March 2016 Archives

Funding Increased Crime

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By now most readers of this blog know about Proposition 47, "The Safe Neighborhoods and Schools Act," adopted by California voters in November 2014.  The Act downgraded felony thefts valued at $950 or less and drug possession to misdemeanors, no matter how many times an offender committed these crimes.  This essentially eliminated the punishment for the most commonly committed offenses.

If you follow the news or our Foundation, you know that crime is up in California, and that county sheriffs and District Attorneys are attributing much of this to Proposition 47.  Among them, LA County Sheriff Jim McDonnell has been quite clear about this. The fact that violent crime has actually increased more than property crime, helps confirm what honest people in law enforcement have always known: most criminals do not specialize, and today's thief or drug runner may well have committed a robbery, rape or murder yesterday. Defining an offender by his most recent conviction tells us little about what other crimes he has committed or what future crimes he is willing to commit.

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PA Supreme Court Upholds Murderer's Death Sentence:  The Pennsylvania Supreme Court upheld the death sentence of a man convicted of murdering three of his relatives in 2009.  Liz Zemba of Trib Live reports that 55-year-old Kevin Murphy was convicted in 2013 for fatally shooting his mother, sister and aunt, because the women disapproved of his relationship with a married woman and his desire to have her live at the family home.  In a 14 page opinion five state Supreme Court justices disagreed with Murphy's claim that prosecutors failed to prove his guilt and the verdicts went against the weight of the evidence.

Police Stops Down, Homicides Up in Chicago:  Since the shooting of Laquan McDonald last year, there has been a sharp drop in police stops in Chicago and a spike in shooting incidents and violent homicides.  WGN reports that numbers released by DNA Info Chicago show police have made fewer than 21,000 investigative stops so far this year, a nearly 90% drop from the same period last year.  While police stops have decreased, shootings and homicides have increased by roughly the same percentage; as of Wednesday morning, homicides totaled 135, a 71% spike, representing the worst first quarter of a year since 1999.  The Chicago Tribune reports that the city is off to its deadliest start in two decades.

MI Supreme Court won't Hear Case of Juvenile Murderer:  The Michigan Supreme Court issued an order Tuesday stating it would not review a felony murder conviction after the state appeals court upheld the guilty verdict of a now 19-year-old who murdered an elderly woman when he was a juvenile.  Gary Ridley of MLive reports that Mark Jones Jr. fatally shot and robbed a 73-year-old woman in 2010 when he was just 14.  He attempted to have the appeals court reverse his conviction, arguing that prosecutors were improperly allowed to introduce previous crimes he committed, but the appeals court disagreed and upheld Jones' sentence.  A 2012 ruling that declaring mandatory life without parole sentences for juveniles unconstitutional many have helped Jones avoid a life sentence but he is serving a sentence of 40 to 60 years.  His earliest release date is November 2052.  The appeals court decision is here.

Is it Racist to Protect Ourselves?

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The answer is certainly yes to Hillary Clinton, Bernie Sanders, President Obama and way to many liberal elites in the university, the media and politics.  In the aftermath of Brussels, Paris, Santa Barbara and dozens of other recent brutal attacks by radical Islamic terrorists on innocent Westerners, it has been suggested that national security agencies direct more of their focus on the distinctive segment of the population that has produced the terrorists.  This includes more closely monitoring Muslims entering the US, particularly from countries harboring terrorists, tracking them while they are here, and surveilling Mosques.  According to our betters, this is a gross violation of American values and will encourage more Muslims to radicalize.  Heather MacDonald discusses this dilemma in an article in the City Journal. 

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Defense Attorney Wants Brown to Commute Death Sentences:  A retired Sacramento federal defender and longtime opponent of the death penalty penned a letter to California Gov. Jerry Brown imploring him to commute the death sentences of every murderer on death row.  Denny Walsh of the Sac Bee reports that in his letter, Quin Denvir, one of the lawyers who saved Unabomber Theodore Kaczynski from possible execution, cites Pope Francis' Year of Mercy, an "imperfect" criminal justice system and the risk that the death penalty will be imposed "in an arbitrary, discriminatory and unreliable manner."  Denvir encouraged Gov. Brown to exercise his  clemency power to commute the sentences of all condemned murderers to life without parole, a power which is "not wholly unrestricted."  As outlined in California's constitution, the governor may not grant a pardon or commutation to a person "twice convicted of a felony except on recommendation of the Supreme Court, 4 judges concurring."

TX Man Facing Execution Granted Stay:  Wednesday's scheduled execution for a Texas inmate convicted of killing his two young daughters 15 years ago while their mother listened helplessly on the phone, has been halted by a federal appeals court seven hours before it was to be carried out.  The AP reports that attorneys for 60-year-old John David Battaglia argued he deserved a court-appointed attorney to investigate and a fair hearing to determine his mental competency, and the 5th U.S. Circuit Court of Appeals agreed.  In May 2001, Battaglia fatally shot his two daughters, aged nine and six, as revenge to his estranged wife, the girls' mother, for reporting complaints to his probation officer that resulted in the issuance of an arrest warrant.  He would have been the 10th convicted killer executed in the U.S. this year and the sixth in Texas.

Orange County Police Blame Prop 47 For Crime Spike:  Orange County, California, saw a 23% jump in crime last year, the greatest single-year jump in at least a decade, and the county's police officials believe Proposition 47, a measure that reduced several felony theft and drug offenses to misdemeanors, is to blame.  Jordan Graham of the OC Register reports that the steepest increases in the county were in stolen vehicles, aggravated assaults, thefts and burglaries, surges that many officers attribute to Prop. 47, which makes it difficult to keep drug addicts and other low-level offenders behind bars, "leaving them on the streets to repeat the same crimes and steal to feed their addictions."  The uptick was felt broadly across the county, with 32 of 34 cities reporting more serious crimes, in some cases spikes of 30 to 50%.  Statewide, violent crime rose 13% and property crime jumped 9% in the first half of 2015, while nationally, violent crime rose 1.7% and property crime fell by 4.2% over the same period. 
Today the U.S. Supreme Court decided Luis v. United States, No. 14-419.  Justice Breyer's plurality opinion begins:

A federal statute provides that a court may freeze before trial certain assets belonging to a criminal defendant accused of violations of federal health care or banking laws. See 18 U. S. C. §1345. Those assets include: (1) property "obtained as a result of " the crime, (2) property "traceable" to the crime, and (3) other "property of equivalent value." §1345(a)(2). In this case, the Government has obtained a court order that freezes assets belonging to the third category of property, namely, property that is untainted by the crime, and that belongs fully to the defendant. That order, the defendant says, prevents her from paying her lawyer. She claims that insofar as it does so, it violates her Sixth Amendment "right . . . to have the Assistance of Counsel for [her] defence." We agree.
Justice Thomas concurred in this result, making the decision 5-3.
Yet another former death row inmate touted as actually innocent and wrongly convicted is now known to be actually guilty.

Tom Jackman reports for the WaPo:

Justin Michael Wolfe, whose capital murder conviction and death sentence was reversed amid concerns about prosecutorial misconduct, pleaded guilty to murder in Prince William County on Tuesday, admitting in a handwritten statement that he and another man plotted the 2001 robbery and slaying of a fellow marijuana dealer.

It was a stunning reversal from Wolfe, who had proclaimed his innocence for 15 years. Wolfe had argued, at times from Virginia's death row, that the murder of Daniel Petrole Jr., the son of a decorated Secret Service agent, was the work of a rogue drug associate. The case featured a co-defendant repeatedly changing his story about the slaying, a federal district judge ordering Wolfe's release from jail in 2012, and two federal courts chastising Prince William prosecutors for withholding evidence from the defense.
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In a four-page handwritten statement to the court, Wolfe essentially validated the prosecution's consistent version of events: Wolfe and Owen Merton Barber IV decided to rob and kill Petrole because they knew he would have a large amount of cash and marijuana and feared that a robbery alone would invite revenge. Wolfe acknowledged that he owed Petrole tens of thousands of dollars from continuing drug transactions, and he said that he had planned to split the proceeds with Barber and erase a debt Barber owed him.
*          *          *
Wolfe wrote that he and Barber initially planned only to rob Petrole, as he delivered a marijuana shipment to them, but "eventually we both agreed that it would be necessary to kill Danny because he was probably going to resist the robbery or figure out who did it and have to get revenge. ... I am responsible for Danny's death even though I didn't pull the trigger. If I had not been involved Danny would never have been killed."

This is a clearly proper case for a nontriggerman to be considered fully culpable for the crime.  Where conspirators both intend and premeditate the victim's death, which one actually did the dirty work is virtually irrelevant.

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Oakland Murder Case Puts Focus on CA Death Penalty:  Despite a moratorium on California's death penalty, prosecutors in the state continue to seek it, as they have in a high-profile Oakland case that goes to trial this week involving the cold-blooded murder of an eight-year-old girl.  Kale Williams of SF Gate reports that the death penalty is being sought against 25-year-old Darnell Williams, charged with first-degree murder in the 2013 killing of Alaysha Carradine while she was sleeping over at a friend's house.  Williams was allegedly hellbent on revenge for an earlier slaying of a friend and looking to gun down anyone associated with the suspected killer when he sent a barrage of bullets into the apartment where the killer's children lived with their mother.  Experts say, however, that even if Williams is convicted and sentenced to death, the likelihood of his execution is "tenuous at best."  The State's new death penalty protocol would use one of four barbiturates that would conform to U.S. District Judge Jeremy Fogel's 2006 ruling.  Since capital punishment was restored in California over four decades ago, only 13 prisoners have been executed.  A total of 743 condemned inmates continue to sit on death row.

Capital Returning to Normal After Shooting Incident:  The U.S. Capitol reopened Tuesday with heightened security, a day after officers shot and wounded a man who pulled a weapon at a security checkpoint as he entered the Capitol Visitor Center that was teeming with tourists.  Alan Fram of CNS News reports that 66-year-old Larry R. Dawson, who is currently hospitalized, faces charges of assault with a deadly weapon and assault on a police officer while armed in Monday's incident that left one female bystander with minor injuries.  Last October, Dawson disrupted a House session by yelling he was a prophet of God, prompting the District of Columbia Superior Court to issue a "stay away order" that barred him from the Capitol grounds.  Dawson failed to appear in court as scheduled the following month claiming he was exempt due to his status as a prophet of God, and has additional history of questionable behavior.  Police believe Dawson acted alone and the incident isn't "anything more than a criminal act."

Chicago Violence Surges, Policing Debate Rages:  Violence in Chicago continues to surge during a "pivotal moment" for the city's law enforcement, enmeshed in conflict and facing distrust from the black residents.  Monica Davey of the NY Times reports that as of Friday, 131 people had been killed since the start of the year, an 84% increase in homicides from the same period in 2015.  The city has also seen 605 shooting incidents so far, almost twice as many at the same point last year.  Experts cannot reach a consensus on what is causing the rising bloodshed this year; some cite relatively mild winter weather, while many others believe it is because law enforcement officers have "backed off" of proactive policing amid increased scrutiny.  Gangs have also been tied to much of the violence, as many have become "disorganized and splintered into more factions."  Though the current levels of violence are far below that of the 1990s, "it seems like this year is just the worst of the worst," say residents.
I noted here that attorneys from the Justice Department had, with only a thin layer of ostensible politeness, warned state judges that they had best ease up enforcement in traffic cases against deadbeats and scofflaws. I see now, in this article in the NY Post, that the Department has ratcheted up the pressure with a letter from the Attorney General herself.

Again and again we hear from libertarians and liberals that the feds have taken too much of a hand in matters that ought to be left to state and local authorities.  We hear this caterwauling most loudly about drugs.  We have heard it for at least forty years, and we still hear it all the time.

But if drugs are one sort of problem that should be left to state and local judgment, dealing with traffic citations must be the quintessential matter.  

Let me know when, in dealing with this episode, you hear a liberal or a supposed libertarian complain about Big Government federal sprawl, much less about the spectacle of prosecutors menacing judges.  There was a time when that was considered, ummmm, not in keeping with appropriate prosecutorial functioning, but that was then.

A Time to Re-Visit Enhanced Interrogation

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Paul Mirengoff at PowerLine steps up to ask, and answer, a question the most recent grotesque terror attacks have put before us:  Can we sanely continue the law enforcement model of interrogation when we know terrorists are planning mass murder, but we don't know where or when?

According to reports, the terrorists who carried out last week's attacks in Brussels acted sooner than originally planned because they feared that captured terrorist Salah Abdeslam would inform authorities of the attacks. Apparently, they need not have worried.

Belgian officials questioned Abdeslam only lightly, and not at all about possible new attacks. Instead, using the discredited law enforcement model, they focused on the Paris attacks of last November, presumably hoping to obtain a confession.

Back in the days of the controversy over waterboarding, there was talk about a "ticking time bomb" scenario. The question was: When we know there's time bomb ready to go off, but don't know the location, is it okay to waterboard a captured terrorist who likely has knowledge of the impending attack?

Read Paul's analysis here.  In my view, failing to extort information that can save dozens of innocent lives because we allow captured terrorists to stonewall is way, way beyond inhuman.  When you have no appetizing choices, you pick the least bad.

Oh, Never Mind

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Devlin Barrett reports for the WSJ:

The Justice Department filed court papers Monday saying it had cracked the iPhone of a San Bernardino, Calif., terrorist, seeking to drop its legal case to force Apple Inc. to help them unlock it.

The move signals a temporary retreat from a high-stakes fight between Washington and Silicon Valley over privacy and security in the digital age.

The filing short-circuits a pending legal showdown over whether the government can force technology companies to write software to aid in criminal investigations, but it is unlikely to avert the long-term conflict between federal agents and technology executives over how secure electronic communications should be, and what firms should have to do to help the government access their customers' data.

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CA 'Devil Cult' Killer Eligible for Parole:  A convicted California killer who took part in two brutal devil cult murders decades ago has been found eligible for parole less than a year after Gov. Jerry Brown overturned the parole board's decision and ordered him to remain behind bars.  Sean Emery of the OC Register reports that Arthur Craig "Moose" Hulse is currently serving a life sentence for the 1970 murders of a gas station attendant and a schoolteacher who had four children.  At the time of the brutal slayings, Hulse was a 16-year-old "prospect" hoping to join the Sons of Satan, a transient, devil-worshiping, drug-using motorcycle gang.  He has been denied parole over a dozen times.  Gov. Brown has until Aug. 14 to reverse the parole board's decision.

Smuggler Caught 23 Times Sentenced to Prison:  A career smuggler who was caught by Border Patrol 23 times in less than 17 years was sentenced Friday to five years in prison.  Teri Figueroa of the LA Times reports that 35-year-old Efrain Delgado Rosales was caught in November guiding four illegal immigrants through the Otay Mountains.  Since 1999, Delgado Rosales has been apprehended dozens of times by border agents smuggling at least two and up to 46 illegal immigrants, in all but one instance. 

Sky-High Approval Rate for Dreamer Applications:  President Obama's argument that he is not rewriting laws and only offering guidance on how to prioritize enforcement of deportation amnesty is significantly undermined by the 93% approval rating of Dreamer applications, say critics.  Stephen Dinan of the Washington Times reports that Obama's program for Dreamers, also known as the Deferred Action for Childhood Arrivals (DACA), "was considered a test run for the broader amnesty," or the Deferred Action for Parental Accountability (DAPA), announced in late 2014.  The two programs grant a proactive two-year stay of deportation, issue work permits and Social Security numbers, and allow illegal immigrants to become eligible for taxpayer benefits.  By the end of 2015, almost 715,000 DACA applications had been approved, while less than 55,000 were rejected.  Reports found that fraud within the program could have been as high as 50%.  The Supreme Court will hear oral argument regarding DAPA beginning April 18 and could issue a ruling by the end of June.


Philip Bump at the WaPo's Fix political blog has this look at general election match-up polls. Not only has Donald Trump come off the worst in heads-ups matches with Hillary Clinton throughout the election season, but he is trending downward.  Ted Cruz does better, and just as importantly he is trending up.

John Kasich does the best of the three, but frankly I don't see any substantial chance of him being the nominee.
Valentina Pop reports for the WSJ:

A United Nations court sentenced former Bosnian Serb leader Radovan Karadzic to 40 years in prison for genocide, crimes against humanity and war crimes during the Bosnian war in the 1990s. He will appeal the ruling.

The International Criminal Tribunal for the Former Yugoslavia on Thursday found Mr. Karadzic guilty of 10 out of the 11 counts, including genocide for the Srebrenica massacre and criminal responsibility for the shelling of Sarajevo, during a nearly four-year siege on the city. He is the highest-ranking official the court has convicted since its establishment in 1993.
Forty years is a life sentence, given that Karadzic is 70, but it's not enough for genocide. 
Ilya Somin has this post with the above title at the Volokh Conspiracy on the WaPo site.

H.R. 4760, the Blue Lives Matter Act of 2016," is a sweeping bill to make assaults on police officers a federal offense, adding to the list of federal "hate crimes."

Of course it is true that blue lives matter.  It is also true that the police are under attack and need the support of the law-abiding people of this country.  It is also true that the road to hell is paved with good intentions.

Crimes against persons are generally matters of state law.  At times it has been necessary to stretch the boundaries of federal jurisdiction when states were failing in their constitutional obligation to provide equal protection of the laws, such as the murders of civil rights workers over half a century ago. 

Those dark times are long behind us.  State governments are perfectly capable of prosecuting crimes against police officers.  Federalizing the issue will not help.

The lines between state and federal jurisdiction are there for good reasons.  We should be restoring and fortifying them, not punching new holes in them.

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Court Gives Green Light to Death Penalty Fast-Tracking:  The 9th Circuit Court of Appeals ruled in favor of the Department of Justice Wednesday to allow states to expedite inmates' death penalty appeals through federal court, throwing out a lower court ruling that blocked the certification process.  Sudhin Thanawala of the AP reports that the fast-track program requires condemned inmates to file petitions in federal court within six months of a final ruling on their appeal in state court, the typical timeline for which is one year.  It also requires federal courts to take quicker action on inmate petitions.  "This decision is important not only for the families of murder victims, but also for everyone in the United States who depends upon the rule of law and relies upon the court to follow it," said CJLF legal director Kent Scheidegger.

Officials Brace for Another Surge of Migrant Children:  Border Patrol officials are preparing for another influx of unaccompanied children coming through the border this summer, which "may exceed" the thousands who made the trip from Central America in 2014.  Joel Gehrke of the Washington Examiner reports that officials anticipate that the crisis may hit "at exactly the wrong moment, politically" amid Congress' extended summer recess and the Republican National Convention in July.  As of Jan. 31 of this fiscal year, U.S. Customs and Border Protection had apprehended 20,000 unaccompanied children at the border, compared to the approximately 10,000 apprehended during the same period the year before. Because the numbers spiked well before the "traditional season of higher migration," border officials are bracing for another summer humanitarian crisis.  Though Congressional Republicans likely won't pass major immigration legislation ahead of the 2016 presidential election, House Speaker Paul Ryan has floated the idea of a House task force on national security that could produce a border security proposal.

Thousands Arrested in Sweep Targeting Violent Offenders:  Over 13,000 violent fugitives with open warrants were arrested by the U.S. Marshals Service as part of a national operation targeting the "worst of the worst" habitual offenders, the Justice Department announced Wednesday.  Andrea Noble of the Washington Times reports that Operation Violence Reduction, which ran from Feb. 1 to March 11, resulted in the capture of 8,045 fugitives with open warrants and another 5,446 fugitives arrested in the course of the operation.  Of those apprehended, 559 were wanted for homicide, 946 for sex offenses and 648 were known gang members.  The offenders averaged a total of seven prior arrests and three prior convictions each.  No law enforcement officials were killed during the sweep.
Results in the Arizona Republican presidential primary are:


Huh?  How did candidates no longer in the race get 16.1% of the vote?  How did a candidate not in the race beat one who is for third place?

Early voting.  Whatever the merits of early voting may be for the general election, it is a bad idea to vote too early in a primary.  You may be throwing your vote away.
This morning we won a major victory in the fight to have capital cases concluded within a reasonable time.  In Habeas Corpus Resource Center v. U.S. Dept. of Justice, No. 14-16928, the U.S. Court of Appeals for the Ninth Circuit vacated an injunction issued by U.S. District Judge Claudia Wilken and put the "fast track" process back on track.

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New CA Bill Targets Prop 47:  California lawmakers have introduced new legislation calling for harsher penalties for repeat offenders under Proposition 47, the 2014 voter-approved measure that downgraded several felonies to misdemeanors.  Janelle Bludau of Your Central Valley reports that Assemblyman Jim Patterson's bill says that if a criminal receives three charges in three years for a crime classified as a misdemeanor under Prop. 47, a judge can charge them with a felony.  The bill also states that the theft of a gun is an automatic felony, regardless of its value.  The bill will be introduced to the Assembly Public Safety Committee next Tuesday for approval.  It must pass legislature and the governor's desk before appearing on the 2018 ballot.

Official says Released Gitmo Prisoners have killed Americans:  An Obama administration envoy for closing Guantanamo Bay admitted Wednesday that Americans have died as a result of prisoners being released from the facility.  Susan Crabtree of the Washington Examiner reports that Paul Lewis, the Department of Defense's special envoy for Guantanamo Closure, confirmed before a House Foreign Affairs Committee that some Americans have been killed by at least one released detainee, though he would not divulge details in an "unclassified setting."  At current, 91 detainees remain at Gitmo; 36 have been cleared for release, 10 are in the middle of a military commission trial and the rest have been "deemed unworthy of release."

Credible Fear Loophole Gives Illegals from Terrorist Hubs Asylum:  Illegal immigrants from terrorist hub nations are exploiting the same amnesty loophole as those coming from Central America, claiming they have a "credible fear of persecution" in order to receive amnesty and remain in the U.S.  Bob Price of Breitbart reports that under the Obama administration's 2014 Priority Enforcement Program (PEP), once illegal immigrants claim "credible fear of persecution" at the border, they are immediately released "with no appointments or expectation that they will ever have to show up for a hearing" before a judge.  National Border Patrol Council President Brandon Judd says that while he believes a small percentage of illegal immigrants from terrorist hubs like Egypt, Somalia, Pakistan, Iran and Syria actually have a credible fear, the majority of those arrested are telling agents that "they are coming because they know they will be released."

...was to take in a ball game with Cuba's Communist dictator.  The Washington Post has the story.

I don't think there's a lot I could say about this display that would conform to the standards CJLF sets for this blog.

Prop. 47: A Reckless Experiment

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If you frequent this blog even semi-regularly, you have surely read at least a few posts regarding California's Proposition 47 and its ineffectiveness.  By this time, it is widely known that Prop. 47, which reduces penalties for several felonies to misdemeanors, is a bad policy that has made California communities unsafe and "led to an increase in the number of crime victims," says Marc Debbaudt in this article in the SF Chronicle. 

The "grim" FBI statistics show that the crime rate increased considerably in the state from 2014 to 2015.  San Francisco earned the No. 1 spot for cities with the highest increase in property crime rates in the country and No. 8 for violent crime.  Forty-nine other cities saw overall property crime increases, 24 of them in double-digits.  For violent crime, 38 cities across California suffered an increase in violent crime, 34 in double-digits.  Prop. 47 proponents assure us that it is not the measure that is responsible for such dramatic rises in crime rates, particularly property crime, but a slew of other factors:

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TX Inmate Facing Execution Files Last Minute Appeal:  A Texas man set to be executed Tuesday evening is making a last minute appeal to the U.S. Supreme Court to consider whether his life should be spared because he is mentally impaired.  The AP reports that 33-year-old Adam Ward was sentenced to death for the 2005 murder of 44-year-old code enforcement officer Michael Walker, who was taking photos of junk outside the Ward family home when Ward fatally shot him nine times.  Ward argues that he was defending himself when he killed Walker, though Walker was found with no weapons on him.  State attorneys say the evidence shows Ward's IQ is as high as 123 and that the late appeal is improper and without merit because it did not raise a new issue.  If the high court does not intervene, Ward will be the fifth person executed this year in Texas and ninth nationally.  Update:  The U.S. Supreme Court has denied two petitions from Ward, along with accompanying motions for stay of execution:  a petition to review the decision of the Texas Court of Criminal Appeals and a habeas corpus petition filed directly in the Supreme Court.

MS-13 Linked to 8 D.C.-area Homicides:  Authorities have linked at least eight homicides in Virginia and Maryland to the notoriously violent MS-13 street gang, also known as Mara Salvatrucha, sparking renewed concern that the gang is reasserting its dominance in the Washington metropolitan area.  Andrea Noble of the Washington Times reports that gang analysts attribute the recent spike in MS-13 violence to a failed gang truce in El Salvador as well as the surge in unaccompanied minors from Central America, who make "prime recruitment targets."  The discovered connection between MS-13 and the D.C.-area murders comes as one of the largest trials of MS-13 gang members in Northern Virginia begins this week, involving 13 gang members facing charges related to three murders and an attempted murder.

Little Done to Degrade ISIS, says ex-CIA Director:  On the heels of Tuesday's deadly terrorist attack in Brussels that killed dozens and injured hundreds, for which the Islamic State claimed responsibility, former CIA deputy director Michael Morell said that the Obama administration has "done very, very little to degrade" the terror group since the November Paris attacks.  Jenna Lifhits of the Free Beacon reports that Morell says it is safe to assume that ISIS is in the process of attempting to building a "large" and "sophisticated" network in the U.S. as it has in Europe, and though it will be difficult to establish the same kind of presence it has in Europe, it is still possible.  Morell noted that although the Obama administration did ramp up its fight against ISIS in Iraq and Syria following the Paris attacks, it still has not done enough "to degrade their ability to attack us in the West."

The Politics of Race

With which political party do black lives matter?  It has to be the party that elected Maxine Waters, Charles Rangel, Elijah Cummings to Congress and the first black President, Barrack Obama.  It is no mystery that Jessie Jackson and Al Sharpton are Democrats.   But which political party supported the Eugenics movement, which sought to cull inferior breeds, including blacks, from the world's gene pool, spawning Planned Parenthood?   Which political party filibustered to block adoption of the Civil Rights Act of 1964, and which delivered the highest percentage of votes to finally allow its passage?  And what party's criminal justice policies have saved the most black lives?  Thomas Sowell answers these questions in this column from the Press Enterprise. 
A hotly debated topic in sentencing "reform" is how to deal with recidivism.

My view has been to prevent it for as long as possible by refusing to shorten legal sentences, thus taking advantage of the incapacitating effects of incarceration.  But, I must now confess, sentencing "reformers" have found a more ingenious method: Simply don't count it.  

If there's an uptick in crime, it inevitably gets passed off as "modest" or "moderate," or by some other dismissive word, as Kent, Mike and I have previously noted.  There is a reason for this beyond merely a pro-criminal agenda abetted by statistical sleight-of-hand.  The reason is that the increase in crime tends not to affect the well-paid and comfortable people in charge. When it happens merely to minorities and Trailer Park Trash  --  well, hey, look, those people don't count that much.

Hence today's story from one bastion of "reform" (and "legalized" pot, while we're at it).  The Denver Post asks, "Colorado Reduces Prison Population, but at What Cost to Public Safety?"

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Illegal Immigrants Charged in Rape, Beating:  Four illegal immigrants from Guatemala are facing rape and other charges in an attack on a Massachusetts woman and her boyfriend earlier this month.  Fox News reports that on March 13, brothers Elmer Diaz, Ariel Diaz and Adan Diaz along with another man, Marlon Josue Jarquin-Felipe, approached the woman and her boyfriend while they were walking on the street, then grabbed the woman and carried her into an apartment while physically detaining the man.  The boyfriend broke free and fought with the kidnappers, eventually smashing a beer bottle on Ariel's head and escaping with his girlfriend. Both Adan and Ariel had been recently arrested for drunken driving, Ariel in December and Adan last month, but immigration officials claim they were never made aware of either being in custody.  Ariel and Jarquin-Felipe were both deported in 2014 but returned to the U.S. undetected.  At this time, federal immigration officials have requested detainers on all four men.

Police Officers Call Out Obama's Silence on Slain Cops:  Law enforcement officers around the nation are calling out President Obama for having "done little to signal his regret" for this year's 300% increase in shooting deaths of police officers.  Paul Bedard of the Washington Examiner reports that Carroll County, Md., Sheriff James T. DeWees wrote an open letter on Facebook to the Obama administration for ignoring the increased violence against police officers and condemning "a White House that remains silent about the uptick in deaths which ultimately gives [police officers] the perception that it's condoned."  What's more, Obama is "quick to speak out against those killed by police, often rallying anti-police groups."  So far this year, 26 cops have been killed around the country.  On Monday morning, a New Jersey officer was found shot to death in his car, and an Indiana sheriff's deputy was killed Sunday while serving a warrant.

DHS has 'no intention' of Deporting Illegals:  A top Homeland Security official says that the Obama administration has "no intention" of deporting illegal immigrants flooding across the southern border, ordering instead to release them so they don't backlog the courts.  Stephen Dinan of the Washington Times reports that Brandon Judd, president of the National Border Patrol Council, testified before Congress that the order is part of a new "catch and release" policy and also includes orders to border agents to refrain from interviewing the illegal immigrant children still surging at the border in crisis-level numbers.  For several year now, immigration officials have criticized President Obama's policies they say have tied their hands and forced them to release illegal immigrants who should have been easy deportation cases.

Academics in Denial

The abrupt explosion of violent crime in many large U.S. cities, after dropping consistently for two decades, has rocked the world of liberal academia at the very moment it was poised to celebrate the long overdue rollout of national sentencing reform.  For at least the last twenty years, renowned scholars at our finest universities have insisted that proactive Broken Windows style policing, and progressive sentencing, which increases confinement for habitual criminals, were ineffective, unnecessary, unfair and racist.  About seven years ago for several reasons, the dismantling of these policies began to spread across the country, particularly in large cities with high urban minority populations. By August of 2014, when Michael Brown was shot and killed by a police officer in Ferguson, Missouri, the news media, most politicians and civil rights organizations were pushing the narrative that American law enforcement was thoroughly racist and our prisons were full of young black and Hispanic men serving long sentences because they were caught with some drugs in their pockets.               

The Second Amendment Wins One

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The Federalist Society's Criminal Law Practice Group reports:

In a per curiam opinion, the Court vacated and remanded a decision by the Supreme Judicial Court of Massachusetts that upheld a state law prohibiting the possession of stun guns after considering "whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment." The Court held that the state court's opinion directly contradicted DISTRICT OF COLUMBIA v. HELLER (2008), in which the Court held "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." Alito, joined by Thomas, concurred in the judgment, noting that "[t]he lower court's ill treatment of HELLER cannot stand."

The Court's opinion is here.  The concurring opinion by Justice Alito, joined by Justice Thomas, shows the wisdom of Heller:  Ms. Caetano, the petitioner in the Supreme Court, was given a stun gun by a friend who wanted her to be able to protect herself from an abusive ex-boyfriend who had already put her in the hospital once.  It worked.  The next time he menaced her, she pulled out the gun.  He thought the better of it and left.

The Mask Drops, Again

Lest anyone be fooled about the ultimate aim of the pot legalization movement, this article featured on SL&P should clear it up. The idea is that legalizing pot is where we should start, but legalizing everything  --  meth, heroin, crack, all of it  --  is where we should end up.  

We are told that the way to "win" the war on drugs is complete and unconditional surrender.  One might think that using language in that upside-down way reveals that the movement has been smoking............something.

Could anyone doubt that full drug legalization will mean increased drug use?  I mean, what else happens when we lower the costs and risks of using X?  We get more of X.  And what will happen when we get more consumption of meth, heroin and all the rest? We'll get more addiction and more death.

Why would anyone want that?  

Part of the answer is that a segment of the legalization movement wants it in the name of "personal liberty."  That is a principled position, but, for my money (and that of a huge majority of the public), the price is too high.  But there's a more sinister aspect to this, as well:  Part of the legalize-everything movement simply wants a weaker America, knowing that a more-drug consuming America will be exactly that.

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TX Game Wardens Hunt Terrorists:  In addition to searching for people fishing and hunting illegally along the Texas Gulf Coast, game wardens in the state are now beefing up the department to combat the threat of terrorism.  Dave Fehling of Houston Public Media reports that the Texas Parks and Wildlife Department recently acquired 100 devices that scans cargo coming into the Port of Houston in order to detect radiological and nuclear emissions.  The department is taking this proactive approach in an effort to prevent terrorists from smuggling radioactive material into the U.S. via boat.

More Officers Buying Insurance in case of Lawsuits: 
Data released this week from the Fraternal Order of Police, the largest U.S. police union, shows an increase in law enforcement officers buying professional liability insurance policies after several high-profile officer-involved shootings have sowed fear among officers that they may face a lawsuit for on-duty actions.  Julia Edwards of Reuters reports that between July 2014 and July 2015, the number of members who bought FOP's liability insurance spiked 15% while it only grew between one to three percent in previous years.  The jump coincides with increased scrutiny of police officers following a wave of heavily publicized cases where deadly force was used against unarmed citizens.  The insurance would not protect officers from criminal prosecution but would assist in the coverage of legal fees.

CA Sex Offender Convicted of Kidnapping, Assault:  A registered sex offender was convicted earlier this month for the kidnapping and assault of a California real estate agent last year.  Cameron MacDonald of the Elk Grove Citizen reports that 48-year-old David Burnhart faces a life sentence after being found guilty on March 11 of kidnapping, robbery, false imprisonment, possessing a firearm as a felon and assault with deadly intent to rape for the January 2015 kidnapping and assault.  Burnhart lured the 34-year-old victim to a model home in a new development in Elk Grove, just south of Sacramento, under the ruse of being an prospective buyer.  Once they were in the home, he threatened her with a handgun, handcuffed her to a closet rail and removed parts of her clothing.  He was previously convicted of sexual assault in 2005.  His sentencing is scheduled for April 29. 

The Evolving Constitution

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One of the classic debates in constitutional law is about whether the Constitution "evolves."  This is, for example, at the center of much of the discussion concerning the death penalty and the Eighth Amendment, as "currently understood."  The battle between Justice Scalia's concurrence in Glossip and the two-Justice dissent filed by Justice Breyer is an apt illustration.

One of the country's leading senators has seen the Constitution evolve dramatically about a question now much in the news, given the pending Supreme Court nomination.
Judge Garland seems to me to be a bright, fair-minded and decent man.  He has experience at a high level in the Justice Department.  Taking what might be called a neutral view, he is qualified for the Supreme Court in all the usual senses of that word.

The problem is that I don't take a neutral view, and  --  let's be honest about it  --  neither does anyone else.  Certainly the President didn't when he nominated Judge Garland.  Instead, the President knew what the New York Times (yes, that New York Times) now discloses (emphasis added):  "If Judge Garland is confirmed, he could tip the ideological balance to create the most liberal Supreme Court in 50 years."

This is the Times' story, mind you.   Note in particular its graph, showing that a Justice Garland would vote squarely in the middle of the liberal bloc, a tiny bit to the right of Ginsberg and a tiny bit to the left of Kagan.

What this means is that Republicans are not taking that much of a gamble in refusing to move him along the path to a vote.  The likelihood is that, even if there is a Democratic President and Senate in 2017, the nominee to replace Garland (if he gets replaced, which is also unknown) would not be that much more liberal, if at all.

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NYC Cop Killer Evades Death Penalty:  A New York murderer who was sentenced to death by two juries for killing two undercover police officers over a decade ago has had his execution overturned after a judge found him to be intellectually disabled, despite the "calculated thought" involved in the crime.  CBS reports that 33-year-old Ronell Wilson was charged in the 2003 execution-style shootings of two undercover detectives in a Staten Island drug sting gone bad.  He was first sentenced to death by a jury in 2007 but it was overturned in 2010 due to an error in jury instructions, and a second jury re-sentenced him to death in 2013.  The year before Wilson's 2013 re-sentencing, a judge determined him to have an IQ showing sufficient intellectual functioning, but a 2014 U.S. Supreme Court decision ruled that a judge could not rely solely on a person's IQ score to determine their intellectual disability.  An appeals court sent the finding to U.S. District Court Judge Nicholas Garaufis, who vacated the prior order and instead sentenced Wilson to life in prison without parole.

Increase in Sex Offenders Arrested at Border:  Federal officials say there are a growing number of sex offenders arrested among the illegal immigrants and drug traffickers along the southern border.  Kellan Howell of the Washington Times reports that so far this year in Tucson, Ariz., border patrol agents have arrested 46 convicted sex offenders, with 10 arrests since March 1.  The number is steadily gaining on the total of 69 sex offenders arrested in fiscal year 2015.  Meanwhile, the Department of Homeland Security is planning to cut back on aerial monitoring of the U.S.-Mexico border by 50% and the Obama administration anticipates another surge of unaccompanied minors.

Bill would make Violence Against Cops a Hate Crime: 
Legislation introduced Wednesday by a Colorado republican lawmaker would make violence against police officers a federal hate crime.  Pete Kazperowicz of the Washington Examiner reports that Rep. Ken Buck's proposed bill -- the Blue Lives Matter Act -- comes on the heels of increased violence against police officers in the wake of several high-profile police shootings.  If enacted, the Blue Lives Matter Act would add violence against police officers to federal hate crime laws which could lead to tougher penalties for those who target law enforcement.  Under current law, one can be charged with a hate crime if they violently target others based on their race, color, religion, national origin, gender, sexual orientation, gender identity or disability.

Merrick Garland, a Matter of Timing

I have argued that the Republicans are correct in refusing to consider any appointment made to SCOTUS by President Obama. Judge Garland is a smart and decent man so far as I have any reason to believe, but that is not the point.  The point is that he is all but certain to be the fifth vote for anything important on the Left's Supreme Court agenda.  To take two examples, the idea that either Heller or Citizens United would survive Garland's elevation is just wishful thinking.

As Steve Erickson has noted, the Court now occupies such an outsized place in American life that its view of its role, of the Constitution, and of democratic self-rule has become too important to just pass over.  This is not a matter of partisan "bickering" or payback.  It's about the direction of American law itself.  

It's quite true that uncertainty abounds about who will succeed Obama, and what that person would do about Supreme Court nominations.  The Republicans are surely taking a risk that HRC will be elected and choose someone farther to the left.  They are also taking a risk with Donald Trump (although Trump's named Supreme Court candidates  --  Judges Diane Sykes and Bill Pryor  --  would be excellent choices).

But hold on there.  The risk is not as big as it's being advertised.

Judge Garland's Nomination


I see that Kent and Bill have posted their thoughts on the nomination of Judge Garland to replace Justice Scalia's seat on the Supreme Court.  Here are a few thoughts of my own.


It's often said that the Supreme Court is above the political fray that seems to consume so much of Washington.  But anyone who's paying attention knows that's just not the case.  For better or worse (certainly worse) the federal courts of our nation, and the Supreme Court most noteworthy, are modern political animals.  There are many reasons for this plain fact, including the vast regulatory nature of our country and the lifelong tenure that federal judges enjoy.  But, by far, by a country mile (to borrow a Bill Clinton expression), the central reason is that the courts have become the central stage where social change occurs; or rather is mandated on the populace instead of through the deliberative legislative process enshrined by our Constitution. 

There is no denying it, the Supreme Court is a political entity and should be subject to the political process most harmonious with a democratic republic:  The election of a president, which will take place in a short seven months.   Some might say that even if the Court is captured by politics we ought to try to keep it from becoming engulfed by partisan politics.  That train left the station when Judge Bork was denied his seat at the table and was out of sight when Justice Thomas endured his confirmation hearings.   When a government entity has the power to create rights not found in the constitution without any input from the electorate, it has become the most powerful government actor.  Not subjecting it to the political process makes it invincible.

I also share Kent's disappointment that if Judge Garland is successfully confirmed the Court will be comprised exclusively of graduates from two of the most elite law schools in our nation.  As a graduate of both SUNY Buffalo law school and Harvard law school I find it striking that it is assumed by so many that only a graduate of an elite school is qualified for the high court.  As best as I could discern, the main difference between these two institutions was money and political connections; not the acumen of the students.  The sterility that infects the legal academy is largely the result of the fact that so few schools are willing to consider anyone who is different than what they are accustomed to; whether that's political ideology, life experience, age, or most certainly, pedigree.   Whoever is confirmed next to the Court, I sure hope it's someone who's a bit different than what we already have who can bring a fresh perspective to the Court. 

Merrick Garland and Doubling Down, Part II

There is much focus on what the Republican Senate should calculate about the mostly liberal candidate now before it, versus later possibilities of a more liberal candidate (under Clinton) or a more conservative one (under Cruz) or God knows what (under Trump).  Less focused upon is the equally important but reverse calculation the White House was surely doing in deciding its course of action. 

It's hardly news that President Obama is thinking about his "legacy," nor is it news that Supreme Court appointments are a major part of that legacy.

Why then did Obama pick a 63 year-old, left-but-not-far-left white male Harvard grad from inside the now-detested Beltway?  This is the kind of nomination sure to leave Obama's base lukewarm to cool, which is certainly what seems to be happening.

My guess is as crass as all the identity politics that have colored the talk about a replacement since Justice Scalia's death. My guess is that Obama thinks Clinton will be indicted or, more to the point, will lose anyway, making the seat a Republican choice.

Obama is, if anything, a shrewd and in some ways a visionary politician.  It seems to me that he chose Judge Garland, whom he twice passed over, because he thinks that's the best the Left has a realistic chance of getting.  All the focus on Trump has deflected attention from something my more acute Democratic friends have been complaining about for months:  Hillary is a lousy candidate.  She's a distrusted, crony-capitalist, establishment figure in a year in which all those things are electoral poison.

It's not just the Republicans who have to confront disagreeable choices.

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OH Inmate who Survived '09 Execution can be Put to Death:  A condemned Ohio killer whose 2009 execution was called off when an execution team failed to find a vein after two hours can be put to death, the state's Supreme Court said Wednesday.  Andrew Welsh-Huggins of the AP reports that by a 4-3 vote, the court rejected 59-year-old Romell Broom's arguments that a second attempt at an execution amounts to cruel and unusual punishment and double jeopardy.  Justices sided with prosecutors, who had argued that double jeopardy doesn't apply because the lethal drugs were never administered and thus the execution never began.  They also ruled that a prior unsuccessful execution doesn't impact the constitutionality of a death sentence.  Broom was sentenced to death in 1984 for the rape and murder of a 14-year-old girl, who he abducted in Cleveland as she walked home from a Friday night football game with two of her friends.  He is currently back on death row awaiting an execution date.

Rifle Found at El Chapo Hideout Tied to Fast and Furious:  A .50-caliber rifle found at the hideout where drug lord Joaquin "El Chapo" Guzman Loera was captured two months ago has been linked to Fast and Furious, a botched sting operation that targeted gun smugglers.  Eric Tucker and Alicia A. Caldwell of the AP report that the rifle was one of 19 weapons recovered at El Chapo's Sinaloa hideout in Mexico and the only one found to be associated with Fast and Furious, a failed "gun-walking" operation in which the Bureau of Alcohol, Tobacco, Firearms and Explosives allowed gun-runners to purchase weapons with the intent of tracking them and disrupting gun smuggling operations.  As of January, the ATF had recovered 885 firearms purchased during the operation, several of which have been linked to violent crimes, including the gunfight near the border that killed Border Patrol agent Brian Terry in 2010.  The rifle found at the hideout was discovered to have been purchased in July 2010 in a straw purchase by a person not on the ATF's radar at the time.  It is not known to be associated with any other crime.

Prop. 47 Faces Continued Scrutiny from CA Police:  Law enforcement officers in California continue to credit Proposition 47, a 2014 voter-approved measure that downgraded penalties for a range of crimes for increased crime in communities statewide.  Claudia Cowen of Fox News reports that since Prop. 47's implementation, departments across the state have seen increases in theft-related crimes including robbery, burglary and identity theft, and larger cities like Sacramento, San Francisco and Los Angeles have also shown spikes in violent crimes, including robbery and homicide.  Backers of the measure continue to defend Prop. 47, citing financial savings and a reduced prison population as indicators of its success, but police officers say that while it may be working to ease the prison population in the state, it is not working to keep communities safe.
Constitutional scholars debate the question in the abstract, but WaPo Fact Checker Glenn Kessler looks at the historical record.

Though the examples are few, they tend to support the right of Republicans to handle -- or not handle --this nomination as they wish.

Merrick Garland and Doubling Down

The Garland choice is certain to the the talk of the legal blogosphere today.  Kent, and now I, will join right in.

Should the Republicans formally consider this nomination?  

To me, there are only two relevant issues.

1. Would Garland move the Court to the Left from what it was with Scalia, a direction opposite from what the country wants?

Yes he would. We don't need hearings to know that.

2. Would acting on Garland now effectively extinguish the citizens' chance to have a say at the election in eight months about the direction of the law?

Yes it would. We don't need anything but the calendar to know that.

The Garland Pick and Doubling Down

Well, so much for predictions.  Merrick Garland was not the expected choice of many of those venturing a prediction.  Tom Goldstein had this handicapping at SCOTUSblog, and that blog's series of profile posts on potential nominees had not gotten around to Garland by announcement day.  Here at C&C, Bill Otis had this post early this morning.

I was hoping for a diversity pick.  Alas, confirmation of Judge Garland would leave us with nine Justices all of whom went to Harvard or Yale.

I have been browsing Judge Garland's criminal and related opinions and haven't found anything noteworthy either way yet.

Should the Senate confirm him?  Should Republicans even allow the machinery to start?

A "no" answer is, in effect, doubling down on the election.  A victorious President Hillary Clinton would likely nominate someone further into left-wing judicial activism, making the Scalia->X transition a even larger shift than the Marshall->Thomas transition, currently the largest single-appointment shift in modern history.  A victorious Republican candidate would likely appoint someone more aligned with Justice Scalia's views.

Is this a good hand to double down on?

Probably Srinivasan

It's being reported that President Obama this morning will name his choice to replace legal giant Justice Antonin Scalia on the Supreme Court.  Judges Watford from the Ninth Circuit and Merrick Garland and Sri Srinivasan from the DC Circuit are said to be the finalists.  Gone despite all the breathless giddiness are Loretta Lynch, Jane Kelley and District Judge Jackson Brown.  Also no longer anywhere to be seen is the media's one-day darling, Gov. Brian Sandoval of Nevada, now forever consigned to Trivia questions.

The most noteworthy and depressing fact about Obama's selection is that it's a faux nomination.  Almost no one thinks either that the nominee will have been chosen (a) for something other than his political utility in squeezing Republicans, or (b) that, once the squeezing runs its course, the nomination will so much as reach the floor. 

Elections have consequences, as Barack Obama once proudly (and correctly) said.  The consequence of the 2014 election was that voters, by a decisive margin, replaced Harry Reid with Mitch McConnell, and Pat Leahy with Chuck Grassley. Grassley and McConnell have said no hearing and no vote.  They have the unity in the caucus to back it up, and they will.

The Republicans have two sound arguments for refusing to move.  

Cruz for President

The first thing I need to say here is that I am merely a contributor on this blog.  I do not speak for CJLF, which does not endorse or oppose candidates for office.  The opinion voiced here is solely my own.

With tonight's primary results, it's clear that one of three people will be the next President  --  Hillary Clinton, Donald Trump, or Ted Cruz.  (Kasich does not have a realistic shot, and Bernie will not get nominated unless Ms. Clinton is indicted soon (which is not out of the question but unlikely)).

Among the three realistic possibilities, the phrase "no brainer" jumps to mind.  Ms. Clinton is a down-the-line liberal.  Her disastrous tenure as Secretary of State sewed the weakness, retreat and violence that is now coming home to roost worldwide. She has embraced the toxic Back Lives Matter movement, which, if successful, would endanger black lives like nothing since the crack wars of the Eighties. Only a fraction of Democratic voters view her as honest and trustworthy. Her Supreme Court appointments would very likely spell the end of constitutional government in this country for as far as the eye can see.

As to Mr. Trump, words fail me.  I think I have previously used the phrase "xenophobic blowhard," but in retrospect, that was too generous.  I understand the anger, but you cannot govern just on anger; still less can you be the statesman this country needs. And if I had a teenager who acts and talks as The Donald does, I would send him to his room for ten years.

It follows that Cruz is the only choice, but I support him not just by a process of elimination.  I have known him, slightly, for about thirty years.  He is a brilliant lawyer, a backer of resolute law enforcement, and a patriot whose life story is an inspiration. 

I will have more to say in later posts.
Under the federal Constitution, governmental power is disbursed by creating federal and state jurisdictions, and by establishing, within federal jurisdiction, separate and co-equal branches.

Someone might want to remind the current Justice Department of this fact, in light of yesterday's New York Times story, "Justice Department Condemns Profit-Minded Court Policies Targeting the Poor."  The gist of it is that DOJ has snarled at state judges for attempting to collect fines lawbreakers owe.  Such efforts, we are informed, violate civil rights.

I had not previously been aware that there was a "civil right" to be a scofflaw, but you learn something new every day from the Obama Justice Department.  Perhaps the right to skip out on paying traffic fines is part, as the NYT puts it, of the Administration's push for the "rights"  --  ready now  --   of "the poor and the disabled, the transgender [sic] and the homeless."

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ISIS Hackers Post MN Cop 'Kill List':  A group of hackers with an allegiance to the Islamic state (ISIS) terrorist group posted a "kill list" on the internet with the names and personal details of 36 Minnesota law enforcement officers.  Kellan Howell of the Washington Times reports that the list was published by the Caliphate Cyber Army on Telegram, an encrypted mobile app, and included full names, home and email addresses, and phone numbers of all 36 policemen.  Last November, a congressional report stated that one in four Americans who have attempted to join ISIS are from Minnesota.

Gunman Intended to Die in MD Attack that Killed Officer:  An autopsy of the Maryland police officer fatally wounded in the line of duty Sunday revealed that he was inadvertently shot by another officer during a shootout with a gunman who ambushed a police station in an "unprovoked attack."  Emily Shapiro of ABC News reports that 28-year-old Prince George's County Officer Jacai Colson, a four-year veteran who would have turned 29 this week, arrived at the police station after a gunman intent on dying at the hands of police began opening fire.  Gunfire was then exchanged between four officers, including Colson, and the 22-year-old shooter Michael DeAndre Ford, who sustained non-life threatening injuries.  Michael Ford and his two brothers, 21-year-old Malik Ford and 18-year-old Elijah Ford, recorded Michael's last will and testament on a cell phone video minutes before heading to the police station with a plan to die by "suicide by cop" and record the incident.  All three brothers are expected to be charged with second degree murder, six counts of attempted first degree murder, nine counts of using a handgun in the commission of a felony and additional charges.

3 Officers Wounded, Suspect Killed in Chicago:  A shootout on the West Side of Chicago Monday night left three police officers injured and a suspect dead.  Laura Thoren of ABC 7 reports that the officers, dressed in plain clothes but wearing CPD vests, approached a man and woman in the city's Homan Square neighborhood while conducting a narcotics investigation, at which point the man fled into a courtyard, pulled out a gun and began firing at the pursuing officers.  At least one officer fired back, killing the suspect.  Of the three wounded officers, one was shot in the back, one in the foot and the other in the chest area.  All are expected to survive.  The dispatch audio from the scene can be heard here.

NYC to Improve Violent Conditions in Homeless Shelters:  The prevalence of violent incidents inside New York City's homeless shelters was revealed for the first time in a report released Monday, prompting City Hall to call for plans to have the NYPD retrain Department of Homeless Services officers and ramp up security.  Joe Tacopico of the New York Post reports that in shelters citywide last year, there were 416 reports of domestic violence, 153 assaults that resulted in arrest and 90 reported sexual assaults.  The city's plans are part of a $140 million reform plan that aims to not just combat the safety concerns inside shelters, but also to encourage the homeless to stay in shelters instead of sleeping on the streets.

Q: So How Is Prop 47 Working Out?

A:  Depends on who you ask.

If you ask the elite professoriate at Stanford Law School, where a number of the faculty are invested in seeing the success of their brainchild, it's doing well, because it's helping reduce the number of criminals in state prison.  This view is, of course, premised on the idea that the number of criminals in state prison is the problem. Among the Lesser People with Big Hair who don't live in the fancy (and safe) neighborhoods Stanford Law professors can afford, the view is different.  By a 2-1 margin, ordinary people sampled nationwide tend to see keeping drug dealers off the street as the problem.

Thus, if you ask the people who have to deal with Prop 47's fallout, you get a less cheerful answer:

[Yolo County District Attorney Jeff] Reisig once again [stood] before supervisors last Tuesday and [referred] to Proposition 47 in terms very similar to last year's:

"It's like rolling through a spinning turnstile," Reisig said. "Our efforts ... have been pretty dismal."

And rates of both violent and property crimes continue to rise throughout the county, he said.

Numbers provided by Cardall revealed how dismal outcomes have been:

Of the 295 active Proposition 47 cases in his department, Cardall said, "40 percent are in violation."

Sixty-five offenders have never even shown up at the Probation Department as ordered, he said, and 52 have committed new offenses.

But look, dear readers, we shouldn't worry about it.  These are only results for some far-off place with a weird name like "Yolo County."  Houses there are not nearly as pricey as the ones in Palo Alto.  And the people don't count as much, either.

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124 Released Illegals Charged in 135 Homicides:  A new report from the Center for Immigration Studies released Monday reveals that 124 illegal immigrants released by U.S. Immigration and Customs Enforcement between 2010 and 2015 were later charged with a total of 135 homicide-related crimes.  Stephen Dinan of the Washington Times reports that two of the 124 immigrants had previously been convicted of homicide before being released by ICE and committing another homicide, while the others had amassed 464 total criminal charges ranging from drunken driving to drugs, before being freed from jail and charge with homicide.  The data reaffirms ICE's "dangerous practices," showing that over 156 illegal immigrants with criminal records, averaging 11 crimes a person, were released from ICE custody at least twice.  The names of the criminal aliens included in the report have been redacted by the Judiciary Committee.

Officer Dead in Shooting near MD Police Station:  A Maryland police officer was ambushed and fatally shot outside a police station Sunday afternoon.  Jason Silverstein of the NY Daily News reports that Prince George County Police Officer Jacai Colson, a four-year veteran of the force, was shot and killed in an alleged failed attempt at a filmed suicide by cop involving three brothers, Malik and Michael Ford and a third, unidentified brother, who were all taken into custody.  One of the suspects was shot and wounded after exchanging gunfire with officers but is expected to survive.  The role of each of the brothers is unclear at this point in the investigation and none of them have been formally charged.

NYC Mayor Blames Slashing Spike on Gun Control:  New York Mayor Bill de Blasio's claim made earlier this month that the explosion in random slashing attacks this year is because criminals can't access firearms is being met with skepticism from law enforcement experts.  Maxim Lott of Fox News reports that many law enforcement experts believe that the increase in slashings, which are occurring on the subway and at tourist attractions, are due to de Blasio's decision to end NYPD's stop-and-frisk policy, in which officers stop people based on suspicion and frisk them for weapons and other illegal items.  As a result, "criminals know they can carry knives like they did back in the 1980s."  A total of 567 random slashing attacks have occurred since the start of the year, about a 20% spike compared to the first three months of 2015.

Yolo Officials Report Continued Problems under Prop 47:  In March 2015, Yolo County District Attorney Jeff Reisig told the Board of Supervisors that California's Proposition 47, which reduced certain felonies to misdemeanors, had produced a "revolving door of low-level arrests."  One year later, Reisig again stood before the supervisors and echoed the same sentiments.  Anne Ternus-Bellamy of the David Enterprise reports that last Tuesday, Reisig shared that rates of both violent and property crimes continue to rise throughout the county, and Chief Probation Officer Brent Cardall agrees that "Prop. 47 has not been good."  Cardall revealed that of the 295 active Prop. 47 cases in his department, 40% are in violation, 65 total offenders have never shown up at the Probation Department as ordered, and 52 total have committed new offenses.  A mere eight offenders have graduated from treatment.  Reisig and Cardall believe that there is a lack of "a stick" to sway offenders towards treatment and no incentive to stay in it if they do choose it.
Probably the leading spokesmen for sentencing "reform" are no longer on the Left  -- the Left having shown (in fits and spurts) that it realizes lower sentencing will produce more crime, but believing that Amerika has it coming because of its racist, classist, sexist and otherwise Really Mean ruling class.  The class consists of people like Mitch McConnell, Jeff Sessions, Tom Cotton, Clarence Thomas, Thomas Sowell, Heather MacDonald and anyone else who didn't have a poster of Che Guevara hanging in his or her dorm room. That the victims of increased crime are certain to be disproportionately minorities never seems to register with the Left.  I guess Black Lives Don't Matter that much.

The more serious advocates for sentencing reform (which is actually mass sentencing reduction, although they understandably use a more opaque term) are those on the libertarian-left.  I consider my pal Prof. Doug Berman one of their leading lights.  Thus, at his urging, I would point readers to the discussion of the libertarian case for less incarceration taking place on the (now quite long) thread to this earlier post.

For now, I would note only two things.  First, the idea that we'll have a less bloated, spendthrift government with less incarceration isn't uniformly working out too well, according to the news story in my most recent entry.  Second, it will be my pleasure to have the chance to discuss these questions with Doug when we debate at Campbell Law School in Raleigh NC on April 11.

UPDATE:  I have added the phrase "in fits and spurts" to the first sentence because, as has been pointed out to me, the Left does not uniformly admit that lower sentencing will produce more crime.
Well, hey, look, it seemed like a good idea at the time.

This Indiana paper, the Herald Bulletin, spills the beans:  Prison officials say lighter sentences aren't saving money.

INDIANAPOLIS -- Prison officials say a massive sentencing reform law that was supposed to save taxpayer money is actually costing more.

The Department of Correction reports costs have more than tripled since it began diverting low-level offenders out of state prisons and back into their communities, as required by the new law.

Its report, which has yet to be released publicly, is alarming to some lawmakers who've seen it....

Lawmakers who pushed to lower penalties for drug-related crimes, such as drug possession and theft, vowed to return anticipated savings from prison costs to communities for treatment programs, community corrections and local lock-ups.

But, according to the department's report, there's no money to send.

This despite a reduction in the prison population of more than 5,000 inmates - a 17 percent drop - since the law went into effect in July 2014.

Local sheriffs who supported the sentencing reform law are unhappy.

How many of those 5000 (now) non-inmates do you suppose have returned to crime?  Just askin'.

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UT Bill to Ban Death Penalty Fails:  Utah legislation that would have abolished capital punishment in the state failed late Thursday as lawmakers were unable to achieve enough support to pass the bill.  Andrea Noble of the Washington Times reports that the legislation to do away with the death penalty in Utah which passed in the Senate and a House committee this week,  came as a shock in a state that just last year sought to revive the use of firing squads in executions if lethal-injection drugs were unavailable.  The last person executed in the state was in 2010 by firing squad.  There are currently 31 states in the U.S. that allow the death penalty, while 19 have banned the practice completely.

CA Gov. can Pursue Inmate Ballot Measure:  The California Supreme Court ruled Wednesday that Gov. Jerry Brown can move forward with a plan to reduce the state's inmate population by releasing "certain non-violent felons" early, even while a legal challenge is still being considered.  Paul Elias of the AP reports that back in December, a ballot measure was filed with the Attorney General's office proposing the discretion of whether to prosecute juveniles as adults be transferred from prosecutors to judges; however, after the 30-day public comment period on the measure expired, language was added amending the state constitution to allow certain non-violent adult felons to qualify for early release from prison.  This week's order by the high court means that while the court decides whether Brown made improper, late additions to the proposed measure, supporters of the measure can continue gathering signatures to qualify it for the November ballot.

Lamar Smith Argues in Favor of Mandatory Minimums:  In this Washington Times op-ed, Lamar Smith, a Republican member of the House of Representatives from Texas, defends the use of mandatory minimum sentencing, arguing that soft prison terms endanger innocent, law-abiding citizens.  Smith refutes often-cited justifications for lowering federal mandatory minimum sentences, such as size of the prison population, incarceration costs and too many nonviolent offenders imprisoned for too long, and concludes that one explanation for why crime rates remain lower today is that mandatory minimums have helped keep criminals behind bars.  "The lives and property of innocent Americans are at stake," he says.

The Art of the Deal?

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In a letter to the editor in today's WSJ, Jeff McCormack proposes a strategic bargain among the non-Trump candidates.

Update (3/11):  The NYT reports:

A top aide to Senator Marco Rubio on Friday urged his supporters in Ohio to back Gov. John Kasich in that state's primary on Tuesday, giving fresh momentum to efforts to stop Donald J. Trump a day after a debate in which his rivals declined to take a swing at the leading Republican presidential candidate.

Alex Conant, Mr. Rubio's spokesman, made the comments in an interview with CNN. He said that he hoped supporters of Mr. Kasich and of Senator Ted Cruz would support Mr. Rubio in his home state primary in Florida, and that he would suggest Mr. Rubio's backers in Ohio do the same by supporting Mr. Kasich there.

The Myth of Mass Incarceration

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Last month I noted Barry Latzer's WSJ op-ed, the Myth of Mass Incarceration.  The ACLU sent in a letter to the editor criticizing the article, and today Latzer has this response.

It seems the ACLU made the common error of citing federal prison statistics to support an argument about incarceration in the nation generally.  As Latzer points out, federal prisons are only 13% of the total and not at all representative.

News Scan

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Los Angeles Homicides Increased in 2016:  So far in 2016 compared to the same period last year, killings in Los Angeles have jumped by 27.5%, continuing the city's trend of rising violent crime.  Kate Mather of the LA Times reports that along with the surge in homicides, Los Angeles has experienced an overall 12.7% rise in violent offenses, including double-digit increases in aggravated assaults and robberies.  LAPD Chief Charlie Beck noted in his weekly report to the Police Commission that many of the shootings are gang-related; as of last week, over half of the city's 48 recorded homicides were believed to be related to gang activity.

Gunmen Ambush PA Party, Kill 5:  A manhunt is underway for at least two gunmen who opened fire during a backyard party in suburban Pittsburgh, Pa., on Wednesday evening, killing five people and wounding three others.  The AP reports that four women, one of them pregnant, and one man were gunned down when the two gunmen, "working as a team," ambushed the partygoers and fled on foot.  Authorities say that one or two of the victims appeared to be targeted and drugs is being looked into as a possible motive.  The tragedy unfolded in Wilkinsburg, a poor suburb east of Pittsburgh that has a reputation for drug trafficking and gun violence. 

Latest DHS Push Yields Hundreds of Arrests:  Since launching an effort on Jan. 23 to deport people living in the U.S. illegally, the Department of Homeland Security have arrested 336 illegal immigrants.  Andrea Noble of the Washington Times reports that DHS Secretary Jeh Johnson issued a statement Wednesday which said that an immigrant must be sent home if they were apprehended at the border, ordered removed by an immigration court, has no pending appeals and does not meet the qualifications for asylum or other relief.  Most of the 336 arrests for removal are young people who have been ordered deported after crossing the U.S. border without their parents over the course of the migration crisis, which began in 2014.  Since October, immigration authorities have returned 28,808 Central Americans and about 128,000 Mexicans to their home countries.

Executions Continue Apace

With the Texas execution tonight of multiple killer Coy Westbrook, the United States has executed eight inmates in the first 70 days of 2016.  If it continues at that pace (which could either slacken or accelerate), there will be 41 executions this year.  That is the average annual number for the nine preceding years (although slightly more than in any of the last three).  See this chart.

We often hear that the death penalty is dying, but capital punishment keeps knocking on its coffin lid.  Year after year, it tells us it's plugging along.  If this year continues as it has over its first roughly two and a half months, we'll wind up with an execution about every nine days, the same pace as throughout the last decade.  This might not be a robust institution, but, if you go by the numbers, it's not a dying one either. 

When executions continue at a more-or-less constant pace for ten years; and public support for the death penalty remains at or above 60% in each of them (and for the three decades before then); and when, last year, seven Justices declined to go along with two of their colleagues in questioning the per se constitutionality of capital punishment (Glossip)  --  well, I suppose the abolitionist hype will continue, since that seems to be what they do, but hype is still just hype.

It's no big mystery why the death penalty won't go away despite the numerous stern, or sometimes more condescending, sermons from Our Betters:  When you have Wendell Callahan, a career criminal and drug dealer, slicing up little girls out of sheer hate, people are going to understand that we still need a punishment that fits the crime.
One of Justice Scalia's pithiest observations about the Constitution was that is says what it says and doesn't say what it doesn't say.  

One reason I favor the strategy of waiting for an appointment from the next President is that we know the current occupant of the Oval Office has no intention of appointing a Justice with anything approaching Justice Scalia's depth, discipline, rigor and unyielding fidelity to law.

I got a reminder of just how bizarre a path "make-it-up-as-you-go-along" constitutional law can become when I read this article in the Boston Globe titled, "The constitutional right to a healthier climate."  

On Wednesday, a judge in US District Court in Oregon will consider whether a constitutional challenge to federal actions that underwrite fossil fuel emissions may proceed. Brought by youth plaintiffs, and by me, on behalf of future generations, the lawsuit alleges that by permitting...and subsidizing the exploitation, production...and burning of fossil fuels, our government has caused or substantially contributed to the present emergency in which the very viability of a hospitable climate system is at stake. We argue that such federal actions infringe upon the fundamental guarantees of the Fifth Amendment, including the rights to life, liberty, property, and equal protection of the law.

In other words, the claim is that the Constitution not merely accommodates, but commands, fruitcake environmentalism.

I knew I would miss Justice Scalia, but I didn't know it would be this much this soon.
Phil Helsel reports for NBC:

A former death-row inmate has been charged with keeping a woman captive and sexually assaulting her for months in Colorado, officials said Thursday.

"She's been through hell and back," Mesa County Sheriff's Office Sgt. Henry Stoffel told NBC station KUSA.
Claude Lee Wilkerson, 61, was arrested in February and charged Monday with 10 counts in all, including first-degree kidnapping, false imprisonment, sexual assault and harboring a minor, according to court documents.
But Wilkerson was once sentenced to death for a prior murder.  He never should have hurt anyone again.  How did he get off?  His confession was thrown out, and his conviction was reversed, not because the confession was involuntary in violation of the real Fifth Amendment actually in the Constitution, but only because its taking did not comply with the Miranda rule invented by the Supreme Court out of whole cloth in 1966.

KUSA has this video report on the overturning of the prior conviction.

The rules of law that set criminals free despite solid evidence of guilt tend to be taught in abstract, antiseptic terms in law school.  Most law students go along with their pro-defendant professors and endorse these rules.  I have known students and lawyers to react in horror at the very idea that anyone would challenge Miranda v. Arizona and Mapp v. Ohio.  Many are completely incapable of grasping the distinction between these entirely court-created doctrines and the actual Bill of Rights.

Yet these rules have real, human costs.  They have costs when victims and their families see perpetrators walk.  They have even greater costs when those perpetrators commit new crimes.
Devlin Barrett reports for the WSJ:

The nation's top law-enforcement official chided the White House on Wednesday for offering opinions about the probe into Democratic presidential front-runner Hillary Clinton's use of private email while at the State Department.

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TX Murderer to be Executed:  A condemned Texas murderer is set to be executed Wednesday evening for a shooting rampage that left five people dead more than 18 years ago.  The AP reports that 58-year-old Coy Wesbrook is scheduled to die by lethal injection for gunning down his ex-wife, Gloria Coons, her roommate and three men during a party at Coons' apartment in 1997.  Wesbrook testified at his 1998 trial that he "lost it" after Coons humiliated him by having sex with two men while he was there, so he shot all of them with a .36-caliber rifle that he had in his vehicle.  He will be the eighth convicted killer put to death this year nationally and the fourth in the state.  Two more Texas inmates are scheduled to be executed later this month, and another is scheduled in April.

Man Suspected of Killing 5 in MO, KS Captured:  A Mexican national and deportee living in the U.S. illegally and suspected of killing five men in two states was arrested early Wednesday following an intensive manhunt.  Jim Suhr of the AP reports that 40-year-old Pablo Antonio Serrano-Vitorino gunned down his neighbor and three other men his his neighbor's Kansas home on Monday night before fleeing to Missouri, where he killed another man inside his rural home the next morning.  Authorities have not discussed a motive for any of the killings, possible connections between the victims and the shooter or what may have prompted the rampage.  According to U.S. Immigration and Customs Enforcement, Serrano-Vitorino was deported in April 2004 but illegally re-entered the country on an unknown date.  As of Wednesday, Serrano-Vitorino was placed on ICE detainer and facing four charges of first-degree murder in the Kansas killings.

Record Number of Unaccompanied Minors Expected to Flood Border:  The number of unaccompanied minors entering the U.S. from Mexico is on track to surpass the record-breaking surge set in 2014, the Senate Homeland Security chairman suggested Tuesday.  Rudy Takala of the Washington Examiner reports that since the fiscal year began, Department of Homeland Security officials have apprehended 23,533 unaccompanied minors trying to cross the border and predict that, if this pace is maintained, the total number for the year will reach approximately 77,000, outpacing the total of 68,541 set during the 2014 crisis.  A Center for Immigration Studies report released earlier this week estimates that there are 15,7 million immigrants living in the U.S. illegally.

A Guarantee of More Crime Faster

Prof. Doug Berman, author of Sentencing Law and Policy, today writes a post that (unintentionally, I think) spills the beans on what will happen if, as the SRCA would have it, we start releasing more federal felons earlier.

We'll get more crime faster.

How do we know that?  Because, as Doug's entry discloses, half (49.3%, to be exact) of released federal inmates recidivate (or so says the US Sentencing Commission).  Most do so within the first two years after being put back on the street.

The Commission also reports that most re-arrest offenses were for non-violent crimes.  That is, of course, what we should expect: The bulk of the those convicted of federal crimes were in for consensual drug trafficking, immigration offenses or fraud; such is the nature of federal criminal jurisdiction.  But to say that the re-arrest offenses were not violent is scarcely to say that they were not harmful (although that is often misleadingly implied).  Trafficking in hard drugs is one of the most harmful enterprises going on in this country.  Even when not accompanied by violence in any given transaction, it is rooted in violence, begets violence, and grossly aggravates the already appalling epidemic of heroin overdose deaths.

I'll note only two more things for now.  First, having half of released inmates recidivate is shocking.  It puts the lie to the idea that attempted rehabilitation can be counted upon.  Second, the actual recidivist crime figure is certain to be significantly higher, since most crime  --  and certainly most drug transactions  -- never even get reported.

Want more crime faster?  No problem.  Enact the SRCA.

Trump and Alternatives

This is about politics rather than directly about crime, but with the Supreme Court hanging in the balance in this election, we have to pay attention.
Rumor has it that the Obama White House wants to nominate a successor to Justice Scalia who would be hard for Republicans to oppose.  One name that has been floated is Judge Jane Kelly of the Eighth Circuit.

Thomas Hopson has this post at SCOTUSblog.  He lists five capital cases that Judge Kelly participated in.  They are all cases decided en banc or denying rehearing en banc with a dissent.  In every one of five cases, a large majority of the court decides against the murderer or decides not to review a panel decision against the murderer, and in every one Judge Kelly joins the dissent.

While an honest judge faithfully applying the law may occasionally need to reverse a conviction or sentence or stay an execution in a case that has completed the full review cycle, these are the exceptions.  Most cases that have reached this stage are sound judgments, and execution should go forward.  A judge who votes this consistently for the murderer in cases where large majorities go the other way almost certainly has an agenda and is willing to bend the law in the murderer's favor to advance that agenda.  That willingness is disqualifying.

What kind of Bizarro World are the folks in the White House Counsel's office living in that they think a judge with this kind of record would be difficult for Republicans to oppose?

The facts that Senator Grassley supported her for the Eighth Circuit or that she was easily confirmed for that seat are now irrelevant.  She didn't have that record then, and in any event there is a fundamental difference between an intermediate appellate court and a court of last resort.

News Scan

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VA Senate Passes Death Penalty Bill:  A bill passed Monday in the Virginia Senate allows for use of the electric chair in executions when lethal-injection drugs are not available.  Laura Vozzella and Justin Jouvenal of the Washington Post report that although the electric chair is already an option that condemned Virginia inmates can choose over lethal injection, the new measure would make it the default execution method if lethal-injection drugs cannot be obtained.  The House of Delegates initially approved the legislation in February, but is set to vote on it again after the Senate amended it to require the director of the Department of Corrections make "substantial efforts" to obtain lethal-injection drugs before using the electric chair.  If the House accepts the Senate version, the legislation will go to Gov. Terry McAuliffe.  There are currently seven people on death row in Virginia but only one scheduled execution, on April 13.

Chicago Man Charged in Boy's Death:  A Chicago gang member is facing a first-degree murder charge in last year's shooting death of a nine-year-old boy, who was targeted and killed due to his father's gang ties.  Don Babwin of the AP reports that 22-year-old Dwight Boone-Doty, 27-year-old Corey Morgan and a third man who is still at large lured fourth-grader Tyshawn Lee into an alley last November by promising him a juice box and then shot him fatally in the head, allegedly as retaliation stemming from gang rivalries.  Boone-Doty, who was paroled last August after serving two years on a five-year sentence in a drug case, is also charged with the October murder of a 19-year-old girl and attempted murder and aggravated battery of a 20-year-old rival gang member.

Suspect Sought in KS Quadruple Murder:  A fugitive suspect believed to be responsible for a quadruple murder Monday night in Kansas is now also being sought in the Tuesday shooting death of a fifth person.  Fox News reports that 36-year-old Pablo Serrano-Vitorino was the neighbor of the four men shot and killed at a Kansas City, Kan., home on Monday and his pickup truck was found abandoned in Missouri on Tuesday near a home of a 49-year-old man who was shot to death.  Serrano-Vitorino was last jailed in June 2015 for domestic battery.

WV Legalizes Concealed Carry without Permit:  In a bipartisan effort to enact permitless gun carry, the West Virginia legislature on Saturday overturned the veto of Democratic Gov. Earl Ray Tomblin, which will, beginning in June, allow anyone over the age of 21 who can legally possess a firearm to carry it concealed on their person without having to obtain a permit.  Stephen Gutowski of the Free Beacon reports that the law also creates a provisional permitting process for people between the ages of 18 and 20 who were previously excluded from the permitting process altogether.  West Virginia is now the eighth state in the U.S. to adopt the "constitutional carry" permitless structure; most states, at a total of 34, adhere to the "shall-issue" structure, where applicants are issued a permit if they pass a background check and whatever training and identification requirements are set by the state, while far less, just eight states, follow the the most restrictive "may-issue" structure, which sometimes denies permits even if all requirements set out by the state are met.

What Are Prisoners Really In For?

A pervasive myth in America today, one that we have denounced many times on this blog, is that our prisons are full of harmless people locked up for minor offenses who can be released with no danger to the public.

Hard data are hard to come by, especially at the state level.  The information available is often aggregated into broad categories that make it very difficult to present the truth clearly.  We know anecdotally that overall prosecutors are only seeking prison sentences and judges are only imposing them in cases where they are genuinely deserved, with exceptions being rare.  Still, the myth has a firm hold and has fooled people who should know better.

CJLF has recently obtained data from the California Department of Corrections and Rehabilitation that tallies up the state prisoner population by offense of commitment at the detailed level.  Marissa Cohen, our Public Policy Director, has put the data into charts.  The pie chart is to the left, and the bar chart is after the break.  Click on the chart for a larger version.

On the pie chart, start at 12 o'clock and go clockwise.  Homicide, robbery, assault, sex crimes, and kidnapping bring us all the way to 9 o'clock.  Three-quarters of state prisoners are in for crimes of violence.  Add in burglary of homes, and we are up to 10 o'clock -- five-sixths.  Burglary of a home is a crime of psychological violence.  The harm it inflicts goes far beyond the monetary damage from forced entry and theft.  The drug offenders are mostly in for trafficking, not possession for personal use.

News Scan

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NM Ranchers Outraged with Border Security:  Ranchers in New Mexico's Bootheel near the U.S.-Mexico border are fed up with the lack of security, citing an increase in kidnappings, break-ins and vandalism across Hidalgo County and southeastern Arizona.  Lauren Villagran of the Albuquerque Journal reports that the Bootheel area is frequented by drug traffickers from Mexico. Traveling north to move their drugs, traffickers often take ranch hands hostage, load their vehicles with narcotics, force them to drive hundreds of miles and threaten to harm them if they go to the police.  The Border Patrol's Lordsburg station, in charge of monitoring the Bootheel area, has been significantly understaffed in recent months, down about 50 agents in a location that is budgeted for 284 agents.  Ranchers and other residents are pleading for an increase in agents along the border.

CT Law Would Bar Suspected Sex-Predators From Teaching: 
New legislation in Connecticut aims to ban a maneuver called "passing the trash," in which a teacher suspected of or known to have engaged in sexual misconduct with a student is able to receive recommendations and jobs at new schools.  Michelle R. Smith and Susan Haigh of the AP report that in 2010, the U.S. Government Accountability Office studied 15 cases of K-12 schools that hired or retained teachers with histories of sexual misconduct, finding that 11 of the cases involved people who previously targeted children and six cases discovered that offenders used their new positions to target more children.  Excuses for retaining suspected sex offenders included the high cost of firing a teacher and fear of lawsuits if a positive reference wasn't provided.  The legislation proposed in Connecticut would require schools to contact a teaching candidate's past employers to specifically ask if the applicant was ever investigated, disciplined or asked to resign over abuse or sexual misconduct allegations.  Additionally, a new federal mandate introduced requires states to create policies that make it illegal for schools to help an employee get a new job if they suspect them of abusing children.

FL Gov. Signs New Death Penalty Law:  Two months after capital punishment in Florida was put on hold after the U.S. Supreme Court ruled that the state's system was unconstitutional, Gov. Rick Scott signed a bill into law Monday, which takes effect immediately.  Steve Bousquet of the Miami Herald reports that under HB 7101, juries in capital cases are required to agree unanimously on the aggravating factors that under Florida law qualify a murderer for a death sentence.  It also stipulates that at lest 10 of 12 jurors must agree on a recommendation of death. Previous Florida's law allowed a jury to recommend death by a simple majority vote.  Several death row inmates in the state have filed appeals arguing that their death sentences are invalid because the old law that was in effect when they were sentenced was declared unconstitutional.  Justices will begin considering the first of those cases this week.

A Fact-Bound Summary Reversal

The U.S. Supreme Court summarily reversed a Louisiana state court's denial of habeas corpus relief to Michael Wearry, an inmate on that state's death row.

Generally, if one has prevailed in a lower court and wants the U.S. Supreme Court to deny review, arguing that the case is "fact-bound" is a good bet.  The Supreme Court's "reason for being" is to settle broad questions of law on which other courts disagree, not to police case-specific application of settled law to particular fact patterns.

In this case, Wearry claims he actually didn't do it, and he is one of the rare death row inmates with a "colorable claim" to that effect, to use Judge Friendly's famous term.  The specific constitutional violation claimed is that the prosecution failed to disclose exculpatory evidence.  The "application of law to fact" question is whether that evidence is "material," defined "new evidence [that] is sufficient to 'undermine confidence' in the verdict."  (See p. 7 of the slip opinion.)

Justice Alito, joined by Justice Thomas, finds summary disposition "highly inappropriate" and calls for the case to be given full briefing and argument instead.

This is the kind of case that should not have been capital in the first place.  In my opinion, trial prosecutors should not seek the death penalty in any case where the evidence of identity of the perpetrator is such that a jury would have any difficulty at all finding that the proof is beyond a reasonable doubt.  More discretion here would avoid a host of problems, and most prosecutors' offices do, in fact, screen out cases on that basis.

Florida Fix Final

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Florida's Hurst fix bill, HR 7101, was signed by Governor Scott and chaptered as 2016-13.

Just Say "Rest in Peace"

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If we really wanted to reduce the incarceration of drug dealers without endangering public safety -- and reduce the massive harm caused by drug abuse at the same time -- the best way to do it would be to convince people, especially young people, not to use drugs.

Nancy Reagan's "Just Say No" campaign was widely reviled and ridiculed by the "cool kids" of America's media and academia.  But it worked.  Drug use among America's youngsters took a major plunge.  The abandonment of that effort was one of the worst mistakes of modern history.

Nancy Reagan did far more good for the country than the First Ladies more widely admired in popular culture.  May she rest in peace.
Lee Liberman Otis has this post at SCOTUSblog with the above title, noting how her constitutional law professor, Antonin Scalia, had a view of the Marbury case different from what is usually taught in law school. 

This reading of Marbury, I later realized, was integral to how Justice Scalia saw his job - not as the shaper of the Constitution, but as its servant.   And while, to be sure, there is something to be said for both ways of viewing the case, it turns out that there is a lot more to be said for Justice Scalia's than most of the professoriate had been inclined to think.
Two months ago, I denounced an NYT hatchet job misrepresenting one of the cases Cruz handled in the Supreme Court when he was Texas Solicitor General.  Now we have this article by Jonathan Mahler. 

This time the focus is on the case of José Medellín, one of the perpetrators of one of the most horrific gang-rape murders in the history of Houston.  I know a lot about this case.  I wrote three briefs in it before we finally delivered this scum-of-the-earth his just deserts.  Cruz rightly touts his role in this effort as a major accomplishment, but Mahler views it through the Times's partisan, polarized "all the news that fits our agenda" lens.

As with the previous post, let me note that CJLF takes no position in the Republican primary and endorses no candidate.  We care about the truth.  It is painfully evident that Mahler and the NYT do not. 

News Scan

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Police Opposed to Proposed Pawnshop Law Changes:  Police are against a proposal in the Ohio Legislature that would loosen reporting requirements for pawnbrokers and scrapyard owners, making it easier for thieves to sell stolen property.  Lucas Sullivan of the Columbus Dispatch reports that Senate Bill 270 would remove the burden on pawnshop owners to comply with municipal laws detailing how they must report the items they buy to police, which typically entails reporting purchases to a database operated by a third-party company.  The burden would instead shift police and local governments rather than business owners.  The bill also eliminates a requirement for pawnshop owners that says they must refuse to purchase items from people who are intoxicated or who are known or believed to be a criminal or receivers of stolen property.  The bill has yet to be scheduled for a committee hearing.

AL Judge Declares Death Penalty Scheme Unconstitutional:  An Alabama judge ruled Thursday that the state's death penalty sentencing scheme, which permits judges to override jury recommendations, is unconstitutional.  Kent Faulk of AL reports that Jefferson County Circuit Judge Tracie Todd's ruling, which followed a hearing, barred the death penalty in the cases of four men charged in three murders.  Todd's order does not apply statewide, as she has only barred imposition of the death penalty in the cases before her, but it could become precedent if an appellate court were to uphold her ruling.  Defense attorneys argue that Alabama's death sentencing scheme is the same as Florida's, which was ruled unconstitutional by the U.S. Supreme Court in January, and that a jury, not a judge, should have the final say in whether to impose a death sentence.  Prosecutors say, however, that the two systems are not exactly the same because Alabama law, unlike Florida, allows juries to decide on aggravating factors.  Further, the U.S. Supreme Court knew about the similarities between the two sentencing schemes but did not strike down Alabama's two months ago when it made its ruling against Florida's.

Judiciary Chairmen Angered over Immigration Policies:  House and Senate Judiciary Committee Chairmen expressed outrage this week toward an Obama administration policy that facilitated the release of three criminal aliens charged with drunk driving and implicated in the murder and injury of Americans.  Caroline May of Breitbart reports that at the center of the issue is the selective immigration enforcement policies of the U.S. Department of Homeland Security that were enacted with President Obama's 2014 executive amnesty, in which deportations of illegal immigrants are prioritized to include only those who have a felony conviction, are a threat to national security, have multiple misdemeanors or are recent border crossers.  The Chairmen say that the Obama administration's high bar to enforce immigration law has resulted in at least two women dead, one in a coma and another seriously injured.
My last entry was titled, "White House Misplays Grassley for a Chump."  It referenced (without linking) a New York Times "news" story saying that the President would put Senate Judiciary Chairman Chuck Grassley "in an awkward dilemma" should Grassley choose to obstruct the possible Supreme Court nomination of fellow Iowan, long-time criminal defense lawyer, and now Judge, Jane Kelly.

The Times also had this juicy paragraph (emphasis added), perhaps explaining why it believes that Sen. Grassley would face so serious a problem by opposing a hard Left replacement for Antonin Scalia:

Nevertheless, Mr. Obama has publicly predicted that Republicans, faced with a well-qualified candidate and a constitutional mandate to provide advice and consent, will ultimately relent and allow hearings.

I went all the way through Stanford Law School and forty years of practice without knowing, until today, that there is "constitutional mandate to provide...consent."  I had thought the Senate could withhold consent.

With the NYT, you learn something new every day.

News Scan

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TX Officer Killed in Ambush:  A Texas police officer was shot and killed Tuesday in an ambush attack, making him the 10th police officer shot and killed in the line of duty in the past 30 days and the 16th this year.  Bob Price of Breitbart reports that 29-year-old Officer David Hofer was killed by 22-year-old meth addict Jorge Brian Gonzalez, who had burglarized a home and stolen several guns, then lay in wait for police to arrive.  When Hofer and his partner arrived at the scene, Gonzalez refused their orders to stand down and began shooting, striking Hofer, and was also killed by returned gunfire.  Earlier in the day, Gonzalez appeared before a judge and was ordered to perform community service on a public intoxication charge before being released from jail.  Hofer was a two-year veteran of the Euless Police Department, having previously serving five years in the New York Police Department before moving to Texas believing it would be safer than being a cop in New York City.

UT Senate Passes Death Penalty Repeal:  Utah senators narrowly cleared a proposal with a 15-12 vote Wednesday to abolish the death penalty in the state, advancing it to the House of Representatives.  Michelle L. Price of the AP reports that the bill, which was unveiled three weeks ago, "marks a stunning turn" in the conservative state, where lawmakers voted to reinstate the use of the firing squad as a backup execution method just one year ago.  However, even if the measure wins approval in the House, it will likely hit a wall with Utah's Republican governor, Gary Herbert, who is a strong supporter of capital punishment.  Over the past year, at least eight states have introduced proposals to repeal the death penalty.
The Florida Senate rejected an amendment to the House bill to fix the Hurst v. Florida problem and then passed the bill 35-5.

Both of the bills considered by the legislature fix the immediate problem by having the jury render an explicit verdict on qualifying aggravating circumstances unanimously and based on proof beyond a reasonable doubt.  The compromise bill allows the jury to recommend a death sentence on a 10-2 vote or greater.

The defeated amendment would have undone the compromise and adopted a single-juror-veto system.  A genuine jury unanimity bill, requiring the jury to decide unanimously one way or the other as it does in the guilt phase, was never considered.

Meanwhile, in Colorado, a committee killed an attempt to dump the single-juror-veto system that produced the miscarriage of justice in the Aurora theater shooting case and replace it with a true unanimity system.  The vote was nearly along party lines.

In Utah, a repeal bill narrowly passed the state senate, Jacob Gershman reports in WSJ Law Blog.  The governor is a strong supporter of capital punishment.

White House Misplays Grassley for a Chump

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My friend Ed Whelan, a former clerk to Justice Scalia and now a writer for NRO's "Bench Memos," has a piece today from which the title of this post is taken.  Ed writes:

By floating the name of Eighth Circuit judge Jane L. Kelly as a possible Supreme Court nominee, the White House is treating Senate Judiciary Committee Chuck Grassley as though he were a chump. The White House is hoping that because Kelly has worked in Iowa since 1994 and because Grassley supported her 2013 nomination to the Eighth Circuit, Grassley might face an "awkward dilemma," as a New York Times article puts it, if Obama were to nominate her. 

I'm glad (but not at all surprised) to see that Grassley has forcefully rejected this ploy, reiterating his position that no nominee this year ("the person doesn't matter, see") will get a hearing. Further:

 "You know, one of the questions I will ask them [in any meeting]," he said of the eventual nominee, will be "what they feel about being used as a political pawn."

The White House must be close to delusional if it thinks Judge Kelly's simply working in Iowa, and having Sen. Grassley return the blue slip for a job on the vastly less important Eighth Circuit, makes it likely, or even realistically possible, that Grassley would support a career criminal defense attorney, without any noticeable scholarship, to fill the seat of an intellectual giant like Justice Scalia.  Sen. Grassley may be making a mistake on sentencing reform (he is in my view), but he is a serious man and a principled conservative who is not about to get hoodwinked by a transparent and, frankly, demeaning stunt.

News Scan

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FL Supreme Court Considers Pending Execution:  A condemned Florida murderer is scheduled to be the first person executed in the state since the U.S. Supreme Court ruled that its death penalty system is unconstitutional.  Larry Hannan of the Florida Times-Union reports that attorneys for 51-year-old white supremacist Mark James Asay, who is set to be executed on March 17, argue that the execution should be delayed indefinitely until the Florida Legislature amends the law, which was found to be in violation of the Sixth Amendment to the Constitution because the judge rather than the jury makes the final decision of whether someone is sentenced to death.  Assistant Attorney General Charmaine Millsaps disagrees, stating that the execution should proceed because the U.S. Supreme Court did not rule one way or another on retroactivity.  Others argue that the decision is "merely procedural" and should not interfere with planned executions.  Asay was sentenced to death in 1987 for murdering a black man and a cross-dressing prostitute he believed was a black woman, but was actually white.  A Supreme Court ruling of his case is expected to be made this week.  Update:  The Florida Supreme Court issued a stay on Asay's execution.

NH Gov. Criticized for Heroin Epidemic Inaction:  The mayor of Manchester, New Hampshire publicly criticized Gov. Maggie Hassan for failing to step up and address the deadly heroin epidemic plaguing the Granite State.  Bill McMorris of the Washington Free Beacon reports that last June Gov. Hassan vetoed a budget that would have significantly boosted drug program spending and two months later, she denied Mayor Gatsas' request to establish a drug court.  Other critics say that Gov. Hassan has stonewalled spending on the issue, failed to appoint a top official to lead the fight and is currently more focused on her Senate campaign than governing her state.  Last month, 60 people overdosed on opioids leading to 14 deaths, making February 2016 the single-deadliest month on record in the state.

House to Vote on Immigration Case:  House Republicans are set to vote in the next few weeks on a resolution that would allow lawmakers to file a brief in the Supreme Court case that will determine if President Obama overstepped his authority with his 2014 executive action on immigration.  Susan Ferrechio of the Washington Examiner reports that the vote could permit the House to file the brief in the United States v. State of Texas case "as an institution on behalf of self government," says Speaker Paul Ryan.  Obama's deferred deportation program is being challenged in the brief by Texas and two dozen other states, arguing that the president "exceeded his constitutional authority" when he went over the heads of Congress to defer deportation of illegal immigrants.

Politically Incorrect Posting

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Last week, a San Francisco police station was in the hot seat after an op-ed written by Heather Mac Donald, "The Myths of Black Lives Matter," in which she challenged the Black Lives Matter narrative that police officers are racists and pose the greatest threat to young black men today, was posted on a bulletin board in the station.  Soon after, this article published in the San Francisco Examiner questioned whether posting Mac Donald's piece in the police station was in violation of department and city rules that ban political activity in public buildings.

Here is Mac Donald's response to the controversy.


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In our increasingly uncivil times, we have an example of how people can disagree, sometimes passionately, and still be friends.  Adam Liptak has this story in the NYT on the memorial service for Justice Scalia, and at the top is a touching video of Justice Ginsburg's tribute.

Justice Thomas also has a nugget for us:

But once, Justice Scalia was harshly critical of an important precedent. "'Just a horrible opinion,' he said. 'One of the worst,'" Justice Thomas related. It fell to Justice Thomas to break the bad news: "Nino, you wrote it."
This article by the head of American Crossroads spills the beans about the misconceptions  --  that's the polite word  -- concerning sentencing reform proposals now before Congress.  It starts out noting, "[T]he Sentencing Reform and Corrections Act wending its way through Congress is a Trojan Horse that would reverse decades of progress in fighting violent crime, while doing nothing to curb the expansion of criminal law into unprecedented areas."

The key paragraphs are here:

What is the rationale for abandoning such a successful strategy and putting communities and families at risk? Liberals claim these changes are necessary to ameliorate a culture of "mass incarceration" where "non-violent" offenders are caught up in a Dickensian system of impersonal, disproportionate punishment. The facts tell a different story. America's prison population has been falling steadily--itself a reflection of reduced crime. Of those serving time for drug-related offenses, 99 percent were convicted of drug trafficking, not just "harmless" possession. Drug trafficking is sustained by violence and breeds violence, from the bloody drug gangs beyond our borders to drug-related carnage in urban neighborhoods.

Releasing drug dealers and other criminals early and putting them back on our streets is a recipe for disaster. One recent Department of Justice study indicated that more than 75 percent of drug offenders released early will be re-arrested within five. The timing couldn't be worse. After decades of progress, the crime rate spiked up in 2015 in America's largest cities, with murders up nearly 17 percent.

I might add that the federal prison population is certain to continue to fall significantly simply by virtue of the tens of thousands of retroactive sentence reductions already in the pipeline because of earlier action by the Sentencing Commission.

News Scan

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Chicago Homicides Rise as Illegal Gun Seizures Fall:  While the number of gun seizures in Chicago so far this year have dropped compared to the same period in 2015, twice as many homicides have occurred.  Don Babwin of the AP reports that as of the end of February, Chicago's police department seized at least 110 fewer illegal guns than in the same period last year, and recorded 95 homicides and over 400 shootings, far surpassing last year's totals.  Moreover, the high levels of scrutiny towards the city's police department has led to a dramatic drop in the number of street stops and resulted in an overall less aggressive police force. 

Police Officer Shooting Deaths on the Rise in 2016:  Of the 14 total line-of-duty deaths of law enforcement officers recorded in the first two months of 2016, 11 officers were killed by a firearm used against them, while only one of 15 officers' deaths by this time last year were firearm-related.  Andrea Noble of the Washington Times reports that the 11-to-one comparison of 2016 and 2015 in the number of officers fatally shot in the first two months of the year yields a 1000% increase and "implies greater willingness on the part of offenders to go after the cops."  Police associations around the country believe that anti-police rhetoric and the "deliberate campaign to terrorize our nation's law enforcement officers" is having serious consequences.  The National Fraternal Order of Police is reigniting its campaign to expand federal hate crime laws to apply to targeted attacks on police officers.

CO Death Penalty Bill Dies in Committee:  A Colorado bill that would have allowed a second jury to "retry" the aggravation and penalty phases of a death penalty case if the first jury was unable to reach a unanimous verdict was postponed indefinitely Monday with a 6-3 vote.  Lance Hernandez of the Denver Channel reports that House Bill 16-1233 was created after James Holmes, who was found guilty on multiple counts of first degree murder for gunning down several people in a movie theater in 2012, skirted the death penalty at his trial because of a single holdout on the jury.  Colorado's death penalty process is unique in that jurors "can substitute their own individual, reasoned moral judgement for any factual or legal findings they previously found," making it a subjective process that one person "shouldn't be allowed to hang up."  The issue could still end up before voters.

As noted in Friday's News Scan, California's district attorneys won a court ruling last week keeping Governor Jerry Brown's latest initiative off the 2016 ballot.  This latest brainstorm (or perhaps mind fog) was dreamed up too late to make it to this year's ballot in the usual course of the initiative process, so the Gov. pasted it in to an unrelated juvenile justice initiative.

Now he has gone directly to the state supreme court to get this ruling overturned.  The high court stayed the trial court's order and put the briefing on fast track.  The stay allowed the AG to issue a title and summary and allows the proponents to start gathering signatures.

CJLF has filed a letter brief in support of the DAs.
The U.S. Supreme Court this morning decided Lockhart v. United States, No. 14-8358:

Defendants convicted of possessing child pornography in violation of 18 U. S. C. §2252(a)(4) are subject to a 10-year mandatory minimum sentence and an increased maximum sentence if they have "a prior conviction . . . under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward." §2252(b)(2).

The question before us is whether the phrase "involving a minor or ward" modifies all items in the list of predicate crimes ("aggravated sexual abuse," "sexual abuse," and "abusive sexual conduct") or only the one item that immediately precedes it ("abusive sexual conduct").

Only the last item, 6-2, opinion by Justice Sotomayor.  Justices Kagan and Breyer dissent.

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