July 2018 Archives

In Johnson v. United States (2015), the Supreme Court declared the "residual clause" of the Armed Career Criminal Act void for vagueness. That clause was part of the definition of which prior crimes would count for a designation as a career criminal with substantially stiffer sentences. The clause was not a masterpiece of statutory drafting, but its loss has had serious consequences, and Congress needs to step up to the plate and fix it. Senators Orrin Hatch and Tom Cotton have done just that, introducing the Restoring the Armed Career Criminal Act. Their "one-pager" is here.

The case of Jerrod Baum is illustrative of the types of criminals sentenced under the ACCA and the tragic consequences that flowed from Johnson. In 1991, Baum, a neo-Nazi in Utah, allegedly went into a fast food restaurant and fired at employees while trying to rob it. He was charged with numerous felonies, including attempted murder, and took a plea deal. In 1995, he pleaded guilty to aggravated assault against a prison guard. In 2003, he was convicted of possessing a firearm as a felon. In 2005, he was again convicted of possessing a firearm as a felon, and sentenced under the ACCA to remain prison until at least 2020.

The retroactive release of violent career offenders after Johnson allowed Baum to leave prison early in 2016. In 2018, Baum was arrested and charged for allegedly kidnapping, stabbing, and disposing the bodies of two teenagers in Eureka, Utah, by throwing them down a mineshaft. But for the Johnson decision, Baum would have remained in prison and the two teenagers he allegedly murdered would almost certainly be alive.

*      *      *

The Restoring the Armed Career Criminal Act would do away with the concepts of "violent felony" and "serious drug offense" and replace them with a single category of "serious felony." A serious felony would be any crime punishable by 10 years or more.

There is no argument so absurd that some lawyer somewhere will not sign his name to it and file it.  Today's confirmation of that fact comes from Hikma Pharmaceuticals USA, maker of fentanyl.  This powerful opiod drug is a major drug of abuse and responsible for a big chunk of the opiod abuse problem today.  One would be hard pressed to think of any drug in the pharmacopeia with a worse reputation.

"It's ironic that the maker of fentanyl, which is at the center of the nation's opioid crisis and is responsible for illegal overdoses every day is going to ... claim reputational injury from being associated with a lawful execution," Deputy Nevada state Solicitor General Jordan T. Smith protested.

An emergency appeal is already pending in the Nevada Supreme Court.

A lawyer for a former Stanford swimmer ... tried to convince an appellate court Tuesday to overturn his client's conviction -- on the novel grounds that the athlete wanted "outercourse" with his intoxicated victim, not intercourse.

"Outercourse," his lawyer Eric S. Multhaup explained to the three poker-faced justices, is sexual contact while fully clothed. Turner had his clothes on when he was caught by two Swedish graduate students making thrusting motions on top of a half-naked, intoxicated, unconscious woman, his lawyer noted.

Nevada prison officials appealed Wednesday to the state Supreme Court, seeking to overrule a delay of the state's first execution in 12 years after a drug company opposed the use of its product.

The 64-page filing asks the court to lift what state attorneys call "an unprecedented temporary restraining order" that they say "put the interests of Big Pharma over the interests of Nevada's capital murder victims."

An eleven day sweep by ICE in the DC metro area has resulted in the arrests of 132 illegal alien criminals.  Mike Valerio of WUSA9 in DC reports that those arrested included high-ranking MS13 gang members and foreign nationals with convictions or outstanding warrants for multiple violent and sex crimes.  Among the offenders were a Bolivian national with four prior convictions for rape; a previously deported Honduran wanted for two counts of rape and a El Salvadorian wanted for assault with a deadly weapon.  As reported by by Lee Harris at ABC News, progressives in Congress introduced a bill two weeks ago to abolish ICE in response to a growing left-wing movement whose message has been amplified by Alexandria Ocasio-Cortez, the Democratic Socialist candidate who gained national attention for her upset primary win in New York on a platform of economic and social justice.  

The Ninth Circuit today decided Young v. Hawaii, No. 12-17808:

We must decide whether the Second Amendment encompasses the right of a responsible law-abiding citizen to carry a firearm openly for self-defense outside of the home.

*      *      *

As was the case in Peruta II, we find ourselves navigating waters uncharted by Heller and McDonald: the degree to which the Second Amendment protects, or does not protect, the carrying of firearms outside of the home.

*      *      *

We do not take lightly the problem of gun violence, which the State of Hawaii "has understandably sought to fight . . . with every legal tool at its disposal." Wrenn, 864 F.3d at 667. We see nothing in our opinion that would prevent the State from regulating the right to bear arms, for the Second Amendment leaves the State "a variety of tools for combatting [the problem of gun violence], including some measures regulating handguns." Heller, 554 U.S. at 636.

But, for better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense. We would thus flout the Constitution if we were to hold that, "in regulating the manner of bearing arms, the authority of [the State] has no other limit than its own discretion." Reid, 1 Ala. at 616. While many respectable scholars and activists might find virtue in a firearms-carry regime that restricts the right to a privileged few, "the enshrinement of constitutional rights necessarily takes certain policy choices off the table." Heller, 554 U.S. at 636.

A 27-year-old man recently released from prison was arrested Monday for a knife attack on two sisters at an Oakland BART station which left one dead.   Brendan Weber of NBC Bary Area reports that witnesses and surveillance video identified John Cowell as the attacker, and police recovered the possible murder weapon at a nearby construction site. Cowell was released from prison last May after serving time for a 2016 armed robbery.  At that time he was on probation for battery and drug convictions, considered "low level" crimes under California law.  While the attack has rocked the community, it is the third murder at a BART station in five days.  The day before the knife attack a 47-year-old man hit the ground after being punched in the face at a BART station, leaving him brain dead. 

In a recent Los Angeles Times editorial the paper's editorial board told readers "Entering a home (or a room, a tent, a locked car or any building) with the intention to steal remains a felony, even if the thief doesn't end up taking anything, or even if what he has his eye on is worth less than $950. The suspect can (and should) be arrested, booked and brought before a judge. Proposition 47 didn't change any of that."  Proposition 47, adopted in 2014 by California voters, converted the most frequently committed property and drug felonies into misdemeanors.  The Los Angeles Times editorial board clearly does not know what that means.  Michelle Hanisee of 1,000 strong Association of Los Angeles Deputy District Attorneys, responds that, under longstanding California law, "a peace officer can only arrest a misdemeanor theft suspect if the officer actually witnesses the theft (an infrequent occurrence)."  She points out that overcrowded county jails, thanks to AB109, and the low priority that  misdemeanors carry compared to felonies makes the possibility of actually receiving meaningful consequences for a misdemeanor arrest the equivalent of being struck by lighting.  As an Assistant City Attorney pointed out, when the consequence of a conviction is no jail time, there is no incentive for an addict to enter rehab and "almost no one has gotten anything close to meaningful drug rehabilitation."   

Illegal Lyft Driver Charged With Rape:  An illegal alien in San Francisco dubbed the "rideshare rapist" has been charged with four counts of felony rape, investigators say occurred over the past five years.  ABC7 News reports that Orlando Vichez Lazo has pleaded not guilty to the charges.  The defendant is accused of posing as the assigned ride and picking up females outside of bars and nightclubs and raping them.  A Lyft spokesperson told reporters that Vilchez Lazo "fraudulently represented himself" when applying with the company, but failed to mention that, under one of California's sanctuary state laws (AB450), Lyft could have been fined $5,000 by the state if it had asked ICE to verify the legal status of its employees.  For its part, ICE has asked the San Francisco Sheriff to detain Vilchez Lazo if he is allowed bail.  A deputy public defender said that San Francisco's sanctuary city status has nothing to do with the case.   

Anonymous evaluations of professors by their students can be caustic or catty. But they are also unfailingly candid, and collectively they paint a revealing picture of a teacher's strengths and weaknesses.

*      *      *

But on the whole, in 12 sets of evaluations spanning 700 pages, there was almost only glowing praise for Judge Kavanaugh's teaching. More than a few students said he was the most impressive law school professor they had encountered.

*      *      *

But J.D. Vance, the author of "Hillbilly Elegy" and a former student of Judge Kavanaugh's at Yale, said good teachers and good judges shared important qualities, including civility and intellectual honesty.

"He really didn't like it when you'd try to tear down another argument unfairly," said Mr. Vance, whose wife, Usha Vance, served as a law clerk to Judge Kavanaugh. "He really wanted you to identify the best version of an argument and not assume that your intellectual opponents were all idiots. That goes to how he'll treat litigants. It goes to how he'll treat his colleagues on the bench."

Illegal Arrested for Chainsaw Attack:  An illegal alien deported 11 times since 2005 has been arrested for attacking his wife with a chain saw.  Britiny Mejia of the Los Angeles Times reports that Alejandro Alverez Villegas attacked his wife in their Southern California home on Wednesday with their children inside, then fled in a stolen car.  He was arrested Thursday in Chula Vista.  In addition to attempted murder and car theft, Alverez was charged with hit and run.  He had priors for drunk driving and drug charges.  The wife has been hospitalized with traumatic injuries.  California welcomes illegal aliens, giving them drivers licenses, benefits and even protects them from federal immigration authorities.  Unfortunately, while in jail awaiting trial for trying to kill their mother, Alverez is being forcibly separated from his children.    

Megan Brenan reports for Gallup that the percentage of Americans approving of "the way the Supreme Court is handling its job" is the highest since 2009.

Former Attorney General Michael Mukasey has this op-ed in the WSJ.  He questions both the timing of the indictments of the Russian agents and whether they properly fall in the purview of the special counsel at all.

From my favorite political cartoonist, Michael Ramirez:

More Unrest in Chicago:  A violent protest broke out in Chicago last Saturday night after police shot and killed 37-year-old Harith Augustus during a confrontation.  Rosemary Sobol, Nuccio DiNuzzo, Hannah Leone, and Jeremy Gorner of the Chicago Tribune report that shortly after the shooting, a crowd of roughly 200 gathered in front of the 3rd District Police Station including police reformists, Black Lives Matter organizers, Citizen Police Accountability Council members and independent citizens who said they simply cared that police had shot another black man. Over the course of the next three hours their chants included "No justice, no peace," "Ain't no justice in this town," "How you spell racist? CPD" and "Cops and crime go hand in hand." Legal observers with the National Lawyers Guild wore bright green baseball-style hats, hanging back and keeping an eye on the demonstration.  While the response to the shooting was obviously coordinated and well organized, the perception that the incident was another example of police gunning down an unarmed black man may have been incorrect.  Body-cam video released by the Police Department, made available by ABC Chicago, appears to show Augustus with a pistol in this pants, which he is reaching for as he attempted to run from officers prior to the shooting.  Four officers were injured during the violent protest. 

Bill Cosby filed a certiorari petition in the California defamation case brought by Janice Dickinson.  It is Cosby v. Dickinson, No. 18-70. The certiorari petition with appendices is here.

Another Reason to Secure the Border:  Meth is back.  The powerful, highly-addictive drug that swept across America fifteen years ago sparking a national crackdown, is again readily and cheaply available, killing more people today than at the height of the epidemic in the mid 2000s.  Joshua Sharpe of The Atlanta Journal Constitution reports that after Congress, statehouses and law enforcement shut down meth production in the US and locked up dealers (mass incarceration), drug cartels moved production to Mexico and now smuggle thousands of gallons of a cheaper more potent version of meth into the country.  The product is now so widely available--dealers sometimes give out free samples, and its use is spreading to every demographic.  According to the Centers for Disease Control, from 2005 to 2015 deaths from stimulants, mostly from Meth, has increased by over 250% in the U.S.  Like Fentanyl, which is also killing people at epidemic levels, Meth, guns and trafficked women and children are flowing across the nation's unsecured southern border.     

Judge Strikes Down Panhandling Law:  A federal district judge has ruled that a Sacramento ordinance prohibiting aggressive panhandling in designated places, like ATMs, violates the First Amendment.  Stan Stanton of the Sacramento Bee reports that U.S. District Judge Morrison England, Jr. issued a preliminary injunction against the ordinance, noting that while aggressive panhandling may be "bothersome" to some people, in his view, the law violated a person's right to free speech.  While the correctness of this holding may be determined on appeal, it can be argued that the judge's ruling conflicts with the Supreme Court's 1992 holding in Krishna v. Lee  and the California Supreme Court's 2010 holding in Krishna v. California.  Both of these decisions seem to support content neutral, time, place, and manner restrictions. 

The U.S. Senate today confirmed Brian Benczkowski as head of the criminal division of the Department of Justice, Sadie Gurman reports for the WSJ.

Kennedy and Trump/WH had been in negotiations for months over Kennedy's replacement.  Once Kennedy received assurances that it would be Kavanaugh, his former law clerk, Kennedy felt comfortable retiring, according to a source who was told of the discussions.

Wednesday Execution for Nevada Murderer:  A Nevada man convicted of aggravated murder in 2007 and an earlier murder in Arizona, is scheduled for execution on July 11.  David Ferrara of the Las Vegas Review-Journal reports that two years ago Scott Dozier asked the state judge overseeing his case to allow him to waive his appeals because he wanted to have his sentence carried out.  Dozier's attorneys and the American Civil Liberties Union have petitioned for a stay arguing that state officials have not disclosed how the execution drugs to be used were obtained, and that the state's current three-drug protocol might cause pain.  For his part, Dozier told another reporter Monday that he doesn't really care if he suffers. Critics call his request a bid for state-assisted suicide. 

Incompetency Blocks Anti-Crime Ballot Measure:  A law-enforcement supported ballot measure to modestly roll back some of California's sentencing reforms (read sentencing reductions) has failed to qualify for the 2018 ballot.  The reason was not that the proponents failed to gather enough signatures...they submitted over 570,000 when only 365,880 were required.  It was not because they failed to meet the deadline for turning them in.  As Michele Hanisee, President of the Association of Los Angeles District Attorneys reports, it was because the Registrar of Voters in several counties failed to count the signatures by the state deadline.  How is it that the Registrar for Los Angeles County could verify 176,000 in a few days, while 13 smaller counties including San Diego, Ventura, Contra Costa and San Joaquin could not?  What happens now?  The "Reducing Crime and Keeping California Safe Act" will appear on the 2020 ballot, treating law abiding Californians to two more years of revolving door sentencing for thousands for serious criminals, most of whom cannot even be DNA tested under current law.    

To anticipate our conclusions just briefly, we believe that Catholic judges (if they are faithful to the teaching of their church) are morally precluded from enforcing the death penalty. This means that they can neither themselves sentence criminals to death nor enforce jury recommendations of death. Whether they may affirm lower court orders of either kind is a question we have the most difficulty in resolving. There are parts of capital cases in which we think orthodox Catholic judges may participate - these include trial on the issue of guilt and collateral review of capital convictions. The moral impossibility of enforcing capital punishment in the first two or three cases (sentencing, enforcing jury recommendations, affirming) is a sufficient reason for recusal under federal law. But mere identification of a judge as Catholic is not a sufficient reason. Indeed, it is constitutionally insufficient.

Marc Thiessen has this column in the WaPo, with the above title, reviewing some of the history of how judicial confirmations came to their present state.

TOKYO--The head of a Japanese doomsday cult and six of his followers convicted for deadly gas attacks in the 1990s were executed on Friday, Japan's justice minister said.

Cult leader Chizuo Matsumoto, also known as Shoko Asahara, had been on death row since 2004.

During morning rush hour on March 20, 1995, members of the cult he led, Aum Shinrikyo, punctured plastic bags with sarin nerve gas on three Tokyo subway lines, killing 13 people and injuring more than 6,000.

The Court finds that a law which imposes monetary penalties on an employer solely because that employer voluntarily consents to federal immigration enforcement's entry into nonpublic areas of their place of business or access to their employment records impermissibly discriminates against those who choose to deal with the Federal Government.

*      *      *

Prohibiting employers from reverifying employment eligibility complicates the subjective element of the crime; e.g., could an employer who might otherwise be found to "know" that one of its employees lacks authorization find shelter behind the state law because it could not confirm its suspicion? The law frustrates the system of accountability that Congress designed.