October 2018 Archives

In an impromptu statement October 27 on the Pittsburgh synagogue shootings, President Trump said:
I think one thing we should is we should do is stiffen up our laws in terms of the death penalty. When people do this, they should get the death penalty, and they shouldn't have to wait years and years. Now, the lawyers will get involved, and everybody is going to get involved, and we'll be 10 years down the line. And I think they should stiffen up laws, and I think they should very much bring the death penalty into vogue. Anybody that does a thing like this to innocent people that are in temple or in church -- we had so many incidents with churches -- they should be -- they should really suffer the ultimate price. They should pay the ultimate price. I've felt that way for a long time. Some people disagree with me. I can't imagine why. But this has to stop.

I've felt that way for a long time, too, Mr. President. Now what are you going to do about it? It's been almost two years since your election, and you haven't done anything at all yet, as far as I can tell.

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Mobster "Whitey" Bulger Gets Whacked:  Notorious gangster James "Whitey" Bulger was killed in federal prison Tuesday according to multiple sources, although federal authorities are not yet calling it a murder.  Laurel Sweet and Joe Dwinell of the Associated Press report that Bulger was found dead in his cell one day after his transfer to a maximum security prison in West Virginia.  Bulger was convicted in 2013 of involvement in 11 murders in Massachusetts, Florida and Oklahoma.  In 2011 Bulger was arrested in Santa Moncia where he had been living under an assumed name in a rent-controlled apartment for 18 years.  As the former boss of the lucrative and violent Winter Hill Gang, Bulger cemented his crew's position as the most powerful in Boston by secretly serving as an informant for the FBI from the mid-1970s through the '90s. The deal protected him from prosecution while he gleaned key information about sting operations and rival gangsters.The New York Post is reporting that Bulger was killed by mob hitman Fotios "Freddy" Geas.  Geas has an open hatred for "rats" -- making Bulger a prime target.  According to an unnamed law enforcement source, because he whacked Bulger, Geas is  "a rich man now. He'll run any prison he's in."

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42 Weekend Shootings in Chicago:  Of the 42 people shot in Chicago last weekend, five died including a 16-year-old boy.  Morgan Greene and Elyssa Cherney of the Chicago Tribune report that the weekend leading up to Halloween was the second bloodiest of the year.  As usual the bulk of the shootings were in minority neighborhoods on the West and South sides of the city.  The first fatal attack occurred at 10:30 am Friday in West Garfield Park when a man walked up and shot two young men, killing one 20-year-old, and injuring a 17-year-old.  On Monday there were six more shootings, as reported by the Chicago Sun Times.  One shooting, which involved a man shot multiple times on the Dan Ryan Expressway, shut down the freeway during Monday's rush hour.  As of Monday night, none of that day's shooting victims had died.   

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Oregon Voters to Decide on Sanctuary State:  An Oregon ballot measure will allow voters to decide if the state will remain a sanctuary for illegal aliens.  Andrew Selsky of the Associated Press reports that Oregon became the nation's first sanctuary state to prevent racial profiling by law enforcement, but is was the Legislature, not voters which had made that decision.  Measure 105, which will be voted on next Tuesday, has divided law enforcement, with 16 county sheriffs supporting it and 20 opposing it.   A member of the opposition, Washington County Sheriff Pat Garrett, believes that voting down the law would "degrade community trust in law enforcement."     
In an earlier time, convicted defendants were regularly sentenced to long prison terms with eligibility for parole well before their time was up. Parole came with conditions (like, e.g., don't go back, Jack, and do it again). Parole could be revoked for violation of the conditions, and the violators could be sent back to prison. Because he was going back to serve out some portion of his original sentence for the original crime, the violation did not have to be found by a jury or proved beyond a reasonable doubt.

Congress abolished parole in the federal system, and many sentences now have periods of "supervised release" tacked on as authorized by statute. For persons convicted of possession of child pornography (18 U.S.C. § 2252), the term can be anywhere from five years to life under 18 U.S.C. § 3583(k). Revocation is mandatory upon a new violation, and the minimum new term is five years.

Is this mode of proceeding constitutional under the cases of Apprendi v. New Jersey, Blakely v. Washington, and subsequent cases?

The Tenth Circuit declared the statute unconstitutional in the case of Andre Hammond, a viewer of child pornography who is probably doing it again but who is covering his tracks well enough that a violation was not proved beyond a reasonable doubt. He had deleted his browsing history the day before the probation officers seized his smart phone. I wouldn't be surprised if he deleted it every day.

The Solicitor General petitioned for the Supreme Court to review the Tenth Circuit's decision. On Friday, the Supreme Court took the case up: United States v. Hammond, No. 17-1672.

This is an area where the Supreme Court does not divide on the usual ideological lines. Throughout the Apprendi line of cases, the late Justice Scalia was leading the charge, believing that use of judge-found "sentencing factors" often violated the constitutional right to jury trial as originally understood. That put him on the defense side. Policy wonk Justice Breyer was the leading defender of the mid-80s sentencing reforms, which put him on the prosecution side in these cases.

Watch for oral argument in a few months and a decision before the end of the term in late June or early July.

Bombing Suspect Arrested

The WSJ reports:

Authorities charged a Florida man Friday in connection with the packages containing suspected explosive devices sent to prominent Democrats and outspoken critics of President Trump this week.

Cesar Sayoc, 56 years old, was arrested in the Miami area Friday. Mr. Sayoc, a Trump supporter, is a failed entrepreneur and a former manager of a male revue with a history of arrests.

At a Justice Department press conference in Washington, officials said he would face five federal counts including interstate transportation of an explosive, illegal mailing of explosives and making threats against former presidents. The charges in total carry a potential penalty of 58 years in prison, officials said.

"This is utterly unacceptable. Political violence, or the threat of violence, is antithetical to our vigorous system of self government," Attorney General Jeff Sessions said.

"This is a law and order administration," Mr. Sessions said. "We will not tolerate such lawlessness, especially not political violence."
As hoped, he was indeed inept in avoiding detection and left a fingerprint inside one of the packages.

I am curious about his motivation and intent. Was the uniform failure of any of the devices to explode part of the plan or merely because he wasn't skilled at making them?
Ann Marimow reports for the WaPo:

Supreme Court Justice Ruth Bader Ginsburg blamed the polarization of the nation's judicial confirmation process on a lack of bipartisanship and collegiality in Congress during a public appearance Wednesday in Washington.

Pipe Bombs in the Mail

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Zolan Kanno-Youngs reports for the WSJ:

Packages containing pipe-bomb-type devices addressed to former President Obama, former Secretary of State Hillary Clinton, Rep. Debbie Wasserman Schultz (D., Fla.) and CNN were intercepted by authorities and investigators are looking into whether Democrats are being targeted, federal and local officials said Wednesday.

Update: The WSJ has this editorial Thursday:

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San Francisco to Empty Out Jails:  San Francisco District Attorney George Gascon has received a $2 million grant from the MacArthur Foundation to reduce the city's jail population.  Evan Sernoffsky of the Chronicle reports that pressure to replace the city's dilapidated main jail has sparked an effort to reduce sentences and provide programs to curb recidivism to, as Gascon  suggests, provide "a blueprint to take us into the 21st century."  The city by the bay has been working to thin out its jail population for several years with little success.  An October 1 Chronicle story noted that recently-released FBI data indicates that San Francisco ranks #1 in the nation for property crime, and city-data.com reports that major index crimes in the city are higher than 92.7% of other U.S. cities.  In light of this, emptying out the jails seems like a great idea.   

Paroled Sex Offender Murders Utah Co-Ed:  A 21-year-old University of Utah co-ed was murdered Monday by a 37-year-old sex offender on parole, who later killed himself.  Lucia Suarez Sang of Fox News reports that ex-con Melvin Roland had lied to Lauren McCluskey about his age and his criminal record when they began dating, but she broke up with him on October 9, after learning that he was a sex offender on parole.  A few days later she began reporting to University Police that Roland was harassing her.  On the evening of October 22, Roland shot and killed the girl as she was returning to her apartment after a night class.  The University Police Chief told reporters that they had not responded to her multiple calls for help because they did not know where Roland was living.  His parole officer and the state Department of Corrections knew where he lived but were never contacted by the University Police.  There may be a lesson here.  Call the real cops, not the campus police.

Criminal Victimization, 2016: Revised

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The Bureau of Justice Statistics has released a revision of its 2016 National Crime Victimization Survey results. Here are links to the press release and full report.

The NCVS is different from the FBI's Uniform Crime Reports, better in some ways and not as good in others. As a survey, it does not depend on crimes being reported to police, but it is subject to sampling error. Because respondents are only asked about crime committed against themselves, it does not measure homicides or crimes against children. The indexes are also put together somewhat differently.

The revision shows a smaller bump in the violent crime rate between 2015 and 2016, falling beneath the threshold of "statistical significance." (There's that troublesome sampling error.) The UCR shows a 3.4% increase for the same interval.

The revised NCVS does show a significant increase in violent crimes against males and persons aged 25-34. It's not immediately obvious why there would be a bump in that particular bracket.

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BJS: Police-Initiated Contacts Way Down:  A Bureau of Justice Statistics report indicates that between 2011 and 2015 police-initiated contacts with the public declined by 8 million nationally.  Leonard Sipes writes in Law Enforcement Today that while there is evidence that proactive policing reduces crime, police over the study period appeared reluctant to engage in aggressive law enforcement.  Sipes suggests that the data, which supplements polling from Gallup, reflects police perceptions of citizen support, harsh media criticism and the willingness of officers to take self-initiated actions.  Every form of police-initiated traffic and criminal stops, including arrests, fell during the study period.  It appears that the move to force police to back off has been successful.   

Evidence and the Spousal Privilege

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Jonathan Turley of GWU Law has this article in The Hill on Nellie Ohr's invocation of the spousal privilege and the implications of a broad interpretation of that privilege.

Of Crime and Caravans

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Stephen Dinan reports for the Washington Times:

Homeland Security Secretary Kirstjen Nielsen warned Sunday that the illegal immigrant caravan heading toward the U.S. could be exploited by cartels that control most of the illegal flow of people through Latin America.

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CA Sex Offenders, 3rd Strikers Get Early Release:  After repeated promises by Governor Jerry Brown that violent habitual felons and sex offenders would not get early release under his Proposition 57, it has become apparent he was either lying or did not know what was in the initiative he championed in 2016.  Don Thompson of the Associated Press reports that while District Attorneys warned that third strikers and sex offenders would become eligible for early release under Brown's sentence reduction initiative, proponents, including the Governor, denied this would happen.  Last February the Los Angeles Times reported that Sacramento Superior Court judge Alan Sumner had ruled that the initiative's wording allows thousands of sex offenders to qualify for early parole.  Last month a three-judge panel of the Second Appellate District in Los Angeles announced that third-strikers must be included for early release under Proposition 57's constitutional amendment.  Governor Brown has decided not to appeal that ruling.  The Department of Corrections and Rehabilitation estimated that up to 4,000 criminals with violent and serious felony priors will be eligible for early release.  A corrections spokesperson assured reporters that there will be "rigorous public safety screenings..." involved in the decision to release inmates.  Yeah right.

Missing Data

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The FBI's Uniform Crime Reports are the basis of a great deal of the research on crime. But there are problems, Jo Craven McGinty reports for the WSJ:

In any given year, more than 18,000 U.S. police agencies are asked to submit crime data to the FBI. But some don't provide complete information or, in some cases, any information at all.

When that happens, the Federal Bureau of Investigation uses crude estimates to account for the missing data. Those figures are then used to generate "Crime in the United States," an annual tally of violent and property crimes that is a quality-of-life measure as well as a gauge of criminal justice policies and spending.

*      *      *

Other experts believe, at minimum, the FBI should use a more sophisticated system for generating estimates.

Two decades ago,  the Bureau of Justice Statistics, a unit of the Justice Department, published a 78-page paper critiquing the FBI's procedure and recommending ways to improve it.

"So far, nothing has come of it," said Michael D. Maltz, the criminologist who wrote the paper and is now a researcher at Ohio State University's Criminal Justice Research Center.

Musical Circuit Justice Chairs

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As usual when a new Justice joins the Supreme Court, the Court has issued a new order assigning Circuit Justices. Circuits D.C.* and 1-5 are unchanged, as are 8, 10, 11, and Fed.

Justice Kagan previously had the Sixth and Seventh, from Tennessee to Wisconsin. Now she gets the massive Ninth, which the Chief had taken temporarily while Justice Kennedy's chair was vacant.

Justice Sotomayor gets the Sixth in addition to her previously assigned Tenth. Justice Gorsuch keeps the Eighth, but I wouldn't be surprised to see him reassigned to his home Tenth a few years down the road, when all the cases he participated in have flushed out of the system.

Justice Kavanaugh is assigned the Seventh: Illinois, Indiana, and Wisconsin.

So why does any of this matter?
When opponents of the death penalty argue for its abolition, they routinely promise an unconditional guarantee that the people who would have been executed will never be released. For example, the ballot argument in favor of California's 2016 Proposition 62 said, "Under Prop. 62, the death penalty will be replaced with a strict life sentence. Those convicted of the worst crimes will NEVER be released."

But it's a fraud. I have long warned that if the death penalty is permanently taken off the table on Tuesday the drive to abolish life without parole (LWOP) begins on Wednesday. We have already seen this in the case of the 17-year-old murderers. When the Supreme Court banned death sentences for under-18s in 2005, it assured the American people that life without parole would remain. Within seven years that promise was forgotten, and in Miller v. Alabama the Court made it as difficult as it could to sentence murderers short of their eighteenth birthdays to life without parole, without banning that punishment altogether.

Yesterday, the Washington Supreme Court, fresh from its atrocious opinion barring the death penalty, took the last step that even the Miller Court would not take, barring life without parole for under-18 murderers altogether.  The case is State v. Bassett, No. 94556-0. This time, at least, there is a dissent. The decision is 5-4.

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More Accidents in Legalized Pot States:  A study released by the Insurance Institute for Highway Safety reports that traffic accidents have increased in states which have legalized recreational marijuana.  Ryan Beene of Bloomberg News reports that after legalization, the number of collision insurance claims increased by 6% in Colorado, Nevada, Oregon and Washington compared to nearby states where pot remains illegal.  A separate  IIHS study found a 5% increase in the rate of accidents reported to police in Colorado, Oregon and Washington compared to neighboring illegal pot states.  Research also indicates a sharp increase of  drivers mixing drugs and alcohol in legalized pot states, with marijuana being the most commonly drug used.  

California's Secretary of State reports that the initiative to require a vote in 2021 on whether California should secede from the Union has failed to achieve the requisite number of signatures by the deadline.

Will they try again? Tomorrow is another day.


The initiative on splitting California into three states -- an intriguing idea botched by incompetent line-drawing -- was taken off the 2018 ballot pending review by the California Supreme Court. The proponent then dropped his opposition to the case, effectively stipulating to taking it off future ballots permanently. See Planning and Conservation League v. Padilla (Draper), No. S249859.

Nielsen v. Preap Argument

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Last Wednesday, the U.S. Supreme Court heard oral argument in the case of Nielsen v. Preap. The case concerns interpretation of a provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 relating to the arrest and detention of aliens who commit "aggravated felonies," as defined in immigration law or who are inadmissible for reasons such as connection with terrorist organizations.

CJLF filed an amicus brief in the case. The argument transcript is available on the court's website. The Federalist Society has a podcast on the argument by CJLF Legal Director Kent Scheidegger.
Joel Shannon has a report in USA Today titled: Witches plan to hex Brett Kavanaugh using effigies, coffin nails, graveyard dirt and more

Where is Hermione Granger when we need her?

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$$$$ Plan to Reduce Inmate Overdoses:  The special master appointed by federal judges to oversee California's prison healthcare system is recommending that the state spend over $250 million in tax dollars to wean inmates of drug addiction.  AP writer Don Thompson reports that former law professor J. Clark Kelso is urging the state to give roughly 13,000 drug addicted inmates alternative drugs to reduce their craving for opioids.  Kelso estimates that 8 of every 10 CA prison inmates have an addiction problem.  Last year 39 inmates died of drug overdoses.  CJLF Legal Director Kent Scheidegger noted that perhaps stopping the flow of drugs into state prisons should be the first priority.
Gavin Newsom is presently the Lieutenant Governor of California. He was previously the Mayor of San Francisco. Absent a major miracle, he will be the next Governor of California. One can hope that he has some degree of sense regarding crime and public order rather than being completely overboard on the soft-on-crime side.

Matier and Ross have this column in the SF Chron:

Former Mayor and Democratic gubernatorial candidate Gavin Newsom says San Francisco has become "too permissive" when it comes to open drug use and other bad behavior on the city's streets.

"People shooting up on the streets and sidewalks, where kids are in strollers, is not acceptable -- it's just not," Newsom said during a visit to The Chronicle's editorial board last week.

Newsom, who served as mayor for seven years before being elected lieutenant governor in 2011, has been attacked by GOP opponent John Cox for his leadership in San Francisco, a city that has drawn attention for homelessness, feces littering the streets and blatant drug use.
In any other context, one might shrug and say, "well, yes, that unacceptability is completely obvious," but this is San Francisco.
Andre Byik has this article with the above title in the Chico (CA) Enterprise-Record.

It wasn't a violent or particularly noteworthy crime but for the brazenness with which it was carried out, and that didn't sit well with Chico's police chief, Mike O'Brien.

The police said it went like this. A man, 43-year-old William Emis, walked into the Liquor Bank convenience store last month in downtown Chico, allegedly grabbed a $2 beer and, while he was walking out of the store, told the clerk to call the cops on him because he wasn't paying for the booze.

*      *      *

During the encounter, Emis was incredulous that police would take the time to transport him to the county jail in Oroville. Emis, police said, believed, not without reason, that he would be cited and released on the spot because his alleged theft was a misdemeanor offense.

*      *      *

Law enforcement officials and prosecutors say multiple factors have changed the way people suspected or convicted of misdemeanor crimes -- such as petty theft and vandalism -- are supervised and punished, leading to cases in which some offenders know there will be little consequence for habitually committing petty crimes.

O'Brien said the "three-headed monster" comprising Assembly Bill 109 (prison realignment), Proposition 47 (reclassification of certain offenses from felonies to misdemeanors) and Proposition 57 (additional parole opportunities) have undermined community safety and impacted property crime.

Filling USCA and USDC Vacancies

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The headlines lately have been filled with the battle of the U.S. Supreme Court vacancy, but the vacancies on the circuit and district courts also matter. I have noted here more than once the excessive delay in filling vacancies on the notorious Ninth Circuit, in particular.

The WSJ has this editorial noting an agreement between the Senate's majority and minority leaders:

Majority Leader Mitch McConnell announced Thursday afternoon that the Senate would vote on the 15 nominees by the end of the evening. Three nominees are for appellate courts--one each for the Second, Third and Ninth Circuits. That would put the total of appellate judges confirmed at 29 in the last two years--a modern record for the first two years of a Presidency.
Meanwhile, back on the Left Coast, California's senators are deeply unhappy with President Trump's announcement of three nominees for the Ninth Circuit. Sarah Wire reports for the LAT:

Sens. Dianne Feinstein and Kamala Harris complained Thursday that they did not sign off on three White House nominees for open California seats on the 9th Circuit Court of Appeals and said they would oppose their confirmation in the Senate.

President Trump announced Wednesday evening he had nominated Assistant U.S. Atty. for the Southern District of California Patrick J. Bumatay, Los Angeles appellate attorney Daniel P. Collins and Los Angeles litigator Kenneth Kiyul Lee for California-based vacancies.

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Sixth Circuit Stays Tennessee Execution:   In an eleventh-hour ruling, a divided panel of the federal Sixth Circuit Court of Appeals has stayed today's execution of double-murderer Edmund Zagorski.  Adam Tamburin of the Tennessean reports that yesterday's ruling came after a federal district judge denied Zagorski's request for delay to allow a review of his ineffective assistance of counsel claim.  The appeals court determined that the claim needed further review.  Earlier this week, Zagorski's request to be executed in the electric chair rather than by lethal injection was denied because he missed the required deadline to make it.  Zagorski was convicted on strong evidence of leading two men into the Tennessee woods in 1983 to sell them drugs.  He instead slit their throats and stole their money and pickup truck.  The U.S. Supreme Court could decide to lift the stay.   Update: The Supreme Court lifted the stay, Justices Breyer and Sotomayor dissenting. Governor Haslam granted a reprieve to accommodate Zagorski's request for the electric chair. The Tennessean reports on the twists and turns.

WA High Court Strikes Down Death Penalty:  In a unanimous opinion announced today, the Washington Supreme Court ruled that the state's death penalty violates the state constitution.  Pete Williams of NBC News reports on the court's holding that the death penalty is applied unequally and does not serve "any legitimate penological goal."  The ruling comes four years after the state's governor imposed a moratorium on executions.  The ruling overturned the death sentence of Allen Eugene Gregory for the brutal 1996 rape, robbery and murder of a Tacoma waitress.  Gregory's guilt was not disputed by the court.  The ruling converts the death sentences of the state's previously condemned murderers to life.   A well researched piece by Jerome Woehrle breaks down the fallacies of the court's conclusions. 
There is a two-step strategy to let more drug dealers out of prison. First, convince the people that prison overcrowding is caused by locking up large numbers of harmless, otherwise-law-abiding people for mere possession of marijuana for personal use. Second, take polls that ask people how they feel about tough sentencing for "non-violent drug offenders." When large majorities say they are against such toughness, having answered with personal-use defendants in mind, wave that around as public support for springing the dealers.

The "non-violent" part really grates on me. Can we assume that the leader of drug-dealing gang is "non-violent" merely because he has never been convicted of a violent offense? We know what happens to people who testify against gangsters.

The Foundation for Safeguarding Justice is an organization started by the National Association of Assistant United States Attorneys. The federal prosecutors know who they are really seeking prison sentences for, and they are justifiably horrified at proposals based on false premises. They commissioned a survey that asks people how they feel about going soft on drug traffickers rather than using the misleading term "non-violent drug offender."

It is not hard to guess the results of the change when the wording reflects the real issue of traffickers in "hard" drugs.

Motor Voter Meltdown

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In California, willfully registering an ineligible voter is a crime. See Elections Code § 18100. On the other hand, negligently registering ineligible voters by the thousands is done by the government itself.

Bryan Anderson reports for the Sacramento Bee that the state's motor voter program is such a wreck that an emergency halt is being considered:

California launched the Motor Voter program on April 23, which automatically registers and pre-registers eligible voters when they go into a DMV office to complete a driver's license, state ID or address change transaction.

The DMV reported last month that it made 23,000 voter registration errors resulting from technicians toggling between multiple screens and having registration information improperly merged. In May, the Los Angeles Times reported that a software error affected 77,000 voter records generated at the DMV.

On Monday, the DMV said about 1,500 people were improperly registered to vote, some of whom may not be citizens. Padilla said his office immediately removed all 1,500 people from the voter rolls. In a letter to the DMV, he called for the agency to hire an independent third-party to conduct an audit.

Live TV for SCOTUS Arguments?

The Senate Judiciary Committee hearings on Justice Kavanaugh were disrupted by protesters.

The Senate floor vote on Justice Kavanaugh was disrupted by protesters.

Justice Kavanaugh's first day hearing oral arguments was not disrupted by protesters, as some had feared it might be.  See this post by Mark Walsh at SCOTUSblog.

Why the difference? Some might say that after the confirmation vote it no longer made a difference, but I do not believe that the disruptive protesters were actually there to make a difference in the outcome.

I think the difference is that the Senate proceedings were video-broadcast live and the Supreme Court proceedings were not.
The Supreme Court of Tennessee yesterday rejected a challenge to that state's current lethal injection protocol, which is largely the same as the one upheld by the U.S. Supreme Court three years ago in Glossip v. Gross.

On the issue of whether the single-drug method with pentobarbital is an available alternative method for the purpose of the Glossip standard, the court noted that it is not because it is presently not available.

As the U.S. Supreme Court noted in Glossip (slip opinion page 4), the reason the preferred drug is not available is that "anti-death-penalty advocates pressured pharmaceutical companies to refuse to supply the drugs used to carry out death sentences."

The case is Abu-Ali Abdur'Rahman, et al. v. Tony Parker, et al., No. M2018-01385-SC-RDO-CV. The opinion is by Chief Justice Bivens, with one justice dissenting.

Edmund Zagorski is set for execution Thursday, and David Miller is set for execution December 6. 

Dissenting Justice Sharon Lee decries the "rush to execute." Zagorski was sentenced to death thirty-four years ago.

Update:  Adam Tamburin reports for the Tennessean that Zagorski has chosen the electric chair, which is Tennessee's alternative method. It was last used in 2007.

Zagorski was convicted in 1984 of killing two men in Robertson County. He shot them, slit their throats and robbed them after luring them into the woods by promising to sell them a large amount of marijuana.
Choosing the alternative method waives the right to challenge it. See Stewart v. LaGrand, 526 U.S. 115 (1999).
Today's News Scan noted Michele Hanisee's post for the Los Angeles Association of Deputy District Attorneys regarding Cal. Gov. Jerry Brown's signing of SB 1391. As Sacramento Bee columnist Marcos Bretón explained last month, this ill-considered legislation exempts everyone under 16 from transfer to adult court even for the more depraved offenses.

Note how the calls for individualized consideration switch on and off depending on which way the default rule falls. In capital sentencing, sentencing of juveniles, and transfer of juveniles to adult court, we are first told that consideration of individual circumstances is essential to justice -- when the alternative is the harsher option -- and then we are told that a bright-line rule is essential when that line is drawn on the more lenient side.

I believe that a strong argument can be made that SB 1391 is invalid as an unauthorized amendment of Proposition 57. Stay tuned.

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Illegals Charged With Rapes:  An illegal alien from El Salvador has been charged with the September 28 beating and rape of a 36-year-old Long Island woman.  Robert Gearty of Fox News reports that Ever Martinez Reyes was arraigned on Saturday and is being held without bail on rape, sexual assault and assault.  Reyes had entered the U.S. illegally in 2010 as was deported.  He reentered the country in 2014.  The victim, a mother of two, was attacked as she was walking to her home.  Reyes knocked her out and began raping her, when she awoke, he knocked her out again and continued the assault.  He was caught on surveillance video following the victim.  Another illegal alien from Honduras has been charged with the September 29 rape of a woman in a Lake Charles motel.  Brian Richard of KATC reports that Osman Alvarado-Martinez has been booked on rape charges and is being held on $250,000 bail.  He is also being held on a Federal Immigration Detainer. 

CA Juvenile Law Ignores Victims:  On September 30, CA Governor Jerry Brown signed Senate Bill 1391, which eliminates the ability to try defendants under the age of 16 as adults and sentence them to prison. Previously, prosecutors could request to transfer 14- and 15-year-olds to adult court if they were charged with a serious offense, such as murder, arson, robbery, rape or kidnapping.  A post released today by Michele Hanisee, head of the Los Angeles Deputy District Attorneys Association, describes what this new law means to victims who have been brutalized by the worst juvenile offenders.  She notes that it is quite rare for a defendant under 16 to be tried as an adult, but that in some cases there should be no alternative.  The proponents of this bill described these defendants as "children."  Read about the rape Ms Hanisee describes and decide if that description is accurate. 

Read more here: https://www.sacbee.com/news/politics-government/capitol-alert/article219287990.html#storylink=cpy

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SF a Sanctuary City for Drug Dealers:  An article in today's New York Times by Thomas Fuller describes the squalor on the streets of the once beautiful City by the Bay; "The heroin needles, the pile of excrement between parked cars, the yellow soup oozing out of a large plastic bag by the curb...For many who live here it is difficult to reconcile San Francisco's liberal politics wiht the misery that surrounds them."  One of the policies contributing to this is the fact that there are no longer any consequences for drug dealers or drug users in the city.  As reported by Heather Knight of the San Francisco Chronicle, the city has become a sanctuary for dealers, and cannot afford anything close to the resources necessary to treat addicts.  "It's almost impossible to get convicted in this city,"  noted one officer in the narcotics division.  Dealers routinely sit in chairs in front of one non-profit for the homeless near the city library and sell drugs while nobody bothers them. The Mayor's answer is to offer the dealer's jobs, which sounds really nice.  The problem according to police is that most dealers don't live in the city...they commute on BART from Oakland and Richmond to sell drugs in a protected environment.  This is the logical result of California's Proposition 47, which turned most street dealers into misdemeanants, and San Francisco's apparent willingness to tolerate virtually anything.    

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Feds Prosecuting CA Gun Criminals:  After multiple "sentencing reforms" that have reduced the incarceration of thousands of serious criminals in California, the Sacramento District Attorney has partnered with the U.S. Attorney to have more criminals with guns prosecuted in federal court.  Sam Stanton of the Sacramento Bee reports that last year the U.S. Department of Justice revived the 2001 Project Safe Neighborhoods, which had not been a priority of the Obama Administration.  One of the program's focuses is to increase federal prosecution of repeat felons with firearms.  Like drug crimes, illegal possession of firearms can be prosecuted  under either state or federal law.  The federal sentence for a conviction is much more severe than under California's defendant-friendly sentencing laws.  The program has led to over 200 federal prosecutions of gun criminals in the Sacramento area over the past year.  

Circularity

The 2πR Award for Circularity this week goes to Senate Minority Leader Charles Schumer, who said that Judge Brett Kavanaugh should not be confirmed because his testimony showed he has "deep resentments."

With this innovation, we now have a foolproof way to derail almost any judicial nominee whom one opposes for other reasons. Just treat him or her so badly that any person capable of normal human feelings would be justifiably and deeply resentful, and then vote the nominee down on the basis of those resentments. Brilliant.

To counter this strategy, the Administration would have to nominate complete stones with no feelings. Um, do we really want that?

News Scan

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Double-Murderer Faces Oct. 11 Execution:  A Tennessee man who brutally murdered two people in 1983 is scheduled to be executed by lethal injection next Thursday.  Dave Boucher of the Tennessean reports that Edmund Zagorski's execution has been delayed before, but this time his plea to the Governor and court petitions are unlikely to spare him.  The crime occurred in HIckman County, Tennessee when a tavern owner and a friend followed Zagorski into the woods to buy 100 lbs. of marijuana he claimed to have hidden.  After Zagorski shot both victims and slit their throats, robbed them and stole one victim's new truck, he  fled to Ohio, where he injured several officers during a shootout with police.  His lawyer claims that after his arrest, Zagorski was deprived of an attorney during initial questioning, subjected to brutal living conditions, and has rehabilitated himself.  It will be Tennessee's second execution in almost ten years. 
Amy Howe has this report at Howe on the Court on the Supreme Court argument in Madison v. Alabama, No. 17-7505. She believes that Madison may eke out a win on narrow grounds.

The case has been widely described as presenting the question of whether a person can be executed for a crime he does not remember. Counsel for Madison quickly conceded that he was not seeking a rule anywhere near that broad. That's good, because a rule that broad would be a disaster.

Goodies for Crooks in the Fine Print

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James Coll reports in the City Journal how New York politicians cleverly wrote an ostensibly anti-corruption ballot measure so that corrupt pols often keep their government pensions while in the slammer.

Sheldon Silver was due to begin his seven-year sentence this week for violating the law, the public trust, and the responsibilities of his office as assembly speaker--a position he occupied for 21 years. Though a federal judge has stayed his entry date while Silver appeals his conviction, many New Yorkers are justifiably pleased to see Silver heading off to jail, viewing his conviction as a long-overdue draining of the Albany swamp. With recent convictions of other top players in state politics, it appears that New York may have begun to clean itself up.

But while Silver is eventually going to prison, he won't lose a single taxpayer-funded pension paycheck of $6,602 per month, even while serving his time behind bars. And in spite of his own federal conviction, former New York Senate Majority Leader Dean Skelos also continues to receive a $95,831 annual pension, courtesy of New York taxpayers. If this makes you angry--as it should--it might further upset you that these ill-gotten pensions could have been eliminated if our elected lawmakers had done their job properly during the most recent legislative session.

Last November, New York voters passed by a nearly two-to-one margin a state constitutional amendment known as Proposal #2. The common reading of the proposal, and the one most people thought that they were voting for, was that it would punish legislators convicted of felonies by stripping away their pensions. In reality, lawmakers wrote an amendment with enough poison pills to ensure that even when they lose, they win.

News Scan

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Soros Funding Anti-Kavanaugh Protesters:  Robert Gearty of Fox News reports that the two women who accosted Senator Jeff Flake in the Capitol Hill elevator to shame him into voting against Brett Kavanaugh's nomination were from the Center for  Popular Democracy, a group funded by progressive hedge fund billionaire George Soros.  Days later three women from the same group harassed Senate Leader Mitch McConnell at the Reagan Airport, and Senator Bob Corker at the same airport Monday.  The Center received $1.5 million from Soros' Open Society Foundation last year.  The Foundation also gave $1.2 million to a sister organization, Center for Popular Democracy Action, which put the screaming protesters in the Kavanaugh hearings last month.  Anti-Kavanaugh television ads currently running were purchased by a group called Demand Justice, which is also funded by Soros.  

The Mitchell Memo

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Arizona prosecutor Rachel Mitchell, retained by the Senate Judiciary Committee majority for the Kavanaugh/Ford matter, submitted this memo to the majority on Sunday, titled "Analysis of Dr. Christine Blasey Ford's Allegations." I will just make it available here without comment.

Update: Marc Thiessen has this column on the memo in the WaPo.

Party Like It's 1935?

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Matthew Cavedon and Jonathan Skrmetti have this article in the Federalist Society Review on Gundy v. United States, being argued today. They note that it is remarkable that the Supreme Court has taken a case on the delegation doctrine. That is a doctrine of constitutional law that was front and center in the epic battle between FDR and the Supreme Court during the Great Depression but has barely shown its face since.

I would add that it is even more remarkable that this doctrine comes up in a criminal case. Historically it has come up in commercial regulation cases. It seems that when Congress passed the Sex Offender Notification and Registration Act (SORNA) it completely punted the thorny retroactivity issues to the Attorney General. Can they do that?

Why did the Court take it up? Does it really want to breathe new life into this musty doctrine? One factor that may have motivated the Court is the same one that weighed in the balance here at CJLF in our decision not to file in this case: Gundy really got shafted here.

However bad Gundy's prior offenses might have been, he has served his time for them. Now he gets a new conviction for failure to register under circumstances where a regular Joe would have believed he was doing everything the law required. See the article for details. Fortunately, he is not facing additional prison time; he was sentenced to time served and supervised release, but even so it does not seem right.

The Border Shooting Case Returns

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In its term two years ago, the U.S. Supreme Court considered two cases involving suits for allegedly wrongful uses of force against noncitizens. Back in the 1970s, the Court had created civil remedies for constitutional violations by federal government officers, but later cases have uniformly declined to extend that line to new contexts.

Ziglar v. Abbasi, No. 15-1358, declined to extend the Bivens line to the case of  aliens detained in New York on suspicion of terrorism. The Court decided not to decide this issue in the second case, that of a border patrol agent who shot a teenage boy across the border. The agent was in El Paso, Texas, and the boy and others with him were in Juarez, Mexico. That case was Hernandez v. Mesa, No. 15-118. The Supreme Court remanded the case to the Fifth Circuit Court of Appeals to reconsider the Bivens issue in light of Abbasi.

It did not seem like a hard case on remand, given Abbasi's strict approach to extending Bivens and its endorsement of leaving issues involving foreign affairs to the elected branches.  Sure enough, the Fifth decided 13-2 in favor of Agent Mesa.

Today the Court asked for the views of the Solicitor General. That makes sense. It presently only has the brief of Agent Mesa's private counsel in opposition to the certiorari petition, and the interest of the government in foreign affairs is an important factor under Abbasi.

CJLF filed an amicus brief in support of Agent Mesa the first time, and we probably will again if the Court grants certiorari. They shouldn't, though. The Fifth Circuit opinion is correct. With Bivens, as with many dubious opinions of the 60s and 70s, the Court does not necessarily need to overrule it, but it should freeze it in place and not extend it.
As usual, the U.S. Supreme Court opened its term with a long list of cases it declined to take up at its conference a week earlier. Here are some that we were watching:

Davis v. Mississippi, No. 17-1343. The defense sought to further extend the restrictions on sentencing of under-18 murderers that the Supreme Court has  discovered in the Eighth Amendment in recent years. With the champion of that effort retired, it is not surprising that they turned this one down. Hopefully when the empty seat is filled we can make some progress on rolling these pseudoconstitutional restrictions back.

Garvin v. New York, No. 17-1320 had two questions. One was a Fourth Amendment warrant-requirement question regarding arrest of a person in the doorway of a home by an officer standing outside. The second was an attempt to extend the Apprendi requirement of jury fact-finding to a discretionary sentencing issue based on wide-open information on the defendant's background.

Johnson v. United States, No. 17-1349 challenged as pretextual a stop of a motorist for a parking violation and questioned whether Whren v. United States (1996) extends that far.

Kelley v. Florida, No. 17-1603 challenged the decision of the Supreme Court of Florida not to extend retroactivity of Hurst v. Florida (2016) to cases final on appeal before Ring v. Arizona (2002). I think it is quite clear that federal law does not require retroactively to cases final on appeal before Hurst itself. But because Florida did extend retroactivity 14 years longer than it needed to, it must extend it to everybody? The "unequal treatment" argument was Justice White's objection to Griffith and Teague drawing the line at finality on appeal back in the 80s, but he did not prevail and came to accept the new regime in Penry. This is water long under the bridge.

News Scan

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CA Weakens Felony Murder Rule:  Governor Jerry Brown signed a bill into law Sunday which will prevent most accomplices from conviction for murder during the commission of a felony.  Jazmine Ulloa of the Los Angeles Times reports that SB 1437 will require proof of intent to commit murder in order to charge a non-shooting accomplice for the death of someone killed during the commission of a felony such as drive-by shooting, rape, robbery or burglary.  The law also provides that accomplices previously convicted under the old law can petition for early release from prison.  Defense attorneys welcomed the new law, while law enforcement groups claim that more violent criminals, such as gang members who participate in drive-by shootings will benefit from it.  

UPDATE:  Michelle Hanisee, head of the LA Deputy District Attorneys Association, has this post on the bill, which also eliminates the "natural and probable consequences doctrine." 

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