May 2016 Archives

Q:  How can you tell when one side of an argument realizes it's losing?

"I take responsibility for a decision that misrepresented an exchange I had with members of the Virginia Citizens Defense League," Couric said in a statement on Monday night.

The pivotal edit in the documentary made a group of gun rights activists seem stumped by one of Couric's questions. The edit was exposed by a blogger last week.

During the interview for the film, Couric asked, "If there are no background checks for gun purchasers, how do you prevent felons or terrorist from walking into, say, a licensed gun dealer and purchasing a gun?"

The documentary shows the group members silently looking around for about eight seconds. But an audio recording proved that the interviewees responded right away.

SCOTUS Rejects Death Penalty Challenge:  The U.S. Supreme Court refused to hear an appeal on Tuesday filed by a Louisiana man convicted of fatally shooting his pregnant former girlfriend, who asserted that the death penalty violates the U.S. Constitution's ban on cruel and unusual punishment.  Lawrence Hurley of Reuters reports that the justices declined to hear the appeal brought by Lamondre Tucker, a black man who argued that endemic racism in the state's Caddo Parish increased the likelihood of him being convicted of murder and sentenced to death.  Tucker was sentenced to death in 2008 for fatally shooting 18-year-old Tavia Stills and dumping her body in a pond.  Stills was nearly five months pregnant and had told Tucker she believed he was the father, though later testing showed he wasn't.  His conviction was upheld by a September 2015 Louisiana Supreme Court ruling.

Bloody Memorial Weekend in Chicago:  Crime ran rampant over Memorial Day weekend in Chicago, leaving six people dead and 69 injured by gunfire, Peter Nikeas, Grace Wong, Alexandra Chachkevitch and Joe Mahr of the Chicago Tribune report. The shootings mirrored last year's holiday weekend when 12 people were killed and 44 were injured. Chicago police believe that the violence has been fueled by gang conflict, the proliferation of guns and weak gun law enforcement. Shootings have more than doubled with an estimated 1,500 in 2016 alone, with at least 250 killed.  At this point last year, 957 people had been shot, with 164 killed.

ISIS Attacks on West likely in June, say Analysts:  A D.C.-based think tank predicts that there is a high likelihood that the Islamic State, the terror group known as ISIS, will launch attacks against the West over the next 45 days during the Muslim celebration of Ramadan.  Jacqueline Klimas of the Washington Examiner reports that the Institute for the Study of War issued a report stating that traditionally, ISIS uses the annual religion observance, which begins June 6 and ends July 5, to increase attacks and tweak its strategy.  Europe faces the greatest threat of attack on sporting events in crowded public venues, which prompted the State Department to issue a travel alert warning Americans traveling to Europe to remain vigilant, as increased summer tourism will provide more targets for potential attacks.  Attacks against the U.S., especially around July 4, are possible as well.  The think tank also expects ISIS to announce new "global affiliates" outside of Iraq and Syria, including in Bangladesh and Southeast Asia.

Without dissent, the United States Supreme Court has once again summarily reversed the decision of the U.S. Court of Appeals for the Ninth Circuit.  "Summarily" means the error was so obvious that the high court could reverse on the state's petition alone, without setting the case for full briefing and argument.

The rule in the federal courts and every state is that a criminal defendant who can make a claim on his initial appeal on the trial record must do so or lose it.  He can't wait for a subsequent "collateral" attack (habeas corpus or a substitute for it) to make such a claim.  The technical term for rules such as this is "procedural default," but it may be more easily understood as the "speak now or forever hold your peace rule."  There are generally exceptions to mitigate the harshness of these rules.  For example, a strong showing of actual innocence of the crime is an exception in both federal and California courts.

When a state prisoner has completed his state appeals and seeks relief in federal courts, Supreme Court precedent has long required the federal court to respect the state's procedural default rules.  For many years, the Ninth Circuit has evaded this requirement for California prisoners by blithely declaring the state's rules "inadequate."  In 2011, the Supreme Court reversed one such evasion in Walker v. Martin, a unanimous opinion by Justice Ginsburg.  The language was broad enough to fully restore California's rules and we thought that battle was won.  Astonishingly, the Ninth Circuit brushed Martin aside, held that it only applied to the kind of rule specifically at issue in that case, and declared that it did not apply to California's much more common default-on-appeal rule described in the previous paragraph. 

I thought that was a shocking -- and intentional -- evasion of controlling Supreme Court precedent by a lower court that simply did not like the result.

Today we learned that the Supreme Court thinks so, too.

In an age where the federal government is a gargantuan burlesque of the Framers' vision  --  of late instructing local schools about who can use which shower and bathroom, and local judges about when they may (and may not) enforce traffic fines against scofflaws  --  it's easy to see the appeal of libertarianism.

During the [Libertarian Party Convention] presidential candidate debate, the room went wild for suggestions of abolishing the Federal Reserve, state-sponsored education, and gun control.

"I believe in a world where gay married couples can defend their marijuana fields with submachine guns, aw yeah baby!" conservative libertarian Austin Petersen said.

"Crystal meth should be as legal as tomatoes," another candidate Daryl Perry declared. 

IA High Court Bans LWOP for Teen Killers:  In a 4-3 ruling Friday, the Iowa Supreme Court banned judges from sentencing juveniles convicted of first-degree murder to life in prison without the possibility of parole.  Ryan J. Foley of the AP reports that justices ruled in the case of Isaiah Sweet, who was age 17 in 2012 when he committed the premeditated murders of his grandparents, determining that juveniles should have the option to someday prove to the parole board they have been rehabilitated given that their brains are still developing.  The dissenting justice, Edward Mansfield, criticized the ruling, calling it wrong to strike down a sentencing option that state lawmakers overwhelmingly reauthorized last year.  However, the ruling doesn't guarantee parole for juveniles offenders but, rather, contends that parole officials and not sentencing judges should make the determination.  Iowa is the 19th state to ban life without parole sentences for juveniles either through legislation or courts, while the Iowa high court is the second state court to outlaw such sentences based on the state constitution.

Kate Steinle's Family files a Lawsuit over her Death:  The family of Kate Steinle, the woman fatally shot on a San Francisco pier last July by an illegal immigrant, filed a lawsuit Friday over her death.  Fox News reports that the lawsuit argues that the city's sanctuary city law that protects illegal immigrants from deportation was responsible for the release of repeat drug offender and habitual border crosser Juan Francisco Lopez-Sanchez, who was released from custody despite a request from federal immigration authorities that local officials keep him in custody for possible deportation.  Even in the face of national outrage, San Francisco's Board of Supervisors upheld the city's sanctuary city protections on Tuesday for illegal immigrants.  Ross Mirkarimi, the sheriff at the time of Steinle's killing, ICE and the Bureau of Land Management were named in the lawsuit.

CA Laws Give Young Offenders 2nd Chance, Concerns Victims:  New laws in California have qualified over 14,000 inmates convicted of serious crimes as juveniles and sentenced as adults for early parole hearing, troubling victims.  Nicole Comstock of Fox 40 reports that SB 261, which went into effect in January 2016, raised the age of eligibility for parole hearings, coming two years after a law implemented in 2014 allowing youth offenders who committed crimes prior to the age of 18 -- many of whom were sentenced to life -- to have a parole hearing after serving between just 15 and 25 years.  San Benito County District Attorney Candice Hooper, who recently fought to keep a convicted serial rapist and murderer behind bars after he was granted a parole hearing last month, criticizes the new laws for benefiting prisoners at the expense of their victims.  According to the CDCR, 347 youth offenders who became eligible for parole hearings as a result of the law have been granted parole. 

For the thousands of men and women who have died in defense of the freedom that most Americans take for granted.

Mass sentencing reduction had a chance in Congress for only as long as our country's galloping murder and heroin spikes could be shoved behind the media curtain, and before evidence surfaced of how grisly the human toll of early release would be.

Prof. Dan Markel was a popular teacher at Florida State Law School and an active legal blogger.  I met him only once that I remember, but we had a number of mutual friends.

CT High Court Upholds Death Penalty Repeal:  The Connecticut Supreme Court, in a 5-2 decision, upheld its previous ruling Thursday that found the death penalty unconstitutional and abolished it.  Daniel Tepfer of the CT Post reports that the ruling was made in the appeal of convicted murderer Russell Peeler Jr., whose sentence was changed from death to life without the possibility of release.  In 2012, the General Assembly repealed capital punishment in the state, which was intended to be applied only to people convicted of a capital felony after April 25, 2012 and not the state's already-sentenced death row inmates; however, the state Supreme Court's ruling last year extended it to the 10 inmates on the Connecticut's death row, including Peeler.  In January 1999, Peeler, a drug kingpin, was sentenced to death for ordering the murders of an eight-year-old boy and his mother because the boy was scheduled to testify against him in another murder case.

Report Highlights Unintended Consequences of CA Policies:  Los Angeles County is experiencing an overwhelmingly large caseload in their mental health courts due to strained court resources, and AB 109 and Proposition 47 are believed to be contributing factors. Abbey Sewell of the LA Times reports that the mental health courts have seen an increase in their case referrals jumping from 944 in 2010 to 3,528 in 2015. Likewise, the number of misdemeanors also spiked from 225 to 2,178 in the respective years. In a preliminary report, the county's Office of Diversion and Reentry believes that the implementation of AB 109 and Prop. 47, the growing homeless population and the lack of beds for acute psychiatric care are responsible for the staggering statistics.

Death Penalty Sought Against GA Man who Killed Priest:  A man accused of murdering a priest last month has been indicted and will face the death penalty in a Georgia court.  Sandy Hodson of the Augusta Chronicle reports that Steven James Murray, 28, fatally shot Rev. Rene Robert, a Florida resident who was trying to counsel him, on April 18.  It is believed that Murray tricked Robert into accompanying him to visit his children and later forced Robert into the trunk of his own car before committing several burglaries and an arson.  At some point, Murray pulled the car over, took Robert out of the trunk and shot him to death.  Prosecutors cite four statutory aggravating circumstances in the notice of intention to seek the death penalty:   

A variety of people on both sides of the political aisle have been pushing for reform on the mental states required for a person to be guilty of a federal criminal offense.  In federal law, more than in most states, the traditional requirement that a crime be defined as a combination of a guilty mind with a guilty act has been watered down as the administrative state has expanded.  Former Attorney General Ed Meese, a longtime friend and advisor to CJLF, has testified on this subject before the Senate Judiciary Committee.  Congressman John Conyers, senior Democrat on the House Judiciary Committee, also supports mens rea reform.

But it is not enough to be in favor of "reform" in the abstract.  Reform must be drafted into legislation, and the devil is in the details.  Searching for papers and testimony of reform supporters, I have found a lot about reform in general and very little supporting the specific language of the proposals now before Congress.

The bills as drafted seem to me to be classic cases of overreach -- the proverbial "bridge too far" resulting in failure of the mission.  The opponents have valid criticisms, ammunition handed to them by the drafters' overreach.

A couple leaves their 1-year-old son, Jacob, with a family friend for a couple of hours while they go out on a date.  Upon their return, they find their family friend asleep on the couch and Jacob crying uncontrollably.  The next morning, the parents notice that Jacob has a black eye, scratches, bruises on his arm and back, plus a very large and visible hand-shaped bruise on the side of his face.  (How they didn't notice these injuries upon their return the night before is beyond me....)  Multiple doctors and a police detective tell the parents that the amount of force Jacob sustained could have killed him.  Several days later, the family "friend" admitted to grabbing and smacking Jacob across the face.

Va. GOP File Lawsuit to Block Felons from Voting:  Virginia Republicans filed a lawsuit Monday in the state Supreme Court to block over 200,000 felons from voting in November, arguing that Gov. Terry McAuliffe abused his power when he restored the voting rights of convicts with completed sentences.  Alanna Durkin Richer of CNS News reports that the lawsuit, brought by House Speaker William Howell and Senate Majority Leader Thomas Norment along with four other Virginia voters, argues McAuliffe's executive order violates the separations of powers by suspending the state's ban on voting by felons and ignores the decades-old practice of governors being able to restore voting rights only on a case-by-case basis. McAuliffe's announced the sweeping order last month, which allows an estimated 206,000 felons who have completed their sentences and any supervised release by April 22 to vote, run for public office, serve on a jury or become a notary public.

OK Considering New Execution Method:  The state of Oklahoma is seriously considering nitrogen hypoxia as its primary method of capital punishment in lieu of the current method of lethal injection, which has come under Grand Jury investigation in the state. Grant Hermes of News 9 reports that the method works by pumping pure nitrogen gas into a face mask or sealed hood of the individual being executed and cause death by lack of oxygen.  According to an unnamed doctor and unnamed professor who testified in front of the jury, nitrogen hypoxia would be "easy and inexpensive," "simple to administer" and "quick and seemingly painless."  The method was signed into law last spring as an alternate execution procedure.

More Gitmo Detainees Set to be Transferred:  The Obama administration is preparing the transfers of up to 24 Guantanamo Bay detainees this summer.  Catherine Herridge and Lucas Tomlinson of Fox News reports that the announcement of more transfers comes as President Obama continues progression towards closing the camp, so far reducing the population from 242 detainees to 80.  An official could not state confidently whether the countries receiving the detainees would keep them locked up or track them.  Republican Sens. Mark Kirk, of Illinois, and James Lankford, of Oklahoma, have introduced an amendment to hold countries that accept transfers accountable.

Harvard Law Professor Alan Dershowitz is not someone we agree with often, but his comments on Megyn Kelly's show last night are notable.  The video is here.  The transcript is here and copied, with edits, after the break.

[Editors Note:  Unknown to either of us, Bill and I were posting on the same subject at the same time.  That's okay.  I will leave them both up.  There is overlap, but also some differences in the posts.]

In my post here, I went after the Freddie Gray prosecutor, State's Attorney Marilyn Mosby. As usual, my remarks did not suffer from excess subtlety:

Freddie Gray died as a result of injuries sustained in police custody, and there remain more than a few questions to be answered about that.  But the way to answer them is not with a "cops-are-Nazis" festival, which  --  thanks to an immature, political and grandstanding State's Attorney  --  is what the Freddie Gray prosecutions have become. Not for nothing did she lose today's case, just as she fumbled away (in a mistrial) the one before.

On Tuesday night's The Kelly File, Harvard Law professor Alan Dershowitz says Baltimore's state's attorney Marilyn Mosby, the Freddie Gray prosecutor, acted irresponsibly, politically.

"These are officers who, you know, may have made a mistake but they are not guilty of criminal conduct," Dershowitz said of Officer Edward Nero being found not guilty in Baltimore. "What she tried to do is stop the mob [of rioters and arsonists]. I understand that, but you don't use the criminal justice system to solve racial problems."

"She's a symptom of a larger problem," Dershowitz said of Mosby. "Black Lives Matter is endangering the fairness of our legal system. Because they're rooting for outcomes based on race."

Crime has a predictable history as a campaign issue.  For the past couple of elections, when crime was low and falling, it was barely mentioned.  But when crime is surging, as it was in 1968, 1972, and 1988, crime policy became a major battleground. Richard Nixon, though widely thought to be a shady character, rode it to two easy victories.

FBI Director James B. Comey had an odd plea to Washington reporters when he met them earlier this month. Please, he said, write about the surge of murders rocking the nation's cities.

"I raise it with you all because I hope it's being reported on at local levels, but in my view, it's not in the attention of the national level it deserves," he said. "I am in many ways more worried, because the numbers are not only going up, they're continuing to go up in most of those cities faster than they were going up last year. I worry very much. It's a problem that most of America can drive around."

The media dished out a few stories and moved on. But soon the issue will receive attention on the national political stage as the two likely presidential nominees prepare to address it.

"Crime is a factor that I think is going to play bigger in this election than people realize because crime is going up, drug addiction is surging -- 120 deaths a day from drug overdoses. It's just a stunning number," [said] Sen. Jeff Sessions, Alabama Republican and adviser to Donald Trump.

One must wonder whether Trump's recent big advance in the polls reflects the country's increased alarm about spiking drug abuse and murder.

I wrote earlier today about the surge in violent crime across America and its roots in the "Ferguson effect," i.e., the intimidation of proactive policing.  Paul Mirengoff follows up with observations from this morning's American Enterprise Institute forum 

The importance of proactive policing, which is what the Ferguson effect deters, is sufficiently obvious that even liberals understand it. Today at an AEI conference on sentencing reform, Steven Teles, a leading proponent of softer sentencing, expressed his concern that the sentencing reform movement, which has carried the day in some states, will be set back if the crime rate continues to rise and/or if those released pursuant to the reforms commit horrific crimes.

Teles therefore stressed the importance of coupling softer (he calls it "smarter") sentencing with measures to prevent crime, including proactive policing. In other words, sentencing reform, an important agenda item for the left (and for some conservatives), might not be sustainable without the kind of policing the left castigates -- and thereby deters.

But the same mindless accusations of racism that the softer sentencing movement relies on also undergird the virulent attacks on the police that produce the Ferguson effect. Thus, we're quite unlikely to get both a soft sentencing regime and policing that will help society cope with the consequences of having vastly more criminals on the street.

The Justice Department has announced that it will seek the death penalty against Dylan Roof.  

'Blue Lives Matter' Bill to become La. Law:  A bill that would make attacks on police officers and other first responders a hate crime is expected to become law in Louisiana this week.  Greg Hilburn of the Daily Advertiser reports that state Rep. Lance Harris' bill, House Bill 953 or "Blue Lives Matter," will be the first law of its kind in the nation specific to law enforcement, amending an existing law which classifies hate crimes as those based on bias against race, age, gender, religion, color, creed, disability, sexual orientation, national origin or ancestry.  The bill won unanimous support in the House and overwhelming support in the Senate, and is expected to be signed into law sometime this week by Gov. John Bel Edwards.  Update:  Gov. Edwards signed the bill into law Thursday.

AB 109 Probationer Arrested on Numerous Violations:  An AB 109 probationer was arrested in Murrieta, Calif., over the weekend along with two other people with active felony warrants.  Trevor Montgomery of Valley News reports that David Rutledge was arrested for driving under the influence of a controlled substance, driving with a suspended license, possession of methamphetamine and narcotics-related paraphernalia, and booked on one felony count of revocation. At the time of his arrest on Saturday, Rutledge was out on Post Release Community Supervision (PRCS) for a weapons charge.

Border Crossings Spike Dramatically:  U.S. Customs and Border Protection apprehended roughly 38,000 illegal immigrants in April, marking the highest surge in nearly two years. Stephen Dinan of the Washington Times reports that the immigrants crossing the border are not just families who are migrating to flee violence, as numbers now reflect a worrisome spike in other illegal immigrants, topping at 27,000.  Yuma County, Ariz., Sheriff Leon N. Wilmot says there are both push and pull factors contributing to the surge and "basically a lot of it has to do with the fact they're obtaining the assistance with regards to when they're released" once they arrive at the border and turn themselves in.

Prosecutors want Execution Date for OH Killer:  Prosecutors in a Youngstown, Ohio, case say it's due time for an execution date to be scheduled for a death row inmate who fatally shot a three-month-old over 13 years ago.  WFMJ reports that John Drummond, 38, has exhausted all of his state and federal court reviews of his convictions and death sentence, and prosecutors are requesting that an execution date be set.  In 2003, Drummond used an assault rifle during a drive-by shooting to fire 11 shots into a home, killing the intended target's infant son.  In all, he was convicted of eight charges.

One of the arguments for legalizing dope is that, given the fact that people are going to use one kind of intoxicant or another, we'll be better off, and safer (on the road, for example), if they're stoned rather than plastered.  Essentially, the theory is that, to some significant extent, we'll trade alcohol consumption for dope smoking, and that the dopers will be more laid back, and take it easier, than the drunks.

A:  More violent crime, which is surging across the United States.

[T]he evidence is not looking good for those who dismiss the Ferguson effect, from the president on down. That group once included Richard Rosenfeld, a criminologist at the University of Missouri, St. Louis, who was an early and influential critic. Mr. Rosenfeld has changed his mind after taking a closer look at the worsening crime statistics. "The only explanation that gets the timing right is a version of the Ferguson effect," he told the Guardian recently. "These aren't flukes or blips, this is a real increase." 

A study of gun violence in Baltimore by crime analyst Jeff Asher showed an inverse correlation with proactive drug arrests: When Baltimore cops virtually stopped making drug arrests last year after the rioting that followed the death of Freddie Gray while in police custody, shootings soared. In Chicago, where pedestrian stops have fallen nearly 90%, homicides this year are up 60% compared with the same period last year. Compared with the first four and half months of 2014, homicides in Chicago are up 95%, according to the police department. Even the liberal website Vox has grudgingly concluded that "the Ferguson effect theory is narrowly correct, at least in some cities."

Three explanations strike me as plausible.

Overall crime in Las Vegas spiked by 22 percent this year, with homicides up by over 60 percent, sexual assaults up by nine percent and robberies up by 21 percent.  And what does the sheriff think is the reason behind this?  CBS reports:

The sheriff of the Las Vegas Metropolitan Police Department claimed a number of crimes that happened in Sin City have been traced back to Californian[s].

Sheriff Joe Lombardo blamed AB 109, which allows for early release of certain inmates, and Proposition 47, which reduces nonviolent crimes to misdemeanors.

"Individuals we're able to identify, and also the victims of those crimes - we're seeing a significant increase in individuals that have gang affiliation, gang association directly related to California," Lombardo said.

Los Angeles' city attorney expressed skepticism in how Lombardo made a connection between the Las Vegas crime spike and California's laws.  Still, it is telling, even if Lombardo's theory is falsely perceived, that because AB 109 and Prop. 47 are such bad policies, neighboring states believe they are reaping the negative consequences of them as well.

Whether or not there is anything to Sheriff Lombardo's reasoning remains to be seen.

The  full text transcript of Judge Barry Williams's ruling in the trial of Baltimore police officer Edward Nero is available here.

I live near Washington, DC.  The big criminal law news here today consists of two cases. One is the SCOTUS reversal of the conviction of a black Georgia murderer on grounds that the government engaged in racially biased jury strikes.  Kent has his typically thoughtful and analytic description here.  While, as Kent notes, there are grounds to question the procedural setting of the case, the Chief Justice's opinion documents disturbing reasons to think the defendant's claims of racial bias were true.

MA Officer Killed, Suspect Dead:  Jorge Zambrano killed Officer Ron Tarentino Jr. during a routine traffic stop in Massachusetts on Sunday and injured an 18-year state trooper veteran.  Fox News reports that after an 18-hour manhunt, Zambrano was killed in a shootout with Massachusetts police when he opened fire on state troopers in an Oxford duplex.  The state trooper sustained a gunshot wound in the left shoulder and is expected to make a full recovery.  Zambrano had numerous previous arrests and court appearances, including a hearing for motor vehicle charges just four days before fatally shooting Officer Tarentino, who is the second Massachusetts police officer to be killed in the line of duty this year.

Obama's Reintegration Plan Sparks Fear:  President Obama is pushing for administrative reforms to better integrate ex-offenders into society, sparking concern that such reforms could jeopardize public safety.  Andrea Noble of the Washington Times reports that some of the reforms include the removal of questions regarding criminal history on federal job applications and college applications, and making it a federal violation for landlords to disqualify a renter only due to their criminal history.  According to the U.S. Sentencing Commission, at least one half of 25,000 federal offenders released will be rearrested and at least one quarter will be re-incarcerated within eight years of their release.

TX Family Killed by Drunk Driver with Previous DUI Conviction:  Three members of a Houston family were killed early Saturday morning when a drunk driver with a previous drunk driving conviction blasted through a red light and broadsided the driver's side door of the family's vehicle.  Bob Price of Breitbart reports that the suspect, Jeremy Valdez, 25, attempted to flee the scene of the crash but was chased down by a witness, who held him until deputies arrived.  Valdez, who was previously convicted of drunk driving in January 2011, has been charged with three counts of felony murder in the deaths of Emilio Avila, 33, Adla Nolasco, 41, and high school senior Mauricio Ramires, 18, who was scheduled to graduate on June 4.

When cases with ugly facts reach the U.S. Supreme Court, they sometimes cause damage that lasts a very long time.  Foster v. Chatman, No. 14-8349, decided this morning, is a case with ugly facts.  How much damage it will do to states seeking to preserve their judgments in other cases where the defendant's collateral attack is much weaker remains to be seen.

At the root of this case is a horrible crime, with no real doubt that Foster committed it.  Not only did he confess, but the victim's possessions were recovered from his home and from the homes of his sisters, to whom he had doled out some of the loot.

Until 1986, there was no constitutional prohibition against the prosecution taking race into account in exercising its peremptory challenges in jury selection in individual cases, although a pattern of such use that had the effect of excluding black veniremen from jury service overall was actionable.  That changed when the Supreme Court decided Batson v. Kentucky.  The Foster case was tried only four months later.

The New York Times occasionally has excellent and insightful news articles.  Then there's stuff like this, "reporting" on Donald Trump's speech accepting his NRA endorsement:

Mr. Trump, whose record of sexist remarks, among other things, has left him at a potentially crippling disadvantage among female voters, polls show, appealed directly to women in his speech, imbuing his defense of gun rights with an undercurrent of fear.

"In trying to overturn the Second Amendment, Hillary Clinton is telling everyone -- and every woman living in a dangerous community -- that she doesn't have the right to defend herself," Mr. Trump said. "So you have a woman living in a community, a rough community, a bad community -- sorry, you can't defend yourself."

If Mr. Trump's comments seemed reminiscent of an era when crime rates were far higher -- the Willie Horton ads attacking Michael S. Dukakis, the Democratic nominee, in the 1988 presidential race came to mind -- they also appeared somewhat at odds with the broad bipartisan consensus on the need to reduce incarceration rates and prison populations: Mr. Trump sought to frighten voters about the idea of criminals being released from prison.

In Oklahoma, a grand jury has released its report on the problems with executions by lethal injection in that state and the substitution of potassium acetate for potassium chloride.  There are numerous procedural errors detailed in the report, and opponents of the death penalty are having a field day with them.  However, this should not obscure the "bottom line" finding on the execution of Charles Warner (emphasis added):

Warner's death was intentionally inflicted by correctional officers acting pursuant to a Death Warrant issued by the District Court in State of Oklahoma v. Charles Fredrick Warner, Oklahoma County Case No. CF-1997-5249.  The execution, which involved the administration of midazolam, rocuronium bromide, and potassium acetate, was completed in a manner consistent with the Death Warrant and statutory authority. The intravenous administration of the three-drug cocktail to Warner resulted in his humane death within eighteen minutes of the commencement of the sequential administration of these drugs. There is no evidence the manner of the execution caused Warner any needless pain. Nevertheless, his execution was not administered in compliance with the Department's Protocol or in a manner allowing Warner to challenge the procedure prior to his death.

Going forward, the grand jury recommended further research on the use of nitrogen, recently authorized by the legislature:

Signatures for Death Penalty Measure Submitted:  Californians for Death Penalty Reform and Savings submitted 593,000 signatures Thursday for a November ballot initiative to accelerate executions for death row inmates, which will appear alongside an opposing measure to repeal capital punishment in the state.  Elliot Spagat and Don Thompson of the AP reports that the measure would speed up the appeals process for death penalty cases by assigning attorneys to condemned inmates more quickly, limiting the number of appeals and forcing them to be filed sooner.  The whole process would have to be completed in five years, sharply contrasting the current system, in which inmates don't get a lawyer assigned until five years after their sentence.  Other provisions of the measure would allow death row inmates to be housed in prisons other than San Quentin and require them to work and pay victim restitution while they await execution.  California has the largest death row in the nation with nearly 750 convicted killers, but an execution hasn't been carried out for a decade and only 13 total have been executed since the capital punishment's reinstatement in 1978.

CA Parolee Added to FBI's Most Wanted List:  A convicted felon and parolee from Los Angeles has been added to the FBI's 10 Most Wanted Fugitives list after fleeing last month following the murder of his pregnant girlfriend and her unborn child.  Willian Avila of NBC Los Angeles reports that Philip Patrick Policarpio, 39, a parolee, became angry with his pregnant girlfriend on April 12 and beat her in the face with his firsts before shooting her in the forehead with a handgun, killing her.  In 2000, Policarpio fired nine shots into another car over a dispute, after which he fled to the Philippines.  He was deported to the U.S. the following year, convicted and sentenced to 14 years in prison.  He was released on parole in May 2014.

OH Jury Recommends Death for Serial Killer:  A jury recommended the death penalty Thursday for a Cleveland serial killer convicted of murdering three women.  The AP reports that Michael Madison, 38, was convicted of aggravated murder earlier this month in the deaths of three women whose bodies were found wrapped in garbage bags near his apartment in July 2013.  The judge will now consider the jury's recommendation and issue a final decision on May 26.

Press conferences were held at county registrars of voters around the state as we turned in the petitions.  Sean Emery of the Orange County Register has this story on the turn-in there.

Here are photos from the Sacramento event, by our own Marissa Cohen.  Click on the photo for a larger view.

 
Sacramento District Attorney Anne Marie Schubert introduces the measure and discusses its significance.

An Academic has Second Thoughts on Ferguson Effect:  A criminologist has parted ways with liberal deniers of the "Ferguson effect," which suggests that crime has gone up amid the barrage of anti-police rhetoric resulting in a decrease in proactive policing following the shooting death of Michael Brown in Ferguson, MO, in August 2014.  In this piece in the Washington Examiner, Michael Barone quotes University of Missouri at St. Louis criminologist Richard Rosenfeld admitting that, after looking over 2015 data from 56 large cities and noting that homicides jumped 17% and as much as 33% in some cities from 2014, "[t]he only explanation that gets the timing right is a version of the Ferguson effect."  Going back to 1960, the only double-digit increases in the nation were 13% (in 1968), 11% (in 1966, 1967 and 1971) and 10% (in 1979).  James Wilson and George Kelling introduced broken windows theory in 1982, arguing that proactive policing and elimination of signs of disorder could sharply reduce crime.  When the theory was employed in New York City beginning in the 1990s, homicides decreased from 2,445 in 1990 to 328 in 2014.  The numbers "aren't flukes or blips" says Rosenfeld, which discount the mainstream media's mantra that a "rising epidemic of racist police" is what is driving up the crime rates.

Court Considers MO Lethal Injection Protocol:  The Missouri Court of Appeals heard arguments Wednesday that a judge incorrectly dismissed a lawsuit last year challenging the state's procedures for obtaining lethal injection drugs.  Margaret Stafford of the AP reports that the lawsuit, filed on behalf of two former state lawmakers and two Missouri residents, argues that the state is in violation of federal and state law because it uses an illegal prescription to obtain pentobarbital from a compounding pharmacy for executions.  The lawsuit was dismissed in July 2015 after a circuit court judge ruled that taxpayers have no standing to challenge Department of Corrections' operations and the Missouri Supreme Court has jurisdiction in death penalty-related lawsuits.  At the time, the Missouri attorney general's office argued that the lawsuit was illegally attempting to enforce federal food a drug laws privately.  It is unclear when the appeals court will issue a ruling in the case.

I was fortunate to have the opportunity to see Sen. Tom Cotton's remarks today at the Hudson Institute on what is called sentencing "reform," and on policing.  

A 29 year-old mother researches on the internet how to poison her children.  She later mixes windshield de-icer fluid into some grape juice and serves the toxic mixture to her five-year-old son and 4-month-old daughter.  When the toxic fluid fails to kill them, she takes those two children into the bathroom and drowns them in the bathtub.  She writes a note to the father of those two children blaming him for her actions.  She had recently discovered that he fathered a child with another woman.  She then seals all of the windows in her apartment with plastic and tape and sends a text to her boyfriend (father of the children) that says, "I'm sorry the kids are gone.  I'm next." She turns on the gas from her stove, drinks the toxic grape juice, and cuts her wrists.  9-1-1 reports of a gas leak cause firefighters to discover the grave scene.  The kids are dead, but the mother survives.

Lisette Bamenga committed this horrific crime in New York four years ago.  Prosecutors charged her with two counts of murder and sought a 40-year prison sentence, claiming that she killed the children in a jealous rage after finding out about her boyfriend's infidelity.  Bamenga opted for a bench trial, and her defense attorneys argued that she suffered from postpartum psychosis and should not be held responsible for the killings.  The judge convicted Bamenga of manslaughter and sentenced her to 8 years in prison on each count to run concurrently.

Postpartum psychosis?  Would it be different if her kids were 2 years old and 5 years old instead?  At what point after the birth of a child does the postpartum psychosis defense cease to apply?  At what point does the psychotic period end, if ever?  What if the tables were turned and the father committed this crime instead?  This woman researched methods of poisoning her children on the internet.  She went to the store and bought windshield de-icer fluid.  She mixed it with juice and gave it to her unsuspecting, trusting little children.  When the poison did not kill them like she thought it would, she decided to drown them.  She took their little bodies and submerged them under water in their own bathtub until she was sure they were dead.  She was distraught over her boyfriend's affair and baby with another woman.
This case seems different from the Andrea Yates case.  In 2006, after a re-trial, Andrea Yates was found innocent by reason of insanity and sentenced to a mental hospital.  As far as I know, she remains in a mental hospital today. 
The sad fact is that two young, defenseless children are dead at the hands of the woman who gave them life.

In 2012, the friends of murderers came within four percent of repealing California's death penalty by popular vote, something that has not been done in any state in the United States.  Opposition to the death penalty (like other soft-on-crime efforts) is mostly an elitist cause, pushed by affluent people who can go home to their leafy neighborhoods while the bloody consequences of their feel-good "humanitarianism" fall on people of more modest means.  Thus, repeal bills have gotten through legislatures even when the people of the state are opposed to repeal.  We saw this in Connecticut, where repeal went through even as polls showed the people opposed by 2-1.

In California, the death penalty was enacted by initiative and can't be repealed by the Legislature.  However, the Legislature has failed to do the maintenance necessary to make the death penalty effective, and until now the forces of justice have not been able to raise the very large amounts of money needed to get a fix-it initiative on the ballot.

I can easily see why a lot of people who support the death penalty in principle voted for repeal in 2012.  The present system is not working.  If I genuinely believed it was not fixable, I might vote for repeal myself.

The well-funded friends of murderers have enough signatures to put repeal on the ballot again this year.  But this year is different.  Through a herculean fund-raising effort led by the district attorneys, there will also be a competing initiative to actually fix the system, making the reforms that our derelict Legislature has killed instead of passing so many times.

"Mend it, don't end it" was our slogan in opposition to repeal last time.  A good many people asked, "Yeah, but when are you going to mend it."  Finally, we have a good answer.  This time, the people of California have a direct choice between the two.  The status quo is toast.

I have no doubt the people will choose to mend it and not end it if they are fully and honestly informed of the choice before them.  The main concern now is the overwhelming funding advantage the opponents have.  They can and will spend big bucks to put misleading advertisements on the air, and our side will have only a shoestring grass-roots campaign.  This campaign may be a test of the extent to which money can buy an election.

A perennial problem in criminal law, and the closely related area of deportation for crime, is the fact that the laws of one jurisdiction must take into account crimes prosecuted under the law of another jurisdiction.  What do we do when the elements of the crimes don't match up completely?

Federal immigration law provides for deportation, with no exceptions and expedited process, for aliens who commit an "aggravated felony."  The principle is sound, but the definition of "aggravated felony" needs a lot of work.  Congress really needs to pay some attention to this.

The definition refers to a list of federal offenses, many of which have elements of effects on interstate commerce because in many cases the federal government does not have the authority to make an act criminal without such a connection.  If a person is convicted in state court of an offense which is the same except for the interstate commerce element, is that an "aggravated felony" for deportation purposes?  Yes, that's one of the easier questions in this area.

Justice Kagan wrote the opinion of the court in Luna-Torres v. Lynch, No. 14-1096 (5-3).  Justice Sotomayor, joined by Justices Thomas and Breyer, dissented.  They would apply the words of the statute literally. 

There is something to be said for the view that if Congress screwed up the wording, and it did, it's up to Congress to fix it.  Even so, this is a good result in the case and for the law generally.  Luna is an arsonist, and we don't need him in this country.

The expression "Well, Duh!" has been out of vogue for many years, but every once in a while I wonder if we should bring it back.

The Sixth Amendment guarantees a right to a speedy trial.  Does that guarantee apply after trial, or after a person has waived trial by pleading guilty?  Of course not.  "We hold that the guarantee protects the accused from arrest or indictment through trial, but does not apply once a defendant has been found guilty at trial or has pleaded guilty to criminal charges," Justice Ginsburg wrote for a unanimous court in Betterman v. Montana, No. 14-1457, announced this morning.

The opinion notes that other provisions of the Constitution may provide protection from inordinate delay between conviction and sentence.  It certainly is unjust to hold a person longer pending sentencing than his sentence is likely to be.  But Betterman's lawyer did not bring the claim under the Due Process Clause or anything other than the Speedy Trial Clause, so that issue is not in the case.

"Criminal Justice Reform" is the name usually given to the movement to reduce incarceration.  Sometimes, although less frequently, it denotes efforts to scale back proactive policing.

Criminal justice reform is a critical issue for the trans community. From the time they are stopped until they land behind bars, trans people experience violence and discrimination at the hands of the system every step of the way.

Eugene Volokh has this post at the Volokh Conspiracy on one of the most blatant violations of the First Amendment right of freedom of speech that I have ever heard of from any government agency in my lifetime, and that is saying quite a lot.

Here is my question.  Is this violation of the First Amendment so clear that the commissioners can be prosecuted for the federal crimes of conspiracy against free exercise of federal constitutional rights, 18 U.S.C. §241, or deprivation of rights under color of law, §242?

For many of us who were less than enthused to see Donald Trump win the Republican nomination, the general election choice nonetheless seemed to be a clear one based on the kinds of judges the respective nominees would appoint, especially to the Supreme Court.  The Trump campaign apparently wants to reinforce that point by releasing a list of possible Supreme Court appointments.  Bill noted the release a few minutes ago, and Jill Colvin and Mark Sherman have this report for AP.  The list is:

Steven Colloton of the Eighth Circuit (Iowa)
Allison Eid of the Colorado Supreme Court
Raymond Gruender of the Eighth Circuit (Mo.)
Thomas Hardiman of the Third Circuit (Penn.)
Raymond Kethledge of the Sixth Circuit (Mich.)
Thomas Lee of the Utah Supreme Court
Joan Larsen of the Michigan Supreme Court
William Pryor of the Eleventh Circuit (Ala.)
David Stras of the Minnesota Supreme Court
Diane Sykes of the Seventh Circuit (Wis.)
Don Willett of the Texas Supreme Court

I am not familiar with the jurisprudence of all 11, but I do think that William Pryor would make a very fitting successor to Justice Scalia.  Confirmation would be a bloody fight, but if we hold the Senate it is a fight we would win.

The larger question is whether Mr. Trump can and will pivot from the crass bluster that got him this far into a man of serious policy, capable of winning the general election and then being an effective President.  Many have serious doubts, but this looks like a good start.

Death Sentence Ordered for KS Man:  A judge followed a jury's recommendation on Wednesday and sentenced a Kansas man to death for the 2013 killings of a young woman and her 18-month-old daughter.  Tony Rizzo of the KC Star reports that Kyle Flack, 30, was found guilty earlier this year of capital murder in the shotgun slayings of Kaylie Bailey, 21, and her toddler, Lana.  Flack was also convicted of first-degree murder in the killing of Steven White, 31, and second-degree murder in the death of Andrew Stout, 30, receiving life in prison and 22 years three months, respectively.  He received an additional nine months for illegal possession of a firearm.  A motive for the murders, which occurred on the same farmhouse, is unknown.

Cartel Member Caught Crossing Border:  A self-confessed Los Zetas cartel member was arrested in Texas over the weekend entering the U.S. illegally and is now in federal custody.  Ildefonso Ortiz of Breitbart reports that the cartel member, an illegal immigrant from Mexico, was arrested Saturday near the border city of Roma, just north of Aleman, Tamaulipas.  The member's arrest is one of many that commonly occur along Texas border communities, including arrests of high-ranking drug cartel figures.  Earlier this month, five Gulf Cartel members were apprehended crossing into Roma from Miguel Aleman, claiming to be fleeing their rivals in Mexico.

Case could Yield 1st Death Penalty for CA County in Years:  The fate of an Oakland, Calif., man convicted of killing an eight-year-old girl and another man three years ago will be decided by a jury this week, marking the conclusion to Alameda County's first death penalty trial in years.  Angela Ruggiero of the East Bay Times reports that Darnell Williams, 25, was convicted last week of the July 2013 killing of Alaysha Carradine and the September 2013 death of Anthony Medearis, 22.  Carradine was spending the night at a friend's house when she died in the crossfire of a barrage of bullets Williams sent into the home, where he had gone intent on hurting loved ones of a man he believed killed his friend.  Two months after Carradine's death, Williams murdered Medearis after arguing over a dice game.  The last time the Alameda County district attorney prosecuted a death penalty case was for David Mills, who was sentenced to die in 2012 for killing three people in Oakland in 2005.  If Williams is sentenced to death, his execution may not be carried out for 20 years or more due to the state's years-long appeals process and a moratorium on executions amid an ongoing legal battle over the lethal injection protocol.  California has executed just 13 inmates since the death penalty was reinstated in 1978, the last of which was in early 2006.  As of Jan. 1, 743 death row inmates are awaiting execution.

ABC News has a story out today listing eleven candidates Donald Trump says he would consider for the Supreme Court.

White teenagers singing along to A$AP Ferg's rap song whose lyrics include the n-word is offensive to Barry Bonds?  A pregnant white actress who captions her Instagram post with a lyric from Sir-Mix-Alot's "Baby's Got Back" is offensive to the black community?  I don't get it.  Yes, I agree that A$AP Ferb's "Dump Dump" song is totally and completely offensive in and of itself.  However, a black artist (who most likely profited from these white people) can write and record a song with these offensive lyrics, but a white person can not sing along to it or refer to it? Sure, there are plenty of things going on in the world today to get offended about.  But, white people directly repeating a black artist's song lyrics is not one of them.  

One of the excuses we hear for supposedly innocent defendants' supposedly being "railroaded" into jail is that indigent defense is too resource-starved to fight off rapacious prosecutors and their fabricated charges.

Sen. Jeff Sessions has been one of the leaders in the opposition to proposals for mass sentencing reduction for felony-level criminals.  As he noted in remarks on the Senate floor this week:

"According to the F.B.I. statistics released just this year, the number of violent crimes committed across the country was up in the first half of 2015 compared with the same period of 2014. The number of murders, rapes, and assaults and robberies were all up over the first six months of 2015. There was a 6.2 percent increase in murders, [and] violent crime across America rose 5.3 percent in large cities... What I'm seeing is, in my judgment, that this is a long-term trend. I think we're going to continue to see this increase. I wish it weren't so, but I'm afraid it is...

"When you have 20, 30, 40 percent increases in crime, you're talking about doubling the crime rate, the murder rate in America in two or three years, after we spent 20 years bringing it down by half. We've got to be sure what we are doing here, colleagues, is smart and we're not signing death warrants for thousands of American innocent citizens."

The tape of his remarks is here.

Subtitle:  Pot Is Wonderful, Only Not So Much.

A man in a Hamilton County courtroom finally gave in and pulled out two bags of pot from his underwear- a move that landed him an extra day of jail.

Hamilton County Municipal Court Judge Bernie Bouchard stopped court on Wednesday after an overwhelming smell of marijuana allegedly took over the courtroom. 

Bouchard gave everyone a chance to claim responsibility for the marijuana before he ordered deputies to bring drug dogs in the courtroom. 

The defendant, Darius Dabney, raised his hand and admitted to smoking marijuana before entering the courthouse.  

Constitutional Carry Passed by MO Lawmakers:  The Missouri legislature passed a bill last Friday that lifts the permit requirement for the concealed carry of firearms, and Gov. Jay Nixon is expected to decide whether or not to sign the measure into law.  Stephen Gutowski of the Free Beacon reports that the bill allows any law-abiding adult who can legally possess a firearm to carry a concealed firearm on their person without having to obtain a separate permit.  Additionally, it extends "castle doctrine" protections to house guests and removes the requirement that someone in a public place who reasonably believes their life is threatened must retreat before using deadly force to protect themselves.  The measure passed with a 114-36 vote in the House and a 24-8 vote in the Senate.  Gov. Nixon has not announced whether he will sign or veto the bill.  If he vetoes it and the original vote count holds, the legislature could override the veto.

Bill Addresses Uncooperative Foreign Nations:  A congressman introduced a bill last Friday that stipulates withholding foreign aid and travel visas from countries that refuse to repatriate illegal immigrants who have been given a final order of removal from the U.S.  Melanie Hunt of CNS News reports that Rep. Brian Babin (R-Texas) and 20 Republican co-sponsors proposed the Criminal Alien Deportation Enforcement Act of 2016, citing the crime of Jean Jacques, who murdered a woman six months after he was released from prison when his home country of Haiti refused to take him back.  The legislation requires the Department of Homeland Security to submit a report to Congress every three months detailing those countries that refuse to repatriate their citizens and will, in turn, subject those countries to the bill.  The bill also gives victims of crimes resulting from foreign countries' lack of cooperation legal standing to due in federal district court. 

CA Considers Making Lethal Injection Drugs:  Since pharmaceutical companies are refusing to sell lethal injection drugs for executions, new rules proposed by the California Department of Corrections and Rehabilitation (CDCR) allow prison officials to manufacture barbiturates at its own compounding pharmacies to carry out the death penalty.  Frank Soltze of KPCC reports that the plan outlines the four barbiturates California prison officials would be allowed to use for executions -- amobarbital, pentobarbital, secobarbital and thiopental -- and provides the option to sidestep big drug companies by either compounding the chemical itself or contracting with a private non-state compound pharmacy.  Compounding pharmacies differ in that they are barred from simply copying barbiturates and other drugs already on the market, and also require a preexisting doctor-patient relationship, a patient with a particularized need and a prescription for the specific compound from the doctor.  The CDCR is taking public comment on its proposed regulations through July 11.  It has been over 10 years since California carried out an execution.

In my last post, I gave a preview (courtesy of Harvard Law Prof. Mark Tushnet) of how dreadful a Clinton-appointed Supreme Court would be.

Many conservatives find the upcoming election choices less than uplifting.  But either Hillary or The Donald is going to be the next President; it would take a miracle for anything else to happen.

The effort to engineer mass sentencing reduction took a major hit when Sen. Marco Rubio announced his opposition.  As the Washington Examiner discloses:

Marco Rubio [has become] a firm opponent of the bipartisan sentencing reform legislation pending in the Senate, following a review of the bill and multiple conversations with Republican proponents of the package.

"I just have too many concerns about the spike in violent crime in this country and what impact that law would have on it," Rubio told the Washington Examiner. "I just can't support it...There are people who are supporting this proposal who I have a lot of respect for, and so I took the time to review it," Rubio said. "I think, unfortunately, if you apply it to some of the cases I've asked prosecutors to look at, it could result in the release of dangerous people who, maybe, pled down to a lower charge but ultimately are very dangerous."

I wrote earlier today about BLM's fascist takedown of a Dartmouth student bulletin board honoring the sacrifices of police officers.  Diversity of opinion, once seen as a staple of liberal higher education, seems no longer to be in vogue, as least if the dissenters look kindly on police heroism (as even Barack Obama does, to his considerable credit).  

...engages in "community organizing around housing access, social movements for trans justice and prison abolition, and queer anarchist anti-war activism." Naturally, he is also the faculty adviser to GMU Students Against Israeli Apartheid."

Police Seek Answers in Nationwide Crime Spike:  Major cities across the U.S. are experiencing dramatic increases in homicides and other violent crimes in the first months of 2016, leaving law enforcement officials grasping for answers as to the common denominator.  Andrea Noble of the Washington Times reports that last week, FBI Director James Comey reignited the debate over the "Ferguson effect," the notion that the crime uptick is due to police becoming less aggressive out of fear of being the subject of the next "viral video."  However, there is not enough data yet to prove or disprove the theory.  Alternative theories offered by law enforcement leaders include quicker escalation of violent gang beefs due to social media, the heroin and opioid epidemic and the fact that crime rates had been low for some time and therefore "can only go up."  The data was provided by the Major Cities Chiefs Association and included 63 reporting police departments that compared statistics from the first three months of 2015 and 2016.  Combined, the statistics show 114 more murders, 260 more rapes, 837 more robberies, 3,132 more violent assaults and 818 more nonfatal shootings recorded this year compared to last year.

Illegals Finding More Loopholes to Stay:  Law enforcement officials from various agencies say that Central and South American immigrants are finding new loopholes to manipulate the U.S. immigration system and remain in the country.  Ildefonso Ortiz of Breitbart reports that immigrants are receiving a temporary permission to stay by claiming the lesser-known "Humanitarian Parole," which differs from refugee status.  While refugee status is achieved when an individual is unable to return to his or her home country because of "persecution on account of race, religion, nationality, membership in a particular social group, or political opinion," humanitarian parole allows immigration officials to bring in an otherwise inadmissible individual into the country for a temporary period of time due to a compelling emergency.  Officials say, however, that immigrants claiming humanitarian parole "appear to be coached."  The revelation comes as the Rio Grande Valley is experiencing another surge in children and family migrants coming over the southern border.  In the first three months of the year, there was a 120% increase in the number of family units and an 81% increase in unaccompanied minors.

Bill Addresses Mental Health among Criminals:  New legislation introduced by a Georgia Congressman seeks to address mental health and addiction issues among the country's incarcerated population.  Rudy Takala of the Washington Examiner reports that Rep. Doug Collin, R-Ga., says that approximately 35-40% of incarcerated individuals have mental health or addiction issues, a figure that equates to an estimated two million people.  His bill, the Comprehensive Justice and Mental Health Act, authorizes the Department of Justice to distribute grants to facilities and programs aimed at identifying mental health victims and directing them to appropriate treatment, including mental health courts and crisis intervention teams.  It would also support training for law enforcement.  The bill has 40 Republican and 57 Democratic cosponsors in House.  Its Senate counterpart was approved by a bipartisan vote in December.

Jonathan Adler has this post at the Volokh Conspiracy, "On the ridiculous controversy over changing the name of the George Mason University School of Law," i.e., to rename it in honor of the late Justice Antonin Scalia.

Adler lays out well why the controversy is ridiculous, and I recommend his discussion.  I was particularly struck by this statement:

Faculty from unaffiliated departments, such as art history, "cultural studies," and others (notably excluding economics, mathematics, and the physical sciences), began a campaign in the Faculty Senate to pass a resolution urging the university administration and the State Council of Higher Education for Virginia to delay acceptance of the gifts.

Why this striking difference by department?  It tends to confirm what I have long suspected.  There is a negative correlation between the extent to which a field of study is tied to objective reality and subject to experimental verification or falsification (i.e., real science, whether physical or social) and the degree of loony leftism in the faculty.  Lefty loons are attracted to subjects where they can't be objectively proved wrong.  It's easier to spread B.S. in such subjects.  (And no, I don't mean Bachelor of Science).

The U.S. Supreme Court decided six cases today.  Only one summary disposition involves criminal law.

Kernan v. Hinojas, No. 15-833, is a Ninth Circuit habeas corpus case involving that court's failure to give deference to the California Supreme Court's summary denial of an original petition in that court.  This is an area the high court has gotten into several times, and to some extent it is specific to California's odd system of original habeas petitions in reviewing courts, so I won't go into detail here.

In the "curious incident of non-barking dogs" department, the certiorari petition in Johnson v. Lee, No. 15-789 was on the conference list Thursday but was absent from today's orders list.  The online docket now shows it to be on the list for this coming Thursday, the fourth conference for this case.

The case involves the Ninth Circuit's brushing aside of California's rule (similar to those nearly all states and the federal courts) that a claim that could have been made on appeal and wasn't is forfeited.  This number of "relists" is a possible indication that the Supreme Court is going to reverse summarily, and it is trying to agree on an opinion.  A certain notorious wascally wabbit suggested that course of action would be appropriate in this case.

The cleansing of conservative ideas from academia reached new lows this last week at Dartmouth, where campus Republicans, having sought and secured permission, used a college bulletin board to put up their display, "Blue Lives Matter."  It was designed to honor, during National Police Week (May 15-21) the sacrifices of police officers.

Lest readers think there's going to be accountability from the Leniency Brigade that enabled violent rapist Antown Durrell Pitt  --  and now touts identical thinking in behalf of "sentencing reform"  --  the rest of the Post story is required reading:

Pitt's case is among at least 3,600 under the Youth Act since 2007 [legislation centered on rehabilitation and "second chances"] that have not been scrubbed from court records, according to Post research. Of those, 1,900 were felonies, including more than 700 for violent crimes.

CSOSA [Court Services and Offender Supervision Agency] spokesman Leonard A. Sipes Jr. said the agency followed its policies and procedures in the Pitt case.

"Mr. Pitt was assessed, closely supervised, referred for appropriate services and placed on GPS," Sipes said.

Making it as a small business has always been rough, and it is particularly so in the retail sector in the Age of Amazon.  Small retailers are an important element of our economy as a source of personal service you can't get elsewhere and as places where people starting out can get their first jobs, but they are endangered.

Don Thompson of AP reports how a misguided ballot measure in California has made it all the more difficult for this embattled group of entrepreneurs.  

Perry Lutz says his struggle to survive as a small businessman became a lot harder after California voters reduced theft penalties 1½ years ago.

About a half-dozen times this year, shoplifters have stolen expensive drones or another of the remote-controlled toys he sells in HobbyTown USA, a small shop in Rocklin, northeast of Sacramento. "It's just pretty much open season," Lutz said. "They'll pick the $800 unit and just grab it and run out the door."

Anything below $950 keeps the crime a misdemeanor -- and likely means the thieves face no pursuit and no punishment, say retailers and law enforcement officials. Large retailers including Safeway, Target, Rite Aid and CVS pharmacies say shoplifting increased at least 15 percent, and in some cases, doubled since voters approved Proposition 47 and ended the possibility of charging shoplifting as a felony with the potential for a prison sentence.

If you want to know how the false promises of sentencing reform will actually work, today's lead story in the Washington Post is must reading.

It is being widely reported in the press that drug manufacturer Pfizer is putting restrictions on the sale of its drugs to prevent them being used in executions.  However, no press release to that effect is on their press release page as of this writing.

I was not aware that any state was using a Pfizer-brand drug, so the impact is unclear.  There may not be any impact at all.

The states most actively carrying out executions have been getting their drugs from compounding pharmacies.  The statement by the opponents that Pfizer's action drives the sourcing "underground" is nonsense.  There is nothing "underground" about compounding pharmacies.

The lethal injection drugs of choice remain thiopental and pentobarbital, and all we really need is for Congress or the Supreme Court to abrogate or overrule the D.C. Circuit's wrongly-decided Cook case so that imports from Asia can resume.  Any questions about purity or potency can be easily resolved by testing.

Murder Rates Spike Across US:  Over 20 major U.S. cities have experienced large increases in homicides in recent months, new data shows.  Eric Lichtblau and Gardiner Harris of the NY Times reports that Chicago's numerical increase in homicides in the first three months of this year was the most significant, with murder up to 141 from 83 over the same period a year ago.  Other dramatic spikes were seen in Las Vegas, up to 40 from 22, and Dallas, up to 46 from 26.  Other cities showing sharp increases include Jacksonville, Los Angeles, Memphis, Nashville, Newark, Phoenix and San Antonio.  FBI director James Comey believes that the surges could be linked to less aggressive policing stemming from the "viral video effect," otherwise known as the "Ferguson effect."

Illegal Immigrant to Stand Trial for Quintuple Murder:  A judge ruled Thursday that an illegal immigrant who killed five men in two states earlier this year will stand trial in Missouri.  Fox News Latino reports that 40-year-old Pablo Antonio Serrano-Vitorino, a Mexican national, is accused of murdering his neighbor and three other men at the neighbor's Kansas City, Kan., home in early March and then killing another man 170 miles away in Missouri.  He faces charges of first-degree murder, burglary and criminal action in the Missouri case, and Missouri prosecutors are seeking the death penalty.  In the Kansas murders, he is charged with four counts of first-degree murder, though it isn't clear whether Kansas prosecutors will seek the death penalty.  A motive for the killings has not been disclosed.  Serrano-Vitorino was previously deported in April 2004 and illegally reentered the U.S. sometime after that.  Despite legal run-ins since, including a battery conviction in Kansas last summer, he has avoided deportation.

Two NH Cops Wounded in Shooting, Suspect Caught:  An armed suspect who shot and wounded two police officers in two separate location in Manchester, N.H., Friday morning is in custody following an intensive manhunt.  Fox News reports that the shootings were connected to a robbery at a gas station.  Authorities have not yet released the identity of the suspect.  One of the wounded officers was already released from the hospital, while the other one remains there in stable condition.

Last month, the U.S. Supreme Court heard oral argument in three "drunk driver" cases.  The defendants in those cases challenged the criminal penalty that attaches when an arrested suspected drunk driver refuses to take a chemical test to determine the driver's blood alcohol level.  CJLF filed an amicus brief in one of the cases (Beylund v. Levi) in support of the implied consent and criminal refusal laws.

The amount of alcohol in a person's blood is scientifically easy to determine.  Most people agree that drunk people should not operate a motor vehicle.  But what about stoned drivers?  Driving under the influence of "any drug" is a crime in California (Vehicle Code 23152(e)).  But, there is no established legal limit for marijuana like there is for alcohol.

Eric Lichtblau reports for the NYT:

The director of the F.B.I. reignited the factious debate over a so-called "Ferguson effect" on Wednesday, saying that he believed less aggressive policing was driving an alarming spike in murders in many cities.

James Comey, the director, said that while he could offer no statistical proof, he believed after speaking with a number of police officials that a "viral video effect" -- with officers wary of confronting suspects for fear of ending up on a video -- "could well be at the heart" of a spike in violent crime in some cities.

"There's a perception that police are less likely to do the marginal additional policing that suppresses crime -- the getting out of your car at 2 in the morning and saying to a group of guys, 'Hey, what are you doing here?'" he told reporters.

How much truth can an official in the truth-intolerant Obama Administration speak before he gets fired?  We may be close to finding out.

GA Murderer Executed:  Georgia executed a convicted murderer Tuesday evening for the 1996 killing of his 19-year-old neighbor.  Victor Morten of the Washington Times reports that Kenneth Fults was put to death by lethal injection following two unsuccessful last-ditch efforts to halt it.  Fults pleaded guilty to fatally shooting Kathy Bonds in the back of the head five times during a burglary following a week-long crime spree that included the attempted murder of his ex-girlfriend's new boyfriend.  Fults was the fourth person executed in Georgia this year and the 12th nationwide.

Execution of AL Cop Killer Stayed:  A federal appeals court granted a motion to stay the Thursday night scheduled execution of an Alabama cop killer less than 12 hours before it was to be carried out.  Kelly Cohen of the Washington Examiner reports that the U.S. 11th Circuit Court of Appeals granted a stay in order to hear arguments that 65-year-old Vernon Madison is incompetent to face the death penalty because a series of strokes left him with "vascular dementia and memory deficits" and "he no longer understands why the State of Alabama seeks to execute him," his attorneys argue.  Madison is on death row for the 1985 murder of police officer Julius Schulte, who was shot point blank in the head while responding to a domestic disturbance call.  Madison was on parole at the time.  Now, his attorneys must file briefs addressing his health issues by May 27 and the attorney general's office has until June 10.  His attorneys must reply by June 17.  Update:  Alabama has asked the U.S. Supreme Court to lift the stay, Mark Berman reports in the WaPo.

Chicago Violence Steadily Rises:  Since early Wednesday afternoon, four people were killed and at least 14 were wounded in Chicago, continuing the city's streak of violence this year, Rosemary Sobol, Grace Wong and Alexandra Chachkevitch of the Chicago Tribune report.  The violence included five people shot in the Park Manor neighborhood and a triple fatal shooting at an Englewood home.  A resident who works near where one of the incidents occurred said, "I've been in this neighborhood six years and no problems happened.  And now I'm scared to walk outside."

Gang Member Arrested for Rape 12 Hours After Release:  A Los Angeles gang member had been out of jail for 12 hours when he was arrested for raping a woman in a Lincoln Heights park restroom.  The LA Daily News reports that 27-year-old Edgar Lobos forced the 31-year-old victim into the restroom at gunpoint when she was walking through the park on Monday evening.  The victim and witnesses were later able to identify Lobos based on his distinctive facial tattoos.  Lobos' criminal history includes vandalism, possession of controlled substances and domestic violence.  Before being released from jail shortly before the attack, he was serving time for a narcotics-related parole violation.

AP reports:

COLORADO SPRINGS, Colo. -- A man who acknowledged killing three people at a Colorado Planned Parenthood clinic is too mentally incompetent to continue with his criminal case, a judge ruled Wednesday.

The decision by Judge Gilbert Martinez puts the case against Robert Dear, 57, on hold until his mental competency can be restored through treatment. He will be sent to the state psychiatric hospital, and his mental health will be reviewed in August.

As he was led out of the courtroom, Dear yelled at the judge: "That's called prejudiced, filthy animal!"

The case will resume when Dear is found to be mentally capable of understanding the court proceedings and able to assist in his defense. He is charged with 179 counts, including murder and attempted murder, stemming from the Nov. 27 shooting at the Colorado Springs clinic that also left nine injured.

House Set to Vote on Opioid Measures:  House Republicans are scheduled to vote this week on 18 bills addressing the opioid addiction epidemic devastating communities across the country.  David M. Herszenhorn of the NY Times reports that some of the bills include measures that would make it easier for doctors to treat patients with opioid addiction; give law enforcement officers greater authority to interdict drug trafficking; offer greater protections for veterans and children affected by the epidemic and require the federal government to conduct studies evaluating the nation's capacity for opioid addiction treatment.  The bills, if approved, will be packaged together and then reconciled with similar legislation adopted in the Senate.

SF to Expand Sanctuary City Law:  Elected officials in San Francisco are voting Tuesday on whether to pass an ordinance that would expand the city's sanctuary city laws, which would further tie the hands of law enforcement and increase protections for illegal immigrants.  Michelle Moons of Breitbart reports that the measure, introduced by Supervisor John Avalos, is being considered by the Board of Supervisors and would prevent local law enforcement from providing an inmate's personal information or release date to U.S. Immigration and Customs Enforcement (ICE).  Avalos says the ordinance was proposed in response to "xenophobic" sentiment.  The proposal comes as the first anniversary approaches of the death of Kate Steinle, who was fatally shot on a San Francisco pier last July by Juan Francisco Lopez-Sanchez, a criminal alien who had been deported five times and convicted of seven felonies.  Shortly before Steinle was killed, ICE requested a detainer on Lopez-Sanchez, but San Francisco officials denied it and released him.

TX Fighting Order to Reveal Execution Drug Supplier:  Texas is headed to an appeals court Wednesday to fight an order made by a judge over a year ago to disclose the source of its lethal injection drugs.  Michael Graczyk of the AP reports that while attorneys for condemned Texas murderers argue that knowledge of drug suppliers identities ensures an execution "comports with the Constitution" and verifies the drug's potency, the Texas Department of Criminal Justice contends that publicly identifying them would lead to imminent violence for pharmacies.  Texas currently receives its execution drugs from an unidentified compounding pharmacy, its source since traditional pharmaceutical makers refused to sell their products to prison agencies for use in executions.  The state has carried out 537 executions since 1982, six of which occurred this year.  The Texas appeals court is not expected to rule immediately in the case, and it's possible the decision could be appeals to the state Supreme Court.

Phony ACLU Estimate on Cost of Execution Drugs:  The ACLU of Northern California obtained prison agency records that it says suggests the state might have to pay hundreds of thousands of dollars to buy execution drugs for lethal injections.  Maura Dolan of the LA Times reports that Ana Zamora, criminal justice policy director for the ACLU chapter, estimated after viewing a series of emails from 2014 that drugs for a single execution would cost between $133,080 and $150,000, instead of the approximate $4,193 stated in the Department of Corrections and Rehabilitation's proposed lethal injection regulatory package.  However, Criminal Justice Legal Foundation president Michael Rushford says the drugs could be obtained at even less than $4,000 for each execution if the department used compounding pharmacies as its source.

CJLF sometimes gets involved in freedom-of-speech issues as they sometimes overlap with criminal law.  "Hand over your wallet or I will kill you," is speech.  It is also robbery.

On college campuses today, the principal threat to freedom of speech comes from the political left.  The disgraceful conduct of officials at Marquette University in the case of Professor John McAdams is described in this editorial at the WSJ.

But not everyone in academia has lost their minds.  The Standing Committee on Open Expression at Emory University has this thoughtful opinion on some recent incidents there.

Thanks for the tip to Eugene Volokh, who notes his brother is on the committee.

Is a loaded revolver "on his person" if it is carried inside of a backpack that is being worn by a man fleeing from the police? In California, the answer is yes.

On Monday, the California Supreme Court held in People v. Wade (S224599), that the defendant in that fact scenario was guilty of carrying a loaded firearm pursuant to Penal Code section 25850, subdivision (a). The Court got this one right. A loaded revolver tucked into a waistband, a loaded pistol inside of a briefcase, and a loaded firearm packed inside of a suitcase at the airport are all "on his person" and are all an equal threat to public safety.

In so holding,the Court said: "we believe the statute should be fairly applied consistent with the Legislature's concern with the threat to public safety from those with control over and ready access to loaded guns in public. We agree with the Court of Appeal in this case 'that defendant's immediate access to the revolver within the backpack he wore created the type of clear threat to the general public . . . that is prohibited by section 25850, subdivision (a).' "

Judge Frees Abuser to Kill Girlfriend:  A Las Vegas judge is facing criticism after failing to lock up a domestic abuse defendant who went on to kill his girlfriend and himself two days after her ruling.  Fox News reports that Justice of the Peace Melanie Tobiasson, who has run domestic violence courts for nearly four years, claims she had no indication Travis Spitler, 40, would fatally shoot Christina Franklin, 28, outside their children's day care, despite the fact that Franklin had informed the judge two days before her death that Spitler had punched and kicked her in front of their children just after Christmas, threatening to kill her.  Rather than lock Spitler up, Tobiasson ordered him to have no contact with Franklin and denied revocation of his bail.  Two days later, Spitler showed up at the day care and fatal shot Franklin and injured his two children (ages three and four), before turning the gun on himself.

Kansas Detective Fatally Shot by Parolee:  A Kansas City, KS, detective shot by a parolee near the Kansas Speedway on Monday afternoon died from his injuries.  Tony Rizzo, Glenn E. Rice, Laura Bauer and Robert A. Cronkleton of the KC Star report that nine-year veteran detective Brad Lancaster, 39, was shot several times by Curtis Ayers, 28, after responding to a report of a suspicious person.  Following an exchange of gunfire, Ayers fled in Lancaster's vehicle before abandoning it and carjacking another vehicle with two children inside, who were unharmed.  Ayers then carjacked yet another vehicle before crashing it, after which he shot another driver in an attempt to take her vehicle, but she managed to drive away with survivable injuries.  Ayers was shot and captured while trying to flee on foot and suffered non-life threatening injuries.  Ayers was released on parole in early January after serving time for child abandonment, fleeing a police officer, and interference with a law enforcement officer.  He was also prosecuted for domestic battery and making a terroristic threat.  Lancaster's killing marks the first death of a Kansas City, KS, police officer in the line of duty since 1998.

Blood Testing for Driving on Pot Questioned:  The legal tests adopted by six states to determine levels of impairment of drivers under the influence of marijuana have no scientific basis and should be scrapped, according to AAA's safety foundation.  The AP reports that a study commissioned by the foundation found that it's not possible to set a blood-test threshold for THC that can reliably determine impairment because it is far more complex than a test for blood alcohol content.  The study says that THC, the chemical in marijuana that makes people high, can linger in frequent marijuana users long after using the drug, and additionally, there is no science that shows drivers become impaired at specific levels of THC in the blood.  The foundation recommends replacing the laws in Colorado, Nevada, Montana, Ohio, Pennsylvania, and Washington with ones that rely on specifically trained police officers to determine a driver's impairment, backed up by a THC test.  Studies show that driving under the influence of marijuana doubles the risk of a crash, and another study found that drivers in fatal crashes who had recently used marijuana doubled in Washington after the state legalized it for recreational use in December 2012.  At least three states, and possibly as many as 11, will vote this fall on legislation to legalize marijuana for either recreational or medical use, or both.

A:  It's not the death penalty.

The notion that a prison term, whatever its length, is proportionate justice for crimes like this is absurd  --  not that absurdity ever stopped the pro-criminal lobby.

The case dates back to October 2013, when prosecutors said several of the defendants plotted to kill a member believed to be cooperating with police.

...gang members killed Nelson Omar Quintanilla Trujillo, who was suspected of alerting police to the failed murder plot, prosecutors said. After luring Trujillo into Holmes Run Park in Fairfax County, they stabbed him to death, dismembered him and buried him in the woods. Several months later, they stabbed and decapitated Gerson Adoni Martinez Aguilar, an MS-13 recruit who was accused of stealing gang money and having sex with an incarcerated member's girlfriend. They buried him in the same park.

The third murder took place in June 2014, when Chavez and two other gang members shot and killed Julio Urrutia in Alexandria, mistaking him for a rival gang member, according to the prosecutors.

Three murders, stabbing, dismemberment, decapitation  --  hey, look, these are merely "justice involved" youth in need of counseling.

The next President is almost certain to re-shape the Supreme Court.  If it's Sec. Clinton, there is a strong likelihood we'll go back to the disastrous, Constitution-free Court of the Sixties, and will live under it for a long time.  If Donald Trump becomes President, no one knows what to expect.  One of many problems with Trump is that he'll say one thing in the morning and the opposite that afternoon.  And while, in my opinion, it's likely his appointees would be notably better than Clinton's, you wouldn't be surprised with more selections like Justice Stevens and Justice Blackmun (or Earl Warren for that matter).

FL Death Penalty Debate Continues:  A Miami-Dade judge ruled Monday that Florida's death penalty system, even with the new changes enacted, is unconstitutional because jurors are not required to agree unanimously on execution.  David Ovalle of the Miami Herald reports that Circuit Judge Milton Hirsch issued the ruling in the case of Karon Gaiter, who is awaiting trial for first-degree murder.  Hirsch stated that Florida's new law requiring 10 of 12 juror votes to impose the death penalty "goes against the long-time sanctity of unanimous verdicts in the U.S. justice system."  Even though the new law also requires jurors to unanimously vote on aggravating factors, Hirsch says the fixes don't matter.  The U.S. Supreme Court declared Florida's death sentencing system unconstitutional in January, in the case of Timothy Lee Hurst, because it did not require the jury to return a specific finding on the existence of an aggravating circumstance needed to make the case eligible for the death penalty.  (The article incorrectly implies that the problem related to the ultimate sentencing decision.  See Kent's post earlier today.)  The Florida Supreme Court heard oral arguments last week in the Hurst case and now, with Hirsch's ruling, the debate rages on.

Drug Dealing is a Violent Crime:  Former directors of the Office of National Drug Control Policy William J. Bennett and John P. Walters have this piece in the Washington Examiner dispelling the claims made by President Obama that federal prisons are filled with "non-violent drug offenders" and that drug dealing is a "victimless crime."  Bennett and Walters say that the Sentencing Reform and Corrections Act that is now before Congress is based on these lies, as 99.5% of those incarcerated in federal prison for drug convictions are guilty of serious trafficking offenses and among state drug inmates, 77% reoffended within five years of release, a quarter of them committing violent crimes.  Beyond that, "only the dishonest and willfully blind can claim that drug trafficking is a non-violent" and victimless crime and push for the release of experienced drug traffickers as the nation endures a 440% increase in heroin overdose deaths over the past seven years.  Bennett and Walters conclude that, knowing all of this, it is irresponsible to release drug dealers from prison before they have completed their just sentences.

Bloody Mother's Day Weekend in Chicago:  By the time Mother's Day weekend came to an end in Chicago, eight people were killed and 43 wounded in shootings across the city, making it the most violent weekend since September.  Alexandra Chachkevitch and Megan Crepeau of the Chicago Tribune report that on Saturday alone, in the span of 3.5 hours, someone was shot every 14 minutes.  The victims ranged in age from 16 to 58.  At least 1,225 people have been shot in Chicago so far this year, breaking records not seen since the 1990s. 

Mark Berman at the Washington Post has this story on the Hurst remand argument, noted in my post yesterday. Unfortunately, the article contains a glaring error.

The uncertain situation dates back to January, when the U.S. Supreme Court struck down Florida's unique system of imposing death sentences as unconstitutional because it let judges, rather than juries, make the final call.

Wrong.  The issue in Hurst was the finding of an aggravating circumstance making the defendant eligible for the death penalty.  Way back in the Spaziano case in 1984, as described in my previous post, the Supreme Court rejected the argument that the Sixth Amendment requires that the jury make "the final call."

In light of the facts that the Sixth Amendment does not require jury sentencing, that the demands of fairness and reliability in capital cases do not require it, and that neither the nature of, nor the purpose behind, the death penalty requires jury sentencing, we cannot conclude that placing responsibility on the trial judge to impose the sentence in a capital case is unconstitutional.

The Hurst Court was very careful not to say that Spaziano was overruled entirely.  Instead, Spaziano and Hildwin were overruled only "to the extent they allow a sentencing judge to find an aggravating circumstance, independent of a jury's factfinding, that is necessary for imposition of the death penalty."  In other words, Spaziano is still good law on the "final call."

Why does the WaPo keep getting things wrong on capital cases?  Maybe it's because the "experts" consulted for their stories consist mostly, if not entirely, of advocates for one side of the issue.

The former Governor of Louisiana has this op-ed in the WSJ:

I think electing Donald Trump would be the second-worst thing we could do this November, better only than electing Hillary Clinton to serve as the third term for the Obama administration's radical policies.

*                     *                   *

The next president will make a critical appointment to the Supreme Court, who will cast the tiebreaking vote in important cases that will set precedents for years to come.

*                     *                   *

In my lifetime, no Democrat in the White House has ever appointed a Supreme Court justice who surprised the nation by becoming more conservative, while the opposite certainly cannot be said for Republican appointments. Mr. Trump might not support a constitutionalist conservative focused on original intent and limits on the court's powers. He may be more likely to appoint Judge Judy. However, there is only a chance that a President Trump would nominate a bad justice, while Mrs. Clinton certainly would.

I don't entirely agree with the first sentence.  Electing Bernie Sanders would also be worse, for example.  But I assume that Gov. Jindal is assuming that Sanders is not a realistic possibility, which is a pretty fair assumption.

And it's not just a bad justice.  The next President may very well get multiple appointments and shape the Court for a generation to come.

In January, the U.S. Supreme Court decided in Hurst v. Florida that the Florida capital sentencing system did not comply with a series of cases beginning with Apprendi v. New Jersey (2000).  Yesterday the Florida Supreme Court heard oral argument on remand in the Hurst case.  Several people have asked me what should/will happen to the cases of the murderers presently on death row in Florida.  "Should" is easier to answer than "will":

1.  Cases final on direct appeal (i.e., those where the Florida Supreme Court has affirmed the judgment in the initial appeal and the U.S. Supreme Court has denied the petition to take the case up or the defendant did not file one) should not be affected by Hurst.

2.  Cases already tried and pending on appeal should be affirmed under the "harmless error" rule if it is clear beyond a reasonable doubt that the jury would have unanimously found at least one aggravating circumstance if they had been asked to do so.   For example, if the jury convicted the defendant of robbery and murder and there is no question in the case that the murder was committed in the course of the robbery (an aggravating circumstance), that would be harmless error.

3.  Cases where there is a Hurst error that does not meet the standard for harmless error should be retried as to penalty under the new statutory procedure.

Brown's Bill Helps his Crime Initiative:  Dan Walters has this piece in the Sac Bee about a bill California Gov. Jerry Brown signed last week in which he effectively gave himself an extension and incentivized county clerks to count signatures on the bill in time for it to make the ballot on Nov. 8.  Brown's new crime initiative is being criticized because of its potential to increase crime by lessening punishment for criminals.  When he failed to submit signatures by the April 26 deadline, he changed the rules.  AB 120 appropriates $16.3 million for election-related expenses under the condition that county clerks complete signature counts by June 30.  Brown also gave himself until May 20 to collect signatures, 23 days later than the original submission date.  "This entire episode -- a governor apparently getting special treatment no one else could have obtained -- has a smarmy tinge,"  says Walters.  "And if he's successful, it could have long term consequences for the political process."

Another CA City Blames Crime Rise on Prop. 47:  Crime increased in Red Bluff, Calif., in 2015 according to the police department's 2015 annual report, and the city's chief of police suspects Proposition 47 is the reason.  Joe Szydlowski of the Redding Record Searchlight reports that major violent and property crimes rose 12.6% in 2015, with a 28% spike in simple assaults and a 17.6% increase in thefts.  Domestic violence calls also jumped 16% and arrests rose 42%, which may be because more people who used to be incarcerated are now out in the community, says Kyle Sanders, the city's police chief.  Burglaries did decrease, but Sanders thinks it is likely due to some burglaries being charged as thefts under the voter-approved measure. Prop. 47 passed in Nov. 2014 and reduced several felonies to misdemeanors.  Sanders notes that Red Bluff experienced three years of consistency in major crime data and saw the dramatic spike in crime after Prop. 47's implementation.

Fla. High Court Weighs Death Penalty Law:  The Florida Supreme Court is reviewing the state's death penalty law Thursday to decide whether the U.S. Supreme Court's January ruling, that the state's system is unconstitutional, should be applied retroactively to already-sentenced death row inmates.  Steve Bousquet of the Tampa Bay Times reports that the Jan. 12 ruling was brought on by the case of Timothy Lee Hurst, who is on death row for the 1998 murder of his co-worker.  Justices ruled that Florida's death sentencing system was unconstitutional because it gave too little power to juries and ordered the Florida Supreme Court to review Hurst's sentence.  Assistant Attorney General Carine Mitz argues that Hurst should still be eligible for execution because the Legislature addressed the defects of the old law.  The new law requires juries to agree on one aggravating factor in order to apply capital punishment.  There are currently 390 inmates on Florida's death row.

The Constitution Center in Philadelphia yesterday hosted a discussion of the legacy of Justice Antonin Scalia, by anyone's reckoning a genius, a spectacular writer, and one of the most influential Justices of my lifetime.

Convicted Sex Offender Arrested After Multiple Deportations:  An illegal immigrant from Mexico with multiple state and federal convictions was arrested in Utah by U.S. Immigration and Customs Enforcement (ICE) for failing to register as a sex offender and for re-entering the U.S. illegally.  Fox News Latino reports that 37-year-old Sergio Amador-Olive has two state sexual assault convictions and two federal immigration convictions dating back to 2003.  He faced deportation in 2003, 2010 and 2014, but continued entering the country illegally.  An ICE press release states that Amador-Olive's case will be presented to the U.S. Attorney General's Office for federal prosecution.

Daytona Sword Killer Gets Death for 3rd Time:  A jury voted 11 to 1 Tuesday to recommend the death penalty for the third time for a man who used a sword to hack and slice another man to death in Daytona Beach, Florida, over two decades ago.  Frank Fernandez of the Daytona Beach News-Journal reports that 52-year-old James Guzman was found guilty last week at his third death penalty trial for the 1991 killing of 48-year-old businessman David Colvin.  The first two convictions were overturned on appeal.  At the latest trial, the jury unanimously agreed on four aggravating factors presented by the prosecution, including that Guzman killed Colvin during a robbery, that he killed to eliminate a witness, that it was an especially heinous killing and that he had murdered before.  Guzman had served just nine years of a 30-year sentence for the 1982 shooting death of a Miami woman.  He was released from prison four months before he killed Colvin.  Guzman's case is the first in the 7th Circuit in which the jury recommended death since the U.S. Supreme Court overturned Florida's death penalty process in January, ruling that judges had too much power in death penalty decisions.

Execution Date Set for TX Man:  A murderer inmate on death row for fatally shooting a young woman in southwest Texas 15 years ago is set to die by lethal injection on August 10.  The AP reports that 33-year-old Ramiro Gonzalez murdered 18-year-old Bridget Townsend in January 2001, but her remains weren't found until two years later when Gonzalez disclosed their location to authorities after receiving two life terms for the abduction and rape of another woman.  The U.S. Supreme Court refused to review his case last December.

AL Man Found Competent for Execution:  One of Alabama's longest-serving death row inmates has had his request to suspend his May 12 execution denied by a state circuit court judge.  Kelsey Stein of AL reports that Vernon Madison has been on death row for 31 years for the 1985 slaying of Officer Julius Schulte, who was responding to a domestic disturbance call.  Madison's attorneys argued at a competency hearing last month that several strokes had caused such a mental decline that he was no longer competent to be executed, but Mobile County Circuit Judge Robert Smith disagreed, issuing a ruling Friday that attorneys had not proven their argument and the execution can move forward.

Va. Gov Sued for Allowing Felons to Vote:  Republican lawmakers in Virginia announced Monday that they are pursuing legal action against Gov. Terry McAuliffe over his decision to restore the voting rights of thousands of felons.  Kelly Cohen of the Washington Examiner reports that Virginia's GOP leaders say McAuliffe overstepped his constitutional powers as governor and was politically motivated when he issued an executive order 10 days ago restoring the voting rights of about 206,000 convicted felons.  Virginia is often a swing state in general elections, and many Republicans believe that McAuliffe, a Democrat, is attempting the influence the election's outcome this November.

Budget Grows, Deportations Drop:  In the last few years, Immigration and Customs Enforcement's (ICE) budget for detention and removal has increased while deportations plummeted, according to the Senate Subcommittee on Immigration and the National Interest.  Caroline May of Breitbart reports that from FY 2012 to FY 2015, ICE's deportation budget grew 25% while the number of deportations declined by nearly 43%.  The total number of illegal immigrants deported in FY 2012 was 409,849, compared to 235,413 in FY 2015, and the budget jumped from $2,750,843,000 in FY 2012 to $3,431,444,000 in FY 2015.  In the midst of it all, ICE deported nearly 41% fewer criminal aliens last year with 25% more resources than it had in FY 2012.

Dozens of Escapes from WA state Mental Hospital:  In the wake of two violent patients' escape from Washington state's largest mental hospital last month, the Associated Press investigated and found 185 instances in which patients escaped or walked away over the past 3.5 years.  Martha Bellisle of the AP reports that at least five patients committed assaults or other offenses after either bolting out unsecured doors, jumping over fences, crawling out windows, running away from staff during off-campus appointments or wandering off after being allowed outside.  Of the 185 escapees or walk-offs, the public was notified in just five instances, even though many had violent histories, were convicted felons or registered sex offenders, or had protection order against them.  Some of the missing had been charged with crimes such as murder, rape, kidnapping, assault and robbery prior to hospitalization.

High Court Turns Away CA Death Penalty Challenge:  The U.S. Supreme Court rejected a challenge to California's death penalty system after an Orange County murderer filed an appeal arguing that waiting decades on death row results in "psychologically inhumane stress."  David G. Savage of the LA Times reports that Richard Boyer was condemned to death in 1984 for the robbery and murder of an elderly Fullerton couple.  That conviction was later overturned due to a police error, but he was tried, convicted and sentenced to death again in 1992.  Justice Stephen Breyer filed a two-page dissent Monday arguing that Boyer's appeal should have been heard.  California's death row is that largest in the nation with 743 inmates awaiting execution, but it has carried out just 13 in 40 years.  None have been carried out for the last ten years because of the lack of a valid execution protocol, but a new one is in the process of being established due to litigation brought by CJLF on behalf of murder victims' families.

Five Seattle Cops Hurt as Protest Turns Violent:  Five Seattle police officers were injured Sunday after an anti-capitalist May Day protest erupted in violence.  Fox News reports that demonstrators pelted officer with rocks, flares, bricks and Molotov cocktails, and also vandalized windows, buildings and parked cars.  One officer suffered a head laceration after being struck by a rock, another was injured, but not burned, by a Molotov cocktail and a third was bitten.  The other two officers' injuries were not detailed by the department.  The protests began peacefully, with demonstrators advocating for workers and immigrants, calling for better wages, an end to deportations and support for the Obama administration's plan to give work permits to illegal immigrants who have American children.  The ensuing violence resulted in nine arrests.

Three Bills Address Illegal Entry into the US:  Seven House Republicans, headed by Rep. John Culberson, R-Texas, have proposed three pieces of legislation aimed at discouraging people from entering the country illegally.  Pete Kasperowicz of the Washington Examiner reports that one of the bills, the Interior Immigration Enforcement Act, states that "any alien who is age 18 and older" and enters the country "shall be fined ... or imprisoned not more than 6 months, or both."  A second bill, the Zero Tolerance for Illegal Entry Act, requires all illegal immigrants to be prosecuted to the fullest extend of the law.  The third bill, the Criminal Alien Detention and Removal Act, requires illegal immigrants convicted of a felony to be automatically deported by U.S. Marshals after their sentence is served.

The U.S. Supreme Court, 5-3, upheld a conviction for conspiracy to violate the Hobbs Act, the federal extortion law, in a case involving a kickback scheme in which crooked police officers referred damaged cars to a particular body shop in return for payments.  The case is Ocasio v. United States.

Justice Alito wrote the opinion of the Court, joined by Justices Kennedy, Ginsbury, Breyer, and Kagan.  Justice Breyer wrote a separate concurrence saying that a key precedent, Evans v. United States, may well have been wrongly decided, but since the defendant did not ask the Court to overrule it, he loses.  Justice Thomas would go ahead and overrule Evans.  Justice Sotomayor, joined by Chief Justice Roberts, would rule for the defendant without overruling Evans.

The next scheduled public session, and therefore the next likely day for release of opinions, is two weeks from today, Monday, May 16.

Last night, I had the opportunity to talk about proposed sentencing reform legislation in a webinar broadcast by the Tea Party Patriots. (Next month, I'll do so with a politically quite different group, the American Constitution Society National Convention).

The Patriots asked if I would post my remarks, and I am happy to do so.  I'll start out by saying here what I said in the webinar: There are some good people supporting the bill, like Michael Mukasey and Sen. Mike Lee, but also some good ones opposing it, like Sens. Jeff Sessions, Tom Cotton and David Perdue.  Sen. Ted Cruz likewise opposes bill, although he voted for a somewhat similar bill in the last Congress.  And Sen. Orin Hatch opposes the bill at least until it is re-written to include mens rea reform  --  a dim prospect given the Administration's adamant opposition. 

What's different is that, while no extreme leftist supports preserving our present, successful system  --  a system that has helped massively reduce crime  --  many support going back to what President Reagan called the failed policies of the past: Feckless faith in untethered judicial discretion, and a misguided belief in the efficacy of rehabilitation. Among those supporting a return to the failed ideas (and, as night follows day, the failed results) of the past are George Soros, the ACLU, the SEIU, and of course the entire Obama Administration.

Conservatives in the Tea Party might want to think twice before joining forces with that group.