May 2017 Archives

Lest We Forget

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MemorialDayCubSoldier.jpg
Let us all take a moment today to remember those who gave the last full measure of devotion to the cause of freedom.

Insomnia Is for Our Enemies

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This is off topic, but too good to pass up.

Secretary of Defense Gen. James Mattis let one journalist know how accurate his fearless reputation apparently is.

In a wide-ranging interview with CBS' John Dickerson, Mattis was asked, "What keeps you awake at night?"

Without a second to consider, Mattis responded: "Nothing. I keep other people awake at night."

I've been in Washington for over forty years, and that's the best answer I ever heard.

I've often said that Heather Mac Donald is the best in the business for analyzing policy about police practices and sentencing.  She proves it again in her May 25 piece from the Wall Street Journal.  I'll give a three paragraph teaser:

No one who gets caught smoking a joint is going to be implicated by Mr. Sessions's order [requiring prosecutors ordinarily to charge the most serious readily provable offense]. The number of federal convictions for simple possession is negligible: only 198 in 2015. Most of those were plea-bargained down from trafficking charges, usually of marijuana. Last year the median weight of marijuana possessed by those convicted of simple possession was 48.5 pounds. To trigger a mandatory penalty for marijuana trafficking, a dealer would need to be caught with more than 2,200 pounds of cannabis.

[T]he idea that Mr. Sessions's memo will exacerbate racial disparities in prison does not stand up to the facts. Drug enforcement is not the cause of those disparities. In 2014, 37.4% of state and federal prisoners were black. If all drug prisoners--who are virtually all dealers--had been released, the share of black prisoners would have dropped to 37.2%. What truly causes racial disparities in incarceration is racial disparities in violent crime.

Likewise, it is America's higher violent-crime rates overall, not drug enforcement, that cause the country's higher incarceration rates compared with other Western industrialized countries. The U.S. homicide rate is seven times the average of 21 Western developed nations plus Japan; the U.S. gun homicide rate is 19.5 times that average. Americans ages 15 to 24 kill with guns at nearly 43 times the rate of their counterparts in those same industrialized nations.

News Scan

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Man Pleads to 7 Murders to Avoid Death Penalty:  Todd Kohlhepp, arrested last year for keeping a woman chained in a storage container after killing her boyfriend, has pleaded guilty to murdering 6 others in South Carolina to avoid a death sentence.  CBS News reports that under the plea agreement, Kohlhepp will be sentenced to 7 life terms, plus 60 years for the murders, sexual assault, and other charges.  The woman, who Kohlhepp kept chained for two months as a sex slave, said that he told her "as long as I served my purpose, I was safe."  He was released from an Arizona prison in 2001 after serving 14 years for the kidnap and rape of a 14-year-old girl at gunpoint.  Kohlhepp was 15 when he committed those crimes.

LA Sweep Nabs 188 Criminal Aliens:  A 5-day operation by ICE agents targeting criminal aliens has resulted in the arrest of 188 illegal immigrants, 90% of which had prior convictions.  Sarah Parvini and Joel Rubin of the Los Angeles Times report that those arrested had illegally immigrated from 11 countries with the majority (146) from Mexico.  Among the crimes committed by them were drug dealing, domestic violence, DUI, sexual assault, burglary, fraud, auto theft, larceny, manslaughter, prostitution, and incest.  "By taking these individuals off the streets and removing them from the country, we're making our communities safer for everyone," said an ICE official.  While nationally arrests by ICE are up 35%, the number of arrests in Los Angeles are about the same as last year. 

Rape Victim Threatened With Deportation:  A Baltimore defense attorney representing an accused rapist is facing charges for intimidating the victim from testifying with threats that she would be deported.  Katie Mettler of The Washington Post reports that in addition to telling the victim that ICE agents would likely be in the courtroom when she testified and "You know how things are with Trump's laws now," attorney Christos Vasiliades offered the woman and her husband $3,000 if she avoided the trial and his client's case was thrown out.  Apparently acknowledging that his client was guilty, he told the couple that instead of participating in the trial, they should track him down and "kick his ass."

Eighth Time's the Charm

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Hit man and repeat murderer Thomas Arthur was finally executed in Alabama last night after dodging seven prior execution dates.   Kim Chandler has this story for AP.

Arthur filed a last-minute petition in the U.S. Supreme Court, and Justice Thomas (the assigned Circuit Justice for the Eleventh Circuit, including Alabama) granted a temporary stay while the Court considered it.  The Court lifted the stay and denied relief barely in time for the execution to be carried out before the warrant expired at midnight.

The petition had to do with the state's use of midazolam as the first drug of the protocol.  An additional wrinkle was the defendant's request for his lawyer to have a cell phone to make a call if things went badly.  Justice Sotomayor dissented alone.

The midazolam problem is entirely artificial and entirely unnecessary.  The federal government needs to bring down the barriers that are presently preventing the states from importing barbiturates from willing suppliers in Asia.  Is anyone in the government paying attention?

Update:  Kim Chandler and Jay Reeves have this follow-up story for AP on racing the clock.

A Welcome Change

The Association for Los Angeles Deputy Sheriffs has this post with the above title:

As the nation gets ready for Memorial Day, a day to remember the people who died while serving in the nation's armed forces, the past week signaled a welcome change in attitude towards law enforcement from the highest leadership in the nation. From the symbolic act of lighting the White House in blue during that week to an executive action directing a review of federal law that could lead to legislation making it a federal crime to attack law enforcement officers, there has been a sea of change in support for law enforcement.
 
Under the prior administration, law enforcement was often in the crosshairs of a rush to judgment. The pattern that started from the first days with the knee jerk condemnation of Cambridge Police Sergeant James Crowley for "acting stupidly," and continued non-stop with the invitation to the White House of a rapper who had a song dedicated to a fugitive cop killer, or using a police memorial service to defend anti-police protestors and lecture on criminal justice "reform" and gun control. 
Kent noted today's travel ban case, decided in an opinion written by Chief Judge Roger Gregory of the Fourth Circuit.

There is an interesting story about how Judge Gregory got his job.  It contains a warning for Republicans.
One thing that really makes my eyes roll is seeing someone state the question presented in a case in a way that assumes one side of a hotly disputed point and then phrases the "question" as something that no one would dispute based on that assumption.  It's bad enough when advocates do it.  It is inexcusable for a judge to do it.  For the majority of a U.S. Court of Appeals en banc to join an opinion doing that is a head-shaker.  The Fourth Circuit opinion in the travel ban case, International Refugee Assistance Project v. Trump, No. 17-1351, begins:

The question for this Court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866), remains "a law for rulers and people, equally in war and in peace." And if so, whether it protects Plaintiffs' right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.
I don't have time at present to write up a complete analysis of the opinion, but right out of the gate this seems to call for Supreme Court review.

Restitution

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In People v. Martinez (S219970), the defendant's vehicle collided with a 12-year old boy riding on a scooter.  The defendant got out of his truck to check on the boy.  When the boy's mother rushed to the scene, the defendant got back into his truck and left.  The boy sustained multiple broken bones and a traumatic brain injury.  The defendant was uninsured, unlicensed, and on felony probation.  The defendant was soon located and voluntarily came forward admitting his involvement in the accident.

The defendant was charged with one felony count of leaving the scene of an accident (Calif. Vehicle Code 20001(a)).  He pleaded guilty and was sentenced to 3-years imprisonment.  At sentencing, the boy's mother stated that her son hit the defendant's truck and that it was an accident.  The defendant stated that the boy failed to stop his scooter and ran into his truck.  No findings were made regarding the defendant's responsibility for the accident.

The trial court later ordered the defendant to pay $425,654.63 in restitution to the victim's family for medical costs the boy incurred as a result of the accident.  On appeal, the defendant argued, and the Court of Appeal agreed, that
 
because defendant was not convicted for any offense involving responsibility for the actual accident and no factual determination of his responsibility for the collision or the victim's injuries has been made, the court erred in ordering restitution to the victim for treatment of the injuries he received as a result of the accident. 

Today the California Supreme Court also agreed with the defendant holding:

Where, as here, a criminal defendant is convicted and sentenced to state prison, section 1202.4 of the Penal Code (section 1202.4) provides that the defendant must pay restitution directly to the victim for losses incurred "as a result of the commission of a crime" (§1202.4, subd. (a)(1); see People v. Giordano (2007) 42 Cal.4th 644, 651-52 ("Giordano").)  "To the extent possible," direct victim restitution is to be ordered in an amount "sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant's criminal conduct." (§1202.4, subd. (f)(3).)  Application of these provisions depends on the relationship between the victim's loss and the defendant's crime. Here, defendant's crime was not being involved in a traffic accident, nor does his conviction imply that he was at fault in the accident.  Defendant's crime, rather, was leaving the scene of the accident without presenting identification or rendering aid.  Thus, under section 1202.4, the trial court was authorized to order restitution for those injuries that were caused or exacerbated by defendant's criminal flight from the scene of the accident, but it was not authorized to award restitution for injuries resulting from the accident itself.

  

News Scan

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KS High Court Upholds Capital Murder Conviction:  In a unanimous decision announced last Friday, the Kansas Supreme Court upheld the conviction of a man found guilty of the rape and murder of an 8-year-old girl.  Justin Wingerter of the Topeka Capital Journal reports that on March 20, 2012, Billy Davis Jr. kidnapped the child from a sleepover at a friend's house, took her to the basement of his house, and then brutally raped, beat, and choked her to death.  Police later found the little girl's body in the basement stuffed in a dryer.  After his arrest, Davis admitted kidnapping and raping the girl but said he never intended to kill her.  He also admitted to burglarizing several apartments that night.  After Davis was convicted of capital murder and sentenced to LWOP, he appealed, arguing that he was too drunk and high on cocaine to have premeditated the murder.  The court rejected that claim.  

Typical Weekday in ChiTown--8 Shootings:  Four teenage boys were shot between 9:20 p.m. Wednesday night and 1:15 a.m. Thursday morning in Chicago, leaving one dead.  The Chicago Tribune reports that there were six other shootings Wednesday in the city's urban neighborhoods, but none of the victims have died so far.  The fatality was a 16-year-old boy shot in the head around 9:20 p.m. Wednesday on the city's South Side.
 

FBI Director Candidates

A couple of developments on the search for a new FBI Director, as reported in the WSJ:

Rebecca Ballhaus reports:

Former Sen. Joe Lieberman, once a leading contender for FBI director, on Thursday withdrew himself from consideration for the post in a letter to President Donald Trump, citing the appearance of a conflict of interest.

The former Connecticut senator and Democratic vice presidential candidate works at the same law firm as Marc Kasowitz, whom Mr. Trump retained earlier this week to serve on a team of private attorneys representing him in the broad special-counsel probe of Russia's alleged meddling in the 2016 election. "I do believe it would be best to avoid any appearance of a conflict of interest, given my role as senior counsel in the law firm of which Marc is the senior partner," Mr. Lieberman wrote in the letter dated Wednesday ....

Del Quentin Wilber reports:

Top Justice Department officials recently interviewed a former U.S. attorney to be the next FBI director, as the Trump administration continues its search for someone to lead the nation's top law enforcement agency.

That search has been less public during President Donald Trump's current overseas trip, but Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein spoke last week with Ken Wainstein, a top national security official in the George W. Bush administration, according to a person familiar with the selection process.
Kent noted that an unrepentant terrorist will be honored in this year's NYC Puerto Rico Day parade (with Mayor de Blasio proudly marching in step).

Along those same lines, and also from the "you-can't-make-this-up" department, it now seems that Sydney plans to honor Black Lives Matter with a "peace" prize.


The Black Lives Matter movement will receive the Sydney Peace Prize, an award given by the Sydney Peace Foundation -- part of the University of Sydney -- and be honored at an event in the city in November, the foundation announced this week.

Black Lives Matter was chosen for allegedly "building a powerful movement for racial equality, courageously reigniting a global conversation around state violence and racism. And for harnessing the potential of new platforms and power of people to inspire a bold movement for change at a time when peace is threatened by growing inequality and injustice," the foundation's website states.

I registered my dissent.

News Scan

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Prison for Faking Military Record:  A Wisconsin man who falsely claimed he was a Navy Seal wounded in Vietnam in order to get veteran's benefits has been sentenced to four years in prison.  Jeanette Steele of the San Diego Union Tribune reports that 68-year-old Kenneth Jozwiak presented fake discharge papers to Veterans Affairs officials identifying him as a Navy SEAL from 1965 to 1968 who received four Purple Hearts and the Bronze Star.  All of it was fake.  Jozwiak's military service was actually one year in 1967, before he quit and began his lifelong career as a grifter, racking up 120 arrests and scores of convictions.

MS-13 Members Welcomed in 2014:  The Chairman of the Senate Homeland Security Committee told reporters that 16 members of the brutal MS-13 gang were allowed to immigrate into the US in 2014 as part of the Obama administration's program to admit unaccompanied children.  Stephen Dinan of the Washington Times reports that a whistleblower gave the committee Customs and Border Protection documents that indicate that the government was aware that the juveniles were MS-13 members but admitted them under the Unaccompanied Alien Children program, and distributed them to US communities.  Government data shows that 68% of the "children" admitted under the program were between the ages of 15 and 17 and most were males, prime recruits for membership in criminal gangs.  Senator Claire McCaskill, the ranking Democrat on the committee, had "concerns that the documents were released so quickly."

Alabama Killer Tries For 8th Execution Delay:  The state of Alabama is scheduled its eighth attempt to execute murderer-for-hire Tommy Arthur for tomorrow.  Alan Blinder of the New York Times reports that Arthur was convicted in 1983 for the murder-for-hire killing of a man whose wife payed him $10,000.  When he committed that murder in 1982 he was on work- release for a previous murder.  Since his conviction Arthur has won delays of his execution seven times, winning two new trials and five appellate rulings allowing additional review on his claims including incompetent counsel, failure to consider evidence and challenges to the state's execution method.  The New York law firm of Sullivan & Cromwell, with is representing Arthur pro bono, is currently filing petitions seeking an eighth delay.   

News Scan

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The Manchester Bombing:  As expected, the suicide bomber who exploded a bomb killing 22 (so far) at a concert in Manchester was a young Muslim.  Fox News reports that British police identified the bomber as 22-year-old Salman Abedi.  ISIS has already taken credit for the shrapnel bombing of children and young girls attending the Ariana Grande concert.  Another young Muslim man has also been arrested for suspected involvement in the incident.  The question must again be asked, is Jamelle Bouie correct in asserting in his Slate article earlier this month that the real motivation for the President's effort to more thoroughly vet Muslim immigrants is racism, or is it about preventing terrorists from blowing up innocent little American girls.

Celebrating Murder

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Seth Barron writes in the City Journal:

The announcement that the 2017 Puerto Rican Day Parade would honor seditionist and Puerto Rican independentista Oscar López Rivera as a "National Freedom Hero" has led several sponsors of the parade to withdraw their endorsements. López Rivera was a leader of FALN, which conducted a campaign of deadly bombings around New York City and Chicago in the 1970s, and he was recently released from prison after having his 75-year sentence commuted by President Obama. Goya Foods, a significant backer of the parade for its entire 60-year history, has backed out, as have the NYPD Hispanic Society, the Patrolmen's Benevolent Association, and the other police unions representing the NYPD senior ranks. NYPD commissioner James O'Neill announced this afternoon that he will not march in the parade because he deems Lopez Rivera a "terrorist."

In response, city council speaker Melissa Mark-Viverito today held a "rally to defend the parade," though the parade itself is not in need of defense, its only sticking point being the inclusion of a convicted terrorist as guest of honor. About 50 ardent supporters of Rivera assembled in a meeting hall at the headquarters of 32BJ, the building-service workers local of labor powerhouse SEIU, where they displayed banners and chanted, "We stand with the Puerto Rican Parade/Oscar López is our hero today!"
No one doubts that the increased use of mandatory minimum sentencing laws has contributed, likely significantly, to the big increase in the prison population from 1990-2010 (it has dropped since then).

The next question crucial to our sentencing debate, then, is how much has increased incarceration contributed to the astonishing drop in crime over those 20 years (and astonishing is the right word, see this table showing that crime rates fell by nearly half).

Obviously, if increased incarceration accounts for only a small part of the falloff in crime, then the case for easing off on the use of prison becomes stronger. Conversely, if more prison has been a big driver of plummeting crime, the country justifiably will be more hesitant to go back to the softer policies that brought us the crime explosion in the quarter century before 1990.

This central question has been studied.  How much does increased incarceration contribute to the drop in crime?  What do the data say?
A little less than a month ago, I discussed the preliminary injunction issued by the federal district court in San Francisco regarding the section of President Trump's Executive Order 13768 that deals with so-called sanctuary cities and federal grants.  Judge Orrick badly misconstrued the order for the evident purpose of striking it down, and he refused to accept the reasonable interpretation that was offered by counsel for the government and was entirely consistent with the text.

I have been working on an amicus brief arguing for reversal of this ill-considered injunction and wondering what was taking the government so long to file its notice of appeal.  This afternoon I got the answer.

Attorney General Sessions has issued a memorandum on the implementation of the defunding provision of the Executive Order.  The memorandum clarifies several important points:

  • The provision applies only to grants administered by the Departments of Justice and Homeland Security.  Grants for health care, education, and other purposes from other departments are not affected.
  • A "sanctuary jurisdiction" for the purpose of the defunding provision (§9(a)) is one that "willfully refuse[s] to comply with 8 U.S.C. 1373."  That statute forbids a jurisdiction to prohibit information sharing regarding immigration status.  It has nothing to do with policies against honoring ICE detainers.
  • Conditions of §1373 compliance will only be placed on future grants when a statute authorizes DoJ or DHS to do so.  The Executive Order does not and does not purport to authorize the executive branch to impose new conditions not authoritized by statute.
  • Grants previously issued without §1373 compliance conditions are not going to be clawed back.
Most of this was clear enough at the time the injunction was issued, but the issuance of an official document to this effect further undercuts Judge Orrick's already shaky order.

Flynn Taking the Fifth

Byron Tau reports for the WSJ:

Former national security adviser Mike Flynn will decline to cooperate with a Senate subpoena, invoking his constitutional right against self incrimination and setting off a legal showdown with Congress over a key witness in its investigation of alleged Russian interference in the 2016 election.

According to a person close to him, Mr. Flynn planed to tell the Senate Intelligence Committee later on Monday that he won't comply with the panel's request for documents, citing the Fifth Amendment's protections against self incrimination. Mr. Flynn is expected to inform the committee of his decision in a letter, through a representative.

News Scan

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WA Supreme Court Upholds Death Sentence:  In an 8-1 decision announced Friday, the Washington Supreme Court upheld the death sentence of Cecil Davis for the 1997 murder of Yoshiko Couch.  The Tacoma Weekly reports that after he was convicted and sentenced for rape, robbery, and murder of the 65-year-old woman, his death sentence was set aside for a trial error in 2004, and reinstated after a new sentencing trial in 2007.  Friday's decision rejected Davis's claim that the Washington's death penalty is unconstitutional because it does not require a jury to find, beyond a reasonable doubt, that a defendant facing the death penalty does not have an intellectual disability. 

Illegal Meth Traffickers Arrested:  Two illegal immigrants were arrested in an Ohio drug bust last week, which recovered cash and enough methamphetamine for 3,600 doses.  NBC4 Columbus reports that 33-year-old Francisco Torres-Davilla [sic] and 27-year-old Ramon Sanchez-Reyes admitted to sheriff's deputies that they were in the U.S. illegally to sell drugs.  Butler County Sheriff Richard Jones told reporters "that wall can't go up fast enough."  In March, the Washington Post reported that there were so many fatal drug overdoses in Ohio that one county coroner was using a cold-storage trailer as a temporary morgue.  According to the Ohio Department of Health, the number of opioid-related deaths skyrocketed from 296 in 2003 to 2,590 in 2015 -- a 775% jump over a 13-year period.

Why Baltimore Is a Murder Vortex

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It's no longer disputed (if it ever was) that Baltimore has seen a staggering increase in murder at least since the politically-staged Freddie Gray prosecutions of six police officers.  This was the city where the then-Mayor, Stephanie Rawlings-Blake, told us that rioters and arsonists should be given "space to destroy."  (Ms. Rawlings-Blake later went on to fame when she was chosen to open the Democratic National Convention).

One might wonder why, exactly, Baltimore has become a murder vortex to an even greater extent than in the past.  I can't say for sure.  One reason is likely to be the handicapping of the police, most vividly on display with the aforementioned Freddie Gray prosecutions, and more recently backed up by the consent decree engineered by Obama administration lawyers in order to benefit drug dealers insure civil rights.

A second, more deep-seated and in a way even more appalling reason is captured by the news story whose first line is:  "A Project Baltimore investigation has found five Baltimore City high schools and one middle school do not have a single student proficient in the state tested subjects of math and English."

No FBI Pick For Now

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Darlene Superville reports for AP:

After saying he was "very close" to naming a new FBI director, President Donald Trump boarded Air Force One on Friday for his first foreign trip without making any comment about the future leadership of the law enforcement agency.

The White House said earlier in the day that no announcement would be made.

The Washington Examiner has this editorial:

President Trump's last minute decision to put off the selection of a new FBI director until after his overseas trip is a good sign, perhaps even an indication that he's learned something and avoided making a mistake.

In the last two days, the strange choice of former Democratic Sen. Joe Lieberman had been floated as a trial balloon. It seemed like a very bad idea, and perhaps Trump has ultimately decided to deflate it. The choice of the 75-year-old Lieberman -- who, remember, addressed the 2008 Republican convention, and also recently wrote a letter of recommendation for Jeff Sessions as attorney general -- was never going to placate Democrats, if that's what was intended.

Right Man, Wrong Job

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There are news reports that the President is considering former Sen. Joe Lieberman as the next FBI Director.

Lieberman is a person of integrity and high character, schooled in the ways of Washington, and he has respect in Congress.  All are valuable qualities.  But he is not the man for this job.

The head of the FBI needs extensive experience in law enforcement, preferably federal law enforcement.  Sen. Lieberman has none.  He was at one point, many years ago, Attorney General of Connecticut, but that's it.  He is a respected political figure, but at this moment, the FBI needs someone who is not a political figure in any way at all.

People of equally high integrity and no political valence are available.  I have named two, Judge Julie Carnes of the Eleventh Circuit and former DEA Administrator Karen Tandy.  I hope the President will look in their direction.

News Scan

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The Worst Kind of Racism:  A piece by Heather MacDonald in yesterday's City Journal calls out the "Black Lives Matter" movement and the mainstream media for the racist hypocrites that they are.  Citing the example of a black habitual felon who beat another black man to death with a liquor bottle last November, which did not make the news even though the murder was caught on video, she correctly notes that "if a white man had beaten a black man to death it would have been international news.. But the routine taking of black lives by other blacks generates no interest in the mainstream media."  Last year 4,300 mostly black people were shot in Chicago.  The overwhelming majority of the shooters were black habitual criminals.  Apparently these black lives don't matter.

Three Teens Face Capital Murder Charges:  Two 17-year-old males and a third, whose age was not reported, will be arraigned Monday for the murder of a 6-year-old boy in Mississippi.  Fox News reports that the three males were caught on security cameras stealing a woman's car from a supermarket parking lot on Thursday.  The woman's 6-year-old son was in the car, which had been left running and unlocked while she was in the store.  Hours later the car was found abandoned with the little boy's body in the back seat.  He apparently died from a gunshot wound to the head.  Witnesses and the video helped police identify the suspects.  In Mississippi a-17-year old charged with capital murder is tried as an adult.  Although the crime is designated "capital" under state law, U.S. Supreme Court precedent precludes the death penalty for murderers under 18 at the time of the crime.
    
The Washington Post has printed on its editorial page a few of my remarks commending the charging policy Attorney General Sessions issued last week for federal prosecutors.  I appreciate the Post's  willingness to air a competing point of view.  

The piece was written as an op-ed, but was considerably shortened when the Post published it, and omits some of the points I believe merit attention

The piece as originally submitted argues:

Contrary to the Post's May 13 editorial ("It's time for federal sentencing reform"), Attorney General Sessions made the right call in restoring a long-honored standard for bringing criminal charges against those who profit from the ignorance and misery that fuels drug trafficking.

Editorials Impersonating News

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The New York Times, more unabashedly than perhaps any other MSM outlet, is a cheerleader for less accountability for criminals.  It is, more specifically, a reliable shill for "sentencing reform"  --  which, it says (quoting only its usual stable of True Believers), continues to have "momentum" notwithstanding its wipe-out in Congress followed by Trump's election. 

The Times' "news" article is here. Actually, it's a poorly disguised editorial trying to sell itself as news.  (This apart from the fact that it isn't even new  --  it's a re-tread of exactly the same sentencing reform rah-rah we've been hearing for months).

I could do my same-old rebuttals to its same-old bolstering, but it would be tiring. Instead, I'll take just one paragraph and see how it might be re-cast by someone who'd like to see something closer to the truth.

News Scan

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Criminals Game CA Sentencing Laws:  Over the past six years, California has passed three major sentencing laws geared to keep criminals out of state prison.  Over that period, 45,000 mostly habitual felons have been released into communities.  Jessica Rosenthal at Fox News reports that, while criminals whose most recent conviction was for a property or drug crime are released from prison to light supervision on county probation, the serious and violent criminals released to the more intense supervision on state parole are taking advantage of a major flaw in the state's sentencing scheme to get off parole.  The trick....commit a new crime.  The reporter says they can get off parole for committing a misdemeanor, but it is worse than that.  Because CA law does not allow prison for virtually any property or drug felony, and even crimes like assault, anyone convicted of one of these crimes receives a short county jail sentence and is released on probation.  The result...criminals on parole are stealing a car or burglarizing a business in order to get the lighter supervision.  Two legislators, a democrat and a republican, have introduced a bill to require the state parole board to look at a criminal's entire record to determine the level of supervision on which he should be placed.  This a very modest reform that won't affect thousands of criminals who are released administratively or criminals who do not commit violent crimes.
The California Court of Appeal for the Fifth District (Fresno) yesterday decided People v. Marquez, F070609.

Mental Health in the Big Apple

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Mental disorders and their treatment (or non-treatment) are related to issues of crime and incarceration, so C&C readers might be interested in this article by Stephen Eide in the City Journal.

Since the 1960s, America has faced an epidemic of serious mental illness that represents a shameful chapter in social policymaking. Hundreds of billions spent on "mental health" programs have left many untreated, fated to eke out a pitiful existence on the institutional circuit of jails, homeless shelters, and psychiatric hospitals. We often take for granted that modern times are gentler than the dark days of the thumbscrew, lynchings, and public executions. Yet we have allowed scores of tormented men and women to suffer and die on city streets every year.
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New York mayor Bill de Blasio has made improving New Yorkers' mental health a priority of his administration, but his ThriveNYC program repeats too many of the mistakes of the past and will deliver too little assistance to those in greatest need. Promising a "comprehensive solution to a pervasive problem," ThriveNYC relies on an overly expansive definition of mental health and lacks focus. While de Blasio claims that public confusion about the nature of mental health makes matters worse, his plan will increase that confusion by blurring the lines between mental illness in its serious and mild forms, making too much out of "stigma," and emphasizing prevention over treatment. De Blasio has committed more than $800 million to ThriveNYC, but these resources are spread too thin, across too many priorities. A better approach would focus more on helping the seriously mentally ill and less on ideological and political concerns.
The oral argument before the California Supreme Court in the suit challenging Proposition 66, the death penalty reform initiative, is set for Tuesday, June 6 at 9:30 a.m.

California's nomadic Supreme Court hears arguments in Sacramento and Los Angeles as well as its headquarters in San Francisco, and this argument date is in L.A.

That's D-Day, appropriately enough.  We are anxious to head south, storm the beach, and engage in the battle, hopefully winning a major victory for justice.
Del Quentin Wilber and Aruna Viswanatha report for the WSJ:

Former FBI Director Robert Mueller III was appointed as special counsel to oversee the FBI investigation of the Russian government's efforts to influence the 2016 election, the Justice Department said.

Deputy Attorney General Rod Rosenstein announced the appointment because Attorney General Jeff Sessions recused himself from any investigation related to the 2016 race. Mr. Rosenstein said in a statement that "I determined that it is in the public interest for me to exercise my authority and appoint a Special Counsel to assume responsibility of this matter."

Mr. Rosenstein, who signed the order on Wednesday, cautioned that his decision wasn't the result of a "finding that crimes have been committed or that any prosecution is warranted."
Update:  The DoJ press release is here. The appointment order is here.
Sarah Le has this article with the above title in the Epoch Times:

Crime has been going up in California, and some members of law enforcement and their support organizations are blaming a series of changes to California's criminal justice system in recent years.

Violent crime in California increased 10 percent and property crime increased 8.1 percent from 2014 to 2015, according to the California Office of the Attorney General. In Los Angeles, violent crime increased three years in a row, rising 69.5 percent since 2013, according to the Los Angeles Police Department (LAPD).

"Our city has experienced a steady crime increase in almost all categories," said LAPD Sergeant Jerretta Sandoz, vice president of the Los Angeles Police Protective League, in a press release.

*       *       *
Michael Rushford, president of the nonprofit Criminal Justice Legal Foundation, said: "If you have a fire and you pour more gas on it, you get more fire. The gas in this case is the release of criminals into the communities and changes in laws that reduce the consequences for new crimes."

"Now we're leaving habitual felons in the counties, and they're evolving into violent criminals," he said.

FBI Director Candidates

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The WSJ reports:

President Donald Trump is meeting on Wednesday with four candidates to lead the Federal Bureau of Investigation, including Acting Director Andrew McCabe and former Sen. Joe Lieberman, the White House said Wednesday.

...  Press secretary Sean Spicer said the other two candidates Mr. Trump will meet with are former FBI official Richard McFeely and former Oklahoma Gov. Frank Keating.

Sen. Lieberman would be a politically interesting choice, but he has neither law enforcement nor prosecutorial experience.  He was Attorney General of Connecticut, but as I understand the way responsibilities are divided in Connecticut, that isn't really a prosecution office.  Further, even Democrats say that this is not the time, if there is any, to appoint a politician to this post, even one of their own.  Sen. John Cornyn and Rep. Trey Gowdy have already withdrawn from consideration.

I like the idea of picking someone "up from the ranks," though I don't know enough about Mr. McFeely to make an endorsement.

They'll Say Anything, Part Ten Zillion

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The Brennan Center is a far left organization that occasionally tells us the truth, as it did in revealing the extent of the murder spike over the last two years:  "With violence at historic lows, modest increases in the murder rate may appear large in percentage terms. Similarly, murder rates in the 30 largest cities increased by 13.2 percent in 2015 and an estimated 14 percent in 2016."

Oh, OK. That would be that, in our 30 largest cities, murder has increased by more than a quarter in the last two years  --  the biggest spike over the shortest time in American history.

But the Brennan Center is undeterred.

Legal Academia and the Time Machine

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This post notes the findings of drug legalizer Jacob Sullum and UC Irvine criminologist Mona Lynch.  The main point argued is that the Sessions charging memo will have less effect than had been thought at first.  This is because drug pushers theoretically eligible to avoid a mandatory minimum under the more lenient, Eric Holder regimen often were never going to get one anyway, either because they qualified under the long pre-existing statutory Safety Valve, or because they assisted the government.  I believe this conclusion is correct.

The point I want to make stems from the following paragraph discussing Prof. Lynch's view that the impact may indeed be limited, and may

...only increase the divide between jurisdictions that collectively eschew aggressive federal drug prosecutions and those that dive back into the harsh practices of an older era.

The words "older era" struck a chord.  As the post notes four paragraphs earlier, the "older era" was the period before the date Eric Holder issued his charging policy.  That would be August 2013  --  three years and nine months ago.

I grew up in day of hula hoops and the Beatles.  To say that 2013 marks the "older era" truly warms the cockles of my cold, old, law-and-order heart.  
In 1992, J.W. Ledford murdered Dr. Harry Johnston in Murray County in northwest Georgia.  As long-overdue justice for this crime approached, Ledford's lawyers argued that execution with pentobarbital (the preferred drug, which Georgia still has as other states run out) would be excruciatingly painful in his case because his long use of a painkilling medication had raised his tolerance level.  Kate Brumback has this story for AP.  It was a far-fetched claim, given that lethal injection involves a massive overdose.  So how painful was it?

Records from past executions show that the lethal drug generally starts flowing within a couple of minutes of the warden exiting the execution chamber. Ledford raised his head to look at his right arm right after the warden left and about a minute later appeared to speak to a guard to his right.

He then rested his head, closed his eyes and appeared to take several deep breaths before falling still within two or three minutes of the warden leaving the room.
In other words, the pentobarbital worked exactly as it should have.

Let's not forget what Ledford did to deserve his punishment.

News Scan

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Legal Pot Floods Town With Vagrants:  According to residents, legalized recreational marijuana has turned the Colorado town of Durango into a haven for homeless vagrants and panhandlers.  Joseph Kolb of Fox News reports that the picturesque mountain town on the New Mexico border has been overrun with transients, panhandlers and homeless drug addicts. While many of the new visitors are coming from New Mexico, where pot is not legal, others have come from as far away as New York.  The city recently settled a lawsuit with the ACLU allowing the homeless to panhandle.  With residents now routinely finding syringes in the streets, one local said "..I don't feel safe here anymore."   

Military Leaker Released 28 Years Early:  Chelsea Manning the transgender formerly known as Bradley Manning, has been released from prison after serving seven years of a 35-year sentence for releasing hundreds of thousands of classified military and diplomatic files in 2010.  Charlie Savage of The New York Times reports that Manning's release was the result of President Obama's commutation of her sentence as he was leaving office.  Her support network has raised $138,000 to help with her transition into private life.  Private Bradley Manning was a low level intelligence analyst for the Army when he decided to release the classified data to WikiLeaks, hoping to inspire "worldwide discussion, debates and reforms."   

The Life and Death of Comic Books

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I'm happy to report that I know almost nothing about pop culture.  One of the things I was lucky enough to miss out on was a comic book series, now defunct after just two weeks of dismal sales. backed by anti-police activist Ta-Nehsei Coates.  The comic portrayed police as sadistic villains who earn the contempt of virtuous people.

LifeZette has the story, quoting Heather Mac Donald:

Ta-Nehesi Coates may be the darling of the liberal elites in publishing houses and college campuses, but comic book readers have a better BS detector for separating fact from fiction... 

I also took a turn:

It would be a good thing if black lives actually mattered to Black Lives Matter, but apparently this is not to be," Otis told LifeZette. "BLM ought to know that the leading cause of death among young black males is murder. What the movement should be doing, then, instead of the comic book business, is advancing programs that reduce the murder rate."

Morning News Notes

Several news items on crime and more-or-less related issues in the WSJ this morning:

Felicia Schwartz reports, "The Trump administration accused the Syrian government of operating a crematorium to cover up what U.S. officials called 'mass murders' at the notorious Saydnaya prison outside Damascus."

Paul Vigna reports that the WannaCry ransomware extortionists got $66,000 in Bitcoin, but actually cashing it in may expose them. 

Question:  How would we punish the extortionists if we catch them?  This is, after all, a "nonviolent" offense despite the fact that it caused many very sick people in Britain to miss medical treatments.  We are constantly assured by The People Who Are Soooooo Much Smarter Than The Rest Of Us that "nonviolent offenders" are per se harmless and of low culpability, so we should let them off with little more than a finger wag.  That is the enlightened and "smart" thing to do, the all-wise and all-good tell us.

Carol Lee and Shane Harris reports on the controversy over President Trump sharing intelligence information with the Russians during a White House meeting last week.

Brett Kendall reports on the oral argument in the Ninth Circuit on the travel ban case.

Repealing the Meaning of Language

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Sen. Rand Paul, a libertarian, has re-introduced legislation called the Justice Safety Valve Act.  His CNN commentary on it is here, although it's a bit fuzzy on whose "safety" is being protected.  (Admittedly, it would do a good deal to promote the interests of drug dealers; how it would promote the safety of this benighted class is less clear).

I want to focus on one paragraph in Sen. Paul's statement:

The legislation is short and simple. It amends current law to grant judges authority to impose a sentence below a statutory mandatory minimum. In other words, we are not repealing mandatory minimums on the books -- we are merely allowing a judge to issue a sentence below a mandatory minimum if certain requirements are met.

Translation:  We're keeping mandatory minimums, just making them non-mandatory.

Is there anyone out there dumb enough to fall for this stuff?
Some of the opposition to the charging policy restored by Jeff Sessions  --  which requires career federal prosecutors ordinarily to charge the most serious readily provable offense  --  has argued that these prosecutors will rebel at the loss of their "discretion," and will balk at following the policy in practice.

Of course, that is an empirical question, so I asked someone who would know. Specifically, I asked Larry Leiser, an AUSA for more than 20 years and President of the National Association of Assistant United States Attorneys. The question I posed to him in an email this afternoon was whether the great majority of AUSA's support Sessions' decision that federal prosecutors should charge the most serious readily provable offense, including offenses that would involve a mandatory minimum sentence if the defendant is convicted.

He gave a one word answer.  "Yes."

Full disclosure:  Larry has been a friend of mine for years, and I knew full well what his answer would be, as would anyone who understands that prosecutors do not spend their time trying to figure out ways to cut breaks to smack pushers.
Immediately after last November's election, two lawsuits were filed by the anti-death-penalty crowd in California.  One of them, in the California Supreme Court, seeks to block the voter-approved reform measure, Proposition 66.  Briefing in that case is completed, and we are waiting with bated breath for oral argument to be set.

The second case was filed by the ACLU in Superior Court in Oakland, Alameda County.  This suit claims that the statute specifying lethal injection as the method of execution and leaving it to the Department of Corrections and Rehabilitation (CDCR) to fill in the details violates the separation of powers.  This thesis has been rejected by courts nationwide except Arkansas.  Seriously, you would have to go all the way back to 1935 and the notorious "sick chicken case" to find such a cramped view of delegation in the federal courts or any but an aberrant few state courts. 

CDCR filed a demurrer.  That's legalspeak for "even if all the facts you allege were true, you would still have no case as a matter of law."  It's a way to get rid of a bogus case at the threshold instead of going to trial.

Judge Kimberly Colwell sustained the demurrer without leave to amend.  That's legalspeak for "You're outta here and don't come back."

The early pages of the order are background and rejecting CDCR's arguments why the court should not reach the merits.  The good stuff is the merits discussion beginning on the bottom of page 8.
The Washington Post has this article:  "Trump to light White House blue to support police who face 'unfair defamation and villifiication'."

Trump's predecessor, President Barack Obama, had struggled to balance his rhetorical support for the police with empathy for the protesters. But Trump has more vocally offered backing to the police.

"We must end the reckless words of incitement that give rise to danger and violence, and take the time to work with cops, not against them, not obstruct them -- which is what we're doing," Trump said.

Trump alluded to violence in cities such as Baltimore and Chicago, saying that poorer, more disadvantaged residents often suffer the most. "We cannot stand for such violence; we cannot tolerate such pain," he said. "My administration is totally determined to restore law and order and justice for all Americans, and we're going to do it quickly."

Actually, President Obama made all too clear that his "support" of the police was, indeed, rhetorical only.  And those who oppose police did not limit themselves just to "protest." For the worst of them, the "protest" was mass murder, as in the Dallas massacre, https://www.nytimes.com/2016/07/09/us/dallas-police-shooting.html?_r=0.


Today was pretty much a nothingburger for SCOTUS criminal law, so readers might be wondering what is left for decision before the Justices clear out of D.C. ahead of the dog days of summer.  Here is a rundown of criminal and related cases remaining.

  • Hernandez v. Mesa, No. 15-118, argued February 21.  Civil case arising out of a shooting by a border patrol agent across the border from El Paso, Texas into Juarez, Chihuahua.  CJLF filed an amicus brief in support of Agent Mesa.
  • Packingham v. North Carolina, No. 15-1194, argued February 27. Restriction of social media access for convicted sex offender.
  • Jennings v. Rodriguez, No. 15-1204, argued November 30.  Bond hearings for aliens detained pending deportation.
  • Ashcroft v. Abbasi, No. 15-1359 and two companion cases, argued January 18.  Suing government officials for detentions in the wake of 9/11.
  • Turner v. United States, No. 15-1503 and companion case, argued March 29.  Brady nondisclosure of evidence issues.
  • Honeycutt v. United States, No. 16-142, argued March 29.  Forfeiture liability in conspiracy.
  • Weaver v. Massachusetts, No. 16-240, argued April 19.  Standard of reversible error for ineffective assistance in regard to a "structural error."  CJLF filed an amicus brief in support of Massachusetts.
  • Lee v. United States, No. 16-327, argued March 28.  Guilty pleas, ineffective assistance, and deficient immigration consequences advice.
  • Los Angeles County v. Mendez, No. 16-639, argued March 22.  Considering provocation in deciding whether police used excessive force.
  • McWilliams v. Dunn, No. 16-5294, argued April 24.  Whether Ake v. Oklahoma requires that expert appointed be an independent one to be on the defense team as opposed to a neutral evaluation reported to both parties.
  • Davila v. Davis, No. 16-6219, argued April 24.  On claim of ineffective assistance of appellate counsel, defaulted on state habeas and raised for first time in federal court, whether alleged ineffectiveness of state habeas lawyer is recognized as "cause" for default, reopening the claim for federal court resolution.  CJLF filed an amicus brief in support of Texas.

Voter ID Case Fizzles

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What should the Supreme Court do when a state has asked it to take up a case but after an election the new governor moves to dismiss the certiorari petition?  Dismissal is generally a given when the party who asked the court to take the case no longer wants it taken, but in the North Carolina voter ID case, North Carolina v. North Carolina State Conference of the NAACP, the legislature moved to intervene, muddying the waters.  The simplest thing to do is what the high court does in 99% of the cases it is asked to take, deny the certiorari petition without comment.

In this case, though, Chief Justice Roberts did add some comments, individually and not for the court.

News Scan

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9th Circuit Reviews Travel Ban Ruling:  A three-judge panel of the Ninth Circuit will hear the government's appeal of a ruling by a district judge in Hawaii who held that the government's temporary halt on immigrants from seven primarily Muslim countries was intended to discriminate against adherents of that religion.  Lee Ross of FoxNews reports that a panel in Seattle will hear argument today supporting the judge's finding that the President's statements during the campaign, rather than the actual language of the executive order, were sufficient to determine that the order is unconstitutional. Update:  Video of the oral argument is available here.

Sex Offender Arrested for Rape of 11-Year-Old:  A habitual sex offender has been arrested for rape of an 11-year-old girl, after eluding Minneapolis police for three weeks.  Nick Ferraro of the Pioneer Press reports that Christopher Blair, 35, was arrested Sunday at a motel in South Minneapolis.  He has been charged with repeatedly raping the girl last September in St. Paul.  In February, a doctor reported that the girl was pregnant.  One of the rapes was in what the victim described as a "parole house."   Blair was released from prison in April 2015 and has a history of attempts to kidnap women while armed.

Open Jobs at Justice

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The WSJ has this feature regarding the filling of Senate-confirmation positions at USDoJ.  There are 2 filled, 4 pending, and 201 without nominees.
Abolitionist Fordham Law Professor Deborah Denno has a book review out endorsing the prediction by another abolitionist, Professor Carol Steiker of Harvard, that the death penalty will be eliminated by the Supreme Court when it "seems right"  --  an intriguing phrase Prof. Denno does not further explain.

SL&P carries an enlightening quotation from Prof. Denno's piece, the last paragraph of which I'll quote below (emphasis added) and then analyze:

[T]he Review expands on some key contributors to the death penalty's decline that may have been obscured by the all-encompassing nature of the Steikers' regulation argument -- for example, the emergence of unforeseeable exogenous variables (similar to the introduction of DNA evidence into criminal trials in the 1980s), as well as pressure points that exist largely outside of the constitutional regulatory framework, such as lethal injection litigation.  Despite these influences, the Review finds the Steikers' prediction -- that, when abolition seems right, it will come by way of a "Furman II" Supreme Court decision -- to readily comport with the death penalty's trajectory over the last fifty years.

The odd thing is that Prof. Denno, though a capital punishment expert, seems to have next to no idea of what the "death penalty's trajectory over the last fifty years" has actually been.
It's being reported that the President has narrowed his list for head of the FBI.  I have previously suggested Judge Julie Carnes of the Eleventh Circuit.  I now want to add a second name  --  Karen Tandy.

Karen and I started off as Assistant US Attorneys.  I was immediately impressed with her diligence, concentration and fearlessness.  She went on to become an Associate Deputy Attorney General for George W. Bush who, in 2003, nominated her to be Administrator of the DEA.  I joined her there as her Counselor, and my working with her only impressed me more with her qualities.  She is a shrewd, decisive leader whose moral compass guides her every moment of the day.

About a year ago, she joined the National Security Advisory Council (see this news story, which also outlines her career).  She could make a zillion bucks, and did when she was Vice President of Motorola, but she's a patriot and would give it up to render further service to the country.

The President would do well indeed to give her serious consideration.
Andrew Hamm at SCOTUSblog reports on a panel discussion at the Supreme Court Historical Society and the reminiscence of Timothy Dyk, who in 1962 was a law clerk to Chief Justice Earl Warren.
Heather MacDonald has this article at City Journal:

Whatever FBI director James Comey's alleged failings in regard to the investigation of Hillary Clinton's email server and Russian election interference, his precipitous sacking is a loss for America's police officers and public order.

The man whom President Donald Trump now calls a "showboater" and "grandstander" gave candidate Trump the most powerful message of his campaign: policing matters. Months before Trump decried the media's "false narrative" about policing, Comey had warned that the "chill wind" blowing through American law enforcement was resulting in a rising homicide toll among black people. Comey was virtually the only official within the Obama administration to acknowledge publicly the disastrous impact that the Black Lives Matter movement was having on public safety; Obama contemptuously rebuked him for doing so.

Fabio For Governor?

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Stuart Varney has this interview with actor Fabio Lanzoni.

He also spoke out against California Governor Jerry Brown's Proposition 57, which modifies the state's prison system.

"He is releasing tens of thousands of criminals back in the streets and also he lowered the crime into misdemeanor," he said, and added that "cops are very demoralized."

"You saw it happen to Europe, the politicians in Europe--they neuter the law enforcement and now they have to be shot before they can even return the fire... you don't want this movie coming to a theater near you," he said.
Hmmm.  Should we elect him governor in 2018?  California's record with actor-governors is mixed, but they have been better than some of the non-actors.

News Scan

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ICE Arrests Over 1,300 Gang Bangers:  In a nationwide sweep which ran from late March to May 6, the U.S. Immigration and Customs Enforcement agency (ICE) arrested 1,378 suspected gang members involved in transnational criminal activity.  Brooke Singman of FoxNews reports that 933 of those arrested were U.S. citizens and 1,095 were confirmed gang members or affiliates. Of the arrestees, 104 were members of the MS-13 gang who had illegally crossed the border under President Obama's program to accept unaccompanied minors.  Significant stashes of guns, drugs, and cash were also recovered.
Attorney General Sessions has issued a charging directive to federal prosecutors. The heart of it is this:

[I]t is a core principle that prosecutors should charge and pursue the most serious, readily provable offense. This policy affirms our responsibility to enforce the law, is moral and just, and produces consistency.  This policy fully utilizes the tools Congress has given us.  By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.

There will be circumstances in which good judgment would lead a prosecutor to conclude that a strict application of the above charging policy is not warranted.  In that case, prosecutors should carefully consider whether an exception may be justified.  Consistent with longstanding Department of Justice policy, any decision to vary from the policy must be approved by a United States Attorney or Assistant Attorney General, or a supervisor designated by the United States Attorney or Assistant Attorney General, and the reasons must be documented in the file.

Second, prosecutors must disclose to the sentencing court all facts that impact the sentencing guidelines or mandatory minimum sentences, and should in all cases seek a reasonable sentence under the factors in 18 U.S.C. § 3553.  In most cases, recommending a sentence within the advisory guideline range will be appropriate. Recommendations for sentencing departures or variances require supervisory approval, and the reasoning must be documented in the file.

Willingham Prosecutor Cleared

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The anti-death-penalty crowd very earnestly desires a case of a demonstrably innocent person actually executed, and if they can't find a real one they will just invent one.  Employing the Lenin Principle, if they can simply repeat enough times that Cameron Todd Willingham was innocent of burning to death his baby daughters, he will become innocent.  The original New Yorker article on the case was a shameless piece of propaganda, as demonstrated in this post.  After the first year, it seemed like we were making some progress on balanced coverage, as noted in this post, but as time went on the only people interested in the case were those with an anti-death-penalty agenda, and that has become the overwhelmingly dominant narrative.

In their quest, they went after the original prosecutor in the case for a claimed Brady disclosure violation.  Interestingly, in Texas you can take a bar discipline case to a local jury, so that is what former prosecutor (and now judge) John Jackson did.

Regrettably, the only coverage on the decision I can find is by the Marshall Project, an advocacy group masquerading as journalists.  So we have to take the story with a heaping tablespoon of salt.  The WaPo is printing this report instead of devoting actual journalism resources to it.  Update:  Michael Kormos has this article on the verdict in the Corsicana Daily Sun, the local paper for the venue.  Regrettably, the article has no information on the trial or the evidence presented that convinced the jury the charges were groundless.

Solicitor General Hearing

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Tony Mauro reports for the NLJ (registration required) on the confirmation hearing for Solicitor General nominee Noel Francisco.  On one particularly important point: 

Asked by committee chairman Sen. Chuck Grassley, R-Iowa, if he would be able to defend acts of Congress with which he personally disagreed, Francisco replied, "Absolutely, senator." He qualified the answer slightly, as past solicitors general have done, pledging he would defend statutes "whenever a reasonable argument can be made" in their favor, except for "the very narrow category" of laws that improperly impinge on the president's powers under Article II of the Constitution.

"Reasonable argument" has been defined with unreasonable narrowness by some SG's.  The most egregious case was Dickerson v. United States, regarding the statute that challenged the Miranda rule.  Reasonable arguments could be made defending that statute, and Bill, I, Paul Cassell, and the Fourth Circuit, among others, all made such arguments, but the Clinton Administration SG attacked the statute instead of defending it.

Acting FBI Director

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Nomination and confirmation of a new director for the FBI may take some time.  Del Quentin Wilber, Brett Forrest and Rebecca Ballhaus report for the WSJ on interviews for an acting director:

The five candidates for the temporary post, all current FBI or intelligence officials, began appearing at the Justice Department for their interviews before 10 a.m. Wednesday, less than 24 hours after Mr. Comey's unexpected removal. They included FBI supervisors in Richmond, Va., and Chicago, as well as Mr. Comey's former deputy, Andrew McCabe, who became acting FBI director shortly after Mr. Comey's firing.

Whoever is named interim director will take control of an agency of 13,000 agents and 35,000 employees, and could serve in that position for months until a permanent successor is named and confirmed by the Senate, which is likely to be an intensive and hard-fought process. The temporary chief will immediately find himself at the epicenter of the politically fraught investigation into potential collusion between Donald Trump's presidential campaign and the Kremlin.
The person named acting director cannot, by law, be the nominee for director.

Conference Day At SCOTUS

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Today is conference day at the U.S. Supreme Court.  Kate Howard has the SCOTUSblog "Petitions to Watch" list here.  Lots of Fourth Amendment cell phone cases are on tap.  The California gun control case of Peruta v. California is also on the list.

Florida v. Hurst, asking the high court to review the Florida Supreme Court's misinterpretation of its prior decision in the same case, is up next week.  See this post from December on the state split and why it needs to be resolved.
What does the FBI need right now?

A person of unquestioned integrity and ability but without a whiff of politics. Someone with extensive experience. Someone who has spent her life in service to her country.

Ladies and gentlemen, meet my choice for the next FBI Director, Judge Julie Carnes of the United States Court of Appeals for the Eleventh Circuit.  Judge Carnes was nominated for her seat by President Obama, and confirmed by the Senate 94-0.  I know her from our days together on the Attorney General's Advisory Committee on the Sentencing Guidelines.  Coincidentally, she was, like me, a long-serving Assistant US Attorney and head of her Office's appellate division.  She was brilliant, fair-minded, and a joy to work with.  Our country could do no better.

Her bio is here.

P.S.  Julie is a Democrat.  She would be the first woman FBI Director.  That, I suppose, is relevant to some people, but is thoroughly irrelevant to me.

News Scan

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Hit & Run Suspect Deported 15 Times:  A man suspected of a drunken hit-and-run crash that critically injured a 6-year-old boy has been deported at least 15 times according to local authorities.  The San Diego Union Tribune reports that Constantino Banda-Acosta was arrested after he broadsided a Honda with his pickup truck at 11:30 pm Saturday and kept driving.  The Lake family had been returning from a trip to Disneyland when Banda-Acosta rammed their vehicle.  Six year old Lennox was in his car seat during the collision and suffered serious head injuries.  Banda-Acosta, a citizen of Mexico, had been deported last January and was back in the U.S. driving drunk less than four months later.  He had been deported 14 times since 2002. 

2nd Body Found in Central Park:  The partially clothed body of a man in this 30s was found Wednesday floating in Central Park's Jacqueline Kennedy Onassis Reservoir.  Rana Novini of NBC4 reports that it was the second body found in the water in 24 hours.  The body of a naked man found on Tuesday had been in the water for over a month.  The most recent find had been in the water for about a week.  Also in the Big Apple, 83 year old man remains in critical condition after he was sucker punched in the Bronx Monday.  CBS New York reports that the unprovoked attack was caught on video but police are still searching for the suspect.     
Callum Borchers has this post at The Fix, the WaPo's political blog, titled "Want a special prosecutor to replace James Comey? History might change your mind."

With James B. Comey out as FBI director and President Trump holding the power to nominate his replacement, calls for a special prosecutor to take over the bureau's investigation of Russian election meddling are all the rage. Dozens of Senate Democrats have said they want an independent probe to determine whether Trump's campaign colluded with Russia.

The idea makes sense, in theory. In practice, some investigations headed by special prosecutors have rung up huge tabs while producing modest results.

Comey Fired

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New Deputy AG Rod Rosenstein recommended that FBI Director James Comey be dismissed, and the Attorney General and the President have accepted that recommendation.  Christine Wang reports for CNBC:

In a memorandum titled "Restoring public confidence in the FBI," Rosenstein said he couldn't defend Comey's handling of the investigation into Hillary Clinton's emails.

"The Director was wrong to usurp the Attorney General's authority on July 5, 2016, and announce his conclusion that the case should be closed without prosecution. It is not the function of the Director to make such an announcement," the deputy attorney general said.

Last summer, Comey said "no charges are appropriate" in the FBI's investigation of Clinton.

"Although there is evidence of potential violations regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case," he said in July.

Rosenstein said that the dismissed FBI director compounded the error when he "ignored another longstanding principle: we do not hold press conferences to release derogatory information about the subject of a declined criminal investigation."

Update: Finally found the full text across the pond at the Independent in London.

The Comey Firing

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I have some first impressions of the big news this afternoon, the firing of Jim Comey as FBI Director.
In this post, I noted that the same Baltimore State's Attorney's Office that presided over both the disastrous Freddie Gray prosecutions and a startling increase in murder now proposes to use a harsher standard for charging decisions against American citizens (and, presumably, legal immigrants) than it will employ against illegal immigrants.

The stated rationale for this is that illegal immigrants face adverse collateral consequences, to wit, that, if standing immigration law is enforced instead of ignored, they may get deported.  The actual reason for such a blatantly discriminatory policy is, as you would expect, political:  Illegal immigrants are a favored constituency of the party that runs the State's Attorney's Office.

One question to ask here is what liberals' reaction would be if it worked the other way around, i.e., if there were overt discrimination in law enforcement in favor of American citizens and against illegal immigrants.  Not that there need be much head scratching about the answer. 

Can anything be done about this upside-down prosecutorial world?

News Scan

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Chicago Gangs Using Military Weapons:  A bulletin issued Monday by the Chicago Police Department warns that, based upon evidence discovered at recent shootings, street gangs are regularly using high caliber military grade rifles.   Associated Press writer Don Babwin reports that shell casings found after Sunday's shooting at a memorial for a dead gang member were from weapons capable of piercing bullet proof vests.  Two people died and eight others were injured in that incident.   Another shooting earlier Sunday left one man dead.  A shooting Monday reported in today's Chicago Tribute marks the 200th murder in the windy city this year. 

Aaron Hernandez Murder Conviction Erased:  A Massachusetts judge vacated the murder conviction of NFL tight end Aaron Hernandez, because he hung himself in his cell before his appeal was heard.  FoxNews reports that Hernandez was serving a life sentence for murdering another football player in 2013, when he allegedly committed suicide last month.  Massachusetts follows the legal principle of "abatement an initio" which requires the conviction be erased if the defendant dies prior to the appeal.  Prosecutors argued against it, saying it rewarded Hernandez for killing himself. 
Two well-known physicians were brutally murdered in Boston Friday night.  The killer should not have been on the streets.  He had a record, and a felony conviction on  -- ready now?  --  September 30, 2016.  That would be a little more than seven months ago. Nor was that his first serious crime.  Still, in the land of second chances, and what with our scandalously racist criminal justice system, we need to emphasize redemption, right? See, e.g., this self-righteous piece in the Atlantic, published, in a masterpiece of bad timing, 48 hours before the Boston murders: https://www.theatlantic.com/national/archive/2017/05/criminal-justice-across-america-reporting-project/524985/

The notion were hear all around is that dumbed-down sentencing is our mission in order to become a better people.  What it's actually going to do is make us a deader people. The prison population has been falling recently and, my goodness, we are now in the third year of our spike in violent crime, murder in particular.

The intentionally deceitful myth that we can be "just as safe" with many fewer criminals in prison has a price.  When the price is paid by little black children, like the ones Wendell Callahan sliced to death after he got early release, no one cares (although they occasionally pretend to).  They won't care about this atrocity either, although they might make a similar pretense. It's not that they're racists, although they know full well that murder disproportionately harms the black community.  It's that their ideology of criminal-as-victim trumps even their ideology, heard relentlessly in other contexts, of America-as-cesspool.

Ten Federal Court Nominees

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Debra Cassens Weiss reports for the ABA Journal:

President Donald Trump nominated 10 lawyers Monday for federal judgeships, including two state judges from his list of 21 potential U.S. Supreme Court nominees.
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The two judges from the Supreme Court list are Michigan Supreme Court Justice Joan Larsen, nominated to the Cincinnati-based 6th U.S. Circuit Court of Appeals, and Justice David Stras of the Minnesota Supreme Court, nominated to the St. Louis-based 8th U.S. Circuit Court of Appeals.

Larsen is a former University of Michigan law professor and a former law clerk to late Justice Antonin Scalia. Stras is a former University of Minnesota law professor and a former law clerk to Justice Clarence Thomas.

The nomination of another judge from the Supreme Court list, U.S. District Judge Amul Thapar of Kentucky, is pending. He has been nominated to the Cincinnati-based 6th U.S. Circuit Court of Appeals. His is the only other nomination to the lower federal courts so far.

Other nominees are:

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Court Rejects Quadruple Killer's Appeal:  In a one-sentence ruling, the Michigan Supreme Court declined further review of a murderer's claim that his no-contest plea in the killing of four women should be withdrawn.  Stephen Kloosterman of Michigan Live reports that Leon Means, who confessed to killing his wife and mother-in-law in 1989 and two other women in 2014, argued that his plea was involuntary because he was suffering from depression, had high blood pressure, and was denied medication while in jail.  He was sentenced to two life-without-parole terms for the most recent murders and 20-47 years for the earlier murders.

WA Murderer's Appeal Denied:  A Washington sex offender convicted on DNA evidence of the 1995 murder of a single mom has lost his bid to have the state's highest court hear his trial error claims.  Scott North of the Washington Herald reports that the Washington Supreme Court unanimously declined review of Danny Giles' claim that his trial was improper because the trial judge did not allow him to present speculation about other possible suspects.  An earlier story in the Herald described how Patti Berry, who worked as an exotic dancer to support her 2-year-old daughter, was kidnapped after work in July of 1995.  Her partially nude body was found in the woods days later.  In 2008, police interviewed Giles after DNA testing linked him to the murder.  After Initially lying about any connection to Berry, he then said that he might have had sex with her, but couldn't remember.  Giles is serving a 47-year sentence for the crime, and police are investigating his involvement to the murder of another woman earlier in 1995.

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FBI Report: Police Backing Off:  An FBI study of the influence of last year's surge of violence against police and the increase in anti-cop protests is having on policing found that departments and individual officers have made the decision to stop engaging in proactive policing.  Valerie Richardson of the Washington Times reports that the study examined 50 of the 53 incidents in 2016 where a police officer was killed in the line of duty, finding that 28% of the killings were motivated by hatred of police and a desire to kill police officers.  "Nearly every police official interviewed agreed that for the first time, law enforcement not only felt that their national political leaders (publicly) stood against them, but also that the politicians' words and actions signified that disrespect to law enforcement was acceptable in the aftermath of the (Michael) Brown shooting." 

DNA Links Rapist to 1993 Assault:  A New York sex offender serving time for the 2016 rape of a 12-year-old girl has been charged with the 1993 rape of an 11-year-old girl.  Rebecca Rosenberg of the New York Post reports that William Dixon was linked to the 1993 rape when his DNA sample taken last year matched DNA from the rape kit taken from the victim 23 years earlier.  Dixon also served five years in prison for sodomizing an 8-year-old girl in 1984.
Eugene Volokh of UCLA has this video for the Federalist Society on proposed ABA Model Rule of Professional Conduct 8.4(g).  The web page caption states the question as, "Is it a violation of the first amendment for the American Bar Association to impose a nationwide speech code for lawyers?"  But of course (as Prof. Volokh makes clear in the video), the ABA has no government power, so it can neither impose its rules nationwide nor violate the First Amendment.  The problem is that too many state rulemaking entities that do have government power tend to go along with whatever the ABA says.

This deference to the ABA is based on a view of the nature of the organization that was obsolete long ago.  The ABA today is a left-wing, political, ideological organization.  It does not represent the profession as a whole, and its views are not entitled to any deference whatever.  That is why the ABA now has a special position in vetting judicial nominees only in Democratic administrations; previously it had that special position in administrations of both parties.  The previous and current Republican administrations both showed the ABA the door and appropriately informed them, in essence, that they are just another interest group, nothing special.

If the the ABA wants to be special again, it needs to purge itself of its heavy political and ideological bias.  Don't hold your breath.  In the meantime, states should write their own rules, considering the ABA's position to be just one opinion of many.

The Wichita Massacre on Remand

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John Hanna reports for AP:

Kansas' top court wrestled Thursday with whether it can mandate new, separate sentencings for two brothers facing execution for four notorious slayings that became known as "the Wichita massacre."

Jonathan and Reginald Carr had a joint trial and sentencing hearing over dozens of crimes in Wichita in December 2000 that ended with three men and a woman shot to death in a snow-covered soccer field. The crimes were among the most notorious in the state since the 1959 slayings of a western Kansas family that inspired Truman Capote's book "In Cold Blood."

This is the second time the Kansas court is considering whether the brothers -- who turned on each other at trial -- should have been sentenced separately. The court in 2014 listed their being tried and sentenced together as among the most serious flaws that made the court proceedings so unfair that the men should be re-sentenced, but the U.S. Supreme Court ordered another review.

Delaware DP Reinstatement Bill

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Last August, the Delaware Supreme Court seriously misinterpreted the U.S. Supreme Court's decision in Hurst v. Florida.  In this post at the time, I asked, "Does Delaware Attorney General Matt Denn have the requisite vertebrae to petition for certiorari?"  Regrettably, the answer was no.

A bill to "fix" the system that isn't actually broken has passed out of committee to the floor of the House, Ian Gronau reports for the Delaware State News.  A floor vote scheduled for today has been postponed and is expected Tuesday, WMDT reports.

Regrettably, the bill would adopt what I call a "single-juror veto" law as opposed to a true unanimity law.  Single-juror veto laws have resulted in gross miscarriages of justice, including the Aurora theater shooting case in Colorado and the Carnation murders in Washington State.  See also this post.

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CA Parole Board to Release Cop Killer:  State corrections officials have announced that a man convicted of conspiring in the 1985 murder of a Los Angeles police detective will be released from prison in a few days.  James Queally and Matt Hamilton of the Los Angeles Times report that Voltaire Williams has been serving a 25-to-life sentence for his part in a plot to assassinate Detective Thomas Williams in front of his six-year-old son in order to keep the detective from testifying at a robbery trial.  The decision by the state Parole Board to release Voltaire Williams was made after Governor Jerry Brown requested they reconsider an October, 2016 grant of parole.  According to the Association of Los Angeles Deputy District Attorneys this reinforces the fact that the Parole Board is determined to release life sentenced inmates regardless of their dangerousness to society.

Sanctuary City Bill on TX Governor's Desk:  Texas Senate Bill 4 reached Governor Greg Abbott's desk Thursday after clearing the state senate 20-11.  Fox News reports that the bill would impose stiff fines and even jail time to state officials, including mayors and police chiefs who refuse to follow federal immigration laws.  The Governor has promised to sign the bill which has been criticized by several big city police chiefs who claim it will keep illegals from cooperating with the police for fear of deportation.  But the Lt. Governor said, "There is no excuse for endangering our communities by allowing criminal aliens who have committed a crime to go free.  SB4 will ensure that no liberal local official can flaunt the law."

Jail Inmates and Mental Illness

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Michael Balsamo of AP has this article on the chronic problem of mental illness and jail inmates, focusing on LA County and methamphetamine abuse.

The Association for Los Angeles Deputy Sheriffs has this post acknowledging the problem but reminding the public where most of the blame for the situation belongs.

The state legislature is responsible in large part for the rise of inmates with mental health issues.  It is the state, not local law enforcement, which made the decision to close mental institutions, refuse to allow involuntary mental health treatment, and then dump on the streets those who could/should have been treated. Instead, we simply wait for them to victimize other people, incarcerate them for those crimes, and then blame jail deputies guarding them for not being orderlies or psychiatrists.
The post goes on to note that ill-conceived legislation and initiatives shifting corrections burdens from the state prisons to the county jails have also aggravated the problem.
This entry notes that there has been a large increase in the imposition of life sentences over at least the last 25 years, if not before then.  The implication is that the country has gone overboard in its (as ever) punitive nature.

What it fails to note is the reality liberals trumpet in every other context:  The very large decrease in the imposition of death sentences over roughly the same period. Since a life sentence is the typical alternative to the death penalty, this "news" is anything but.  It reflects, if anything, liberals' success in working against capital punishment, a success that has been well documented, in this space and many others.  It amounts to "news" that when one punishment is used less, its alternative is used more?  DOH.

What it also fails to reflect is the huge decrease in the rate of violent crime over roughly the same period.  Could it be that incapacitation works? Ummmmmm...........we'll get to that later.  A lot later.

HT to Sentencing Law and Policy.

News Scan

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From Rehab to Rape:  A man who pled guilty for beating a woman last September was arrested last week for a brutal rape.  Julia Comnes of the Woodburn Independent reports that Ramiro Garcia-Solano was arrested last week for the kidnap, rape, sodomy, and injury of a woman in Marion County, Oregon.  Garcia-Solano was convicted of domestic violence for beating another woman last fall and was sentenced to a batterer intervention program.  He failed to complete the program with apparent impunity.  Oregon, like California, does not treat domestic violence as a serious crime, and generally sentences offenders to a quick jail visit, probation and a program.      


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Crackdown on Drug Cartels Underway:  The recent arrests of 23 cartel operatives along the New Mexico and Texas border with Mexico is an indication of things to come regarding border enforcement.  Joseph J. Kolb of Fox News reports that members of the Sinaloa Cartel, once headed by Joaquin "El Chapo" Guzman, were caught with 64 kilos of meth, 30 kilos of heroin, 20 kilos of pot, and 17 kilos of coke, along with firearms, vehicles, and over $100,000 in cash.  At a press conference announcing the bust, Doña Ana County Sheriff Enrique Vigil said to cartel leaders, "We're going to make sure that you're always looking over your shoulder.  We're going to be knocking on your doors soon--it's just a matter of time."  Vigil reflects the new attitude of border state law enforcement and ICE officers who now believe that the new administration has their back.

Celebrating the LA Riots:  Twenty-five years ago, after a trial jury acquitted four officers of using excessive force on Rodney King, angry blacks set fire to several blocks of Los Angeles, looting and burning businesses and attacking non-blacks.  The Rodney King riots resulted in 50 deaths and destroyed $1 billion in property.  Heather MacDonald has this piece in the City Journal reviewing how academia, the media, and some of the former rioters are marking the anniversary.  One thing we did not know is that UCLA has a Vice Chancellor of Equity, Diversity, and Inclusion making over $350,000 a year.

BAC test evidence and DUI

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In Birchfield v. North Dakota, the Supreme Court held that breath tests, but not blood tests, may be administered without a warrant as a search incident to lawful arrest for drunk driving.  The Court also held that motorists may not be criminally punished for refusing to submit to a blood test on the basis of legally implied consent.  In Missouri v. McNeely, a plurality of the Court held that the natural dissipation of alcohol in a motorist's blood stream alone does not create a per se exigency that would justify a non-consensual blood draw without a warrant.

Criminal Justice Legal Foundation filed a brief in a companion case to Birchfield arguing that a motorist's statutorily implied consent to submit to a search of his or her breath, blood, or urine after lawful arrest for suspicion of DUI falls within the consent exception to the Fourth Amendment's warrant requirement.  We argued that requiring all law enforcement officers to secure a warrant after lawful arrest is impractical due to the vast differences in resources in some jurisdictions.  We also argued that it was reasonable for a state to mandate consent as an alternative to a warrant as a condition of using its public roadways.  The public's interest in protecting innocent people and keeping drunkards off the roads is significant in comparison to the privacy interests of an arrested motorist who made the choice to drink and drive.

Last week, the high Court's jurisprudence tied the hands of law enforcement and hindered prosecutors from obtaining probative evidence of blood alcohol concentration levels in at least two incidences.

Siobhan Hughes reports for the WSJ on the deal to fund the government through September 30:

The deal also includes $1.5 billion for border security, with the money to be spent on technology and on repairing existing infrastructure, the aide said.
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But the package says explicitly that the money can't be used to pay for the construction of the new border wall that Mr. Trump has made a signature project, a blow to the White House.

Fine with me.  Border security is the true need, and in many places on the border the best bang for the buck may not be a physical wall.  Rome wasn't built in a day, and border security won't be either, so doing the non-wall parts first is fine.

And maybe come September 30 we could have an actual, annual federal budget instead of continuing resolutions with periodic shutdown threats.  Wouldn't that be nice? 

How would we get that past filibustering Democrats?  Here is my suggestion.
Paul Larkin has this essay in the Harvard Journal of Law and Public Policy, which is affiliated with the Federalist Society.  He believes that having the Office of the Pardon Attorney in the Department of Justice creates a conflict of interest.  But where else to put it?

Paul suggests that the Vice President should be in charge of pardons.  He would, of course, need a staff or a board to advise him, but the Veep would make the short walk to the Oval Office with his recommendations on who among the many applicants would actually get clemency.

I worked with Paul many years ago and have always respected his work.  His idea is worth considering.

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Desperate in Baltimore:  "Murder is out of control," according to Baltimore Mayor Catherine Pugh, who is asking the FBI for help in stemming the record-setting homicide rate in her city.  CBS Baltimore reports that the city has suffered the most murders from  January to April since 1998, and the Mayor fears that unless something can be done to stop it, "I can't imagine going into our summer months with our crime rate where it is today."  The question remains, can federal assistance turn around crime in an urban environment where the police have been repeatedly characterized as the bad guys?  "If we support these police officers, who are out there working for the community every day, we're going to be able to turn the tide," says former U.S. Attorney for Maryland, now U.S. Deputy Attorney General Rod Rosenstein.

Arrests in LA Shooting Spree:  LA Sheriff's detectives are investigating the possibility that a couple arrested Sunday are guilty of shooting and injuring two people at a Whittier motel and the killing of a man in nearby La Mirada on Saturday.  Frank Shyong and Matt Hamilton of the Los Angeles Times report that a string of shootings appears to be linked to two carjackings reportedly committed by an armed man and a woman now in custody for car theft.  The spree began with the fatal shooting a 44-year-old man waiting at a stop light on Saturday afternoon by two suspects in a stolen car.  Hours later, a couple in another stolen vehicle fired shots at the motel, then fled.  Police believe that the murder, and perhaps the other shootings, were completely unprovoked.

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