Crime and Consequences will be moving to a new platform shortly. We have a few more bugs to work out first. A notice and forwarding address will be posted here when the move is completed, and this will become an archive blog.
June 2018 Archives
Some Supreme Court successions produce major changes in the ideological makeup of the Court, and some do not. Justice Gorsuch is different from Justice Scalia, of course, but overall his votes on the results of criminal cases do not seem too much different from where Justice Scalia would have voted. In contrast, Justice Thomas succeeding Justice Marshall in 1991 was a jurisprudential earthquake. Two years later, we had a shift back in the other direction, though not as great, when Justice Ginsburg succeeded Justice White.
In all likelihood, President Trump will nominate someone more conservative to succeed Justice Kennedy, who has occupied the Court's middle in recent years. To take a peek at the future, let's take a stroll down What If Road in the recent past. How would criminal cases have come out differently in recent terms if someone more conservative had been in Justice Kennedy's chair?
Continue reading Replacing Justice Kennedy With a More Conservative Justice.
For all the attacks that have been made on the police over the last several years, they still rank third in public confidence among American institutions, after the military and small business, Lydia Saad reports for Gallup.
Bringing up the rear are newspapers, the criminal justice system, television news, and Congress. Whether newspapers or the criminal justice system rank lower depends on whether you look at the positive numbers only or the net positive.
Stealth Sentencing Reform: The legislative process is supposed to provide the public and interest groups with a transparent process for reviewing proposed changes in the law. Bills are published for public view and go through at least two committee hearings in each house where supporters and opponents can testify about their concerns and recommend amendments. For bills making the most significant changes in the law, the media is supposed to provide the public with objective reports on what it is intended to do and its impact on the public. California doesn't always do it that way. AB109, the Legislature's massive 2011 "Public Safety Realignment" law, passed both houses on straight party line votes with zero committee hearings before the Governor signed it into law.
Continue reading News Scan .
As expected, the reason the Supreme Court "relisted" Jordan v. Mississippi and Evans v. Mississippi so many times before turning them down was that Justice Breyer was writing a dissent from denial of certiorari. As expected, he engages in the usual wholesale acceptance of contentions that are hotly disputed at best and discredited at worst. He cites the DPIC's so-called "innocence list" as if it actually were a list of actual innocents. If the major premise of a syllogism is "given that the moon is made of green cheese" do you really need to hear the conclusion?
Perhaps the most galling aspect of the opinion is Justice Breyer's lamenting of the long delay in this case without any acknowledgement of just how much the federal courts and especially the Supreme Court itself have caused the delay.
Continue reading It's the Federal Courts' Fault, Justice Breyer.
In today's orders list from the "clean-up conference," the U.S. Supreme Court took up three criminal and related cases for briefing, argument, and decision next term. The cases and their Questions Presented (as drafted by the party asking the Court to take the case) are:
No. 17-646, Gamble v. United States: "Whether the Court should overrule the 'separate sovereigns' exception to the Double Jeopardy Clause."
No. 17-1174, Nieves v. Bartlett: "In Hartman v. Moore, 54 7 U.S. 250 (2006), this Court held that probable cause defeats a First Amendment retaliatory-prosecution claim under 42 U.S.C. § 1983 as a matter of law. Does probable cause likewise defeat a First Amendment retaliatory-arrest claim under § 1983?"
No. 17-532, Herrera v. Wyoming, "Whether Wyoming's admission to the Union or the establishment of the Bighorn National Forest abrogated the Crow Tribe of Indians' 1868 federal treaty right to hunt on the 'unoccupied lands of the United States,' thereby permitting the present-day criminal conviction of a Crow member who engaged in subsistence hunting for his family."
Ice Pick Murderer Executed: A Texas habitual criminal convicted of murdering a young mother in 1979 was put to death by lethal injection Wednesday. Kristine Phillips of the Washington Post wrote that Danny Bible, who was "accused in a series of murders and rapes," died without incident fifteen minutes after receiving a lethal injection. Actually, Bible was found guilty by a jury of raping 20-year-old Inez Deaton, stabbing her 11 times with an ice pick, then dragging her body into a bayou. In 1998, while in custody for a rape in Louisiana, Bible admitted to murdering Deaton. Over the two decades it took for detectives to solve the murder, Bible killed his sister-in-law her baby and a roommate, and raped his five nieces. Prior to his execution, Bible's attorneys petitioned for a stay arguing that his age (66) and health problems made the lethal injection process "cruel and unusual" and that the execution should be delayed until he could be put to death by firing squad or nitrogen gas. The federal district judge, the Fifth Circuit Court of Appeals and SCOTUS rejected that claim.
This is 2018. For those of us who can do elementary mathematics, that is a year divisible by 2 and not by 4. In American politics, that means it is a year for election of the House of Representatives and 1/3 of the Senate, but not the President.
Yet with Justice Kennedy's retirement, people are talking once again about "the Biden Rule," a custom that Senator Biden discussed on the floor of the Senate in 1992 (a year divisible by 4) and said he was prepared to invoke in the Democratic-controlled Senate in the event of a Supreme Court vacancy (there wasn't one). The Republican-controlled Senate actually did invoke that rule in 2016 (a year divisible by 4).
I have linked to the Congressional Record page on this in a previous post. This time I will quote it at length after the break, with emphasis added.
Continue reading The Biden Rule, Again.
"The Ninth Circuit's opinion was not just wrong. It also committed fundamental errors that this Court has repeatedly admonished courts to avoid." So said the United States Supreme Court today in Sexton v. Beadreaux, No. 17-1106.
The subject of these fundamental errors, once again, is the Ninth's failure to treat state courts as the coordinate courts that they are and to give their decisions the respect that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires. See the opinion for details.
This has happened so many times that it is tempting to say it is "dog bites man" and not news, but that is too flippant. For a court at the second tier of our judicial structure to repeatedly and flagrantly violate the law is no small matter. And, as the late Judge Reinhardt reportedly said, "they [the Supreme Court] can't reverse them all."*
In this case, the patently wrong decision was issued per curiam, i.e., without a designated author, with Judge Marsha Berzon and Maryland District Judge Marvin Garbis concurring and Judge Ronald Gould dissenting. (For those who like to keep track, Judges Gould and Berzon were both appointed by President Clinton.) The Ninth declined to rehear the case en banc, i.e., before a much larger 11-judge panel more representative of the court with no visiting judges, and no judge of the Ninth even called for a vote on the question.
Overturning a judgment affirmed by the state court is a serious matter, and it is painfully evident that the full Ninth Circuit is doing a dismal job of policing its rogue panels in this regard. Perhaps, Mr. White House Counsel, you need to get on the ball making nominations to fill those vacancies.
Congrats to SDAG Peggy Ruffra. They can't reverse them all, but you got them to reverse this one.
* Update: There had been some dispute about whether Judge Reinhardt actually said this, but a former clerk, Yale Professor Heather Gerken, confirms that he repeated this as a "mantra" in a memorial in Harvard Law Review, v. 131, no. 8, p. 2110.
President Trump promised to be a law-and-order President. Nowhere are a President's actions felt longer in this area than in the judges he appoints to the federal bench, especially on the U.S. Supreme Court.
President Trump's appointment of Neil Gorsuch to the Supreme Court was a home run. That is not to say that he always rules in our favor or that I agree with everything he says. That is to say that he has both the ability to see the issues clearly and the principle to decide according to the Constitution that the people ratified, not one made up later by judges. That is typically all the law-and-order side needs to prevail on constitutional questions that reach the Supreme Court.
Yet these issues do not divide cleanly on "liberal v. conservative" lines. The one-dimensional left-right model of politics is deficient here. Under the maxim of "all models are wrong but some are useful," we must be aware of the limitations of our models. Within the so-called "right," there is a libertarian element that is okay with judicial activism as long as it favors their preferred results. Some folks even think Hammer v. Dagenhart (1918) was correctly decided and want to bring it back. They adore Mapp v. Ohio (1961), despite its complete lack of any foundation in the text or history of the Constitution.
The Law-and-Order President needs to steer clear of this group in his choice of a Supreme Court nominee if he wants to hit a second home run and leave a law-and-order legacy.
Justice Kennedy has announced his retirement from the Supreme Court. Marcia Coyle and Tony Mauro have this story at law.com, with the text of Justice Kennedy's retirement letter here.
Obviously, there is going to be a battle royal over the replacement, but since the Democrats pulled the "nuclear" trigger when they had the majority, it is unlikely they will able to block the appointment.
Yesterday, the Criminal Justice Legal Foundation held its annual meeting in the Biltmore Hotel in downtown Los Angeles. We were honored to have U.S. Attorney General Jeff Sessions as our guest speaker. His remarks are available on the USDoJ web site.
I gave my report to the board on CJLF's work since the previous meeting, as I always do. Then Mr. Sessions gave us his remarks, choosing to focus on the immigration controversies.
Continue reading AG Sessions Addresses CJLF Annual Meeting.
The U.S. Supreme Court upheld President Trump's third executive order on the "travel ban" yesterday. The case is Trump v. Hawaii, No. 17-965. The case came down pretty much as expected from oral argument. See this post.
SL&P links to this article by Professor Erin Collins on the use of actuarial risk assessment in the sentencing of criminal defendants. The article is highly critical of the practice, with much smoke about their impropriety when used in sentencing, with the central argument in essence being that such use is "off label."
Let us have background and some context here. For many years, the criticism of mental health professionals who testified about risk was that it was merely speculative, based merely on the professional's experience and hunches. It was no more accurate than chance, which led to the obvious conclusion that it was worthless. That led the push for a more scientific approach; one that was structured and methodical in its approach to measuring risk. Much heavy lifting was done with the result of several risk assessment approaches that are far superior to the armchair prognostications of the past.
But there was a problem: These new tools, particularly the actuarial methods, were too good. They removed speculation from the equation in favor of precision. They left little, really no room for consideration of what researchers call "dynamic factors." That is, actuarial tools only measure what has transpired or cannot be altered: past criminal history, characteristics of victims, previous success or failure with parole. With risk fixed there was no opportunity for rehabilitation; no means to address risk factors that are subject to change: drug and alcohol use, antisocial attitudes, employment, etc. You see, those dynamic factors are ways in which risk can be "adjusted" -- almost always downwards in favor of a more lenient sentence.
Let us have background and some context here. For many years, the criticism of mental health professionals who testified about risk was that it was merely speculative, based merely on the professional's experience and hunches. It was no more accurate than chance, which led to the obvious conclusion that it was worthless. That led the push for a more scientific approach; one that was structured and methodical in its approach to measuring risk. Much heavy lifting was done with the result of several risk assessment approaches that are far superior to the armchair prognostications of the past.
But there was a problem: These new tools, particularly the actuarial methods, were too good. They removed speculation from the equation in favor of precision. They left little, really no room for consideration of what researchers call "dynamic factors." That is, actuarial tools only measure what has transpired or cannot be altered: past criminal history, characteristics of victims, previous success or failure with parole. With risk fixed there was no opportunity for rehabilitation; no means to address risk factors that are subject to change: drug and alcohol use, antisocial attitudes, employment, etc. You see, those dynamic factors are ways in which risk can be "adjusted" -- almost always downwards in favor of a more lenient sentence.
Continue reading What to Make of Actuarial Risk Assessment.
The U.S. Supreme Court took up seven new cases and decided two, all civil. (There are no argued criminal cases left to be decided this term, but summary decisions are possible.)
In the Georgia capital case of Tharpe v. Sellers, No. 17-8344, the Court turned down a request to review the decision of the Georgia Supreme Court that Tharpe's juror bias claim is barred in state court for procedural default. On January 8, in case No.17-6075, the Court sent the federal habeas corpus case back to the Eleventh Circuit. The Court reversed the specific holding on which the 11th had affirmed the district court's denial of the petition but expressed no view on other possible grounds to affirm.
SCOTUSblog's petitions to watch list has a number of cases challenging the "dual sovereignty" doctrine. That is, the Fifth Amendment's Double Jeopardy Clause prevents the United States from trying a person twice for a federal offense, and it prevents a state from trying a person twice for a state offense, but when the same act violates both state and federal law it does not prevent either government from trying its case after the other. For example, the police officers in the Rodney King case were tried in federal court after being acquitted in state court. All of these cases have been relisted.
Evans v. Mississippi, No. 17-7245 -- asking yet again whether the high court should amend the Constitution to prohibit a punishment that is clearly contemplated in the text, has been authorized by statute at all times in most states throughout our history, and remains favored by a solid majority of the American people -- has been relisted yet again. See this post.
Jordan v. Mississippi, No. 17-7153 -- raising yet again the Lackey claim that if a murderer found to deserve death for his crime succeeds in postponing execution long enough he should be allowed to avoid his deserved punishment altogether -- has been relisted yet again.
In Gelhaus v. Lopez, No. 17-1354, the Court denied review of a divided qualified immunity decision of the Ninth Circuit. The Police Officers' Research Assn. of Cal., the Cal. State Sheriffs' Association, and the International Municipal Lawyers Assn. and Cal. State Assn. of Counties filed amicus briefs in support of the petitioner.
The Court will release decisions again tomorrow, but I will be traveling and not blogging.
The Separating Immigrant Families Scam: For more than a month we have been told that the U.S. Attorney General's decision to prosecute every foreign national who crosses the border illegally has created a crisis on par with the Holocaust, where tens of thousands of helpless children have been pulled from their parents and thrown into internment camps as reported by CNN and virtually every other news outlet. Sounds of children crying and photos of children in cages have accompanied these reports. Trump did this, we are told, and to send that message home Time Magazine put the President and a crying little girl separated from her parents by his policies on its cover this week. Should we believe what the major media, open borders groups like La Raza, Nancy Pelosi, Chuck Schumer and two dozen other liberal democrats are saying? Probably not. As Heather McDonald notes in this City Journal piece, when the Obama Administration attempted to hold child-toting asylum-seekers until their claims could be heard, the Ninth Circuit announced that a child could not be housed with the adult and must be released within 20 days, or release both adult and child together.
The Obama administration usually chose the second option. "Word coursed through Mexico and Central America that taking a child
across the border was a get-out-of-jail-free card that would exempt its
holder from both criminal prosecution and detention."
Continue reading News Scan .
The Fifth Amendment protects against a second trial "for the same offence." What happens when a defendant with two different but related charges requests two trials and the first ends in acquittal? Can he block the second trial on the ground that an essential issue was resolved in his favor in the first one? No, the U.S. Supreme Court said today in Currier v. Virginia, No.16-1348. You can't complain when you get what you ask for. Well, maybe you can, but it won't do you any good.
Along the way, Justice Gorsuch's opinion for the majority casts some doubt on Ashe v. Swenson (1970), the famous or notorious (depending on your point of view) case that read into the Constitution a rule against retrying an issue resolved in the defendant's favor in an earlier trial for a different but related offense.
"Ashe's suggestion that the relitigation of an issue can sometimes amount to the impermissible relitigation of an offense represented a significant innovation in our jurisprudence." "Innovation" is not a compliment among those who believe that the Court's role is to apply and enforce the Constitution as written and as intended, not make it up as they go along. "Some have argued that it sits uneasily with this Court's double jeopardy precedent and the Constitution's original meaning." That means "wrong."
The Court is not ready to throw Ashe on the ash heap just yet, but stayed tuned.
This morning the U.S. Supreme Court decided the long-awaited case on police access to cell-phone location records, Carpenter v. United States, No. 16-402. Chief Justice Roberts' opinion for the bare majority trims back the "third party" doctrine that one has no reasonable expectation of privacy in information belonging to and in the custody of a third party such as a telephone company. As a result, police will need a warrant supported by probable cause to obtain cell phone location records. The dissenting opinions have a variety of interesting perspectives, including questioning whether "reasonable expectation of privacy" is a valid basis for deciding the reach of the Fourth Amendment at all.
As important as all this is, none of it has anything whatever to do with the justice of the criminal case actually before the Court. Was Timothy Carpenter or was he not the mastermind of a series of robberies in which his henchmen "entered the store, brandished their guns, herded customers and employees to the back, and ordered the employees to fill the robbers' bags with new smartphones"? If he was, justice for the employees terrorized in these crimes requires that he go to prison for a long, long time. If he gets off because of today's decision that is a miscarriage of justice, and nothing in the text or history of the Fourth Amendment requires it.
Continue reading Cell Phone Data Case Decided.
Kristen Carosa reports for WMUR in Manchester:
Gov. Chris Sununu delivered Thursday morning on his promise to veto a measure passed in the New Hampshire House and Senate to repeal the state's death penalty law.
The governor was flanked by law enforcement officials from departments across the state as he vetoed the bill."To repeal the death penalty today would deprive future victims of the justice they deserve," Sununu said. "Abolishing the death penalty would send the wrong message to those who would commit the most heinous offenses within our state borders."
Occasionally Supreme Court Justices admit they got it wrong in a previous opinion. In the interstate sales tax case today, South Dakota v. Wayfair, Justice Thomas gives us a nice little variation on this theme. He admits that 26 years ago he was wrong for not joining Justice White's admission that he had been wrong 25 years before that. Here is Justice Thomas's concurrence in its entirety.
Justice Byron White joined the majority opinion in National Bellas Hess, Inc. v. Department of Revenue of Ill., 386 U. S. 753 (1967). Twenty-five years later, we had the opportunity to overrule Bellas Hess in Quill Corp. v. North Dakota, 504 U. S. 298 (1992). Only Justice White voted to do so. See id., at 322 (opinion concurring in part and dissenting in part). I should have joined his opinion. Today, I am slightly further removed from Quill than Justice White was from Bellas Hess. And like Justice White, a quarter century of experience has convinced me that Bellas Hess and Quill "can no longer be rationally justified." 504 U. S., at 333. The same is true for this Court's entire negative Commerce Clause jurisprudence.See Comptroller of Treasury of Md. v. Wynne, 575 U. S. ___, ___ (2015) (Thomas, J., dissenting) (slip op., at 1). Although I adhered to that jurisprudence in Quill, it is never too late to "surrende[r] former views to a better considered position." McGrath v. Kristensen, 340 U. S. 162, 178 (1950) (Jackson, J., concurring). I therefore join the Court's opinion.
Continue reading Oops.
Yesterday, U.S. District Judge John Mendez heard oral arguments in Sacramento in the federal government's suit against California over a triad of state laws. Associated Press has this story.
The argument was unusual in a couple of ways. First, it went all day. That was common in olden times, but these days it is unusual for any oral argument to go more than an hour, at least in my experience. Second, the judge told the parties up front to put aside their prepared remarks and go straight to Q & A.
According to the AP story, the judge was most skeptical of the California law regulating employer cooperation with the federal immigration authorities. " 'The statute really puts the employer between a rock and a hard place,' he said."
I also think that is the most vulnerable of the three, and CJLF's amicus brief focused on it. The other bills may, all or in part, fall into the category that Justice Scalia famously described as "stupid but constitutional."
In Boykin v. Alabama (1969), the U.S. Supreme Court declared, " It was error, plain on the face of the record, for the trial judge to accept petitioner's guilty plea without an affirmative showing that it was intelligent and voluntary." That "plain on the face of the record" language was necessary because the defendant had not preserved a claim of error on this point.
The California Supreme Court quickly pounced on Boykin and elevated its references to the record into a mandate of ritual. Acknowledging that Boykin could be interpreted as either requiring that a voluntary and intelligent waiver be fairly discernible from the record or that a strict ritual was required in every case, Justice Stanley Mosk's opinion for the court went with the ritual in In re Tahl (1970). Many years and personnel changes later, that court corrected itself in People v. Howard (1992), holding that the record is sufficient if it "affirmatively shows that it is voluntary and intelligent under the totality of the circumstances."
The rule applies to stipulations to all the elements of a crime as well as guilty pleas (as there is little difference in practice), and until today there was some disagreement as to whether the "totality" rule applied only to cases where the Boykin-Tahl admonitions (as they are known in California) are incomplete or also to those where they are missing altogether.
That question was answered today in a vehicular homicide case, People v. Farwell, No. S231009. In the Court of Appeal, the majority applied the totality test, but dissenting Justice Richard Mosk thought that People v. Mosby (2004) made that rule inapplicable to "silent record" cases. CJLF filed an amicus brief, written by Kym Stapleton, to support applying the totality rule.
"We hold that the totality of the circumstances test applies in silent record cases as well," the unanimous opinion by Justice Corrigan says. "As amicus curiae Criminal Justice Legal Foundation observes, '[r]ather than carving out a set of cases as being exempt from the Howard "totality of the circumstances" rule, Mosby is better understood as identifying a frequently occurring fact pattern that typically fails [to satisfy] the rule.' " Two contrary Court of Appeal decisions are expressly disapproved.
Alex Titus has an article in the City Journal titled Left Coast Lawlessness.
The anarchy and disorder dominating progressive cities across the West Coast recently hit a new low in Seattle. King County officials are looking to roll out a "safe injection van," a legal venue at which addicts could shoot up illegal drugs unhindered and "safely." The first of its kind in the United States, the van would manage to undermine further the rule of law while also doing little to help addicts. Seattle's urban decay goes deeper, though, with skyrocketing rates of homelessness, an explosion in opioid usage and deaths, and spikes in violent crime.
Continue reading How to Wreck a City.
"A lot of what we think we know about human psychology is bunk," write Russell Warne and Jordan Wagge in the WSJ.
Reproducible experiments are the cornerstone of science. It is not enough that someone has done an experiment and gotten a result. Others need to reproduce the experiment and get the same result. Remember "cold fusion"? It was bunk, and the fact that other researchers could not reproduce it proved it was bunk.
What if a result is announced with great fanfare and nobody bothers to try to reproduce it? That is why so much of what we think we know is bunk, according to Warne and Wagge.
Continue reading Non-Reproduced Results.
The Bangkok Post reports:
A 26-year-old convicted killer was executed by lethal injection Monday, the seventh person to be put to death since the method was introduced and the first since 2009, Corrections Department chief Pol Col Naras Savestanan said.
Theerasak Longji, 26, was convicted for the brutal killing of a 17-year-old boy in Trang, He was 19 at the time of the murder.
He stabbed his victim 24 times in a frenzied attack on July 17, 2012, before making off with his mobile phone and money. The perpetrator reportedly knew the victim, and was motivated by jealousy over a girl.
And of course the usual objectors said the usual things, reported in this follow-up story in the Post:
Amnesty International issued a statement condemning the move.
* * *
"There is no evidence that the death penalty has any unique deterrent effect, so the Thai authorities' hope that this move will reduce crime is deeply misguided. The death penalty is the ultimate cruel, inhuman and degrading punishment and provides no quick-fixes to problems the authorities want to confront."
It's not clear what they mean with the qualifier "unique," but if they mean there is no evidence the death penalty has a deterrent effect, that is false. Informed people can and do disagree over the strength of the evidence, but there is no doubt of the existence of the evidence. Whether execution is more degrading than life without parole is also a matter reasonable people can and do differ on. Saying it is not a quick fix is the infamous Straw Man Fallacy. Nobody said it was.
Capital punishment must remain to deal with severe crime and ensure national peace and most people agree with it, Prime Minister Prayut Chan-o-cha said Tuesday.
Obviously, that means it is an element of the effort to deal with crime, not a complete solution by itself.
Advocates of watering down sentencing law and dismantling "broken windows" policing speak of "nonviolent" crimes as if they were harmless. Unfortunately a large portion of the population is buying it. "Property crimes" are not harmless. They work a major degradation of the quality of life. Nicole Gelinas has this article in the City Journal focusing on the impact on bicycle riders.
As violent crime remains at historical lows in much of the West, criticism of Broken Windows policing has grown more insistent. Skeptics, including New York mayor Bill de Blasio's new top deputy, J. Phillip Thompson, claim either that preventing small, nonviolent crimes wasn't a big factor in preventing larger violent ones, or that Broken Windows' disproportionate targeting of minorities isn't worth the benefits, even if they exist. This debate ignores a key point: preventing "minor" crime is a social good in itself. Cities plagued with small-scale crime cannot maintain a good quality of life for their residents. Advocates of bike-share programs are discovering this anew, as the private-sector companies that offer the services, from Paris to Baltimore, have pulled out or scaled back because they cannot keep up with the destruction of their bicycles.
Illegal Charged in Double Murder: A Honduran man in the country illegally was arrested last Saturday for the murders of two Miami prostitutes. Martin Vassolo and Charles Rabin of the Miami Herald report that surveillance video and DNA evidence linked 37-year-old Juan Carlos Hernandez-Caseres to the murders of 41-year-old Ann Farrin on Wednesday, June 13, and 39-year-old Neidy Roche on March 2. In both cases the victims were beaten and strangled to death before their bodies were dumped on the street. After his arrest, Hernandez-Caseres confessed to police that he had hired Farrin to engage in sex but became enraged during the encounter and started beating her. He has been charged with two counts of first-degree murder and is being held without bond.
Rafael Mangual writes in the National Review:
The notion that America's criminal-justice system regularly locks up otherwise harmless people for minor drug crimes -- and does so largely because of thinly veiled racism -- has become a central article of progressive faith. It was thus not surprising to hear Massachusetts senator Elizabeth Warren invoke the notion at the liberal We the People Summit earlier this week. What's breathtaking, however, is the scope of Warren's error. In response to a loaded question from the audience about how the system "criminalize[s] poverty and communities of color," Warren replied:[Criminal-justice reform] starts on the front end, with the activities we criminalize -- for example, low-level drug offenses. More people [are] locked up for low-level offenses on marijuana than for all violent crimes in this country. That makes no sense at all. No sense at all. [Emphasis added.]She's right, it doesn't make sense -- because it's not true. In fact, it's so at odds with the publicly available data that one can only conclude that Warren is either totally unlettered on the subject or was willfully deceiving the audience.
In Lozman v. City of Riviera Beach the U.S. Supreme Court claimed to be establishing a "narrow" rule on a civil suit for retaliatory arrest even when the arrest is supported probable cause. I have my doubts. We have seen "narrow" rules grow like cancer before.
Plaintiff Fane Lozman had some ongoing disagreements with the city. He may have been right; it doesn't matter. At the public comment portion of a city council meeting he starts going off about the arrest of an official in another jurisdiction with no apparent connection to the meeting. When he won't shut up and won't leave, the council has him arrested. The Court has the video on its web site. He claims the arrest was retaliation for his outspoken criticism and not just for his conduct on this occasion.
Generally speaking, the Supreme Court says a seizure supported by probable cause is legal and does not permit going behind the cause for an ulterior motive. Whren v. United States, 517 U.S. 806 (1996) rejected a claim that a traffic stop violated the Fourth Amendment because the real motive was to investigate possible drug trafficking. In the First Amendment context, the law is not so clear.
Continue reading A Narrow Rule on Retaliatory Arrest?.
Is an error in applying the notoriously complex Federal Sentencing Guidelines appealable if nobody notices the error in the trial court? Generally yes, the U.S. Supreme Court decided today in Rosales-Mireles v. United States, No. 16-9493.
The general rule in litigation is that you have to raise an objection at the proper time or else you lose it, the "speak now or forever hold your peace" rule. There are exceptions to the general rule, and criminal defendants get more breaks than other litigants, in part because the consequences of an attorney error in a criminal case are typically not remedied by going after the lawyer and insurer in a malpractice action. Federal Rule of Criminal Procedure 52(b) provides, "A plain error that affects substantial rights may be considered even though it was not brought to the court's attention." There is a large body of case law putting meat on that bone. The word "may" implies discretion, but the case law puts boundaries on that discretion. Here is today's holding in a nutshell:
This case concerns the bounds of that discretion, and whether a miscalculation of the United States Sentencing Guidelines range, that has been determined to be plain and to affect a defendant's substantial rights, calls for a court of appeals to exercise its discretion under Rule 52(b) to vacate the defendant's sentence. The Court holds that such an error will in the ordinary case, as here, seriously affect the fairness, integrity, or public reputation of judicial proceedings, and thus will warrant relief.
The opinion is by Justice Sotomayor (7-2). Justice Thomas dissents, joined by Justice Alito.
The Court also decided another very technical federal sentencing case, Chavez-Meza v. United States, No. 17-5639.
Continue reading Sentencing Guidelines and Unnoticed Errors.
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." So says the Eighth Amendment to the Constitution of the United States.
Fines imposed by whom? As originally enacted, this amendment limited only the federal courts. The first ten amendments, also known as the Bill of Rights, restrained only the federal government, not the states.
After the Civil War, the Fourteenth Amendment did limit the state governments, and the question of whether its limits "incorporated" the guarantees of the Bill of Rights, and which ones, has long been a constitutional controversy. In Hurtado v. California (1884), the Supreme Court decided that the Fifth Amendment's guarantee of grand jury indictment for "infamous" crimes -- already obsolete by that time -- was not incorporated and did not apply to the states. Also, nobody seriously believes that the Seventh Amendment guarantee of jury trial in civil cases for $21 applies to state courts.
The First Amendment guarantees were applied, though, early in the twentieth century, and most of the criminal procedure guarantees were "incorporated" during the Warren Court era in the 1960s. The incorporated provisions, of course, included the Cruel and Unusual Punishments Clause of the Eighth Amendment.
The Excessive Fines Clause has been left out of consideration up to now, but the high court has finally taken it up. The full name of the case is Tyson Timbs and a 2012 Land Rover LR2 v. State of Indiana, No. 17-1091. Yes, this is a forfeiture case, and the pricey 4x4 is a party to the action.
Petitioner Timbs drove petitioner Rover (purchased for over $40k) to a minor drug transaction which turned out to be with undercover officers. The Indiana Court of Appeals found that forfeiture of Rover was an excessive fine, but the Indiana Supreme Court reversed on the ground that the Excessive Fines Clause does not apply to the states.
I'm inclined to agree with the defendant on this one.
The U.S. Supreme Court today took up Garza v. Idaho, No. 17-1026, involving the intersection of two recurring themes: lawyer decisions v. client decisions in the conduct of a case and how to apply rules developed for trials to the context of plea-bargained cases, which most cases are now.
In the course of a criminal trial, the lawyer makes most of the decisions, but a few are reserved for the client personally. Whether to appeal is a client decision. In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Court dealt with the issue of ineffective assistance claims for a lawyer's failure to appeal, with or without consulting the client. If the lawyer is found to have performed deficiently, the "prejudice" question is only whether there is a reasonable probability the client would have appealed, not that he would have prevailed on appeal.
The wrinkle in the Garza case is that the defendant pleaded guilty and waived his right to appeal as part of the bargain. From the Brief in Opposition:
Garza pleaded guilty to aggravated assault and possession of a controlled substance with intent to deliver pursuant to plea agreements with the State of Idaho. Pet. App. 2a. As part of those plea agreements the district court bound itself to follow certain "bargained for" sentencing recommendations. Pet. App. 28a-29a. Garza also waived his right to appeal and his right to seek a reduction of his sentences under Idaho Criminal Rule 35. Pet. App. 2a-3a. The district court imposed the agreed-upon sentences. Pet. App. 29a. Garza requested his trial counsel to file a notice of appeal but, in light of the waiver, his counsel declined. Pet. App. 29a.
It seems to me that the situation here is quite different from Flores-Ortega. In that case, the lawyer's allegedly ineffective failure to file an appeal denied the client an entire judicial proceeding that he was entitled to. The Court relied heavily on the distinction between a claim that a proceeding was conducted unfairly and a claim that a proceeding did not happen at all. In this case, the proceeding was one that the client voluntarily gave up in return for a reduced sentence. The proceeding not happening at all was precisely what he agreed to, and a finding that he had no right to it is quite different from a finding that he would not have prevailed in it.
Some criminal law action from SCOTUS this morning, but no blockbusters. The Court accepted two new cases on defense counsel not appealing and the Excessive Fines Clause. A couple of minor decisions on federal sentencing and one on retaliatory prosecution.
Should a single district judge be able to issue an injunction controlling the action of executive branch nationwide? Such injunctions are becoming increasingly common, but when combined with broad venue rules they give the challenger far too much latitude for judge shopping.
Beth Williams, AAG for the Office of Legal Policy, will speak to the San Francisco Chapter of the Federalist Society on this topic at noon on Monday. The event page is here.
Syndicated columnist Thomas Elias has this column on California's grievously wrong definition of "violent."
There isn't a woman alive who was ever raped while either intoxicated or unconscious who doesn't consider the entire experience violent.
But that's not how these crimes are defined legally in California. The same for human trafficking of a child, abducting a minor for prostitution, drive-by shootings at inhabited homes or cars, felony domestic violence, solicitation to commit murder, among others.* * *But a series of bills aiming to expand the list of crimes defined as violent died in legislative financial committees. Too expensive, was the verdict. That was the reason given when the Assembly Appropriations Committee just about one year ago killed a bipartisan measure aiming to classify all rapes and all human trafficking as violent.
An initiative to address the problem is presently awaiting signature verification. Whether it will make it in time for the 2018 ballot is in doubt. An initiative should never have been necessary. California's legislators have a lot to answer for.
Patrick Kennedy and Kevin Sabet have this article in the WSJ, titled This Is No Time to Go to Pot: Legalizing marijuana encourages use of harder drugs and sets back the cause of social justice.
Sens. Cory Gardner and Elizabeth Warren have introduced a bill to legalize marijuana at the federal level in the name of "states' rights." In reality, it would give birth to Big Tobacco's successor.
This dangerous proposal would allow the marijuana industry to market high-potency pot candies, gummies and 99% pure extracts (compare that with 5% potent Woodstock weed). With 70% of today's illicit drug users having started with marijuana, not prescription drugs, according to the National Institute on Drug Abuse, this is exactly the wrong time to legalize pot.
Public-health data from states that have legalized strongly indicate that it is a failed experiment, resulting in more fatalities from driving while stoned, more emergency-room visits and poison-control calls, and more worker accidents and absenteeism.
CJLF takes no position on the issue. Personally, I am much more concerned about the rise of a Big Marijuana industry than I am with the question of whether possession of small quantities for personal use is an offense or not.
The long-awaited report of the Department of Justice Inspector General on the Clinton email server mess appears to be a mixed bag. I haven't read the 500-page report yet, but this story in the WSJ gives a rundown.
Continue reading The DoJ IG Report.
Some relatively good news came out of the City by the Bay in the recent election. Acting Mayor London Breed was elected mayor outright in the city's ranked-choice voting system. Dan Morain of CalMatters notes, "She invariably is described as moderate." But Frisco politics is skewed two sigma to the left of the country as a whole, so that doesn't mean what "moderate" means elsewhere. Still, the result is encouraging, and seeing the criminal-friendly Mark Leno defeated in the bottom circle of "progressivism" warrants hoisting a brewski.
During the campaign, Ms. Breed published this statement on public safety issues.
San Francisco confronts two related problems: rising property crime, particularly car break-ins, and the impression that there are no consequences for the crimes committed here.
Property crimes in the City spiked by 24% from 2016 to 2017. We can change this.
Sounds like she gets it. How about specifics?
Continue reading San Francisco Election Notes.
Major Pot Busts in Colorado and California: One of the most persuasive claims made by advocates of legalized marijuana has been that making pot legal would eliminate the market for criminal distribution of the drug and free up law enforcement to deal with serious and violent crimes. It appears that this was not true. Adding to the seemingly endless reports of illegal pot busts in California and Colorado is one from Joe Khalil of of Fox 40 reporting on the discovery of 17,000 to 19,000 illegal marijuana plants in the little town of Galt this week, and another by David Williams of Colorado Politics reporting on the discovery of huge illegal marijuana grows in the state's national forests. The California bust involved several law enforcement agencies which identified a nursery growing a huge quantity of the drug, constituting one of the largest in Sacramento County history. Seventeen people were arrested and 13 firearms were confiscated. The Colorado story chronicles the dramatic increase in illegal pot grows in national forests. In 2017, 71,000 pot plants were eradicated in the U.S. Forest Service's five-state Rocky Mountain Region, up from 45,000 plants in 2016, 23,000 plants in 2015 and just 3,000 plants in 2014 -- the vast majority in Colorado. If legalizing marijuana was supposed to eliminate the market for illegal traffickers, why is so much marijuana being illegally grown in states where pot is legal?
The U.S. Supreme Court did not decide any of the remaining criminal law cases on its docket. There were two civil case decisions. One is the case of campaign buttons in polling places, Minnesota Voters Alliance v. Mansky, No. 16-1435. The Court did not strike down button bans but said, "the State must be able to articulate some sensible basis for distinguishing what may come in from what must stay out." Minnesota law does not, so it cannot stand. Sound familiar? No, Furman v. Georgia (1972) is not cited. I checked.
Alison Sider and Andrew Tangle have this article in the WSJ.
Continue reading Thieves On A Plane -- In First Class.
The U.S. Supreme Court has notified the press that it might issue decisions tomorrow. Doug Berman has a post on the remaining criminal law cases at SL&P.
Carpenter v. United States, on warrantless search of cellphone records, is likely the biggest criminal case of the term. It has the longest time since argument of any criminal case and second-longest overall. Amy Howe plays the SCOTUS Sudoku game in this post and predicts that Chief Justice Roberts is writing the opinion, which she says is probably good news for Carpenter.
Study: Thefts Up In CA After Prop. 47. The Public Policy Institute in California has released a study finding that theft-related crimes have increased in the golden state since the 2014 adoption of Proposition 47. Don Thompson of the Associated Press reports that after the new law converted the crimes of drug possession, theft, shoplifting, identity theft, receiving stolen property, writing bad checks, and forgery, from felonies to misdemeanors the state has suffered a spike in some property crimes, particularly the burglarizing of vehicles. San Francisco alone recorded over 30,000 auto burglaries last year. While the study reports that recidivism is down, even the PPIC researchers were willing to admit that this might be because thieves are less likely to be arrested now that their crimes are low or no penalty misdemeanors. As one probation officer observed, drug addicts "are stealing to support their habit," rather then getting treatment due to the reduced penalties. According to a spokesperson for the Soros-funded Californians For Safety and Justice "the report shows that we are making progress."
Habitual Felon Arrested for Double-Murder: A repeat felon from Nevada has been arrested in California for the June 1 murders of a Vietnamese man and woman at the Circus Circus in Las Vegas. Briana Ericson of the Las Vegas Review Journal reports that suspect Julius Trotter was on probation for 2017 felony charges when he allegedly entered the hotel room of tour operator San Boy Nghia 38, and a co-worker Khuong Ba Le Nguyen, 30, stabbed them to death and burglarized the room. Security video showed Trotter exit an elevator on the floor where the murders occurred, and return to the elevator wearing a backpack belonging to one of the victims, after the murders. At the time of the murderers, Trotter was wanted for violating his probation for his 2017 conviction on gun and reckless driving charges.
Baxter Oliphant of the Pew Center has this article with the above title on the Pew Factank blog.
The question wording in this poll is the traditional wording that Gallup began using in the 1930s. As noted several times on this blog (see, e.g., this post) this wording understates actual support for the death penalty. It is primarily useful for tracking relative changes over time simply because it has such a long history. When people are asked the real question, as in the poll noted in the prior post, support is much stronger.
Here is an interesting fact from the crosstabs:
The trends look somewhat different when considering a more recent time frame. Since 2016, opinions among Republicans and Democrats have changed little, but the share of independents favoring the death penalty has increased 8 percentage points (from 44% to 52%).
I would not put too much emphasis on one poll, but an 8% jump among independents in two years is quite an increase. That is trend worth watching for confirmation in other polls and for continuation over time.
Texas Court Upholds Killer's Death Sentence, Again: A Texas murderer who won a rehearing on his mental state from the U.S. Supreme Court last year, failed to convince the highest court in Texas that he was too disabled for execution. Keri Blakinger of the Houston Chronicle reports that, in a 5-3 decision, the Texas Court of Criminal Appeals held that Moore "had failed to show adaptive deficits sufficient to support a diagnosis of intellectual disability" Acknowledging the guidance the Supreme Court provided in Moore v. Texas, the state court followed the most recent American Psychiatric Association's Diagnostic and Statistical Manual of Disorders, 5th Edition (DSM5) to determine if Moore was intellectually disabled, and concluded that he was not. Moore was convicted and sentenced to death for the April 25,1980 robbery of the Birdsall Super Market and murder of an 72-year-old clerk. It was the third robbery Moore and his two accomplices conducted that day. During the robbery, Moore was pointing a shotgun at the elderly clerk when one of the store's two other employees shouted that they were being robbed. Moore shot the clerk, blowing his head off. Moore then fled to Louisiana, where he was later arrested. The Chronicle article noted that newly elected Harris County District Kim Ogg asked the court to reduce Moore's sentence to life in prison, but failed to mention its earlier article reporting that Ogg received a $500,000 contribution from progressive, anti-death penalty billionaire George Soros to help her defeat the county's tough-on-crime incumbent.
The U.S. Supreme Court decided three cases today and "nondecided" one. All are civil cases. For political junkies, Husted v. A. Philip Randolph Institute on federal statutory requirements for states pruning their voting rolls is interesting. The court split 4-4 on Washington v. United States, having to do with fish, Indian treaties, and culvert design, with Justice Kennedy recused.
The Court took up no new cases for full argument and briefing. Among the criminal cases on SCOTUSblog's petitions to watch list, one was sent back for reconsideration in light of last week's Hughes decision. The rest are not on the list, which means they will be considered again in another conference.
Among the apparent relists is Evans v. Mississippi, No. 17-7245, with this Question Presented: "Whether the death penalty, in and of itself, violates the Eighth
Amendment in light of contemporary standards of decency and the
geographic arbitrariness of its imposition." This case has been distributed for conference 13 times, an unlikely number for a case that the court is actually debating whether to take up. More likely it is waiting for the finalization of an opinion dissenting from denial of certiorari. Perhaps Justice Breyer will treat us to another magnum opus assuming every disputed allegation in favor of the anti-death-penalty side, as he did in Glossip v. Gross a few years ago.
Illegal Convicted of Murder: A Mexican national in the U.S. illegally has been convicted of murdering a former co-worker and kidnapping her newborn baby in November of 2016. Travis Fedschun of Fox News reports that a Dallas jury deliberated less than three hours Tuesday before finding Yesenia Sesmas guilty of first degree murder and kidnapping. Evidence introduced at trial indicated that after suffering a miscarriage, Sesmas faked being pregnant until she learned that a former co-worker at a Wichita restaurant had given birth. She then drove to Wichita, shot 27-year-old Laura Abraca and took her six-day-old baby. In 2015, Sesmas was arrested for threatening another Wichita woman and trying to hold the woman's two daughters for ransom. Before she could be tried, Sesmas was mistakenly released from custody and fled to Dallas. She faces a possible life sentence for the murder.
Texas Killer's Execution Stayed: The Texas Court of Criminal Appeals ruled Tuesday to stay the June 21 execution of condemned murder Clifton Lamar Williams. Keri Blakinger of the Houston Chronicle reports that Williams had been sentenced to death for the brutal 2005 robbery and murder of 93-year-old Cecilia Schneider, whose body was set on fire after she was stabbed to death. It a petition filed earlier this year Williams' attorneys argued that his IQ score in the mid 60s made him too intellectually disabled to be executed. In its ruling the Texas court cited the U.S. Supreme Court's 2017 decision in Moore v. Texas which held that the state's process for determining a murderer's mental capacity was inadequate, as the basis for ordering a new hearing to evaluate Williams.
Two weeks ago, we noted news stories about the efforts of George Soros and other deep-pocketed left-wing donors from outside the counties in question to pour big bucks into efforts to oust incumbent district attorneys and replace them with soft-on-crime alternates. That drive did a "face plant" last night.
In Sacramento County, first-term DA Anne Marie Schubert, a leader in the proposition fights on criminal law, defeated "progressive" challenger Noah Phillips by a two-to-one margin according to the county's morning-after tally with all precincts reporting.In San Diego, a megabuck and a half from George Soros was not enough to convince the voters to put defense attorney Geneviéve Jones-Wright in the top prosecutor's chair. The appointed incumbent, career prosecutor Summer Stephan, won a full term, also by two-to-one.
In Alameda County (Oakland and surrounding area), incumbent Nancy O'Malley has a three-to-two lead in the morning-after results. The fact she was targeted at all demonstrates that having solid Democratic Party backing is no guarantee one won't be attacked by the "progressive" piranha. (Cal. DA races are nonpartisan, but partisan leaders can weigh in with endorsements. Sen. Kamala Harris endorsed Ms. O'Malley.)
In Contra Costa County (at the north end of the East Bay area), the situation is a bit more complicated. The outside money backed the incumbent, Diana Becton, who was appointed by the board of supervisors after the elected DA crashed and burned. This election appears to be headed for a runoff, as Ms. Becton fell just short of a majority, Nate Gartrell and Aaron Davis report for the East Bay Times. Challenger Paul Graves made the runoff with 42%. Crackpot Lawrence Strauss, who announced he would never seek the death penalty for the murder of a police officer because "it's part of the risk they take," (see this post), finished a very distant third.
Continue reading Outside Big-Money Drive to Oust Tough DAs Flops in California.
PA Murderer Loses Appeal: The appeal of a man sentenced to death for murdering his ex-girlfriend in 2004, was rejected last Thursday by the Pennsylvania Supreme Court. Phil Ray of the Altoona Mirror reports that Andre Staton sought to have his conviction overturned claiming that the trial judge violated his constitutional rights by permitting him to serve as his own counsel. The Supreme Court rejected Staton's claim, noting that that at a hearing on May 13, 2013, the trial judge considered Staton's petition to fire his defense attorney and allow him to represent himself in the post-conviction review of his case. After hearing both the prosecution and the defense attorney argue against the request, the judge denied it. Hearing this, Staton jumped from his chair and attacked his attorney, knocking him unconscious, resulting in a severe concussion. A week later the court held that Staton had waived his right to counsel. The high court later determined that by attacking his attorney, Staton has forfeited his right to counsel and that his subsequent claims challenging the adequacy of his habeas corpus representation were without merit. Court records indicate that on February 25, 2004, a week after she had gotten a restraining order against Staton for repeated beatings, Staton kicked in the door of Beverly Yohn's home and stabbed her to death in front of her young son. He was convicted on overwhelming evidence and sentenced to death in 2006.
The big news out of SCOTUS today is on wedding cakes, but there is some criminal law action, too. There are two sentencing cases and a follow-up to a capital case from five years ago.
Justice Kennedy takes the Understatement of the Day Award in Hughes v. United States, No. 17-155: "The proper construction of federal sentencing statutes and the Federal Rules of Criminal Procedure can present close questions of statutory and textual interpretation when implementing the Federal Sentencing Guidelines." Yup. The case has to do with reducing sentences when the Guidelines are lowered retroactively. Congress has authorized such a reduction if the sentence was "based on a sentencing range that has been subsequently lowered ...." 18 U.S.C. §3582(c)(2). In the case of plea/sentence bargains, the "based on" may not be clear. The bottom line is that the more lenient interpretation prevails, 6-3. Opinion by Justice Kennedy; dissent by Chief Justice Roberts.
Those of us who were hoping for further guidance on the rule that lower courts should follow when the Supreme Court fails to render a majority opinion (the Marks rule) were handed a fallen cake.
Justice Alito takes the Brevity Prize today for an opinion of only seven 6 1/8 x 9 1/4 inch pages in Koons v. United States, No. 17-5716. A sentence isn't "based on" the Guidelines when it is determined by a statutory mandatory minimum and the "substantial assistance" reduction. Unanimous. It's easier to be brief when you don't have those pesky dissents to deal with.
Continue reading Crim Cases on Cake Monday.
Fonda to Reform LA Sheriff's Dept: Actress Jane Fonda has joined forces with the co-founder of Black Lives Matter to help qualify a local initiative to reform the Los Angeles County Sheriff's Dept. Jeffery Carwood of the Daily Wire reports that the 80-year-old actress has partnered with Patrisse Cullors, a police and prison abolitionist, to qualify the "Reform L.A. Jails and Community Reinvestment Initiative" which needs 150,000 signatures in less than two weeks. The measure would block the construction of two new jails and create a civilian oversight panel with subpoena powers over the Sheriff's Department. At a United States of Women rally last month, Fonda admitted that she had not realized the extent of mass criminalization of blacks and attributed her lack of depth on the issue to her skin color. If the required number of signatures are turned in, the initiative will appear on Los Angeles County's November ballot.
