February 2017 Archives

News Scan

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Ohio Murderer Can Appeal Again:  The Ohio Supreme Court appointed a new attorney Monday to reopen the challenge to murderer Steven Cepec's death sentence.  Marina Malenic of the Gazette reports that last December the court upheld Cepec's conviction and death sentence by a 6-1 vote.  Four years ago, Cepec was convicted and sentenced to death for murdering a 73-year-old man with a claw hammer and a lamp cord six days after his release from prison.  An earlier Gazette story by Nick Glunt notes that Cepect, a harmless drug offender, was assigned to a rehab program when he broke into Frank Munz's home to steal money for drugs.  He beat and choked Munz to death because he resisted.  Ohio's execution process has been tied up since 2014 with lawsuits challenging the drugs used for lethal injection.    

News Scan

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Murderer Fled to Mexico: A Mexican man who fled the United States nearly a decade ago has been identified as the prime suspect in a cold case murder of a female college student.  Fox News reports that following the reopening of the 1997 rape and murder of Sunny Sudweeks, DNA and fingerprint evidence identified Felipe Vianney Hernandez Tellez as her killer. Hernandez fled to Mexico nearly a decade ago. He is believed to currently reside in Costa Mesa Mexico with a wife and three children. The U.S. government is working with Mexico in hopes of obtaining extradition of Tellez to bring him to justice.

Manhunt Ensues for Mississippi Shooter: A manhunt is under way in Mississippi for a man who has been accused of three separate shootings, two of which turned fatal. Fox News reports that Alex Deaton is being accused of the fatal shooting of his girlfriend as well as the shooting of a jogger who suffered non-fatal injuries. He is also suspected of being involved in a shooting death of a woman outside a church roughly an hours drive away. As of now, he is wanted for aggravated assault and murder. He is to be considered armed and dangerous.

Parolee Turns Pedophile: A man on parole for possession of controlled substances has been arrested and charged for the online solicitation of sexual activity with a 14-year-old girl. ABC reports "Jeremiah Landon Busby, 39, pleaded guilty for the felony charge on Feb. 1. He was on parole for an 80-year sentence for possession of a controlled substance. He had also previously been to prison for murder, a news release said.  Busby was observed sending sexually explicit messages and requests to a 14-year-old girl as well as making arrangements for them to meet. When he arrived, he was arrested on the scene. Busby's arrest was only one of 27 predators who were captured in the sting.

State Legislative DP Notes

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There are legislative happenings in Alabama, Florida, Mississippi, and Iowa on the death penalty.

In Florida, it seems that they are barrelling down the road to a single-juror veto law, and nobody is even raising the alternative of a true unanimity law.  Why the state's prosecutors are not up in arms about this just baffles me.

Seriously, folks, do you really want a system where a hard-core opponent of the death penalty can lie on Witherspoon-Witt voir dire to get on the jury, cross his arms in deliberation and just say "no, no, no, no matter what," and impose his will over the judgment of the other 11 jurors?  That is what you will get if this train isn't stopped. 

Require unanimity one way or the other or at least a majority for a life verdict, and otherwise declare a mistrial and retry the penalty phase with a new jury.

The Alabama Senate voted 30-1 to end judicial overrides of jury penalty verdicts in capital cases.  Brian Lyman has this story for the Montgomery Advertiser.  SB16 provides that it is not retroactive.  It deletes the word "advisory" before "verdict" and requires the judge to sentence according to the verdict

Existing law says that a jury can return a death verdict by a vote of 10 jurors or a life imprisonment verdict by a majority vote.  If neither of those thresholds is met (i.e., between 6-6 and 9-3), "the trial court may declare a mistrial of the sentence hearing."  That's fine except for the "may."  Could a judge allow a minority of jurors to prevail over the majority by declining to declare a mistrial?  Perhaps readers familiar with how things actually work in Alabama can enlighten us.

News Scan

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9 Refugees Arrested In Austria Gang-Rape:  Nine asylum-seeking refugees have been arrested and charged in connection with the New-Years gang-rape of a 28-year-old teacher.  Jon Lockett at The Sun reports that the victim was visiting Vienna with a friend. They were indulging in a night of heavy drinking during which, four Arab-speaking men escorted her from a bar without her friend's knowledge. She was taken to a nearby apartment where five more men were waiting to assault her. All but one of the men denied the allegations of rape in spite of DNA evidence of six of the men recovered in and on the victim. They face up to 15 years each in prison.

It's PC to Let Them Riot: Heather Mac Donald at the City Journal has this piece on police complacency in the face of rioting and violence in the name of political correctness.  The recent rioting at UC Berkley to stop a scheduled lecture by right-wing provocateur Milo Yiannopolous, provided a clear example of police standing down to avoid confrontation, while masked rioters set fires, destroyed property, and attacked opponents. 

2 DC Officers Injured in Shooting: Two D.C. Police officers suffered gunshot injuries Thursday night during a shootout with an unnamed suspect.  According to Ellison Barber at USA Today, both officers sustained non life-threatening injuries during the shootout with the suspect, just 2 miles from the Nation's Capital. The suspect was killed in the exchange. The two officers are receiving treatment for their injuries. It is unclear who fired first, although the two officers are reportedly a part of a crime-suppression unit operating in D.C.

Refugee Murder Suspect Poorly Vetted:  An Afghan asylum-seeking immigrant is being tried as an adult for the rape and murder of a young German coed following the discovery that he had been lying about his age. Emily Chan at Daily Mail reports that "Hussein Khavari was arrested for the rape and murder of 19-year-old medical student Maria Ladenburger in Freiburg, south-west Germany" last December. The European Union's inability (or unwillingness) to thoroughly vet refugees admitted into Western Europe allowed Khavari to claim that he was 17 years old at the time of the murder, ensuring that he would be tried as a juvenile, facing a maximum sentence of 10 years. Fortunately, he didn't get away with this. A subsequent investigation revealed that Khavari was at least 22 years of age at the time of the rape and murder, and will now be tried as an adult for the crime.  The investigation also revealed that Khavari was sentenced to ten years in jail in Greece after he threw a 20-year-old coed off a cliff on the island of Corfu in May 2013.  Unfortunately he was placed in a youth detention center and released at least 7 years early.  Tough luck for the German girl.

News Scan

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Seven Murders in Chicago on Wednesday:  Chicago set a one day murder record for the year Wednesday with seven shooting deaths.  The Sun Times reports that this makes 92 murders so far in 2017, with 400 people injured since since January 1.  Among the victims was a yet-unidentified pregnant woman who was shot in the abdomen and side.  So far this year there have been 3 days where five people have been murdered.   The city's strict gun control law and restraints on proactive policing don't appear to be working very well. 

Did Cop Die Due to CA Sentencing Laws?  The murder of a Los Angeles area police officer by a habitual felon last Monday has sparked a statewide discussion about California's alternative sentencing scheme.  Currently California law considers property and drug criminals as being "low risk" for violence, even if they have violent priors, and substitutes prison time for most new felony convictions for short stays in a country jail and local rehabilitation programs.  CJLF participated in a discussion of these policies on Wednesday's John & Ken show on KFI in Los Angeles.    

Expert: Sex Offenders Are Low Risk:  In the aftermath of the arrest of repeat sex offender Brian Golsby for the rape and murder of a 21-year-old Ohio State co-ed earlier this month, an expert on sex offenders maintains that they present a very low risk of re-offending.  John Futty of the Columbus dispatch reports that Professor Melissa Hamilton of the University of Houston Law Center cites Justice Department data showing that only 5.3% of sex offenders were arrested for re-offending within three years of their release.  She blames media reports of horrible sex crimes by repeat offenders for stoking public fear of sex offenders.  But an official from the DOJ agency that monitors sex offenders said that "we don't know the true recidivism rate" because many sex crimes go unreported.  A 2015 study on sexual assault in Texas found that more than 90% of assaults are not reported to police.

Justice

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Baby Justice never stood a chance.  He was born with methamphetamine in his system and found frozen to death under some bushes along a slough bank 19-days later at the hands of his high, meth-addicted mother.

Baby Justice is dead.  His mother is in jail for second-degree murder and his father, Frank Rees, who has a history of meth related arrests and supposedly thought that the baby's mother "was clean", was arrested yesterday for his role in Baby Justice's death.  The baby was found dead almost exactly two years ago.  His mother was convicted by a jury almost six months ago.  Evidence at the mother's trial established that the baby's father was administering meth to the mother both days before and after his birth.  This evidence is what led to Rees' arrest.  Rees, 31, is now facing felony charges of involuntary manslaughter, child endangerment, and administering methamphetamine.  Yolo County District Attorney Jeff Reisig stated that "Under California law, when another individual's unlawful or reckless conduct in the face of known risks is a substantial factor that contributes to the death of another person, criminal liability may be established."

In a jailhouse interview yesterday, Rees said "I can almost guarantee you this is going to be thrown out, . . .  The DA should come here and give me an apology. I lost my son. I think I've been through enough."  Really?  Rees may not have physically taken the baby out to the slough that night, but he's been described as a "as a womanizing, meth-addicted, paranoid ex-convict who wielded intense control over [the baby's mother] first as her drug connection, then as the father of her child" and had dosed the baby's mother "with veterinary-size syringes of methamphetamine mixed with acetone in the days before their son's death."  Who should be apologizing to who here?

Read more here: http://www.sacbee.com/news/local/crime/article102222787.html#storylink=cpy

Read more here: http://www.sacbee.com/news/local/crime/article102222787.html#storylink=cpy

Rees' new girlfriend, who herself was arrested last month for possession of meth, just gave birth to Rees' 6th child.  This new baby girl was born two months premature and it is probably safe to say that meth is in her system as well.

Baby Justice stood no chance and now there is another baby struggling to survive.  Her mother most likely uses meth and her father is in jail facing manslaughter charges for his role in the death of the half-brother she will never meet.  The sad cycle continues.

News Scan

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Court Overturns Texas Murderer's Sentence:  In a 6-2 decision announced today, the U.S. Supreme Court overturned the death sentence of double-murderer Duane Buck.  Mike Ward of the Houston Chronicle reports  that the court determined that a decision by Buck's own lawyers to introduce statistics showing that blacks were more likely to commit crimes may have influenced the jury to sentence him to death.  As a result of the court's ruling, Buck will receive a new sentencing trial.  Buck's guilt was not at issue.  He was convicted of the 1995 murder of his girlfriend, Debra Gardner and her friend Kenneth Butler.  According to police,  Buck barged into Gardner's house armed with a rifle and shot his own sister and Butler. He then chased the woman outside the house and shot her down as her young daughter watched.    

Ohio Supreme Court Upholds Death Penalty: The Ohio Supreme Court has refused to reconsider claims by a repeat offender  sentenced to death for murdering his girlfriend's ex husband in order collect an insurance payment. According to WFMJ News, Nathaniel Jackson and Donna Roberts were convicted in 2001 after it was discovered that they had plotted together to kill Roberts' ex-husband Robert Fingerhut, and collect the $500,000 life insurance payout. The Ohio Supreme Court refused to reconsider Jackson's ineffective assistance of counsel claim, upholding his previously imposed death sentence. The court's 2016 decision in Ohio v Jackson describes how Jackson and Roberts arranged for Jackson to meet with Fingerhut in his home and kill him.  The victim was shot twice at close range.  An appeal by Roberts, who was also sentenced to death, is still under review.   
Unsurprisingly, the U.S. Supreme Court held today in Buck v. Davis that it was ineffective assistance of counsel for the defense lawyer to call an expert witness in the penalty phase to testify about "statistical factors," one of which could be construed to be a statement that a defendant was more likely to be dangerous in the future because he is black.

I don't read the testimony that way.  The underlying fact that the expert testified to was:  "There is an over-representation of Blacks among the violent offenders."  That is a regrettable but undeniable demographic fact.  Still, most jurors (and many lawyers) do not have the logical sophistication to distinguish between that fact and the forbidden inference, and it should not have been introduced into the trial at all.

Justice Thomas in dissent notes that the Court had to leap over many procedural hurdles in its result-driven quest to grant relief to this one murderer, but he predicts these gymnastics will be narrowly applied only to unusual cases like this one.  I hope he is right, but I have my doubts.  If time permits, I will blog more about this case later.

Memo to the Texas Legislature:  How many problems does your "special issues" sentencing system have to cause before you wake up, dump it, and sentence on the basis of aggravating v. mitigating factors like most states do?  Asking jurors to predict "future dangerousness" is a legal minefield, and Texas has stepped on too many mines already.
Today's News Scan reveals too briefly the central, and dispositive, flaw in the product sentencing reformers are selling. Lower sentences, combined with early release and the (typically false if not absurd) promise of close community supervision, is a prescription for death.  

I'm not going to gussy it up or attempt any of the word blizzards we see from the sentencing reform crowd.  These people simply aren't honest about the deadly cost their programs will impose on normal people.  They weren't honest in the Wendell Callahan case (a triple murder that sprung from a 2010 version of federal sentencing "reform"), and they've been at least equally dishonest in describing California's disastrous version, initially "realignment," and more recently the even more thoroughly botched Prop 47.

How much murder should the country accept, and how much will it get, if it buys into the sprawling early release programs sentencing reformers want to sell us?  Until we get honest and specific answers to these questions, our stance must continue to be a loud NO.  You wouldn't buy a car without knowing how much money it's going to cost. Why would you buy sentencing "reform" without knowing how much murder it's going to bring?

News Scan

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Parolee Kills CA Police Officer :  Two police officers were shot, one fatally, Monday by a gang member in Whittier, CA.  Stephanie Baer of the LA Daily News reports that when officers responded to a traffic accident and approached one of the vehicles involved, which they identified as stolen, the driver opened fire killing officer Kieth Boyer and wounding officer Patrick Hazell.  The suspect, a known gang member who was injured in the shootout, was released from "flash incarceration" about a week ago.  He is also suspected of murdering his cousin earlier on Monday.  Whittier Police Chief Jeff Piper told reporters that the suspect was released from prison early under AB 109, a 2011 law signed by the Governor which reduced sentences for habitual felons, and Proposition 47, a 2014 ballot measure which converted drug and theft felonies into misdemeanors.  "We need to wake up.  Enough is enough.  You're passing these propositions, you're creating these laws....it's not good for our community, it's not good for our officers.   You have no idea how it's changed in the last four years.  We have the statistics to show it," said the Chief.  The suspect's name has not be released.   Note:  police identified the shooting suspect as Michael Mejia.     
The desperate need for Jeff Sessions to turn DOJ's Civil Rights Division upside down has never been on more vivid display than in the juxtaposition of the following stories.

In the first, we see that, under DOJ's consent decree with crime-ridden Baltimore, one subject of considerable attention is the need for police to use the correct pronoun when they interact with citizens.  PowerLine repeats the relevant portion of the decree:

Ensure that BPD officers address and in documentation refer to all members of the public, including LGBT individuals, using the names, pronouns, and titles of respect appropriate to the individual's gender identity as expressed or clarified by the individual. Proof of the person's gender identity, such as an identification card, will not be required. 

To the best of my knowledge (readers please correct me if I'm wrong), there has not been a single episode of murder, robbery or mugging in Baltimore's 288 year history because the police used the wrong pronoun in referring to a gay, bi, or transgender person.

The second story provides a different slant on what Baltimore police might attend to instead of pronouns.


Amplifying Molehills Into Mountains

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This story reminds me of an old REO Speedwagon song:

But I know the neighborhood
And talk is cheap when the story is good
And the tales grow taller on down the line
Ian Millhiser, the Justice Editor at ThinkProgress, informs us:

President Trump "is considering a proposal to mobilize as many as 100,000 National Guard troops to round up unauthorized immigrants, including millions living nowhere near the Mexico border," according to the Associated Press.
But AP did not say that.  Notice the placement of the opening quotation mark.

News Scan

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Officers Injured During Immigration Protest: In the course of an immigration protest in Arizona Thursday evening, rising tensions led to three police officers sustaining injuries. Carmen Duarte at The Arizona Daily Star reports that the protest in Tuscon, Arizona was being held to oppose the recent executive orders regarding the regulation of immigration. Tensions ran high as protesters began assaulting police officers, striking one of the officers in the face and another in the back. None of the officers sustained serious injury although three men have been arrested on suspicion of aggravated assault on a peace officer.

More Fatalities in The Windy City: The number of casualties continues to rise as gun violence continues to run rampant in the streets of Chicago. According to ABC's Stacey Baca and Charles Thomas, "11 people were killed and 11 wounded in shootings over a 48-hour period in Chicago from Tuesday afternoon to Thursday morning, Chicago police said." The highest profile incident among these shootings was the triple shooting which took the life of a 2-year-old boy and his uncle while being streamed on Facebook live.

BYOD (Bring Your Own Drugs): The state of Arizona has disclosed a new plan to solve the problem it has had acquiring the most effective drugs for executions. Tom Dart at The Guardian reports that new execution protocol would call for a death row inmate's lawyer to supply the drugs with which to euthanize his client. "With drugs that can legally be used for lethal injections in short supply, the Arizona department of corrections' latest execution protocol states that attorneys for death row inmates are welcome to bring along their own." Legal scholars are calling this new policy absurd, citing the inability of legal counsel to obtain the proper chemicals in a lawful way, let alone their ability to transport it into the department of corrections.

AI Powered Body Cams?:  The body camera industry is moving toward joining the growing trend of utilizing artificial intelligence in their products. According to Joshua Kopstein at Vocativ, Taser, the leading manufacturer of stun guns, has announced its intent to open an artificial intelligence division to develop a new and unprecedented type of body cam in response to the recent controversy regarding police involved shootings. The idea is to create a camera that operates on an algorithm that allows it to recognize and categorize different objects such as firearms, knives, etc. This would allow police personnel to redact the footage from body cameras with relative ease as they would be able to search through what the camera identified as relevant footage. "Taser predicts that in a year's time, their automation technology will reduce the total amount of time needed to redact faces from one hour of video footage from the current 8 hours to 1.5 hours."

News Scan

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Released Sex Offender Charged With Murder:  A sex offender released from prison last November has been charged with raping and murdering an Ohio State college student.  Fox News reports that 29-year-old Brian Golsby was arrested last Sunday for the murder of 21-year-old Reagan Tokes.  Tokes' nude body was found at a park entrance last week.  Golsby was released from prison last November after serving six years for the 2011 robbery and rape of a woman in front of her 2-year-old child. Without a plea bargain in that case, his conviction would have carried a sixteen-year sentence.  Harrison Hove of WCMH in Columbus reports that Golsby has a record of committing crimes since he was a teenager.  He was on GPS monitoring when he allegedly kidnapped, robbed, raped and murdered the young woman. 

Florida Could End Gun Free Zones:  Two Florida State Legislators have introduced bills which would eliminate all state-imposed restrictions on the carrying of concealed weapons for licensed concealed-carry permit holders.  Kristen Clark of the Miami Herald reports that the two bills (SB908/HB803) introduced by Senator Dennis Baxley and Rep. Don Hanfeldt would give Florida's over 1.7 million permit holders the right to be armed almost anywhere in the state.  Senator Baxley said the measure "tests the appetite for legislators to eliminate the illusion called gun-free zones. This bill eliminates the sterile target we have created with noble intentions."  An anti-gun advocate said "These gun-happy legislators have gone too far."  
Kwanwoo Jun, Alastair Gale, and Ben Otto report for the WSJ:

North Korean dictator Kim Jong Un issued an assassination order to kill his half-brother after seizing power in 2011 and agents tried to execute it at least once before succeeding this week, South Korea's top spy chief said.

News Scan

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Charges Filed in 11-year-old Girl's Shooting: A 19-year-old male has been arrested and charged with first degree murder in relation to the death of an 11-year-old girl who died from a gunshot wound to the head last weekend in Chicago. According to Stefano Esposito of the Chicago Sun Times, Antwan C. Jones discharged his firearm at a group of people that he "didn't think belonged in the neighborhood." Takiya Holmes, 11, was struck in the head by a stray bullet and passed away this past Tuesday. This one of the three reported shootings involving Chicago children in the past few days.

Washington Abolition Bill Expected to Fall Flat: A bill to abolish the death penalty in the state of Washington received a great deal of public backing this year although house democrats are not hopeful about the bills future. The Seattle Times reports "A House bill on the issue is set for a public hearing before the House Judiciary Committee on Wednesday, but it's not scheduled for a committee vote before a deadline Friday requiring most bills to be voted out of committees." This means that it is likely that the bill will die in committee. Washington currently has a moratorium on capital punishment, preventing executions for those on death row. The most recent execution in the state was in 2010.

More Victims from Criminals Left on the Streets:  A 28-year-old California parolee has been arrested for the January 31 abduction of a woman and the burglary of a house a week later.  KESQ ABC Local News reports that habitual felon Franklin James Scott is facing charges or kidnapping with intent to rape and residential burglary.  Scott confronted a woman, took her belongings and was forcing her towards her car when he fled before police arrived. Scott was convicted in 2007 on charges of assault with intent to commit rape, assault with a deadly weapon, false imprisonment and sexual battery.  Andrew Holder, 27, who on probation for violating the terms of his earlier probation from a drug case in 2010, is being charged with the murder and robbery of 37-year-old Darryl Curtis according to Stephanie Farr at The Philadelphia Inquirer.  Curtis was found in his home  in Holmesburg with a fatal gunshot wound to the head on January 3.  As reported by Roseanne Tellez at CBS Chicago, the two suspects charged by police for the 2013 shooting of 15-year-old Hadiya Pendleton both had criminal records and one of them was on probation at the time of the girl's shooting.  In fact, it was discovered that 18-year-old Michael Ward had violated his probation 3 times before the shooting occurred.  One week before she was murdered Pendleton had performed at President Obama's second inauguration.  


Malignant Neglect in Berkeley?

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Paul Cassell at the Volokh Conspiracy discusses the "black bloc" thugs who violently forced the cancellation of a speech they disagreed with a couple weeks ago and the curious failure of Berkeley authorities to make any arrests of the thugs.  "If a[] Los Angeles Times reporter can find the black bloc attackers," Cassell asks, "why can't the Berkeley authorities?"

I hope UC Berkeley authorities will be able to announce some progress on the investigation soon. They have said that they are working "in close concert with the FBI on an ongoing investigation into the matter." But the same report indicates that the FBI has not confirmed or denied that it is actually conducting an investigation, and it is not immediately clear whether the FBI will find that the attack warrants federal attention.

Local failure to prosecute those who violently interfere with the rights of others -- because the locals have more sympathy with the thugs than those they attack -- is an old problem.  Congress addressed it in the Ku Klux Act, signed by President Grant in 1871.  This case will warrant federal attention if Berkeley police fail to act. 

News Scan

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Federal Judicial Appointments:  While partisan battles swirl around the President's nomination of Judge Neil Gorsuch to the Supreme Court, as noted by Kent Scheidegger in a recent post, appointments to federal district courts and courts of appeal are also of great importance.  Josh Katz of the New York Times discusses the opportunity the new administration will have to reshape the federal judiciary over the next four years.  While Senate Republicans have been blamed for obstructing confirmation of President Obama's judicial appointments, Mr. Katz notes that over the past eight years Obama's appointments have replaced about 40% of today's federal judiciary.  This suggests that much of the reshaping has already been done. 

Florida Court Upholds Death Sentence:  The Florida Supreme Court has upheld a jury's unanimous 2008 verdict to sentence the murderer of a corrections officer to death.  Orlando Sentinel journalist Gal Tziperman reports that the court's 5-2 opinion held that because the sentencing jury was unanimous in sentencing murderer Enoch Hall to death, his sentence did not violate the Supreme Court's Ring v. Arizona requirement that the authority to impose a death sentence rest with the jury.  In 2008, while serving a life sentence for kidnapping and sexual battery, Hall attacked and killed Donna Fitzgerald, a 50-year-old corrections officer, stabbing her 22 times with a metal shank.  Other officers found Office Fitzgerald's body with her pants and underwear pulled down to her knees.  

Ohio Swamped With Overdose Deaths:  Following a narrative that is playing out across the country, the state of Ohio is being overwhelmed with fatal overdoses of heroin and fentanyl.  KTLA5 reports that the Montgomery County Coroner is running out of space to hold the bodies of overdose victims.  In January 2017 the county, which includes the city of Dayton, had already had 145 overdose deaths, representing over 60% of the total autopsies for that month.  In Cuyahoga County, which includes Cleveland, there were 517 overdose deaths last year, up from 228 in 2015. This is compelling evidence that America needs to reduce sentences for the "non-violent" crime of drug dealing.     


Donald Trump and Improving Police Morale

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Police are public officials with a tremendous amount of power.  They warrant at least as much scrutiny as any other public official, if not more.  But scrutiny is one thing, while a cascade of reflexive, unbalanced and often vitriolic criticism is something else.  Or to put it more bluntly, criticism is criticism but hate is hate.

There is a widespread suspicion among those who follow the subject that growing police caution in the wake of escalating condemnation (caution known as the "Ferguson effect" and noted by, among others, Jim Comey of the FBI and Chuck Rosenberg of the DEA) has contributed to increased aggressiveness by criminals over at least the last two years.  That, in turn, is thought to be one of the reasons violent crime in our major cities surged in 2015 and 2016.  Sharply increased crime is one the "legacies" from President Obama that the press tends to be less than eager to cover  --  or, when it is covered, to identify as rooted in Obama's Justice Department and its kindred spirits such as, for example, Black Lives Matter and the ACLU.

Increased crime and related low police morale are, nonetheless, facts the new Administration has no choice but to confront.  Fortunately, it appears from this illuminating LifeZette article by Edmund Kozak that President Trump is off to a good start.

#NeverReplaceable

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Justice Antonin Scalia died a year ago today.

There has been much discussion about his replacement.  In the sense I have in mind today, the talk is pointless. Scalia was a once-in-a-lifetime intellect and a larger than life character.  Someone will eventually sit in his seat, but he will never be replaced.

I will repeat two tributes to him C&C published last year, here and here.

A Flawed Restraining of a Flawed Order

Michael McConnell, Stanford Law Professor and Hoover Institution scholar, has this article at Hoover on last week's Ninth Circuit decision.

Toning It Down

The Las Vegas Review-Journal has this editorial regarding presidents' attacks on the judiciary -- both the current and preceding presidents.

News Scan

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27 Shootings, Including 2 Young Girls, Another Chicago Weekend: Between Saturday and Sunday this past weekend, 27 shootings occurred in the city of Chicago. Elvia Malagon at the Chicago Tribune reports that among the over two dozen shootings in Chicago last weekend.  Two of the victims were young girls, ages 11 and 12, both receiving gunshot wounds to the head. As of now both girls are in critical condition and on life support.    Nereida Moreno and Katherine Rosenberg-Douglas report local residents have expressed their belief that the police just don't have the manpower to combat the violence at this point, and that they would support the National Guard coming to Chicago to patrol the streets.

Parolee Fires on Police Officers: A 28-year-old parolee received multiple gunshot wounds Friday afternoon after firing a pistol at police officers. According to Anita Chabria at the Sacramento Bee, officers from the Sacramento Police Department approached the suspect at the 2900 block of Del Paso Blvd. under suspicion that he was a dangerous parolee-at-large. The suspect drew a pistol and fired at a K-9 officer and 3 officers returned fire. The suspect sustained multiple injuries but survived the shooting and is in stable condition.

Execution Date Set For Fort Worth Murderer:  An execution date has been set for a man convicted of murder in 2004.  According to Mitch Mitchell at the Star-Telegram Tilon Lashon Carter, 37, was scheduled to be put to death Tuesday but received a stay of execution Friday on a legal technicality. His new execution date is May 16, according to an order signed by state District Judge Mollee Westfall, who presides over the 371st District Court in Tarrant County. Carter was convicted for the robbery and the 2004 murder of an 89-year-old Bell Helicopter retiree.

A:  To the morgue.

And what are the ideas behind sentencing reform?  We know them pretty well by now:  That we should be readier to give second chances, that youthful offenders in particular need understanding, that we must resist the impulse to incarcerate, that racial bias pervades the system, and that opportunities for education and community involvement are better than warehousing people.

See if you can spot any of those ideas in this story, described in more detail after the break.  Then see if you can figure out why the jurisdiction involved is one of the most dangerous and miserable cities in America.

Lesson 3: Judge-Shopping Must Be Curbed

Here is the third lesson to be learned from the debacle noted this morning.

Plaintiffs seeking to enjoin government actions have way too much choice where to file their suits.  Further, there is not enough control on conflicting decisions when it comes to injunctions.

The WSJ article noted in a previous post this morning reports on the development of the strategy of the opponents:

Democratic attorneys general and their aides held a series of conference calls. They agreed to mount separate lawsuits across the country. The goal: try lots of different arguments to block the ban in hopes that one of them would succeed.

Minnesota's attorney general, Lori Swanson, joined the Washington lawsuit. New York Attorney General Eric Schneiderman joined the American Civil Liberties Union's case in federal court in Brooklyn. Massachusetts Attorney General Maura Healey did the same with an ACLU case in Boston.

Not only did they throw as much against the wall as they could to see what stuck, they threw it against as many walls as they could, and it only needed to stick to one.  Judge Gorton in Boston declined to extend his earlier, temporary block of the executive order, but Judge Robart in Washington did block it, and the result was that it was blocked.  Conceivably, a group of persons opposed to some government action could file coordinated suits in every district in the country, and they would only have to win one to get a halt for the time being.

Even when only one suit is filed, broad venue rules and "related case" rules give the challengers too much leeway to steer cases to the judges they know will be favorable to them.  The habeas corpus "fast track" regulations were held up for over three years by order of a judge with no jurisdiction in a case steered to her in exactly that manner.

Congress should take a hard look at the rules regarding venue in cases that seek nationwide injunctions.  "Venue" sounds like a boring subject, but this case illustrates how much it can matter.

Lesson 2: Lower Court Appointments Matter

Here is the second lesson to be learned from the debacle noted this morning.

Supreme Court appointments are critically important, but lower court appointments are important, too.

The Supreme Court is one court of nine people.  It cannot and does not correct every wrong decision rendered by lower courts.  Not even close.  The high court takes about 1% of the cases it is asked to take.  It takes a higher percentage when the Government is asking, but not all.

Bad appointments to lower federal courts can have very long-lasting effects.  The Ninth Circuit was expanded during Jimmy Carter's single term.  The appointments he made, no doubt strongly influenced by California Senator Alan Cranston, produced the notorious "Ninth Circus" that plagued the Far West for an entire generation.

One of those appointees is reported to have said, regarding the Supreme Court and Ninth Circuit decisions, "They can't reverse them all."  Whether he really said that and whether, if so, he was joking (as he claims) is beside the point.  It is undeniably true.  The Notorious Ninth commits far more errors than the Supreme Court can possibly correct, and it does so knowing that many of these decisions are contrary to what Supreme Court precedents actually require.  Even when they are eventually reversed, those errors do damage in the interim, and the interim can be a long time.

During the Bush 43 Administration, the judge-pickers had a motto of "no more Souters" for the Supreme Court, but they did not apply that principle to the lower courts.  They made some solid picks, but they made some that cannot be explained on any basis other than politics and personal connections.

Lesson 1: Line and Staff

Here is the first lesson to be learned from the debacle noted this morning.

The chief executive of an organization of any size has two kinds of subordinates.  In the military, the commanders of the component units are the "line," while the people in the chief commander's office are the "staff."  Other organizations may use different terminology, but the distinction is always there in one form or another.

Relying too much on the staff and not keeping the line officers in the loop is a major error.  In the very early days of the Trump Administration, some of the important line positions were vacant, and some still are, because of stalling in the Senate.  The Acting Attorney General at the time of the travel restriction executive order was a dyed-in-the-wool leftist holdover from the Obama Administration.  The extent to which the Secretary of Homeland Security was in the loop has been the subject of conflicting reports.

President Trump nominated some solid people to head the government departments, and the confirmations are coming in now, albeit delayed.  He needs to use them and listen to them.  That is not to say he shouldn't listen to his staff also, just not exclusively.

A Debacle and a Learning Moment

The WSJ has this editorial titled Trump's Judicial Debacle noting a number of ways that the Administration and the courts were both wrong. "President Trump's immigration executive order has been a fiasco from the start, but the damage is spreading as a federal appeals court on Thursday declined to lift a legal blockade. Now the White House order has become an opening for judges to restrict the power of the political branches to conduct foreign policy."

The editorial goes to explain several ways the Ninth Circuit decision is wrong and how the Administration seemed ill-prepared to defend the order.  At the end, the editorial has some worthwhile thoughts on what to do now.

There are lessons to be learned from this debacle, though.  I will note a few of them in separate posts.
Jose de Cordoba and Santiago Perez have this article in the WSJ with the above headline.

MEXICO CITY--Influential Mexicans are pushing an aggressive and perhaps risky strategy to fight a likely increase in deportations of their undocumented compatriots in the U.S.: jam U.S. immigration courts in hopes of causing the already overburdened system to break down.

The proposal calls for ad campaigns advising migrants in the U.S. to take their cases to court and fight deportation if detained. "The backlog in the immigration system is tremendous," said former Foreign Minister Jorge Castañeda. The idea is to double or triple the backlog, "until [U.S. President Donald] Trump desists in this stupid idea," he added.

Talk about stupid ideas.  A concerted attack on our judicial system by foreign influences might just spur Congress to fund a big expansion of the system and thereby increase deportations.  Nothing makes Americans come together quite like being attacked from outside.  "Perhaps risky" is an understatement.

Alabama Senator and Attorney General

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Alabama Senator Jeff Sessions, as we all know, resigned his Senate seat to take the helm at the U.S. Deparment of Justice.  Gov. Robert Bentley promptly appointed Attorney General Luther Strange to the U.S. Senate seat.

Now AP reports:

MONTGOMERY, Ala. (AP) -- Longtime district attorney Steve Marshall has been appointed as Alabama attorney general.

Gov. Robert Bentley announced the appointment Friday. It came a day after Bentley named former AG Luther Strange to the U.S. Senate seat that Jeff Sessions left to become U.S. attorney general.

Bentley in a statement said Marshall is a "well-respected district attorney with impeccable credentials and strong conservative values."

Marshall has been a Marshall County district attorney since 2001.
Yesterday I said the Administration should, in addition to rewriting the travel restriction executive order, take the present case up to the Supreme Court.  That was based on a legal assessment that the Ninth Circuit decision is wrong.  (See also Rivkin & Casey in today's WSJ.)

In addition to the reasons that I gave yesterday, let me add that the claim that this order is a "Muslim ban" is absurd.  Based on data from the Pew Center, I estimate that the seven countries in question have only 11% of the world's Muslim population.  If one wanted to ban a whole group of people, an action that only affects one out of nine of the group is not the way to go about it.

However, sometimes there are strategic reasons for not taking a position.  Even though the decision is wrong, and clearly so in my opinion, there may not be five votes on the present eight-member Supreme Court to overturn it.  Affirmance by an equally divided court is a nothingburger, and that would be a real possibility.

Finally, and perhaps most importantly, the presence of this very hot-button case in the Supreme Court would give the Democrats and the left-leaning media ammunition in the critically important confirmation battle for Judge Gorsuch.  The Democrats will ask him about the case or questions closely related to the case, he will decline to answer, and even though that declination is quite proper it will look evasive on camera.  The Dems will still try to use it, of course, but their efforts will be less effective if it is behind us.

Sometimes you have to cut your losses and move on.  While the Administration's legal position is correct, taking the case up to SCOTUS may not be strategically wise.

Update:  The Ninth Circuit this afternoon ordered briefing on whether to hear the case en banc.

News Scan

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Florida Seeks to Ban Sanctuary Cities: Florida lawmakers have introduced legislation that would target "sanctuary cities" and the public officials who refuse to cooperate with immigration law. Kristen Clark of the Miami Herald reports that  SB 786 introduced by State Senator Arron Bean and HB 697 introduced by Rep. Larry Metz would ban sanctuary policies throughout the state.  "We're also looking at removing the umbrella of your sovereign immunity for elected individuals, boards and constitutional officers," Bean said -- which would allow victims of crimes committed by undocumented immigrants to then sue city and county officials if they don't fully comply with enforcing federal immigration laws.


Read more here: http://www.miamiherald.com/news/politics-government/state-politics/article130192194.html#storylink=cpy
Uber Driver With Criminal Record Robs Customer:  A female Uber Driver in South Florida, with prior convictions for drug offenses including cocaine possession with intent to distribute and an arrest for second-degree grand theft has been arrested for robbing a customer.  According to David J. Neal at the Miami Herald, the victim who requested to remain anonymous, allowed the woman to enter his home to go to the bathroom.  He subsequently passed out, possibly due to a drugged bottle of water she offered him while driving him home.  He awoke several hours later to find that he had been robbed. The driver took a firearm, a small safe, and his tax returns from 2012-2015 which suggests a possible intent to steal the victims identity. The driver currently faces charges of armed robbery and attempted identity theft.  U.S. Attorney Wifredo Ferrer called South Florida the "epicenter of identity theft."

Different Takes on Ninth Circuit Ruling:  By now everyone has heard about yesterday's 9th Circuit ruling to uphold the stay of President Trump's executive order to temporarily halt immigration from seven Middle East countries.  The contrast in how this ruling is being reported is interesting.  Adam Liptak at the New York Times reports "The appeals court said the government had not justified suspending travel from the seven countries. The government has pointed to no evidence," the decision said, "that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States." The article includes several stories of scheduled reunions of immigrant families and refugees coming to America, quoting the World Relief Corporation which called the ruling "fabulous news" for 275 newcomers who are scheduled to arrive in the next week, many of whom will be reunited with family.
The Ninth Circuit has declined to stay the temporary restraining order issued by Judge Robart in Washington State preventing enforcement of Executive Order 13769, the controversial travel restrictions on nationals of seven countries.

The Ninth is, of course, correct that due process protections apply to legal permanent residents (i.e., "green card" holders).  Yet even though the Administration has said it won't apply the limitations to permanent residents, it held that such application was not moot.

Felons, Weapons, and Knowledge

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When a convicted felon is not allowed to possess a firearm, what knowledge must be established to prove a violation?  The California Supreme Court addressed that issue today in the context of probation violations in People v. Hall, S227193.  U.S. Supreme Court nominee Neil Gorsuch has dissented in favor of the defendant on a related issue.

In the California case, drug dealer LaQuincy Hall was given probation upon the condition, among others, that he "may not own, possess or have in [his] custody or control any handgun, rifle, shotgun or any firearm whatsoever or any weapon that can be concealed on [his] person."

Although he made no objection in the trial court, Hall claimed on appeal that the condition needed to be modified to prohibit only "knowing" possession.

Given the relevant case law, the firearms condition is properly construed as prohibiting defendant from knowingly owning, possessing, or having in his custody or control any handgun, rifle, shotgun, firearm, or any weapon that can be concealed on his person....  Because no change to the substance of either condition would be wrought by adding the word "knowingly," we decline defendant's invitation to modify those conditions simply to make explicit what the law already makes implicit.  A trial court, however, remains free to specify the requisite mens rea explicitly when imposing a condition of probation.

Sessions' First Speech as Attorney General...

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...is less than three minutes and to the point.  My take-away is this:  Wishful thinking is out, hard thinking is in. Endless, mushy conferences are out, targeted action is in. We have a serious problem with rising crime, and we will use the full forces of the Department to deal with it.

This is almost enough to make me want to sign back up as an Assistant US Attorney. Almost.

The Attorney General's remarks, with the President listening, are here.

News Scan

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Bill Would Split 9th Circuit:  Legislation to divide jurisdiction of the nation's largest federal appellate circuit has been introduced in both houses of Congress this year.  Barnini Chakraborty of Fox News reports that the Senate bill, introduced by Senators Jeff Flake and John McCain would leave Oregon, California, Hawaii, Guam and the Northern Mariana Islands in the 9th Circuit, and put Nevada, Washington, Idaho, Montana, Arizona and Alaska in a new 12th Circuit.  A House bill introduced by Rep. Andy Briggs and four other Arizona Republicans would leave Washington in the 9th Circuit.  The current circuit presides over 20%  of the U.S. population and 40% of the nation's land mass.  Because of its size, according to Senator Flake, it can take the court 15 months to hand down a decision. 

Baltimore Looking For Answers:  With over a killing a day in Baltimore so far this year, the city's mayor announced "We've got a crime problem in our city."  The city suffered a record 344 murders in 2015 and another spike in violent crime over the first six months of last year, according recent FBI statistics.   Luke Broadwater & Allison Knezevich of the Baltimore Sun report that while the Mayor has authorized the hiring of an additional 100 police officers to patrol the city, some believe that restoring pro-active policing will be necessary to reduce the violence.  John Jay College of Criminal Justice professor Peter Moskos, a former Baltimore police officer, noted that a Justice Department report on policing in Baltimore released last Summer contained nothing about preventing crime.  He believes that officers need to be allowed to "confront criminals again.  What's been harmful is the idea the police shouldn't enforce quality-of-life issues." 

Repeat Felons Preying on Women:  Sacramento police arrested parolee David Hamilton Tuesday, for the burglary and rape of a 48-year-old mother of two.  Bill Lindelof of the Sacramento Bee reports  that Hamilton entered the victim's home through a window and raped her in her bed at knifepoint.  The victim was able to text a relative to call 911.  Police arrived just as Hamilton was entering the bedroom of one of the children and arrested him.  In another story, LIndeof reports that habitual felon Jerry West was convicted Tuesday for sexual assaults, robberies, kidnapping and carjackings involving four women in August and September of 2015.  West, who had two priors for carjacking, was nonetheless armed and back on the streets to commit these new crimes.  Under California's groundbreaking alternative sentencing policies 66% of the state's largest cities had increased violent crime last year, according to the FBI's Preliminary Uniform Crime Report for 2016.     
A picture is still worth a thousand words.
Sen. Sessions' farewell speech to the Senate, and his appreciation of his new responsibilities, is here.

Key line:  "This is a law enforcement office, first and foremost."

Spinning the Bad News on Crime

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Sentencing Law and Policy has this entry up today:  "New report details stability of California crime rates during period of huge sentencing reform."  

That must be good news, right?  Much more leniency and no crime increase?  Here's the key paragraph:

The statewide urban crime rate stabilized from 2010 to 2016, after decades of decline.

Urban crime rates in California declined precipitously through the 1990s and 2000s (See Appendix A).  Since 2010, crime in California has stabilized, hovering near historically low levels. Comparing the first six months of 2016 to the first six months of 2010, total crime rates experienced no net change, while property crime declined by 1 percent and violent crime increased by 3 percent.

For a more clear-eyed look at what's going on, here's the translation:

After dropping massively for twenty years due in large part to more and more aggressive policing and greater use of incarceration, crime rates are no longer falling.  Instead, in its period of "reform," in which those policies have been left behind, California has thrown away six years of progress against crime, and is now back to 2010 levels  --  with the momentum of change in exactly the wrong direction.

Attorney General Sessions

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Jeff Sessions has been confirmed as United States Attorney General, 52-47.

Senator Joe Manchin (D-WV) voted yes, and Senator Sessions himself voted "present."  All others voted down party lines.

That is most unfortunate.  Jeff Sessions is a well-qualified nominee, and the attacks on him have been shown to be spurious, yet only one Senator from the opposition party has the spine to cross the aisle.

Anarchy in School

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Once upon a time, when American education was run by people with sense, it was understood that learning to be a good citizen was part of education, along with academics and phys ed.  An environment with fair rules that are fairly administered and where breaking them has adverse consequences develops in children a healthy respect for the norms of behavior and for the rights of others.

Katherine Kersten describes in the City Journal the disastrous effect of St. Paul school giving control of school discipline to ideologues who believed that "disparate impact" in school discipline was the result of teachers' biases and that dramatically reducing standards of behavior and frequency of discipline was the solution.  In fact, it produced anarchy.

St. Paul's experience makes clear that discipline policies rooted in racial-equity ideology lead to disaster. This shouldn't be surprising, considering that the ideology's two major premises are seriously flawed. The first premise holds that disparities in school-discipline rates are a product of teachers' racial bias; the second maintains that teachers' unjustified and discriminatory targeting of black students gives rise to the school-to-prison pipeline.

News Scan

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The Cost of Failing to Deport Alien Criminals: Hundreds of Illegal immigrants are incarcerated for crimes each year, and those who are not deported to their home countries pose a serious threat to public safety.  Alfonso Chardy of the Miami Herald reports that findings by the Senate Judiciary Committee indicate that at least 121 killings within a four-year span were carried out by convicted immigrants who were not deported. In addition, of the 36,007 criminal aliens that were released by ICE in 2013, 1,000 of them were re-convicted for additional crimes within a short time. In 2014, ICE released 2,457 immigrants who were convicted of crimes and not deported. .

NYPD to Further Curb Proactive Policing: The New York Police Department agreed Thursday to further cut back the use of  stop-and-frisk although its use resulted in the recent apprehension of a murder suspect. Cody Derespina at Fox News reports "The discovery of 30-year-old Karina Vetrano's body in a Queens park in August made national headlines but authorities had very little information identifying her killer. But The New York Daily News reported it was a review of stop-and-frisk reports from the area near the crime scene that helped cops zero in on 20-year-old Chanel Lewis - who was arrested Saturday and charged with second-degree murder." The tactic, correctly termed, stop-question and-frisk, was instituted in the early 1990s by Mayor Rudy Giuliani.  It has been cited for contributing to one of the most significant decreases in crime in the history of New York.

The Science of Murder Clearance Rates:  An article by Robert Lolker in BloombergBusinessweek available at this link,  https://www.bloomberg.com/news/features/2017-02-08/serial-killers-should-fear-this-algorithm, examines the work of retired reporter and statistics expert Thomas Hargrove, who has developed an algorithm to help solve serial murderers.  Actually Hargrove has done more than this....he has created a homicide database far more accurate and complete than the FBI Uniform Crime Reports, and made it available at his website.  His algorithm utilizes the data to identify homicide patterns using geography, sex, age group and method of killing, sometimes finding links to murders which police can investigate.   
The obvious chief criticism that can be made against current Eight Amendment jurisprudence is the ambiguous nature of the "evolving standards of decency" established in Trop v. Dulles.  Besides the fact that it is not self-evident and that reasonable people can disagree widely as to what those standards are or ought to be, it remains a puzzle why some classes of offenders are categorically barred from certain punishment while others must prove their lack of culpability during sentencing.  To be sure, the Supreme Court has provided some guidance on the matter, but as I have discussed before the doctrine remains confused and unintelligible. 

The next chapter of the evolving standards journey is a proposed bill in Indiana, which would bar capital punishment for any offender who has a severe mental illness.  The proposed bill essentially requires a finding of insanity albeit with an added provision that a designated serious mental illness that impairs a defendant's ability to exercise rational judgment in relation to his conduct also qualifies for exemption from the death penalty.  The enumerated serious mental disorders, which the statute defers defining to the American Psychiatric Association, includes schizophrenia, bipolar disorder, major depressive disorder, post-traumatic stress disorder and traumatic brain injury.     

To anyone paying attention the problems of the proposed bill are obvious. This is no more than a thinly veiled product's test for punishment that, if successfully enacted, would undoubtedly include vast numbers of defendants and substantial monies for mental health experts (who, by the way, cannot as a profession agree as to what constitutes a serious mental illness).   Moreover, it is unclear that whatever characteristics people with serious mental illnesses have that qualifies them for reduced culpability under this evolving standard should not also apply with equal force to LWOP, lengthy prison sentences  or incarceration whatsoever- a residual but fundamental problem more broadly with the evolving standards doctrine itself. 

At the end of the day the issue revealed by this latest iteration of the evolving standards of decency doctrine is that it is at war with the tenets of Lockett and the notion of individual sentencing.   On the one hand, we have a line of precedent that says juries are the ultimate arbiters of punishment decision making (Ring, Lockett) because they must make both a factual and moral determination regarding what is appropriate punishment for any individual defendant.  On the other hand we have precedent and proposed legislation that suggests that juries are untrustworthy to make those decisions.    The question that begs from modern Eighth Amendment jurisprudence is why do we have juries anyway? 

News Scan

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9th Circuit Panel to Review Travel Ban:  A three judge panel of the Ninth U.S. Court of Appeals will hear oral argument today regarding District Judge James Robart's order to block enforcement of President Trump's temporary ban on immigrants from seven Middle Eastern countries.  Andrew McCarthy of National Review reports that the panel consists of Judges William Canby, a Carter appointee, Michelle Friedland, an Obama appointee, and Richard Clifton, a Bush appointee.  After ordering written briefs be submitted yesterday, the panel will hear oral argument via conference call.  The story notes that "the law is strongly on Trump's side, but that may not make any more difference to the famously left-leaning Ninth Circuit than it did to Judge Robart."  

What's an Abolitionist to Do?

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There must be something in the water in Ohio.  

First, it gave us the Wendell Callahan multiple child murder  -- Callahan having been out on the street to commit this atrocity courtesy of a slickly engineered early release from his federal drug trafficking sentence. More than any single case last year, Callahan's stuck a fork in the prospect for broad-based federal sentencing reduction:  Once the previously glossed-over but stomach-churning human costs of early release hit the newspaper, sentencing reformers had to face reality.

Now, Ohio gives us the quintessential case for preserving capital punishment as the only even arguably just sentence in some cases.  The redoubtable Doug Berman brings us the story: "The hardest case for death penalty abolitionists:  convicted murderer who keeps murdering while in prison."
An op-ed in the WSJ makes this case convincingly, here.   It gets to the point quickly:

Moderates could do a lot worse than Judge Neil Gorsuch--and we probably will if he isn't confirmed. Donald Trump is clearly determined to nominate a judicial conservative to the Supreme Court. Elections have consequences, as Barack Obama once chided congressional Republicans.

Republicans control both the White House and the Senate, and the idea that they will allow Democrats to, in effect, designate the next Justice to accord with their own policy preferences is a fantasy.  If left-wing petulance forces Sen. McConnell to change the rules to "go nuclear," what, exactly, does the Left think is going to happen next?  

Here's a clue:  Needing only 50 votes next time (with Vice President Pence as the tie-breaker), Trump may feel free to name a more doctrinaire nominee than he has now.  Justice Breyer is 78; Justice Kennedy is 80; and Justice Ginsburg is 83.  The likelihood of at least one additional vacancy for Trump to fill, and possibly three, is anything but remote.

Still, if the Left wants to dig in its heels, it's fine with me.  Three more Clarance Thomases will warm the cockles of my cold, textualist heart.
Wondering why the Senate leadership has not held the confirmation vote for Jeff Sessions as Attorney General yet?  Ted Barrett and Tom LoBianco at CNN suggest an answer.

The nomination of Betsy DeVos for Secretary of Education has been scheduled for tomorrow.  Two Republican Senators have bailed.  If the vote is 50-50, Vice President Pence will cast the tie-breaking vote, the first such Veep vote on a cabinet nominee in history.

If that vote came in the gap between Senator Sessions resigning from the Senate to take the helm at DoJ and Gov. Bentley's naming of a successor, Ms. DeVos's nomination would go down 50-49.
The U.S. Court of Appeals for the Ninth Circuit issued the following order today in State of Washington v. Trump et al., No. 17-35105:

The State of Hawaii's emergency motion to intervene (Docket Entry No. 21) is denied for the purposes of this appeal only. The State of Hawaii's motion for leave to file an amicus curiae brief (Docket Entry No. 21) is granted. The State of Hawaii's amicus brief has been filed.

Appellants and appellees shall appear by telephone for oral argument on Tuesday, February 7, 2017 at 3:00 p.m. PST. Each side will be permitted 30 minutes of argument time. Call-in instructions will be provided to the appearing parties. A recording of the oral argument will be made available to the public promptly following the conclusion of oral argument.

All other pending motions will be addressed by separate order.
The court's case information page on this "case of interest" is here.
The Federalist Society teleforum with Bill Otis and Carol Steiker, previously noted here, here, and here, is now available as a podcast.

News Scan

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Mayor Declares Prospect Park Sanctuary: The mayor of Prospect Park, New Jersey, Mohamed Khairullah, has signed an executive order to declare Prospect Park a sanctuary city for illegal immigrants. According to Fausto Giovanny Pinto at NJ.Com, the order was signed last Friday and allows for equal protection for all borough citizens regardless of immigration status. Ken Carson at the Observer reports that the order states; "No department, committee, agency, commission, officer or employee of the Borough of Prospect Park shall use any Borough funds or resources to assist in the enforcement of Federal Immigration Law." This move comes just one week after President Trump's executive orders on immigration.

Miami Police Officer Shot: A Miami police officer was shot Saturday while responding to reports of an armed suspect wearing a mask. Monique O. Madan at the Miami Herald reports that a Miami resident called the police at about 11:30 pm Friday night, reporting that a man wearing a mask was outside her home brandishing a firearm. When the police arrived, a K-9 officer and his dog began the search and found the suspect in an uninhabited house nearby. Upon discovery, the suspect opened fire on the officer, hitting him at least once. The officer is recovering currently from non-life-threatening wounds. The suspect was found dead in the house early Saturday morning.  It is not clear whether he committed suicide or died from return fire.

Chicago Draws Federal Attention: The ATF may be weighing the possibility of assigning an increased number of personnel to Chicago in the midst of the ever growing problem of violent crime within the city. Andrew Blake at the Washington Times reports  that the bureau could be planning to send as many as 20 agents to the Windy City to "beef up" the federal enforcement presence in hopes of curtailing the violent crime surge present there. Plans have yet to be finalized as to what action the ATF will take.

Paroled Sex Offender at it Again: A man is facing charges of sexual abuse after being discovered in the room of a 16-year-old girl and its not his first offense. Emily Sinovic at KOIN 6 News reports Themba Kelley was arrested on July 26 after another incident in his lengthy history of crimes. Kelley's rap sheet includes 5 felonies, 9 misdemeanors and multiple parole violations. This most recent offense took place only 3 weeks after he was released on parole. One of the fathers of Kelley's past victims says that he is angry with the system for allowing this man back in to society over and over.


I do not yet have a link to the full recording of yesterday's teleforum debate about the impact of the recent elections on the future of the death penalty.  In the interim, I want to post what I wrote out for my opening statement.

As Kent noted in following up, one of the central questions in this discussion is:  Who gets to decide the issue?  In a matter of this moral gravity, should ordinary voters have a chance to decide for themselves (as they did in Nebraska, Oklahoma and California), or should the decision be reserved to the ruling classes?

I addressed that in my opening remarks, as you can see after the break.
A year ago, the U.S. Supreme Court reversed decisions of the Kansas Supreme Court overturning death sentences in two cases, the infamous Carr brother and Sidney Gleason.  The decision is here.  CJLF's press release is here.  CJLF's brief is here.

Today, Amy Renee Leiker reports for the Wichita Eagle:

A divided Kansas Supreme Court said Friday that it will uphold the death sentence of a man it previously overturned, according to a news release.

The U.S. Supreme Court ordered the Kansas Supreme Court to take a second look at Sidney Gleason's case early last year after hearing oral arguments in it and the cases of killers Jonathan and Reginald Carr in October 2015. A Barton County jury gave Gleason a death sentence for killing Mikiala "Miki" Martinez and her boyfriend, Darren Wornkey, in 2004 to keep her from telling authorities about an armed robbery.

"The decision today affirms the conviction and death sentence based on a Barton County jury's findings and moves this case along one step further. The wheels of justice are turning," Kansas Attorney General Derek Schmidt said in an e-mailed statement after the ruling was announced.
The decision is here.


You Go Back, Jack, Do It Again

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Guillermo Contreras reports for the San Antonio Express-News:

Robert Gill, whose life sentence for cocaine and heroin distribution conspiracy was commuted by President Barack Obama and expired in 2015, was back before a federal magistrate on another drug charge.
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Gill is charged by Homeland Security Investigations with possession with intent to distribute 500 grams or more of cocaine. He faces 5 to 40 years in prison now.
That's the steely reality of clemency.
The Federalist Society teleforum with Bill Otis and Carol Steiker is going on now.  See Bill's post earlier today.  Explaining the difference between legislative action on this issue and popular votes, Professor Steiker actually said, in essence, that the ignorant regular people don't know what they are doing, unlike their enlightened and informed representatives.

Actually, I think it tends more the other way.  The anti-death-penalty movement has the benefit of funding to create an entire organization just to do [dis]information, plus they have left-wing academia on their side.  With these advantages, they have snowed the legislatures with a lot of misleading half-truths.  The pro side has no such organization.  (CJLF's budget is comparable to DPIC's but death penalty information is maybe 5% or our work versus 100% of theirs.)  The few academics who publish articles refuting the anti-DP myths are bullied out of the field.  That is why we aren't seeing much in the deterrence area, for example.

Another factor is that legislators tend to be financially well-off people who live in safe neighborhoods and are much less likely to become victims of violent crime.  It is easier to be soft on crime when it is unlikely to affect you or anyone you know, but mostly those people on the wrong side of the tracks.

I will continue to trust the Great Unwashed more than I do the politicians.  The history of the initiative here in California shows that the people are not always right, but they are right more often than the politicians. 

The teleforum will be available as a podcast later.  We will post a notice here when it is.

Lawyers: Security Too Tight on El Chapo

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It does not get much better than this...Lawyers for the notorious drug kingpin and murderer Joaquin "El Chapo" Guzman, who is in the U.S. because the highest security Mexican prisons could not hold him, whined to a federal judge today about the security at a federal prison in Manhattan being too tight. Tom Hays at the AP reports that Guzman's lawyers complained that the restrictions placed upon their client are making it difficult for them to make decisions about this defense.  Guzman is allowed to talk with his lawyers on the phone, and has met with them. But the lawyers complain that guards won't allow him to meet with his common-law wife, keep him in his cell 23 hours a day, and did not bring Guzman water during one meeting with them.  They also complained that the guards violated his rights by denying him a shovel (just kidding).  The judge turned them down.  

CJLF Website Maintenance

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CJLF's main website, www.cjlf.org, may be inaccessible at times this evening and weekend due to a system configuration change.  It should be fully accessible by Monday morning.
Scott Calvert and Jon Kamp report for the WSJ:

A Delaware prison uprising ended Thursday with a longtime correctional officer dead, after a tactical team stormed a building taken over by inmates who had held four employees hostage the day before.
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Prison officials offered no details on the death of Sgt. Steven Floyd, 47 years old, a 16-year veteran who was found unresponsive and pronounced dead at the James T. Vaughn Correctional Center in Smyrna, Del., early Thursday morning.

Delaware Gov. John Carney called for an investigation to determine what happened and said the responsible parties would be held accountable.

And how exactly are you going to hold them responsible, Governor Carney, if it turns out that the group includes persons already sentenced to life in prison?  Give them another life sentence?  Make it "consecutive"?  Lives are issued one to a customer; there is no consecutive.

Delaware has the death penalty in theory, but it does not have it in practice.  The Delaware Supreme Court wrongly held that Hurst v. Florida rendered the state's death penalty law unconstitutional.  At the time, I asked the rhetorical question, "Does Delaware Attorney General Matt Denn have the requisite vertebrae to petition for certiorari?"  Alas, the answer is no.

How about pushing through a bill to not only restore the death penalty but to expedite the review process?

News Scan

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Malicious Motorist Gunned Down: A female police officer in Arlington Texas was run over by a suspect attempting to evade arrest Wednesday night. Fox News reports that the officer made a routine traffic stop only to find that the driver 23-year-old Travis Crane was wanted in Dallas County for felony evading arrest and a probation violation. When the officer returned to the vehicle to arrest the suspect, Crane put his vehicle in reverse and ran her over. He then hit the officer again as she tried to escape. Backup arrived and shots were fired, killing Crane and leaving the additional passengers in the vehicle uninjured. The police officer is currently receiving medical care for serious injuries.

Sanctuary Politicians Could Face Consequences: A Colorado Republican lawmaker on Monday announced a bill that would allow victims of certain crimes committed by illegal immigrants to sue politicians who refuse to cooperate with federal immigration authorities. Brian Eason at the Denver Post reports that the proposal would target politicians in "sanctuary cities" like Denver, Boulder, and Aurora, where government officials have announced their refusal to enforce federal immigration laws. The extent to which a citizen can sue politicians is yet to be determined, but the bill would give crime victims the right to file "both civil and criminal complaints" against politicians whose refusal to follow the law left the illegal criminal who victimized them in the community.

More College Protests to Suppress Free Speech:  Violence erupted during yet another College protest to silence a conservative speaker. Ray Villeda of NBC News reports that the Rebel Media host, conservative actor and comedian Gavin Mcinnes was set to give a lecture at the New York University when violent protesters forced their way into the lecture hall. Numerous attendees were assaulted and Mcinnes himself was even pepper sprayed during the commotion. The protesters proved too much to handle for the security staff and the talk was canceled.

The Crack-Down on Illegal Immigration:  Following President Trump's executive orders regarding illegal immigration and the consequences for sanctuary cities who refuse to follow the law, sanctuary cities including New York and Chicago and the entire state of California have vowed to resist any effort to deport illegals who commit crimes in the U.S.  At the same time a movement to crack-down is beginning to spread in other parts of the country. at the Wichita Eagle report that Kansas Secretary of State Kris Kobach has introduced a bill that would require Kansas Highway Patrol to cooperate and assist U.S. Homeland Security efforts to enforce immigration laws. According to Claire Ricke at KXAN news, hundreds of people are flocking to the state capitol of Texas to protest a bill that would require Texas police to cooperate with federal agencies on the enforcement of federal immigration laws.  This includes the campus police at Texas colleges. 



I will have the privilege today of talking with Prof. Carol Steiker of Harvard Law School, a leading scholar and abolitionist, about the implications of last November's election for the future of the death penalty.  The topic is described by the Federalist Society as follows:

In recent decades, there has been much study and debate in the criminal justice community regarding capital punishment and its continued use in most jurisdictions in the United States. Some argue that years of litigation and growing cost have contributed to a new fragility in support for the death penalty and point to polling that reflects decreased enthusiasm for it.  Others assert the November 2016 election results at the state and federal levels demonstrate capital punishment continues to be firmly backed by the public and will remain in place indefinitely. 

The program starts at 2 pm EST.  The call-in number is 888-752-3232.

Law Professors Breaking Bad

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I know from personal experience that adjunct law professors at Georgetown don't make that much, but there have to be better ways to supplement one's income.

Sessions Advances to the Senate Floor

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The full Senate voted today to bring to the floor the nomination of Sen. Jeff Sessions to be Attorney General. The recorded vote was 53-45.  Sessions himself did not vote. Sen. Carper (D-DE) was absent, but has been thought to be a possible vote for Sessions.  Two relatively moderate Democrats from states that voted heavily for Trump, Sens. Manchin from West Virginia and Donnelly from Indiana, also voted for Sessions.

So 53-45 looks to be very close to the final vote for the blessed relief of replacing Loretta Lynch with Jeff Sessions. If this happens in the next five minutes, it won't be too soon.

News Scan

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Rioting at U.C. Berkeley:  Protesters smashed windows and set fires on the U.C. Berkeley campus Wednesday night in a successful effort to cancel a sold-out talk by conservative provocateur Milo Yiannopoulos.  CBSNews San Francisco reports that a crowd estimated at 1,500 gathered at the birthplace of the "free speech" movement in front of the Martin Luther King Jr. Student Union building early in the evening armed with bricks and commercial fireworks to shut down the event.  Among the protesters were masked 'black block" activists who used police barriers to break down one of the doors to the building.  After the event was cancelled the protesters moved off campus to the busy Telegraph Avenue area to smash the windows of several banks and attack motorists stopped at traffic lights.  There were several reported injuries, and video of a young female Trump supporter talking to a reporter who was pepper-sprayed in the face by one of the protesters.  

One Dead In Delaware Prison Riot:  A riot which began Wednesday morning at Delaware's largest prison ended early Thursday morning, leaving one corrections officer dead.  ABC Action News reports that at around 10:30 am Wednesday, inmates took control of building C of the James T. Vaughn Correctional Center and held dozens of hostages including three corrections officers and a female counselor.  Over the 20 hour standoff, 46 hostages were released.  At about 5:00 am Delaware State Police used a backhoe to breech the building and end the standoff.  Corrections Sgt. Steven Floyd died was found unresponsive and was later pronounced dead. During the standoff one of the inmates telephoned a reporter at the Wilmington News Journal to explain "for doing what we're doing" included "Donald Trump. Everything that he did. All the things that he's doing now. We know that the institution is going to change for the worse."

Trump's Immigration Order:  Since last Friday's announcement of President Trump's executive order suspending immigration from seven majority Muslim countries infected with terrorism, the national media and several politicians have called it an illegal Muslim ban.  Several entries on this blog have effectively addressed these claims, as does Manhattan Institute scholar Heather MacDonald in this city journal piece.  But MacDonald also notes that the announcement of this order was poorly timed and  planned, providing the President's opponents the opportunity to define it in their own terms. 
 
The WSJ has this editorial with the above title:

The "theft" is supposedly the GOP Senate's refusal last year to vote on President Obama's nomination of Merrick Garland to fill Antonin Scalia's seat. But the standard of not confirming a Supreme Court nominee in the final year of a Presidency was set by . . . Democrats. And by no less a Beltway monument than the current Senate Minority Leader, Chuck Schumer.

Another Part of President Obama's "Legacy"

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It goes way beyond merely skyrocketing violent crime in major cities over the last two years.

"Heroin overdose death rates increased by 26 percent from 2013 to 2014 and have more than tripled since 2010," says the January report from the U.S. Centers for Disease Control and Prevention.

More than 47,000 people died from drug-overdose deaths in 2014 alone, including 28,647 from opioids and heroin overdoses. Nearly all of the heroin used in the U.S. is brought across the border by Mexican traffickers, who are nearly always illegal aliens.

The report states:

More persons died from drug overdoses in the United States in 2014 than during any previous year on record. From 2000 to 2014 nearly half a million persons in the United States have died from drug overdoses. In 2014, there were approximately one and a half times more drug overdose deaths in the United States than deaths from motor vehicle crashes. Opioids, primarily prescription pain relievers and heroin, are the main drugs associated with overdose deaths.

The article is here, and, I might immodestly add, quotes me extensively.



Sessions Nomination Moves to the Floor

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News Scan

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CA Sex Trafficking Crackdown: Hundreds of arrests have been made state-wide over the past two days in the course of a concerted effort to combat sex trafficking. According to San Diego Union-Tribune reporter Dana Littlefield the third annual "Reclaim and Rebuild" operation took place across California resulting in hundreds of arrests. More than 160 law enforcement personnel from 16 agencies worked together on the operation.  Officers recovered  28 minors who had been sexually exploited and 27 adult female victims. 142 men were arrested and on charges of solicitation, and 238 women were cited for prostitution.

Judge Upholds Inmate's Death Sentence:  A federal judge upheld the death penalty Thursday in the case of a man who assaulted and murdered a corrections officer. Joe Dolinsky at Times Leader reports that  habitual felon and gang member Jessie Con-ui, 39, faces trial later this year for the 2013 murder of 34-year-old corrections officer and Nanticoke resident Eric J. Williams. Williams was stabbed death at the base of a stairway inside U.S. Penitentiary Canaan in Wayne County. Defense counsel claims thatt there is insufficient evidence but prosecutors note that surveillance footage clearly shows the defendant assaulting the officer and stabbing him with multiple handmade "shanks". 

Missouri Executes 1998 Murderer: One of the men responsible for the 1998 murder of a woman and her two children was put to death Tuesday in Missouri. Jim Salter at the St. Louis Post Dispatch writes that in 1998 Mark Christeson and his cousin approached the home of 36-year-old Susan Brouk, her 12-year-old daughter, Adrian, and 9-year-old son, Kyle, armed with shotguns with the intention of stealing the mother's vehicle. Finding the woman and her children at the home, Christenson took the mother into a bedroom and raped her, while his cousin tied up her daughter and son with shoelaces. The men then took their three victims to a pond where Christeson slit the mother's throat.  As the mother lay bleeding Christeson cut the son's throat and drowned him in the pond, then choked the girl to death.  The men then tossed the still alive mother in the pond where she drowned.  Christenson's death by lethal injection took eight minutes...far less time or suffering than his victims.

Alaska May Reverse Alternative Sentencing Law:  Provisions of a sentencing reform law passed last year to reduce the consequences for co-called low level offenders are being targeted for repeal in the Alaska legislature.  Zaz Hollander of Alaska Dispatch News reports that, according to law enforcement, last year's reforms which sharply cut sentences for thieves, bail jumpers and some felonies, are already causing increased crime.  While the state's Sentencing Commission promised last year that it was only recommending reforms that were "evidence based and backed by data,"  the short term effect has been negative.  Like California and other states which have embraced "evidence based" alternative sentencing, the money saved by the projected reduction in prison and jail inmates is supposed to be used to fund rehabilitation programs.  In California, the projected savings for its massive sentencing reforms never materialized and the state's prison budget has actually increased significantly, along with the crime rate and the operating cost for local jails.  

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