January 2018 Archives

The Manhattan Institute asked several of its scholars for the "top takeaways" from the President's State of the Union address.  Here is Heather Mac Donald's note:

The president called for reforming prisons to help inmates get a second chance at life after their release. That is a wiser approach to criminal justice reform than attacking "mass incarceration," a duplicitous term that ignores two crucial facts: first, that every prisoner is charged and sentenced individually through the due process of the law, and second, that the only criminals who end up in prison either have very long records or have committed very serious crimes. Incarceration played a crucial role in the twenty year crime drop from the early 1990s through the mid-2010s. But while the incarceration build-up was both procedurally fair and necessary, more can be done to try to help ex-cons become productive citizens. The main focus should be on having every prisoner work at a paying job while incarcerated that will give him usable skills on the outside. Universal work for inmates is costly and logistically difficult, especially with high-security prisoners; unions have fought prison labor to avoid competition. But it is a challenge worth taking on to try to break the cycle of recidivism.

I agree that in terms of in-prison programs, employment should be number one.  The long-standing fears that prison production will cost some law-abiding Americans their jobs should not be taken lightly, but surely in today's global economy segments can be identified where substantially all of the market is imported. 

The fact that the President did not include a call for large-scale reductions in sentencing was also quite encouraging.  His emphasis on the MS-13 gang was warranted, but domestic gangs cause great harm as well.  Helping the areas most afflicted by gangs will require domestic efforts as well as immigration enforcement.  Later, while discussing the drug problem, the President said, "We must get much tougher on drug dealers and pushers if we are going to succeed in stopping this scourge."  That does not sound like he is buying the line that drug dealer are harmless "non-violent offenders."

Helping the most afflicted areas will also require cooperation between state and federal authorities; the mindless "resistance" attitude of some local officials is killing their own people and needs to stop.

Liz Gonzalez has this story for Fox 26 in Fresno, California. "Fresno Police say a crackdown on crime in the new year is paying off.  Fresno Police Chief Jerry Dyer said Monday violent crime is down 15.2%."  But there is a problem, and the problem is Proposition 57.

Voters passed the measure in November of 2016, allowing for the release of inmates who committed so-called "non-violent" offenses.

"We have a weak legislature, weak governor who has allowed these laws to be passed. And we have an uninformed voter population in California that has also supported some very weak laws," Dyer said. "It has made the job of a police officer that much more difficult."

So far, the California Parole board has granted early release to 25 inmates from Fresno County under Proposition 57.

Many more releases are expected.

"They are dangerous and violent, despite propaganda from Sacramento and our Governor and this is the result," says Fresno County District Attorney Lisa Smittcamp.

"Anytime you combine criminal justice reform with saving money, you're costing lives," says Dyer.

The "uninformed voter population" on Propositions 47 and 57 was the result of a combination of a large imbalance in campaign funding with the press being almost uniformly on the side with more money.  In that situation, a great many voters simply never hear the other side of the argument.

This story also illustrates why proving cause and effect is so difficult in crime research.  You can't control the variables.  A crime-increasing policy like Proposition 57 may go into effect at the same time that crime-reducing efforts such as the Fresno Police gang crackdown are going on.

Congressman Trey Gowdy has announced he will not seek reelection, Reid Epstein reports for the WSJ.

On Wednesday, Mr. Gowdy said he would be "returning to the justice system."

"I will not be filing for re-election to Congress nor seeking any other political or elected office," he said. "Whatever skills I may have are better utilized in a courtroom than in Congress, and I enjoy our justice system more than our political system."

Surely he is not worried about reelection if he chose to run.  His district is solidly Republican.  He must have something else in mind.

Hmmm.  "Returning to the justice system," but not any "political or elected office."  The latter rules out his old job as local prosecutor or a run for state attorney general, which are both elected offices.  The federal judicial vacancy website lists one current vacancy on the Fourth Circuit with no nominee and one upcoming vacancy.  There is a South Carolina District Court vacancy, but it has a nominee already.

Does Mr. Gowdy have his eye on the Fourth?  He would be a definite improvement to a court that has gone downhill lately.

Can Computers Predict Human Behavior?  Matt O'Brien and Dake Kang of the Associated Press report that a bipartisan bail reform movement seeking to eliminate the bail industry is promoting the use of computer generated risk assessments to determine how a defendant might behave if released prior to trial or given a short sentence.  One of the biggest promoters of this is the Houston-based Arnold Foundation, which developed the risk-assessment algorithm.  The states of New Jersey, Arizona, Kentucky, and Alaska are now using algorithms, also called evidence-based tools, for bail and sentencing decisions.  Other states, like California, are using them to assess which prison inmates can be released safely on parole.  The New Jersey process uses nine risk factors, including age and past convictions, but excludes race, gender, employment history, and past arrests.  Advocates argue that this eliminates bias.  The story focuses on a young black male arrested in Cleveland for cocaine possession who excels at basketball and might get a scholarship.  The arraignment judge used an algorithm-generated risk assessment to release him on "personal bond," meaning without bail.  Critics wonder if it's a good idea to take a judge off the hook when a defendant he released based on an algorithm kills or rapes somebody.  Who is responsible when this happens?

Texas Murderer Executed:  A man who stabbed his estranged wife to death in 1986 and stabbed his ex-girlfriend to death in 1999 was put to death Tuesday in Huntsville, Texas.  CBS News reports that William Rayford died 13 minutes after receiving a lethal injection.  Among the witnesses were his latest victim's four children, including her son, who at age 11, was stabbed through the lung while trying to protect his mother.  Rayford was sentenced to 23 years for murdering his wife Gail, but was released on parole after serving only 8 years due to prison overcrowding.  Five years later he killed Carol Hall.  In a last-minute appeal, Rayford's defense attorneys unsuccessfully claimed that his sentence was based on racial bias.  On Thursday, The Dallas Morning News reports that Texas is set to execute John Battaglia who, in 2001, shot and killed his daughters, 9-year-old Faith and 6-year-old Liberty, in an act of revenge against his ex-wife.  Battaglia, who is white, was unable to claim racial bias, leaving his attorneys with an unsuccessful attempt to claim he was mentally incompetent.

The California Department of Corrections and Rehabilitation announced a new execution protocol yesterday.  Although Proposition 66 expressly made the Administrative Procedure Act inapplicable, CDCR has chosen to send the protocol to the Office of Administrative Law for publication under an optional procedure.

Maura Dolan has this post at the L.A. Times web site.

Crime & No Consequences:  Erica Sandberg has this piece in the National Review on the impact of California's Proposition 47 to people in San Francisco.  The ballot measure, which passed in 2014, with enthusiastic support from San Francisco's District Attorney, converted theft and fraud crimes of under $950 from felonies to misdemeanors.  "For law enforcement, however, there is little incentive to chase down low-level criminals.  Even if the person is escorted to the station, odds are great he'll be back on the street in an hour or so."  She notes that in January, SF Police Chief William Scott acknowledged a 24% jump in property crimes from 2016-2017.   Who would have imagined that eliminating the consequences for stealing would result in more stealing? 

Dreamers Arrested for Human Smuggling:  In two separate incidents in the San Diego area, federal agents have arrested men  allowed to remain in the U.S. under the Deferred Action of Childhood Arrivals program (DACA) for human trafficking.  Lyndsay Winkley of the San Diego Union Tribune reports that border agents responded to a resident at Torrey Pines State Beach who spotted what appeared to be a smuggling incident last Wednesday.  When the agents pulled over the suspect vehicle, they found the driver, a 20-year-old DACA recipient, and two Mexican nationals in the country illegally.  Last Thursday, agents spotted two suspicious vehicles in an area where two illegals had just been arrested.  When one of the vehicles was stopped at a checkpoint, agents found the driver, a 22-year-old DACA recipient, who eventually admitted that he was scouting the area for human smugglers.  

The liberal/libertarian contingent is all atwitter (so to speak) that President Trump might give a boost to prison reform in his State of the Union address.  See, e.g., this post from Sentencing Law and Policy, largely quoting an article in the National Review.

There are a number of reasons I did not become a criminal defense attorney when I left the government.  One of them is lack of imagination.  Hence, from the Chicago Tribune, "Accused of assaulting 3 young girls, man says he's boy tapped in adult's body."

A Chicago man accused of sexually assaulting three young girls told prosecutors he considered himself a boy in a man's body, according to Cook County court documents.

Joseph Roman, 38, is charged with predatory criminal sexual assault stemming from repeated attacks on three girls who were 6 to 8 years old at the time, according to prosecutors. Roman was a friend of the girls' families at the time of the attacks between 2015 and January of this year.

During a hearing Wednesday, prosecutors said Roman admitted to some of the attacks and told Chicago police "he is a 9-year-old trapped in an adult's body." He was ordered held without bail

One of the problems in doing research on crime is that most research is constrained to the variables that our national crime statisticians have chosen to collect.  Often the variables of interest to a researcher are not collected, and those that are collected are a poor proxy.

On the question of immigration and crime, we often hear the statistic that the crime rate among immigrants is lower than the rate among native-born Americans.  That statistic is virtually irrelevant for those whose primary interest is illegal immigration.  Can we simply assume that legal and illegal immigrants are the same in this regard?  That would be a huge and dubious assumption, yet it is implicit in arguments we hear all the time.

John Lott has this study at SSRN using data from Arizona, which does track the immigration status, including legality, of its prisoners.  Here is the abstract:

Prof. Joseph M. Bessette has this article with the above title in the Catholic World Report.  The article is partly a Catholic theological argument, but it is also an empirical argument on deterrence.

Examples such as these powerfully refute the claim that the death penalty never deters. Though many large-scale empirical studies have purported to find a substantial deterrent effect (as we detail in our book), others have challenged these findings, and among quantitative social scientists the issue remains unresolved. But this should not surprise us at a time when executions per year (51 between 2000 and 2015) are dwarfed by homicides per year (15,600 during the same period). Even if each execution saved 5-10 lives (a midrange for the studies that reported deterrence), the total number of lives saved would amount to only a few percent of all homicides. It is simply not likely that social scientists could discern such a statistically small effect, especially when year-to-year changes in homicides are driven by a host of social conditions independent of punishment practices: drug use, gang wars, economic conditions, immigration patterns, etc. Yet, even a small deterrent effect (say in the range of 2-3) would have saved several thousand lives from the nation's 1,465 executions since 1977. And of course if the death penalty does deter, it would save more lives if it were used more often.

Thanks to Dudley Sharp for the link.

When the U.S. Supreme Court struck down capital punishment for 17-year-old murderers, it assured the country that the penalty of life in prison without possibility of parole would remain available.  It did not take too long for the high court to default on that promise, casting doubt on existing sentences of LWOP and making it much too difficult to impose new LWOP sentences for crimes that really warrant death.

To say that a life sentence is constantly subject to reexamination is effectively sentencing the victims' families to life of opposing the reduction, constantly having to reopen the old wounds.  It is cruel in the extreme.

If there is one murderer in the whole country who was 17 at the time of crime and who definitely does not deserve reconsideration, it is Lee Boyd Malvo, the triggerman in the horrible D.C. Sniper shootings that terrorized the capital region in 2002.  Incredibly, a federal court has ruled that he is entitled to resentencing.

Aruna Viswanatha reports for the WSJ:

Deputy FBI Director Andrew McCabe told colleagues Monday he would leave his post effective immediately, according to a person familiar with the matter, after becoming a lightning rod for criticism from President Donald Trump and some congressional Republicans.

Mr. McCabe plans to take "terminal leave"--using leftover vacation time--until he is eligible in March to retire from the Federal Bureau of Investigation, said the person.

*      *      *

The White House said Mr. Trump played no role in Mr. McCabe's decision to step down. White House press secretary Sarah Huckabee Sanders said the president wasn't part of the "decision-making process" with respect to Mr. McCabe's departure.

*      *      *

Mr. McCabe first came under fire from Republicans in 2016 as a result of his supervisory role in the FBI investigation into former Democratic presidential candidate Hillary Clinton's email server.

The alleged conflict of interest came after his wife, Dr. Jill McCabe, ran for Virginia state senate with financial support from the political organization of then- Virginia Gov. Terry McAuliffe, a Democrat and longtime ally of Bill and Hillary Clinton.

Larry Nasser, the one-time physician for the USA Women's Gymnastic Team, spent years sexually abusing young girls.  He had at least 150 victims.  He recently got 40 to 175 years in prison, all of it earned.

[T]the judge, Rosemary Aquilina, meted out the sentence in a disturbing, over-the-top performance. She couldn't stop talking about herself. We heard about her family, her dogs, her ethnic background (Maltese and German, in case you were wondering), her military service, her soccer coaching. We heard boasting: "I'm not vulnerable, not to you," "I am well trained," "I know exactly what to do," "I've done my homework, I always do," "I look at myself as Lady Justice." On the other hand, "I'm not special" and "I'm not nice." And "I don't have many friends."

The judge couldn't stop saying "I." To an excessive degree, this was about her. "It is my honor and privilege to sentence you," she declared

Judge Aquilina signaled her virtue by assuring us she believes in rehabilitation. She found, however, that Nasser is beyond rehabilitation.

Religion informs the moral beliefs that shape many, probably most, Americans' views of criminal law.  To my way of thinking, this is a good thing.  The Constitution, however, separates church and state, and, to my way of thinking, this is also a good thing.  One of the reasons for this is captured in the following headline in the ABA Journal:  "Judge informs jurors that God told him accused sex trafficker isn't guilty."

Jurors in Comal County, Texas, weren't swayed when the judge entered the jury room and said that God told him the defendant wasn't guilty.

Judge Jack Robison said God told him to let jurors know that Gloria Romero Perez should not be convicted, report the Austin American-Statesman and the San Antonio Express-News. Robison spoke with jurors after they signaled they had reached their verdict, jury foreman Mark House told the Express-News.

Jurors had already decided to convict Perez on a charge of continuous trafficking of a person and to acquit her on a charge of sale or purchase of a child. They stood by their verdicts...

Robison reportedly said, "When God tells me I gotta do something, I gotta do it."

California Governor Jerry Brown delivered his last State of State address yesterday, and not surprisingly it includes some curious statements about crime.

"Yet"?  What's with the "yet"?  Getting tough on crime had the purpose of bringing down crime rates, and it was a major factor in that reduction.  Would you say "we built a number of dams for flood control, yet we now have fewer destructive floods than we did before"?

Where does he get the "number of reported felonies" figure?  That number is not tallied in the official Crime in California publication of the Criminal Justice Statistics Center.  The number of California index crimes is down somewhat, but that is not the same as felonies.  The number of violent index crimes in 2016 was close to double what it was in 1970.

One reason that reported felonies may be down is that Proposition 47 redefined a great many felonies to be misdemeanors.  Yes, that is one sure way to reduce the number of felonies without making any reduction in the number of crimes, and probably increasing them.

Then there is this humdinger:

After crunching the numbers on yesterday's Preliminary Semiannual Uniform Crime Report from the FBI, I found pretty much the same thing I have been finding for the last several years.  In California, where "let 'em all loose" mania is more severe than in the country as a whole, crime trends are less favorable than in the country as a whole.  This should not surprise anyone.

Ohio Death Penalty Law Challenged:  An Ohio man facing his second sentencing hearing for the brutal murder of a 19-year-old girl claims that the state's death penalty law is unconstitutional.  Andrew Welsh-Huggins of the Associated Press reports that attorneys for Maurice Mason argue that the U.S. Supreme Court's 2016 ruling in Hurst v. Florida invalidates the Ohio law because Ohio juries are not required to determine each fact needed to sentence someone to death.  The state argues that the Florida law only required a majority of jurors to agree that the aggravating factors related to a murder outweighed any mitigating factors.  Ohio requires a unanimous jury and is much more strict about what jurors must specify to recommend a death sentence.  The case is before the Ohio Supreme Court.  Facts reported in the Ohio Supreme Court's 1998 ruling in State v. Mason indicate that on February 8, 1993, Mason raped Robin McDuffie, the wife of a friend, then beat her to death with a board with nails protruding from it.  Substantial evidence including a DNA match and several witnesses convinced the jury of Mason's guilt.

Alabama Cop Killer's Execution Today:  A habitual criminal who shot and killed a veteran Alabama police officer in 1985, faces execution tonight.  Lawrence Specker of al.com reports that Mobile Police Cpl. Julius Schulte was responding to a domestic violence call when Vernon Madison shot him twice in the head, and shot and wounded Schulte's partner.  Officer Schulte survived on life support for a week.  The Associated Press reports that in 2016, the 11th Circuit ruled Madison was not competent for execution seven hours before his sentence was to be carried out.  The ruling was based on his attorneys claim that after several strokes, Madison could not remember his crime.  The state disputed that finding and last November SCOTUS overturned the lower court's ruling.

Update:  Fox News reports that the U.S. Supreme Court granted a temporary stay halting last night's scheduled execution of cop-killer Vernon Madison.

The U.S. Supreme Court has announced its March oral argument calendar.  Amy Howe describes the cases.  The criminal cases are all narrow federal issues.

The worst abuses of past independent and special counsels in USDoJ have resulted from investigations ranging far afield of the issue that prompted an appointment in the first place.  Time and again, in administrations of both parties, we saw these specially appointed attorneys come up with nothing to prosecute on the original issue and then go after someone for something only tangentially related.  After both parties had been burned in this way, the Independent Counsel Law was allowed to expire, unmourned, with no real effort to renew it.

So when it came time for Deputy Attorney General Rod Rosenstein to appoint a special counsel, he should have learned from history, not repeated it, and strictly limited the special counsel's scope to the matters making an appointment necessary.  The special counsel should be looking into allegations of "the Russian government's efforts to interfere in the 2016 presidential election," as the lead paragraph of the appointment order says, and nothing else.  Anything else he discovers should be referred to Main Justice.  Instead, Mr. Rosenstein did just the opposite, giving Mr. Mueller a broad sweep including "matters that ... may arise directly from the investigation," a potentially limitless scope.

Sure enough, we now have reports that Mr. Mueller is intensely interested in events occurring after President Trump took office, including the firing of policy-making officers of the executive branch.  There are two reasons he should not be investigating these matters.

The FBI released its Preliminary Semiannual Uniform Crime Report for the first half of 2017 today.  The press release is here.

Among violent crimes, murders are up while rapes and robberies are down, and aggravated assault is essentially unchanged.

Among property crimes, burglary continues its decline of recent years while auto theft continues to climb.

Cases normally take a leisurely path to the Supreme Court, going through a district court, a three-judge court of appeals panel, and a request for the full court of appeals to decide the case before the Supreme Court is even asked to look at it.  This long process generally brings a well-developed case to the high court after much debate and decision has already clarified and narrowed the question to be decided.

But not always.  In cases from federal courts, the Supreme Court has an authority it rarely exercises to take the case out of the court of appeals before decision.  In U.S. Dept. of Homeland Security v. Regents of the Univ. of California, No. 17-1003, the Solicitor General has asked the high court to do just that.  Even more, the SG has asked the court to accelerate the decision of whether to take the case, slicing a month off the usual schedule.

Today the high court granted the acceleration request in part.  The requested deadline for California to respond was yesterday, but the court gave them until Groundhog Day.

The case involves the DACA program, in which President Obama suspended enforcement of immigration law for a defined class of immigrants, even though he admitted he did not have authority to do so.

Illegal Charged in California Rapes:  A previously deported illegal alien has been charged with raping four young women while working as an Uber driver.  Christopher Weber of the Associated Press reports that Alfonso Alarcon-Nunez, a Mexican citizen, targeted intoxicated women which he drove to their homes and raped before robbing them of their cellphones, computers and jewelry.  Alarcon-Nunez was deported from New Mexico in 2005.  California issues driver's licenses to illegal aliens and Alarcon-Nunez acquired his in 2015 which helped him qualify as a driver for Uber.  The rapes began in mid-December in the seaside town of San Luis Obispo, home to Cal Poly State University.  With the help of DNA evidence, detectives were able to identify Alarcon-Nunez as suspect and arrest him last week.  Police are reaching out to the community for other possible victims to come forward.  If convicted on all counts the suspect could receive a life sentence.   Last week California Attorney General Xavier Becerra threatened to prosecute private citizens and businesses who help Immigration and Customs Enforcement officials identify illegal aliens.

Will Florida Let Felons Vote?  The group Floridians for Fair Democracy has submitted nearly eight hundred thousand signatures to qualify a ballot measure that, if passed, would give roughly 1.5 million convicted felons the right to vote.  Steven Lemongello of the Orlando Sentinel reports that the group, which raised nearly $4 million over the past year, wants to allow all felons, except murderers and sex offenders, to vote in state and local elections.  Two other proposals giving voting rights to felons were approved last week by a committee of the Florida Constitutional Revision Commission.  Neither would appear on the state ballot unless the full Commission votes to approve them. 

"A brick is not a wall," evidence guru Dean Charles McCormick famously wrote long ago.  The evidence that meets the required burden of proof for a particular proceeding, whether it be probable cause, proof beyond a reasonable doubt, or something in between, need not be a single item that carries the weight by itself.

In Fourth Amendment cases, the U.S. Supreme Court since 1983 (Illinois v. Gates) has rejected rigid criteria for probable cause.  All the facts must be considered, and the question is whether they add up to a "substantial chance of criminal activity."  This "is not a high bar."

Back in 2008, there was a raucous party in a vacant house in D.C.  Did the police have probable cause to believe this was an unlawful entry?  Today's opinion in District of Columbia v. Wesby describes the lots of little things that add up to the modest level of evidence needed for probable cause. 

The partygoers were released soon after arrest and no charges were filed against them.  Instead of being glad of their good fortune, they decided to sue the cops.  The District Court allowed this case to go to trial, and a jury awarded $680,000 for their comparatively minor inconvenience.  With attorneys' fees, it came to over a million dollars.  The D.C. Circuit affirmed, and the Supreme Court today reversed without dissent.  See page 11 for the Court's disapproval of looking at each brick rather than the wall.

Julia Dressel and Hany Farid have this research article in Science Advances.  Here is the abstract:

Algorithms for predicting recidivism are commonly used to assess a criminal defendant's likelihood of committing a crime. These predictions are used in pretrial, parole, and sentencing decisions. Proponents of these systems argue that big data and advanced machine learning make these analyses more accurate and less biased than humans. We show, however, that the widely used commercial risk assessment software COMPAS is no more accurate or fair than predictions made by people with little or no criminal justice expertise. We further show that a simple linear predictor provided with only two features is nearly equivalent to COMPAS with its 137 features.

Along with questions of whether they are really any better, I believe that government should not be making decisions about people's lives using proprietary algorithms whose makers refuse to disclose the inner workings.

The article is Julia Dressel and Hany Farid, The accuracy, fairness, and limits of predicting recidivism, Science Advances  17 Jan 2018: Vol. 4, no. 1, eaao5580; DOI: 10.1126/sciadv.aao5580

...because making them legal will make them easier to get, so we'll have more of the sorts of experiences reported by the NYT in its story "1 Son, 4 Overdoses, 6 Hours."   

PEMBROKE, N.H. -- The first time Patrick Griffin overdosed one afternoon in May, he was still breathing when his father and sister found him on the floor around 1:30. When he came to, he was in a foul mood and began arguing with his father, who was fed up with his son's heroin and fentanyl habit.

Patrick, 34, feeling morose and nauseated, lashed out. He sliced a love seat with a knife, smashed a glass bowl, kicked and broke a side table and threatened to kill himself. Shortly after 3, he darted into the bathroom, where he shot up and overdosed again. He fell limp, turned blue and lost consciousness. His family called 911. Emergency medical workers revived him with Narcan, the antidote that reverses opioid overdoses.

Throughout the afternoon his parents, who are divorced, tried to persuade Patrick to go into treatment. His father told him he could not live with him anymore, setting off another shouting match. Around 4, Patrick slipped away and shot up a third time. He overdosed again, and emergency workers came back and revived him again. They took him to a hospital, but Patrick checked himself out.

Apparently it can, according to this Washington Post article.  Still, by far the more frequent practice (on the rare occasions this is done at all) is to refer a contempt proceeding to the US Attorney for DC.

[George Washington Adjunct Law Professor Randall] Eliason pointed to a May 2017 report from the Congressional Research Service that described an inherent power to hold people in contempt, meaning that it had the power to punish people for contempt even without that power being spelled out in the law. In fact, a long time ago, the House on several occasions tried -- and imprisoned! -- private citizens, and had that power upheld by the Supreme Court.

"Under the inherent contempt power, the individual is brought before the House or Senate by the sergeant at arms, tried at the bar of the body, and can be imprisoned or detained in the Capitol or perhaps elsewhere," CRS's Todd Garvey wrote. (Eliason notes that there is apparently no actual jail in the Capitol.)

"The purpose of the imprisonment or other sanction may be either punitive or coercive," Garvey continued. "Thus, the witness can be imprisoned for a specified period of time as punishment, or for an indefinite period (but not, at least by the House, beyond the end of a session of the Congress) until he agrees to comply."

No, even the Ninth Circuit won't buy that argument.

From the following news report:

An illegal immigrant began his murder trial for the 2014 killings of two Northern California sheriff's deputies on Tuesday with a profanity-laced rant, calling a partner of one of the slain officers a "coward."

Prosecutor Rod Norgaard recounted the events that led to the death of Sheriff's Deputy Danny Oliver outside a Sacramento motel in October 2014, and described how Oliver's partner, Deputy Scott Brown, was able to retreat from the heavy gunfire.

Luis Enrique Monroy Bracamontes, 37, the alleged killer, interrupted the court when he grinned and called Brown a "coward." 

"I wish I had killed more of the mother-------s," Bracamontes told the court. He continued: "I will break out soon and I will kill more, kill whoever gets in front of me...There's no need for a f---ing trial."

Bracamontes defense attorneys cited the outburst as more evidence that their client is unfit to stand trial.

Stabbing Suspect Deported 7 Times:  A habitual criminal arrested for an unprovoked knife attack at a Santa Rosa market is a Mexican citizen who has been deported seven times.  Alex Pappas of Fox News reports that Ricardo Velasquez-Romero, who also goes by the name of Eulaio Miniz Orozoco, has been charged with attempted murder for the December 21 stabbing of a 61-year-old man seven times in the neck at Lola's Market.  Santa Rosa is in the sanctuary county of Sonoma, California.  The victim was hospitalized with life threatening injuries.  Velasquez-Romero has multiple prior convictions for felony drug and weapons charges.  A recent report from DHS indicates that 372,098 non-U.S. citizen offenders were removed from the United States after conviction of an aggravated felony or two or more felonies," between October 2011 and September 30, 2017.  With the exception of Fox News and the widely panned Daily Caller, no other news organization bothered to report the immigration status of this violent offender.

"Tourniquet Killer" Execution Set for Today:  The Houston murderer who became known as the "Tourniquet Killer" is scheduled to be executed this evening.  CBS News reports that the execution of Anthony Shore was postponed last October to allow an investigation into a scheme by another death row inmate to get Short to take credit for his crimes.   While he has admitted to raping and murdering Laurie Tremblay, 15, found beside a trash bin outside a Houston restaurant in 1986; Diana Rebollar, 9, abducted while walking to a neighborhood grocery store in 1994; and Dana Sanchez, 16, who disappeared in 1995 while hitchhiking to her boyfriend's home in Houston, he will be executed for the 1992 strangling of  21-year-old Maria del Carmen Estrada whose body was dumped in the drive-thru of a Dairy Queen in Houston.  Shore, a habitual sex offender, got his nickname for the way he strangled his victims to death using a rope tightened with a stick similar to a tourniquet.

Update:  The Tourniquet Killer finally paid for the four people he strangled to death at 6:28 pm Thursday night.

7th Circuit Overturns Death Sentence:   In a ruling announced on January 11, a unanimous panel of the 7th Circuit U.S. Court of Appeals overturned the death sentence of an Indiana man convicted of the 2004 murders of a young mother and her 4-year-old daughter.  The Associated Press reports that, unless overturned, the ruling will require a new sentencing hearing for Frederick Baer, who pled guilty to the murders, but claimed that he was mentally ill. On February 24, 2004, Baer saw 26-year-old Cory Gardener moving some boxes on her front porch.  Gardner was alone with her daughter, Jenna, while her husband was away looking for work.  Baer asked the woman if he could borrow a phone to call his boss.  When she went inside to get a phone, Baer followed and sexually assaulted her.  He then slit her throat.  Jenna saw the attack on her mother and ran to another room, where Baer slit the child's throat, stole her mother's purse, and left.  The 7th Circuit held that Baer's death sentence was unconstitutional because the jury instructions did not mention that Baer may have been under the influence of methamphetamine at the time of the murders.  The court also found misconduct by the prosecutor and ineffective assistance of counsel for failing to object.  The state Attorney General is asking for en banc reconsideration of the panel's ruling.

Few politicians have been as disappointing, following a promising start, as now-departed New Jersey Governor Chris Christie.  Now we learn that on his way out the door, Gov. Christie signed a particularly bone-headed piece of legislation.  Corinne Ramey reports for the WSJ:

Changes to criminal-justice laws in New Jersey now require an analysis of their impact on racial and ethnic minorities, making the state among only a handful in the nation to do so.

A bill mandating the analyses, which outgoing Republican Gov. Chris Christie signed Monday, requires the state's Office of Legislative Services to prepare so-called racial-impact statements for policy changes that affect pretrial detention, sentencing and parole.

To justify such legislation, the soft-on-crime crowd trotted out its favorite warhorse, the Fallacy of the Irrelevant Denominator.

New Jersey has the largest disparity between white and black incarceration rates in the country, according to the Sentencing Project, a nonprofit that advocates reducing the prison population.

The state's prison population is 61% black, 22% white and 16% Hispanic, data show. The state's general population is 14% black, 69% white and 18% Hispanic, according to census data.

What is the relevance of the general population figures?  Most of the general population, across all racial and ethnic groups, consists of law-abiding people.  Prison is for felons, not law-abiding people.  The relevant first-order comparison would be prison population versus felons.  If the ethnic distribution of prisoners is out of line with the distribution of people committing the kinds of crimes for which prison sentences are regularly imposed, that would at least raise a suspicion that something might be amiss and warrant further investigation.  Comparing prison population with general population, though, indicates absolutely nothing.

More on Sexual Harassment:  With the recent launch of the "Me Too" movement, celebrities, actors and feminists are supposedly giving voice to millions of women victimized by a patriarchy which exploits them.  A compelling City Journal piece by Heather MacDonald questions this narrative, suggesting that the dramatic generational shift in cultural norms since the 1960s has created this problem.  "Feminists cannot acknowledge the divide between men and women when it comes to sex and sensibility. Doing so would violate what Steven Pinker calls the blank slate doctrine, a foundation stone of modern liberalism. One of that doctrine's core tenets is that 'differences between men and women have nothing to do with biology but are socially constructed in their entirety,' "  MacDonald suggests that today's cultural expectations regarding interactions between men and women, which are entirely the product of the women's liberation movement, have actually put women at a distinct disadvantage.  

Are Property Crimes Really Declining in CA?  Beginning in 2011, California has adopted three major sentencing reforms that liberal academics assured us would not increase crime.  Governor Brown's Realignment law, Proposition 47 and Proposition 57 severely reduced the consequences for all but the most violent crimes, substituting rehabilitation programs for lengthy incarceration, no matter how many times a criminal re-offends.  But after roughly two decades of declining crime, violent crime  increased in three of the last five years while property crime increased after Realignment became law, then began dropping after the 2014 adoption of Proposition 47, which converted the theft of property valued at less than $950 from a felony to a misdemeanor, no matter how many times a thief steals.  Are property crimes actually declining or is something else in play.   Michelle Hanisee, President of the Association of Los Angeles Deputy District Attorneys explains why arrests for property crimes have gone down.         

9th Circuit Overturns Death Sentence:  A unanimous panel of the 9th Circuit U.S. Court of Appeals overturned the death sentence of a brutal triple-murderer in Arizona.  Philip Athey of Cronkite News reports that in 2013, the same panel had upheld Robert Poyson's sentence, but that subsequent rulings by SCOTUS and Ninth Circuit in other cases required that more weight should have been given to the mitigating circumstances at his sentencing hearing than Arizona courts allowed.  Poyson was convicted on strong evidence of the murders of Leta Kagen, her 15-year-old son Robert, and friend Roland Wear, after Kagen let Poyson, who was homeless, stay with them.  The jury found that Poyson murdered Kagen with a gunshot to the head while she slept, reloaded and shot Wear, hitting him in the jaw and finishing him off by hitting him repeatedly over the head with a cinder block.  This all, after he stabbed and beat Kagen's 15-year-old son to death.  Barring a reversal on appeal, Poyson's drug and alcohol abuse and personality disorder(s) will be given more appropriate attention at a new sentencing hearing.

Death Sentence for Missouri Child Killer:  A Missouri Judge has sentenced Craig Wood, 49, to death for the 2014 kidnap, rape, and murder of a 10-year-old girl.  Fox News reports that Wood snatched fourth grader Hailey Owens off a street in broad daylight in front of witnesses, who took down his license number.  He took the girl to his house, raped her, shot her in the head, and left her body in the basement.  Jurors were unanimous in finding Wood guilty of capital murder, but could not agree on whether he should receive LWOP or a death sentence.  Because of this, Missouri law places the sentencing decision with the judge.  Wood's attorneys told reporters they will argue on direct appeal that his trial was unconstitutional.

Top MS-13 Leader Arrested:  The DEA announced Thursday that its agents had  arrested 17 top-ranking members of the violent MS-13 drug gang. Larry Celona, Kevin Sheehan, and Danika Fears of the New York Post report that a multi-agency task force put together last May led to the leaders of the violent gang's activities in at least 8 Long Island towns.  Included among those arrested is the group's Northeast leader, who was not named.  The arrestees have been indicted on charges, including drug trafficking, murder, and conspiracy, and face sentences up to 25 years to life in federal prison if convicted. The investigation has also led to affiliated gangs in New York, New Jersey, Maryland, Virginia, and Texas.

Jason Campbell reports for the Manteca Bulletin:

Proposition 47 was supposed to be a crucial component in relieving the overpopulation of California's jails and prisons and a vehicle for saving millions in costs associated with incarcerating nonviolent, non-serious criminals.

But opponents of the ballot initiative have said it has led to a sharp rise in the number of property crimes throughout the state, and tied the hands of the law enforcement community in providing a deterrent against the sort of quality-of-life crimes that impact everyday citizens.

And it doesn't look like the law is going to change anytime soon.

Earlier this week the California Assembly Committee on Public Safety failed to pass a bill proposed by Elk Grove Democrat Jim Cooper that would have addressed many of the concerns that have arisen since the implementation of Proposition 47.

*      *      *

Manteca City Councilman Gary Singh said that he sees the impact of Proposition 47 not just on the City of Manteca as a whole, but in his business on a nearly daily basis. As the owner of a liquor store not far from Highway 99, Singh said that while people used to come in and try and hide what it was that they were stealing, they do so now in the open knowing that even if they get caught by the police not much is going to come their way in terms of repercussions.

MS-13 Member Admits Killing Girl:  An 18-year-old female member of the notorious MS-13 street gang pleaded guilty on Monday to the brutal stabbing murder of a 15-year-old girl.  Travis Fedschun of Fox News reports that Venus Romero Iraheta, who does not speak English, admitted through an interpreter that she and other gang members abducted Damaris Alexandra Reyes-Rivas from her Maryland home in January 2017, marched her into a snowy Virginia field without shoes or a shirt, then stabbed her 19 times in the abdomen, chest, and neck.  Iraheta told police that the murder was revenge for the victim's relationship with her boyfriend.  She will be sentenced for first-degree murder, abduction, and gang membership.  She would have been eligible for the death penalty if she had been 18 at the time of the murder. 

Teens Arrested In Brutal Baltimore Carjacking:  A 69-year-old man was carjacked, thrown to the ground, and run over by a group of teens in front of his home last week.  Jonathan  McCall of CBS Baltimore reports that the attack, which occurred on the morning of January 3 in a quiet middle-class neighborhood, was caught on video by a Comcast worker.  The victim, Jim Willinghan, suffered a broken pelvis after the teens, aged 15-16, drove over him with his car.  Four of the teens have been arrested and police are still looking for two others.  Three of the suspects will be charged as adults for attempted, murder, assault, and carjacking.   As noted in earlier posts, Baltimore set a new record last year for homicides, as it's police department operates under a federal consent decree which restricts proactive policing.

As the sexual harassment allegations have toppled one famous and powerful person after another, I have often found myself saying "It couldn't have happened to a less-nice guy."  In many, perhaps most (but not all), cases, the person in question was an arrogant, condescending, sneering, obnoxious person, much too full of himself and contemptuous of others in other contexts.  Personality traits are broad, not focused, and it stands to reason that a person who treats others like that generally would also be the kind to engage in this sort of behavior.

Academia has its share of such people, perhaps more than its share, so it stands to reason that this chicken would eventually come home to roost there.  The time may be nigh.  Melissa Korn has this article in the WSJ.

SCOTUS Hears Two 4th Amendment Cases:  Search and seizure was on the docket yesterday as the Supreme Court heard oral argument in two cases involving 4th Amendment challenges.  Jessica Gresko of the Associated Press reports that in Byrd v. United States, Terrance Byrd was driving his fiancee's rental car when he was pulled over by Pennsylvania troopers for a traffic violation.  After determining that Byrd was not authorized to drive the car and he admitted that he had marijuana, the officers searched the trunk, finding bags of heroin and body armor.  In the appeal of his conviction Byrd's attorneys argued that there was insufficient probable cause for the search.  In the case of Collins v. Virginia, police arrested Austin Collins after he eluded officers on a motorcycle at speeds of up to 140 mph.  After locating what they believed was the house of the suspect's girlfriend, an officer removed a tarp covering the stolen motorcycle in the driveway.  Collins argued that the police were required to have a warrant to search for the motorcycle on private property.   Nina Totenberg of NPR has this take on how the argument went in these two cases.   

USCA8 Rehears Ferguson Civil Case:  The full U.S. Court of Appeals for the Eighth Circuit reheard a case arising out of the notorious Ferguson, Missouri police shooting case in 2014.  Dorian Johnson, who was with Michael Brown at the time of his altercation with Officer Darren Wilson and who later falsely stated that Brown had his hands up, is suing the City, its police chief, and Officer Wilson.  In this pretrial motion to dismiss, the key question is whether Johnson was "seized" within the meaning of the Fourth Amendment.  Rachel Lippmann has this story at St. Louis Public Radio.  The National Police Association submitted an amicus curiae brief, written by CJLF.  Update:  Robert Patrick has this report for the St. Louis Post-Dispatch.

Readers might think that I've finally gone over the edge by posting that the Justice Department can overrule the Supreme Court's holding in Miranda that, in order effectively to preserve the Fifth Amendment, police must give a specific set of warnings to a suspect in custody, on pain that any ensuing statement he gives will be suppressed even if the facts show it was voluntary.

Some of my law professor friends (including Doug Berman, whom I had the pleasure to see at the AALS convention in San Diego a few days ago) have been asking when Attorney General Sessions is going to make more of a push for the death penalty.  The answer came today from, among other outlets, the Wall Street Journal:

"The Justice Department has agreed to seek the federal death penalty in at least two murder cases, in what officials say is the first sign of a heightened effort under Attorney General Jeff Sessions to use capital punishment to further crack down on violent crime. In a decision made public Monday, Mr. Sessions authorized federal prosecutors to seek the death penalty against Billy Arnold, who is charged with killing two rival gang members in Detroit. The decision followed the first death-penalty authorization under Mr. Sessions, made public Dec. 19, when he cleared prosecutors in Orlando to seek a death sentence against Jarvis Wayne Madison, who is charged with fatally shooting his estranged wife in 2016. The Justice Department is also considering seeking death sentences against Sayfullo Saipov, accused of killing eight people in November by driving a truck onto a Manhattan bike lane, and against two defendants in the 2016 slaying of two teenage girls by MS-13 gang members on Long Island, outside of New York City, according to people familiar with the deliberations. Mr. Sessions views the death penalty as a 'valuable tool in the tool belt,' according to a senior Justice Department official. The official said the death penalty isn't only a deterrent, but also a 'punishment for the most heinous crimes prohibited under federal law.' The Justice Department under President Donald Trump expects to authorize more death penalty cases than the previous administration did, the official said." 

SCOTUS Orders Review of Murderer's Bias Claim:  In a 6-3 opinion announced Monday, the U.S. Supreme Court ordered the 11th Circuit to reconsider a Georgia murder's claim that he is entitled to a new trial because of a juror's racially biased statement. Adam Liptak of the New York Times reports that the Court's per curium opinion in Tharpe v. Sellers concluded that an affidavit by a juror in the murder trial Keith Tharpe, which described the defendant as a "nigger," required a full review by the lower court to determine if racial prejudice had resulted in Tharp's conviction and death sentence.  Overwhelming evidence confirmed Tharp's guilt of the shotgun murder of his estranged wife's sister during his ambush, kidnapping and rape of his wife.  The 11th Circuit had previously dismissed Tharp's bias claim.  A dissenting opinion by Justice Clarence Thomas and joined by Justices Alito and Gorsuch, called the majority's opinion "ceremonial hand-wringing."     

Scott Calvert reports for the WSJ:

Baltimore's record-high homicide rate--one of the highest in the U.S.--is tied to decisions in 2015 by local authorities to "cut back" on policing and prosecution, U.S. Deputy Attorney General Rod Rosenstein said Monday

During Mr. Rosenstein's tenure as Maryland's top federal prosecutor, local, state and federal authorities jointly targeted gangs and secured long prison terms for armed criminals, he said during a speech at a meeting of the American Correctional Association in Orlando, Fla. He credited that strategy for keeping the city's homicide rate at a low level until 2014.

"But in 2015, local authorities decided to try a new strategy," Mr. Rosenstein said. "They decided to cut back on policing and prosecution. And what happened next? Baltimore's murder rate skyrocketed."

Murder increased in Philadelphia last year, contrary to the overall trend of America's big cities.  But hang on, there's more.  The people of the city lost their collective minds in the last election, choosing a DA with a pro-murderer mindset.  After only a few days in office, he has taken a major step to make the city safer for murderers and less safe for decent people.

Chris Palmer, Julie Shaw & Mensah M. Dean report for the Philadelphia Inquirer:

Philadelphia District Attorney Larry Krasner ousted 31 members of the office Friday, a dramatic shake-up and the first major staffing decision announced by the city's new top prosecutor, just three days after he was sworn in.

*     *     *

The sweeping change affected lawyers of all ranks and could represent a 10 percent reduction in the number of prosecutors. Names were not released, but current and former employees -- none authorized to publicly discuss the moves -- said the group included trial attorneys and some supervisor-level staff, many with decades of experience. As many as a third of the office's homicide prosecutors were asked to leave, sources said.

The announcement was the first bombshell in what some of his supporters have hoped -- and his critics have feared -- would be a wave of drastic changes accompanying the installation of the career civil rights lawyer to the city's top law enforcement job.

*     *     *

Kate Steinle Killer Gets Time Served:  The five-time deportee who fired the gun that killed 32-year-old Kate Steinle in 2015 was sentenced to time served today.  Claudia Cowan of Fox News reports that last November a San Francisco jury decided that  Jose Ines Garcia Zarate had accidently fired the stolen gun that killed the young woman walking with her father on a crowded pier on July 1, 2015.  Garcia Zarate is expected to be turned over to U.S. Marshals for trial on federal charges of being an ex-felon and illegal alien in possession of a firearm.  If convicted he could receive a 10-year sentence and deportation.  His new defense attorney, the renowned Tony Serra, called the federal charges a "vindictive prosecution."  

A motions panel of the Ninth Circuit Court of Appeals has handed a mixed bag to the litigants in the "Sanctuary Cities" cases.

There are a total of four cases in the Ninth Circuit.  Two are the Government's appeals from the preliminary injunctions, and two are from the final judgment and permanent injunction.  Of these, one each is from San Francisco and one from Santa Clara County (San Jose and vicinity).

The Government wanted to consolidate all four cases, maintaining the expedited schedule for preliminary injunction appeals.  The counties wanted the preliminary injunction cases dismissed as moot, since a preliminary injunction has no legal force once it is supplanted by the permanent injunction, and to maintain the leisurely schedule of the final judgment cases.

The motions panel (Reinhardt, Paez, and Bea) dismissed the preliminary cases as moot.  But don't cheer too loud, sanctuary fans.  "The court construes appellants' motion to consolidate as a motion to expedite these appeals. So construed, the motion is granted in part."  The counties' briefs are due February 5, not April 26 as before.  Extensions?  Fuggitaboudit.*  The case will be set for argument on the April calendar, with the exact date, time, and place to be announced later.

The "merits panel" that hears the case will not necessarily be the same as the "motions panel" that issued today's order.

*  Well, actually, they said, "No written motions for extensions of time under Ninth Circuit Rule 31- 2.2(b) will be granted absent extraordinary and compelling circumstances."

Update:  The court is looking at its April 9-13 session in San Francisco and has asked counsel for the parties for their availability on those dates.

Child Killer Challenges Conviction:  A North Carolina criminal, found guilty in 2013 of the kidnapping, rape, and murder of 5-year-old Shaniya Davis, is asking the state supreme court to overturn his conviction and death sentence because his defense counsel told police where to find the victim's body.  WRAL News reports that habitual felon Mario McNeill had recently been released from probation when he went to Antoinette Davis' mobile home in Fayetteville on November 10, 2009, to collect a $200 debt.  Davis later admitted, "I gave her (Shaniya) to him to cover $200. He was only supposed to have sex."  McNeill left with the child.  He was arrested three days later on suspicion of kidnapping.  Hoping to get a better deal for his client, McNeill's defense attorney told detectives where to find the child's body, which had been dumped in a kudzu patch.  The Associated Press reports that at his trial, where McNeill pled not guilty, the jury deliberations lasted less than an hour.  His appellate attorneys are claiming ineffective assistance of his trial counsel for ruining McNeill's claim of innocence.  McNeill's criminal record includes a 2003 conviction for shooting three people.

Reuters reports from Jerusalem:

Israel's parliament gave preliminary approval on Wednesday for legislation that would make it easier for a court to impose a death sentence on assailants convicted of murder in attacks classified as terrorism.

Israeli military courts - which handle cases involving Palestinians in the occupied West Bank - already have the power to issue the death sentence, although this has never been implemented. The only case of an execution in Israel was carried out against convicted Nazi war criminal Adolf Eichmann in 1962.

The amendment to the penal code would still require three more readings if it is to become law. Currently, a death penalty can only be imposed if a panel of three military judges passes sentence unanimously. If the amendment is adopted, a majority verdict would suffice.

Migrants Causing Crime Spike in Germany:  A government-funded study in Germany has found that the influx of mostly young male migrants has lead to the recently reported increase in violent crime.  Riham Akusaa of Reuters reports that the study, led by prominent criminologist Christian Pfeiffer, concluded that 92% of the 10.4% increase in violent crime between 2015 and 2016 can be attributed to the increase in refugees, specifically the predominantly young male majority of refugees living in Germany without partners, mothers, sisters, or other females.  Migration will be a key issue in forthcoming coalition talks between Chancellor Angela Merkel's conservatives and the centre-left Social Democrats (SPD). The arrival of more than a million migrants since mid-2015 hurt both parties in last September's election.

Illegal Sex Offender Caught at Border:  A Mexican citizen deported after being incarcerated for the sexual assault of a minor was caught last week attempting to reenter the U.S.  KABC reports that Javier Reyes-Gomez was arrested by border patrol agents at Ocotillo, California.  The Border Patrol told reporters that Reyes-Gomez will be prosecuted for illegal entry and sent to prison if convicted.

Siobhan Hughes reports for the WSJ:

Senate Finance Committee Chairman Orrin Hatch (R., Utah) said he would retire when his term ends early next year, opening the door for a possible political comeback by 2012 GOP presidential nominee Mitt Romney.

"Every good fighter knows when to hang up the gloves," Mr. Hatch, 83 years old, said in a statement. "And for me, that time is soon approaching. That's why, after much prayer and discussion with family and friends, I've decided to retire at the end of this term."

Senator Hatch has been a champion of the cause of justice for a long time.  His leadership on the habeas corpus reforms of the Antiterrorism and Effective Death Penalty Act of 1996 was essential to that landmark legislation.  We thank him for his service and wish him well in his retirement.

Violent Crime Spikes in San Jose:  Robert Salonga of the San Jose Mercury News reports that the Bay Area's largest city was on track for a 7% increase in violent crime for 2017.  This follows a 14% jump in 2016.  While the mayor of San Jose still considers the city one of the safest in the nation, he admits the trend is causing concern.  The story notes that the Bay Area cities of Hayward, Fremont, Oakland, and Palo Alto also suffered two-year increases in violent crime.  It should be noted that San Jose was among the first cities in the state to fully adopt policies encouraged by AB109, offering split sentences, home confinement, and rehabilitation programs rather than jail time for theft and drug offenders.