June 2019 Archives

In the roughly 8 1/2 years since California lawmakers embarked on an historic sentencing reform campaign, homicides in the state's county jails have increased by 46%.  Alyssa Hodenfield and John Walker of the Sacramento Bee report that the state's effort to eliminate prison overcrowding has transformed jails into violent and overcrowded mini-prisons with neither the resources, training, or the facilities to serve the influx of hardened repeat felons no longer eligible for prison.  In October of 2011, Governor Brown's "Public Safety Realignment" law, AB 109, took effect.  The law shifted sentences for habitual property and drug offenders from prison to county jails, requiring jails originally designed to hold drunks and petty thieves for a year or less to accommodate habitual drug dealers, wife beaters, car thieves, and commercial burglars for years rather than months.  While the state has classified these offenders as low risk for violence, many are violent, gang-affiliated criminals.  The article cites a study by the Public Policy Institute of California that AB 109 has not had an effect on public safety, although the FBI Uniform Crime Report has shown increased violent crime in California for 2015, 2016, and 2017.  This is the first three-year increase in violent crime since 1992.  Also, as noted in earlier posts, thousands of property crimes converted to misdemeanors by Proposition 47, are no longer reported to police, meaning while the overall crime rate (violent+property) appears slightly lower, this is a false indicator.

Six Justices joined Justice Breyer's opinion today in Rehaif v. United States, a 12-page ruling overturning the conviction of an illegal alien in possession of a firearm.  The court held that while defendant Hamid Rehaif was indeed in the country illegally and did possess firearms, he may not have known his immigration status or that it was unlawful for an illegal alien to possess firearms. After acknowledging that "The Court of Appeals believed that the criminal law generally does not require a defendant to know his own status, and further observed that no court of appeals had required the Government to establish a defendant's knowledge of his status in the analogous context of felon-in-possession prosecutions," (emphasis added), the Court cites 18 U.S.C. § 924(a)(2) which states, "Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10, years, or both."  Section 922(g) specifies that it is unlawful for an illegal alien to possess a firearm. From this, the Court announced that the prosecution is required to prove that a defendant knew both his status and that he possessed a gun. In a dissent, Justice Alito, joined by Justice Thomas, notes that the majority's holding "overturns the long-established interpretation of an important criminal statute, 18 U.S.C. § 922(g), an interpretation that has been adopted by every single Court of Appeals to address the question. That interpretation has been used in thousands of cases for more than 30 years."

Confirming that we never should have taken this case, the Court almost entirely ignores--and certainly does not refute--the race-neutral reasons given by the State for striking Wright and four other black prospective jurors. Two of these prospective jurors knew Flowers' family and had been sued by Tardy Furniture-- the family business of one of the victims and also of one of the trial witnesses. One refused to consider the death penalty and apparently lied about working side-by-side with Flowers' sister. One was related to Flowers and lied about her opinion of the death penalty to try to get out of jury duty. And one said that because she worked with two of Flowers' family members, she might favor him and would not consider only the evidence presented.

SCOTUS To Hear Death Penalty Challenge:  The U.S. Supreme Court has agreed to review the death penalty case of McKinney v. Arizona next term.  Jordan s. Ruban of Bloomberg Law reports that attorneys representing double-murderer Erin McKinney believe that because his 1993 sentencing did not comply with the Supreme Court's 2002 decision in Ring v. Arizona and that the sentencing jury did not consider McKinney's abusive childhood, he is entitled to be resentenced.  In March 1991, McKinney and his half-brother burglarized the home of Christine Mertens.  During the burglary McKinney beat Mertens, stabbed her several times then held her face down on the floor while shooting her in the back of the head.  Two weeks later the brothers burglarized the home of Jim McCain, shooting him in the back of the head while he slept in his bed.   

Teen Usage Up in Legal Pot States:  One of the most repeated promises from legalized marijuana advocates has been that allowing the government-regulated sale of the drug will assure that children do not have access to it.  Jennifer Oldham of the Washington Post reports that in the first two states to legalize recreational pot, parents, educators and physicians report that teen usage has increased with often devastating results.  In the Denver area, visits to Children's Hospital Colorado facilities for treatment of cyclic vomiting, paranoia, psychosis and other acute cannabis-related symptoms jumped to 777 in 2015, from 161 in 2005.  A 2018 study by the Journal of Adolescent Health determined that surveys finding that pot use among children has not changed much since 2014, may not reflect the impact of legalization on adolescent health.  Washington's latest Health Youth Survey found that 20% of eighth graders and nearly half of high school seniors consider marijuana to be a low risk activity, although medical and mental health professionals say the impact of high potency pot and edibles is doing major damage to adolescent brains.  "I hope we don't lose a generation of people before we become clear we need to protect our kids' brains," said an adolescent medicine specialist at Seattle Children's Hospital.  But there is a trade off.  Washington raked in $358 million and Colorado reported $266 million in government revenue from pot sales in 2018. 

A recurring issuing in the law of federal habeas corpus is whether and when a federal court can hold an evidentiary hearing because it is dissatisfied with the fact-finding in the case by the state court. The U.S. Supreme Court declined to resolve a circuit split on this issue, denying certiorari in the Illinois case of Brookhart v. Lee, No. 18-1197 and the Arizona case of Apelt v. Ryan, No. 18-8386.

Progressive political activists allege that tech companies have inflated housing costs and forced middle-class people onto the streets. Declaring that "no two people living on Skid Row . . . ended up there for the same reasons," Los Angeles mayor Eric Garcetti, for his part, blames a housing shortage, stagnant wages, cuts to mental health services, domestic and sexual abuse, shortcomings in criminal justice, and a lack of resources for veterans. These factors may all have played a role, but the most pervasive cause of West Coast homelessness is clear: heroin, fentanyl, and synthetic opioids.

Soros Money Flips Virginia CA Elections:  Progressive democrat primary candidates for Commonwealth Attorney (CA) in Arlington and Fairfax Counties in Virginia beat the less progressive incumbents thanks to big bucks from large out-of-state billionaire George Soros.  Adam Shaw of Fox News and the Associated Press report that neither Soros-backed candidate for the top prosecutor job in those counties has ever prosecuted a case in a state court, while the incumbents had 60 years of experience between them.  While both counties are quite liberal, both incumbents, Theo Stamos and Raymond Morrough, opposed giving voting rights to felons.  Along with sentencing reform (read sentencing reduction), both Soros-backed candidates Parisa  Dehghani-Tafti and Steve Descano supported felon voting.  Dehghani-Tafti's campaign received $583,000 from the Soros-funded Justice and Public Safety PAC, while Descano received $392,000.  This is huge money for a county prosecutor's race. The Stamos and Morrough campaigns raised a total of $162,000 and $242,000 respectively.  Over the last two election cycles, Soros has spent millions of dollars to purchase elections for pro-defendant progressives as District Attorneys and Sheriffs in California, Florida, Illinois, Mississippi, Louisiana, Pennsylvania, Texas, and New Mexico.     

It takes lots of marijuana to make 1 billion joints, but that's how much pot Oregon has on hand right now--enough to supply the state's marijuana "needs" for six years, even if production stopped right now. The vast oversupply is causing worries that growers, who have made huge investments in their business ever since Oregon legalized recreational marijuana use five years ago, will turn to the black market to dispose of inventory. That, state authorities fear, could lead to new federal enforcement in Oregon--prosecutors busted a black-market ring there last year. To stem the excess, Oregon is moving to deny new licenses to growers, but the state will likely have to take away some current licenses, too, or watch some growers go bust, before the problem disappears.

Campaign contribution data for the last two months made public by the Virginia Board of Elections this Monday has shown an eye-popping $583,237 has donated by a nebulous "dark money" Washington, D.C.-based source to a challenger in the June 11 primary in the race for Arlington-Falls Church Commonwealth's Attorney.

According to the Washington Post, the money comes from billionaire George Soros, who has also lobbed another whopping $392,000 into Fairfax County in an effort to unseat the incumbent commonwealth attorney there.

Leaders of the notorious Aryan Brotherhood prison gang were indicted in Federal Court Thursday for ordering killings, smuggling drugs, cigarettes and cell phones.  Stan Stanton of the Sacramento Bee reports that the charges are the result of a years long investigation by federal authorities into the gang's activities both in and outside of California prisons. Wiretaps monitored over 1,800 phone calls during the investigation disclosing orders from the gang's leaders for killings, and allowing agents to warn some of the targets before they became victims.  Among the 16 gang members indicted by U.S. Attorney McGregor Scott were two of the gang's leaders, both serving life terms for murder.  Both filed lawsuits against the state regarding solitary confinement at the high security prison at Pelican Bay.  The suits sparked a well- publicized 2014 hunger strike by inmates that resulted in Governor Brown softening state policy and allowing more of the gang's members into the general population.  Investigators say this enabled the gang to expand its illegal activities.  The head of the state prison system, Ralph Diaz disputes this, defending his department's handling of prisons.

The Home Depot in Oakland is having problems with homelessness and crime, and it's gotten so bad that the hardware chain may shut the store unless the city can curb the thefts and clean up the tent and RV camps that dot the area, City Councilman Noel Gallo said.

In Sierra Club v. Trump, USCA9 No. 19-16102, the Government has filed an emergency motion for stay of the injunction against the use of transferred DoD funds for building border barriers. Given the relevant time frames, the stay may be the whole ball game. If USCA9 declines, expect a motion to the SCOTUS.

Oakland legalizes Magic Mushrooms, Peyote:  The City Counsel of Oakland, California voted unanimously Tuesday to legalize psilocybin, otherwise known as "magic mushrooms" and peyote.  Both are strong hallucinogens which Carlos Castaneda noted in his 1972 book, Journey to Ixtlan can lead a person to an alternative reality.  Elizabeth Weise and Marco della Cava of USA Today report that Oakland was a step behind of Denver, with legalized the drugs last month.  More than 30 supporters testified that the "plant medications" were helpful for trauma, depression, addiction and anxiety.  This may be true for users experiencing the wild hallucinations Castaneda describes.  The drugs became popular in the 1970s because of their hallucinogenic effects, which rivaled LSD.  This is probably not a good thing.