September 2016 Archives

California Proposition Poll

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SurveyUSA has this poll on California's ballot propositions, among other things.

"Proposition 62, which would end the death penalty in CA and replace it with life in prison, trails by 15 points today and is headed for defeat." If that sounds familiar, it's nearly identical to what the same poll found about two weeks ago, noted in this post.

"Proposition 63, which outlaws large-capacity magazines and requires background checks on ammo purchases, leads by more than 2:1 and will pass." 

"Proposition 64, which would legalize, regulate and tax recreational marijuana, is supported 52% to 41%. Caution advised."

And Proposition 66, which would streamline the death penalty and allow us to restart executions?  They didn't poll on it.  Again.

The pollsters note:

Polling ballot measures and citizen initiatives is an inexact science. In general, having nothing to do with California specifically and having nothing to do with 2016 uniquely, opposition to a ballot measure increases as Election Day approaches. Rarely does support for a ballot measure increase over time. It is likely that opposition to Propositions 56, 62, 63 and 64 will increase once early voting begins on 10/10/16. This may alter the calculus on recreational marijuana Proposition 64, which today has the most fragile advantage of those measures tested.

News Scan

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CA Gov. Signs Bill Restoring Voting Rights to Thousands of Felons:  California Gov. Jerry Brown singed a bill this week restoring the right to vote for tens of thousands of felons affected by AB 109.  CBS reports that AB 2466, authored by Assemblywoman Shirley Weber (D-San Diego) and Senator Holly Mitchell (D-Culver City), stems from a 2014 winning lawsuit that was filed in response to changes made under Brown's 2011 AB 109 plan and applies to felons who are not serving time in state or federal prisons.  AB 109, also known as Prison Realignment, shifted several state prisoners and program responsibilities to the counties in an effort to reduce overcrowding.  The 2014 lawsuit, filed on behalf of felons transferred from state and federal prison to local jail, argued that offenders in county programs should not be classified the same as other felons. The passage of AB 2466 could result in up to 50,000 new California voters, many of whom will be voting from their jail cells.  Critics say the bill rewards criminals and worry it could potentially compromise the integrity of elections.

Illegal Immigrant Captured After Deadly TX Crime Spree:  An illegal immigrant was arrested this week for going on a murderous crime spree in Dallas, Tex., last Sunday that claimed the lives of two men, in a rampage police are describing as random and likely drug-fueled.  Tanya Eiserer of WFAA reports that Juan Navarro Rios rap sheet includes crossing the U.S.-Mexico border 35 times and deportation back to Mexico three times.  He spent eight months in federal prison in 2011 for illegal reentry and returned to the U.S. again after being sent back to Mexico once he completed his time.  Police say Rios has at east eight aliases and are not certain whether they have his real name.  The rampage began on Sunday night when Rios shot a man to death as he sat in his car and then fatally shot another man in a carjacking.  Rios also opened fire on at least two other vehicles, broke into a home and stole the homeowner's car keys and car, and kidnapped a man at gunpoint on Monday and forced him to withdraw money from an ATM.  Before his capture on Tuesday, Rios set fire to his sister's apartment and broke through a wall into a neighbor's apartment in an attempt to flee.
New Mexico's largest newspaper has this editorial supporting Gov. Susana Martinez's drive to reinstate capital punishment in that state.

And while it won't bring back [Officer Gregg] Benner, a military veteran who was shot by Romero last Memorial Day during a traffic stop, reinstituting the death penalty for those who kill law enforcement officers would not only force such murderers to face the death sentences they have single-handedly delivered, but common sense and New Mexico history dictate that it would act as a deterrent. Nothing else will for this hardened class of criminal.

Chief Justice Malcolm Lucas

Retired California Chief Justice Malcolm Lucas died yesterday.  He was 89.

Justice Lucas was the lone voice of sense on the California Supreme Court in its darkest days, a time when judicial activism ran roughshod over the validly enacted will of the people, over the rights of victims, and over the state constitution itself.  He gave up a U.S. District Judge seat to take the position, and one reporter asked him why he was taking a "demotion."  There was important work to be done.

In 1986, the people stood up, said "no more," and booted three of the justices, including the notorious Chief Justice Rose Bird.  Governor Deukmejian elevated Justice Lucas to Chief Justice.  As the leader of the court, he was instrumental in restoring it to one of the finest courts in the nation.

After retirement, Chief Justice Lucas was a friend and advisor to CJLF.  He will be missed.

News Scan

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A Better Death Penalty for California:  CJLF Legal Director Kent Scheidegger has this op-ed in the Los Angeles Times.

Death Recommended for OH Man who Killed Daughter:  After jurors found an Ohio man guilty of murdering his two-year-old daughter, they decided Wednesday to recommend a death sentence.  Kevin Grasha of Cincinnati reports that Glen Bates, 34, was found guilty Monday of aggravated murder and child endangering in the 2015 death of his daughter, Glenara.  Glenara died of battered child syndrome, starvation and acute and chronic head injuries, the most serious of which occurred when Bates swung her into a door frame "like a baseball bat," according to prosecutors.  The judge will announce whether she will accept the jury's recommendation of a death sentence for Bates on Oct. 17.  Bates' former girlfriend, Andrea Bradley, 30, is facing the same charges.

Gov. Brown Give Felons More Time to Change Record Under Prop 47:  Felons in California with certain felonies on their records will have an additional five years to petition to have their convictions reclassified as misdemeanors under Proposition 47.  Brian Rokos of the Press Enterprise reports that Gov. Jerry Brown signed AB 2765 on Wednesday, a bill that extends the filing deadline from Nov. 4, 2017 to Nov. 4, 2022.  Under Prop. 47, which was approved by voters in 2014, crimes such as shoplifting, forgery, writing bad checks, receiving stolen property, petty theft and possession of several illegal drugs were reduced from felonies to misdemeanors.  San Bernardino County District Attorney Mike Ramos, who has voiced opposition to Prop. 47 and been critical of Brown's policies, gave his support to the bill, noting its usefulness for felons who have turned their lives around.  Statewide, courts have received 72,624 petitions.  Brown also signed another bill this week, SB 813, which removes the 10-year statute of limitations on prosecutions of rape, child molestation and other sex crimes.

Certiorari Grants from the Long Conference

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The U.S. Supreme Court Justices met Monday for their annual pre-term conference to consider petitions built up over the summer asking them to take cases from lower courts for full review.  As usual, they released an orders list today, the Thursday after the Long Conference, announcing the cases they have taken up, so briefing can begin immediately.  Expect a much, much longer list Monday of cases they turned down.

Pretty slim pickings for criminal law.  Nelson v. Colorado, No. 15-1256, is a quirky case about refunding restitution and fees when a conviction is reversed on appeal.  Lynch v. Dimaya, No. 15-1498, is a crime-related immigration case diving once more into the definition of "crime of violence."

From the Cases You Have to Look Up Just for the Name File comes the civil case of Lewis v. Clarke, No. 15-1500.  No, Sacagawea is not the Real Party In Interest, but the Mohegan Tribal Gaming Authority was a party early in the proceedings.

News Scan

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CA Murderer Avoids Death Penalty with Plea:  A California man who participated in the slaying of a teenage couple over eight years ago was sentenced Tuesday to 50 years to life, skirting a possible death sentence.  The AP reports that 28-year-old David Brian Smith's sentencing comes two weeks after he pleaded guilty to murder, and he is eligible for parole.  In January 2008, Smith and two other men, Cameron Thomason and Collin McLaughlin, ordered Christopher Thompson, 18, and Bodhisattva Sherzer-Potter, 16, out of their vehicle, which the couple had been sleeping in following a party at an abandoned Air Force bunker in the Mojave Desert.  The three men, who had targeted the couple for robbery, took the teens to the bunker, forced them to kneel and shot them in the backs of the heads with a shotgun and rifle when it was discovered they had no money.  Thomason, who served as the lookout during the murders, received a 15-year sentence after pleading guilty to voluntary manslaughter and attempted robbery in 2011.  McGlaughlin pleaded guilty to murder, kidnapping and robbery in 2013 and is serving a life sentence without the possibility of parole.

TN Man Will Face a Death Sentence: 
A Tennessee man accused of fatally shooting a woman and her young son last year will face the death penalty if convicted.  The Chattanooga Times Free Press reports that a notice to pursue a death sentence against accused killer Ross Anderson was filed Wednesday morning by Steve Crump, attorney general in the 10th Judicial District.  Anderson, a former firefighter, is charged with killing Rachel Johnson, 30, and her son Colton, 5, in their home last December.

Trump Is Right About 'Stop and Frisk'

Former NY Mayor Rudolph Giuliani has this op-ed with the above title in the WSJ.

One of the strategies that helped bring about an 85% reduction in crime in New York City between 1994 and 2013 was the careful and appropriate use of "stop and frisk." This practice dramatically reduced the number of guns, knives and other dangerous weapons, as well as illicit drugs, in the city.

But according to candidate Hillary Clinton and moderator Lester Holt during Monday night's presidential debate, stop and frisk is "unconstitutional." They are wrong. In Mrs. Clinton's case, it's the usual misrepresenting she does when she does not know what she is talking about. As for Mr. Holt, if a moderator is going to interfere, he should do some homework and not pretend to know the law when he does not. Mr. Holt and NBC cannot overrule the U.S. Supreme Court.
See my previous post on this subject for the citation and an excerpt of the case.  Continuing with Mr. Giuliani's piece:

Racial Preference Explicitly Enters Criminal Law

It's bad enough that racial preference has entered numerous areas of civil law, including employment quotas and college admissions.  But once the premise of racial preference took hold in those areas, it was likely  --  some might say inevitable  -- that it would seep into criminal law.  Indeed, some might say it was intended all along.

In Massachusetts, it has.  The Supreme Judicial Court in that state has held that circumstances that would warrant a Terry stop of a white person do not necessarily warrant the same outcome for a black defendant.  The latter, so says the Court, would have reason to run from the cops that a white defendant lacks.  Therefore, what would count as a valid component of reasonable suspicion (see Illinois v. Wardlow) to detain a white man would fall short in the case of the black one, even if all the non-race based circumstances are identical.

The story is here on CNN.

I could write a long entry about how poisonous this decision is, and I may yet.  For now, I will only say that I see no principled reason black defendants in prosecutions for crack distribution or violent crime should not argue  --  and, in Massachusetts, should not win  -- shorter sentences than similarly situated white defendants solely because drug and mugging laws are "disproportionately" enforced against blacks.

Affirmative action for college applicants has turned into affirmative action for muggers. And race mongering has taken a giant leap forward. This is where we are.  

News Scan

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CA Man Faces Possible Death Sentence:  A California man who has already served decades in prison for murder is facing a possible death sentence for another murder he committed 37 years ago.  Debbie L. Sklar of My News LA reports that Darrel Mark Gurule, 57, was found guilty last Wednesday for the rape and murder of Barbara Ballman, 23, who was shot in the abdomen and found naked inside her car in September 1979.  Gurule wasn't charged with Ballman's death until 2010 when his DNA was connected to evidence found on her body.  He has been serving a life sentence since 1987 for kidnapping and murdering a man in what detectives believe was a drug deal gone wrong.  Prosecutors also say he is responsible for the kidnapping and sexual assault of a woman in 1977, the assault of two brothers in 1979 and the robbery of a man in 1982.  Jurors began on Monday hearing evidence that will factor in to whether they will sentence Gurule to life in prison without parole or the death penalty.

AL Death Row Inmate Files Appeal:  An Alabama inmate just a few months away from his scheduled execution filed an appeal over the weekend asking an appellate court to review his claim that the state's lethal injection procedure is inhumane.  Kim Chandler of the AP reports that Thomas Arthur, 74, who was scheduled to be executed on Nov. 3 for the 1982 murder-for-hire of a businessman, filed the appeal with the 11th U.S. Circuit Court of Appeals arguing that his legal challenge was prematurely dismissed in July by a federal judge who misapplied a requirement for inmates to name an alternate execution method.  Arthur is arguing against the use of the sedative midazolam hydrochloride in his execution, citing the drug's unreliability and his health issues.  It as been over two years since Alabama regularly carried out executions.  The last person put to death in the state was Christopher Eugene Brooks in January for raping and fatally beating a woman in 1993.

CA Parolee Arrested for Murder:
  A California parolee was arrested and booked on suspicion of murder early Sunday morning for killing a man over the weekend.  Lyndsay Winkley of the San Diego Union-Tribune reports that Richard Gunner, 23, is accused of killing Brandon Deguzman, 21, in front of the victim's El Cajon home on Saturday morning.  Deguzman was discovered with at least one fatal gunshot wound on the sidewalk.  Gunner was arrested the next day, initially on a parole violation and then later for murder, once police obtained sufficient evidence.  Gunner's father says his son has spent time in prison for carjacking and has a serious drug problem.
As Bill noted earlier, today's FBI statistics report, Crime in the United States -- 2015, reports an 11% increase in the number of murders.  The murder rate (murders per 100,000 population), rose a slightly lower but still horrific 10%.  See Table 1A.

How unusual is this?  I dove into the historical data to find out.  The Bureau of Justice Statistics online data gives us murder rates back to 1960.  The rates range from 4.4 to 10.2 murders per 100k and are expressed to only one decimal place, so there is some rounding error, but they are good enough for a quick take.

Putting the rates in a spreadsheet and calculating the percent change for each year over the previous year, we see that only twice in over a half century has the rate jumped double digits in one year and once just a tad below that threshold.  Those three years were 1966-1968, when crime was rising at a horrific rate.

We have never had a double-digit drop, but several years come close.

The standard deviation for the changes is 5.9%.  This year's change is not quite two standard deviations from the mean, but it's close.  (The mean is near zero.) 

In plain English, this is a very unusual one-year jump, although not unprecedented.

Answer Found for Rising Violent Crime

Earlier today, I posted the news that violent crime, and murder in particular, had risen by double digit percentages in 2015.  (Actually, this has been known for months, and Kent and I have often said as much, but the official UCR statistics came out today).

It did not take long for the founder of Black Lives Matter to come up with the solution: Get rid of the police.  And no, I am not making this up.  The article begins thusly:

Since policing is a problem, the police should be removed from communities altogether, according to Black Lives Matter founder Alicia Garza.

Garza argued that the United States gives too much respect to police officers, explaining that when police do wrong, a few bad cops are blamed, rather than a "corroded and corrupt system."

"Quite frankly, many of our [Black Lives Matter] members are continuing to investigate what it would mean to have police-free communities. I think what we've continued to see over time is that no moral appeal is actually stopping the deaths of black people, whether they be armed or unarmed." Garza told Complex.

I believe BLM is the most audaciously lying social movement I have seen in my forty-some years as a lawyer and law professor.  The murder rate got cut by more than half in the two decades (1992-2012) in which the number of police in this country rose substantially.  Since blacks are disproportionately murder victims, they were disproportionately beneficiaries of the decreased murder rate.

Coin-Flip, Anyone?

Some mostly off-topic political notes.

News Scan

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CA Double Murderer Gets Death Penalty:  A California man convicted of murder in December was sentenced to death on Friday.  The AP reports that Orange County Superior Judge John Conley affirmed the jury's recommendation that Daniel Patrick Wozniak, 32, be put to death for killing two people six years ago in a scheme to steal money to pay for his wedding and honeymoon.  In 2010, Wozniak shot his neighbor, Army veteran Samuel Herr, so he could steal $50,000 he had saved from service in Afghanistan.  Wozniak then lured Herr's friend, Julie Kibuishi, to Herr's home and killed her, trying to make it appear that Herr had raped and killed her.  He also dismembered Herr's body and dumped it in a park.  In court last week, Herr's father described Wozniak as the "poster boy for the need for an effective death penalty in California."

Prop 47 Causing DNA Database to Dwindle: 
California's criminal DNA database is starting to dwindle, and officials attribute the drop to Proposition 47.  Joe Khalil of Fox40 reports that Prop. 47, which was approved by voters in 2014, reclassified eight specific drug and property crimes from felonies to misdemeanors, and individuals who commit these crimes are no longer required to provide a DNA sample to the state.  In the first year after Prop. 47's implementation, felony narcotics arrests plummeted to 11,596, down from more than 36,376, and arrests involving dangerous drugs fell from 85,931 to 22,712, according to FBI data.  In that first year, an estimated 250,000 would-be DNA samples were never collected, says Assemblyman Jim Cooper.  Officials fear that this will hamper cold case investigations in California.  Just this month, the DNA of William Harbour entered into the state's database in 1997 after he was arrested for felony drug crimes, connected him to the murders of two young girls some 43 years earlier.  If arrested today for the same drug crimes, Harbour's DNA would not be collected.

Death Penalty Phase of OH Murder Trial Begins:  The sentencing phase for the double murder trial of an Ohio man began Monday morning after the jury reached a verdict over the weekend.  Jordan Bowen of WDTN reports that the jury will now decide if Harvey Lee Jones, 37, should get the death penalty for the murder of his ex-girlfriend, Carly Hughley, 32, and her friend, Demetrius Beckwith, 29, over three years ago.  Jones shot the two victims to death in January 2013 in the presence of he and Hughley's then-10-year-old son.  Jones was found guilty on Saturday of a total of eight counts, including four counts of aggravated murder, two counts of aggravated burglary and two counts of aggravated robbery.

Complacency Mongers, Start Your Engines!

Today, the FBI came out with a shocking crime report.  A total of 1,532 more people were murdered in the United States in 2015 than the year before.  This represents an 11% increase in the number of murders.  The murder rate was higher in 2015 than at any time since 2009.  We have lost six (or now, more likely seven) years of progress against our most serious crime.

This dreadful news should set off alarm bells, but it won't.  It will set off the complacency brigade.  We will be told, for example, that it's just a "statistical variation."  

Right!  Two percent or three percent or possibly even five percent might be a "statistical variation."  Eleven percent is not.  It shows a change in behavior with a cause. Academics and policy makers should be concerned about this, rather than concerned about finding a way to dismiss it.  But you know that's not going to happen.
In mid-August, Bill and I both noted a poll by the Institute for Government Studies at Berkeley on the competing death penalty propositions.  That poll found the repeal proposition losing by 45-55 and the reform proposition winning by a landslide 76-24.  See also the IGS press release.

Last week, I noted a SurveyUSA poll showing the repeal proposition "trails by 16 points today and is headed for defeat."  Also noted the same day was a USC/LA Times/SurveyMonkey poll showing Prop. 62 down by 11%.  Neither of these polls asked about the reform measure, Prop. 66.

Now we have a poll done by Field and IGS, the same organization as the first poll above, that has a dramatically different result.  This one shows repeal at 48% yes, 37% no, and 15% undecided, while the reform measure is at 35% yes, 23% no, and 42% undecided.

As Seinfeld would say, what's up with that?  Has there been a dramatic shift in public opinion since the first IGS poll?  Not likely, given the essentially consistent results on 62 in the other two recent polls.

When I see dramatic differences like this in polls, the first thing I suspect is wording of the questions.

Stop and Frisk

The controversy over the practice of "stop and frisk" has entered the presidential campaign.  Let's begin with a trivia question.  Who wrote the Supreme Court decision upholding "stop and frisk" upon reasonable suspicion?

(a)  William Rehnquist
(b)  Antonin Scalia
(c)  Roger Taney
(d)  Earl Warren
Akhil Reed Amar of Yale Law is a rarity -- a prominent legal academic who has his head screwed on straight when it comes to the Fourth Amendment exclusionary rule.  He has this post at SCOTUSblog titled The Court after Scalia: The despicable and dispensable exclusionary rule.  No doubt about where he stands.

I agree with what Professor Amar says about the exclusionary rule, but not so much what he says about the Justices.  He begins by noting the difference between cases where the Court was focused on the substantive Fourth Amendment question and cases where it focused on the exclusionary remedy:

In countless cases over the last forty years, the Court has held that the Fourth Amendment was violated by the facts at hand, and has thus ordered or upheld evidentiary exclusion....   But whenever the modern Court has squarely focused on the exclusionary rule itself - giving express thought to whether the rule's contours should be widened or narrowed - the Justices have almost always ruled against the rule, and have done so in case after case dripping with implied or express contempt for it.
This contempt is well founded:

The exclusionary rule has no sound footing in any originalist legal source material. None. Nothing in the text as originally understood supports it; no framer ever endorsed it; no judge in America for the first century after independence ever followed the exclusionary rule or any genuine prototype of it. On one of the very few occasions when a lawyer tried to argue for exclusion before 1876, the lawyer was laughed out of court by America's preeminent jurists, led by Joseph Story.
A bit of rhetorical exaggeration there.  Laughing wasn't Justice Story's style.  But he did make very clear that the exclusionary argument had no basis in the law at that time.  My brief in Utah v. Strieff has more on this.

Mapp v. Ohio, the case that imposed the exclusionary rule on the states, was wrongly decided as an original matter.  A long string of decisions has chipped away at it, limiting the damage it does to some extent, but the case has not been overruled.  Why not, and what of the future?

Miranda Warnings for Terror Suspects?

Since the capture of Ahmed Khan Rahami for the weekend bombing in NYC that injured 29 people, it has become clear that Rahami is a Jihadist.  A couple of years ago, his father said point-blank that he was a terrorist; he has traveled abroad to become steeped in radicalism, and his social media writings suggest the typical Jihadist hatred for the United States.

For fifty years, we have been required to give Miranda warnings to suspected criminals undergoing custodial questioning.  The question is whether that requirement should be extended beyond the standard criminal to a man more appropriately looked upon as an enemy combatant.

I addressed this issue once before, discussing the underpants bomber captured at the Detroit airport.  Some readers have asked me to link that discussion, and I do so here.

Lessons from Israel and Last Weekend

WSJ columnist Bret Stephens has this article discussing the lessons learned from his years in Israel and from this past weekend here at home.

What's the lesson here for Americans? This past weekend's terrorist attacks hold at least two. One is that there is a benefit for a society that allows competent and responsible adults to carry guns, like the off-duty police officer who shot the knife-wielding jihadist in St. Cloud, Minn. Another is that there is an equal benefit in the surveillance methods that allowed police in New York and New Jersey to swiftly identify and arrest Mr. Rahimi before his bombing spree took any lives.

These are lessons the political left in this country doesn't want to hear, lest they unsettle established convictions that weapons can only cause violence, not stop it, and that security is the antithesis of, not a precondition to, civil liberty.

The Value of Victim Impact Statements

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My friend Prof. Erin Sheley of the University of Calgary Law School has a forthcoming paper (in the Brooklyn Law Review) discussing a new lens on the value of victim impact statements.  VIS have long been debated in the law; defendants understandably want their victims muzzled, supposedly in the name of due process but actually in the name of hiding the destruction their behavior wreaks.  

The abstract of Erin's paper, noted at SSRN, states:

Victim impact statements (VIS) are long-disfavored among legal commentators for allegedly injecting unnecessary, negative emotion into sentencing at the expense of the defendant, with ambiguous informational benefits to the sentencing body. Most traditional arguments both for and against VIS turn on purely retributive or utilitarian grounds. This essay takes up the Stanford sexual assault victim's statement to propose an expressive framework for understanding the function of VIS, which resolves much of the theoretical confusion surrounding the traditional justifications. I show how the expressive goals of criminal punishment have long been distorted by the mediation of traditional news reporting. I then analyze the legal relevance of the particular criminological values expressed in the Stanford statement to show how unmediated victim narratives may counterbalance media distortion, particularly in the age of social media transmission. I conclude that the criminal justice system better serves its expressive function by formally incorporating VIS into sentencing.

Two Years of a Staggering Surge in Murder

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Prof. Doug Berman of SL&P is often maddeningly honest, much to the consternation of his numerous liberal and libertarian followers.  His article today provides a good example.  In the face of a Brennan Center "study" that purports to find not a whole lot to worry about on the national crime front, Doug notes this sentence buried below a bunch of bullet points in the Center's work:

Nationally, the murder rate is projected to increase 31.5 percent from 2014 to 2016 -- with half of additional murders attributable to Baltimore, Chicago, and Houston.

When the murder rate increases by nearly a third in two years, that, ladies and gentlemen, is a national crisis.  (And yes, it's true that if you subtract enough of the cities with the biggest increases, then, nationally, you'll get a smaller (though still startling) increase.  Maybe the Brennan Center thinks its readership hasn't learned fifth grade math).

Another Young Man of Color Shot by the Police

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If we start making lists of "young men of color shot by the police," this episode will be included.

Which shows you why making such lists is absurd  --  it feeds on, and spreads, ignorance, in the hope of goosing the false narrative that the cops are a fascist army.

What the episode is actually about is the capture within the last couple of hours of the fellow, Ahmad Khan Rahami, who is suspected in the New York City bombing and attempted bombing last weekend.  Mr. Rahami had a shootout with the police, hitting one in his bulletproof vest (is that "military" equipment?) and the other in the hand.

Fortunately, Rahami was taken alive and can be questioned. CNN starts its report:

Ahmad Khan Rahami, the man suspected in bombings in New York and New Jersey, is now in custody after a shootout with police, sources said.

The shootout happened Monday in Linden, New Jersey. Rahami was shot and was taken to an ambulance in a stretcher with his right shoulder bloodied and bandaged.

Two officers were hit in the shootout with Rahami, the mayor of the nearby city of Elizabeth said. One officer's vest was struck, and the other was shot in the hand.

    A Preview of Coming "Attractions"

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    The Wall Street Journal notes that, with the activities this last weekend, together with a bomb blast this morning in northern New Jersey, Jihad has given us a preview of what it has in store.

    As if, at this point, one were needed.

    A bomb exploded early Monday near a train station in Elizabeth, New Jersey as police attempted to disarm it with a robot. No injuries were reported. This follows a weekend of violence including a knife assault at a shopping mall in Minnesota and other bombings in New Jersey and New York City. "It's a miracle no one was killed, but the timing and nature of the attacks rightly have investigators looking for evidence of Islamist or other terrorist links," notes the editorial board.

    One way Donald Trump can be elected is if there is a collapse in public confidence in the seriousness and competence of the present administration's counter-terrorism strategy. When even Secretary Clinton understands that we need an intelligence surge, one must wonder whether that collapse is at hand.

    The Criminal Justice Summit

    I've been remiss in not having posted tapes of the panels from last week's Washington Post Criminal Justice Summit.

    The panel on which I appeared, concerning the role of prosecutors (and by extension, prosecutions) is here.

    The panel specifically about sentencing reform, featuring NAAUSA President Steve Cook and House Judiciary Committee Chairman Bob Goodlatte, is here.

    The half hour interview with Attorney General Loretta Lynch is here.

    For those with the time, the whole ball of wax is here.  Readers might be interested in seeing how thoroughly the discussion inside the Beltway is dominated by those who tend to see criminals as victims.  If Trump is elected, the shock waves in DC will be unlike anything I have experienced in my forty-plus years in this town.


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    Speaking of "deplorables," the Communist Party USA website has this report from Joelle Fishman and the CPUSA Political Action Commission urging people to vote for Hillary Clinton and not throw away their votes on Stein or Johnson.

    Some of those votes may go to Gary Johnson and the Libertarians. In a very close election, the votes for Johnson and Jill Stein could throw the election to Donald Trump. The argument for a landslide unity vote could convince some of those to do the right thing.
    So there you have it.  It's not an invention of "right-wing media."  The Communist Party says voting for Hillary Clinton is doing the right thing.

    Any repudiation of this endorsement from the Clinton camp?  I could not find one through a Google search or on the campaign website.  If anybody can find one, please post a link in the comments.

    Fraternal Order of Police Endorses Trump

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    The press release is here.  "He understands and supports our priorities, and our members believe he will make America safe again."

    Another Poll Note

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    Jazmine Ulloa has this post on the LA Times political blog noting a "a new USC Dornsife/Los Angeles Times poll conducted by SurveyMonkey."  This one shows Prop. 62 losing by 11%, 40-51. 

    I have my doubts about SurveyMonkey's method, and I wouldn't put too much weight on it.  Self-selected samples are dicey, even when "corrected" for demographic factors.  Nate Silver and crew at 538 rate SurveyUSA an "A" and SurveyMonkey a "C-."  Even so, when multiple sources give you more-or-less consistent results, it does boost confidence in those results. 

    There is an interesting contrast in the two polls on the age crosstab.

    SurveyUSA: Prop. 62 Headed for Defeat.

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    SurveyUSA has this poll, conducted for four California TV stations. Among the findings:

    "Proposition 62, which would end the death penalty in CA and replace it with life in prison, trails by 16 points today and is headed for defeat." 

    The overall result is 36% yes, 52% no, 12% undecided.  They did not poll on Prop. 66, the reform initiative.  The poll has some interesting crosstabs, and some quirky ones.

    Confirmation Bias

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    It's only human.  If we hear a piece of information that fits with the way we think things are, we are more likely to accept it without scrutiny.  If we hear something that is contrary to our world-view, we are more likely to subject it to scrutiny.

    James Taranto at the WSJ and Jonah Bennett at the Daily Caller report on how easy it was to "troll" journalists with a fake story merely by providing a supposed connection between Donald Trump and white supremacists.  Bennett quotes one of the hoaxers:

    "Basically, I interspersed various nuggets of truth and exaggerated a lot of things, and sometimes outright lied -- in the interest of making a journalist believe that online Trump supporters are largely a group of meme-jihadis who use a cartoon frog to push Nazi propaganda. Because this was funny to me," Swift told TheDCNF.

    "The idea that every major Trump supporter online is secretly a neo-Nazi, for one. I mean, it's just not true. But it's the kind of thing that a journalist will readily believe."

    This is why it is so important to have a diversity of viewpoints in both journalism and academia and why it is so dangerous and harmful that both of these professions have a badly skewed distribution.   Claims need to scrutinized whichever side of the aisle they serve, and we would have more thorough and complete scrutiny if we had a better balance of viewpoints.

    No on 57 Press Conference

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    This morning I attended a press conference by the opposition to California Proposition 57, Gov. Brown's Jailbreak Initiative.  The campaign website is here.

    Radio Discussion of Props. 62 and 66

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    Last night I was on radio station KMUD in Humboldt County, discussing the California death penalty repeal and reform initiatives, Propositions 62 and 66.  Dionne Wilson presented the other side of the argument.  The hour-long podcast is available here.

    Mass Sentencing Reduction Reportedly Still Dead

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    The New York Times carries this story:

    A major criminal-justice overhaul bill seemed destined to be the bipartisan success story of the year, consensus legislation that showed lawmakers could still rise above politics.

    Then the election, Donald J. Trump's demand for "law and order" and a series of other political calculations got in the way.

    Senate Republicans divided on the wisdom of reducing federal mandatory minimum sentences. Other Republicans, unhappy that President Obama was reducing hundreds of federal prison sentences on his own, did not want to give him a legacy victory. A surge in crime in some urban areas gave opponents of the legislation a new argument.

    Now, the Senate authors of the legislation say it is effectively dead.

    "I do believe it is over," said Senator Richard J. Durbin of Illinois, the No .2 Democrat in the Senate, who put considerable effort into difficult negotiations with Republicans to strike a compromise. "We missed an opportunity."

    I agree with Senator Durbin that the Senate missed an opportunity  --  an opportunity to multiply the Wendell Callahan scandal and endanger the country.

    Chuck Grassley, Long Distance Runner

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    I disagree on mass sentencing reduction with Senate Judiciary Committee Chairman Chuck Grassley.  In other areas, however  --  most notably, at present, insuring that the electorate has a say in replacing Justice Scalia  --  I admire his work.  My admiration took an uptick when I read this article in Roll Call:

    Sen. Charles E. Grassley, R-Iowa, is turning 83 on Saturday and he celebrated in his favorite way: by running six miles.

    The senator traditionally runs from his townhouse in Arlington, Va., to the Capitol on his birthday, The Des Moines Register reported in 2014. On Thursday morning, he posted a photo on Instagram of his running watch showing that he ran 6.23 miles in an hour and 31 minutes. That's a little bit under 15 minutes a mile. At almost 83 years old.

    He arrived at the Capitol at 4:15 a.m.

    The Age of Consent Keeps Getting Lower

    As I noted in my last entry, the Washington Post has superb crime reporting, and this story is no exception.  Its title is, "Ex-mayor charged in 4 year-old's rape said girl was a willing participant, records say."

    A former Ohio mayor indicted on rape charges reportedly confessed that he had sex with a child -- a young girl, who, the man claimed, was a willing participant.

    Court records filed Monday describe conversations in which Richard Keenan -- who briefly served as the mayor of Hubbard -- talked to several people, including his wife and a pastor, about alleged assaults that occurred over the course of two years, beginning in 2013, when the girl was 4.

    The 65-year-old Keenan, who once described himself as a man of faith, was indicted last month on eight counts of gross sexual imposition, eight counts of rape and four counts of attempted rape.

    Remember this when someone claiming to be "a man of faith" starts holding forth on, say, the immorality of the death penalty.  Faith is (in my personal opinion) a constructive and sometimes miraculous force, but it does not, in this country, have any additional weight in arguments about secular law.

    We Abolished Parole for a Reason

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    I was happy to have the opportunity a couple of days ago to speak at the Washington Post's Criminal Justice Summit.  The Post's editorial policies are worse than dubious, but its crime reporting is among the best in the country, led by the brilliant Tom Jackman, the moderator of my panel.

    Today the Post carries a story about child cruelty and murder so horrible I feel as if I must warn readers that you need a strong stomach to get to the end.  For now, I will just say two things  First, the story shows why never permitting a jury to consider the death penalty is not merely foolish but morally grotesque.  Second, it shows why early release  --  which used to go by the name parole, before being abolished (in federal law) in the Eighties  -- should seldom if ever be given.

    It's not that there are no instances in which it is warranted.  It's that the system cannot reliably distinguish the warranted from the unwarranted, and the costs of this inevitable error should be borne by felons, not by toddlers.
    The Wall Street Journal explains that Gov. Terry McAuliffe of Virginia has thumbed his nose at an order of the highest court in the state in the name of giving an en masse benefit to felons:

    President Obama has charted new levels of executive defiance, but even he hasn't refused to obey a Supreme Court ruling. Virginia Governor Terry McAuliffe has sought to follow Mr. Obama's executive hubris, and now he's gone further and is acting in contempt of the court that has rebuked him.

    In July the Virginia Supreme Court struck down his executive order restoring voting rights to 206,000 felons. Under Virginia law the Governor can grant clemency on an individual basis. But the justices wrote that "Governor McAuliffe's assertion of 'absolute' power to issue his executive order" runs "afoul of the separation-of-powers principle" in the Virginia constitution. The individual clemency power, the court admonished, "does not mean he can effectively rewrite the general rule of law."

    Mr. McAuliffe replied that he "cannot accept" the ruling...He has since acted on his defiance by restoring rights to some 13,000 felons who had already registered to vote when the state Supreme Court's decision invalidated his executive order.

    If anyone on the Left has denounced McAuliffe for his open defiance of the rule of law, I haven't heard about it. But being pro-criminal in Leftist culture means never having to say you're sorry, court order or no court order.

    Susan Pinker has this article in the WSJ with the above title, reviewing the research.

    In the previous post, I noted my rare agreement with Jerry Brown that a marijuana industry with legitimacy and mass marketing would produce an increase in consumption that will diminish us as a nation.  This is why.  We are already suffering from a decline in the ambition and work ethic that made us a great nation in the first place.  The last thing we need is a chemically induced steepening of our decline.

    News Scan

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    Death Penalty Not an Option in CA Girls' 1973 Killings:  Two men arrested and charged in the murders of two young girls in Yuba County, Calif., over 40 years ago can't face the death penalty because it wasn't an option at the time of the slayings.  Don Thompson of the AP reports that 65-year-old cousins William Lloyd Harbour and Larry Don Patterson were arrested for the November 1973 sexual assault and killings of Valerie Janice Lane, 12, and Doris Karen Derryberry, 13, after a forensics lab matched DNA from the two suspects to semen found on Derryberry.  Both girls died of shotgun wounds fired at close range.  Prosecutors cannot pursue the death penalty against Harbour and Patterson because their cases must be tried under the law as it existed in the state in 1973, when the death penalty was not available.  If convicted, the most time the cousins could face is a life sentence, and the law in 1973 provided the consideration of parole after serving seven years.  Harbour and Patterson each face six counts of murder, three for each victim, which includes one count of premeditated murder, one count of murder committed during a rape or attempted rape and one count of murder committed while molesting a child.

    House Approves Bill to Ban Gitmo Transfers:  The House passed a bill on Thursday banning the transfer of detainees from Guantanamo Bay for the remainder of Obama's term.  Jacqueline Klimas of the Washington Examiner reports that the bill, introduced by Jackie Walorski, R-Ind., passed the House by a 244-174, and bars the transfer of any Guantanamo Bay prisoner until the next administration takes office or until the passage of the fiscal 2017 National Defense Authorization Act, whichever comes first.  The bill comes after much heated debate following Obama's announcement of a plan to close the prison before the end of his presidency.  Republicans argue that the plan puts U.S. national security in jeopardy if detainees go on to engage in terrorism after their transfer, which happened in two confirmed cases this year.  Sixty-one detainees remain at Guantanamo Bay, 20 of whom have been cleared for release.

    Unaccompanied Minors Swelling Ranks of U.S. Gangs:  The influx of unaccompanied minors across the southern border could be swelling the ranks of America's most dangerous gangs, most notably MS-13, say experts.  Joseph J. Kolb of Fox News reports that in the past six years, approximately 227,149 unaccompanied alien children, mostly from Central America, have been apprehended at the border.  Under federal law, the minors must be detained until they are released to a sponsor, usually a relative, while their cases are adjudicated.  They are often sent to communities where they are ripe for recruitment by MS-13 and other Latino gangs, given their lack of supervision and English language deficiencies, or they were already initiated into gangs prior to arriving to the U.S.  Maryland, Texas and Virginia have seen notable spikes in MS-13 crime this year.  Texas specifically blames the increase on the surge of unaccompanied minors placed in the state.

    Q: When Do You Know You Can Stop Reading?

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    A:  When the article's abstract starts with this:

    Criminal justice debt has aggressively metastasized throughout the criminal system.  A bewildering array of fees, fines, court costs, non-payment penalties, and high interest rates have turned criminal process into a booming revenue center for state courts and corrections.  As criminal justice administrative costs have skyrocketed, the burden to fund the system has fallen largely on the system's users, primarily poor or indigent, who often cannot pay their burden.

    Unpaid criminal justice debt often leads to actual incarceration or substantial punitive fines, which turns rapidly into "punishment." Such punishment at the hands of a court, bureaucracy, or private entity compromises the Sixth Amendment right to have all punishment imposed by a jury.

    An author who actually thinks there is a "Sixth Amendment right to have all punishment imposed by a jury" is so completely ignorant that, if you continue reading, you're just going to kill your brain cells.

    (You also gotta love "the system's users," i.e., convicted criminals who skate with a fine but won't pay even that).

    Credit to this entry on SL&P.

    The Trouble With Pot Legalization

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    Q.  Who said this about marijuana legalization?

    The problem with anything, a certain amount is OK. But there is a tendency to go to extremes. And all of a sudden, if there's advertising and legitimacy, how many people can get stoned and still have a great state or a great nation?

    Another Bogus Argument Against Prop. 66

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    Prop66.jpgBob Egelko has this article in the SF Chron on the California death penalty initiatives.  The story includes this gem regarding the reform initiative, Proposition 66:

    "It's modeled after the laws in Texas, where we know innocent people have been executed," said Elisabeth Semel, director of the Death Penalty Clinic at UC Berkeley Law School. Death penalty supporters heatedly dispute that claim, but Semel cited the Texas case of Cameron Todd Willingham, executed in 2004 for killing his three children in a fire that a series of experts, including one hired by the state, have since concluded was most likely accidental.
    One might read that paragraph to say that supporters dispute the claim that Texas has executed innocent people but concede the claim that the initiative "is modeled after the laws of Texas."  Not so.

    Unlike Ms. Semel, I actually know the answer.  I wrote the draft of the procedural reform provisions of the initiative, and I participated in the meetings where the draft was revised.  Not once did I refer to or even think of the laws of Texas in drafting the reform.  Not once did anyone in the committee meetings ever refer to Texas as a model for the initiative.

    The system that would be established by the final product bears little resemblance to Texas CCP Article 11.071.  It resembles much more the federal system of 28 U.S.C. ยง2255.  Ms. Semel just made it up.

    We have discussed Willingham before on this blog, so I won't rehash it here.

    News Scan

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    CA Inmate's Death Sentence Overturned:  The California Supreme Court overturned the death sentence of a man convicted of gunning down three people in a home invasion robbery over two decades ago.  Tommy Wright of the Monterey Herald reports that Daniel Sanchez Covarrubias' death sentence was overturned on an automatic appeal filed Thursday due to a error made by the court during his 1998 trial, in which a prospective juror was excluded on the basis of the juror's questionnaire responses.  An automatic reversal of Covarrubias' death sentence was required because, under the U.S. Supreme Court precedent set in Lockhard v. McCree, prospective jurors with opposition to the death penalty are not subject to automatic excusal if "they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law."  The juror in this case did not say he would always vote against capital punishment.  In November 1994, Covarrubias, two of his cousins and his nephew stormed a Salinas home to rob it, gunning down a woman, who was holding her 11-month-old daughter, her husband and her brother.  The baby sustained multiple gunshot wounds but survived.  Covarrubias' case will return to the Monterey County court for a new penalty.

    Video Shows Car Running Down AZ Officers in Targeted Attack:
      Three Phoenix police officers were run down by a vehicle and injured early Tuesday in a convenience store parking lot in what authorities are describing as an intentional act that was captured on a security video.  CBS reports that Marc LaQuon Payne, 44, was arrested by one of the three officers he targeted, who had managed to jump out of the way of the oncoming vehicle.  One of the officers, an 18-year veteran, suffered a broken leg while another, who was on his first day of training, suffered a head injury.  The third officer sustained minor injuries during a struggle while arresting Payne.  Payne, who was impaired at the time of the crash, is facing three counts of attempted first-degree murder and two counts of aggravated assault.

    Border Patrol Agents Assaults in the Thousands:
      Thousands of Border Patrol agents have been assaulted in the past decade, the chief of the U.S. Border Patrol told Congress on Tuesday.  Susan Jones of CNS News reports that Mark Morgan, head of the Border Patrol, described his agents as "among the most assaulted law enforcement personnel in the country," revealing to Congress that 7,542 agents have been assaulted since 2006 and 30 have died in the line of duty since 2003.  What's more, Morgan said, is that this happens to Border Patrol agents while constantly putting themselves in harm's way to provide assistance and medical care to those who need it, including people attempting to illegally enter the U.S.  In this fiscal year alone, agents have rescued over 3,700 people along the border.  There are 21,370 total Border Patrol agents.

    News Scan

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    Death Penalty Upheld for OH Killer who Murdered Witness:  A Cincinnati man who murdered his girlfriend, former attorney and a witness to one of his crimes has had his conviction and death sentence for killing the witness upheld by the Ohio Supreme Court.  Lauren Pack of WHIO reports that Calvin McKelton, 39, was convicted in 2010 of the 2008 murders of his girlfriend, Margaret Allen, and a criminal defense attorney who previously represented him.  He was also convicted and sentenced to death for the 2009 murder of Germaine Evans, who McKelton killed to prevent from testifying.  Evans was allegedly an eyewitness to Allen's fatal strangulation by McKelton and assisted in disposing of her body.  In addition to the death sentence, McKelton received 15 years to life for Allen's murder and 25 years for the remaining convictions.  On appeal of the death sentence, McKelton argued that his rights were violated because he was deprived of a fair trial and had ineffective counsel.  Justices of the state high court ruled that McKelton was properly convicted of murdering Evans and the aggravating circumstances in support of the death penalty outweigh the mitigating circumstances beyond a reasonable doubt.

    Illegal Immigration Surges in August, on Pace to Break Records: 
    Illegal immigration along the nation's southern border surged last month, not typical of the late-summer slowdown observed year after year, and is on pace to surpass records set in the years prior.  Stephen Dinan of the Washington Times reports that 10,000 people traveling as families were apprehended in August, while 5,800 unaccompanied minors were caught.  In the first 11 months of Fiscal Year 2016, a total of 68,080 people have been caught traveling in family units -- "almost certain" to break the record set in 2014 -- and 54,052 children traveling without parents have been intercepted.  In all, almost 370,000 illegal immigrants have been caught this fiscal year along the southwest border, surpassing the total for all of 2015 but still below the 2014 surge.  Analysts contest that a combination of ongoing violence in Central American and the Obama administration's lax enforcement on immigration is driving the mass migration.

    NC Officer Shot Over Weekend Dies of Injury: 
    A North Carolina police officer shot in the torso over the weekend died in the hospital Monday.  Mark Price and Bruce Henderson of the Charlotte Observer report that Officer Tim Brackeen, 38, a 12-year veteran of the Shelby Police Department, was shot in the line of duty Saturday by suspected gunman Irving Lucien Fenner Jr., 23.  Brackeen had been searching for a subject who was wanted on an outstanding warrant.  Fenner is currently in custody and facing first-degree murder charges.
    I previously noted the false quote misattributed to me in a controversial study of cost of the death penalty by Creighton University economist Ernest Goss.  I followed up with a post on the completely inadequate "correction" that continued to indirectly cite my study for the exact opposite of what it actually found.

    Criticisms of this badly flawed study continue to flow in.  Joe Duggan has this article for the Omaha World-Herald:

    Anthony Yezer, a professor at George Washington University in Washington, D.C., said such studies fail to account for what's called the "plea-bargain effect." The term refers to the role the death penalty plays in potentially saving trial costs by convincing some accused killers to plead guilty to their crimes rather than risk execution.

    Death penalty opponents frequently argue that the death penalty has no deterrence effect. But Yezer disagrees. And he said Goss made no attempt to factor in how much the fear of execution could save the criminal justice system by potentially preventing a murder.

    "What's the cost of the murders that would have happened if Nebraska hadn't had capital punishment?" asked Yezer, author of a textbook titled "Economics of Crime and Enforcement."

    News Scan

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    Illegal Immigrant Gang Member Charged with Murder:  A twice-deported MS-13 gang member has been charged with the brutal murder of a Maryland teenager.  Fox News Latino reports that El Salvador-native Oscar Delgado-Perez, 28, faces a charge of first-degree murder in the June stabbing of Cristian Villigran-Morales, who was stabbed over 40 times in order for Delgado-Perez to win credibility with his gang.  Delgado-Perez allegedly directed a female to lure Villigran-Morales into a park in a ruse, telling him they would engage in sexual intercourse, and later lured him to the woods where he was killed.  A second gang member is in custody for the murder and police are searching for a third.  Delgado-Perez was deported in October 2014 and February 2015.

    OH Man Faces Death Penalty:  An Ohio man accused of murdering two people three years ago while the young son of one of the victims hid upstairs could face the death penalty if found guilty at his trial.  Mark Gokavi of the Dayton Daily News reports that the three-week trial of Harvey Lee Jones, 37, just began.  He is charged with the January 2013 double murder of Carley Hughley, 32, with whom he had a previous relationship, and Demetrius Beckwith, 29.  Jones, a previously convicted sex offender who served a decade in prison, made Hughley and Beckwith lie on the floor before shooting them multiple times and stealing several items.  Hughley's then 10-year-old son, who is now 14, was present during the murder and plans to testify in court.  Jones has pleaded not guilty to six counts of aggravated murder, two counts of aggravated burglary, two counts of kidnapping, two counts of aggravated robbery and one count of having a weapon under disability.

    Killer Faces 2nd Death Penalty Trial 13 Years Later: 
    A Massachusetts man sentenced to death for a deadly crime spree through three New England states in July 2001 has been granted a new sentencing trial.  Derek Hawkins of the WaPo reports that Gary Lee Sampson, 56, had his sentence overturned in 2011 after a federal judge found that a juror had lied about her background.  He begins his second sentencing trial on Wednesday in the deaths of Philip McCloskey, 69, and Jonathan Rizzo, 19, and prosecutors will again pursue a death sentence.  Sampson, who has a violent criminal record and had spent some 16 years in jail prior to the crime spree, engaged in a five-day rampage in New England after returning from North Carolina, where he was wanted in connection with a string of bank robberies.  After hitching separate rides from McCloskey and Rizzo in Massachusetts, he brutally killed them; McCloskey was tied up and stabbed 24 times, and Rizzo was tied to a tree in the woods and stabbed in the neck and chest.  Sampson later tied up and fatally strangled the caretaker of a New Hampshire city councilor, and unsuccessfully attempted to steal the car of a Vermont man.  He was tried separately in those two cases and found guilty.  Although Massachusetts abolished the death penalty in 1984, prosecutors can pursue a death sentence against Sampson because the case involving the deaths of McCloskey and Rizzo is federal.

    Washington Post Criminal Justice Summit

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    The Washington Post, which has had numerous articles detailing the shocking leniency of DC's criminal justice system, and has covered surging mayhem in nearby Baltimore, will host a Criminal Justice Summit tomorrow starting at 9 a.m. EDT.  It will be live streamed here:[]   

    Participants will include Attorney General Loretta Lynch, Virginia Gov. Terry McAuliffe and Chairman Bob Goodlatte of the House Judiciary Committee.  Also speaking will be Steve Cook, President of NAAUSA, and yours truly.

    Should be a fun show.

    15 Years Ago and Today

    On September 11, 2001, the grim reality became so unmistakably clear that every American understood it.  There is evil in the world, and evil must be fought.  For a brief time, a wave of patriotism swept the country.  We saw Hollywood lefties up on the stage singing old-fashioned patriotic songs.  We had not seen such unity in my lifetime and probably will not see it again.

    Today, it is once again fashionable for prominent figures to declare their hatred for their own country.  A entire movement denigrating the people who risk their lives to protect us from evil has been born from a slanderous lie.  Our academics have turned our colleges into very expensive indoctrination camps where our young people are fed a single-viewpoint diet of opposition to the principles that made this country great.  They are taught a distorted vision of our history that diminishes and denigrates the great accomplishments of our founders and focuses obsessively on the shortcomings.

    It is discouraging that so little progress had been made and that in many areas we are headed in the wrong direction.  Today let us rededicate ourselves to putting our country back on the right track.

    A Denial of Due Process

    Suppose a criminal defendant is on trial at a time when the law is clear that the state must prove X and Y, and if the defendant negates either he is entitled to acquittal.  He submits what he believes is conclusive evidence negating X, so he does not expend the resources to negate Y.  The jury convicts him anyway, and he appeals on the ground that the verdict is not supported by the evidence.

    On appeal, it is decided that the defendant did indeed negate X, but the court changes its interpretation of the law so that Y alone is enough.  Since the defendant did not put on any case against Y, reasonably believing he didn't need to, his conviction is affirmed.

    Wouldn't the defense bar, academia, and the press scream bloody murder?  Wouldn't they denounce that as fundamentally unfair?  Of course they would, and they would be right.

    Yesterday the Florida Supreme Court did pretty much what I just described, but in the other direction.  It is no less unfair.

    About Executing "Children"...

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    Ed Whelan at NRO commemorates Shirley Crook, who died a horrendous death 23 years ago today at the hands of "children."

    Preventable Murder

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    Readers know that I have significant problems with Donald Trump, starting with his basic manners.  He nonetheless rode to the nomination on what I shall call a stern view of immigration, sometimes bordering on xenophobia.  

    That said, I am compelled to give credit where credit is due.  Trump is on the money in excoriating the present Administration's lack of seriousness in its "enforcement" of immigration law.  As usual, it's not the people who go to Georgetown parties and have mahogany paneled offices at DOJ who pay the price, as witness this story in today's Washington Post:  "Immigration officials:  Suspect in Maryland gang murder had been deported twice."

    A 28-year-old gang member charged in the brutal stabbing death of a Maryland teenager had been deported twice to El Salvador in the past two years, according to U.S. immigration officials.

    Oscar Delgado-Perez is expected to make his first appearance in Montgomery County court on Friday afternoon in a killing detectives suspect was over gang bragging rights.

    Detectives say that on June 16, Delgado-Perez and at least two other members of the MS-13 gang stabbed Cristian Villagran-Morales, 18, more than 40 times in a park in Gaithersburg. Delgado-Perez "directed" the attack, detectives wrote in an affidavit filed in court.

    The Left is fond of saying that the problem behind the huge spike in violent crime this year and last is lack of trust in law enforcement.  Like so much else the Left says, this is hogwash.  The problem is lack of fear by the criminally-inclined toward law enforcement  --  a lack that is, under our present leadership, appalling, if justified.

    News Scan

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    Serial Rapist Deported Five Times:  An illegal alien facing six charges including aggravated sexual assault and kidnapping has been deported five times according to investigators in Austin, Texas.  Jennifer Kendall of Fox 7 News reports that Nicodemo Coria-Gonzales, an illegal who had been deported after being charged with previous assualts, has admitted picking up prostitutes and beating them.  He was arrested after one woman told police that he had doused her with gasoline and tried to set her on fire.  Austin police believe that he has sexually assaulted several women in a secluded area outside the city.  

    Indian Court Sentences Acid Murderer to Death:  Judges in Mumbai have given the death sentence to a man who threw sulfuric acid on a 24 year-old woman in 2013.  The German News Service Deutsche Welle reports that the victim, who had rejected the murderer's marriage proposal, took thirty days to die from the attack.  Indian law allows a death sentence for murders which involve severe brutality.  After the sentence was announced the victim's father told reporters "it took three years for us to get justice, but I am happy that it has been finally delivered."  A survivors group in India reports that there are between 100 and 500 acid attacks in their country each year.  

    Charges Dropped Against Man Who Killed Wife's Attacker:  Manslaughter and assault charges against a New York cab driver who killed his wife's would-be rapist last May were dropped at the urging of the assailant's family on Wednesday.  Deborah Hastings of Inside Edition reports that on May 30, 61-year-old Mamadou Diallo received frantic call from his wife saying that she was being attacked in their home.  Diallo made it home in time to catch Earl Nash, 43, attempting to flee and during a struggle, fatally struck Nash in the head with a tire iron.  Minutes earlier, Nash had forced his way into the Diallo home, ripped off Nenegale Diallo's clothes and began to assault her when the victim's sister ran in and stopped the attack.  An autopsy determined that Nash was high on cocaine and suffering from heart disease and bipolar disorder at the time of his death. 

    News Scan

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    Prop 57 Spurs Concerns About Sex Offenders:  California's new ballot initiative, Proposition 57, is raising concerns among law enforcement officials and prosecutors about how it will impact sex offenders.  Tracy Lehr of KEYT reports that proponents of Prop. 57, which call it the Public Safety Rehabilitation Act of 2016, claim it applies only to non-violent offenders, but quite the opposite is true.  Ventura County District Attorney Greg Totten describes the measure as "a wolf in sheep's clothing" that "will make 16,000 dangerous criminal immediately eligible for early release."  One crime that is considered non-violent under Prop. 57 is sexual assault of an unconscious person, which means that people like Andrew Luster, who is serving a 50-year prison sentence for sexually assaulting three unconscious women, will be eligible for release.  It would have also benefited Brock Turner, the Stanford rapist, had he been properly sentenced to prison.  Prop. 57 is a "reckless proposal" that "must be rejected," says Totten.

    OH Considers Nitrogen Has as New Execution Method:  Ohio is considering using nitrogen gas as a new execution method due to ongoing problems in securing lethal injection drugs.  Alan Johnson of the Columbus Dispatch reports that nitrogen gas, which is widely available and inexpensive, causes asphyxiation when it is pumped into an air-tight chamber by depriving the blood of oxygen.  However, since it hasn't been tried in executions before, it will have to be thoroughly vetted and tested in the court system.  Oklahoma has adopted the use of nitrogen gas as an alternative method of execution.  It has been nearly three years since Ohio has carried out an execution, mainly due to lawsuits and difficulty obtaining lethal injection drugs.  There are 28 death row inmates with execution dates scheduled over the next four years, beginning in January.

    News Scan

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    TX Court Grants Execution Stay:  The Texas Court of Criminal Appeals issued a stay of execution Friday for a cop killer, marking the eighth consecutive time the court withdrew, stayed or rescheduled an execution date.  News7NG reports that Robert Jennings was scheduled to be executed on Sept. 14 for the 1988 murder of Houston police officer Elston Howard but the state appeals court, in a 5-4 decision, granted a stay with no explanation.  A week before Jennings' execution was delayed, the court stayed the pending execution of Ronaldo Ruiz, also with little to no explanation.  Texas' next scheduled execution is of Barney Fuller on Oct. 5.  The state's last execution was carried out on April 6.  There has only been one other time in the past 20 years that a gap of more than five months between executions in Texas has happened, which was between September 2007 and June 2008.

    Woman who Killed Newborn has Sentence Commuted:  A Connecticut woman who is serving an 18-year sentence for killing her baby shortly after its birth a decade ago has had her sentence commuted Wednesday by the state Board of Pardons and Paroles.  David Owens of the Hartford Courant reports that Panna Krom, 26, killed her newborn daughter in 2006 when she was 17-years old by putting the baby in a toilet and repeatedly flushing it.  She had hid the pregnancy from her parents and after the child was born, panicked that they would find out.  She alleges she had no knowledge of the "safe haven" laws that allow people to surrender custody of newborns with no questions asked.  Krom was initially charged with murder and risk of injury to a minor but pleaded guilty to manslaughter in a plea deal and received 18 years.  Krom's attorney claims she has been a model prisoner and is a low risk to commit another crime.  She will be released on Sept. 30.

    Escaped Homicide Suspect Recaptured:  A homicide suspect was recaptured Tuesday, four days after he broke the hinge off his handcuffs and escaped from a Las Vegas-area police station.  The AP reports that Alonso Perez, 25, had been on the loose since Friday after breaking free from his handcuffs while alone in a police interview room.  He was at the station being questioned in the Aug. 27 shooting death of Mohammed Robinson, 31, outside a McDonald's restaurant, allegedly following an angry exchange over Robinson's failure to hold a door open for a woman.  He was apprehended Tuesday from a residence, reportedly without incident.  Last week's escape is the second from a Las Vegas-area jail to occur this year.  The last was of Ivan Mayoral-Lizarraga, who escaped in April and  was at large for two weeks before being recaptured.
    While Barack Obama, surrounded with the world's best security detail, opens the prison gates to hundreds of dealers in hard drugs  --  dozens with firearms convictions as well  -- citizens living in less secure circumstances suffer.

    Does his Administration care?

    His US Attorney for the District of Columbia managed to yawn out this statement:

    Unfortunately, no system is perfect, and in those isolated instances in which problems are identified, we work with our law enforcement partners to address them moving forward.

    Excuse my Latin, but that is unadulterated horse manure.  He might as well have said, "What, me worry?"

    The liberal police chief in DC recently resigned, in significant part because she had seen enough mindless leniency. 

    The problem is not over-incarceration, despite the insistence of the pro-criminal crowd currently running DOJ.  The problem, which they would see under their noses if they cared enough to look, is the opposite.
    Sam Hananel reports for AP:

    Supreme Court Chief Justice John Roberts has temporarily blocked a Senate subpoena that seeks information on how the classified advertising website screens ads for possible sex trafficking.

    The order Tuesday came hours after Backpage CEO Carl Ferrer asked the high court to intervene, saying the case threatens the First Amendment rights of online publishers.

    A federal appeals court ruled Friday that the website must respond to the subpoena within 10 days. Roberts said Backpage does not have to comply with the appeals court order until further action from the Supreme Court. He requested a response from the Senate by Friday.
    The order reads in full:

    IT IS ORDERED that the August 5, 2016 order of the United States District Court for the District of Columbia, in case No. 16-mc-621, is hereby stayed pending receipt of a response, due by noon Friday, September 9, 2016, and further order of the undersigned or of the Court
    The individual Justice assigned to the circuit (the Chief, for DC) is authorized to stay a lower court's order, but they typically refer the application to the full Court for anything more than a brief stay.  I expect that "further order" will come early next week, and it will be from the full Court.

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    Chicago Homicides Surpass 500:  Labor Day weekend in Chicago saw 13 people shot to death and 65 others wounded in shootings, including a nine months pregnant woman and a retired preacher, which has solidified this year as the city's deadliest in over two decades.  Deanese Williams-Harris, Rosemary Regina Sobol, Peter Nickeas and Elvia Malagon of the Chicago Tribune report that the Labor Day weekend was the bloodiest of all the holiday weekends this summer, seeing more fatalities than on Memorial Day and Fourth of July weekends.  After this weekend, a total of 512 people have been killed and another 2,930 others have been shot and injured across the city so far this year, rising to levels unseen since the 1990s.   To put Chicago's violence into perspective, New York and Los Angeles, both larger cities than Chicago, have a combined total of 409 homicides this year.

    Ex-Con Shoots and Injured Two Officers in CA Jail Lobby:  Two unarmed correctional officers were critically wounded after being shot by an ex-convict in the lobby of a central California jail on Saturday.  The AP reports that Thong Vang, 37, who was released from prison in 2014 after serving 16 years for raping three girls aged 14 and under, shot Officers Juanita Davila, who has 10 years of experience, and Toamalama Scanlan, an 18-year veteran, in the head and neck areas when the officers approached him after he tried to cut in front of the visitors' line and began pacing near a secure area of the Fresno County jail.  Vang has been booked on suspicion of attempted murder, possessing a handgun as a felon and bringing drugs into jail.  Authorities are evaluating security measures and will decide whether to change procedures in the public area of the jail.

    Black Lies Matter:  "[T]he Black Lives Matter movement is based on a lie, and not just the lie that a pacific Michael Brown was gunned down in cold blood by Ferguson, Mo., police officer Darren Wilson in August 2014," says Heather Mac Donald in this piece in the Washington Examiner.  Mac Donald describes how the media, activists and many politicians promote "demonstrative untruths about police shootings, race and crime" touted in the BLM narrative.  While BLM would like people to believe that racist, homicidal cops are targeting the black community, states Mac Donald, it is actually other blacks that are responsible for the staggering homicide rate.  Through Aug. 30 of this year in Chicago, 17 out of 2,870 people were shot by police, accounting for 0.6% of the total, and most of them were threatening lethal force.  Mac Donald concludes that "the best way to save black lives in lawful, proactive policing -- not a duplicitous war on cops."
    Earlier this summer, the lenient sentence given to Stanford student Brock Turner for a sexual assault on an unconscious young woman sparked national outrage.  Friday, he was released from jail after serving only half of that.  Paul Elias has this story for AP, with extensive background on the case.

    What lessons should we draw from this double outrage?

    First, the excessively lenient sentence demonstrates why we cannot vest too much discretion to judges to grant leniency.  In other words, it demonstrates--conclusively, in my mind--that we will always need "mandatory minimums" in some form for some crimes.

    Second, Turner's release in 3 months when sentenced to 6 demonstrates that we need to be very careful with "credits" against sentences and award them only when they serve an important function.

    Third, given the number of people guilty of serious crimes who are now sentenced to county jail in California, it is imperative that we build enough jail capacity to hold them for every single day for which they are sentenced, reduced only by those judiciously awarded credits.

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    L.A. Airport Shooter Pleads Guilty to Avoid Death Penalty:  The man accused of fatally shooting a U.S. Transportation Security Administration (TSA) agent and wounding three others in an attack at the Los Angeles International Airport nearly three years ago has agreed to plead guilty to the charges against him in order to avoid a death sentence.  Alex Dobuzinskis of Reuters reports that Anthony Ciancia, 26, a New Jersey native, has agreed to plead guilty at an upcoming hearing to 11 criminal counts, including murder of a federal officer, attempted murder of a federal officer, violence at an airport and discharge of a firearm during a crime of violence causing death.  On Nov. 1, 2013, Ciancia walked into Terminal 3 of LAX, the nation's second-busiest airport, armed with a semi-automatic rifle and opened fire, killing TSA agent Gerardo Hernandez, 53.  Hernandez became the first TSA officer killed in the line of duty since the agency's creation following the Sept. 11, 2001 attacks.  Federal authorities believe Ciancia's motive was to target and kill TSA agents, after discovering writings signed by him saying he wanted to "instill fear in [their] traitorous minds." 

    Death Penalty Possible for Va. Man who Killed Wife, Officer:  A Prince William County judge ruled Thursday that prosecutors may pursue the death penalty against a man who fatally shot his wife and a police officer nearly six months ago.  Ian Shapira of the Washington Post reports that attorney for Ronald Hamilton, 32, filed two motions, arguing that Prince William County's high rate of death penalty cases compared to the rest of the nation's violates his client's rights against cruel and unusual punishment and therefore the pursuit of the death penalty in his case was arbitrary.  The defense motions were denied.  Hamilton fatally shot his wife, Crystal Hamilton, 29, on Feb. 27 after an argument.  Crystal had dialed 911 before she was killed and three Prince Williams police officers responded, including Ashley Guindon, 28, who was on her first day on the street.  Hamilton fatally shot her with a rifle as she approached the door to the home and wounded the other two officers.  The couple's 11-year-old son was present during the incident but was unharmed after fleeing to a neighbor's house for safety. 

    Retired Justice Warns Against 'Deceptive' Prop. 57:
      James Ardiaz, retired presiding justice of the Fifth District Court of Appeal, has this piece in the Fresno Bee warning Californians not to be fooled by Gov. Brown's deceptive new ballot measure, Proposition 57.  Prop. 57 is advertised as a measure that will reduce the number of "nonviolent" criminals in prison, but Ardiaz says that this definition is misleading because under the measure, "a special definition for what is a violent crime" is used.  Crimes classified as "nonviolent" under Prop. 57 include rape of an intoxicated person, drive-by shootings, assault with a deadly weapon, domestic violence involving trauma and corporal injury of a child.  Ardiaz references last year's crime increase -- a 9.7% spike in murder, 35% jump in rape and an 8.5% rise in robbery, for instance -- that he says is the result of Brown's  failed attempts to "fix" sentencing in the state with Realignment (AB109), the weakening of Three Strikes and Prop. 47.  Prop. 57 will only perpetuate and worsen rising crime in California.  Ardiaz's signature will be on the opposition arguments to the initiative on the November ballot.

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    Federal Gun-buying Ban Upheld for Medical Marijuana Cardholders:  A federal appeals court ruled Wednesday that a federal ban on the sale of guns to medical marijuana card holders does not violate the Second Amendment.  The AP reports that the 3-0 ruling by the 9th Circuit Court of Appeals, which has jurisdiction over nine Western states that the ruling applies to, stems from a lawsuit filed by a Nevada woman who was denied the purchase of a firearm in 2011 after obtaining a medical marijuana card.  The 9th Circuit agreed with a previous ruling that the sale of guns to people who use marijuana and other drugs is reasonable, as drug use "raises the risk of irrational and unpredictable behavior with which gun use should not be associated."  While many states have legalized the use of medical marijuana, the drug is still illegal under federal law.

    Aug. 2016 was Chicago's Bloodiest Month in Two Decades:  Chicago had its bloodiest month in two decades this August, following a deadly trend that has been seen month after month this year.  J.J. Gallagher of ABC News reports that last month, police recorded 90 homicides, 384 shootings and 472 total shooting victims.  This year, murders have spiked by 49% and shootings incidents increased 48% compared to the same period last year.  Additionally, 27 children younger than 13 have been shot, and police have logged a total of 468 murders and 2,848 shooting victims.  The city is on track to record its highest overall murder count since 2008, when 513 people were killed.  Annual murders peaked in 1992 at 940 and last topped 600 in 2003.

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