February 2018 Archives

Maybe the Vogt Case Wasn't Certworthy

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Rory Little has this post at SCOTUSblog on yesterday's argument in City of Hays v. Vogt.  The case involves the use at a preliminary proceeding, not a trial, of a statement a former police officer was required to make.  Is that a Fifth Amendment violation for which he can sue the city?

But there are complications that make the case a problematic "vehicle" to address that question.  One thing just coming out now is that Vogt may not have made any objection to the introduction of the evidence.  That is important.  Generally, any objection to evidence not made at the time of introduction is forfeited.

Commenter Registration

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The commenter registration system has been turned off for the time being.  Our creaky old blog software is causing problems, and I do not presently have time to implement the replacement system.

I can register commenters manually, when I have time.  Requests may be emailed using the link on our contact page.

News Scan

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Deincarceration California Style:  As has been noted many times on this blog, most serious and violent crimes are committed by repeat offenders.  Since the mid-1990s, a proven formula for reducing crime was adopted both locally and nationally with great success.  The ingredients were targeted proactive policing and progressive sentencing.   Over the past decade, in response to claims by academics, activists, and liberal politicians that these policies targeted minorities and condemned otherwise upstanding citizens to decades in prison for minor offenses, several big cities and some states adopted reforms backing off policing and reducing sentences for habitual criminals.  California has been a leader in this movement, adopting four major sentencing reduction laws and numerous local policies limiting policing over the past eight years.  The most recent of these is Proposition 57, adopted in 2016 after a multi-million dollar publicity campaign convinced voters that it would only allow for early parole for well-behaved inmates convicted of non-violent crimes.  Almost immediately, district attorneys reported that a car thief, wife beater, or drug dealer eligible for early parole under this law could have prior convictions for rape or even murder.  Governor Brown, who helped finance the initiative along with George Soros, claimed that this was flat wrong.  Last week, NBC Los Angeles reported that the Governor was the one who was flat wrong, noting that numerous inmates with priors for crimes like murder and violent assault have been granted parole under Proposition 57.  Prosecutor Michele Hanisee, President of the Association of Deputy District Attorneys (ADDA) for Los Angeles, told reporters that the public was duped by the proposition's supporters.  "It's very clear they intended to release violent offenders by re-describing them, despite their crimes, as nonviolent offenders."   Both the news story and the ADDA blog cite examples of the kinds of criminals now considered non-violent and eligible for early parole.

    
Rafael Mangual of the Manhattan Institute has this article in the City Journal:

Last November, a deranged 26-year-old man, Devin Patrick Kelley, opened fire on worshipers inside a church in Sutherland, Texas, killing 26. High-casualty mass shootings are tragic in human terms but anomalous statistically, at least in terms of the portion of total U.S. homicides that they represent. The vast majority of murders, which take place disproportionately in America's low-income and minority neighborhoods, don't get nearly the same attention. The Texas church shooting does have an important point of commonality with the majority of American murders, however: its perpetrator had a troubling criminal record. The deincarceration movement, which would return thousands of convicts to American streets, presents a threat to public safety. Repeat offenders already commit a substantial portion of the nation's violent crime--according to one study, 53 percent of killers have at least one prior felony conviction. They will be walking the streets in greater numbers if deincarceration advocates have their way.
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The U.S. Supreme Court today decided Murphy v. Smith, No. 16-1067:

This is a case about how much prevailing prisoners must pay their lawyers. When a prisoner wins a civil rights suit and the district court awards fees to the prisoner's attorney, a federal statute says that "a portion of the [prisoner's] 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." 42 U. S. C. §1997e(d)(2). Whatever else you might make of this, the first sentence pretty clearly tells us that the prisoner has to pay some part of the attorney's fee award before financial responsibility shifts to the defendant. But how much is enough? Does the first sentence allow the district court discretion to take any amount it wishes from the plaintiff 's judgment to pay the attorney, from 25% down to a penny? Or does the first sentence instead mean that the court must pay the attorney's entire fee award from the plaintiff 's judgment until it reaches the 25% cap and only then turn to the defendant?
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At the end of the day, what may have begun as a close race turns out to have a clear winner. Now with a view of the full field of textual, contextual, and precedential evidence, we think the interpretation the court of appeals adopted prevails. In cases governed by §1997e(d), we hold that district courts must apply as much of the judgment as necessary, up to 25%, to satisfy an award of attorney's fees.

This could be an important case on statutory interpretation, beyond the context of the Prison Litigation Reform Act.

If you hadn't guessed from the style of the above paragraphs, the opinion is by Justice Gorsuch.  Justice Sotomayor dissented, joined by Justices Ginsburg, Breyer, and Kagan.

Guilty Pleas and Appeals

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The U.S. Supreme Court today decided Class v. United States, No. 16-424:

Does a guilty plea bar a criminal defendant from later appealing his conviction on the ground that the statute of conviction violates the Constitution? In our view, a guilty plea by itself does not bar that appeal.
Justice Breyer wrote the opinion of the Court.  Justice Alito dissented, joined by Justices Kennedy and Thomas, criticizing the majority for leaving a "muddle."

News Scan

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Lies Fueling Debate on CA Bail Reform:  Last year, the California Senate passed an ACLU-sponsored bill (SB10) which would have essentially eliminated money bail from the state's criminal justice system, replacing a judge's decision of whether a defendant should be released prior to trial with computer software to assess a defendant's risk of fleeing or committing new crimes.  Although the bill had Governor Brown's support, it failed to pass in the Assembly and is being reconsidered this year.  Proponents of the bill argue that having judges set the amount of bail is racist and discriminates against the poor.  They cite horror stories about poor minority defendants arrested for minor crimes languishing in jail awaiting trial for lack of money to post bail.  Prosecutor Eric Siddall, Vice President of the Los Angeles Association of Deputy District Attorneys, has this piece calling out a proponent's op-ed in the Los Angeles Times for a "glaring lack of candor" when describing the case of Kenneth Humphrey.  In their Times piece, two San Francisco public defenders claimed Humphrey had languished in jail for 250 days for "stepping into his neighbor's room at a senior citizen complex" and stealing $5 and a bottle of cologne.  Siddall notes that this narrative leaves out a few important facts.  The defenders go on to claim that the SF District Attorney conceded that Humphrey posed no threat to society.  This was a lie.  The prosecutor actually said that he was "a great public safety risk."   It would be nice, particularly when considering policies which directly impact the safety of innocent citizens, if both sides were able to stick to the truth.
I previously noted here and here the controversy over an op-ed by professors Amy Wax and Larry Alexander.  In Saturday's WSJ, Professor Wax has an article headlined "What Can't Be Debated on Campus," with the subhead "Pilloried for her politically incorrect views, University of Pennsylvania law professor Amy Wax asks if it's still possible to have substantive arguments about divisive issues."

It's even worse than we thought.
The New York Times is a wonderfully reliable mouthpiece for the interests of criminals, drug pushers in particular, and it does not disappoint in yesterday's editorial.  What it adds, however, are two  point-blank lies early in the piece designed to smear Donald Trump.  

This is the editorial's first sentence:  "In the decade or so before Donald Trump became president, America's approach to criminal justice was changing fast -- reckoning with decades of destructive and ineffective policies that had ballooned the prison population and destroyed countless lives."

The proposition that our criminal justice policies were "ineffective" is not merely breathtakingly false but upside down.  Over roughly the last three decades, starting in the term of President George H. W. Bush, crime rates fell by half.  These policies, in particular more police, more aggressive policing, determinate sentencing systems, and increased use of incarceration, have to count by any sane reckoning as one of the biggest success stories of the post-WW II era.  And they did not destroy lives; they saved lives, by the thousands.

The Times quickly moves on with this:  "Within minutes of taking office, Mr. Trump turned back the dial, warning darkly in his Inaugural Address of 'American carnage,' of cities and towns gutted by crime -- even though crime rates are at their lowest in decades."

Good grief.  Crime rates are not "at their lowest in decades."  In the two years before Trump took the oath in January 2017, violent crime had skyrocketed from what it was just in 2014.  Murder increased by more than 20% nationwide in 2015 and 2016.  Indeed, in those two years alone, we gave back all the gains we had made against violent crime since 2010.  The Times can read the same statistics anyone can find in less than thirty seconds  --  and it very likely did, and simply chose to lie about them.

Should Judges Have Sentencing Rules?

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Judges are given considerable leeway in sentencing.  No serious person thinks this is a bad idea.  The question subject to debate, at least in academia, is whether their judgment and outlook are so uniformly to be trusted that the legislature should be disabled from establishing any mandatory sentencing limits.

The following story provides the answer all by itself.  Its headline is, "Judge Cuts Pedophile's Prison Term Claiming 3-Yr-Old 'Asked' To Be Raped":

A California judge has caused outrage after slashing 15 years off the prison sentence of a pedophile convicted of raping a 3-year-old child.

Orange County Superior Court Judge M. Marc Kelly cut the child rapist's prison term down to ten years from 25 years claiming that "he didn't mean to harm" the 3-year-old girl that he raped.

He also backed the claim from child rapist Kevin Rojano that the young girl initiated the act of sodomy. Rojano said in his own defense that "she asked me to do it."


News Scan

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74% of Arrested Illegals Have Criminal Records:  A report released yesterday by the Pew Research Center indicates that last year almost three quarters of the illegal aliens arrested in the United States had prior criminal records.  This compares with just 39% of illegals arrested in 2009 with criminal priors.  The report also notes that the number of illegals arrested by ICE during the Obama administration dropped from almost 300,000 in 2009 to just over 140,000 in 2017.  The most common prior convictions among those arrested were for DUI and drug offenses.  While arrests of criminal illegal aliens increased nationally by 12% last year, they decreased in most of California, Southern Texas and Pennsylvania.  Not surprisingly, most cities in California, many in  Pennsylvania, including Philadelphia, and the two largest cities in Southern Texas (Austin & Houston) are sanctuary cities.     
When can sentencing laws enacted by the people by initiative be changed by the legislature?  The answer varies by state.

Noelle Crombie reports for the Oregonian:

A three-judge panel of Clackamas County Circuit Court judges unanimously concluded Wednesday that a controversial state law reducing sentences for some property crimes is unconstitutional, the latest development in a political conflict erupting over the statute.

The judges, Susie Norby, Michael Wetzel and Thomas Rastetter, concluded that the law, which the Legislature passed last year, needed a two-thirds majority instead of a simple majority because it revised Measure 57. The voter-approved measure cracked down on repeat property offenders with longer prison sentences.

Each time we have one of these horrific mass shootings, many people shake their heads and ask, "What on earth could make somebody want to do something like this?"  In most cases, the perpetrator is dead and did not plan to survive the attack.  This time we have a living perpetrator, so perhaps we will learn more.

I suspect that a strong desire to be in the headlines is part of the motivation.  Too many young people place too much emphasis on being "famous" and have lost the distinction between being famous and being infamous.  There is even a television series titled, "Murder Made Me Famous."

In December 1941, President Roosevelt famously declared that the 7th was "a day that will live in infamy."  He didn't say "fame," and everyone knew the difference.  The perpetrators would go down in history, but as villains, and that was universally regarded as a bad outcome for them.

Pretending Our Way to Murder

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This essay by Paul Mirengoff puts as starkly a I have seen the price to be paid, in honesty and in lives, for refusing to acknowledge reality because it does not square with leftist ideology.  It's hard to tell if this phenomenon is more disgusting, more tragic, or more ironic  --  the latter because it's leftist academia that brays incessantly that we need "evidence-based" this or "research-centered" that.  In truth, it could care less about what research or evidence shows.  This is visible most prominently, in criminal law debates, in the fact that the Left denounces as racist more and more aggressive policing and increased use of incarceration  --  even though overwhelming evidence shows that these things made major contributions to the decline of murder and violent crime over the last 25 years, and thus saved thousands of black lives we otherwise would have lost.

The snarling subordination of evidence to ideology is well illustrated by the race-norming of school discipline.  As Paul explains:


We're screwed if we must pretend that black students in public schools are suspended and otherwise disciplined at a disproportionately high rate (including by black teachers) mainly because of their race rather than because of their behavior and, underlying that behavior, their upbringing and family structure. And if we must therefore  relax disciplinary standards. Lest we be accused of racism.

We're screwed if we apply the same kind of fiction to adult criminals and redefine what's a crime and what's a proper criminal sentence in an attempt to create racially equal outcomes in our (until now Anglo-American) justice system. Lest we be accused of racism. 

Annie Sweeney reports for the Chicago Tribune:

On Tuesday, Bauer was fatally shot in the Loop by a four-time felon who had drawn the suspicion of tactical teams in the busy downtown area, police said. Officers tried to stop the man a few blocks from the Thompson Center, but he took off running, according to radio traffic of the incident.

Bauer encountered him at the Thompson Center, where a physical struggle resulted at a stairwell outside the government building, Police Department spokesman Anthony Guglielmi said. Bauer was found by other officers. The suspect was taken into custody.

Though the suspect had a lengthy record of interaction with police, he had not been arrested by Chicago police since 2014, and each of his felony arrests resulted in prison sentences, according to public records.

We do not yet have information on what those priors were, but if they all resulted in prison sentences, it seems likely that a well-written and regularly enforced Three Strikes law would have kept this person off the street and Commander Bauer would still be alive.

In an essay on the nation's 20-year crime drop, New Yorker scribe Adam Gopnik announces that the "urban crime wave is over" and that anyone who says otherwise, especially President Trump, is a bigot feeding the racist American Imagination.  Is Mr. Gopnik right?  Probably not.  Heather MacDonald's piece in today's City Journal suggests that ignoring the 20% increase in homicides between 2014 and 2016 and the almost 7% increase in violent crime may well represent actual racism, because most of the victims were blacks.  While blacks make up just 13% of the U.S. population, over half of all murder victims are black.  Specifically, 6,095 blacks were murdered in 2014, 7,039 were murdered in 2015, and 7,881 were murdered in 2016.  That's an increase of 2,731 murdered black men, women and children in just three years.  Mr. Gopnik called this a bump in the numbers.  Perhaps the fact that almost all of these victims were murdered by black criminals, conflicts with the liberal narrative that hundreds of innocent black men are being gunned down by racist police every year, and that pro-active policing, which helped generate the 20 -year-crime drop, is inherently racist.  Do black lives actually matter to liberals?    

News Scan

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Illegal Kills Toddler in DUI Crash:  An illegal alien from El Salvador was driving drunk at 1:00 a.m. Sunday when he broadsided an ambulance in North Carolina, injuring three and killing a three-year-old child.  Robert Gearty of Fox News reports that Jose Duran Romero, 27, blew .19 on a breathalyzer, twice the legal limit, two hours after he was arrested for crashing into the ambulance, causing it to roll over, injuring two paramedics and a woman passenger whose little boy died of injuries on Monday.  After the crash, Romero and a passenger tried to run away, but one was held by a citizen who observed the accident and police caught the other a short time later.  In addition to being very drunk, Romero was driving without a license.  He was charged with drunk driving, but could face the charge of vehicular manslaughter because of the child's death.  ICE has placed a detainer on Romero.  Fortunately, there are no sanctuary cities in North Carolina.

Death Sentence Upheld for Craigslist Killer:  The death sentence given to an Ohio man convicted of murdering three men who answered a job offer posted on Craigslist, was upheld in a 7-0 decision by the state Supreme Court last Friday.  Eric Heisig of Cleveland.com reports that habitual criminal Richard Beasley was convicted of the 2011 murders of Ralph Geiger, 56, David Pauley, 54, and Timothy Kern, 47. Marylin Miller of the Akron Beacon Journal reports that along with a 16-year-old accomplice, Beasley posted an offer of $300 per week and free housing for the caretaker of a 600-acre ranch in rural Noble County.  Beasley, who had priors for drug dealing and pimping, arranged interviews with four applicants at the ranch.  Three were shot and buried; one was shot but escaped and later testified at trial.

Murder in the Max

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Maximum security prison can guarantee a killer will never kill again, right?

The Folsom Telegraph reports:

A California State Prison, Sacramento (SAC) inmate was found dead in his cell this morning, Feb. 12. Prison officials are investigating the death as a homicide.

At 11:10 a.m., Monday, Feb. 12, staff discovered inmate Juan Victoria, 48, unresponsive in his cell. Medical staff was summoned and a responding physician pronounced Victoria deceased at 11:22 a.m.

Victoria's cellmate David Acuna, 34, was placed in restraints and removed from the area. Acuna had minor injuries that showed signs of a possible struggle between the two inmates. He has been identified as a suspect.
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Acuna was received into CDCR custody from Sacramento County on Sept. 16, 2015, with a sentence of 39 years-to-life with the possibility of parole for first-degree murder with use of a firearm and arson of an inhabited structure with special circumstances.
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Activated in 1986, SAC is a maximum-security prison that houses approximately 2,100 general population inmates and employs about 1,700 people.
Of course, Acuna is presumed innocent until proven guilty and all that.  Conceivably it could be self-defense.  Even so, the incident demonstrates that incarceration does not fully incapacitate.
The San Diego Union-Tribune has this editorial on Proposition 57 and the recent court decision on its application to sex offenders:

The San Diego Union-Tribune Editorial Board has advocated for criminal justice reform more often than any other editorial board in California in recent years for good reason. The U.S. has more -- to much more -- crime than nations with less punitive judicial systems, and in California, tough-on-crime policies from the 1990s have led tens of thousands of people with salvageable lives to be warehoused in prison long after they posed a likely public threat.

Even so, in 2016, our board could not bring itself to endorse Proposition 57, a deeply flawed measure Gov. Jerry Brown trumpeted as a big step forward for the criminal justice reform movement. The problem was that the measure was originally supposed to target juvenile justice, but it was revamped into a much broader constitutional amendment that stated anyone convicted of a nonviolent felony offense would be eligible for early parole consideration. A lower court ruling said the changes were unacceptable, but in June 2016, the California Supreme Court overturned the ruling on the grounds that a 2014 state law allowed flawed measures to be fixed before being put before voters.

Now we know how flawed this measure truly was.
It takes a lot for a major California newspaper to denounce a criminal justice "reform" measure.  They generally march in step with the soft-on-crime crowd.  I hope we see more newspapers marching to a different drummer as the truth becomes more clear.

Policing Saves and Extends Black Lives

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My friend and sometimes debate antagonist Wally Olson of the libertarian Cato Institute, in a remarkable display of the intellectual honesty for which he is renowned, brings to my attention (via Facebook) this article, titled "Crime Imprisons and Kills."


...the most disadvantaged people have gained the most from the reduction in violent crime.

Though homicide is not a common cause of death for most of the United States population, for African-American men between the ages of 15 and 34 it is the leading cause, which means that any change in the homicide rate has a disproportionate impact on them. The sociologist Michael Friedson and I calculated what the life expectancy would be today for blacks and whites had the homicide rate never shifted from its level in 1991. We found that the national decline in the homicide rate since then has increased the life expectancy of black men by roughly nine months.

...The everyday lived experience of urban poverty has also been transformed. Analyzing rates of violent victimization over time, I found that the poorest Americans today are victimized at about the same rate as the richest Americans were at the start of the 1990s. That means that a poor, unemployed city resident walking the streets of an average city today has about the same chance of being robbed, beaten up, stabbed or shot as a well-off urbanite in 1993. Living in poverty used to mean living with the constant threat of violence. In most of the country, that is no longer true.

That's Patrick Sharkey writing in the New York Times.

More police on the street is one cause, among many, of lower crime. It's important in the debate over better policing that we not lose sight of the value of policing. Given the benefits of reduced crime and the cost of police, it's clear that U.S. cities are under policed (e.g. here and here). We need better policing-including changes in laws-so that we can all be comfortable with more policing.



News Scan

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Illegal Busted With $560,000 of Meth:  An illegal alien who had been deported three times last year was caught with seven kilos of methamphetamine in November and is facing trial on drug trafficking charges.  David Neal of the Miami Herald reports that Saul Bustos and Irepan Salgado rolled into Florida with the meth, planning to sell most of it to a contact at an IHOP in Hialeah.  The buyer had contacted Salgado's brother to set up the deal.  The problem was, the buyer was an undercover drug agent.  After the deal went down, both men were arrested and face 10-years-to-life in federal prison if convicted.  Bustos, who admitted illegally crossing the U.S. border on April 13, 2017, and again on July 6th and 19th, faces additional time.

Racists Under Every Bed

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During the infamous McCarthy Era, it was said that Senator Joe McCarthy and his cohorts were "seeing communists under every bed."  Accusations of racism today occupy exactly the same as position as accusations of communism then.  There are, of course, real racists today just as there was some amount of communist infiltration then.  But the grossly excessive accusations on the thinnest evidence and the willingness of far too many people to pounce on the accused has created a witch-hunt atmosphere.

The latest incident is so absurd that it could very well be a satire in The Onion, but it is not.  Attorney General Jeff Sessions, giving a speech to the National Sheriff's Association, said, "The office of sheriff is a critical part of the Anglo American heritage of law enforcement."  Who could possibly object to an innocuous and historically accurate statement like that?  According to Aaron Blake at the WaPo:

Perhaps the two most full-throated responses came from Sen. Brian Schatz (D-Hawaii) and the NAACP. Schatz called it "appalling." The NAACP said they were Sessions's "latest racially tinged comments" and that it "qualifies as the latest example of dog-whistle politics."
Seriously?
William McGurn has this column in the WSJ:

In the past few days, the calls for a special counsel to look into the FBI and Justice Department have grown louder. Sens. Chuck Grassley and Lindsey Graham want one. So do Reps. Bob Goodlatte, Mark Meadows, Jim Jordan and others. Attorney General Jeff Sessions is thinking about it. Meanwhile, President Trump's deputy press secretary has told reporters that the president's lawyers want one too.

It's a tempting proposition. Republicans are plagued by a special counsel whose mere existence calls into question the legitimacy of the last election. Why shouldn't they inflict the same menace on Mr. Trump's opponents? The answer is that a special counsel is not only unnecessary but counterproductive.

Leniency Legislation Is Back

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Paul Mirengoff has this post with the above title at Powerline.

Two years ago at this time, a bipartisan coalition of Senators was pushing legislation that would have slashed mandatory minimum sentences for many federal drug crimes. Such a bill had cleared the Senate Judiciary Committee. However, Majority Leader Mitch McConnell wisely declined to bring it up for a vote in the Senate because his caucus was divided on the merits.

Now, Team Leniency is trying again. The same bill that died two years ago is before the Judiciary Committee.

It will breeze through that body. Three of the legislation's main opponents two years ago -- Jeff Sessions, David Perdue and David Vitter -- are no longer on the committee (Sessions and Vitter are no longer in the Senate). Sens. Orrin Hatch and Ted Cruz remain and are likely to oppose the bill again, and Sen. Ben Sasse, a new member of the committee, might join them. But the committee will approve the leniency legislation, most likely with only three dissenters.

What happens then? I hope McConnell will make the same calculation he made two years ago under similar circumstances. However, Team Leniency, which includes the Majority Whip (Sen. Cornyn) and the Judiciary Committee chairman (Sen. Grassley), will push hard for a vote.
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News Scan

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Quad Killer's Death Sentence Upheld:  The death sentence of a Kansas man who murdered his estranged wife, her grandmother and two daughters in 2009, was upheld by the state Supreme Court last Friday.  Morgan Chilson of the Topeka Capital-Journal reports that attorneys representing James Kahler claimed that misconduct at trial by the prosecutor and the judge voided his conviction.  The defendant also claimed that his death sentence was unconstitutional because he was suffering severe mental impairment at the time of the murders.  In a divided decision the Supreme Court rejected all ten of the defense claims. The facts presented in the decision described how at around 5:30 pm on November 28, 2009, Kahler, who was separated from his wife, walked into the kitchen of his wife's grandmother's house during a family gathering and shot the wife dead.  He then walked into the other rooms and shot the grandmother and two daughters aged 16 and 18.  Both daughters died later that evening, the grandmother survived for a few days before dying.  Kahler did not shoot his 9-year-old son, who ran to a neighbor's house when the shooting started.   
Michele Hanisee has this post for the L.A. Association of Deputy District Attorneys:

We repeatedly warned prior to the election that the ambiguities of language in Prop 57 would allow sex offenders to be released early from prison.  The proponents realized the public wouldn't support that, so led by Governor Jerry Brown they responded by promising that CDCR would write regulations to make sure sex-offenders weren't released early. And so they did.  CDCR wrote into their regulations that registered sex offenders were excluded from the early release provisions of Prop 57.

We knew that approach would fail, because a regulation cannot expand the scope of the law that it purports to implement. Now, the completely foreseeable result of this poor drafting has occurred. This Friday, a Superior Court struck down CDCR's after-the-fact attempt to write into the regulations what was not in the underlying law. "The Court cannot insert words into an initiative to achieve what the court presumes to be the voters' unexpressed intent; neither can CDCR," said the court.

A Misquote on BBC News

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Reporters often wrongly paraphrase what I say and sometimes quote out of context, but it's rare that the words inside the quote marks are wrong.  One of those rare misquotes appears on BBC News today, with essential words left out:

"Anyone who says the death penalty has no deterrent effect either doesn't know what they are talking about or are lying," says Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which has supported death penalty cases throughout the country.

"The debate over studies supporting its deterrent effect is whether they have sufficiently shown it."

What I actually said was "Anyone who says it has been definitively proved that the death penalty has no deterrent effect either doesn't know what they are talking about or are lying."

Big difference.  Many people believe the death penalty does not deter.  On the present state of the evidence, they are entitled to their opinion.  What they are not entitled to say on the present state of the evidence is that their opinion is a conclusively proved fact, but misinformed or dishonest people often say that.  I would never say that the evidence definitively proves that the death penalty does deter, but the Beeb quotes me as saying just that.

I have sent in a request for a correction.

Update:  The quote has been corrected.

Update 2:  The paragraph immediately before the quote says:

Both sides in the debate cite studies supporting respective claims about the death penalty achieving or not achieving deterrence - currently studies supporting the latter appear to have the upper hand.

The story provides no basis for the "upper hand" statement.

Mr. Nicey Has Goodies for You

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From the Drugs Are Wonderful Department, this news report:  "33 pounds of fentanyl - enough to wipe out Massachusetts - seized in Boston."

Boston authorities said they seized more than 33 pounds of fentanyl--enough to kill millions of people--in connection with one of Massachusetts' biggest drug busts ever.

In announcing the results of a six-month wiretap probe called "Operation High Hopes," prosecutors said the synthetic opioid was being sold on the street by a drug gang with links to Mexico's notorious Sinaloa Cartel, the drug organization once led by Joaquín "El Chapo" Guzmán.

"I want to be clear about the size and scope here," District Attorney Daniel Conley said at a news conference Thursday. "Massachusetts' fentanyl trafficking statute covers quantities greater than 10 grams. That threshold represents less than 1/1000 of the quantity we've taken off the street."...

The Boston Herald quoted a law enforcement source as saying that the 33-plus pounds of fentanyl is enough to kill more than 7 million people in its raw form. Massachusetts population is 6.8 million.

California Not Seceding After All

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Well, looks like Californians won't be donning gray uniforms and replacing the bear flag with the stars and bars.  Initiative 17-0005, filed by Cindy Sheehan et al., has failed to qualify.  The AG's summary of the initiative, minus the cost part, is:

Repeals provision in California Constitution stating California is an inseparable part of the United States. Directs Governor, in consultation with those members of Congress who represent California, to negotiate continually greater autonomy from federal government, up to and including agreement establishing California as a fully independent country, provided voters agree to revise the California Constitution. Creates new state commission to research and make recommendations on ways of increasing California's autonomy and independence.
I'm so relieved.

News Scan

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Huge Fentanyl Bust in Boston:  State and federal law enforcement authorities have seized 33 pounds of uncut fentanyl from traffickers in Boston.  Fox News reports that amount of the super-potent pain killer is enough to fatally overdose the entire population of Massachusetts.  Prosecutors said that the drug was being sold by a gang with links to Mexico's Sinaloa drug cartel once led by Joaquin "El Chapo" Guzman.  District Attorney Daniel Conley told reporters "Individuals who buy and sell at this level aren't users...They're trafficking in addictive substances that claim more lives in Massachusetts than all homicides, all suicides and all car crashes, statewide, combined."   

In Praise of Chads

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Brian Klaas has this article in the WaPo:

This week, the U.S. government confirmed that Russian hackers infiltrated voting systems in several states, having targeted 21 of them. While there is currently no evidence suggesting any votes were changed, a hostile foreign power did gain access to voter registration databases -- the vital foundation of election integrity. After all, if you control who can and cannot vote, you control a democracy.

America's foolish experiment with digital voting processes must end. The Kremlin -- or other hostile foreign actors -- will certainly strike again. It's time for good old-fashioned paper to make a comeback.

Gallup Poll on Gun Laws

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Megan Brenan reports for Gallup that a poll shows that 46% of Americans are dissatisfied with our gun laws and want them more strict, 39% are satisfied with the laws as they are, and 8% are dissatisfied and want them less strict.

So a proposed law for greater restriction would have 46% in favor and 47% (39+8) opposed.  That's about as tight as it gets.  A proposal for less restriction would have 8% in favor and 85% (46+39) opposed.

A footnote on the graph notes but does not give a figure for "those who are dissatisfied but want laws to remain the same."  Huh?  Apparently the number of such confused people is small.
Last November, I noted the introduction of H.R. 4493 by Pennsylvania Congressmen Marino and Barletta.  This bill would eliminate the nonsensical "single-juror veto" system in the penalty phase of federal capital cases, replacing it with a true unanimity requirement where the jury must be unanimous one way or the other, as in the guilt phase.

On Wednesday, Senators Toomey, Cotton, Cornyn, and Cruz introduced a parallel bill in the Senate, S. 2389.

Death Penalty Focus is predictably unhappy.  They quote a capital defense lawyer warning in grave tones, "Obviously, this bill would invite a lot of constitutional scrutiny."

Seriously?  California has had this law since 1978.  That's eight years of review by the California Supreme Court under the reign of the notorious Rose Bird followed by over 30 years of scrutiny by the federal Ninth Circuit.  If two of the most vehemently anti-death-penalty courts in American history haven't found a constitutional problem with this law in four decades, doesn't that indicate it is quite solid?
Is a lawyer who has ever defended a person accused of serious misconduct per se "unfit to be a judge"?  If so, everyone who has ever been a criminal defense lawyer is disqualified.  If I wrote an op-ed saying that a nominee was unfit because he once represented a murderer and sent it to the New York Times, what is the chance it would be printed?  Absolute zippo.

Yet today the NYT has an op-ed hit piece attacking Fifth Circuit nominee Kyle Duncan on the ground that he once represented Harry Connick, the former District Attorney of Orleans Parish, Louisiana, in a case arising from a Brady violation committed by attorneys in Mr. Connick's office, not Mr. Connick personally.

News Scan

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Appeals Court Upholds Death Sentence:  DNA evidence which helped convict a Texas man of capital murder was also cited by the state's Court of Criminal Appeals to uphold his death sentence.  Clare Osborn of the American Statesman reports that the 1980 rape and murder of 73-year-old Mildred McKinney was unsolved until modern DNA testing of items found at the crime scene resulted in a match to habitual criminal Steven Thomas.  Other evidence included Thomas's fingerprint on the alarm clock next to the bed where the victim was raped, beaten, and strangled to death.  Thomas was working for the pest control company hired by the victim when he cased her house and decided to rob it.  The case was cracked when his sperm was found on tape used to restrain the woman.  The court's decision noted that the coroner, who had performed 15,000 autopsies, testified that the victim's injuries were the worst he had ever seen.

Illegal Charged in Fatal DUI Crash:  A twice-deported illegal alien from Guatemala has been charged with causing the deaths of  NFL linebacker Edwin Jackson and Uber driver Jeffery Monroe last Sunday.  The Associated Press reports that Manuel Orrego-Savala had been deported in 2007 and 2009, and had been convicted of drunk driving in California in 2005.  He had numerous convictions and arrests in both California and Indiana.  On Sunday, Orrego-Savala was driving drunk when he hit both victims on Interstate 70 in Indiana.  The county prosecutor criticized recent comments made by the President about the case and promised that Orrego-Savala's immigration status will have no bearing on the trial.  In spite of this, it's fairly clear that if this criminal had been unable to reenter the U.S. his two victims would still be alive.
In the 1980's, America largely came to a consensus that parole was a bad idea.  It was abolished altogether in the federal system and sharply restricted elsewhere.  The pendulum has now swung back, and there is good reason to believe that it has swung too far.

Eric Siddall has this post for the [Los Angeles] Association of Deputy District Attorneys, with the above title:

The state parole board continues its reckless policy of early release for violent felons. We previously documented some examples of the parole board's dangerous trend of ignoring public safety when labeling inmates to be released early as "not a danger" to the public.
 
This past week a panel of commissioners voted to grant parole to William Bradford, who was convicted of murdering his former wife in 1988 by pumping hollow-point bullets into her body. Why? Because the panel said there was no evidence he would pose a threat to the public.
 
This was an extraordinary conclusion - and not just because of the cold-blooded nature of his crime. Bradford's own daughter, Shaun Rickerl, begged the board not to release her father. She said she continues to be terrified of him.
 
Veteran prosecutor, Deputy District Attorney John Lewin, asked the board to deny Bradford parole. The reason: Not only did Lewin prosecute the case, but after Bradford was convicted, it was discovered that Bradford was plotting to murder Lewin and his family.
 
"This is the one guy that scares me," Lewin told the Los Angeles Times. "How dare [the parole board] play Russian roulette with my family."

Arizona Study Update

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I've been too busy to post yesterday and today, between CJLF's board meeting and tight briefing deadlines, but here are a couple of links to update the January 29 post on illegal immigrants and crime. 

Alex Nowrasteh has this article at Cato claiming that John "Lott made a small but fatal error that undermines his finding."

Lott, as you might expect, disagrees.  He has this update at Crime Prevention Resource Center's blog.  Scroll down to "Responses to new comments" to get the pertinent part.

Figuring out who is right between a critique and a response takes more time than I have at present, so I'm just posting the links for those who are interested.

The easy way, of course, is to declare the truth of the one that supports your position.  A study supporting your side is "definitive."  One supporting the other side is "debunked."  There is plenty of that flying around.

The Memo and the Mueller Probe

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Former Attorney General and U.S. District Judge Michael Mukasey has this op-ed in the WSJ with the above title and the subhead "If the investigation arose from partisan opposition research, what specific crime is he looking into?"

The regulation that governs the jurisdiction of the special counsel requires that he be "provided with a specific statement of the matter to be investigated." The letter from Deputy Attorney General Rod Rosenstein appointing Mr. Mueller says he is to "conduct the investigation confirmed by then-Director James Comey before the House Intelligence Committee on March 20, 2017," which covers "any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump," and any matters that may arise "directly" from that investigation.

But the investigation then disclosed by Mr. Comey was not a criminal investigation; it was a national-security investigation. Possible Russian meddling in the 2016 election is certainly a worthy subject for a national-security investigation, but "links" or "coordination"--or "collusion," a word that does not appear in the letter of appointment but has been used as a synonym for coordination--does not define or constitute a crime. The information, and misinformation, in the Steele dossier relates to that subject.

Finding Common Ground on Criminal Justice

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Although there remain stark differences on criminal justice reform, it occurs to me  --  thanks in part to President Trump's sometimes moving State of the Union Address  --  that there are potential areas of common ground.  Three come to mind.

1.  Prison reform.  Conditions in federal prison are decently good, but this cannot uniformly be said for the states.  Same with health care and vocational training.  

Prisoners are our fellow human beings.  In the huge majority of cases, they earned their way to incarceration.  But almost all will return to civil society one day, and for their sake and ours, they should be given every reasonable chance to lead safe and productive lives.  Efforts at rehab are not uniformly successful to say the least, but that is not a reason to give up.  It's a reason to try harder.

2.  Mens rea reform.  It should be too obvious to need saying, but no one should go to jail for behavior a normal person would not regard as wrong, much less criminal.  The increasing use of criminal law as a cudgel of the administrative state is a threat to liberty and needs to stop.

Some who have been dragging their feet on this question argue that mens rea reform would make it more difficult to impose criminal punishment on corporate executives.  These tend to be the same people who, in every other context, understand that, under the Constitution, it ought to be difficult to impose criminal punishment on any citizen.  But something about corporations drives them nuts.

3.  Mandatory sentencing.  Mandatory minimum sentencing was and is needed to rein in naive, willful and feckless judges  --  judges who were part of the problem in America's 30 year-long crime explosion, 1960-1990.  To the extent mandatory sentencing has also been a part of the increased use of incarceration, it has accounted for a portion of the sharp decrease in crime, and is thus a major public benefit.

That understood, there is room to debate whether mandatory sentencing is better undertaken through statutory minimums or through mandatory guidelines rigorously enforced.  Since we no longer have mandatory guidelines, this is for the moment a moot question.  If such guidelines were to return, however, and if they proved fully effective after a period long enough to be sure, the possibility of changes in mandatory minimum sentencing statutes would at least be worth examining.

Texas Execution

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Yesterday, we noted the upcoming execution of John Battaglia in Texas, the second in that state in a week.  Battaglia was indeed executed last night.  The U.S. Supreme Court orders denying a stay and review of lower court decisions are here and here.  No dissent is noted from either order.

Callum Paton reports for Newsweek:

Without remorse or humility until the end, killer John Battaglia, who murdered his two young daughters in his Texas home in 2001, laughed and taunted his ex-wife as he was executed Thursday.

Battaglia saved his last words for his ex-wife, Mary Jean Pearle, The Dallas Morning News reported. "Well, hi, Mary Jean. I'll see y'all later. Bye," he said to Pearle, who had come to watch him die.

As he drew his last breaths, 17 years after Battaglia had killed her two children, Pearle was heard to say "I've seen enough of him" as she walked away from his motionless body, separated by a glass window.

Battaglia's demeanor was described as "jovial" as he prepared to meet his end by lethal injection at the Huntsville Unit in Texas.

The Dallas Morning News has this story by Tasha Tsiaperas with contribution from AP.

The Memo

The controversial memo by the House Intelligence Committee has been released and is available here.

Prior to the release, Kimberly Strassel had this article in the WSJ titled "Memo Reading for Nonpartisans: Ignore the spin. When the document goes public, here's what to look for."

I don't see anything in the memo that constitutes a disclosure that is damaging to our intelligence operations, which would be the primary reason to keep it secret.  In the run-up to release, the FBI maintained that the problem was material omissions.  It certainly is possible to mislead with half-truths, as we have noted many times on this blog.  The obvious remedy would be to supply the missing material, if that can be done without making damaging disclosures.

The memo alleges that the FBI sought a FISA warrant against an advisor to the Trump campaign without informing the FISA court that a substantial portion of the information submitted for probable cause was paid for by the Clinton campaign.  What would "the rest of the story" be that could make this not serious misconduct?  That other information provided made such a compelling case that this information was immaterial?  That seems unlikely. 

Strassel notes, "Ignore any arguments that the dossier was not a 'basis' for the warrant or only used 'in part.' If the FBI had to use it in its application, it means it didn't have enough other evidence to justify surveillance."  That doesn't quite follow.  It's not unusual to pile on everything you have even if you think less should be enough.  After all, the court might not agree with your probable cause assessment.  But even if the other evidence was abundant, it is still misleading to provide the Clinton-campaign-funded information without disclosing that it was so funded.  We will wait and see what the FBI has to say.

It's Worse Than You Thought, Much Worse

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Complacency about crime is the petri dish of the movement to reduce accountability (read: sentences) for criminals. Complacency is fed by repetition of the (truthful, as far as it goes) assertion that crime has fallen dramatically in the last quarter century.  Typically absent from this assertion, however are two key facts:  First, violent crime, and murder in particular, has surged over the last three years over what it was at the end of 2014; and second, that three of the most significant causes of reduced crime (more police, more proactive policing, and increased use of incarceration) are exactly the programs the complacency peddlers hope to reverse.

Nostalgia for the bad old days of more crime seems odd to me, but there you have it.

One thing advocates of more humbled policing and softer sentencing will sometimes admit, however, constitutes a startling rebuttal to their pitch for complacency.  It is this:  The crime figures upon which complacency is based are false.  This is so because, to quote verbatim the words of the Pew Research Center (a left-leaning think tank), "Most crimes are not reported to police, and most reported crimes are not solved."

You read that right.  The figures we routinely see about crime (e.g., from the UCR, which I also have frequently cited) don't tell even half the story of how prevalent crime is.  And I might add that, even among the minority of crimes that are both reported  and solved, only a fraction get prosecuted. Worse still, of that number, the actual crime is seldom charged.  Instead, what gets taken to court is a dumbed-down version the prosecutor has agreed to in order to obtain a plea bargain defense counsel will accept.

Remember this, then, the next time you see a headline like, "Statistics say crime is way down."  The headline may well be true for what is says.  It's what it doesn't say that will cost you your wallet (or a great deal more).

Prop 57 - Juveniles tried as adults

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This morning, the California Supreme Court issued its opinion in People v. Superior Court (Lara) (S241231).  The issue was whether Proposition 57 applies retroactively to juvenile cases that had been directly filed in adult court prior to it being passed in the November 2016 election.  In addition to permitting the release of inmates who commit "non-violent" offenses, Proposition 57 mandates that all allegations of criminal conduct against a minor (individuals under age 18) must be initiated in juvenile court.  In other words, a delinquent minor can no longer have charges directly filed against him or her in adult court.  All cases, regardless of the severity of the crime, must be initiated in juvenile court.  If a minor (age 14+) commits certain enumerated crimes (such as murder or certain sex offenses), a prosecutor can file a motion for a "transfer hearing" which requires the juvenile court to evaluate factors such as the minor's maturity level, degree of criminal sophistication, prior delinquent history, and whether the minor is capable of rehabilitation.  If, based on those factors, the juvenile court concludes that the minor should be tried as an adult, the case can be transferred to adult court and all proceedings from that point on occur as if the minor is an adult.

Prior to Proposition 57, minors age 14 or older who committed certain serious crimes could be tried in adult court in one of three ways: (1) statutory waiver - mandatory direct file in adult court; (2) prosecutorial waiver - discretionary direct file by the District Attorney; or (3) judicial waiver - upon motion, juvenile court had authority to transfer the case to adult court after holding a "fitness hearing."  Proposition 57 eliminated statutory and prosecutorial waiver.  

Stras Confirmed to USCA8

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Alex Swoyer reports for the Washington Times:

The Senate confirmed another one of President Trump's Circuit Court nominees on Tuesday over "blue slip" protests from Democrats, who said the nominee never should have been given a hearing, let alone a vote.

Minnesota Supreme Court Justice David Stras was confirmed to the 8th U.S. Circuit Court of Appeals by a 56 to 42 vote, becoming Mr. Trump's 13th Circuit Court pick to clear the Senate.

But Democrats said Justice Stras was only placed on the federal bench after Republicans disregarded the "blue slip" tradition, which allows home state senators to sign off on judges from their home states.

Two Texas Executions in One Week?

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Once a state has its execution protocol set up and running, is there any reason it can't carry out sentences as fast as the court system finishes reviewing the judgments?  The Ohio Supreme Court pointlessly insists that executions be a month apart.  Texas carried out one execution Tuesday and has another scheduled for today, and today's is certainly well deserved.  Jolie McCullough reports for the Texas Tribune:

Texas is preparing to carry out its second execution of the week Thursday, putting to death a Dallas man who fatally shot his two daughters while their mother listened on the phone.

If his pending appeals are denied, John Battaglia, 62, will be the third person to be executed in Texas in 2018. No other state has held an execution this year.

*      *      *

Battaglia killed his daughters while they were at his house for dinner in May 2001, according to court records. He had just learned there was a warrant out for his arrest after he harassed their mother and his ex-wife, Mary Jean Pearle. He got Pearle on the phone and had his oldest daughter, 9-year-old Mary Faith, ask her why she wanted Battaglia to go to jail.

Before the screams and gunshots, Pearle heard her daughter's last words: "No, daddy, please don't, don't do it."

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