March 2018 Archives

Heather MacDonald, alias "the clerk who had gone bad," has this article in the City Journal remembering Judge Stephen Reinhardt, who died Thursday.

The United States has sued the State of California in federal district court in Sacramento, the state capital, seeking a declaration that three state statutes enacted for the specific purpose of hindering enforcement of federal immigration law are unconstitutional.  The case is United States v. California, et al., 2:18-cv-00490-JAM-KJN, U.S. District Court for the Eastern District of California, assigned to Judge John Mendez.

California moved to transfer the case to the Northern District, headquartered in San Francisco.  The ostensible reason is that there are common questions with the grant-money cases already going on there.  The real reason is that the Northern District would assign the case to Judge Orrick, whose rulings to date demonstrate that he is so vehemently on their side that he is essentially a member of The Resistance.  See this post.

This morning Judge Mendez denied the motion.

Update:  The hearing on the preliminary injunction is set for June 20.

Cop Killer Gets Death Sentence:  An illegal immigrant convicted of murdering two California police officers was given a death sentence by a Sacramento jury Tuesday.  Angela Greenwood of CBS13 reports that jurors took just four hours to return a unanimous recommendation of the death sentence for Luis Bracamontes.   In an October 24, 2014 crime spree lasting four hours, Bracamontes gunned down Sacramento Deputy Sheriff Danny Oliver and Placer County Sheriff's Detective Michael Davis, Jr., attempted to kill two others, and stole two cars before he was arrested.  Bracamontes had been deported four times prior to killing the two officers.  During his trial and sentencing he swore at jurors and the victims' family members and laughed when the jury forewoman announced their recommendation of a death sentence.    

Study Blames "ACLU Effect" for Chicago Crime Spike:  A University of Utah study found that a 2015 agreement between the American Civil Liberties Union and the Chicago Police Department requiring officers to fill out contact cards every time they stopped an individual, virtually eliminated pro-active policing and invited more crime.  Michael Tobin of Fox News reports that the agreement, which followed massive demonstrations protesting the 2015 police shooting of Laquan McDonald, reduced police stops of suspicious individuals from 600,000 in 2015 to 100,000 in 2016.  The result, said researchers, was a 58% increase in fatal shootings totaling 754 victims that year.  The ACLU is calling the study "junk science."  Professor Paul Cassell, who coauthored the study, countered that they had reviewed several factors including anger over the McDonald shooting, mistrust of police and even the opiod epidemic, but concluded that burden of documenting police contacts discouraged officers from stopping suspicious people and checking for weapons, leaving more guns in the hands of criminals.  The full paper is available on SSRN. 

Injunction Blocking CA Executions Lifted:  A ruling by a Marin County judge has lifted a 2012 injunction issued by the same court which had blocked executions in California.  The ruling in Sims v. CDCR by Superior Court Judge Roy O. Chernus answered a January 21, 2018 motion by the Criminal Justice Legal Foundation (CJLF) on behalf of Kermit Alexander.  Alexander's mother, sister, and two nephews were murdered in 1984 by gang member Tiequon Cox, who is on death row awaiting execution.  Alexander is also the proponent of Proposition 66, the initiative adopted in 2016 to remove unnecessary delay from the state's death penalty process.  One of the causes of delay was a court-ordered requirement that execution protocols be adopted under the state's cumbersome Administrative Procedure Act.  The 2012 injunction was issued after condemned murderer Michael Sims claimed that the California Department of Corrections and Rehabilitation (CDCR) had failed to properly meet that requirement.  That requirement was eliminated by Proposition 66.  In January, CJLF filed the motion, which was later joined by the CDCR.  

UPDATE:  CJLF Legal Director Kent Scheidegger appeared on the John & Ken Show in Los Angeles yesterday to talk about this ruling.   To hear it, click here, pick the full show for 3/28, and use the control panel at the bottom to go 65 minutes in to catch Kent's segment.

"Suitcase Killer" Facing Execution:  A man, known as the "suitcase killer" is scheduled to be executed in Texas this evening.  Fox News reports that Rosendo Rodriquez III,  was sentenced to death for the September 12, 2005 rape and murder of 29-year-old Summer Baldwin   The victim's badly-beaten body was found in a suitcase at a landfill five days after the murder.  She was 10 weeks pregnant.  An autopsy revealed that she died of blunt-force trauma and asphyxiation and that she might have been alive when she was stuffed into the suitcase.  Overwhelming evidence linked Rodriquez to the murder, including his admission that he killed her but claimed that it was in self defense.  Rodriguez also admitted to killing 16-year-old Joanna Rogers a year before he killed Baldwin.  The young girl's body was also found stuffed in a suitcase.  The 2011 decision by the Texas Court of Criminal Appeals, upholding his conviction and death sentence, indicates that evidence presented at the sentencing hearing included detailed statements from five young women who claimed to have been raped by Rodriguez.  In a last-minute appeal, Rodriguez argues that he is innocent, and challenged the credibility of the medical examiner's testimony.  

Illegal Arrested For Raping Oregon Girl:  A 24-year-old Guatemalan in the U.S. illegally is being held by ICE and awaiting trial on charges for multiple sexual assaults on a 14-year-old Oregon girl.  Jack Heffernan if the Daily Astorian reports that Anastacio Eugenio Lopez-Fabian was arrested in February for the sexual assaults which began in 2016.  He was deported to Guatemala in 2013 and 2014, but illegally crossed the border again and settled in the town of Seaside, Oregon.  After the suspect posted $25,000 for bail, he was released from custody.  Earlier this month ICE agents arrested Lopez-Fabian in a courthouse parking lot and took him to a federal detention center in Tacoma.  The county sheriff told reporters that after a federal judge in Portland ruled that detaining illegals for ICE was a 4th Amendment violation, sheriffs have been reluctant to hold them.  "Believe me, we want to hold these guys," he said.  In the meantime, U.S. Congresswoman Suzanne Bonamici, D-Oregon, has proposed legislation to prohibit immigration arrests at courthouses, schools and health clinics.  When asked about this the sheriff said he does not have a problem with ICE arrests at these places, "We're worried about the actual criminals that are causing problems and doing harm."  

The Language Police do a lot of annoying things, but one of the most annoying is their habit of taking a term for a group of people that was once the preferred term, declaring it to be a slur, and castigating anyone who hasn't gotten the memo and continues to use it.

Justice Thurgood Marshall continued to use the word "Negro" in his opinions long after it was regarded as decidedly uncool, only switching to "Afro-American" near the end of his tenure.  He still used "Negro" when speaking to a group of reporters the day after his retirement.  To my knowledge, no one ever insinuated he was a racist for using a formerly preferred but now disparaged term, but other people have been targeted that way.

Among the numerous attacks made on Sentencing Commission nominee (and C&C blogger) Bill Otis is this one by Kimberly Yam of the Huffington Post.  Ms. Yam posts in a huff that Bill used the term "Oriental," which she says is a "derogatory term," in a comment in the thread discussed in this post.

Is it derogatory?  I first asked my very favorite person from the Far East, my wife, Lada.  She doesn't think there is anything derogatory about the term.  She prefers it to "Asian," a term she never liked.  And, Lada asks, who elected Ms. Yam to speak for all people of an entire racial group and decide what terms can be used?  She doesn't recall receiving a ballot.

Poll: Crime 2nd Highest U.S. Concern:  A just-released Gallup survey of top concerns in the U.S. ranked crime and violence as second highest concern, slightly under affordable health care.  78% of respondents said that their concerns about crime were either very high or a fair amount.  For most of the 1980s and the first half of the 1990s, when crime rates were very high nationally, Gallup surveys consistently ranked public concern about crime among the top three highest concerns.  It remains to be seen if the high level of concern reported this year is related to the recent Parkland, Florida shootings or about the overall level of crime and violence nationally.  

At long last, a major polling organization has finally asked the American public the actual, central question of the death penalty debate in a national poll.

"Would you like to see the death penalty abolished nationwide, or not?"

Yes:  31%
No:   64%
Duh:   5%

You would think that would be the headline of the press release, right? 

After the jury found federal life prisoner Jessie Con-Ui guilty of murdering correctional officer Eric Williams, it had two choices on punishment: (1) death, or (2) effectively no punishment at all, as a second life sentence means nothing.

Eleven jurors sensibly chose the only meaningful punishment but one refused.  The result?  Under the federal system's single-juror veto rule, the decision of the one effectively prevails over the decision of the eleven, and Con-Ui got a second, meaningless life sentence.

In how many states does a jury deadlocked in the guilt phase at eleven for guilty and one for acquittal result in an acquittal and the defendant walking free?  Zero.  A single-juror veto in the guilt phase would be crazy, and everyone recognizes that.  Why on earth does any jurisdiction conduct its penalty trials that way?  Why not do it just like the guilt phase, where "unanimous" means unanimous one way or other, and a hung jury means you empanel another jury and retry the case?

Chelsea Strub has this report for WNEP on a press conference by Pennsylvania Senator Pat Toomey and Congressman Tom Marino.  They are among the sponsors of "Eric's Law," a bill to fix this glaring deficiency in the federal capital sentencing law.

U. Penn. Law Professor Amy Wax has this op-ed in the WSJ. Prof. Wax has been viciously attacked for an entirely mainstream and thoughtful op-ed, as previously noted in my posts last September, October, and February, and Bill's post last August.  The piece has important implications beyond academia.

In this article Professor Wax notes that measures of academic performance, i.e., grades, are not uniform among ethnic groups, and "frustration and disappointment ensue, followed by charges of racism, sexism and other forms of discrimination."  The institutions react by concealing the facts.  "They are jealously guarded, protected by cloaks of confidentiality and secrecy. But they are what they are. Hiding facts is not the same as changing them."

Denial of the facts is accompanied by vilification of people who acknowledge them. The deadly combination of denial and vilification makes much more difficult any effort to explore the underlying causes of disparity so that we can do something about it.

The problem Professor Wax notes for academic results also applies to crime rates.  We previously saw the results in a bogus complaint of judicial misconduct, and now we are seeing it in confirmation politics.

Sex Offender Gets Life For Murder:  After deadlocking 8-4 on giving him a death sentence, an Ohio jury unanimously recommended a life without parole sentence for a man who raped and murdered a coed in 2017.  Jim Provance of the Toledo Blade reports that three months after his release from prison for attempted rape, habitual felon Brian Golsby kidnapped, robbed, raped and murdered 21-year-old Reagan Tokes.  While Golsby was required to wear an ankle monitor, it was not monitored in real time.  After the discovery of the victim's body, authorities were able to place him at the crime scene, where DNA and his confession removed any doubt of his guilt.  Golsby was also wearing the ankle monitor when he allegedly committed a series of robberies in the Columbus area, days prior to kidnapping and murdering the coed.  At sentencing, the judge criticized the failure to monitor Golsby's behavior in real time and arrest him prior to the murder.  "He had an ankle monitor on him, and his behavior did what? It escalated."   

Afghan Gets Life for Killing German Girl:  A German judge sentenced an undocumented Afghan immigrant to life in prison Thursday for the 2016 rape and murder of a coed in the college town of Freiburg.  Alan Hall of AFP reports that judge Kathrin Schenk determined that there was almost no chance of rehabilitation of Hussein Khavari, as she handed down the life sentence, which allows release after 15 years.  Under European Union policy, Khavari was allowed to immigrate to Europe with no identity papers sometime prior to 2013, when he was convicted of attempted murder after pushing a woman off a cliff in Greece and sentenced to 10 years.  In 2015, he was released after serving about 1 year, and fled to Germany where he claimed he was 17.  He was sent to live with a host family in Freiburg and attended a local school.  On a night In October of 2016 Khavari knocked 19-year-old medical student Maria Ladenburger off of her bicycle as she was heading to her dorm.  He then bit, choked and repeatedly raped the girl before leaving her unconscious in the river to drown.  DNA and other forensic evidence identified Khavari as the killer.  Medical experts later determined that the Afghan's age was between 22 and 29.   Open borders and weak sentencing allowed this murderer to brutally take an innocent life.    

Responsibility is a pervasive character trait.  The best indicator of lack of responsibility is criminal history.  When employers blind themselves to criminal history because government requires it, because social pressure requires it, or because they think it is the cool and hip thing to do, irresponsible people are going to be hired.

For some jobs, that may be okay.  If a person is under constant supervision or doing a job where irresponsibility doesn't cause much damage, opportunities can be created for offenders to prove themselves and go straight.

And then there are jobs where people's lives depend on an employee doing the right thing when no one else is there.

Greg Bensinger and Alejandro Lazo report for the WSJ:

The test operator in the Uber Technologies Inc. self-driving car that killed an Arizona woman was a convicted felon with a history of traffic citations who wasn't watching the road before the accident happened, facts that raise new questions about the company's testing process for autonomous technology.

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Austin Bomber Commits Suicide:  NBC News reports that 24-year-old Mark Anthony Conditt, who had terrorized the Texas capital by setting off bombs in different parts of the city, blew himself up in his car early this morning as a SWAT team approached it.  Police released details about the bombings that led them to Conditt, including exotic batteries used in the bombs, recovered cell phone transmissions in areas where bombs exploded, and security video of a man in a wig dropping off a package at a FedEx facility, which detonated Tuesday.  In the end, police were able to track Conditt's cellphone and were following his Jeep on Interstate 35 at 2:00 am, when he pulled over and detonated a bomb.  Detectives have not determined a motive for the bombings.

The U.S. Supreme Court issued two criminal law decisions today.  In Ayestas v. Davis, the Court held that the Fifth Circuit had applied the wrong standard to review a district court decision to deny a funding request in a capital habeas case under 18 U.S.C. § 3599.  I will have more to say on this decision later. 

In Marinello v. United States, the Court held, "To convict a defendant under [a law against obstructing tax collection], the Government must prove the defendant was aware of a pending tax-related proceeding, such as a particular investigation or audit, or could reasonably foresee that such a proceeding would commence."

Many people express concern for inmates in our jails and prisons these days.  If the concern were genuine, one would expect it would include calls for sufficient discipline to protect inmates from assault.  Yet I don't hear that expressed often; more often we hear the opposite.

Rafael Mangual has this article in the City Journal with the above title.  The subtitle is "Mayor de Blasio's soft-on-crime approach is backfiring."

Beginning in December 2014, Bill de Blasio's mayoral administration placed significant restrictions on how New York City corrections officers can penalize and restrain violent criminals in city jails, ostensibly to ensure the safety and well-being of inmates and guards alike. But the mayor's policies seem to have made jails less safe for all concerned, as an examination of the data regarding inmate violence reveals. In 1998, when more than 17,500 prisoners were packed into New York City jails on any given day, inmates committed 6,458 violent assaults. By 2017, the average daily inmate population had dropped to just 9,500--yet the behind-bars violent-assault total nearly doubled, to 12,650.  Much of that rise happened over the last three years, during which violent assaults jumped 43 percent, even as, during that same period, the number of corrections officers increased, from 8,922 to 10,862.

In a jail system with fewer inmates and more guards, what explains the spike in inmate violence? Part of it, anyway, can be attributed to de Blasio's "focus on equity"--a phrase that appears in the 2017 Mayor's Management Report more than two dozen times, including at the top of the section covering the city's Department of Correction (DOC). Equity concerns apparently guided the implementation of reforms regarding punitive segregation (known commonly as "solitary confinement") and guards' use of force.

Missouri Murder's Execution Today:  Lawyers for Missouri murderer Russell Bucklew are asking the Supreme Court to halt his execution today claiming that his medical condition could result in a "gruesome and painful"  death.  Kelsey Anderson of WISTV reports that Bucklew won a last minute stay by the high court in 2014 to allow further consideration of his medical condition.  His lawyer now argues that the condition has gotten worse and that the state should use lethal gas for the execution, knowing full well that there is no gas chamber in Missouri.  Associated Press reporter Jim Salter describes how Bucklew slashed his girlfriend's face, beat her and threatened to kill her in 1996 when she broke up with him.  After stalking her for two weeks, Bucklew learned she was staying with a new boyfriend.  He broke into the home, shot and killed the boyfriend, and pistol-whipped her, then dragged her handcuffed to his car and raped her.  Bucklew was arrested after a police chase and gunfight which wounded one officer.  He later escaped from jail, went to the home of his ex-girlfriend's mother and attacked her with a hammer before he was recaptured.  The ACLU said that executing Bucklew would amount to torture, and that he should be allowed to live out his life in prison.   On March 15, Alabama executed Wayne Eggers for the 2,000 kidnapping, robbery and murder of a Talladega man.  On March 16, Georgia executed Calton Gary, the "stocking strangler," for the 1977 rapes and murders of three elderly women.  Both executions occurred without incident.

Update:  The Steve Vockrodt of the Kansas City Star reports that by a 5-4 vote, SCOTUS granted a temporary stay of Bucklew's execution to, once again, consider his medical condition.  Justice Anthony Kennedy provided the critical vote.  "We are thrilled and relieved and look forward to continuing to work with Rusty," his defense attorney Cheryl Pilate told The Star on Tuesday evening.  Except for the murder and brutal assaults, Rusty seems like a really nice guy.


ICE Nabs Criminal Aliens in Oakland:  Weeks after Oakland Mayor Libby Schaaf warned criminal illegal aliens that ICE would be rounding them up for deportation, agents caught three who had evaded arrest.  Adam Shaw of Fox News reports that after giving the warning, Schaaf responded to critics "I do not regret sharing this information," she said last month. "It is Oakland's legal right to be a sanctuary city and we have not broken any laws. We believe our community is safer when families stay together."  On Tuesday agents arrested three aliens targeted in last month's raid that Mayor Schaaf thinks keep Oakland safer.  The three, all Mexican nationals, included one arrested on robbery and gun crimes, released prior to trial despite an ICE request to detain him.  Another who had been deported three times, had priors for DUI, false imprisonment and wife beating.  The third, had been deported twice for drug offenses, DUI, and hit and run, was arrested for beating his wife.  

As predicted, the U.S. Supreme Court has finally turned down the capital case of Hidalgo v. Arizona with an opinion on the turn-down by Justice Breyer.

However, as not predicted, (1) the opinion is not a dissent, and (2) the issue of whether the death penalty is constitutional generally is not even mentioned.

Justice Breyer's dissent relates to the question of whether Arizona's list of circumstances that separate death-eligible cases from those where the death sentence is out of the question is too broad to serve the required "narrowing" function.  It is an issue that requires legislative attention.  For many years, I have been encouraging pro-death-penalty legislators to stop expanding their lists and look to pruning them.  It would be useful to tailor the lists more closely to fit the circumstances in which experience has shown us that prosecutors will actually seek the death penalty and juries will actually impose it, whether closer tailoring is constitutionally required or not. 

My suggestions along this line have largely fallen on deaf ears.

Justice Breyer thinks there is a constitutional issue here, but he wants a case with a better record as the vehicle.

On the more general question, the silence is encouraging.  Gregg v. Georgia (1976) should be regarded as settling the matter.

SCOTUS To Hear Detention Case:  The U.S. Supreme Court has agreed to review a 2016 Ninth Circuit ruling which barred federal immigration agencies from detaining criminal immigrants after they have been released from criminal custody.  Lawrence Hurley of Reuters reports that in Nielsen v. Preap, the circuit held that, absent a bond hearing, the government may only detain a criminal alien upon his release from custody not months or years later.  The Trump administration maintains that that the law allows the government to detain criminal immigrants at any time, a position that was shared by the Obama administration.  The plaintiffs in the case include a Cambodian refugee who became a U.S. citizen in 1981, convicted of drug possession in 2006 and later for battery, and a Palestinian who became a legal resident in 1976, convicted in 2011 of attempted drug manufacturing.  The case will be heard in the court's next term, which begins in October.

There has been considerable speculation recently whether the Administration would ask Congress to expand the federal death penalty statute as applied to drug dealers.  No, it will not.  Louise Radnofsky reports for the WSJ:

President Donald Trump on Monday will call for new steps to combat the opioid epidemic, including a push to reduce opioid prescriptions by a third over three years, asking the Justice Department to seek more death-penalty cases against drug traffickers under current law, and for federal support to expand the availability of overdose-reversal medication.

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Other elements of the strategy, the White House said, would include a fresh public-awareness campaign about drug abuse, a research-and-development partnership between the National Institutes of Health and pharmaceutical companies into opioid prescription alternatives, tougher sentences for fentanyl traffickers, and screening of all prison inmates for opioid addiction.

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"The Department of Justice will seek the death penalty against drug traffickers when it's appropriate under current law," said Andrew Bremberg, the president's top domestic-policy adviser.

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Federal Judge Blocks LA Gang Injunctions:  Twenty-one years after the California Supreme Court upheld the use of public nuisance injunctions to clear street gangs from residential neighborhoods, a federal district judge has blocked them until she rules on a pending lawsuit by the ACLU which claims the injunctions are unconstitutional.  James Queally of the Los Angeles Times reports that Chief U.S. District Judge Virginia Phillips is the first judge to block the injunctions since there were initiated in the late 1980s to prevent street gangs from claiming neighborhoods as their "turf", blocking streets, blasting music, breaking into cars and intimidating residents.  By declaring specified members of a gang a public nuisance and prohibiting them from congregating in a particular neighborhood, the injunctions gave police the authority to detain, question, search and arrest gang members.  The use of these injunctions had a dramatic impact on the quality of life in former gang-infested neighborhoods, reducing crime and restoring piece for those who lived in them.  In 1995, CJLF filed an amicus brief in Gallo v. Acuna, encouraging Cailfornia's highest court to reject an ACLU challenge to the use of an injunction to drive a gang out of the San Jose neighborhood of Rocksprings.  After the court upheld the injunction, the Los Angeles City Attorney began a successful effort to secure similar injunctions for many LA neighborhoods.  The city may appeal Judge Phillips' order.   

Long Knives Out For Sentencing Commission Pick:  The Marshall Project, a New York based nonprofit that campaigns for pro-defendant sentencing policy, is vigorously opposing the appointment of Georgetown Law Professor William Otis to the U.S. Sentencing Commission.  In a piece released yesterday, Justin George writes that "Otis' nomination......is regarded by critics as putting a fox in the henhouse."  Otis's support for mandatory minimums puts him at odds with "most researchers" who, while acknowledging that they have "played some role" in reducing crime, came at a high cost in dollars, damaged communities and racial inequity.   He leaves out the hundreds of thousands of fewer crime victims due to progressive sentencing over the last 20 years.  Among the largest beneficiaries were law abiding people of color.   

Scientific studies show that adolescent brains are in flux, still building themselves well into adulthood, right?  That certainly is the story we have heard over and over again.  And it is true that existing studies show that the fatty coating of neurons changes during childhood and adolescence (never mind that the relevance of that is unclear when it comes to ascriptions of legal or moral responsibility).  But what is scientific fact today may not be the fact of tomorrow. 

A new study in the journal Nature strongly suggests that the formation of new neurons does not occur in adulthood and probably ends in childhood:

New neurons continue to be generated in the subgranular zone of the dentate gyrus of the adult mammalian hippocampus. This process has been linked to learning and memory, stress and exercise, and is thought to be altered in neurological disease. In humans, some studies have suggested that hundreds of new neurons are added to the adult dentate gyrus every day, whereas other studies find many fewer putative new neurons. Despite these discrepancies, it is generally believed that the adult human hippocampus continues to generate new neurons. Here we show that a defined population of progenitor cells does not coalesce in the subgranular zone during human fetal or postnatal development. We also find that the number of proliferating progenitors and young neurons in the dentate gyrus declines sharply during the first year of life and only a few isolated young neurons are observed by 7 and 13 years of age...

Oklahoma to use Nitrogen Gas:  The Oklahoma Attorney announced Wednesday that the state is going to use nitrogen gas instead of lethal injection to euthanize condemned murderers.  Timothy Williams of the New York Times reports that the difficulty in acquiring the preferred drugs for lethal injection sparked the state's interest in moving to the inert, and readily available gas for executions.  The reporter neglected to note that the problem was created by anti-death penalty groups including the European Union, which have pressured drug manufacturers to refuse to sell the drugs for executions.  Oklahoma adopted nitrogen gas as a backup execution method in 2015, with encouragement from CJLF.  The gas has been used for decades to render dental patients unconscious and in places where assisted suicide is legal.  The head of the Death Penalty Information Center, an anti-death penalty group, called the use of nitrogen gas "an experimentation" that would likely cause suffering.   

MO Court Denies Child KIller's Appeal:  In an unanimous decision announced last week the Missouri Supreme Court upheld the conviction and death sentence of Christopher Collings for the rape and murder of a nine-year-old girl.  Wes Peery of KOLR 10 reports that the court, hearing the case on direct appeal, rejected Collings' claims of ineffective assistance counsel for failing to present more evidence of his heavy drinking, addiction to drugs and traumatic childhood.  The court held that defense counsel had fully investigated these issues and made strategic and reasonable decisions about how to present them to the jury.  The evidence included Collings' detailed confession about how he abducted the little girl while she slept alone in her home.  After raping her, Collings realized that she recognized him and strangled her to death, hiding the body in a cave.  Forensic evidence confirmed his guilt.    

Death Penalty Sought for School Shooter:  The Florida Attorney General's Office announced today that it will seek a death sentence for Nicholas Cruz, the former student who killed 17, at the Marjory Stoneman Douglas High School last month.  The Associated Press reports that defense attorneys for Cruz had said that he would plead guilty to the murders if the death penalty were taken off the table.  The County Deputy Public Defender, whose office is representing Cruz, told reporters that because there were so many warning signs about Cruz that were not acted upon, seeking the death penalty might be going too far.  The possibility of a plea bargain allowing Cruz to serve life without the possibility of parole still exists. 

CA Child Molester Caught at Border:  Immigration and Customs Enforcement (ICE) agents arrested a Mexican national convicted in 2011 of molesting a child in California at the Arizona border Monday.  In a press release, ICE reports that Alonzo Bustos-Trujillo, who was deported after serving a year in jail, walked back across the border with three other Mexican nationals near Quartzsite, AZ.  During an interview Bustos-Trujillo told agents that he planned to travel from Yuma to Los Angeles.      

Alabama to Execute Two Murderers:  An Alabama man sentenced to death for the 2000 kidnaping, robbery and murder of a Talladega man is scheduled for execution Thursday.  Kent Falk of Alabama.com reports that Wayne Eggers, has asked the state to expedite his execution, writing that he neither challenges the method of execution or the drugs that will be used.  Murderer Walter Lee Moodey's execution is scheduled for, Monday the 19th.  Moody was sentenced to death for the 1989 pipe bomb murder of 11th Circuit Court of Appeals Judge Robert Vance.  Last month, the state called the execution of murderer Doyle Hamm after corrections officials were unable to find a usable vein.   

Georgia's "Stocking Strangler" To Die Thursday:   A Georgia man, who had been in and out of jail or prison since his teens, is facing execution Thursday for the 1977 rapes and murders of three women aged 67, 74 and 89.  Carlton Gary became known as the stocking strangler for the nine rapes and seven murders of older women, all but one living in the same neighborhood between September 1977 and April 1978.  Tim Chitwood of the Ledger-Inquirer reports that Gary confessed to burglarizing the victim's homes but claimed another man committed the rapes and murders.  After multiple reviews over nearly 30 years, the Georgia Supreme Court halted Gary's execution in 2009 for DNA testing.  While the sample tested did not match Gary, a later court review found the results did not disprove his guilt.  A bid for clemency was rejected last week and last minute appeals have been filed.   

Questionable Conclusion in Prop. 47 Study:  A conflict between the data and the conclusion of a U.C. Irvine study to determine if California's Proposition 47, adopted in 2014, influenced the spike in crime which occurred in 2015, is examined by Michele Hanisee, head of the Association of Los Angeles Deputy District Attorneys.  Proposition 47 converted drug possession and theft crimes valued at less than $950 from felonies to misdemeanors, and reduced the state prison population by 13,000 inmates.  The study, by criminologist Charis Kubrin and doctoral student Bradley Bartos, concluded that Proposition 47 did not cause the crime increase.  Hanisee notes that the researchers did not look at drug offenses and larceny increased by 12% in 2015.  The U.S. Department of Justice reported that property crime in California increased by 7.6% in 2015, while violent crime increased by 8%.  Nationally, property crime decreased by 3.4%. This increase occurred in spite of the fact that converting crimes from felonies to misdemeanors makes them a low priority for police and reduces the incentive to even report them.

Oakland Coffee Shop Displays California Values:  For all of the past year, California's Governor, Attorney General, congressional and state politicians, and even mayors have been lecturing the Trump administration and the rest of the nation about "California values," which they will not sacrifice to enforce federal immigration law or anything else.  These values include protecting criminal illegal aliens, as Gov. Jerry Brown, AG Xavier Becerra, and Oakland Mayor Libby Schaaf have made clear.  They may also include disrespecting police officers as we learn from a report by KCRA about an Oakland coffee shop which is refusing to serve the police.   Hawsta Muerte Coffee announced on social media that it will not serve officers in uniform in order to preserve the "physical and emotional safety of our customers and ourselves."  The coffee shop staff recently turned away an Oakland Police Sergeant.  One wonders what would happen if the local police refused to protect the coffee shop from criminals. 

Sessions Drops the Hammer on CA:  As reported by Sadie Gurman and Don Thompson of the Associated Press, the U. S. Department of Justice has filed a lawsuit naming California Governor Jerry Brown and state Attorney General Xavier Becerra for obstructing federal agencies from enforcing immigration law.  The lawsuit, which was filed in the federal District Court in Sacramento, targets state laws which prohibit employers from co-operating with ICE to identify illegal aliens and another which prohibits local governments from co-operating.  While both Brown and Becerra have responded to reporters, with Brown accusing Sessions of dividing and polarizing Americans, and Becerra stating, "We're in the business of public safety, not deportation," by providing a sanctuary for illegal aliens, including those who have and continue to commit crimes against Americans, it is difficult to characterize Becerra's actions as beneficial to public safety.  Adam Shaw of Fox News reports on Oakland Mayor Libby Schaaf's advance warning to illegals in her city about last week's ICE effort to identify and arrest criminal aliens. The story notes that while ICE was able to locate 115 illegals who "had prior felony convictions for serious or violent offenses, such as child sex crimes, weapons charges and assault, or had past convictions for significant or multiple misdemeanors," some 800 evaded arrest, possibly due to the Mayor tipping them off.

MyNorthwest.com reports from Washington State,

SB 6052, which removes the death penalty as an option for aggravated first-degree murder cases and replaces it with life in prison without the possibility of parole, died in House committee on Monday.

Curiously, I can't find any mention of this in the Seattle Times or the Post-Intelligencer.

In Utah, Dennis Romboy reported for Deseret News last week on the failure of the death penalty repeal bill there.

Although it appears the threat has been turned back this year, these efforts have gotten farther than they should have.  The propaganda effort of the other side has been successful in convincing people who should know better of "facts" that just aren't so. 

I wish I had a dollar for every time I have heard the so-called "innocence list" cited as a list of people who have been proved not to have committed the murders, when we know it is chock full of murderers who got away with it.  Time and time again we hear it said that there is massive discrimination in capital sentencing against black defendants, when the other side's own studies have time and again failed to find evidence of that.  Over and over, we hear that the long, dragged-out, expensive appeals are necessary to prevent execution of innocent people when everyone actually involved in this business knows that most of the litigation is over issues with little or no bearing on actual guilt of the crime.  The number and length of reviews could be cut substantially by limiting repeated reviews of sentence-only issues, but there seems to be little leadership for such reforms.

It's the Lenin theory of truth.  Just repeat it enough times and it becomes the truth.

I've written about juveniles and Prop 57 a few times this year.  Here I discussed the case of People v Lara, in which the California Supreme Court ruled that Prop 57 applies retroactively to all non-final cases that had been directly filed in adult court.  In that post I wrote:  "Proposition 57 is retroactive to all non-final cases.  What does this mean?  It means that the ramifications of Proposition 57 continue to get worse.  It also means that the court invited the opportunity for monsters like Daniel Marsh to seek a hearing in juvenile court because his case is 'not final.'"

Well, I was right.  On February 22nd, the California Court of Appeal, Third Appellate District conditionally reversed Daniel Marsh's 2013 double murder conviction.  He is to be returned to Yolo County and a transfer hearing will be set in the juvenile court. If, however, the juvenile court finds that Marsh is more suitable for adult court, his original conviction and sentence will be reinstated.

Bay Area Car Break-Ins Set Record:  CBS Bay Area reports that the number of car break-ins in San Francisco topped a record-setting 31,000 last year.  San Jose had over 6,400, the most in its history.  Oakland topped 10,000, a 32% increase compared to 2016.  Police speculate that these increases are due to the increased value of things left in cars, such as laptops and smart phones, and suggest that these numbers represent only reported break-ins.  Actual numbers are likely much higher.  The story fails to note that break-ins might be increasing since the 2014 adoption of Proposition 47, which converted thefts valued at $950 or less from felonies to misdemeanors.  This has made the break-ins low-priority crimes for police and only a small percentage get solved or even reported.  Quite a few items left in cars, including firearms, are worth less than $950.  San Francisco District Attorney George Gascon was a proponent of Proposition 47, "The Safe Neighborhoods and Schools Act."  The two largest contributors to the campaign, which raised over $10 million, were the ACLU and George Soros' Open Society Foundation.  The opposition, mostly law enforcement groups, raised just over $550 thousand.

Last Friday I noted a smear job in the Washington Post regarding Bill Otis's nomination to the Sentencing Commission and his work on this blog.  Paul Mirengoff at Power Line has this post examining the smear article in greater depth.

Earlier, Paul noted another smear by NPR.

As all appellate lawyers know, the general rule is that an appellate court reviews a trial court's decisions on questions of fact deferentially, while questions of law are reviewed de novo (i.e., from scratch, we don't care what the trial judge thought).  What that means, as a practical matter, is that if you think the trial judge got a factual question wrong ("addressing questions of who did what, when or where, how or why," as the opinion noted in this post says), you usually still have to advise a paying client that he would be throwing good money after bad to appeal it.  If it's a question of "pure" law, such as what legal standard applies, you have a much better shot at it.

But what about "mixed questions of law and fact," making a fact-intense inquiry based a generally worded standard?  The answer is ... [drum roll] ... it depends.  This question used to come up quite a bit in habeas corpus cases until AEDPA* rescued us and applied a deferential standard across the board.  It still comes up in appeals.

One of the cases decided by the Supreme Court today is U.S. Bank v. Village at Lakeridge, No. 15-1509.  It's bankruptcy case.  Eyeballs roll.  Boring.  No need to read.  Right?

Not so fast.  On page 6 we find a citation to Thompson v. Keohane, 516 U. S. 99, 111 (1995), one of the last "mixed question" habeas corpus cases we did (and regrettably lost) before AEDPA.

When the legislative branch changes the rules, it is helpful if it specifies the extent of retroactive effect.  However, those decisions can get intricate, and adjustment might be needed if the Supreme Court alters its Ex Post Facto Clause jurisprudence yet again.  The legislature might prefer to delegate the issue to the executive.  Is that constitutionally permissible?

In 2010, the Second Circuit decided United States v. Guzman, 591 F.3d 83 (emphasis added):

The provisions of SORNA relevant to this appeal are fairly straightforward. Under 426 U.S.C. § 16913(a), a convicted sex offender must register "and keep the registration current, in each jurisdiction where the offender resides, ... is ... employ[ed], [or] is a student." With respect to initial registration, a sex offender must also register in the jurisdiction of conviction if it is not the offender's jurisdiction of residence. Id. For initial registration purposes, § 16913(b) provides that the individual must register "before completing a sentence of imprisonment with respect to the offense giving rise to the registration requirement" or "not later than 3 business days after being sentenced for that offense, if the sex offender is not sentenced to a term of imprisonment." Section 16913(c) requires the registrant to inform at least one of the relevant jurisdictions of all relevant updates to his or her registration information within three days of a "change of name, residence, employment, or student status." The jurisdiction so informed must then share that information with other jurisdictions where the offender is required to register. Id.; see also id. § 16921(b)(3). Section 16913(d) gives the United States Attorney General "the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before [SORNA's enactment on July 27, 2006] or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b) of this section."

The Second said that was kosher and simply cited Guzman in a footnote in the case taken up today.  SCOTUS took the retroactivity delegation question while turning down the other three questions in Guzman v. United States, No. 17-6086.  Amy Howe has this post at Howe on the Court.

Don Thompson reports for AP on the the California Democratic Party convention and its non-endorsement of either candidate for Attorney General.  Since the California Republican Party ceased to be a viable opposition party, the Dems have been free to let their worst instincts run wild.  Secretary of State Dave Jones is trying to unseat appointed incumbent Xavier Becerra by saying Becerra is not left-wing enough.  He actually got majority support with that approach, 56-42, but not enough for a primary endorsement.

In separate interviews with The Associated Press, Jones and Becerra sharply criticized each other and parted ways on everything from their qualifications and priorities to whether Becerra has been a leader or a follower as he fights Trump's agenda.

Jones accused Becerra of "enabling opioid deaths" because his office has not yet fully implemented a statewide drug database, and of failing to seize guns from thousands of felons, those deemed mentally ill and others who are no longer allowed to own firearms.

Becerra repeatedly accused Jones of being deceptive and questioned if Jones would shirk his constitutional duties when it comes to carrying out the death penalty.

That last part is encouraging.  I'm glad Mr. Becerra understands it is his constitutional duty to carry out the death penalty.

Um, so, Mr. Becerra, exactly why did you sit on your hands for three months after the effective date of Proposition 66 without moving to vacate the now-baseless injunction in Marin County?  I'm glad you belatedly joined my motion on behalf of victims, but I never should have had to file it.

And why have you not to this date sought appellate review of the federal court stay, even though your deputies have explained to the district court in some detail why it is improper and been brushed aside with no explanation?

Murderer Dies Awaiting Execution:  A double-murderer was found dead in his Ohio prison cell Saturday.  Tracy Connor of NBC News reports that Alva Campbell's execution was called off last year after corrections officials were unable to find a vein suitable for a lethal injection.  Campbell, who was suffering from several diseases, was rescheduled for execution next year.  The Franklin County prosecutor told reporters, "Due to 20 years of frivolous post-conviction litigation, he successfully ran the clock out on justice due to the state and the victim's family."  Holly Zachariah of the Columbus Dispatch described Campbell's criminal record, which included the barroom murder of a man in 1972 and a string of robberies.  While in prison for that murder, Campbell was scheduled to be tried for the robberies.  Claiming paralysis, he was transported to court in a wheelchair.  At the courthouse, he jumped from the chair, attacked an officer, taking her gun, then hijacked a pickup, kidnapping its owner, 18-year-old Charles Dials.  After driving around for a while, Campbell executed Dials with two shots in the head.

When Bill Otis was nominated for the Sentencing Commission yesterday, it was a sure bet that his writings on this blog would be a subject of controversy sooner or later.  Sooner, it turns out.

Kristine Phillips has this post at the WaPo on the nomination.  She refers to Bill's writing "on a popular legal blog."  Can't mention us by name, I guess, but the name is in the URL linking the post, so it's all good.

As expected, Bill is accused of "racially tinged" remarks.  What's "racially tinged"?  Defending Judge Edith Jones for observing the unfortunate but undeniable demographic reality that crime rates are higher in some ethnic groups than others.

Part of knowing people is knowing the enemies they make.  Bill is attacked by Families Against Mandatory Minimums and For Increasing the Number of People Victimized by Crime. [I added that last part.]  FAMM is a reliable contrarian indicator, so their opposition is a recommendation.

In subjects this controversial, if nobody hates you, you aren't accomplishing anything.

Update:  Another criticism of Bill I am seeing in the news is that his views are supposedly behind the times.  The pendulum swings back and forth, so a view can be behind the times and ahead of the times at the same time.  The people saying Bill is a throwback to the 80s are themselves a throwback to the 60s.  They have forgotten the history of deluding ourselves into thinking we could magically rehabilitate all criminals, and their policies would condemn America to repeat that history.

Proposition 66, approved by the people of California in 2016, eliminated the requirement that execution protocols be established through the lengthy and cumbersome Administrative Procedure Act process.

On January 30, the California Department of Corrections announced a new protocol (see this post) and sent it to the Office of Administrative Law for publication under the "File and Print" procedure, which does not involve substantive OAL review or a public notice and comment procedure.

OAL today filed the regulations with the Secretary of State for publication in the California Code of Regulations.  The office notes, "This action is exempt from the Administrative Procedure Act pursuant to Penal Code section 3604.1."

Magazines like to publish rankings of places for various purposes, listing them from best to worst.  These results are highly dependent on which factors the rankers chose to include in their calculations and how they went about reducing those factors to numbers.  So rankings can vary widely from one study to another, and I wouldn't put much stock in any one.

Money-rates.com has this story on the worst states for retirement, and it includes crime rates as an important factor.  They list 11 "worst" states due to a tie for 10th, with some surprises.

President Trump today announced nominations to the United States Sentencing Commission.

Judge William Pryor of the Eleventh Circuit, a current member and acting chairman, is nominated as chairman.

William Otis is nominated as a member of the commission.  He needs no introduction to readers of this blog, but I will copy an introduction anyway from the announcement:

Bill Otis serves as an Adjunct Professor of Law at Georgetown University Law Center. Before joining the faculty at Georgetown, Mr. Otis served in the Federal Government for 29 years. Over this period, Mr. Otis served as Counselor to the Administrator of Drug Enforcement Administration during the George W. Bush presidency, as an Assistant United States Attorney and Chief of the Appellate Division of the United States Attorney's Office for the Eastern District of Virginia (under both Democrat and Republican Administrations), and as Special Counsel to President George H.W. Bush.

Also nominated are Judge Luis Felipe Restrepo, who was appointed to the Third Circuit by President Obama, and Judge Henry Hudson, who was appointed to the Eastern District of Virginia by President George H.W. Bush.

The Sentencing Commission statute requires a partisan balance with no more than four of the seven voting members being from the same political party.  At least three members must be federal judges.  See 28 U.S.C. § 991.

Our heartiest congratulations to Bill on his nomination.  He will be a sorely needed voice of good sense in an area where that is often lacking.

The tug of war about the country's approach to crime in recent years can be boiled down to one question:  Should we preserve the get-tough policies of roughly the last generation  --  policies that have helped produce both much less crime and much  more incarceration  --  or have we gone overboard?