July 2017 Archives

News Scan

Crackdown in MS-13 is Making the Gang Stronger:  In a CNN report released Friday journalist Dan Lieberman spoke to an illegal immigrant and members of the gang who say that the Trump Administration's crackdown on the violent gang is actually making it stronger.  An undocumented immigrant who refused to give her name, told Lieberman that her son, who came from El Salvador to live with her in Long Island, has been attacked by the gang for refusing to join.  "I think it's worse (in the US) because over there (El Salvador) they hadn't tried to kill him.  But here they have," she said.  The story also cited "several people familiar with MS-13, including two gang members themselves...told CNN they think Trump's crackdown on immigrants is actually making MS-13 stronger because witnesses are more reluctant to come forward for fear of being deported."  The story also quoted the leader of a immigrant advocacy group who agreed.  For balance the story quoted a "senior administration official" who disputed that thinking.  

Chicago On Track For New Homicide Record:  A man murdered in the Near North Side of Chicago early last Friday marked the city's 400 homicide.  Mitchell Armentrout of the Sun Times reports that at around 3:00 a.m. a 31-year-old man was shot multiple times in the face and died at the scene.  A 34-year-old man was also shot multiple times during the same incident, but as of Friday, remained alive in critical condition.  Later that morning a 23-year-old man become the 401 victim in a south side shooting.  There were 781 homicides in Chicago last year, but the 400th murder did not occur until August 1.  The Chicago Tribune has different numbers, reporting that there have been 409 homicides to date, probably accounting for additional murders over the weekend.  The same article lists the names of the victims for each month. 

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Ohio Court Upholds Death Sentence:  An Ohio murderer lost a bid to overturn his death sentence Tuesday.  The Associated Press reports that a divided Ohio Supreme Court rejected Jeffrey Wogenstahl's claim that that the state lacked jurisdiction to prosecute him because the body of 10-year-old girl he murdered was found in Indiana.  Wogenstahl was convicted and sentenced to death for the 1991 kidnap and murder of Amber Garrett.  Facts found by the jury indicate that he abducted the girl from her bedroom at roughly 3:15 AM in Harrison, a town on the Ohio-Indiana border.  The girl's body was found about 4 miles across the border in ditch five days later.  Amber had been stabbed 11 times in the chest and neck, and her head had blunt force trauma consistent being hit with a jack handle.  While there was evidence to suggest that she was not killed where her body was found, and that she might have died in Wogenstahl's apartment, it was not conclusive.  The question of jurisdiction was not directly raised at trial.  The Court held that, considering the evidence in this case, state law allowed the presumption that the murder occurred in Ohio.   

Murderer's Challenge to Execution Drug Rejected:  A Florida judge has denied a double-murderer's claim that the anesthesia used in the state's execution protocol may allow him to feel pain.  Julia Jenae of WTLV reports that white supremacist Mark Asay, sentenced to death for gunning down two black men in 1998, brought in an out-of-state expert to support his claim that the drug etomidate does not keep a person unconscious long enough, and can cause pain during injection.  A state expert disputed the claim, noting that the drug works in 10-15 seconds and lasts long enough to allow a painless execution. In rejecting Asay's claim the judge noted that he only "demonstrated the possibility of mild to moderate pain that would last, at most tens of seconds."  Asay has until July 31 to appeal the judge's decision to the Florida Supreme Court.   His execution is scheduled for August 24.  No word on whether the ACLU and the NAACP will file argument on his behalf. 
Q:  Wanna know why the particular law school you attended is a leftist haven?

A:  Because they're all leftist havens.

Why Sessions Recused Himself

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The Wall Street Journal explains as well as anyone why Attorney General Sessions was right to recuse himself from the Russia probe.  Its piece is here.  I will make no attempt to improve on it; I'll only repeat that fidelity to law means adhering to both its letter and spirit.

Sessions has done himself and DOJ proud by taking the action he did, and by the restraint and dignity he has shown in the face of the recent attacks on him.

I would  contrast this with Eric Holder's fuming claim that the American people are "a nation of cowards" for turning away from a discussion of race,  Mr. Holder's remark had two principal problems, to wit, that the American people are not cowards, and that we talk about race from morning to night, then have at it again the next day.

But don't get me started.

USCA5 Denies Stay to Texas Murderer

The U.S. Court of Appeals for the Fifth Circuit has denied a stay of execution for Tai Chin Preyor.  Let's start with what he did:

Briefly, Preyor was convicted and sentenced to death in Texas in March 2005, for the 2004 capital murder of Jami Tackett during the course of committing or attempting to commit burglary. He stabbed her numerous times, severing her trachea, jugular vein, and carotid artery. He was arrested on the grounds of her apartment complex, covered in blood. The jury rejected his claim of self-defense, convicted him and sentenced him to death.
Here are the legal issues:

Tai Chin Preyor was convicted of capital murder and sentenced to death in 2005. He challenged his conviction and sentence on direct appeal, in state post-conviction proceedings, and a federal habeas proceeding. No challenges were successful. On July 17, 2017, ten days before his scheduled execution, he filed a motion under Federal Rule of Civil Procedure 60, seeking to reopen his federal habeas proceedings under Rule 60(d)(3) (fraud on the court) and/or Rule 60(b)(6) (extraordinary circumstances). He claimed that his former habeas counsel of record, Brandy Estelle, who had been retained to represent him by his mother, committed a fraud upon the court by acting largely as a puppet for Philip Jefferson, a now deceased California attorney who had been disbarred in 1990, and by concealing Jefferson's habeas involvement from the court. Preyor sought to have the district court restore him to the position he was in before Jefferson and Estelle filed the federal habeas petition on his behalf, so that he can now assert a new claim that his trial counsel rendered ineffective assistance by failing to investigate, discover, and present mitigating evidence of physical and sexual abuse and substance addiction.

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Activists Oppose Baltimore Gun Crackdown:  Two people were arrested at the Baltimore City Hall Tuesday night as activists protested against the adoption of a local law to take guns off the streets.  reports that bill would require a one year jail sentence for anyone convicted for a second time of illegal possession of a firearm in the city.  The Mayor noted that there have been over 600 shootings in Baltimore this year and that something had to be done to get illegal guns off the streets.  Opponents are against the mandatory sentence.  The City Council voted 5-2 to move the bill to the next stage of review.

Illegal Charged for Rape of NY Girl:  A 37-year-old illegal alien has been charged with first degree rape for multiple assaults on a 12-year-old New York girl.  Fox News reports that Fernando Alvarado-Perez allegedly had sex with the girl several times when she was 12 and 13.  Local officials report that he had entered the US illegally ten years ago.  The Livingston County Police Chief told reporters that the immigration status of Avafado-Perez  "wasn't a priority to us."  ICE has placed a detainer hold on the suspect, who is being held without bail. 
Zusha Elinson reports for the WSJ:

SAN FRANCISCO--During his campaign, President Donald Trump repeatedly pointed to the wrenching story of Kate Steinle--a young woman allegedly murdered by an undocumented Mexican--as a prime example of violent crimes committed by illegal immigrants.

Now, the man accused of killing Ms. Steinle, Juan Francisco Lopez-Sanchez, will soon be on trial, refocusing attention on an issue that Mr. Trump has continued to emphasize as president.
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The defendant, a repeat felon who was deported five times, has pleaded not guilty to a second-degree murder of Ms. Steinle, 32, while she walked on pier with her father on July 1, 2015. The single bullet that killed Ms. Steinle ricocheted off the ground before hitting her, ballistics experts have testified.
Elinson goes on to note the irrelevant statistic, furnished by a criminology professor, that immigration in general does not increase crime rates.  That has nothing to do with anything at issue.  The defendant in this case is not just an immigrant.  He is a habitual criminal who has been repeatedly deported and just waltzed back over our porous border.  We need to have enough control over our border that alien criminals who are deported stay deported.  Those who oppose having that degree of control have the blood of the victims on their hands.

Justice Rebooted in Ohio

Alan Johnson reports for the Columbus Dispatch:

Ronald Phillips could not avoid his seventh execution date.

After six postponements, the 43-year-old Summit County man was executed Wednesday for a murder he committed 24 years ago, a week into Bill Clinton's first term as president. Phillips' victim was Sheila Marie Evans, the 3-year-old daughter of his then-girlfriend.

The time of Phillips' death was 10:43 a.m. at the Southern Ohio Correctional Facility near Lucasville.

The execution was completely calm with none of the complications or reactions of the last execution.
The last-minute legal maneuvering involved the three-drug protocol with midazolam as the first drug.  States have had to turn to this controversial method since the "guerrilla war against the death penalty" succeeding in cutting off the preferred barbiturates.  A Sixth Circuit panel originally upheld the district court's preliminary injunction against executions, but the full court reversed.

Every other court of appeals to consider that procedure has likewise upheld it, including most recently the Eighth Circuit, which rejected a nearly identical challenge in a procedural posture identical to the one here. See McGehee v. Hutchinson, 854 F.3d 488, 492 (8th Cir. 2017) (en banc) (per curiam), cert. denied, 137 S. Ct. 1275 (2017); Glossip, 135 S. Ct. at 2739-40 (collecting cases); Brooks v. Warden, 810 F.3d 812, 818-22 (11th Cir. 2016); cf. Jordan v. Fisher, 823 F.3d 805, 811-12 (5th Cir. 2016). Yet here the district court thought the same procedure is likely invalid. We respectfully disagree and reverse the court's grant of a preliminary injunction.

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Domestic Violence Law Unfair to Gays:  The South Carolina Supreme Court ruled today that the state's law against domestic violence unconstitutionally violates the rights of same sex couples.  The Associated Press reports that under state law, for the purposes of restraining orders, those defined as "household members" includes a spouse, former spouse, people with a child in common or a man and a woman.  Two women or two men living together are not included.  The ruling stems from a woman's failed attempt to get a protective order against her former spouse, who was also a woman.  The state's high court held that not including same sex couples violated the Constitution's Equal Protection Clause.

College Suspends MacDonald Protesters:  Claremont McKenna College suspended five students involved last April's protest which shut down a talk by "Black Lives Matters" critic, Heather MacDonald.  Howard Blume of the Los Angeles Times reports that while no arrests were made when a crowd of roughly 250 protesters blocked the entrance the auditorium where MacDonald was to deliver her address, pounding on the windows until police shut down the event, the school's President said disciplinary action would be taken.   Last week the school announced the one-year suspension of  three students and the one- semester suspension of two others who participated.  Another two students were placed on probation (double secret probation?) for their involvement.  MacDonald, author of the book "War on Cops" has challenged the "Black Lives Matter" narrative that racist police are gunning down innocent blacks, as thoroughly disproved by widely available government data.   
Keith Humphreys, professor of psychiatry at Stanford, has this post at the WaPo Wonkblog:

The most rigorous study yet of the effects of marijuana legalization has identified a disturbing result: College students with access to recreational cannabis on average earn worse grades and fail classes at a higher rate.
The President criticized Attorney General Sessions for the third consecutive day today. The President's quite explicit disappointment with Sessions has led many to believe the Attorney General's days on the job are numbered.

I believe there are grounds to think otherwise.
Among the planks of the platform President Trump was elected on was his promise to be a law-and-order President.  Unlike some of the other planks, that is a promise he has delivered on so far.  Two of Mr. Trump's most important accomplishments six months into his term are the appointments of Neil Gorsuch to the Supreme Court and Jeff Sessions as Attorney General.

Yet strangely, Mr. Trump is having second thoughts about the AG appointment, obsessively focusing on the Russia investigation recusal.  Third thoughts are in order.  The Department of Justice is much bigger than that one investigation.  Broader and more lasting decisions are at stake.

As we have discussed many times on this blog, American criminal justice has come a long way since the dark days of the 1980s and early 1990s.  Simply put, getting tough worked.  But that success is in peril.  George Soros and the Koch brothers have been spreading their money on the same side of the ledger for once.  The dangerous myth that our prisons are mostly full of people imprisoned for possession of one joint whom we can safely release has gained far more currency than it deserves.  Jeff Sessions resisted this tide in the Senate, and he continues to resist it at the Department of Justice.  The chances of replacing him with anyone nearly as good are remote.

The political pressure to appoint a special counsel for the Russia kerfuffle was irresistible, and one would have been appointed regardless of whether the AG was recused.  Yet Mr. Trump continues to focus on the single matter that involves him personally rather than the broader issues of greater concern to the ordinary folks who make up his base and put him in office. 

It's not all about you, Mr. President.  There is blood in the streets already, and how much more there will be depends to a considerable extent on how well you keep your promise to be a law-and-order President.  You took an important first step in appointing a law-and-order Attorney General.  Don't go wobbly on us now.

Unintended Consequences

The Bucks County Courier reports:

Shaquana Green and her toddler daughter disappeared during a weekly Saturday afternoon visit in 2012, an incident that Upper Darby police described in court documents as a custody dispute.Fewer than three hours later, the girl was found unharmed near where she was last seen and returned to her legal guardian, who's her paternal grandmother, according to court records. Green was arrested for violating a court custody order that barred her from unsupervised contact with her child.

That event is how the 26-year-old Bethlehem woman, a single mother with no prior criminal record, ended up a Pennsylvania sex offender. It's a life-crippling label that Green wouldn't have if she lived in any other state. 

But when the Pennsylvania Legislature expanded its sex offender law in 2011 in response to federal legislation, it added new crimes, including the one that Green pleaded guilty to in 2013 -- interference with child custody. Under the amended law, which became effective in December 2012, conviction of that crime carries a 15-year requirement to register as a Megan's Law child sex offender. There is no exemption for parental custody interference with no sexual abuse. 

The Pennsylvania legislature needs to amend the statute pronto.   

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Illegal Immigrant Arrested for Arson:  An illegal immigrant has been arrested in Charlotte for setting an apartment on fire that left 130 people homeless and put seven in the hospital.  Mark Price of the Charlotte Observer reports that Jesus Reyes Lopez allegedly set the fire last Monday at the Woodscape apartment complex as an act of revenge against his ex-girlfriend.  The fire damaged 40 apartments, causing $1.3 million in damage.  Lopez has been charged with attempted murder and arson.  The County Sheriff, which cooperates with ICE when suspected illegals are arrested, was notified that the suspect was illegally in the country and will be deported no matter what the outcome of his trial.

Murderer's Death Sentence Vacated:  The death sentence of an auto mechanic convicted of the 2004 kidnap, sexual assault, and murder of an 11-year-old girl was vacated last Tuesday by a Florida judge.  Carlos R. Munoz of the Herald Tribune  reports that the judge's ruling retroactively applied a new state law that requires a unanimous jury to impose a death sentence.  In the case of Joseph Smith, the jury's 2005 sentencing verdict was 10-2.  The kidnapping made national news as security camera footage showed Smith and the victim, Carlie Brucia, walk away together from a car wash in February 2004.  The girl's body was found behind a church six days after she disappeared.  Smith will receive a new sentencing hearing where the jury's decision to sentence him to death must be unanimous.

Presidents Quashing Prosecutions

From the Interesting Stuff Stumbled Upon While Looking For Something Else file comes United States v. Phillips, 31 U.S. 76 (1832) (emphasis added):

MR ATTORNEY-GENERAL, of counsel for the plaintiff, having informed the court that a nolle prosequi had been entered in this cause in the circuit court of the United States for the eastern district of Pennsylvania, agreeably to instruction from the president of the United States, of which a copy has been filed in the office of the clerk of this Court, and which was read in open Court, now here moved the Court to dismiss this cause; on consideration whereof, it is ordered by this Court, that this cause be, and the same is hereby dismissed.
Imagine that, the President directing that a particular criminal case be dropped, even after it has gone up on appeal to the Supreme Court.  Haven't we been told lately that the President must keep his hands off cases being handled by DoJ, with mutterings that "interference" might even be criminal and impeachable?

Old Hickory obviously didn't see it that way.  He was the head of the executive branch, vested by the Constitution with "the executive power" in its entirety.  He told the AG what to do, the AG did it, and the Supreme Court evidently didn't see anything remarkable in that.  The latter point seems particularly important, since Old Hickory never was one for constitutional niceties, but the Marshall Court was.

News Scan

Ohio Murderers Seek Execution Stay:  Three condemned Ohio murderers are asking U.S. Supreme Court Justice Elena Kagan to stay their executions on Eighth Amendment grounds.  The Associated Press reports that after losing a ruling by a divided Sixth Circuit Court of Appeals last month, child killer Ronald Phillips is running out of time.  His execution is scheduled for July 26 for the 1993 rape and murder of his girlfriend's 3-year-old daughter.  If it is carried out, Phillips execution will be Ohio's first in three years. The other murderers are scheduled to be executed on September 13 and October 18.  The murderers claim that the use of the sedative midazolam in the state's execution process creates an unconstitutional risk of pain.

Released Criminal Assaults Police Officer:  A habitual felon recently released from a California prison is facing charges of attempted murder after a Monday attack on a San Diego police officer.   The Associated Press reports that Daniel Moses Cook was high on methamphetamine when he was confronted by the officer after he robbed a Dollar Tree store and was stealing soft drinks from a KFC restaurant.  Cook attacked the officer, knocking him to the ground and beating him unconscious.  Fox5 reports that a bus driver who saw the attack called the police, who had to tase Cook in order to take him into custody.  At a hearing Thursday, Cook pleaded not guilty to attempted murder, robbery, and drug charges.  If there is not enough evidence to prove the attempted murder charge and it is reduced to assault on a police officer, under current California law the worst punishment Cook can receive if convicted is time in county jail.

Physician-Assisted Suicide

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Netherlands MP Kees van der Staaij has this critical op-ed in the WSJ on that country's assisted suicide law.

CJLF has not taken a position on this issue.
Two months ago, I noted that Attorney General Sessions had formally clarified the scope of the defunding provision of President Trump's Executive Order 13768 on so-called sanctuary cities and federal grants. See also this post from April on the misguided injunction against that provision.

After the AG's clarification, the Government moved for reconsideration.  Today, to the surprise of no one, Judge Orrick denied that motion.

Unlike the travel ban case, this case does not involve a temporary order that is or shortly will be moot.  If the Ninth Circuit does not reverse the injunction, it should go to the Supreme Court.

Sentencing Reform, Meet Reality

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The "sentencing reform" movement is mis-named.  It's actually a movement for widespread reduction of sentences for felons, and aims to achieve this objective in significant measure through one particular mechanism  --  scaling back or eliminating mandatory minimums.

The reform movement has some adherents among Republicans (principally libertarians and some evangelicals, who regularly get trotted out as a supposedly "bi-partisan" front), but is overwhelmingly an idea supported by liberal Democrats, e.g., Pat Leahy, Eric Holder, Loretta Lynch, and Sally Yates.

Of late, however, one of the most reliably liberal and Democratic cities in the country has discovered the virtue of mandatory minimum sentencing.  Baltimore is plagued by rampant murder (perhaps the Freddie Gray rioters were given too much "space to destroy"), so Baltimore's leaders, who are almost all African American, have decided to seek mandatory minimum sentencing for gun-wielding hoodlums:

Baltimore leaders on Friday proposed changing city law to require a mandatory one-year sentence for illegal gun possession in much of the city -- within 100 yards of a school, park, church, public building or other public place of assembly.

The bill would prevent any part of the one-year sentence from being suspended, and preclude those with such convictions from receiving parole.

Mayor Catherine Pugh said she'd like to do more to restrict guns, but "this is what we can do locally" without changing state law.

Pugh acknowledged that there is a church or a school "on nearly every corner" in the city, and said "as it relates to this legislation, that's a good thing."

Police Commissioner Kevin Davis praised the bill as a much-needed change to help the city address its soaring violence. Baltimore is on pace to surpass 300 homicides for the third year in a row. Before 2015, that mark hadn't been reached since the 1990s.

Liberal academics almost all fall in line with The Received Wisdom of sentencing "reform."  Then again, liberal academics don't have to live in crime racked neighborhoods  --  a fate foisted off on Lesser People.

Cafeteria Duty

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Jess Bravin of the WSJ has this light-hearted look at the SCOTUS cafeteria and the traditional assignment of the junior justice to the governing committee.

Justice Gorsuch arrives at the cafeteria as something of a stealth candidate. President Donald Trump, despite running several restaurants in his hotel empire, selected a judge with practically no food-service experience.

The 10th U.S. Circuit Court of Appeals, where Justice Gorsuch previously sat, has no cafeteria in its Denver courthouse. He avoided signaling his culinary philosophy during confirmation hearings in April.

"The Senate overlooked that," laments retired Justice John Paul Stevens, who first dined in the cafeteria as a law clerk in the 1940s.
The article headline advises, "Don't Eat There."

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New Hampshire Decriminalizes Pot:  New Hampshire Governor Chris Sununu signed a bill into law which reduces the penalty for possession of 3/4 oz. or less of marijuana or 5 grams of hash and converts it to a civil offense.  The Associated Press reports that a person caught with these amounts of pot or hash would face a fine of up to $100.  New Hampshire joins 20 other states which have decriminalized possession of marijuana.   

More Arrests in NY Gang Killings:  Suffolk County, NY, police officials announced Wednesday that at least four additional MS-13 members had been arrested for the April murders of four young men at a Long Island park.  Liz Robbins of the NY Times reports that with the recent arrests, 15 members of the gang will be facing charges in the quadruple homicide, while a total of 17 members face federal murder charges for at least 12 murders and other crimes.  The crackdown began in March when MS-13 members were arrested for the brutal April 2016 machete/baseball bat murders of two teen-aged girls in Brentwood.  After the bodies of the four Long Island victims were discovered, Attorney General Jeff Sessions said in a statement to MS-13 members, "We are targeting you, we are coming after you."   
On June 26, the U.S. Supreme Court granted in part the Government's request to stay the injunctions against enforcement of the travel ban for nationals of six countries.  The court left the injunction in effect for, among others, persons with "a close familial relationship" with a person in the United States.  How close is "close"?  The Supreme Court did not say.

The Government's interpretation was largely along the lines of family relationships that Congress has designated as close enough to file an application for a family-based immigration petition, which seemed sensible to me.  The U.S. District Court did not think so and modified its injunction to include "grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States."  Sounds like something out of Gilbert and Sullivan

The District Court also enjoined application of the Executive Order to two classes of refugees, those who "(i) have a formal assurance from an agency within the United States that the agency will provide, or ensure the provision of, reception and placement services to that refugee; or (ii) are in the U.S. Refugee Admissions Program through the Lautenberg Program."

Acting swiftly in response to a petition by the Government, the Court issued this order:

The Government's motion seeking clarification of our order of June 26, 2017, is denied. The District Court order modifying the preliminary injunction with respect to refugees covered by a formal assurance is stayed pending resolution of the Government's appeal to the Court of Appeals for the Ninth Circuit.

Justice Thomas, Justice Alito, and Justice Gorsuch would have stayed the District Court order in its entirety.
Hmmm.  The District Court's furthest stretch, to refugees who merely have an assurance from an agency but no other contact within the U.S., is stayed, but the rest remains in force.  This is the Supreme Court that our Politically Correct academia keeps telling us is "conservative."

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ICE Beefing Up to Enforce the Law:  As it is with virtually every country in the civilized world, it is a crime to enter the United States without government authorization.  An American caught sneaking into Mexico will typically be thrown in jail and fined. Paul Bedford of the Washington Examiner reports that the federal Immigration and Customs Enforcement agency is hiring an additional 10,000 agents to resume enforcing U.S. immigration law.  In an interview, the acting director of ICE, 30-year veteran Thomas Hormon, said that since the handcuffs have been taken off of law enforcement, "illegal border crossings have crashed by almost 70 percent."  The drop in illegal border crossings is allowing ICE to focus more resources on illegal immigrants in jails, working jobs, or on the run.  "ICE is open for business.  We're going to enforce the laws on the books without apology, we'll continue to prioritize what we do.  But it's not OK to violate the laws of this country anymore, you're going to be held accountable," he said.

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 CA Gun Control Hits Roadblocks:  Multiple problems are preventing enforcement of California's latest gun control laws.  The Washington Free Beacon reports that a new law expanding definition of illegal assault weapons failed to be submitted for public comment under the state's Administrative Procedures Act, preventing implementation for at least six months.  Another law which allows the state to confiscate magazines holding more than ten rounds has been blocked by a federal judge who held that it may be a violation of the Heller decision.  Another law restricting ammunition sales to state licensed retailers cannot be enforced because of delays in producing the regulations and making the application process available. 

Multiple Assaults on Prison Guards Probed:  In May, 120 inmates at California's Pelican Bay prison assaulted eight corrections officers in the exercise yard.  Don Thompson of the Associated Press reports that authorities still aren't sure if the assault, which sent the guards to the hospital, was planned.  On Monday, a San Diego prison inmate broke the nose of a corrections counselor and three other inmates attacked responding officers.  Last Thursday, three other officers were hospitalized after an assault at the same prison, and there were two other inmate-on-guard assaults later that day.  Multiple attacks on corrections officers are rare and the state is investigating the possibility that they were not random.
A:  Drug overdoses.

This amazing and depressing fact is only one of those included in Deputy Attorney General Rod Rosenstein's compelling defense of DOJ's policy, in the typical case, of charging the most serious readily provable offense.  Trafficking dangerous drugs is the single most frequently prosecuted federal crime.

Rosenstein's recent statement follows the break.

I don't really need to add much, so I'll limit myself to two brief comments.  First, to me, the most straightforward justification for the policy is simply that we should expect prosecutors to charge defendants with what they actually did.  An indictment should tell the truth, neither more nor less.  Second, the extent of the drug crisis, from street pushers to pill mill doctors feeding on (and building) misery, ignorance and addiction has come to the point that the arguments to go easier on drug trafficking have morphed into self-parody.  Do not expect them to generate any less enthusiasm, however, in academia.
The U.S. Court of Appeals for the Ninth Circuit today decided In re National Security Letter, No. 16-16067:

In this case, we consider challenges to the constitutionality of the law authorizing the Federal Bureau of Investigation (FBI) to prevent a recipient of a national security letter (NSL) from disclosing the fact that it has
received such a request. 18 U.S.C. § 2709(c). An NSL is an administrative subpoena issued by the FBI to a wire or electronic communication service provider which requires the provider to produce specified subscriber information that is relevant to an authorized national security investigation. Id. § 2709(a). By statute, the NSL may include a requirement that the recipient not "disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records" under the NSL law. Id. § 2709(c)(1)(A). Both the information request and the nondisclosure requirement are subject to judicial review. See id. § 3511. (Because § 2709 and § 3511 work together, we refer to them collectively as "the NSL law.")

Certain recipients of these NSLs claim that the nondisclosure requirement violates their First Amendment rights. We hold that the nondisclosure requirement in 18 U.S.C. § 2709(c) is a content-based restriction on speech that is subject to strict scrutiny, and that the nondisclosure requirement withstands such scrutiny. Accordingly, we affirm.
The opinion is by Judge Ikuta, with Judges R. Smith and Murguia concurring.  I think a petition for rehearing en banc is nearly certain.

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Judge Loosens Travel Ban:  A federal judge in Hawaii has ruled to loosen the recently-implemented Travel Ban restrictions on U.S. visitors from six middle eastern countries.  Brent Kendall of the Wall Street Journal reports that District Judge Derrick Watson disagrees with the ban's definition of close family members a visitor must have in the U.S. in order to enter the country.  While a traveler with a spouse, parent or sibling was allowed, those with grandparents, grandchildren, in-laws, aunts, uncles, cousins, nieces and nephews were not.  The judge's order requires that the government include these relatives. 

NY Heroin/Cocaine Ring Taken Down:  Suffolk County Police and agents from the DEA have arrested 16 people involved in a drug smuggling ring that distributed heroin and cocaine to communities across Long Island.  Andrew Smith of Newsday reports that members of the ring would make deliveries across the county from 8:00 AM to midnight, ferrying the drugs to a network of stash houses in expensive cars.  Along with drugs, thousands in cash, a $50,000 Rolex watch and several vehicles, police confiscated several firearms, some modified to fire up to 50 rounds.  In another drug bust $2.7 million in cocaine was seized by Customs Enforcement agents from a fishing boat in Miami earlier this week.  Magnetic Media reports that five people were taken into custody including one underage child.        

Political Points vs. Public Safety

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

Efforts by state and local politicians in California to direct local law enforcement to not cooperate with the federal government may score points in the world of politics. In the real world, public safety is going to suffer.
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A more immediate consequence of refusing to cooperate with federal law enforcement may be a decrease in funding, personnel, and equipment provided by federal authorities to local task forces which enforce California state laws. These task forces, including those led by the Sheriff's Department in Los Angeles and others across the state, combat a myriad of state crimes that include human trafficking, gangs, drugs, auto/cargo theft, hate crimes, and environmental crimes. Political decisions to end cooperation with federal authorities on their law enforcement priorities may result in the federal Department of Justice deciding to remove these resources and direct them to states not antagonistic to federal law enforcement. Such a move would diminish public safety in Los Angeles and across California, where local law enforcement is already understaffed and underfunded.

At the end of the day, refusing to cooperate with federal law enforcement may be a winning political strategy; it is not a winning public safety strategy.
In a masterpiece of bad timing, the pro-criminal Urban Institute tells us  --  on the day we learn that the steep spike in murder is now in its third year  --  that the problem is not murder, or crime at all, but us.  We're small-minded, racist and punitive. We need to concentrate, not on murder, but on our Neanderthal attitudes toward what is euphemistically called "serious crime."

[W]e looked at prison term trends in a new way and found that the longest terms are getting longer, particularly for violent offenses. But how long is too long? What is long enough? And do longer prison terms really translate into justice, rehabilitation, and public safety?

Efforts to meaningfully reduce the prison population must consider these questions, which may mean rethinking how we treat people convicted of serious crimes.

I'm grateful, though, that at least the Urban Institute doesn't promote the fiction that our prisons are filled with dope smokers.  It understands, and is pretty frank about, the fact that most inmates are in for violent crimes.  What it's less candid about is what's going to happen if we follow its suggestion for earlier release.  Maybe it hasn't read the recidivism statistics. Or maybe it has, but doesn't care.

Murder Continues to Rise in 2017

The information and predictions site 538 tells us that murder is on the increase for the third straight year.  The spike is smaller this year than in the last two  --  but this news is only so good, given that the 2015 and 2016 murder rate increases were substantial, the largest since at least the elder Bush was President.  Thus, 538 says that, while the figures so far this year are insufficient to project long-term trends:

...there tend to be more murders in the second half of the year, when it's warmer, especially in northern cities. Between 52 and 54 percent of big-city murders occurred in the second half of the year in every year between 2010 and 2015, according to the FBI's data.  So murder rates in those cities will likely ultimately be higher than the midyear statistics suggest.

Second, recent history suggests that not only does the absolute number of murders increase in the second half of the year, but the rate of increase also accelerates.

Ooooooops.  Hey, but let's keep lowering sentences anyway!

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Illegal Kills One in DUI Crash:  A illegal alien who crashed a van on a Nebraska highway killing one passenger is facing charges of vehicular homicide, DUI and driving without a license.  Katherine Lam of Fox News reports that Nemias Garcia-Velasco, 32, was deported in 2009 and 2011, and voluntarily returned to Mexico five times, before crashing his van on Interstate 80 last week.  Garcia-Velasco was driving his van at high speed at around 1:00 PM on July 5, when he swerved into a guardrail, flipping the van which burst into flames.  Silvano Torres, a father of three who was riding in the van, died in the crash.  Garcia-Velasco was taken to a hospital where his blood alcohol tested .243, three times the legal limit.   

Harmonizing with Only One Note

Ed Kozak in his Lifezette article yesterday notes that one prominent crowdfunding site turned its back on police officers targeted for murder because the lawsuit they aim to file does not promote "harmony:"

The website YouCaring, which describes itself as a company fostering "compassionate crowdfunding," has sent a loud and clear message to law enforcement officers across the country: It finds pro-police causes to be too "controversial" to host.

On Sunday the crowdfunding site removed donation pages set up by Donna Grodner, a lawyer who is suing Black Lives Matter and its leaders. Their legal action is on behalf of Baton Rouge police officers who were targeted for assassination by assailants inspired by Black Lives Matter rhetoric.

"In alignment with our mission, we removed this fundraiser because it was not within our community guidelines around promoting harmony," YouCaring chief marketing officer Maly Ly told PBS in an email. "We are not the right platform to air grievances, or engage in contentious disputes or controversial public opinion."

As you might expect, there is more to this story.

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Illegal Immigrant Charged With Murdering Her Family:  A 33-year-old woman charged with murdering four of her children and her husband on July 6 smiled for cameras at her first hearing last Friday.  The Associated Press reports that Isabel Martinez has been identified by ICE as an illegal immigrant from Mexico, but the agency does not know how long she has been in the U.S.  Police say that last Thursday Martinez stabbed and killed her 10-year-old daughter, her three sons, aged 7,4, and 2, and her husband at their home in Loganville, GA.  She also stabbed her 9-year-old daughter, who survived with serious injuries.

Gang Member Made Video of Murder:  At a preliminary hearing Monday, an FBI agent told the Fairfax County, VA, court that one of the MS-13 gang members who participated in last December's brutal revenge murder of a 15-year-old girl recorded the killing on his smartphone.  Justin Jouvenal of the Washington Post reports that 17-year-old Jose Cerrato orchestrated and videoed the murder to prove his willingness to carry out orders from gang leaders.  A group of gang members lured the girl into a park, forced her to undress, and stabbed her with a knife, and a wooden stake, while Cerrato narrated on his phone.  The judge ruled that he will be prosecuted as an adult.

Phone Access During Executions?

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Because of what are said to be "botched executions," abolitionists (both those who admit they are and some who don't) are pushing for the right to have access to phones during the execution process so that they can reach judges in the event of, shall we say, incipient botching.

Should they get it?

Kent and I think not.  We are quoted in a balanced article by Jordan Rubin in Bloomberg BNA.

"If we are to have an effective death penalty, as the Supreme Court has said the Constitution allows, then, at some point, the opportunity for litigation must come to an end," William Otis told Bloomberg BNA via email.
Jim Norman reports for Gallup:

WASHINGTON, D.C. -- Overall confidence in the police has risen slightly in the past two years, with 57% of Americans now saying they have "a great deal" or "quite a lot" of confidence in law enforcement -- matching the overall average for the 25-year Gallup trend.
The reversion to the mean is good news, but there are some disturbing trends in the crosstabs.

Though the overall numbers have rebounded, the years of national turmoil have only deepened the divide in the confidence that Americans of different ages, ethnicities and political beliefs say they have in the police. The loss of confidence is most apparent among Hispanics, liberals and those younger than age 35.
Over half a century after the Civil Rights Act of 1964, the divisions by race and ethnicity should have diminished, but race-baiting by "activists" whose careers depend on division make things worse instead of better.  In addition, our young are attending educational institutions that have become more uniformly left wing over the years.  I believe this produces a Reverse Kingsfield Effect where young people enter college with some degree of common sense and walk out "with a skull full of mush."

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NY Judge Frees Cop Attacker  A New York judge is taking heat for releasing a repeat felon arrested for attacking a police officer Saturday.  Fox News reports that, after attempting to wrestle away a female officer's gun in a Brooklyn precinct house and telling arresting officers that he wanted to kill a cop, 29-year-old Kurdel Emmanuel was released on his own recognizance Sunday by Judge Loren Baily-Schiffman.  Emmanuel is facing charges of assault and attempted robbery.  The District Attorney had asked Judge Baily-Schiffman to set bail at $250,000.  His release comes one week after another habitual felon who said he hated cops shot and killed a female New York police officer. 

Federal Court Overturns Death Sentence:  A triple-murderer sentenced to death for the 1982 killing of a car salesman has won a Ninth Circuit ruling overturning his death sentence.  Jenny Wilson of the Las Vegas Review-Journal reports that Nevada murderer Tracy Petrocelli shot and killed Reno car salesman James Wilson, five months after killing his 18-year-old girlfriend in Washington state.   Petrocelli, a habitual felon who plead guilty to kidnapping his girlfriend in May of 1981, was given a suspended sentence by a Washington judge and assigned to drug rehab.  Later that year he killed the girlfriend.  Since his conviction for murdering the car salesman, Petrocelli has also plead guilty to killing another man in 1981  The Ninth Circuit's July 5 ruling announced that it was prosecutorial misconduct to introduce the testimony of a psychiatrist at the sentencing hearing, who had failed to give Petrocelli his Miranda warning prior to interviewing him.  Since his conviction Petrocelli, who has never claimed innocence, has had his claims of trial and sentencing errors reviewed by five courts over the past 35 years. 

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Illegal Immigrant Arrested for Rape:  On June 15, police arrested three Hispanic teenagers for the home invasion and rape of a 23-year-old mother of two.  Worldnetdaily and Fox5 Atlanta report that Josue Aguilar Ramirez, 19, Francisco Palencia, 17, and an unidentified 15-year-old, face charges of kidnapping, rape, aggravated sodomy, and aggravated battery.  Police report that the victim returned home from work with her two small children and found two men wearing ski masks and armed with stun guns in her kitchen.  When she resisted the men doused her with boiling water, tased her, and dragged her into the bedroom where she was sodomized and raped in front of her 4-year-old son.  While the County Sheriff identified Ramirez, the oldest assailant, as an illegal alien with an active immigration hold from ICE, none of the Atlanta area media has bothered to report this.

Crime Drops After Cancelling Sanctuary City:  In 2008 the city of Phoenix, AZ cancelled its sanctuary city status, a year later crime dropped significantly.  William Lajeunesse of FoxNews reports that while pro-sanctuary city advocates claim that refusing to cooperate with ICE helps reduce crime because illegals no longer fear deportation when they report crimes, the experience in Phoenix was just the opposite.  In 2009 the murder rate dropped 27%, Robberies 23%, assault 13%, burglaries 14%.  The rates in these categories dropped in 2010 as well.  A six year study by the University of California Riverside found that while violent crime was slightly higher in sanctuary cities, there was no significant difference in crime rates between them and non-sanctuary cities. 

Beats Me, Ask SCOTUS

Yesterday in the Hawaii travel ban case, District Judge Derrick Watson denied the Plaintiffs' Emergency Motion to Clarify Scope of Preliminary Injunction.

Upon careful consideration of the parties' submissions, it is evident that the parties quarrel over the meaning and intent of words and phrases authored not by this Court, but by the Supreme Court in its June 26, 2017 per curiam decision. That is, the parties' disagreements derive neither from this Court's temporary restraining order, this Court's preliminary injunction, nor this Court's amended preliminary injunction, but from the modifications to this Court's injunction ordered by the Supreme Court. Accordingly, the clarification to the modifications that the parties seek should be more appropriately sought in the Supreme Court.
Ariane de Vogue has this article for CNN.  The full text of the order is here.

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What Drove The NY Cop Killer?  As reported yesterday, a habitual felon was shot dead on Wednesday after executing a female New York Police Officer as she was sitting in a police vehicle writing in her notebook.  In a Facebook post the shooter made his hatred of police very clear.  Manhattan Institute scholar Heather MacDonald has this piece in the New York Post on what motivated Alexander Bonds to kill Officer Miosotis Familia.  "Alexander Bonds' anti-cop rhetoric echoes the Black Lives Matter-inspired vitriol spewed by previous cop assassins over the last three years," writes MacDonald, also noting that the claims that blacks are disproportionately shot by police is false.  Black males made up 42% of all cop-killers over the last decade, but are only 6% of the nation's population.  A cop is 18.5 times more likely to be killed by a black male than an unarmed black male is to be killed by a cop.    

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Cal Supremes Limit Habitual Felon Releases:  In the face of the enactment of multiple laws reducing the consequences for crimes, the California Supreme Court announced a decision Monday giving judges broad authority to deny sentence reductions for habitual criminals.  Maura Dolan of the Los Angeles Times reports that the court's 4-3 decision resolved questions raised by the adoption of Proposition 36, which made criminals with two prior violent or serious crimes eligible for early release if their third strike was for a crime defined as nonviolent or nonserious, and Proposition 47, which converted theft, fraud, and drug felonies valued at under $950 into misdemeanors and allowed those serving time for those offenses to petition for early release.  The definition of eligible defendants under Prop. 47 was that they did not pose a risk of committing violent and serious crimes.  In its decision, the court's majority said that that definition did not apply to third strikers serving 25-to-life sentences for two violent or serious priors and a nonviolent third felony conviction.  In his dissent, Justice Goodwin Liu wrote that the majority concluded that "the drafters of Proposition 47 pulled a fast one on an uninformed public," which he disagreed with.  The CA Secretary of State reported that the ACLU and two Soros funded groups pooled $5.8 million of the $8.5 million spent on adds supporting Proposition 47, "The Safe Neighborhoods and Schools Act," while state law enforcement and victims groups cobbled together $434,000 to oppose it. 

Cop Hater Kills NY Officer:  A repeat felon who expressed his hatred for police on Facebook was shot and killed by officers responding to the unprovoked shooting of an NYPD officer earlier today.  Colleen Long and Jennifer Peltz of the Associated Press report that Alexander Bonds was seen on security video approaching a parked police vehicle where Officer Miosotis Familia was writing in her notebook.  According to her partner, Bonds fired one .38 caliber shot through the side window into Officer Familia's head, then ran off.  Officer Familia's partner radioed for help and responding police caught Bonds a few blocks away and shot him when he pulled a gun. Bonds had been paroled in 2013 after serving time for armed robbery.  He had priors for drug dealing and assaulting an officer.  Don Thompson of the Associated Press reports that last week, a 25-year-old Sacramento Sheriff's Deputy was shot in the face by a convicted drug dealer linked to a 2008 double murder.  Police arrested the suspect, Nicory Marquis Spann, who was hiding in a nearby hotel.  The officer, Alex Ladwig, was seriously injured but is expected to survive.  Span is facing charges of attempted murder of a police officer.

Is the Drug War a Failure?

I'm opposed to the legalization of drugs.  Yes, it would increase "freedom," very broadly construed, but comes at too high a price to the well-being of the country.  I might add that, except for pot, this is the overwhelming view of my fellow citizens.

It is nonetheless often said by those supporting drug legalization that the drug war is a failure, and simply for that reason, should be abandoned.

Is that true?  Is the drug war a failure?

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