount to encouraging drug use" and note that there are bound to be several legal obstacles ahead of obtaining approval.  Although drugs would not be sold at the facility, they would be openly carried and used there with staff assisting in use of them, putting them "in the crosshairs of the federal government" and opening themselves up to liability in the event of an overdose or injury.  There is only one supervised injection facility operating in North America, in Vancouver, Canada.

Man Released by Prop. 47 Indicted for Attempted Murder:  A man released under California's Proposition 47, which reduced some felonies to misdemeanors, was indicted Thursday on felony charges for shooting at police officers during a vehicle chase in November.  William Bigelow of Breitbart reports that 28-year-old Jimmy Hoang Truong received two felony drug convictions in 2012 and 2013, resulting in a 16-month jail sentence in Sept. 2013.  However, in Dec. 2014, his felonies were termed misdemeanors under Prop. 47 and he was released.  Four months later, in April 2015, he was arrested for carrying a switchblade and for possessing a controlled substance in separate incidents, though both actions only triggered misdemeanors charges and he faced no jail time.  Truong, a low-level offender under California law, could receive a life sentence for the November 2015 attack, which includes three felony counts of attempted murder on a peace officer. 

A Bit of Friendly Advice

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In Article II, section 2, the Constitution of the United States provides that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the Supreme Court ...."  The Advice part has not been followed much by either branch throughout our history.  Let's give it another shot.  I recommend that the Senate pass the following resolution:

Pursuant to Article II, section 2 of the Constitution, the Senate of the United States hereby advises the President to nominate as the successor to the late Justice Antonin Scalia a qualified person with a demonstrated record of support for and commitment to the separation of powers established by the Constitution, particularly with regard to the power to change the Constitution as expressed by Justice Hugo Black in his concurring opinion in McGautha v. California.  "Although some people have urged that this Court should amend the Constitution by interpretation to keep it abreast of modern ideas, I have never believed that lifetime judges in our system have any such legislative power."
If the President would take that advice, I expect that Republican opposition to his filling the seat would evaporate.

The people saying that no nominee should be considered are likely relying on the premise that there is no possibility whatever that this President would nominate such a person, and they are probably right.

The Myth of Mass Incarceration

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Barry Latzer, emeritus professor of criminal justice at the City University of New York, has an op-ed with the above title in the WSJ.  The full article is well worth reading for anyone who cares about this issue.  Here is the first paragraph:

It has become a boogeyman in public discourse: "mass incarceration." Both left and right, from Hillary Clinton to Rand Paul, agree that it must be ended. But a close examination of the data shows that U.S. imprisonment has been driven largely by violent crime--and thus significantly reducing incarceration may be impossible.
One small disagreement.  I wouldn't say it is impossible.  We can significantly reduce incarceration if we are willing to pay for that reduction in the blood of innocent people.  Too many of our leaders seem to be willing to do exactly that, especially in California.
A:  He was a friend of the Constitution, which, as former Solicitor General Paul Clement writes, sometimes meant that defendants got his vote on key issues, including sentencing, search and seizure, and confrontation.  Paul's USA Today op-ed is here.

On other issues, defendants didn't do so well.  Justice Scalia's dissent in Dickerson and his concurrences in Glossip and Kansas v. Marsh are three superb examples. After reading them, there is simply nothing left of the views he takes on.

It is noteworthy how explicit pro-criminal groups and advocates are in seeking a results-oriented replacement for the Justice. They don't even pretend to want outcomes faithful to law.  They want outcomes favorable to defendants, law or no law.  Then they lecture the rest of us on how high-minded they are.
The NYT has this interesting bit of video from CSPAN featuring then-Senator Joseph Biden on the floor of the Senate discussing election-year vacancies in the U.S. Supreme Court.

Where you stand depends on where you sit, the saying goes, and of course it applies to both parties.

News Scan

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Nearly 90,000 Dangerous Illegal Immigrants Go Free:  Under Obama administration policies, almost 90,000 illegal immigrants deemed "criminal threats" were released from custody last fiscal year instead of facing deportation, according to U.S. Immigration and Customs Enforcement (ICE) data.  Caroline May of Breitbart reports that ICE reportedly encountered 152,393 criminal aliens in FY 2015 but only charged 64,116 with immigration violations, while another 88,000 were not placed in deportation proceedings.  Over 347,000 convicted illegal immigrants were at large in the U.S. as of March 2015, and as of Sept. 2015, 918,369 with final deportation orders remained in the country.

Border Patrol Bases have Broken Cameras, Open Gate:  A federal report found that multiple U.S. Customs and Border Protection (CBP) bases along the U.S.-Mexico border have inoperable security cameras and the security gate is being left open on at least one of the bases, increasing the risk of a security breach.  Kellan Howell of the Washington Times reports that regional agency officials asked the CBP's Facilities Management and Engineering division back in Jan. 2013 to repair the broken security cameras and requested an upgrade from a manual gate to an electronic one, neither of which has been fulfilled.  The CBP bases are located in dangerous areas along the southern border that see high levels of illegal border cross activity involving aliens and narcotics.

MI Gunman Picked Up Uber Fares Between Shootings:  Several witnesses have come forward describing car trips with the Uber driver accused of randomly gunning down six people and critically wounded two on Saturday night in Kalamazoo, Mich., their testimony suggesting that the gunman was picking up fares in between shootings.  Fox News reports that at around 4:30 p.m., a little over an hour before the shooting spree began, Jason Dalton picked up a man and drove so erratically that the man ran from the vehicle once it came to a stop and called to report Dalton to both the police and Uber.  Dalton gave another man a ride around 8 p.m., just before he fatally gunned down a father and son at a car dealership and four women outside of a restaurant.  Around midnight, four people hailed an Uber after word of the shootings spread and were picked up by Dalton, who they say "seemed to be aware of the news about an active shooter."  Dalton was arrested without incident not long after dropping the group of four off at their hotel.  He is charged with six counts of murder and two counts of attempted murder.

Death Penalty Upheld for CA Murderer:  The California Supreme Court unanimously upheld the death sentence last Thursday for a condemned San Jose man who carried out three separate murders in 1986 and 1987.  Howard Mintz of the San Jose Mercury News reports that James Francis O'Malley, a former member of the Freedom Riders bikers' club, was sentenced to die in 1991 for three slayings that were so gruesome, the jury was later given group counseling to cope with the trial evidence they saw.  Though his appellate arguments, including prosecutor misconduct and alleged racial bias, were rejected, he still has further appeals in the state Supreme Court and federal courts and is still many years away from receiving a potential execution date.

What do you get in Germany for luring a pregnant woman into the woods and burning her alive?

14 years.

The Importance of Crew Coordination

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Completely off-topic, but too funny not to share.

C&C Reloaded

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The blog is back up following an outage caused by technical difficulties at our host.  Comments submitted Friday afternoon or evening may have been lost.  Our apologies for any inconvenience.

News Scan

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Nearly 5% of TX Prison Population are Illegals:  A report released by the Texas Department of Criminal Justice (TDCJ) reveals that illegal immigrants represent 4.6% of the state prison population, with standing requests that they be turned over the U.S. Immigration and Customs Enforcement (ICE) once their sentences are served.  Nicole Cobler of the Texas Tribune reports that as of December 2015, the TDCJ recorded 9,158 Texas prisoners as being under ICE detainers, 6,698 of whom were in the U.S. illegally.  The most common crime for inmates with ICE detainers is sexual assault against a child, with 69% of those offenders in the country illegally, and the second most common is homicide.  Additionally, there are 12 illegal immigrants on death row.

Execution Date Set for OH Murderer:  Despite Ohio's continued struggle to obtain the proper lethal injection drugs, the state Supreme Court, in a 5-2 decision Friday, set an execution date for a man who murdered a disabled woman in 2004.  Jim Provance of the Toledo Blade reports that James P. Frazier is set to be executed on Oct. 17, 2019, joining 24 other Ohio murderers in line for execution, the first of which is set to be carried out in Jan. 2017 once Gov. John Kasich's current death penalty moratorium expires.  Ohio's last execution was of Dennis McGuire in Jan. 2014, who reportedly struggled for 26 minutes after being administered a drug combo that was later abandoned.  The state has attempted to revert to pentobarbital or sodium thiopental as single drugs, but manufacturers have refused to make them available for executions.  Frazier is on death row for the murder of Mary Stevenson, a woman who had cerebral palsy when she was strangled and had her throat slit during a robbery.

Teen Runs Over FL Deputy:  A 15-year-old boy deliberately drove into a Florida deputy on Friday as she approached the vehicle he was in to take him into custody on an outstanding warrant.  Mike Schneider of the AP reports that Orange County Sheriff's Sgt. Mary Pearce, who has been with the agency for over two decades, suffered serious but non-life threatening injuries to her head, back, hand and foot after the teen ran into her with his vehicle, throwing her onto the hood and then to the pavement before speeding off.  The teen, who has a previous arrest for aggravated assault on a law enforcement officer, now faces an attempted murder charge on a law enforcement officer.  He is still at large.

Krauthammer: Win One for Nino

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The esteemed Charles Krauthammer nails it in this column in the WaPo.
The Florida House of Representative has passed the Hurst fix bill, HB 7101, by a vote of 93-20.  To fix the immediate problem, the bill would require the jury in a capital case to find at least one aggravating circumstance unanimously for the case to be death-eligible.  The bill goes on to require at least a 10-2 vote for the defendant to actually be sentenced to death.

The Senate bill is a single-juror veto bill, misrepresented as a jury unanimity bill.  Press reports indicate that the 10-2 vote, up from 9-3 in the earlier House bill and up from simple majority under current law, is an agreed-upon compromise between the houses.  Steve Bousquet had this story in the Tampa Bay Times yesterday.

See also my prior post.

Politics and Filling the SCOTUS Vacancy

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Will the American people turn decisively against the Republican Party if the Republican-majority Senate postpones filling the Supreme Court vacancy until next year?  Very doubtful.  Two polls on the subject, NBC/WSJ and CBS show the same thing.  Independents and total voters are split down the middle on the question.

Among those who identify with a party, the split is predictably partisan.

Is Eight Enough?

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Mark Sherman has this article for AP. 

Is eight enough?

The Supreme Court has managed to function effectively at less than its full nine-member strength for two extended periods in the past 50 years. The question now is whether the death of Justice Antonin Scalia in the middle of the court term and a polarizing presidential campaign will make it harder for the justices to get their work done.
One paragraph in the article needs correction, though.

The most notable of the deferred cases may have been challenges to the death penalty, according to Bob Woodward and Scott Armstrong's book "The Brethren." Harry Blackmun joined the court in May 1970, after the Democratic-controlled Senate rejected President Richard Nixon's first two choices. It was another two years, after the retirements of two more justices, before the court took up the issue and struck down every state death penalty statute.
It was, in fact, two weeks, not two years, "before the court took up the issue."

News Scan

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NJ Town Advising Illegals How to Skirt ICE:  Following the arrest of two illegal immigrants in a New Jersey town on Thursday, one of whom had a drunken driving conviction, town officials began publishing handouts in English and Spanish providing tips to help illegal immigrants skirt U.S. Immigration and Customs Enforcement (ICE) raids.  Cory Derespina of Fox News reports that in the handouts published by Princeton officials, who say the goal of them is to "better inform illegal immigrants of their rights" and protect them from "unfortunate" arrests, encourage illegals to "remain silent" and "have a plan" if they are deportable.  Alvin Phillips, an ICE spokesman, said the town's efforts won't impede the agency's duties, adding that ICE arrests "are in keeping with the laws and homeland security priorities," and not unfortunate.

U.S. Restricts Visa-Free Travel from 3 More Countries:  Under a new regulatory interpretation of a January law implemented in the wake of last year's terrorist attacks in Paris, travelers who have spent time in Libya, Somalia and Yemen over the last five years are barred from traveling to the U.S. without a visa.  Travelers from Iran, Iraq, Sudan and Syria are already under this restriction.  Susan Crabtree of the Washington Examiner reports that the Department of Homeland Security (DHS) issued a statement Thursday regarding the new restrictions on the U.S Visa Waiver Program, which permits travelers from 38 (mostly European) countries to travel to the U.S. for up to 90 days without having to obtain a visa.  DHS stated that in continuing the "focus on the threat of foreign fighters," the restrictions apply specifically to individuals who have traveled to one of the seven "countries of concern" since March 1, 2011, and that travelers from those countries may still apply for a visa using the regular immigration process.

GA Murderer Executed:  A former Navy crewman was executed Wednesday evening in Georgia for the April 1992 murder of a fellow sailor that he carried out with an accomplice.  The AP reports that 45-year-old Travis Hittson's request for clemency was denied by the State Board of Pardons and Paroles on Tuesday, and a Butts County judge, the state Supreme Court and the U.S. Supreme Court also declined to halt the execution.  Hittson was convicted of murdering Conway Utterbeck with shipmate Edward Vollmer, who claimed that Utterbeck was planning to kill them both and they had to "get him" first.  Utterbeck was beaten with an aluminum baseball bat and shot with a sawed-off shotgun before his body was dismembered and discarded in areas of Georgia and Florida.  Vollmer reached a plea deal in the case and is currently serving a life sentence.  Hittson was the second person executed in Georgia this year.

ThinkProgress and Truth Optional

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This post by Carimah Townes at thinkprogress.org demonstrates once again that truth is optional with our pro-criminal crusader friends.

The thrust of the post is that Justice Scalia's last judicial act before his death was to deny a stay of execution to Texas double murderer Gustavo Garcia and allow him to be executed.  "Scalia denied Garcia's final appeal for a stay of execution last Wednesday," the post says.

Not that there would be anything wrong with that if it were true, but it's not.  The post links to the order via a "tweet," and the order unambiguously says that Justice Scalia did not act on the stay himself but instead referred the application for stay to the full Court.  This is standard procedure in SCOTUS capital cases. The stay was denied by the Court, not by Justice Scalia individually, with no dissents noted.

News Scan

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Death Penalty Sought in Modesto Slayings:  The Stanislaus County District Attorney's Office announced Tuesday that it will seek the death penalty against a California man accused of killing five people in Modesto last summer. Rosalio Adumada of the Modesto Bee reports that last July, the defendant, Martin Martinez, killed his girlfriend, her two young daughters, one of whom he fathered, as well as his mother and niece.  In a separate case, Martinez is being ordered to stand trial for charges of child abuse and murder in the 2014 death of the girlfriend's two-year-old son, though the trial has not yet been scheduled.  Martinez has entered a not-guilty plea for the five murders, denying the enhancements and special-circumstances allegations, including premeditation and deliberation, multiple homicides and lying in wait for the victims.

CA Bill Targets Criminals in Sanctuary Cities:  A new California bill would target criminals in sanctuary cities, written in an effort to prevent tragedies like the murder of Kate Steinle last July, who was shot on a San Francisco Pier by a career criminal and illegal immigrant from Mexico.  Tim Lantz of KFBK reports that the bill, written by Republican Senators Sharon Runner and Bob Huff, would make it illegal for local police and sheriff's departments to take custody of a convicted felon who is scheduled for deportation unless those officials are assured that the felon will be prosecuted.  Since Steinle's death, allegedly by Juan Francisco Lopez-Sanchez, an illegal immigrant with a long history of deportations and arrests, sanctuary cities have come under heavy criticism for refusing to cooperate with the deportation of illegal immigrants.  Because the controlling majority of both houses of the Legislature and the Governor actually support sanctuary cities, adoption of the bill is highly unlikely.

Veteran Attacked, Robbed in Possible Hate Crime:  Authorities in Washington, D.C., are working to identify at least four people who attacked and robbed a former Marine on Friday night inside a McDonald's, in what could be a hate crime.  Fox News reports that 30-year-old Christopher Marquez, a decorated Iraq war vet, was eating dinner in the back corner of the restaurant when a group of teens and young men surrounded his booth, asking him if he believes black lives matter.  When Marquez didn't respond to the question, the group called him racist.  Shortly after, as he was leaving the restaurant, he was knocked unconscious by a blow to his head and later discovered his wallet was stolen.  Marquez, who his Hispanic, believes the incident was a hate crime and that the group targeted him because of his skin color.  He expressed frustration that the mainstream media refuses to report on the recent rise in attacks on whites by members of the black community.
I previously noted the Anthony Porter / Alstory Simon story here, here, and here

Now Showtime has a documentary on the case, titled A Murder in the Park.  I haven't seen it and probably won't, as I don't get Showtime.  But my friend Josh Marquis recommends it, and that's more than good enough to note it here.
Reader TarlsQtr noted an important article in the Weekly Standard, but did not get the chance to do so until far down the thread of an earlier post by Kent.  The article is a revealing historical inquiry about the Senate's application of the Advise and Consent Clause, so I wanted to bring it to readers' attention.  I thought the following passage particularly interesting among all the hysteria we're hearing about how the Senate may give, or decline to give, consent to a President's Supreme Court nomination.

[James] Madison would have put the burden on the Senate, to affirmatively act to block a nomination. But the Framers rejected his proposal, and chose instead the "advice and consent" model, placing the burden on the president (and his supporters) to convince the Senate to confirm his nominee.

And history reflects the Framers' choice. Presidents have made 160 nominations for the Supreme Court. The Senate confirmed only 124 of them. And of the 36 failed nominations, the vast majority of them (25) received no up-or-down vote.

To that end, the Senate can structure its own rules to govern the advice-and-consent process. It had constitutional power to establish the filibuster system. It has constitutional power to abolish or reform the filibuster. And it probably should. But the Constitution leaves this choice to the Senate alone--just as it leaves the Senate free to decide whether to consider a president's judicial nomination.

The NYT has this feature on the outcome of nominations to the Supreme Court during election years.  It's actually an example of how easy it is to get the result you want by choices you make in the data.

When discussing American politics, what time-frame do we look at to see what is "usual"?  In most matters, I and a lot of other people routinely look at the period beginning with the end of World War II.  People regularly refer to that as "the postwar era," so regularly that we can generally assume the reader knows which war.  That conflict changed the world so fundamentally that most of what went before has little relevance.

In the postwar era, a grand total of one Supreme Court justice has been confirmed in a presidential election year: Anthony Kennedy.  Two nominees were not confirmed:  Abe Fortas for elevation to Chief Justice and Homer Thornberry, nominated to succeed Fortas upon his confirmation.  Applying the Meat Loaf Criterion, one of three ain't good.

So how does the NYT get the headline "Supreme Court Nominees Considered in Election Years Are Usually Confirmed"?  "Since 1900, the Senate has voted on eight Supreme Court nominees during an election year. Six were confirmed."  Why choose 1900?  No reason is given.

Once and Future Justice?

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WaPo Associate Editorial Page Editor Jo-Ann Armao has an unusual suggestion for Supreme Court nominee.
Black lives did not matter when Wendell Callahan, a violent man and a drug dealer, was released early from federal prison and slit the throats of three African Americans, two little girls and their mother.  But the slogan "Black Lives Matter" dominates much criminal law news.  Whether they actually matter, except when useful to the Left, is a different question.

Still, some people are paying attention. This story tells us how:

A former Marine became the target of an alleged assault in a McDonald's Friday night, as a crowd of youths cornered him and demanded he answer the question, "do you believe black lives matter?" Before knocking him unconscious and robbing him.

Christopher Marquez, a veteran of Iraq and recipient of the Bronze Star for valor, said he was dining at a McDonald's in northwest D.C. when a group of black teenagers came up to him and allegedly began harassing him about the black lives matter movement. Marquez ignored them which prompted calls and shouts that he was a racist.

Marquez left the establishment after eating, but allegedly sustained a sudden blow to the back of his head outside the McDonald's, which knocked him unconscious. When he woke up, his pants were ripped and wallet gone, which contained $400 in cash, three credit cards, his VA medical card, school identification, metro card and driver's license

This is where we are headed.  It is also, if truth be told, where the ideology behind BLM intends for us to be headed.


News Scan

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MS Officer Shot, Charges Filed:  Following the weekend shooting of a Mississippi police officer, charges were filed Monday against the teenage suspect.  Fox News reports that 19-year-old Johnny Robinson Jr. was charged with attempted murder and one count of armed robbery in the shooting of Clarksdale Cpl. Derrick Couch, who remains in the hospital in critical condition with a bullet lodged in his brain.  The shooting occurred Saturday night, about four blocks away from a convenience store that Robinson robbed with another man, though police don't believe the other man was involved in Couch's shooting.  Robinson was also charged with an October robbery of the same store.  Couch, a pastor and father of five, has been a police officer for more than six years.

Trial Begins for CA Serial Killer:  Three decades after a Los Angeles serial killer's first victim was found dead in an alley, and nearly six years after his arrest, the man known as the "Grim Sleeper" is finally going to trial.  KTLA reports that 63-year-old Lonnie David Franklin Jr. faces 10 counts of murder and one count of attempted murder in the deaths of women ranging in age from 15 to 35, who he murdered over a span of 30 years.  Franklin was linked to the killings with physical evidence, including saliva collected from the victims' bodies and ballistic matches.  He has pleaded not guilty.  Prosecutors are seeking the death penalty.

TX Murderer to be Executed:  A condemned Texas murderer, who faced a re-sentencing trial and was involved in an unsuccessful escape attempt during his 24 years on death row, is scheduled to be executed Tuesday night.  Jolie McCullough of the Texas Tribune reports that 43-year-old Gustavo Julian Garcia was sentenced to death in 1992 for the December 1990 fatal shooting of liquor store clerk Craig Turski during a robbery in Plano.  Years after his first sentence was handed down, he was granted a new sentencing trial after then-Texas Attorney General John Cornyn found that the testimony made by a psychologist in Garcia's original sentencing trial was improper, but he was sentenced to death a second time in 2001.  His latest appeal and request for a stay have been denied.  He will be the third inmate executed this year in Texas, and the sixth in the nation.

The Politics of Filling the SCOTUS Vacancy

One might think that, in deciding whom to nominate to the Supreme Court, the President  --  any President  --  would first consider such things as learning in the law, demonstrated devotion to the Constitution, intellectual heft, fair-mindedness, willingness to listen (one of the key and under-rated qualities of judging), modesty, non-partisanship (as, say, between the defense and the prosecution) and breadth of experience.

One might think, yes, but one would be wrong.

I got the wake-up call as to what the libertarian-leaning Left is actually thinking here, where the ever-insightful Prof. Doug Berman discusses three potential women nominees  --  Judge Jane Kelly, Judge Jacqueline Nguyen, and Attorney General Loretta Lynch. It had not previously occurred to me that a person's anatomy, anymore than his skin color, was relevant to a Justice's task of doing what the law requires.   But I am behind the times.

As Doug explains (to a commenter named "Daniel"):

The main point of nominating a woman, Daniel, is political: Dems always want and need women, especially young women, to be motivated to come out and vote for them. This is one big reason why we often hear "war on women" talk around election time. If Obama nominates a woman, every female Dem plays up claims of gender bias if/when the male-dominated GOP Prez candidates and GOP-male-dominated Senate seeks to prevent even a vote. In addition, at least a few of the six female GOP senators are considered relatively moderate and may feel particular disinclination to vote against an impressive female nominee.

Another possible benefit of a female appointment would be to free up a future Prez not to be quite so concerned about gender issues when replacing Justice Ginsburg in coming years. But this seems a much less significant concern than the short-term political one.

Law As Politics By Other Means

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A perfect example of the wrong way to think of the Supreme Court comes to us from President Obama's former White House Counsel.  Kathleen Hennessey and Mark Sherman report for AP:

"The Supreme Court has not reflected where the American people have been on issues," said Gregory Craig, who served as White House counsel early in Obama's first term. "This is the first opportunity in many, many years to bring the court more in line with the American people."
In this way of thinking, the Supreme Court is nothing but a third house of the legislative branch.  It's job is to take the pulse of current public opinion and be "in line" with current views, declaring as a constitutional mandate whatever that current view is.

That is not how it is supposed to work.  Fundamental rules are written into the Constitution when they are agreed by a strong national consensus to be so fundamental as to place them beyond the short-term reach of ordinary legislation.  They can be changed when (and legitimately only when) a strong enough consensus to the contrary has formed to clear the high hurdle for a constitutional amendment under Article V.

What Scalia Meant to the Law

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The New York Post today printed an op-ed that pinpoints as well as I have seen Justice Scalia's most important legacy to the law.

Its key passage is this:

[H]is most...enduring contribution was to re-establish the view that the Constitution is a form of law -- that its meaning, like that of other legal texts, is knowable, that understanding its meaning starts with reading what it says, and that it's the job of judges to read it, figure it out and follow it.

Back when Justice Scalia first joined the high court, law school professors and justices almost uniformly believed no person of even ordinary intelligence could hold such a naïve view. Rather, they proclaimed that the Constitution's meaning was largely indeterminate, that the justices themselves created its meaning.

Justice Scalia changed this dramatically. When one of the nation's most powerful intellects, and one of the greatest writers to ever sit on the Supreme Court, took the view that the Constitution was a law, when he made arguments based on the Constitution's original meaning -- and when he demolished arguments based on other considerations -- the impact was huge.

It changed the entire legal conversation.

The Wages of Early Release Is Death

The beat goes on for sentencing "reform," which, for the umpteenth time, actually means sentencing reduction and early release for hard drug traffickers.  

We saw recently in the Wendell Callahan child murders what early release actually means.  Just to be clear, what it means is this: The powerful --  the legislators, lawyers and judges who make early release possible  --  go to congratulatory dinners at their posh clubs, while the powerless  --  little children who get in the way of the traffickers released early  --  go to the morgue.

Since this is an inconvenient story to the powerful and their friends running the press, it gets deep-sixed.  There has yet to be a single story in the national media about the Wendell Callahan triple murder scandal.  Imagine, if you will, what the press explosion would have been if, when Callahan was slitting throats, he had been a policeman rather than an early-released drug pusher.

It happened again a few days ago in Florida.  According to the Florida Sun Sentinel, the trafficker's name is Lex Eugene. Eugene had been sentenced to prison following convictions for cocaine possession and illegal weapons. He was released Dec. 19, 2015, after serving a little more than five months of a one-year term.

Eugene sped away when he was approached by the police.  He ran down a five year old boy, Jayden Readon.

Replacing Justice Scalia

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Let me admit from the getgo that my title is misleading.  There will be no replacing Justice Scalia.  His intellect was a once-in-a-lifetime thing, as was his command of the written word.

A smaller intellect and an inferior writer will at some point sit in his seat, yes.  A discussion of this has already begun, with a major assist from Kent, here.

Justice Scalia was a friend of this family, so I am not entirely at ease discussing the replacement process at this point. Nonetheless, I'll say a little something.  I'll start with the absurd political pretense the Left has already got going.

A First-Hand Appreciation of Justice Scalia

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CNN broadcast an appreciation of Justice Scalia by the first clerk he selected to go with him to the Supreme Court, my wife, the Hon. Lee Liberman Otis.  The broadcast of the telephone interview is here.

As Lee notes, Scalia did not mince words, with colleagues on the Court or with clerks.  He was a New Yorker through and through.  But he was a warm and gracious man, and unfailingly friendly to me, although I had never worked at the Court or presented an argument there.  His death is a loss to the country and to law itself.

I have started to see debates about whether Scalia was "pro-defendant" or "anti-defendant."  Such debates miss the point of his jurisprudence.  It was not about the litigant; it was, as Lee says, about the law, and getting it right under the law.  That was the lodestar for him.  Indeed, I don't think it's an exaggeration to say it was the only thing that, as a jurist, he cared about.

The Next Justice and the Great Question

Bill noted yesterday the sudden death of Justice Antonin Scalia.  His passing is a great loss to the country and the Constitution.

The Great Question of constitutional law is not hard to state.  Is the Constitution a contract between the people and their government, with the power to change its terms reserved to the people, or is it an empty vessel for five unelected, unaccountable justices to pour their policy preferences into?

Legitimate judicial review is to prevent the legislature from crossing a line that the people wrote into the Constitution.  Illegitimate judicial review is creating lines that the people did not write into the Constitution, striking down laws enacted by the people's representatives or by the people themselves on a pretense that they violate the Constitution but actually just because the judges disagree with the people -- "substitute their own pleasure to the constitutional intentions of the legislature," as Hamilton put it in Federalist No. 78.

There are two primary dangers in appointing Justices to the Supreme Court:  appointing people with views on the wrong side of the Great Question and appointing people who have not thought much about it at all.

Justice Scalia Dead at 79

I was shocked to learn just now that Justice Antonin Scalia died while on a trip to Texas.

I knew him slightly.  My wife clerked for him both on the DC Circuit and on the Supreme Court.

Public life has seldom seen an intellect of his power.  The country is fortunate to have had his years of service.

News Scan

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Family of Slain CA Baby Wonder if Black Lives Matter:  In the wake of the suspected gang-related murder of a one-year-old Compton girl, her great-uncle is calling on the public to face the problems in neighborhoods.  Michelle Moons of Breitbart reports that baby Autumn Johnson died Tuesday after being shot in the head while sitting in her crib, and authorities believe that her father, 24-year-old admitted gang member Darrell Johnson, was the intended target of the shooting. Cornell Patton, baby Autumn's great-uncle, said to the public, "If black lives matter, then let's make it matter."  The Black Lives Matter movement, established in 2013, has been very vocal in their condemnation of police violence against blacks, which it describes as an "epidemic," but have disregarded questions about black-on-black crime.  Police are still searching for the two male black suspects that were seen opening fire at Autumn's East Compton home.

CO Lawmakers Reject Death Penalty Bill:  A bill proposed by Colorado State Sen. Kevin Lundberg to change the state's death penalty was rejected by lawmakers at a Wednesday hearing.  KDVR reports that under current state law, a jury can only impose the death penalty if the decision is unanimous.  Lundgren's bill initially proposed that nine out of 12 jurors be able to deliver a death sentence, though he amended it at the hearing to 11 out of 12 jurors, but it was still rejected by the majority of the legislators.  There are other death penalty bills to be introduced this year, including one that would permit another jury to be brought in if the first cannot agree on imposing a death sentence.

GA Police Major Shot and Killed:  A Georgia police major was shot and killed Thursday while helping other officers serve a no-knock warrant to a suspect that was also shot and remains in critical condition.  Lauren Foreman and John Spink of the Atlanta Journal-Constitution report that Riverdale police Maj. Greg 'Lam' Barney, who joined the Riverdale Police Department in 1990, was fatally shot in the torso by 24-year-old Jerand Ross after Ross ran out of the apartment shooting.  Ross was shot by another officer when he attempted to flee.  Barney was not wearing his bulletproof vest at the time of the incident, which is not uncommon for officers with mostly administrative responsibilities.  The the department says that it will assess what can be done differently in the future.  "His service will never be forgotten," the department said.

Sentencing Reform, Through the Looking Glass

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I saw this article in SL&P about Bernie Sanders' campaign promise:

But, here is a pledge I've made throughout this campaign, and it's really not a very radical pledge.  When we have more people in jail, disproportionately African American and Latino, than China does, a communist authoritarian society four times our size. Here's my promise, at the end of my first term as president we will not have more people in jail than any other country. We will invest in education, and jobs for our kids, not incarceration and more jails.

Bernie's pledge is deconsructed for the nonsense it is, but the deconstruction itself misses two of the most obvious flaws.

First, Bernie is willing to take at face value China's report of its prison population.  Talk about credulous!  (This is from someone who wants to be President of the United States). This is like being willing to take at face value Iran's report of it's plutonium stockpile.

Second and far more important, Bernie holds forth on the prison population without a single word about why criminals are in jail to begin with.  Pledging to reduce the prison population while omitting any mention of the prevalence of crime  is like pledging to reduce the hospital population while omitting any mention of the prevalence of disease. So far as appears in Bernie's statement, there is no such thing as the cunning or violent criminal; there is only the woe-begotten inmate, deprived of his freedom for no reason worth mentioning, much less exploring.

News Scan

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Two MD Officers Shot and Killed:  Two Maryland sheriff's deputies were fatally shot Wednesday afternoon during an incident that began in a crowded restaurant, and the shooter was also killed.  Justin Jouvenal and Dana Hedgpeth of the Washington Post report that Deputy Patrick Dailey, a 30-year veteran of the Harford County Sheriff's Department, and Senior Deputy Mark Logsdon, with the office for 16 years, were shot and killed by David Brian Evans, who was being sought by Dailey for an arrest warrant from Florida for assaulting a police officer there.  Dailey approached Evans in the crowded restaurant and was shot "almost immediately" in the head.  Evans fled to the parking lot and got into his vehicle, where he fired shots at Logsdon, among the first on the scene, striking him.  Logsdon managed to return at least three rounds while other deputies arriving on the scene also opened fire, killing Evans.  Last year, three Maryland officers were lost in the line of duty; nationwide, 124 officers died in the line of duty, 42 of whom were shot.  The gunman's son alleges his father suffered emotional problems.

ND Officer Not Expected to Survive After Being Shot:  A Fargo police officer sustained a "non-survivable" wound Wednesday evening during an 11-hour standoff with a domestic violence suspect, who also died.  Fox News reports that the incident began around 7 p.m. when a 911 call was placed by an individual who said his father had possibly fired a gun at his mother, and 33-year-old Officer Jason Moszer responded to the scene.  The suspect, who had barricaded himself inside the home, fired multiple shots out of the house, hitting Moszer.  The suspect was discovered dead early Thursday in his home from a gunshot wound, though police have not yet determined if it was self-inflicted or from officers engaging him.  No one else is believed to have been injured.

U.S. Cartel Violence Victims Suing Banks:  U.S. victims and family members of cartel violence have filed a lawsuit against banking leader HSBC and its multiple subsidiaries, claiming that these financial institutions "have provided material support to Mexican drug cartels by allowing them to launder billions of dollars leading to their explosive growth."  Ildefonso Ortiz of Breitbart reports that the lawsuit states that in the process of money laundering, which involves concealing drug money to make it appear as though it came from a legitimate business, the HSBC knowingly provided material support to drug cartels while making a profit.  Since the 1980s and 1990s, when drug trafficking routes shifted toward Mexico, the Mexican cartels have steadily developed into multinational criminal organizations and "mobilized into sophisticated international networks."

Buy This House, But Don't Ask About the Price

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Would you buy a house without knowing the price?  

That's what sentencing reduction advocates want us to do:  They want us to buy their legislation without ever giving us specifics about what the costs are going to be in additional crime.  

The idea that we won't have more crime when we put more criminals back on the street is preposterous on its face, not to mention contrary to academics' much-ballyhooed "data."  The nation's incarceration rate has been shrinking for six straight years after an explosive rise over the 25 before then, and the chickens are starting to come home to roost.  As fewer criminals find themselves in prison, the prior strong pace of crime reduction has slackened, and last year, the most serious crime  --  murder  --  increased by a shocking 17%.  Although sentencing reform advocates think this is no great cause for concern  --  "chill" is literally what they told us at the Huffington Post  --  normal people are concerned.  

With crime already showing signs of being on a comeback, and with recidivism rates sky-high (whether you look at BJS or Sentencing Commission studies), how much more crime are we going to get if we accelerate the trend toward releasing criminals earlier? 

That is the key question  --  what's the price?  --  and the one reform advocates refuse to answer.  

P.S.  Here's the other key question:  When the powerful  --  members of Congress, judges and lawyers  --  make their inevitable mistakes and release dangerous criminals early, who will pay the price?  Those who erred, or the marginalized future victims who had no say and no chance?

News Scan

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CA High Court Upholds Death Sentence:  The California Supreme Court upheld the death penalty of a Stockton quadruple murderer. Bob Egelko of the SF Chronicle reports that Louis James People, 53, killed four people over the course of two months in 1997 using a stolen gun in each of the shootings.  This past Thursday, the High Court rejected People's arguments that at the time of the murders, his reasoning and self-control were impaired due to methamphetamine use.  The justices also rejected his claim that his trial was unfair and his confession was unlawfully coerced during an interrogation session. Justice Goodwin Liu determined that during the interrogation, People's was given numerous breaks, food and drink, and was repeatedly offered the chance to speak with a lawyer, which he declined.  The ruling was 7-0.

TX Cop-Killer Found Incompetent to Stand Trial:  The man accused of shooting a Houston sheriff's deputy to death last year has been found mentally unstable to stand trial for capital murder. KPRC 2 reports that a psychological evaluation was completed Monday, in which state experts agreed that 31-year-old Shannon Miles was mentally unstable when he shot Deputy Darren Goforth 15 times while he was filling his patrol car with gas.  Miles will remain at the Harris County jail until a vacant space is available at the state mental hospital, which could take months, though once he receives treatment and has his competency restored, his trial can move forward.  Miles was indicted by a grand jury in November for killing Goforth, allegedly in retaliation of law enforcement officers.  He faces a possible death sentence.

Baby Girl Fatally Shot in her CribA one-year-old Compton girl was fatally shot Tuesday night while lying in her crib, and authorities suspect the bullets were likely meant for her father.  Nicole Santa Cruz, Cindy Chang and Matt Hamilton of the L.A. Times report that law enforcement are searching for two suspects her were seen driving up to baby Autumn Johnson's residence and firing into a converted garage where she lived with her parents.  Authorities are unsure of an ongoing gang rivalry in the notoriously violent area of Los Angeles County, but believe Autumn's 24-year-old father, an admitted member of a local street gang, was the intended target of the shooting.  Compton residents are shocked to hear of the girl's death, but admit that it's neither surprising nor uncommon for young children to get caught in the cross hairs of gang violence.  In the last six months, the city has seen 475 violent crimes, eight of which were homicides.

Sen. Tom Cotton Speaks Truth to Power

Sen. Tom Cotton spoke on the Senate floor today to put the lie to the mass sentencing reduction bill supported by the Inside-the-Beltway Establishment. The bill's backers include President Obama, Speaker Paul Ryan, Deputy Senate Majority Leader John Cornyn, Deputy Minority Leader Dick Durbin, Attorney General Loretta Lynch, and prominent Republicans and Democrats such as Mike Lee and Corey Booker. If that is not The Establishment, there is no such thing as The Establishment.

Sen. Cotton doesn't care. He is ready to spill the beans on sentencing "reform" no matter how powerful its supporters. He did so in his Senate speech today:

There is much debate about the wisdom of this bill. That is, like most bills we discuss in this chamber, a judgment call. But there cannot be debate over the facts of this bill. We have to be very clear on what this bill, by its own text, is designed to do.

Proponents of the bill often invoke four phrases to describe the felons to be released under the terms of the bill: "first-time," "non-violent," "low-level," "drug possession" offenders. Yet none of those four descriptors is accurate.

Or, to be less polite than Sen. Cotton, the advocacy for this bill has been intentionally and repeatedly deceptive.

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CA Man Gets Death Penalty:  A California man was sentenced to death Friday for the 2012 shooting deaths of four people outside a Northridge boarding home.  Debbie L. Sklar of My News LA reports that 34-year-old Ka Pasasouk was convicted in November on four counts of first-degree murder for the Dec. 2, 2012 murders of four people while "fueled by drugs and alcohol." He was allegedly seeking revenge on one of the victims, whom he'd had an altercation with months earlier, and killed the other three victims in an effort to eliminate witnesses.  Pasasouk was also convicted on one count each of attempted murder, being a felon in possession of a firearm and assault with a semiautomatic firearm, for confronting other people nearby prior to the shooting.  Almost a year before the incident, in Jan. 2012, Pasasouk was released from prison under Realignment.

ISIS Attacks Expected to Worsen:  The Pentagon's head of military intelligence told a security conference Monday that he expects the Islamic State (ISIS) terror group to pick up "the pace and lethality" of attacks in 2016 in order to expand its operations.  Rudy Takala of the Washington Examiner reports that Marine Corps Lt. Gen. Vincent Stewart said that he expects ISIS to expand operations in Egypt in particular, but also parts of Africa and Asia as well, including Mali, Tunisia, Somalia, Bangladesh and Indonesia.  According to Stewart, ISIS attacks will worsen "because it seeks to unleash violent actions and to provoke a harsh reactions from the West, thereby feeding its distorted narrative."

Ferguson to Vote on Justice Dept's Agreement: 
City council members in Ferguson, Mo., are set to vote Tuesday on an agreement with the Justice Department to overhaul the police and court systems, which has the potential to financially cripple the city.  Andrea Noble of the Washington Times reports that the consent decree follows months of negotiations between city leaders and the Justice Department, which produced a scathing report after the 2014 fatal shooting of 18-year-old Michael Brown, calling out the Ferguson Police Department for exhibiting racial inequalities.  The decree includes reforms to the city's police department, such as training Ferguson officers to "recognize unconscious racial stereotyping," requiring more stringent accounting of police use-of-force incidents and limiting court fines and jail time for minor offenses.  The agreement is estimated to cost city officials $3.7 million in the first year; the city operated with a budget of $14.5 million and a budget deficit of $2.8 million this fiscal year.  The city could face legal actions if it refuses to comply.

The Black Lives That Didn't Matter

The National Association of Assistant US Attorneys has produced a short video (a little over a minute) about the murders of three African Americans, a mother and her two daughters, by Wendell Callahan.  Callahan had a violent past, and had been sentenced to federal prison for trafficking in hard drugs (crack cocaine). Nonetheless, he was released early courtesy of Congress's 2010 version of "sentencing reform." But for his early release, his three victims would be alive today.

When one black man, Michael Brown of Ferguson, MO  --  a fellow who was 6'4" and weighed 292 pounds  --  was shot by a policeman in legal self-defense, the story was the subject of hundreds of outraged national headlines.  When the three defenseless black people in Columbus, OH got their throats slit by a man who earned his way to prison, but then was released early as a "low level, low-risk" prospect, not a single component of the national media has written a news story about it.

Lesson of the day:  Black lives matter plenty when they service the liberal criminal justice narrative that Amerika stinks. Otherwise...well, hey, look, chill out.

The video is here.

Assault With a Cold-Blooded Weapon

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Terry Spencer reports for AP:

Florida wildlife officials say that 24-year-old Joshua James threw a 3.5-foot alligator through a fast-food restaurant's drive-thru window in October, according to multiple news outlets. He's charged with assault with a deadly weapon. Bail was set Tuesday at $6,000.

Officials say the incident occurred at a Palm Beach County Wendy's. They say that after an employee handed James his drink, he threw the alligator through the window and drove off. No one was hurt. James was arrested Monday.

James also is charged with illegally possessing an alligator and petty theft.

The Real Force Behind Sentencing Reform

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The main sentencing reform bill, the SRCA, was effectively withdrawn today by its sponsors after it became clear that it had failed to hoodwink enough senators to get enacted.  See my post here.  

But we shouldn't kid ourselves.  They'll be back.  The forces working to reduce sentences are too powerful and too determined to just give up.

Contrary to much of what we hear in the press, the main backers are not libertarian Republicans like Sen. Mike Lee and many people at CATO.  Republicans have given a good deal of political cover to this plainly pro-criminal proposal (tell me again who principally benefits from reduced sentences?), but they are not the prime movers. For reasons I remain unable to fathom  --  since the bill is a political loser in addition to being bad for the country  --  they have allowed themselves to be enlisted in someone else's cause.

And who would that be?  George Soros would be a good guess, as would Al Sharpton and the NACDL.  Good, but we need to look a little higher.

We have heard a good deal about the "growing momentum" of the "bi-partisan consensus" for sentencing reform.  One would think that, with such a supposed consensus, the reform bill (the SRCA) would breeze through Congress.


Here's today's press release from chief co-sponsors Sen. Chuck Grassley and Sen. Dick Durbin:

"Over the course of the last year in putting together this bill, we listened to a diverse set of views and came up with a consensus piece that passed the committee by a 15-5 vote.  Now, as we look to floor consideration, we're again listening to colleagues, including those who have well-documented concerns with certain aspects of the bill.  We're working to find a path forward that addresses some of those concerns while maintaining both the core principles and significance of the bill and the broad bipartisan support that the bill has already garnered.  How those changes will look is still being determined, but we're moving ahead to get a bill ready to be considered on the Senate floor."  

Translation:  The current bill is dead meat.  We have to make its wording more opaque to try to fool more people.

Well, good luck with that.  A fancy dance with wording isn't going to make the mind-numbing surges in heroin and murder go away.  It won't make the ocean of risky early releases through the Sentencing Commission go away.  It won't make the early release/child murders of Wendell Callahan go away. 

The problem is not failure to smooth over unnamed "concerns."  The problem is reality.  
There are three ways to fix Florida's death penalty law -- the good, the bad, and the ugly. 

The good way is to pass a true unanimity law, requiring the jury to be unanimous one way or the other, i.e., the California/Arizona model.  The bad way is to continue with nonunanimous penalty verdicts, okay for now but leaving an issue to attack the law in the future.  The ugly way is to adopt a single-juror veto system, the kind that caused the grotesque miscarriage of justice in the Colorado theater shooting case.

The House Judiciary Committee's Criminal Justice Subcommittee chose the bad way on February 2, recommending PCB CRJS 16-07.  At least they rejected the amendment for the ugly option.

In the Senate, on the other hand, the ugly option was adopted in SPB 7068.

My letter to the Senate committee chairman, recommending the good option, is here.  No one seems to be listening.
Heather Mac Donald is, as usual, here to set the record straight in a commentary featured by the Marshall Project titled Black and Unarmed: Behind the Numbers.  In it, she examines the Washington Post's data on fatal police shootings compiled over the last year, warning that some people are taking the Post's recently completed 2015 database as "evidence that the police are gunning down unarmed blacks out of implicit bias."  This assumption, based on data that is significantly lacking in facts and detail, doesn't tell the whole story.

Such misleading data is, no doubt, fueling the rage of the Black Lives Matter protest movement by omitting the many critical specifics behind the data that would surely silence its self-created pandemonium.  The WaPo's data fails to "convey highly-charged policing situations" and misinforms its readers by failing to recognize that many of the cases "are more complicated and morally ambiguous than a simple 'unarmed' classification would lead the reader to believe."

The facts speak for themselves:  All cops are not racists.  Fatal shooting incidents involving unarmed black men are very, very rarely the result of racial bias.  If one comes away from this piece continuing to maintain that belief, while persisting to ignore the routine civilian violence claiming black lives on a daily basis across the U.S., then they are not advocating for truth, but rather, a false narrative.
The Washington Post's "fact checker" evaluated Sen. Tom Cotton's statement that the SRCA would "release thousands of violent felons."  It's analysis is here.  It concludes:

There are thousands of inmates -- 11,524, to be exact -- who would be eligible for resentencing under the Senate bill. But not all of them are convicted of a violent crime, and it's unclear exactly how many of these inmates would actually get their sentences shortened if the bill became law. There are 3,433 inmates in the two sections that include people who may have been convicted of a violent felony. Even then, those inmates may be there because of a sweeping law that has been found to impose excessive sentences.

Cotton is of the opinion that drug traffickers are still "violent felons," even people who are not technically convicted of a crime of violence. We can't fact-check opinions, but we'll note that "violent felons" generally conjures the image of a murderer, not a drug dealer caught illegally possessing a gun -- or just a bullet.

Cotton's claim minimizes the provisions in the bill that target actual violent offenders while alleviating excessive sentences for low-level drug offenders. The bill is intended to address over-incarceration of low-level, nonviolent offenders. Even if all eligible inmates petition for a reduced sentence, the ultimate decision is with a federal judge. Cotton creates a misleading impression of this complex legislation, and earns Two Pinocchios.

Now let's fact-check the Post.  Three Pinocchios.

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Chicago Shootings Continue to Soar:  Over the weekend, two people were killed and 24 others were wounded in shootings across Chicago, with homicides in the troubled city in the first eight days of February, falling just four short of last February's total.  The Chicago Tribune reports that between Sunday afternoon and Monday morning alone, one man was killed and at least 10 others were wounded in shooting incidents.  The city has seen 16 homicides since the start of the month and 73 since the start of the year, with 330 people shot since Jan. 1, more than double from the same period last year.

NJ Law Prevents Some Retired Cops from CCW Permits:  A New Jersey gun law is preventing some retired police officers from being granted permits to carry concealed weapons.  Fox News reports that since the law doesn't specifically address whether retired public university police officers are permitted to obtain a permit, "there seems to be some discrepancy in whether [state] university police are viewed as working for state agency."  John Kotchkowski and Robert Dunsmuir, two retired University of New Jersey police sergeants, were denied right-to-carry permits, stemming from the 1997 law that was enacted after the murder of a police chief who was killed when he attempted to stop a carjacking.  Kotchkowski says that the denial of a right-to-carry permit makes him feel as if the law is saying that he "wasn't a real cop."  Last month, a judge refused to grant Kotchkowski a permit on appeal, and Dunsmuir's appeal is to be heard in March.

S.F. Hands Illegal Over to ICE, Igniting Furor:  After San Francisco police officers actually complied with federal immigration authorities, handing over an illegal immigrant wanted for deportation, they are being criticized for violating the city's "sanctuary city" policy that bars law enforcement from detaining people for immigration authorities unless they are wanted for a serious crime.  William Bigelow of Breitbart reports that the controversy surrounds 31-year-old Pedro Figueroa-Zarceno, an illegal immigrant who failed to appear at an immigration hearing in San Antonio in 2005 and then was arrested in 2012 for drunk driving and remained in the U.S.  When he reported his car stolen to San Francisco police in November 2015, a background check that found he had missed the hearing ten years earlier triggered a warrant for his arrest, and he was taken into custody the following month when he came to the station to obtain his vehicle, and was subsequently handed over U.S. Immigration and Customs Enforcement (ICE).  However, he was released from jail last Wednesday after San Francisco police were slammed for violating the city's 2013 "Due Process for All" ordinance.  ICE spokesman James Schwab asserted that Figueroa-Zarceno was one of the "at-large foreign nationals who meet the agency's enforcement priorities, including convicted criminals and other individuals who pose a potential threat to public safety."  The case is currently being reviewed.
The death penalty came up briefly in the Clinton-Sanders debate.  Even though it came second, let me quote Sanders first:

MADDOW: Senator Sanders, you have singled out the death penalty, and Senator Clinton's support for the death penalty, as an issue that makes it hard to consider as progressive in your mind...

SANDERS: ... Look, I hear what the Secretary said, and I understand, but look, there are -- all of us know that we have seen in recent years horrible, horrible crimes. It's hard to imagine how people can do, bomb, and kill 168 people in Oklahoma City, or do the Boston Marathon bombing, but this is what I believe, and for a couple of reasons.

Number one, too many innocent people, including minorities, African Americans, have been executed when they were not guilty. That's number one. We have to be very careful about making sure about that.

Too many?  Name one, Senator Sanders.  Name one demonstrably innocent person executed in the modern capital punishment era (1976+).

For many years, Roger Coleman was the poster boy as the absolutely, incontrovertibly innocent person wrongfully executed.  Then improved DNA technology conclusively proved him guilty.  Oops.  Then they latched on Cameron Willingham, a case where the arson evidence was shown to be inconclusive.  (Contrary to myth, the arson evidence does not affirmatively show accidental fire.)  When AP contacted the jurors, every one they could find said that would have made no difference, because it never was the forensic evidence that convinced them in the first place.  The most damning evidence against Willingham was his own words and actions, all of which still stand.

"We have to be very careful about making sure about that."  Correct.  And we are.

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New York Police Officers Shot:  Two NYPD Officers patrolling a public housing project in the Bronx were shot Thursday night.  Fox News reports  that a male and female officer, whose names have not be released, were shot when they encountered two people in a seventh-floor stairwell in the complex by a man who was later found dead by an apparently self-inflicted wound.  Both officers are expected to recover from their injuries.  In January another officer was shot and injured in the Bronx when he responded to reports of a street fight.   

CA Sex Offender on Probation Arrested For Rapes:   A registered sex offender free on probation in Whittier California as been arrested for sexually assaulting two teen-aged girls.  ABC7 reports that  28-year-old Richie Corvera abducted a 15-year-old girl in a high school parking lot last Friday and assaulted her at a nearby motel.  A day earlier in the same parking lot Corvera lured a 14-year-old girl into his car and assaulted her in a motel.  Police believe that there may be additional victims.  Thank goodness California is addressing its over-incarceration problem by keeping low-level offenders like Corvera on the streets under light supervision.      

Ninth Circuit Voids AZ Death Sentence:  A divided panel of the U.S. Ninth Circuit Court of Appeals has overturned the death sentence of a brutal Tuscon murderer.  Madison Alder of Cronkite News reports that the Court's two-judge majority lead by Judge Stephen Reinhardt announced that all of the lower courts which had reviewed and rejected murderer Robert Douglas Smith's claim that he was intellectually disabled during the murder were wrong, and that a low IQ test in 1964 proved that Smith was too retarded to have been responsible for the kidnapping, rape and grisly murder of 29-year-old hitchhiker Sandy Owen.  Subsequent tests found that Smith had a near normal IQ.  After raping her twice, Smith initially tried unsuccessfully to strangle Owen to death,  then held her down while an accomplice stabbed her several times, which also failed to kill her.  Smith then tried to break the woman's neck.  She was finally killed after they crushed her head with a rock. 

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Death Penalty Sought Against CA Baby Killer:  The district attorney for Santa Clara County is seeking the death penalty against a San Jose man.  Tracey Kaplan of the San Jose Mercury News reports that District Attorney Jeff Rosen will seek the death penalty against 42-year-old Alejandro Benitez, charged with murder in the commission of a dangerous felony, stemming from forcing a 16-month-old boy into a sex act "so brutal that it tore up his lips and throat before suffocating him."  Benitez has pleaded not guilty, and his lawyer argues that because of a recent National Registry of Exonerations report showing that five inmates sentenced to death were exonerated last year -- though none of them were in California -- means that Rosen's decision "validates a deeply flawed system."  Other death penalty opponents argue that the extra costs incurred from a death penalty trial is reason enough to ban capital punishment and not seek it against Benitez.  CJLF legal director Kent Scheidegger, however, praised Rosen's decision, saying that no money is wasted "if it's one of the worst of the worst crimes," adding, "That's what a DA should do."

Cartels Using Kids to Divert BP Agents:  A Border Patrol union official testified before a House Judiciary subcommittee panel Thursday, revealing that drug cartels are bringing unaccompanied children to the Rio Grande valley in order to distract border security officials from smugglers and drug traffickers.  Joel Gehrke of the Washington Examiner reports that Brandon Judd, a National Border Patrol Council official, told the subcommittee that drug cartels have contributed to the influx of unaccompanied minors from Central America that has grown steadily since 2011 by driving them to the middle of the desert, where the children then cross over the Rio Grande and surrender to Border Patrol.  This tactic "completely tied up our manpower and allowed the cartels to smuggle whatever they wanted across out border," said Judd.  He also noted that with every new policy adopted, such as Department of Homeland Security's recently reinstated policy requiring Border Patrol officials to release more of the immigrants they arrest, gives the cartels a new loophole to exploit.

License Reader Company Stirs Controversy in TX:  A controversial issue is arising out of Texas, as a tech company is requesting a 25% cut of debt collected from the "deadbeats and scofflaws" tracked down by its license plate-tracking system.  Perry Chiaramonte of Fox News reports that the tracking database, developed by Vigilant Solutions, captures license plate information and converts it into a computer-readable file that tags the plate number and a time stamp before being placed into the database, much like GPS technology.  The system has been scrutinized for both its possible infringement on Fourth Amendment rights and the way in which it has transformed Texas police agencies into employees of Vigilant, as they must pay the 25% cut in order to keep the equipment the company provides.  Dave Maass of the Electronic Frontier Foundation is challenging the system as an invasion of privacy and abuse of public safety protocols.

Mass Early Release Is Just the First Step

Most of the time when we're urged to reduce prison sentences, we're earnestly told that a good chunk of the money we'd supposedly save will be "invested" in more careful and active supervised release.  Probation, which is both cheaper and more humane than incarceration  --  so the argument goes  --  will be expanded to help insure we maintain public safety.

Did you think that's actually what sentencing "reformers" are planning?

Think again.  A sample:

This Data Brief demonstrates for the first time that America suffers from "mass probation" in addition to "mass incarceration." Although probation has often been thought of as an "alternative" to prison or jail sentences, the U.S. has achieved exceptional levels of punitiveness in both incarceration and community supervision...

[S]tates should closely reexamine the numbers of people who are placed on probation each year, and the lengths of terms they are required to serve. Options for "early termination" of the lowest-risk and most successful probationers should be explored. Some experts in the field allege that probationary sentences do little to control crime, and frequently do more harm than good.

The plan is not to end "mass incarceration."  The plan is to end punishment.  For years, these people have been telling us that the criminal is the victim, and the problem is not crime, but Amerika's callousness and cruelty.  It's time for us to understand they mean what they say.
Q:  Who's willing to admit that early release from prison creates a danger to the public?

A:  One of the fellows who got out early.

Thus this story from News9 in Oklahoma:  


The two suspects in Monday's double shooting in Garvin County were arraigned Tuesday.  

21-year-old Trevor Noland and 18-year-old Roger Arles both face charges.

According to police, Noland and Arles stole a pickup from three of their friends, and shot two of them in the head....

Just 12 days ago, Noland was released from prison after serving just half of a three year sentence for illegally possessing a gun. 

Garvin County Sheriff Larry Rhodes said Noland wouldn't have had the opportunity to shoot anyone if he had served out his full sentence.

But wait.  It gets better.


Georgia executed murderer Brandon Jones shortly after midnight, using pentobarbital.  As usual with single-drug barbiturate executions, there were no complications.  AP reports:

Jones was initially still with his eyes closed and then swallowed a couple of times and moved his head slightly. He opened his eyes at 12:36 a.m. (5:36 GMT) and turned his head to his left, appearing to look toward a clock hanging on the wall. Then he closed his eyes again and took a few deep breaths before falling still.
Few of us are going to die that peacefully or painlessly.  So why was there a bitter 6-5 division in the Eleventh Circuit Court of Appeals?  Because the State of Georgia will not disclose the source of its pentobarbital. 

Is that a genuine problem?  No, as Judge Marcus explains for the majority (emphasis added):

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GA Executes its Oldest Death Row Inmate:  The oldest inmate on Georgia's death row was executed by lethal injection early Wednesday for the decades-old murder of a convenience store manager in suburban Atlanta.  Kate Brumback of the AP reports that 72-year-old Brandon Astor Jones asked the U.S. Supreme Court justices to block his execution citing two reasons:  his challenge of the state's lethal injection secrecy law, which keeps confidential those involved in an execution, and that his death sentence was disproportionate to the crime.  His requests for stay were denied Tuesday evening.  In 1979, Jones and another man, Van Roosevelt Solomon, shot and killed store manager Roger Tackett in the course of a robbery.  Solomon was executed by electric chair in 1985.

FL Delays Execution, Works on New System:  In the wake of the U.S. Supreme Court's decision in Hurst v. Florida last month that found flaws in Florida's death penalty system, the state's highest court delayed the execution of a condemned murderer on Tuesday, just one week before he was scheduled to die.  Steve Bousquet of the Miami Herald reports that in January, the U.S. Supreme Court held  Florida's sentencing procedure improper because it allows judges to reach different decisions than juries, with juries playing "only an advisory role in recommending death."   Florida's Legislature is considering different approaches to correct the problem.  The inmate at the center of Tuesday's decision, Michael Lambrix, 55, was sentenced to death for the 1983 slayings of two people, though the jury's death recommendation was not unanimous for either murder.  His attorney argues that the ruling should apply to all 388 death row inmates, but the Florida Attorney General's office says it should not apply to already-decided cases.

What Happened to John Cornyn?

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The title of this post is taken from today's Powerline entry by my friend Paul Mirengoff.  It also coincides with a question I was asked just two hours ago on another thread.

Sen. Cornyn is the senior senator from Texas.  Quite oddly, it seems to me, he has reversed years of his prior enthusiastic and well-reasoned argument against mass (and retroactive) sentencing reductions.  Instead, he has aligned himself with President Obama, George Soros, Al Sharpton and the SEIU in support of the the current Senate sentencing reform proposal.

The short answer is:  I don't know what happened to Sen. Cornyn, but it's certainly a question worth exploring.
Those backing sentencing "reform" tell us that, for the last 25 years, the government (broadly speaking) has made thousands of mistakes in deciding whom to imprison and for how long  --  but now we can trust the same government to decide whom to release and how early.

Does that sound right to you?  

The Wendell Callahan triple murder case should disabuse us of this notion, as well as illustrate its high and irreversible costs. But the Callahan matter is not alone. Note, for example, this story in the Denver Post:  "Parolee Arrested in Homeless Murder Was Touted as Model of Success."   

A parolee recently charged in the death of another homeless man was touted by a state parole administrator as a model of success in a meeting with legislators just 16 days before the fatal stabbing.

Calvin Johnson, 44, who allegedly called himself "Calvin/Elijah the prophet/crazy killer" in a text after the slaying, faces one count of first-degree murder in the New Year's Day death of Teodoro Leon III.

The sentencing reform bill presently treading water in the Senate would restore a version of parole, albeit by a different name. Are the federal authorities that much better than those in Colorado in figuring out whom to release early?  Were they with Wendell Callahan? 

Digital Forensic Examination

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The current FBI Law Enforcement Bulletin has an article that reads like something you would see on a television "CSI" show and dismiss as utterly unrealistic.  But it is real. 

John McHenry and Michael Gorn report on a child pornography investigation from Sarasota, Florida.  High resolution images "included adult hands and pornographic images of infants."  The images were high enough resolution to get fingerprints off of them, nailing the perpetrator.

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Feds Plan to Cut Border Monitoring:  U.S. Department of Homeland Security (DHS) plans to reduce aerial surveillance on the Texas-Mexico border by roughly 50% compared to recent years.  Julian Aguilar of the Texas Tribune reports that the request comes as Customs and Border Protection (CBP) reports new surges of illegal immigrants crossing the border: between October and December 2015 in the Rio Grande Valley, 10,560 unaccompanied minors from Central America illegally crossed the border, a 115 percent increase from the year prior. Central American family units entering Texas increased by 170 percent to 14,336.  In the El Paso sector, 1,030 unaccompanied minors surged at the border, an increase of nearly 300 percent.  On top of the flow of more migrants from Central America, 28,400 Cubans recently entered Texas through CBP's Laredo office, fleeing Cuba to the U.S. after the Obama administration announced plans in 2014 to re-establish ties with the country.  Gov. Greg Abbott says that given the recent flow of migrants along the southern border, more, not less, surveillance and security resources are needed.

Facebook Bans Sale of Guns:  Following Friday's announcement that Facebook will ban users from facilitating the sale of guns, parts and ammunition on the popular social media website, the White House is not saying whether the decision stemmed from pressure from the Obama administration.  Nicole Duran of the Washington Examiner reports that the administration admitted to meeting with Facebook to address the loophole but refused to comment on whether this action came from any specific request.  Licensed dealers have been granted an exception to post and present their inventory online but are now required to have the transaction occur elsewhere, not on the website.

Lifelong Sex Offender GPS Monitoring Upheld:  The Seventh Circuit Court of Appeals, in a 3-0 decision, ruled Friday that requiring a convicted sex offender to be fitted with a GPS anklet for life does not violate the constitutional ban on retroactive punishment, despite the law being passed after a the offender's conviction.  Andrew Blake of the Washington Times reports that the decision overturned a federal judge's ruling that it was unconstitutional to make 72-year-old Wisconsin child sex offender Michael Belleau, who was civilly committed to a secure treatment center in 2004, wear an electronic monitoring bracelet when he was released from civil commitment in 2010, two years after the requirement was put on the books.  Belleau's 2012 lawsuit argued that the requirement was unconstitutional since it retroactively punished him for conduct made criminal "after the fact" and amounted to unreasonable search and seizure.  However, the appellate panel said last week that the requirement "is not punishment; it is prevention," noting that the objective is to protect children rather than punish sex offenders.

L.A. County Accidentally Freed Murder Suspect:  A paperwork error has resulted in the erroneous release of a murder suspect from the Los Angeles County jail over the weekend.  Joseph Serna of the LA Times reports that 37-year-old Steve Lawrence Wright, accused of a 2011 gang-related murder, was sentenced last week to five days in jail for a contempt of court conviction he received while awaiting trial, for which he had to attend court.  When transferred back to the Inmate Reception Center from court, the docket number for his contempt of court case was accidentally put in the box where his murder case should have gone, making it appear that he was due for release on Saturday instead of being held without bond pending trial.  His Saturday afternoon release went unnoticed until 9:30 p.m. that evening.  In 2013, 24 inmates were mistakenly released early after being processed by the Inmate Reception Center, dropping to 21 in 2014 and six last year.

Sign Up to Be One of the Lucky 200

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What happens when the "criminals-are-victims" mentality takes over, and your obligation to live within the law is no longer considered a cornerstone of citizenship?

This happens:

WASHINGTON (AP) -- They say crime doesn't pay, but that might not be entirely true in the District of Columbia as lawmakers look for ways to discourage people from becoming repeat offenders.

The D.C. Council voted unanimously Tuesday to approve a bill that includes a proposal to pay residents a stipend not to commit crimes. It's based on a program in Richmond, California, that advocates say has contributed to deep reductions in crime there.

Under the bill, city officials would identify up to 200 people a year who are considered at risk of either committing or becoming victims of violent crime. Those people would be directed to participate in behavioral therapy and other programs. If they fulfill those obligations and stay out of trouble, they would be paid.

The bill doesn't specify the value of the stipends, but participants in the California program receive up to $9,000 per year.

I have to tell you, $9,000 is more than I make teaching my course at Georgetown Law, and I haven't even lifted any of my students' wallets.  

Jailbreak: A Love Story?

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The search is over.  Three California inmates who managed to escape a Santa Ana jail are back in custody.  The prison teacher arrested last Thursday for allegedly aiding in their escape, however, is being released due to insufficient evidence, for now at least.

Since the daring January 22 escape, word has circulated that the English-as-a-second-language teacher, Nooshafarin Ravaghi, and one of the escapees, Hossein Nayeri, had a relationship that was "close" and "personal," highly atypical for a prison teacher and an inmate, not to mention inappropriate and completely banned.  It is believed that Ravaghi provided Nayeri and two other inmates, Bac Duong and Jonathan Tieu, with a printed photograph from Google Earth to help them escape from the maximum-security facility.  Authorities believe she may have helped them on the outside as well.

The Significance of the Ted Cruz Victory

Tonight, against the predictions of almost all the recent polling, Sen. Ted Cruz won the Iowa Republican primary.  The finish was: Cruz 28%, Trump 24%. and Rubio 23%.  No one else even reached 10%.  In my opinion, the Republican nominee is all but certain to be one of those three.

The question for this blog is whether Sen. Cruz's victory has any significance for the major criminal law issues facing our country.  I think the answer is "yes."
The national media have been quite subdued in reporting the murders of three African Americans in Columbus, Ohio by Wendell Callahan.  Years before, Callahan, a man with a violent past, had been sentenced to federal prison for trafficking crack cocaine. He was released four years early because of a sentencing "reform" bill Congress passed in 2010.  But for the early release, his three victims  --  a mother and two daughters, aged 10 and 7  --  would be alive today.  See my post here.

Put another way, this was preventable murder.  And prevention was easy.  All we had to do was keep a violent man trafficking hard drugs in prison for his original sentence.

Preventable murder is about as odious a thing as one can imagine.  You would think the usual cadres of criminal justice protesters would be up in arms.  Where's Black Lives Matter, now that three black lives have been thrown away courtesy of a law that was passed as the remedy for supposed injustice?  I haven't heard a peep. Maybe some black lives matter more than others.

Fortunately, Debra Saunders of SFGate is paying attention.

News Scan

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Record Number of Chicago Homicides in January:  In the first month of 2016, Chicago recorded the highest number of homicides since 2000.  Aamen Madhani of USA Today reports that the city recorded 51 homicides in January of this year, compared to 29 in 2015 and 20 in 2014.  Additionally, 241 shooting incidents were recorded, more than double the 119 recorded last January.  The police department maintains that gang conflict and retaliatory violence are the main drivers of the spike in homicides, though they acknowledge that the increased scrutiny the department faces in the wake of the court-ordered release of a video showing the fatal shooting of a black teenager, as well as a decrease in investigative stops following the implementation of new rules on Jan.1, have also played a role.

Legislation Introduced to Combat Drug Epidemic:  An Ohio senator, in response to the heroin and prescription drug epidemic sweeping Ohio and the nation, is calling for the passage of new legislation that aims to curb addiction.  Curt Mills of the Washington Examiner reports that Sen. Rob Portman, R-Ohio, warned during the weekly Republican address that heroin and prescription drug overdoses have surpassed car accidents as the number one cause of injury-related deaths in the country.  First responders at an Ohio fire department say that they currently respond to more overdoses than fires.  Portman's bill, the Comprehensive Addiction and Recovery Act, would focus on prevention and education, and aid in the funding of recovery programs.  Lawmakers in several states across the country, from Utah to North Dakota, have introduced similar legislation after seeing a dramatic increase in overdoses related to heroin and prescription drugs in their communities.

GOP Chairman Presses DOJ on Sanctuary Cities:  Rep. John Culberson, R-Texas, warns Attorney General Loretta Lynch that if she does nothing to prevent sanctuary cities from receiving federal law enforcement grants, he will take it upon himself to act.  Caroline May of Breitbart reports that Culberson has called on Lynch to change the grant process for Department of Justice regarding sanctuary cities which that fail to comply with federal immigration authorities.  Culberson plans to block funding for those jurisdictions in future appropriations bills and budgets if the Attorney General does not make the changes. In 2014, over 300 sanctuary cities in the U.S. released more than 9,000 criminal aliens that U.S. Immigration and Customs Enforcement was seeking to deport.  In the following months, more than 2,300 of those released went on to commit new crimes.

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