August 2017 Archives

A:  Although we are often told that the answer is "yes," in fact the answer is "no, not at all."

Now if abolitionists wanted to ask whether the United States is isolated among predominately white countries in using the death penalty, there would be a different answer.  But being politically correct, they prefer to avoid that question.

Next question:  There are eight countries in the world with a population over 150,000,000.  How many have an active death penalty?

Answer:  Seven.
The battle over criminal justice "reform" can be seen as a struggle between two forces: Some, in the name of increased safety and the better lives and opportunities safety creates, prefer crime suppression as the touchstone of progress. Others see incarceration itself as the problem,  certainly at its present levels. They think that, in a country dedicated to freedom, less incarceration is in order even if it means a degree of increased crime.  (Those claiming we can significantly reduce incarceration without increasing crime simply are not serious.  Fifty years of nationwide data show this proposition is false).

Who has the better of the argument?  I'm in the first camp, for reasons I've elaborated in dozens of posts.

But the debate over criminal justice reform elides a crucial point.  How much crime and incarceration we get depends less on the laws we adopt  --  tough or easy  -- than on the culture we create.  In the 1950's, we had an admirable degree of safety (roughly comparable to what we have now) with a prison population vastly smaller.

This did not happen by magic.  It happened because of what is derisively called "bourgeois" culture.  Astonishingly, and with great courage, two professors, Amy Wax of Penn and Larry Alexander of San Diego, have described what we can achieve when we embrace standards and reject excuse-making.

Think for Yourself

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James Freeman of the WSJ points us to some advice for students from 15 Ivy League professors.  Freeman calls the advice "a flagrant micro-aggression."

Release Decisions By Computer

Eric Siddall of the L.A. Association of Deputy District Attorneys has this post.

As stories emerge about the Arnold Foundation's "algorithm" pretrial release tool, we should be disturbed about the results.  As covered in a previous blog, use of the tool is linked to two murders and the wholesale release of dangerous felons.
However, a Wired story raises even more questions about the Arnold Foundation algorithm.   It turns out the tool was given to San Francisco for free, but with conditions that bars the disclosure of "any information about the use of the Tool, including any information about the development, operation and presentation of the Tool."
There is something to be said for having decisions made according to a formula rather the subjective judgment of a human decision-maker.  In terms of practical effects, the formula may predict dangerousness better than a seat-of-the-pants judgment.  In terms of fairness, a formula avoids the problem of different judges making different decisions on the same facts.  A formula can also reduce bias problems, if done correctly.  Those were the reasons behind the Sentencing Reform Act of 1984 and the originally mandatory guidelines under that law.  A computer algorithm is essentially just a sophisticated formula.

Liberals Discover Problems with Clemency

For years on this blog, I have campaigned against scattershot clemency for federal felons. While there is without doubt a place for clemency, and the Framers were wise to make it available to the Executive Branch, it can also be abused  --  as my liberal critics suddenly discovered over the weekend.  This was after years of their telling us that America needs to be a land of mercy and second chances, that we're too quick to look to punishment rather than understanding, there's an inherent political influence in prosecution and sentencing, and that older people in particular are good bets to remain in (or to be returned to) the community, because they're unlikely to re-offend and, well, simply because it's inhumane to incarcerate the elderly.

If anyone heard liberals repeat a single word of this years-long refrain in connection with Sheriff Joe, please quote it and link to it.  I sure haven't.

Far-leftists in Berkeley, California demonstrated once again this weekend how strongly they resemble the fascists they claim to oppose. James Queally, Paige St. John, Benjamin Oreskes and David Zahniser have this article in the L.A. Times.

Thousands of demonstrators carrying signs with slogans like "Stand Against Hate" descended on Berkeley's Martin Luther King Jr. Civic Park on Sunday for what many hoped would be a peaceful march against bigotry and President Trump.

But it was soon punctuated by tear gas and a scattering of violent skirmishes. Some anti-fascist protesters, wearing black and with their faces covered, chased or beat Trump supporters and organizers who had scheduled and then canceled the "anti-Marxist" rally, citing concerns over safety.
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In Berkeley, the demonstration of more than 4,000 people pulled heavily from area labor unions, church groups and liberal activists -- but also scores of young people clad in all black, some carrying shields and others with bandannas pulled over their faces.

Those activists are sometimes referred to as "antifa," a name taken by anti-fascist organizations formed to oppose white nationalists. They are known for their "punch a Nazi" bent.
There are two problems with "punch a Nazi."  First, even swastika-bedecked scum are entitled to express their repugnant beliefs as long as they do so peacefully.  Second, the person punched may not actually be a Nazi.  Say one of the "antifa" crowd takes it upon himself to decide who is a "hater" and act as legislator, judge, jury, and executioner to deliver the punishment he deems appropriate for what he deems to be an offense.  How is he any better or any less of a "hater" than those he opposes?  Obviously, he isn't.

Pardoning Sheriff Joe

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President Trump pardoned former Sheriff Joe Arpaio Friday, as he hinted he would at the earlier rally in Phoenix.  Arpaio was the Sheriff of Maricopa County, which includes Phoenix.  Shane Harris has this article in the WSJ on the divided reaction within the Republican Party.  The WSJ also has this editorial on the negative side of the reaction.
CBS 13 Sacramento has this story following up on the Proposition 66 decision, noted here.  The report includes some elements of the earlier story, but the new material features Sandy Friend, whose 8-year-old son suffered horrifically at the hands of a true monster.

News Scan

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Florida Murderer Executed:  The state of Florida executed a murderer Thursday using a new anesthetic, etomidate, in its three drug execution process.  Jason Dearen of the Associated Press reports that Mark Asay was sentenced to death for the 1987 murders of Robert Booker and Robert McDowell.  At the time of McDowell's murder, he was dressed as a female prostitute, whom Asay had hired, then killed when he learned McDowell's true gender.  A legal challenge to the use of etomidate, which defense attorneys claimed would cause pain, was rejected by the Florida Supreme Court earlier this month. The drug was a substitute for midazolam, which has become difficult to obtain after anti-death penalty groups pressured drug companies not to provide it for executions.  Asay's execution was uneventful.  He was unconscious in less than three minutes and pronounced dead eight minutes later. 

Commission Formed to Study CA Sentencing:  The Los Angeles County Board of Supervisors has authorized the creation of a 27 member commission to study the impact of recently enacted California sentencing reforms on public safety.  Nina Agrawal of the Los Angeles Times reports that the Board's decision was in response to the February 20th murder of a Whittier police Officer by Michael Mejia, an ex-con who had repeatedly been arrested and released on probation under California's Public Safety Realignment law (AB109).  While opponents of the commission argued that a 2016 study by the San Francisco based Public Policy Institute found that Realignment did not cause increased crime, the Los Angeles County Sheriff and the Mayor of Whittier testified that crime has increased significantly because of that law.  After Officer Boyer's murder, the state's Department of Corrections and Rehabilitation claimed that AB109 was not a factor in keeping Mejia on the streets. That claim is disputed by those responsible for keeping track of him.  In addition to evaluating the impact of AB109, the commission will study the effect of Proposition 47, adopted in 2014 to downgrade property and drug felonies to misdemeanors, and Proposition 57, Governor Brown's ballot measure which dramatically expands parole eligibility for habitual felons and qualifies thousands of inmates for early release.     

Voting From The Slammer

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Eleven years ago, the Second Circuit en banc rejected the notion that the Voting Rights Act prevents states from disenfranchising convicted felons while they are in prison.  In 2010, a panel rejected the notion that the Constitution requires it.  But no truly bad idea ever completely dies, it seems.  A ballot initiative has been proposed in California to let all felons vote, Patrick McGreevy reports for the L.A. Times.

So candidates for office should make a pitch for the votes of Charles Manson, Lawrence "Pliers" Bittaker, serial abductor/rapist/torturer/murderer Charles Ng, and other multiple murderers?  Prisons are often located in sparsely populated areas, so will prisoners elect their very own member of the county board of supervisors?

The good news is that felon disenfranchisement is in the California Constitution, and they will need 585,407 signatures to qualify a constitutional amendment for the ballot.  McGreevy notes that this is "a difficult task for a largely grass-roots effort."

Not long ago, I would have predicted that even if it got on the ballot it would be soundly rejected, but given the vote on the addle-brained Proposition 57, I can't be confident of that any more.
The U.S. Supreme Court issued a summer orders list today, and it includes a grant of certiorari, which is unusual for a summer list.

The case is Murphy v. Smith, 16-1067.  It involves 42 U.S.C. § 1997e(d)(2).  Section 1997e applies to civil rights suits by prisoners.  Subdivision (d)(2) reads:

Whenever a monetary judgment is awarded in an action described in paragraph (1), a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney's fees awarded against the defendant. If the award of attorney's fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant.
The Question Presented, as framed by attorneys for the plaintiff prisoner, is:

Whether the parenthetical phrase "not to exceed 25 percent," as used in 42 U.S.C. § 1997e(d)(2), means any amount up to 25 percent (as four circuits hold), or whether it means exactly 25 percent (as the U.S. Court of Appeals for the 7th Circuit holds).
Support for the death penalty comes in cycles.  It was  getting lower in the late Fifties, hit bottom in about 1967, accelerated quickly for about the next three decades as the increasing number and gruesomeness of murder sunk in with the public.  It then started falling for maybe 15 or 20 years as the murder rate plummeted.

The question is where it goes from here, and the answer is up.

First. abolitionism has already gobbled up the conceptual low-hanging fruit (eliminating the death penalty for16 and 17 year-old's and mental defectives), and had its success in the low-hanging, liberal states (Illinois, New Jersey, Washington, New Mexico, etc.).  The terrain, both for geography and argument, is tougher from here on in.

Second, the cycle of crime has again turned bloody and brutal. This has been happening since late 2014.  There is decently clear evidence (in several state elections last year) that the courts, probably with one eye on public opinion, will be headed in  a different direction. Today's landmark win by Kent in the decidedly liberal California Supreme Court  --  and a lopsided win at that  -- is not a warning shot.  It's a bullseye in abolitionism's fuselage.  And, of course, measures to abolish the death penalty lost everything they could at the ballot box last year. Finally, the actual number of executions nationwide seems headed for a slight but noticeable increase over last year, one of the very few times this has happened in the last two decades. 

When a SCOTUS majority said two years ago in Glossip v. Gross that the death penalty is constitutional, the handwriting was on the wall.  Essentially nothing has gone right for abolitionism since then, and certainly since London, Barcelona, and Charlottesville. Well-publicized and especially cold-blooded murders by Jihadists, and now by Nazis, put the death penalty debate in a new light.

Let me just say it in plain language:  The Brownshirts are back and the public knows it.  We got a searing lesson at ghastly cost when we hesitated in dealing with them last time 80 years ago.  

Never again means never again.

The bloody tide of recent history; a SCOTUS majority that understands the problem (and is likely to get better with new members appointed by President Trump); and now an acceleration of grisly murders with terrorist and/or Nazi overtones  --  all this, in my view, will make a difference in the public's appreciation of the symbolic value of capital punishment.

All in all, the outcropping from the California Supreme Court's ruling, and the evidence from our streets, suggests that the problem  --  hate-driven murder  --  Is well-suited to, if it does not demand, the expedited procedures we will now see.coming into place in the Golden State. Abolitionism is in trouble. Abolitionists' mistake was in believing that an oasis here and an oasis there made an ocean. It didn't, and even the oases are starting to dry up. 

News Scan

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Defending Jeff Sessions:  While we have posted several times in support of Attorney General Jeff Sessions on this blog over the past several months, Heather MacDonald does a far more thorough job in her piece in the National Review.  The contrast between Sessions and Obama Attorney General Eric Holder is particularly enlightening.

Proposition 66 Upheld

Prop66.jpgThe California Supreme Court today upheld the death penalty reform initiative, Proposition 66, rejecting the attacks on the initiative nearly across the board.  The court was unanimous in rejecting the attacks that would have invalidated the initiative in its entirely.  It divided 5-2 on the interpretation of the five-year limit and on the provision that allows superior court decisions in habeas corpus cases to be appealed to the intermediate courts of appeal rather than the state supreme court.

The case is Briggs v. Brown, S238309.

CJLF has this press release.

We have press coverage from Maura Dolan in the L.A. Times; Cheryl Miller in The Recorder; Sudhin Thanawala and Brian Melley for AP.

KOVR, CBS-13 in Sacramento has this report with me and archival footage of opponent Ron Briggs.

News Scan

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ICE Nabs 32 Alien Sex Offenders:  An Immigration and Customs Enforcement sting operation lead to the arrest of 32 illegal alien sex offenders in Long Island earlier this month.  Anna Giaritelli of the Washington Examiner reports that 12 of those arrested were registered sex offenders, and all had been convicted of crimes ranging from sexual abuse to first degree rape.  Included in the roundup were a 24-year-old male from El Salvador convicted of first degree sexual abuse of a 4-year-old child and a 32-year-old Honduran convicted of four sex crimes and on probation for molesting a 15-year-old girl.  All of the offenders were in the U.S. illegally and will be deported.  
When Sri Srinivasan was nominated to the U.S. Court of Appeals for the D.C. Circuit, people fell all over each other to proclaim how smart he is and how well qualified he is.  But smarts are not enough.  If a lower court judge uses his smarts to evade Supreme Court precedent, he can do a lot of damage.  For instance, he might set a criminal free for a reason which has nothing to do with the reliability of the evidence or the justice of the case.

Orin Kerr at VC has this post on United States v. Griffin, decided by the D.C. Circuit on Friday.  Griffin was suspected of being the getaway car driver in a gang murder.  The police applied for a search warrant and provided the magistrate with the reasons they suspected him.  In asking to seize electronic devices found in the home, they merely relied on the common facts that "gang/crew members involved in criminal activity maintain regular contact with each other ... and they often stay advised and share intelligence about their activities through cell phones and other electronic communication devices ...."  The warrant authorized seizure of "all electronic devices."

Orin is interested in the substantive Fourth Amendment aspects and particularly computer law, and he discusses at some length the complexity of the overbreadth issue.  From the very fact that the issue is difficult enough to interest a law professor and have him declare this to be "an important computer search case" one ought to suspect that the invalidity of the warrant was not so clear as to disentitle the prosecution from relying on the good-faith exception of United States v. Leon.  One would be correct.

News Scan

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Gang Member Held on $19.5 Million Bail:  A Los Angeles gang member is being held in lieu of over $19.5  million bail for attempting to murder a police officer.  The Bay City News reports that Jose Rauda has been charged with 46 counts, including 19 counts of attempted murder on a police officer.  The charges stem from a June 15 attempt by police to conduct a probation search of Rauda at his South Los Angeles home.  When officers arrived Rauda fled.  He was spotted later hiding in a garbage can.  After shooting an approaching police dog, Rauda ran again and was spotted in a nearby home where he opened fire on approaching officers.  No officers were injured.   

Missouri Governor Halts Execution:  The Governor of Missouri has halted today's scheduled execution of convicted murderer Marcellus Williams.  The Los Angeles Times reports that Williams was sentenced to die for the 1998 robbery and murder of St. Louis newspaper reporter Lisha Gayle. The victim was stabbed 47 times with a butcher knife when she came out of the shower. Fox News reported  that yesterday, Williams' attorneys asked the U.S. Supreme Court to stay his execution and consider new evidence that his DNA was not found on the murder weapon.  One of his defense lawyers stated that the conviction was based on testimony from two felons.  But the Missouri Supreme Court, which refused to consider d Williams DNA claim last week, unanimously upheld his conviction and sentence in its 2003 decision on direct appeal, which details the substantial evidence of guilt.  The court concluded "that the death sentence in this case is neither excessive nor disproportionate to the penalty imposed in similar cases, considering the crime, the strength of the evidence and the defendant.  Williams confessed to the murder.  The crime involved a vicious attack during a burglary.  Williams has a lengthy and violent criminal record.  The sentence is not disproportionate."  

Racism Goes Solar

Yesterday's solar eclipse has something to teach us about America's rancid racism.

Now you might think I'm pulling your leg, and that no one could be so far gone as to think that an eclipse of the sun has anything to do with race.

This is because you are not thoroughly acquainted with legal academia.
Joe Palazzolo reports for the WSJ (emphasis added):

A Johnson & Johnson company opposes plans by Florida authorities to use one of its drugs in an upcoming execution, marking the first time the world's largest pharmaceutical manufacturer has waded into the death penalty debate.

Earlier this year, Florida amended its lethal injection protocol to include etomidate, an anesthetic agent that has never been used in executions, after exhausting its supply of the sedative midazolam.

Florida authorities are slated to use the updated protocol for the first time on Thursday in the execution of Mark Asay, who was sentenced to death for the 1987 killings of Robert Lee Booker and Robert McDowell in Jacksonville, Fla.

Scientists at Johnson & Johnson's Janssen Pharmaceuticals NV created etomidate in the 1960s. The company no longer distributes the drug, which is still used in hospitals.
Excuse me, J&J, but if you no longer make or distribute this drug, and if the patent expired long ago, how exactly is this any of your damn business?

News Scan

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ICE to Sweep Jails for Illegals:  The federal Immigration and Customs Enforcement (ICE) agency is developing a plan which involves working with county sheriffs across the country to identify illegals in local jails and transfer them to federal detention for deportation.  Caitlin Dickerson of the New York Times reports that the effort could lead to far more illegals being deported.  According to the Times, illegal immigration arrests have already increased by 40% since last year. While a handful of sanctuary cities are refusing to honor ICE detainers on ideological grounds, many county sheriffs, who operate 85% of the nation's jails, seem ready to cooperate.  Immigrant rights groups including the ACLU insist that such federal/state cooperation on illegal immigration is illegal.  

63 Shot in Chicago Last Weekend:   Last weekend was the second highest for shootings in Chicago this year.  Elyssa Cherney and Elvia Malagon of the Chicago Tribune report that the 63 people shot last Saturday and Sunday, fell short of the 102 shot during this year's 4th of July weekend.  Still, with only 2,435 people shot this year compared to 2,710 shot at this point last year, some may say that things are getting safer in the windy city.  There have been at least 451 homicides this year, 16 fewer than this time last year, Tribune data show.

Crime in California, 2016

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Last summer, we reported that the annual Crime in California report showed that crime in the formerly golden state was up across the board.  This year's report, which is 2016 data due to the reporting lag, is more mixed but still not good news, as noted in today's News Scan.

Violent crime rates* rose across the board, 4.1% percent overall.  See Table 2 on page 11 of the PDF file.  The 2015-2016 interval is the first time in recent years that we have had a one-year change number with a consistent definition of rape (see footnote 1), and that figure is up a worrisome 6.4%.

Property crime rates have bounced around since 2011, the last year that was mostly before the major California sentencing changes.  Last year the overall property crime rate was up 6.6% percent from the year before, and this year it is down 2.9% from last year.  Overall, property crime rates have been pretty flat since 2011, with a -1.9% change overall.  National property crime rates have dropped steadily over the 2011-2015 period.  We should have national 2016 numbers in a couple of months.
Yesterday the Washington Supreme Court decided In the Matter of the Detention of Troy Belcher, No. 93900-4:

In 2011, at the age of 26, Troy Belcher was civilly committed as a sexually violent predator. In 2015, the superior court ordered that he continue to be indefinitely committed. It based its decision on two sexually violent crimes he perpetrated as a juvenile, a diagnosis of antisocial personality disorder with high levels of psychopathy, and a finding that he was more likely than not to recommit if released.

News Scan

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DC Sniper's Sentence Upheld:  Lee Boyd Malvo, serving six consecutive life without parole sentences for his participation in the 2003 sniper murders of 10 people, lost one of his bids for a reduced sentence Wednesday.  Alanna Durkin Richer of the Associated Press reports that a Maryland judge rejected Malvo's claim that he was entitled to be re sentenced because of the Supreme Courts 2012 holding in Miller v. Alabama, which announced that state laws which impose a mandatory LWOP sentence for murderers under 18 are unconstitutional.  In upholding Malvo's sentence, the Maryland judge noted that in his state a life sentence for juveniles who commit capitol murder is not mandatory and that the sentence was handed down after full consideration of Malov's age, mental and emotional condition.  Last May In Virginia, a federal judge overturned the four LWOP terms he received in that state, citing the Miller decision.  The Virginia Attorney General is appealing that ruling.  

Violent Crime Up Again in California:  The California Attorney General has released the annual Crime In California report for 2016 and the news is mostly bad.  The state suffered across-the-board increases in violent crime, with homicide jumping nearly 5% after a 10% increase in 2015.  While robbery, and aggravated assault were also up, the increase in rape was the highest at over 7%.  Three years of increases in these crimes suggests a trend.  The state's report shows that from 2014 to 2016 homicide in California rose by 15.3%, robbery by 12.5% and aggravated assault by 13.7%.  Rape shows a much larger increase over this period, but some of this may be attributed to a broadening of the definition of rape in 2014.  Over the past six years California has adopted three sweeping sentencing reform laws designed to keep so-called non violent property and drug criminals out of prison, leaving them in counties to serve reduced jail sentences and engage in rehabilitation programs upon conviction of most new felonies.  The statistics suggest that each year more Californians are becoming victims of these reforms.         

News Scan

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Court Rejects Iowa Murderer's Appeal:  An Iowa appeals court has denied a life-sentenced murderer's claim that his re sentencing to comply with the Supreme Court's 2012 ruling in Miller v. Alabama remains unconstitutionally harsh.  Mark Mahoney of NWest Iowa reports that John Mulder had been sentenced to LWOP for the 1976 murder of a 55-year-old woman in her bed.  Mulder, who was 14 at the time, used a stolen rifle to shoot Jean Homan as she was sleeping next to her husband.  Following the high court's ruling in Miller, a new sentencing hearing was held to provide individualized consideration of his age when determining his sentence.  After the judge re-sentenced Mulder to life in prison with parole eligibility after 42 years, Mulder appealed arguing that the sentence still violated the state's prohibition against cruel and unusual punishment.  The Iowa Court of Appeals rejected this claim.   

Primary Notes

A couple of congressional primary elections were held yesterday.

Alabama held a primary to fill the remaining two years of Jeff Sessions' Senate term.  Senator and former AG Luther Strange, appointed to fill the seat until the election, finished second with 32.8% of the vote.  Former Chief Justice Roy "We Don't Need No Stinking Establishment Clause" Moore finished first with 38.9%.  Alabama has runoffs for primaries, so they will go "heads up" on September 26.

How will the voters who voted for other candidates divide in the runoff, if they show up at all?  I'm inclined to think they will break for Senator Strange in a large enough proportion to make up for his 6-point lag.  I hope so.  We don't need any more loose cannons in the Senate.  The general election is December 12.  The Dems have chosen former U.S. Attorney Doug Jones as their candidate.

Utah held a primary in the race to fill the vacant seat of former Rep. Jason Chaffetz.  Provo Mayor John Curtis won the Republican nomination with 42% of the vote.  No runoffs in Utah.  Mayor Curtis was regarded as the more moderate candidate.  The district is overwhelmingly Republican, so the November general election is likely to be a blowout.

News Scan

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MS-13 Bust in Ohio & Indiana:  On Tuesday, Federal agents arrested ten members of the "Columbus Clique,"  a branch of the brutal MS-13 gang.  Travis Fedschun of Fox News reports that three other members of the gang were arrested in Indiana and agents are looking for two others.  All of the suspects have been indicted for extortion, money laundering and illegal firearms charges.  The Justice Department estimates that there are 10,000 MS-13 members spread across 40 states, engaging in extortion of immigrant businesses, sex trafficking, and the machete and baseball-bat murders of teens, children and pregnant woman.  The President has tasked federal law enforcement with taking down the Salvadorian-based gang. 

ABA: Allow Illegals to Practice Law:   The American Bar Association House of Delegates passed a resolution Monday directing Congress to allow "undocumented" immigrants to practice law in the U.S.  Alberto Luperon of LawNewz reports that the resolution seeks to amend 8 U.S.C. 5 § 1621(d) to read: a state court vested with exclusive authority to regulate admission to the bar may, by rule, or other affirmation act, permit an undocumented alien seeking legal status to obtain a professional license to practice law in that jurisdiction.  California, Florida and New York have allowed illegals to represent clients before their courts.
Teen Drug Overdoses Spiking:  A report by the National Center for Health Statistics indicates that, for the first time in seven years, the drug overdose rate for U.S. teens is rising, increasing by nearly 20% in 2015.  Jessica Glenza of the Guardian reports that the same report found that the overdose rate from synthetic opioids for all Americans has increased six-fold since 2002, with fatal heroin overdoses tripling over the same period.  Among teens the increase in overdoses is highest for girls.  While the abuse of prescription drugs is also a serious national problem, most fentanyl and heroin is sold by drug dealers (undocumented pharmacists).  In August 2014, the drug dealer who sold heroin to fatally overdosed actor Phillip Seymour Hoffman cut a plea deal reducing his possible 25-year prison sentence, to 25 days in rehab and 5 years probation.     

Is the ABA a Shill for the Defense Bar?

Read this and decide for yourself.  It starts off (emphasis added):

The ABA House of Delegates on Tuesday approved a late-offered resolution backing a ban on mandatory minimum sentences, while sponsors withdrew another late sentencing resolution after hearing from the U.S. Justice Department.

Delegates approved Resolution 10B, which opposes the imposition of mandatory minimum sentences in any criminal case. The resolution calls on Congress and state legislatures to repeal laws requiring mandatory minimums and to refrain from adopting such laws in the future....

"Sentencing by mandatory minimums is the antithesis of rational sentencing policy," the report says. Basic fairness and due process require sentences to be the same among similarly situated offenders and proportional to the crime, the report says.

The belief that Congress ought to be able to set a rock bottom minimum for serious offenses  --  an idea taking root in the same uncontroversial notion that it can set a binding-on-judges maximum  -- evidently never occurs to the ABA.  The organization understandably cites no precedent in two centuries of case law for its proposal that sentencing courts should have 100% discretion 100% of the time, and Congress can go sit in the corner.

Hat tip to SL&P.

They Keep Lying and Lying

The main problem in being an advocate for robust law enforcement is not putting up with repeated smears from the other side.  Kent and I have been called fascists and bloodlusters too many times to remember.  After a while, you get used to it as the way many people (although not the majority) on the other side do business.  (I have also been called a kapo and  --  get this  --  a necrophiliac.  I think Kent has missed out on those two bouquets, so far).

No, the main problem is not that the Left smears but that they lie.  "Lie" is a strong word, but it's the only one that correctly captures what's going on.  Moreover, they generally lie with impunity.  While the more adult advocates on the Left will criticize insult as a means of debate, only a handful will call out the lying.  Even when they do, it's largely excused as being merely push-the-envelope advocacy.

Two recent examples of flagrant lying come to mind.

Retaining Counsel With Dirty Money

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Nicole Hong reports for the WSJ, "Joaquín 'El Chapo' Guzmán, the Mexican drug lord awaiting trial in New York, wants to hire private lawyers. But they may have to join the case without any assurance of getting paid."

Guzmán is presently represented by the federal defender.  His potential private lawyers want "blanket, prospective assurance" from the government that the money he uses to pay them won't be forfeited.  The government, unsurprisingly, said "fuggedaboudit," or something to that effect.

See this post from last year on the Supreme Court's fractured decision in Luis v. United States and Dean Mazzone's article that I linked to yesterday.  Continuing with the WSJ article:

Mr. Guzmán wants to hire a team led by Jeffrey Lichtman, most well-known for securing an acquittal for John A. Gotti, son of the notorious mob boss. The team also includes A. Eduardo Balarezo, William Purpura and Marc Fernich, all of whom have had experience defending mobsters or drug traffickers.
*               *               *
"This is still America. The man deserves not only his choice of counsel, but he deserves a fair trial," Mr. Lichtman said.
Um, yes, this is still America, but a defendant does not have, and never has had in this country, a choice of counsel he does not have the money to pay for.  Indigent defendants get the counsel they are appointed.  Is the rule any different for a defendant who has money obtained illegally and forfeitable to the government?  No, but tracing the money can get complicated.

As for the right to a fair trial, is every trial in which the defendant is represented by a public defender inherently unfair?  I don't think so.

News Scan

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NY Times: Counter-Protesters Were Armed:  The violence in Charlottesville last weekend and the death caused by what appears to be a deranged neo-Nazi has appropriately focused national attention on the despicable views held by some on the fringe right.  A piece by Farah Stockman of The New York Times reports on the counter protest organized to confront the white supremacists who organized the rally.  Masked members of Antifa and Black Lives Matter, some carrying weapons, showed up to engage in violence.  Similar protesters showed up last February at U.C. Berkeley to shut down a talk by Milo Yiannopoulos, setting fires, and attacking people, ditto for a talk by Heather MacDonald at Claremont McKenna College last June, and a small white supremacist rally in Sacramento last summer.  In all of these cases the protesters initiated the violence.   Bob McManus of the City Journal wrote this piece on how the police handled things in Charlottesville.     

Rate of Black Homicides:   A recently released article by Alex Berezow of the American Council on Science and Health reports that the rate of black homicides is nearly quadruple the national average.  Specifically the homicide rate per 100,000 is 20.9 for blacks, 4.9 for Hispanics, 2.6 for whites and 5.7 for all races.   BlackMurder.png

Justified Use of Force

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Alex Schiffer reports in the WaPo:

The New England Holocaust Memorial in downtown Boston was vandalized Monday night by a 17-year-old who was immediately tackled by bystanders and held until police arrived, police said.
I wonder ... If the vandal sues the tacklers, will the people who regularly decry the use of force in response to "mere property crimes" support him?
Andy Kessler has this article with the above title in the WSJ.

Hands down, the two most dangerous words in the English language today are "studies show."

The world is inundated with the manipulation of flighty studies to prove some larger point about mankind in the name of behavioral science. Pop psychologists have churned out mountains of books proving some intuitive point that turns out to be wrong. It's "sciencey," with a whiff of (false) authenticity.
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Evil or Crazy?

When a shocking incident such as the Charlottesville car-murder occurs, we have to wonder if the perpetrator is evil or crazy.  Six years ago, Jared Loughner killed six people and wounded many others at a congressional event in Tucson, Arizona, and most people initially believed it was an act of political terrorism.  It turned out Loughner was floridly schizophrenic.

From the picture emerging out of Virginia, it appears that James Fields is mostly evil but maybe a little crazy.  Dake Kang and Sarah Rankin have this story for AP.  Along with being an admirer of Adolf Hitler and Nazi Germany, it appears that he beat his own mother and threatened her with a knife.  He also was diagnosed with schizophrenia at one point, but it does not appear so far that his mental illness was on the same scale as Loughner's.

Bill argues in this post that the crime calls for the death penalty.  At this point, Fields has been charged with second-degree murder, which would preclude that sentence.  The charge could be upgraded as further facts develop, however.  Stay tuned.

Shifting Ground on Forfeiture

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Dean Mazzone of the Massachusetts AG's Office has this article in the Federalist Society Review discussing last year's Supreme Court decision in Luis v. United States.
We don't yet know all the facts about the Charlottesville murder, but it certainly seems on the present evidence to amount to this:  A Nazi or Nazi sympathizer ran down a fellow citizen, killing her, because she was in a political protest with which he disagreed.

I support the death penalty for a number of reasons, but the Charlottesville murder, like the Boston Marathon murders and Charleston church massacre, illustrates the main one. There is some behavior so pernicious, and so grossly outside the boundaries of peaceable life as we have come to understand it, that we as a polity have the right to say no and mean it.  Not merely to gush with remonstrance.  To act, with certainty and force.

I have my doubts that the death penalty should be reserved for "the worst of the worst," even supposing that phrase could be subject to any operational definition.  But even if I'm wrong about that, this episode, if it is what it seems to be, qualifies under any definition.

Nazism, Aryan supremacy, or racial supremacy of any kind has a history.  We don't have to guess where it leads.  Slave ships and the ovens at Dachau and Buchenwald tell us.  A society that lacks the moral confidence to put a permanent end to actors this barbaric lacks the moral confidence to do anything.

News Scan

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The Risk of Using Risk Assessment Tools:  Anti-death penalty advocates make their strongest argument when they remind us that, for all of its time intensive layers of review, America's criminal justice system cannot guarantee that 100% of the murderers sentenced to death are actually 100% guilty of the murders they were sentenced to die for.  Because of this, CJLF has always advocated that any legitimate question of guilt, ie. a claim supported by evidence, should trigger additional review or default the sentence to LWOP.   Anti-incarceration advocates use the same "the system is not perfect" argument to support "smart sentencing" and "right on crime" reforms aimed to prevent the good criminals from going to prison, or even jail in some states. To placate the gullible into supporting such reforms proponents assure us that brilliant scientists have developed sophisticated "risk assessment tools"  to distinguish the bad criminals who might hurt somebody from the good criminals who just want to steal your car or wallet.  This would be wonderful if the risk assessment tools, which are algorithms originally developed to anticipate changes in financial markets, worked on humans.  But they don't.  In fact, they are far less perfect than the mean old "three strikes and your out policy" of the 1990s or the "three will get you twenty" policy of the 1950s.  When these risk assessments get it wrong, innocent people get raped, robbed and murdered by the bad criminals the algorithm failed to identify.  Right now in California, the Legislature is considering using these wonderful "risk assessment tools" to determine which arrestees should be released without bail prior to trial.  The one-thousand-strong Los Angeles Deputy District Attorneys Association has this post on the real world effect this junk science has on public safety.
Note:  The Arnold Foundation, which developed the tool discussed, partners with George Soros' Open Society Foundation on criminal justice policy issues. 

News Scan

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Habitual Criminal Stabs CA Woman:  A Sacramento woman is in the hospital today after a habitual criminal on probation broke into her home and stabbed her just after 5:00 a.m. Wednesday morning.  Nashelly Chavez and Jacob Sweet of the Sacramento Bee report that the suspect, 24-year-old Jordan Lynch was on probation when he entered Delia Trip's home through a sliding door and attacked her.  The woman suffered stab wounds on her neck and back as she fought for her life.  Neighbors, alerted by her screams, caught Lynch attempting to flee and subdued him until police arrived.  He is facing charges of attempted murder.  California law categorizes most property and drug offenders as low risk for violence, and restricts sentences for these crimes to county jail and probation.  Serious felons released from prison who violate their parole are routinely sentenced to a few days in county jail and released to light supervision on probation.  

10th Circuit Overturns Murder Conviction:  A unanimous panel of the 10th U.S. Circuit Court of Appeals overturned the conviction of an Oklahoma man who murdered his girlfriend's ex-boyfriend in 1999.  Robert Boczkiewicz of The Oklahoman reports that the court overturned the conviction because the murder occurred on Indian Land and murderer Patrick Murphy should have faced trial in federal court rather than in state court.  Facts provided in the ruling indicate that in August 1999 Murphy, a member of the Muscogee Tribe, told his girlfriend that he was going to kill her ex-boyfriend George Jacobs and his family.  Murphy and two accomplices tracked Jacobs down on a rural road in Indian Territory and forced his car off the road.  The group attacked Jacobs and another man in the car.  During the attack Murphy dragged Jacobs into the bushes and castrated him, then dragged him back to the side of the road and fatally slashed his throat and stomach.  A jury convicted Murphy of murder and sentenced him to death.  Murphy appealed citing the jurisdiction issue and claimed he was mentally retarded.  The court rejected the retardation claim.  Murphy will be retried in federal court.   

News Scan

Repeat Felon Nabbed For Killing Cop:  A habitual criminal has been arrested for last Sunday's murder of a Missouri police officer.  Dhomonique Ricks of Fox News reports that during a traffic stop at about 10:45 Sunday night, Ian McCarthy jumped out of his vehicle and shot down officer Gary Michael, 37.  Roughly 100 local, county and state law enforcement officers were involved in an intense manhunt which ended with McCarthy's arrest Tuesday.  At the time of the shooting, McCarthy, who has spent time in prison for first-degree assault and violating parole, was wanted in New Hampshire for leaving the state prior to sentencing on a disorderly conduct charge and in Johnson County, Missouri for unlawful possession of a firearm.  The murdered officer had a wife and three children. 

Non-Violent Offender Charged With Murder:  A Louisville, KY man charged with the Saturday, August 5th murder of 31-year-old man, had been released on Kentucky's Home Incarceration Program (HIP) five days earlier.  Natalia Martinez of Wave News reports that proponents of the HIP program touted it as a safe way for the state to prevent jail overcrowding and reduce incarceration costs.  The suspect, Justin Curry, has been released on HIP on August 1st after he was arrested for cocaine possession and violating probation.  Currey had priors for drug dealing, receiving stolen property, illegal firearm possession, assault and domestic violence.  All of these are considered low-level, non-violent crimes that qualified Curry for release as a low risk-offender. Prior to the 2011 adoption of Kentucky's Public Safety and Offender Accountability Act, these crimes would have qualified him for time in prison or county jail.  Tough luck for the victim.    

News Scan

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Death Penalty For Woman Who Killed Cousin:  On Monday, a 29-year-old Phoenix woman was sentenced to death for locking her 10-year-old cousin in a plastic storage box and leaving her to die. CBS News reports that Amy Deal was locked in the box as punishment for stealing a popsicle.  The girl's death ended a lifetime of abuse.  Samantha Allen became Amy's legal guardian after Samantha's mother was sentenced to 24 years in prison for abusing Amy.  The abuse continued under Samantha's care and included repeated beatings, being kicked in the face, near drownings, and being locked in the storage container.   Samantha's husband will also be tried for first-degree murder and child abuse beginning on October 9. 

Illegal Immigrant Convicted of Rape:  An illegal immigrant living in Vacaville, CA, has agreed to plead guilty to the rape and sexual abuse of three young girls.  Jess Sullivan of the Daily Republic reports that 36-year-old Nelson Arana agreed to the plea deal rather than face a second trial on the charges.  He had been in prison since 2012 after an earlier conviction on the same charges, but a court of appeal overturned the conviction based upon evidence that the sex with one of his victims had been consensual.  Rather than face a retrial and the possibility of a longer sentence, Arana agreed to a six-year sentence and deportation.

News Scan

Study: Oakland Cops Are Racists:  The scholars at Stanford have proven what the media, Black Lives Matter and Eric Holder have known all along, the police are racists.  Heather MacDonald has this piece in the City Journal about the study performed by psychologists, linguists, and computer scientists which suggests that Oakland police treat black drivers less respectfully than white ones. The study, published in the Proceedings of the National Academy of Sciences, was well received by journalists at The Washington Post, the New York Times, and Science.  Lead researcher Jennifer Eberhardt, is a Stanford psychology professor,  who specializes in implicit bias, the idea that nearly everyone approaches allegedly disfavored groups with unconscious prejudice. 

7th Circuit Overturns Death Sentence:  The death sentence of a triple-murderer was overturned Friday in a ruling from the 7th Circuit Court of Appeals.  Jonathan Stempel of Reuters reports that the court found that the "stun belt" worn by the defendant, to help control him, contaminated the penalty phase and likely prejudiced the jury.  While the belt was not visible to jurors, a box on the belt containing wiring, while hidden under murderer John Stephenson's shirt, caused a visible bulge.  Stephenson was convicted and sentenced to death for the 1996 murders of two men and a woman who were in a pickup truck.  A witness testified that Stephenson had fired multiple rounds into the truck with his assault rifle, then stabbed the three victims with a knife.  The state has not indicated whether it will seek the death penalty at Stephenson's new sentencing hearing.     

News Scan

DC Circuit Tosses Blackwater Conviction:  A divided panel of the U.S. Court of Appeals for the District of Columbia overturned the first-degree murder conviction of a security contractor who fired on a group of Iraqi civilians in 2007, leaving 14 dead.  Spencer S. Hsu of the Washington Post reports that the court found the 2014 conviction of guard Nicholas Slatten resulted from an abuse of discretion by the trial judge for not allowing him a separate trial as the only one of the four guards facing a murder charge.  The court also overturned Slatten's life sentence, and the 30-year sentences given the three other guards.  The court determined that  the sentences, required under federal law for use of military weapons, were not intended for military security contractors, but for U.S. drug traffickers.  Judges Karen LeCraft Henderson and Janice Rogers Brown held that the sentences were "grossly disproportionate to their culpability for using government-issued weapons in a war zone." 

ICE Banned From CA Labor Offices:  The California Labor Commissioner has ordered her employees to refuse entry to federal Immigration and Customs Enforcement agents to state labor offices unless the agents have a court warrant.  Adam Ashton of the Sacramento Bee reports that the order was in response to three instances in recent months where ICE agents sought the immigration status of workers who had filed claims against employers.  The Commissioner said that the presence of ICE agents would discourage immigrants from reporting employers.  We assume she meant illegal immigrants.  Last December the CA Superintendent of Schools encouraged school districts to declare campuses "safe havens" from immigration enforcement.  Rather than wait for all other state agencies to take similar action, the state legislature is currently moving a bill that would declare the entire state a sanctuary for illegal aliens. In late July the California Department of Motor Vehicles reported that it had issued driver's licenses to nearly 1 million undocumented immigrants, in effect making them documented immigrants.  
Late on Friday, the U.S. Supreme Court launched its revamped website.  Fortunately, the horrible red background on some of the pages was removed even faster than Mr. Scaramucci.  The big news is the upcoming launch of electronic filing:

The Supreme Court's new electronic filing system will begin operation on November 13, 2017. A quick link on the Court's website homepage will provide access to the new system, developed in-house to provide prompt and easy access to case documents. Once the system is in place, virtually all new filings will be accessible without cost to the public and legal community.
That last part is very good news.  In the lower federal courts, public documents are available only by payment of a fee that has little relation to the cost of providing the service.  On a per-page basis the fee may not seem like much, but it adds up for a small non-profit that needs and uses the system extensively.

The good part about the lower federal courts' e-filing system is that if you e-file a PDF of your brief on the due date then the deadline is met.  The paper copies can be printed and mailed in due course.  The Supreme Court's current requirement that paper copies be mailed by the due date effectively backs up the deadline a few business days, particularly since they have to be printed in the high court's odd little booklet size.

I rarely recommend that the Supreme Court follow the Ninth Circuit.  Quite the contrary, the Conclusion section of my SCOTUS briefs quite often reads, "The decision of the Court of Appeals for the Ninth Circuit should be reversed."  When it comes to e-filing, though, the Ninth does it right, and the Supreme Court would do well to consider its template.

The Limits of Public Order Control

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Only marginally, if at all, on-topic, but amusing:  Joe Parkinson and Georgi Kantchev have this story in the WSJ.  The headline is "British pubs ban swearing, are accused of having %$&# for brains."

News Scan

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Trump's Fifth Judicial Appointment Confirmed:  On Tuesday the U.S. Senate confirmed the appointment of former Alabama Solicitor General Kevin Newsom to the Eleventh Circuit Court of Appeals.  Alex Swoyer of the Washington Times reports that this was the fifth Trump judicial pick confirmed this year, far outpacing Presidents Obama and George W. Bush.  Obama had zero appointees confirmed by August of 2009, Bush had three by August of his first year in office.  So far, in addition to Justice Gorsuch and Judge Newsom, Trump has placed two other judges in federal courts of appeal and one on a district court. There are 28 other Trump judicial appointees awaiting Senate confirmation.   

News Scan

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42,000 Immigrants in Federal Prisons:  Federal officials reported Tuesday that as of June 24th, 22% of federal prison inmates were aliens who entered the U.S. illegally or who are subject to deportation.  Stephen Dinan of the Washington Times reports that while roughly 13.5% of the U.S. population are foreign born, aliens are significantly over represented for committing federal crimes. Among the 42,000 in federal lockup are some foreign citizens who once had legal status but, by committing serious crimes, are losing that status and become targets for deportation.  Efforts are underway to determine how many foreign nationals are currently housed in state prisons and local jails.    

Dreamer Arrested For Brutal Rape:  A 23-year-old Mexican national has been arrested for the June 25 rape of a 19-year-old woman in the Seattle suburb of Burien.  Dan Springer of Fox News reports that Salvador Diaz-Garcia entered the U.S. illegally and was granted "dreamer" status in 2013 under President Obama's Deferred Action on Childhood Arrivals program.  He had groped the victim a month earlier, but became violent last week when she was working out in her apartment complex gym, raping her and beating her severely enough to knock out some of her teeth.  Diaz-Garcia is also facing charges for molesting a 14-year-old girl earlier the same day as the rape.   Like Seattle, the community of Burien is a sanctuary city.    

Probationer Shoots Two CA Cops:  A habitual criminal on probation, classified under California law as a non-serious, non-violent offender, shot two Los Banos police officers before being fatally injured by return fire Tuesday.  Brianna Calix and Vikaas Shanker of the Los Banos Enterprise report that there were restraining orders against Norberto Nieblas-Reyes from his estranged wife and the owner of her apartment for previous incidents when he climbed into her apartment through a window at 6:18 a.m.  He attacked responding officers, and grabbed one of their guns before shooting one officer in the chest, and the other in the head, torso and leg.  Both are expected to recover.  Nieblas-Reyes had multiple priors for DUI, drug possession, assaults on police officers, and spousal abuse.      

Trump and Sessions, the Path Forward

The appointment of Gen. Kelly as White House Chief of Staff, and his immediate replacement of the loose-lipped (to be kind) Anthony Scaramucci, may provide the occasion for a re-set of the frayed relationship between President Trump and Attorney General Sessions.

We should remember the basics.  The President could hardly have done a better job finding a man with the experience and dedication to advance his justice-related agenda. The problem arose when Sessions recused himself from the Department's Russia investigation.  Reportedly, this made the President angry and frustrated, notwithstanding that Sessions' action was, as I and others have argued, wise if not required under the governing law.  (This may be the place to remember that there is governing law, and that recusal decisions are not just a matter of preference or perceived political interest).

It now seems that the President has, perhaps reluctantly, decided to retain the Attorney General.  Their relationship, however, can become cordial and productive, and consign to the past the tension that seems to exist now.  In other words, there is a constructive way forward.

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