July 2019 Archives

News Scan

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The False Mass Incarceration Narrative:  Sentencing reformers have been pushing the mass incarceration narrative for more than 20 years, claiming that state and federal laws, prosecutors and police have been targeting black males who commit minor drug offenses for long prison sentences.  Rafael A. Mangual of the City Journal lays out the data which disproves this claim in this article.  For the umpteenth time, Mangual cites government and independent studies showing that; most inmates in prison are there for serious and violent crimes; most are repeat offenders; the small percentage that are drug offenders are dealers, most with priors who got a plea bargain; and that the racial disparity in convictions and sentences is tied to the racial disparity in crimes committed.  In 2017, while black males made up roughly 7% of the population, they accounted for 45% of the nation's 15,129 homicides, at a rate 8 times higher than whites.  Because most black murderers kill other blacks. the odds that a black person will be murdered is 6 times higher than for whites. "The claim that drug offenders are nonviolent and pose zero threat to the public if they're put back on the street is also undermined by a striking fact: more than three-quarters of released drug offenders are rearrested for a nondrug crime. It's worth noting that Baltimore police identified 118 homicide suspects in 2017, and 70 percent had been previously arrested on drug charges."     
NYLS Prof. Robert Blecker has this op-ed at Fox News with the above title.

Attorney General William Barr should be applauded for announcing Thursday that the federal government will resume executing convicted murderers on death row for the first time since 2003, beginning with five vicious killers in December and January.
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While the legislation Barr refers to permits a punishment of death, it doesn't compel it. We rely on the Justice Department to seek the death penalty only for the worst of the worst murderers - those who most clearly deserve to die. And we rely on juries in each individual murder case to act as the moral filter and conscience of the community to decide if the death penalty is warranted.

Reviewing the despicable crimes of the five men scheduled to be executed, we can safely say that the Justice Department has exercised its prerogative wisely.
The U.S. Supreme Court has stayed the order of a federal district court that had enjoined President Trump's use of military funds to construct physical barriers at the border. "Among the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary's compliance with Section 8005."

Justices Ginsburg, Sotomayor, and Kagan would have denied the government's application in full, letting the injunction stand in full. Justice Breyer would have stayed the injunction to the extent it prevented finalizing contracts but left the order in place to the extent in enjoined construction. As a practical matter, I think that a request for bids for work that remains enjoined would not get a lot of bidders.

Police Shootings, Crime, and Race

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The Economist, which is certainly no friend of our point of view on criminal justice issues, has this article on a study recently published in the Proceedings of the National Academy of Sciences:

The researchers found that white police officers were no more likely to shoot minority citizens than non-white officers were. If anything, black police were more likely to kill black civilians, because police tend to be drawn from the communities they work in. The best predictor of the race of killed civilians, they found, was the rate of violent crime in the place they lived. In areas with high rates of violent crime by African-Americans, police were more likely to shoot dead a black person. In areas in which white people committed more crimes, police were more likely to shoot white people.
If you really want to reduce police shootings, and for that matter incarceration rates, address the cultural influences that lead too many young people to choose the path of crime.
Lew Jan Olowski of the Immigration Reform Law Institute has this op-ed in the WSJ:

Federal law mandates deportation of aliens who are convicted of "aggravated felonies"--defined to include certain state misdemeanors carrying a sentence of a year or longer--whether or not they are in the country legally. But some judges, prosecutors and legislators are playing games to get around this law.
The "games" by judges he refers to are expungement and similar procedures. He is also alarmed that some state legislatures are moving to set the maximum sentence for misdemeanors at 364 days instead of the traditional one year because the federal immigration law's threshold for an "aggravated felony" is, in some parts, exactly one year.  He calls on Congress to eliminate the threshold.

The Downside of Jet-Setting

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The defining characteristic of the wealthy "jet set" is that they don't lower themselves to scheduled airlines like the rest of us but fly wherever they want to go in private jets. It seems that Jeffrey Epstein, being in the upper bracket of jet-setters, had personal pilots on staff. If he thought that bought him confidentiality for his comings and goings, he needs to think again.

Pilots keep logbooks. See 14 C.F.R. § 61.51(a). Law enforcement has pretty much carte blanche to look at them. Id. § 61.51(i)(1)(iii).

Nicole Hong and Rebecca Davis O'Brien report for the WSJ:

Federal prosecutors in Manhattan have subpoenaed Jeffrey Epstein's longtime personal pilots, according to people familiar with the matter, as investigators seek to question the financier's employees in the wake of his indictment on sex-trafficking charges.
USDOJ issued this press release today.

Attorney General William P. Barr has directed the Federal Bureau of Prisons (BOP) to adopt a proposed Addendum to the Federal Execution Protocol--clearing the way for the federal government to resume capital punishment after a nearly two decade lapse, and bringing justice to victims of the most horrific crimes.  The Attorney General has further directed the Acting Director of the BOP, Hugh Hurwitz, to schedule the executions of five death-row inmates convicted of murdering, and in some cases torturing and raping, the most vulnerable in our society--children and the elderly.
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The Federal Execution Protocol Addendum, which closely mirrors protocols utilized by several states, including currently Georgia, Missouri, and Texas, replaces the three-drug procedure previously used in federal executions with a single drug--pentobarbital.  Since 2010, 14 states have used pentobarbital in over 200 executions, and federal courts, including the Supreme Court, have repeatedly upheld the use of pentobarbital in executions as consistent with the Eighth Amendment.

Does the federal government have a source of pentobarbital? Apparently so. It should order a big batch and share it with the states, eliminating the problematic use of non-barbiturates in three-drug protocols.

Underwood Follow-Up

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Here is a follow-up on my "poster boy" post of last week. Eugene Volokh has reprinted the post at his eponymous Conspiracy and added some additional investigation.

A reporter at NJ.com told Eugene that he just reported Senator Booker's statement. However, the first three paragraphs of the story simply report the supposed facts of Underwood's case with no quote marks and no mention of Senator Booker.

If the same reporter had received a press release from Senator Cotton, would he copy the facts stated there into his story with no checking, no quote marks, and no attribution? I seriously doubt it. That is a good example of the confirmation bias referred to in the original post.

Justice Ginsburg on Court Packing

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Nina Totenberg reports for NPR:

Justice Ruth Bader Ginsburg said in an interview Tuesday that she does not favor proposals put forth by some Democratic presidential candidates who have advocated changing the number of Supreme Court justices if the Democrats win the presidency.

Marist Poll

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The NPR/PBS/Marist Poll is available here. The poll asked respondents whether a list of items were a good idea or a bad idea. On the questions most relevant to the topic of this blog, abolishing the death penalty was considered a bad idea by 36 to 58, and decriminalizing border crossings also got the thumbs down 27-66. Legalizing marijuana nationwide was approved 63-32.

Crosstabs on the death penalty question show little division by race or age. Marist only breaks the race demographic into "white" and "non-white," and the responses are 37-57 and 35-59, respectively, within the poll's margin of error. The over/under 45 age brackets are similarly not significantly different.

News Scan

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Anti-Sentencing Group Launched:  Another sentencing reform (read sentencing reduction) think tank announced its launch this week.  The Associated Press reports that the new Council on Criminal Justice will be headed by a bipartisan group of sentencing reformers including former California Governor Jerry Brown, Cal Supreme's Chief Justice Tani Cantil-Sakauye, former Georgia Governor Nathan Deal, former Philadelphia Mayor Michael Nutter, and Black Lives Matter organizer DeRay Mckesson among others.  The group is co-chaired by Koch industries Vice President  Marc Holden and Sally Yates, the Obama Deputy Attorney General fired for refusing to enforce President Trump's travel ban.  While there are some Republicans involved with this group, the suggestion that there is diversity of opinion is an illusion. No one associated with this group supports tough sentencing for repeat offenders.  Koch Industries is an advocate for reduced sentences and a big supporter of the First Step Act.  Jerry Brown's record is extreme on this issue.  The group, which will be well funded by liberal donors including the Ford Foundation, the Guggenheim Foundation, and the Joyce Foundation, will join the Marshall Project, the National Council on Crime and Delinquency, the Center on Juvenile and Criminal Justice, the Sentencing Project and the ACLU and a dozen others to advocate for reduced consequences for criminals. 

Black Market Pot Flooding CA:  The State of California, where recreational marijuana became legal last year, is home to thousands of illegal pot shops and growers, which voters were told would die off if the drug were legalized and sales were regulated.  Patrick McGreevy of the Los Angeles Times reports that while law enforcement has seized roughly $30 million over the past year in illegal pot and hundreds of thousands in cash, the state is barely scratching the surface according to the California Cannabis Industry Association.  Research by New Frontier Data indicates that the black market for pot was worth $3.7 billion last year. In spite of this, the head of the Bureau of Cannabis Control thinks that her agency is doing "tremendous work" in regulating the sale of marijuana.  Governor Gavin Newsom is insisting that it will take several years for the state to take control of the market, but with pot use now legal, why would consumers pay high prices for the drug at a taxed and regulated pot shop, when they can get it much cheaper anywhere in the state on the black market.  The Associated Press reports that the promises made to voters about a windfall in tax revenues appear to have also been false.  The state has reduced its revenue projections twice in two years as it collected $288 million last year and estimates $359 million this year.  During the 2016 campaign advocates estimate $1 billion in annual tax revenues after legalization. 

News Scan

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Illegal Alien Charged With Murder:  A twice deported Guatemalan man has been charged with murdering three people in Des Moines.  The Associated Press reports that Marvin Oswaldo Escobar-Orellana is facing charges of killing a 29-year-old Iowa woman and her 11-year-old daughter and 5-year-old son last Tuesday.  A witness told officers that Escobar-Orellana shot the woman during an argument and then went into the home and shot the children.  He told the police that the woman had shot her children and that he killed her in self-defense.  Police say that ballistic evidence supports the witness' account.  According to ICE, the defendant was deported in 2010 and again in 2011.
Sadie Gurman has this article in the WSJ on a wave of prisoner releases today as a result of the First Step Act.

Federal sentencing law has long been more severe than most state laws, and some adjustments are in order. I was in favor of bringing down then-Senator Biden's absurd 100/1 crack/powder ratio for cocaine, for example.

Whether the First Step Act is successfully implemented to separate those who actually deserve earlier release from those who need to be kept locked up remains to be seen. The dismal drafting of the bill certainly is no guarantee. See this post and this letter.

With Bill Barr at the helm, we at least have a shot that this won't turn out to be a massive jailbreak. Of course, administrative implementation can be reversed by a subsequent administration, but the policies established at the threshold do have a tendency to get baked in, so there is some hope.

News Scan

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MS13 Killers Charged in LA:  A federal grand jury indicted 22 members of the notorious MS 13 gang with murder last week.  CBS News reports that most of the members of the Fulton Clique chapter of the gang were teenagers who face charges of murdering seven people, some of whom were hacked to death with machetes.  Police report that MS 13 members are responsible for 24 murders in the Los Angeles area over the past two years.  While CBS somehow missed this, the LA Times reports that 19 of the 22 gang members were illegal aliens. 

Feds to Release 3,100 Inmates:  Sadie Gurnam of the Wall Street Journal reports that 3,100 federal criminals, most of which are categorized as non-violent drug offenders, will be released from prison today under the First Step Act.  Many were black offenders sentenced to lengthy terms on multiple counts of dealing crack cocaine.  The Justice Department has developed a risk assessment protocol to help determine which drug dealers will not endanger the public if released.   
The proponents of Proposition 57 assured Californians that its early release was only for "nonviolent offenders." Is arson a nonviolent offense? People die in arson fires, both people caught in the flames and firefighters who respond to them.

Dale Yurong reports for ABC30:

A Madera County arsonist convicted of a string of fires in Yosemite Lakes Park could be eligible for parole and that has many people concerned.
Ann Coulter has this post on her website. She can be over the top at times, so I did some checking before posting on it myself. Ms. Coulter writes:

Over the weekend, NBC News investigative reporter Leigh Ann Caldwell appeared on MSNBC's "Kasie DC" to tell the story of Bill Underwood, loving parent and prison mentor, who has already spent nearly 30 years in prison for a nonviolent drug crime.
Ms. Caldwell reported:

"William Underwood, now 65 years old, was sentenced to life in prison without parole for a nonviolent drug-related crime. It was his first felony, but in the middle of the tough-on-crime era, the judge showed no leniency. With no hope of ever walking free again, Underwood has made the best of his time in prison, mentoring others and staying devoted to his children and grandchildren, as (his daughter) Ebony fights for his release."
The segment is here. That is indeed what Ms. Caldwell says. Is it true? Does she care if it's true?

Rep. Green's Impeachment Resolution

Which is worse, a statement that is at best intemperate and at worst intolerant or a governmental act that violates the Constitution? I would think the latter is far worse, and quite obviously so.

CNN has the text of Rep. Al Green's impeachment resolution here, making the remarkable claim that the President's recent controversial tweet is an impeachable offense.

News Scan

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Philly DA Wants to Void Death Penalty:  The District Attorney of Philadelphia has petitioned the state supreme court to hold the state's death penalty unconstitutional.  Julie Shaw of the Philadelphia Inquirer reports that Larry Krasner, a former defense attorney elected in 2017, has filed a brief in a capital case before the state's highest court, arguing that the justices should utilize the King's Bench power to strike down the death penalty law due to systemic problems.  At a press conference Krasner, joined by defense attorneys and anti death penalty legislators, told reporters that the state's death penalty is racially biased, arbitrary and discriminates against the poor.  The Pennsylvania Attorney General responded that the problems Krasner attributes to the state's death penalty law are matters of policy which should be addressed by the legislature, not the courts.  It should be noted that Krasner was elected with over $1.4 million in contributions from liberal hedge-fund billionaire George Soros.   

"El Chapo" Gets Life:  Notorious drug kingpin Joaquin "El Chapo" Guzman was sentenced to life in prison by a federal judge in New York today as reported by Nicole Hong and Acacia Coronado of the Wall Street Journal.  The former head of the largest drug cartel in the world was convicted last February of multiple charges including murder and drug trafficking.  At sentencing he told the court that he was denied a fair trial and that the U.S. is "no different than any other corrupt country."  He will probably be sent to the federal "supermax" prison in Colorado, home to the nation's most dangerous federal criminals.  Hasta la vista baby.    

The Relation of Insanity to Crime

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Here is something interesting I stumbled upon today:

     I approach the discussion of this subject with considerable distrust of my own power of dealing with it satisfactorily, as it cannot be treated fully without a degree of medical knowledge to which I have no pretensions. Moreover, the subject has excited a controversy between the medical and the legal professions in which many things have been said which would, I think, have been better unsaid.

News Scan

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Gorsuch Seen as a Maverick:  In several cases over the just-ended Supreme Court term, Associate Justice Neil Gorsuch has parted ways with conservatives to buttress the rights of individuals over government authority.  David Savage of the Los Angeles Times reports on how Gorsuch has strayed from the court's conservatives, mostly writing dissents, in cases including one involving an Alabama man who was prosecuted twice for carrying a gun in his car, and another involving two African American men from Texas who were sentenced to more than 50 years in prison for robbing gas stations. But the reporter also included Gundy v. United States, where Gorsuch wrote a 33-page dissent, joined by Thomas and Roberts arguing to rein in the administrative state.  While, on the surface, one might expect the conservatives to drop the hammer on a sex offender convicted of failing to register with the state of Maryland under a law adopted two years after his crime.  But it was the liberals, led by Justice Kagan and joined reluctantly by Alito, who upheld Gundy's conviction in a holding which strained to preserve the administrative state..  Gorsuch and company noted that it was unconstitutional for Congress to delegate to the Attorney General the authority to restrict someone's liberty.    

Courts Split on CA Accomplice Murder Law:  A 2018 law signed by Governor Jerry Brown (SB 1437), which severely limits a prosecutors ability to charge accomplices to homicide with first-degree murder, is being held unconstitutional by judges in some California counties and is allowing judges in other counties to free accomplices.  J.K. Dineen of the San Francisco Chronicle reports that a bay area judge cited SB 1437 to release a 29-year-old accomplice to a 2008 robbery-murder, while 400 miles to the south, San Bernardino County judges are rejecting petitions for release from accomplices, finding that new law is unconstitutional.  In some counties local judges are divided on the validity of the law.  Gretchen Wenner and Megal Diskin of the Ventura County Star report that last Friday a Ventura County judge refused the petition of an Oxnard woman convicted of being an accomplice to a 2008 robbery and murder.  Weeks earlier, another Ventura judge upheld a gang-murderer's petition for resentencing under the new law.  Prosecutors argue that SB 1437 violates initiatives adopted by voters in 1978 and 1990 which included accomplice murder.  The issue is almost certain to end up before the California Supreme Court.     
A divided panel of the Ninth Circuit today decided City of Los Angeles v. Barr, No. 18-55599, the latest round in the battle over federal grants to cities that refuse even the simplest cooperation with efforts to deport criminal aliens. From the majority opinion by Judge Ikuta, joined by Judge Bybee:
Rebecca Ballhaus reports for the WSJ:

Alexander Acosta said he was resigning as labor secretary, amid criticism of a nonprosecution deal he struck with financier Jeffrey Epstein more than a decade ago as a U.S. attorney.

Appearing Friday morning with President Trump on the South Lawn of the White House, Mr. Acosta told reporters he was stepping down. President Trump said the secretary had called him that morning, and that it was Mr. Acosta's choice.
For background on the case, see this post from February.

Public Camping Laws

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Steven Malanga has this article in the City Journal:

Cities across America increasingly grapple with people living on their streets, and court rulings have made it hard to enforce laws against public camping. A series of decisions by the liberal Ninth Circuit Court of Appeals, for instance, determined that clearing homeless encampments is an unconstitutional form of punishment. Now Boise, Idaho, as part of a ten-year legal fight, is appealing to the Supreme Court to overturn a ruling by the Ninth Circuit that effectively bars the city from cleaning up camp sites on public property. How the case turns out may determine whether cities have powers to police their streets amid a sharp rise in public camping and sleeping.

News Scan

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The Surge in Homeless Crime in LA:  The homeless population in Los Angeles has been large and growing for several years and crime has increased steadily along with the population growth.  Joshua Chang of Crosstown reports that something happened between 2014 and  2015 that local the police can't explain.  While the homeless population between 2014 and 2015 increased by 12%, crimes involving the homeless, either as perpetrators or victims, increased by 120%.  Homeless advocates blame Mayor Garcetti's "Clean Streets" initiative to remove trash left by the homeless, claiming that it criminalized the homeless.  The LAPD acknowledged the crime increase, but attributed some of it to better reporting.  Could it be the 2014 passage of Proposition 47, which converted the most commonly committed felonies to misdemeanors?  Following the common sense axiom that excusing crime results in more crime, it seems reasonable.  Homeless crime has continued to increase roughly 45% each year since 2015, with over 15,000 homeless crimes reported last year.     

Threatening Little Girls

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There just is no moral bottom for those who strive to suppress Politically Incorrect opinions.

Chantal da Silva reports for Newsweek:

The family-run Twitter account of a young girl who went viral for posing in photos mocking New York Rep. Alexandria Ocasio-Cortez has been pulled. The family claims to have received death threats for using their daughter to parody photos of a visit Ocasio-Cortez made to a migrant detention camp last year.

Earlier this week, the account had tweeted out several photos of "Mini AOC," an 8-year-old girl named Ava ... widely known for her impersonations of Ocasio-Cortez, standing outside a fenced-off park in an all-white outfit and red lipstick, looking visibly upset.

The American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (5th ed.), known as the DSM-5 for short, is a controversial document that often makes its way into criminal cases. See CJLF's brief in the Supreme Court case of Moore v. Texas, No. 15-797, pages 18-21.

Now John Anderer reports at Study Finds:

[A] new study conducted at the University of Liverpool has raised eyebrows by concluding that psychiatric diagnoses are "scientifically meaningless," and worthless as tools to accurately identify and address mental distress at an individual level.
The California Attorney General today released the annual report of state crime statistics, Crime in California, 2018. The violent crime index has returned to its 2016 level after a bump last year. Homicide is back to its 2014 level, tying the lowest rate since the 1960s.

Over the past four years, California's violent crime rates have risen more than the national rates, as described in this post last September and illustrated in this graph. We will have to wait a few months for the national report to see the comparison for 2018.

Bikini Baristas

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And now, for something completely different, comes today's U.S. Ninth Circuit Court of Appeals decision in Edge v. City of Everett, No.17-36038:

"Bikini barista" stands are drive-through businesses where scantily clad employees sell coffee and other nonalcoholic beverages. In Everett, Washington, a police investigation confirmed complaints that some baristas were engaging in lewd conduct at these establishments, that some baristas had been victimized by patrons, and that other crimes were associated with the stands. The City responded by adopting Everett Municipal Code (EMC) § 5.132.010-060 (the Dress Code Ordinance) requiring that the dress of employees, owners, and operators of Quick-Service Facilities cover "minimum body areas." Separately, the City also broadened its lewd conduct misdemeanor by expanding the Everett Municipal Code's definition of "lewd act" to include the public display of specific parts of the body. EMC § 10.24.010. The City also created a new misdemeanor called Facilitating Lewd Conduct for those who permit, cause or encourage lewd conduct. EMC § 10.24.020

News Scan

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Boston Abandons "Broken Windows" Policing:  Last March, the newly elected District Attorney of Suffolk County, MA,  announced that her office would no longer prosecute low level offenders such as petty thieves, drug dealers, prostitutes and trespassers.  The Boston Herald reports that Rachel Rollings, who ran on a progressive criminal justice reform platform, will focus on programs that address the "underlying reasons" for those committing "minor crimes" rather than punishing the offenders.  Former Boston and New York Police Commissioner Bill Bratton told reporters that the policy will invite more crime, including more serious crime.  Bratton, who implemented "Broken Windows" policing to dramatically reduce crime in New York City in the 1990s, believes that downtown Boston may see a return of "The Zone" where streets were flooded with pimps, hookers and hustlers in the 70s and 80s.  "There is no such thing as a victimless crime.  The victim is society.  The victim is the neighborhood and the victim is the city," said Bratton.  

SF District Attorney May Challenge LADA Jackie Lacey:  Progressive San Francisco District Attorney George Gascon is contemplating a 2020 campaign for District Attorney of Los Angeles.  Alene Tchekmedyian and James Queally of the Los Angeles Times report that several social justice activists including the San Francisco-based Real Justice PAC have approached Gascon to encourage that he run against Los Angeles District Attorney Jackie Lacey.  Lacey, who was first elected in 2012, has been criticized for not being progressive enough, and for her unwillingness to prosecute police officers for alleged excessive force.  In announcing her campaign for reelection Lacey rolled out an impressive list of endorsements from liberal democrats including LA Mayor Eric Garcetti, U.S. House members Adam Schiff and Ted Lieu and several members of the LA Board of Supervisors.  The Real Justice PAC, which helped elect Boston DA Rachel Rollings, would be joined by the ACLU and several groups supported by George Soros in bankrolling the Gascon campaign.  

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