August 2019 Archives

Unduly and Harshly Punitive?

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Theodore Dalrymple has this article in the City Journal, contending that popular view that the nation's criminal justice system is unduly and harshly punitive is wrong. The twist is that the nation in question is Britain, not the United States.

Among other points, Dalrymple notes, as I have many times on this blog, that the popular metric of "incarceration rate" as a measure of "harshness" is wrong. I call this the Fallacy of the Irrelevant Denominator. The correct denominator is not the general population but a measure of crime. Getting the right measure is the tricky part.

News Scan

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DOJ to Seek Death Penalty for Synagogue Killer:  Federal prosecutors told reporters Monday that the government would seek the death penalty for the man facing trial for killing 11 people at a Pittsburgh synagogue last October.  Campbell Robertson of the New York Times reports that, according to prosecutors,  Robert Bowers was yelling anti-Semitic slurs as he targeted worshipers at the synagogue.  Some members of the Pittsburgh Jewish community believe that a public trial to seek a death sentence would give a platform to Bowers, who has pleaded not guilty.  

Discrimination Via Non-Enforcement

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And now, for something completely different.

Most civil rights complaints against law enforcement are complaints that the police did too much in their pursuit of suspects. However, this decision from the NInth Circuit involves a civil complaint by USDoJ against two towns for discriminatory enforcement where most of the complaints are for non-enforcement or, in one case, actively helping a fugitive.

Amy Marcus reports in the WSJ on the use of the popular DNA tests and online genealogy databases to solve crimes. With a crime-scene sample known to be from the perpetrator, it is sometimes possible to find relatives, focusing the investigation. The best known success of this technique was the capture of the Golden State Killer here in Sacramento, California. Solving that crime brought enormous relief to many people who had been so sadistically victimized by this monster.

But of course, the technique has its controversy.

News Scan

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Texas Executes Co-ed Killer:  A Texas man convicted of the December 1998 murder of 19-year-old college co-ed Melissa Trotter was executed by lethal injection Wednesday.  The Associated Press reports that Larry Swearingen became a cause celebre for anti-death penalty advocates such as the Innocence Project which helped him win five stays of execution with claims attacking the evidence and experts presented at trial.  While Swearingen consistently claimed he was innocent, evidence of his guilt included multiple witnesses who saw him with the victim on the day she disappeared; hairs and fibers from the victim were found on his clothing and in his truck; cellphone tracking put him on the road to the forest where her body was found on the day she disappeared; the victim's cigarettes and lighter were found in Swearingen's home, the victim's class schedule and medial papers were found in front of Swearingen's house and the leg torn from the panty hose used to strangle the victim belonged to Swearingen's wife with the other leg found in his house.  In addition Swearingen was caught in lies about his whereabouts on the day the victim disappeared.  On the day he was arrested, Swearingen led police on a high-speed chase.  He was under indictment for kidnapping a former fiancee at the time.  This November 2009 Federal District Court Memorandum and Order in Swearingen v. Thaler provides a more complete breakdown of the evidence.      

No Longer "The Newspaper of Record"

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There was a time years ago when the New York Times was considered America's newspaper of record.  In 1897 Times owner Adolph S. Ochs coined the phrase "All the News That's Fit to Print,"  which still appears on the masthead today.  The key word here is "News," which was something that legitimate newspapers used to be committed to reporting accurately.  A paper's position on issues were expressed on the editorial page, but the news stories in the rest of a paper were supposed to include all relevant facts so that readers could learn what actually happened.  News editors at the major papers drilled cub reporters on the basics of covering a story, and leaving facts out was a cardinal sin.  So much for history.  Today, and for at least the last two decades, the New York Times has jumped the guardrails and become an advocate for all the popular liberal narratives.  Objective reporting can no longer be assumed on issues such as crime, business, science, education, foreign affairs and even the weather.  The reporting on crime provides multiple examples of an obvious unwillingness to just report the facts.  The "police are racist" narrative was pushed mercilessly by the Times on big stories such as the shootings of Michael Brown in Ferguson,Trayvon Martin in Florida, and the arrest of Freddie Grey in Baltimore, but even stories on the smaller cases are often grossly inaccurate.  Ann Coulter has this piece on the NYT coverage of the shooting of Antwon Rose II by a Pittsburgh police officer in 2018.  Times reporter Adeel Hassan's story on jury's verdict to acquit the officer left out almost all of the legally relevant facts in order to paint a false picture of the incident.  Nobody reading the story would have had an accurate understanding of what actually happened.  As intended.       

News Scan

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Serial Killer Set to Die Thursday:  A Florida man who selected gay men for his victims is scheduled to be executed Thursday.  Tony Hall of the Ledger reports that serial murderer Gary Ray Bowles savagely beat and choked six men to death over an eight month period in 1994.  Bowles who killed three men in Florida, two in Georgia and one in Maryland, was dubbed the I-95 killer during the year-long manhunt.  The murderer began his criminal career at 17, and spent eight years in prison at age 20 for sadistically torturing a woman.  "Each of the murders was brutal," said the prosecutor who secured the death sentence for Bowles.  In 1998 the Florida Supreme Court overturned his death sentence because the prosecutor improperly introduced Bowles' hatred of homosexuals during the sentencing hearing.  Nine months later a new jury unanimously re-sentenced him to death.  According to the reporter "Holding the opposing view (of the death penalty) may become more difficult when it is argued on the behalf of an unrepentant serial murderer like Bowles..."
Many parts of the country are now in a headlong rush to spring as many criminals as their advocates think they can get away with. The proposals are becoming so extreme that they are raising alarms in places that don't often challenge the "progressive" agenda. The Sunday WaPo has this editorial:

Residents of the District of Columbia deserve protection from the most violent criminals and to be confident those offenders receive prison sentences commensurate with the gravity of their crimes. A bill pending in the D.C. Council would undermine that expectation and subject residents to unwarranted risks from convicted murderers, rapists and child sex abusers.

The legislation would directly benefit the most serious and violent criminals -- specifically, those who killed, raped or committed sexual abuse before reaching age 25 -- by making them eligible for release, or a reduced sentence, while still in their 30s.

It's important to be clear about the implication of the pending legislation, sponsored by D.C. Council member Charles Allen (D-Ward 6): Under the bill, if the gunmen who massacred innocent people in El Paso and Dayton, Ohio, this month had instead committed their crimes in the District -- and had both survived -- one would be eligible for release or reduced sentence at age 36, at a judge's discretion; the other at age 39.

NY ME: Yes, Suicide

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Nicole Hong and Sadie Gurman report for the WSJ:

Jeffrey Epstein died by hanging himself, according to an autopsy released Friday, capping days of speculation about how the disgraced financier died in his jail cell.
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In a brief statement, Barbara Sampson, the chief medical examiner in New York City, said Mr. Epstein's cause of death was suicide by hanging. She didn't elaborate further, saying she reached her determination after "careful review of all investigative information."

Thoughts on Mass Incarceration

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The claim that America over incarcerates has been a mantra for progressives since the 1960s.  The term "incarceration nation" came into fashion around the turn of the century as "three strikes" style sentencing laws were filling state prisons with habitual felons.  While there have been multiple studies disproving the "standard story" that U.S. prisons are filled with low level drug users of color swept up by overly harsh sentencing laws, progressive politicians and the major media have continued to advance the narrative for political reasons. The result has been that more than a few states, and even Congress, have enacted laws to cure a systemic injustice that arguably does not exist.  To address the larger question, The Federalist Society Review is publishing a point-counterpoint discussion on mass incarceration featuring Fordham University Law Professor John Pfaff, author of Locked In: The True Causes of Mass Incarceration--and How to Achieve Real Reform, and Kent Scheidegger, Legal Director of the Criminal Justice Legal Foundation.  

Be Careful What You Ask For

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In 2011, a group of death row inmates sued the FDA to block the importation of sodium thiopental, a barbiturate that is highly effective in ensuring that lethal injection executions are nearly painless. Among the plaintiffs was Stephen Michael West.

As reported by The Tennessean:

West was sentenced to death for the 1986 stabbing deaths of Wanda Romines, 51, and her 15-year-old daughter, Sheila Romines, in their East Tennessee home. He also was convicted of raping Sheila.

Investigators say the women had been tortured in front of one another before they died.
Nationwide injunctions against government action, once unusual, have become common in recent years, and they are increasingly controversial. Several other rules combine with nationwide injunctions to make them particularly noxious. First, the rules on venue in suits against the government are quite lax. One can file a suit nearly anywhere. Second, broad "related case" rules sometimes allow evasion of the requirement for random assignment of judges, sometimes allowing plaintiffs to steer a suit to a particular judge, not just a particular court. Third, there is the "heads I win, tails we take it over" effect. If 99 district courts deny preliminary injunctions and 1 grants a nationwide injunction, the 1 has effectively overruled the 99. With all this, plaintiffs can gain a temporary nationwide victory even if their legal position is well outside the mainstream. Given how long litigation takes, a "preliminary" injunction may be the whole ball game in reality. As John Maynard Keynes famously said, "In the long run we are all dead."

In a suit against an immigration regulation on asylum eligibility and procedure, a divided panel of the Ninth Circuit has denied the government's motion for a stay as it applies to the Ninth Circuit but granted it as to the rest of the country.

Inimicus Curiae

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The WSJ has an editorial titled Senators File an Enemy-of-the-Court Brief with subhead Democrats order the Justices to drop a gun case--or else.

When liberals worry about losing a major Supreme Court case, they usually make appeals to the Court's "legitimacy." This is intended to attract Chief Justice John Roberts by suggesting that a conservative outcome would damage the institution's reputation. The ritual is disingenuous but usually subtle.

Five Democratic Senators have had it with subtle. In a remarkable and threatening amicus brief, Sheldon Whitehouse, Mazie Hirono, Richard Blumenthal, Richard Durbin and Kirsten Gillibrand all but tell the Justices that they'll retaliate politically if the Court doesn't do what they say in a Second Amendment case.

"The Supreme Court is not well," they tell the Justices in what is really an enemy-of-the-Court brief. "Perhaps the Court can heal itself before the public demands it be 'restructured in order to reduce the influence of politics.'" By "restructured," they mean packed with new Justices by a Democratic President and Senate after they kill the filibuster.
CJLF takes no position on the underlying question in the case, New York State Rifle & Pistol Assn. v. City of New York, No. 18-820. However, the court-packing threat illustrates why Sen. Whitehouse and his ilk must never have full control of the government. As for this overt political threat made while talking about reducing the influence of politics, that pretty much speaks for itself.

News Scan

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Using Algorithms to Release Criminals:  State courts across the country have in recent years moved to using computer algorithms, rather than human judgement, to determine which offenders can be released on bail, parole or probation without posing a threat to public safety.  In a previous post  we noted that some AI leaders have problems with the accuracy of these algorithms.  Andre Torrez and Amber Lee of San Francisco's KTVU report that a vagrant caught on video attacking and attempting to drag off a 27-year-old woman outside her apartment last Saturday has been released back to the street pending trial for the assault by judge who relied on an algorithm to determine his threat to the public.  The victim was outraged, "I was attacked and that man attacked me. It's on video. What else does the city need to see for proof to know that this man is a danger to all of us?  I don't want to be in a city knowing that there could be criminals anywhere," she said. "They're not getting punished, so I don't want to live here anymore."   SF Mayor London Breed called the attack "terrible" and "disturbing," and suggested that more resources are needed.   

Philly Shooter Had Long Record:  36-year-old Maurice Hill, arrested last night after a standoff that began when he opened fire from a house in a Philadelphia neighborhood injuring six officers, had an extensive criminal record.  Travis Fedschun of Fox News reports that the defendant had been in and out of prison since he was 18 for drug, gun and assault crimes.  Philadelphia District Attorney Larry Krasner said that Hill "should not have been on the streets," but that law enforcement did not have a "crystal ball" to predict his behavior.  They did have his record of prior crimes. 

The WaPo's fact-checker column is sometimes biased, but they get it right in their evaluation of the outrageous statements of Senators/candidates Kamala Harris and Elizabeth Warren that Michael Brown was "murdered" by a police officer in the notorious Ferguson, Missouri incident.

The column recounts the statements of the witnesses found credible by the Justice Department during the Obama Administration, which make it crystal clear that the "hands up" claim was a lie and that Brown attacked Officer Wilson. They award the maximum Four Pinocchios, reserved for "whoppers."

The claim is not merely false. It is one of the most destructive lies in recent history. For a candidate to repeat it is beyond inexcusable.

See also this post on the Eighth Circuit's dismissal of the civil suit filed by Brown's companion, the original perpetrator of the "hands up" lie.

News Scan

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CA Sentencing Reforms Enabling Violent Criminals:  A man charged with murdering four and wounding two others with a machete last week had a criminal record that police say would have kept him behind bars prior to enactment of California's sentencing reforms.  Brian Day of KTLA reports that on August 8, gang member Zackary Castaneda was arrested for fatal machete stabbing two men at an apartment complex, the stabbing of a woman during the robbery of an insurance office, the random attack of a man at a gas station, the fatal stabbing of customer during a sandwich shop robbery and the fatal stabbing of a security guard at a convenience store.  Castaneda had multiple prior felony convictions going back to 2009, which, according to Garden Grove Police Chief Tom DeRe qualified him as a "violent individual who should have never been considered for early release based upon Assembly Bill 109."  That measure, called "Public Safety Realignment,"  prohibits prison sentences for repeat offenders designated by the state as "non-violent, non-serious, non sex offenders," requiring instead that they serve short sentences in county jails and release on probation.  In addition to committing numerous crimes, Castaneda had violated his probation seven times between 2016 and 2018. 

Death Penalty Fast Track?

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Attorney General William Barr addressed the Fraternal Order of Police today. His remarks as prepared are available on the USDOJ website. There are several gold nuggets in this speech. For this post, I will quote just one paragraph:

This Administration will not tolerate violence against police, and we will do all we can to protect the safety of law enforcement officers.  I will share with you one proposal that we will be advancing after Labor Day.  We will be proposing legislation providing that in cases of mass murder, or in cases of murder of a law enforcement officer, there will be a timetable for judicial proceedings that will allow imposition of any death sentence without undue delay.  Punishment must be swift and certain.

I am elated that speeding up the needlessly and grotesquely protracted proceedings in capital cases is getting the personal attention of the Attorney General. However, the chances of getting death penalty fast track legislation through Nancy Pelosi's House of Representatives are essentially nil, so why don't we see what we can do with existing law?

Brain Porn

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I have been attending the annual conference of the Association of Government Attorneys in Capital Litigation this week. Among the presentations was one by Dr. J. Randall Price on the subject of brain scans. He reaffirmed what I have heard from other speakers. Those color-enhanced pictures that defense experts use to try to convince jurors that the defendant's "broken brain" made him do it are pretty much junk science. The colors are tweaked for dramatic effect rather than to actually show anything that really has to do with a person's free will and capacity to obey the law. Some call this color tweaking "brain porn." Interesting term.
Clint Watts of the Foreign Policy Research Institute has this essay in the weekend WSJ:

In fact, the for­mula for re­sponding to Amer­i­ca's white su­premacist ter­ror­ism emergency is quite clear--in part be­cause of our hard-won ex­pe­ri­ence fight­ing ji­hadists from al Qaeda and its spawn, Is­lamic State. We must swiftly and care­fully ap­ply the best prac­tices of the two decades since Sept. 11, 2001, to counter this decade's do­mes­tic ter­ror­ist threat--by pass­ing new laws, in­creas­ing re­sources and en­hanc­ing in­ves­tiga­tive ca­pa­bil­ities.

News Scan

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59 Shot in Chicago Last Weekend:  The first weekend in August was the most violent of the year in Chicago with seven people killed and 52 wounded in the city's west-side neighborhoods.  Julie Bosman of the New York Times reports that the recent violence brings total murders in the city to at least 300, with 1,600 shootings this year.  Chicago police have been criticizing Cook County State's Attorney Kim Foxx for the light sentences and release on bond given to gun offenders.  As reported by the Daily Wire, Fox ran as a progressive in 2016, promising to reign in police and reduce incarceration.  She received $300,000 in campaign contributions from ultra-liberal billionaire George Soros and another $75,000 from Soros to her PAC for her next election. 

News Scan

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Felon Free Under Realignment Charged With Rape:  An habitual felon with multiple priors has been has been charged with a series of rapes and robberies in Santa Monica.  Brian Day of KTLA reports that Fernando Venancio, Jr. was arrested on July 22 by police responding to a robbery and attempted rape, and is linked to two other sexual assaults and another robbery beginning in early June. At the time of his arrest Venancio was scheduled to appear at a hearing to consider revoking his Post Release Community Supervision, the punishment he received for a 2018 assault conviction.  His priors include 2016 convictions for burglary, forgery and a felon in possession of ammunition.  In 2014 he was charged with carjacking, robbery, burglary, attempted assault, sexual assault auto theft, but the charges were reduced to taking a vehicle without the owner's consent.  I am sure that the three rape victims were glad that Realignment (AB109) kept this "low risk" offender on the street.   

Newsflash: Death Penalty Opponents Dislike Federal Restart:  Attorney General Barr's decision to restart the federal death penalty and change the protocol to a single-drug euthanasia with pentobarbital, is "deeply troubling" to the ACLU, anti-death penalty law professors and defense attorneys.  For a July 29 article, writer Josiah Bates of Time rounded up folks from these groups to express their concerns which include: Barr's failure to run the new protocol through the Administrative Procedures Act (APA) process; the use of undocumented pentobarbital that may be a bad batch; and concerns about "race and innocence and the most vulnerable people ending up on death row."  For the sake of argument, the new protocol is a simplified version of the previous protocol and need not be subject to the time consuming APA process.  Pentobarbital is the preferred and widely-used euthanasia drug which has been approved by the Supreme Court.  Execution via a fatal dose of this drug provides the worst federal murderers with a death more painless than most non-murderers will suffer.  The "bad batch" argument is my favorite.  Any lab can easily verify the ingredients of this widely-used drug.  Concerns that the executions of the Dayton and El Paso murderers get carried out with a bad batch are galactically misplaced.      

News Scan

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Bill Introduced to Abolish the Death Penalty:  Senate Judiciary Committee members joined by four Democrat presidential candidates have have proposed legislation to abolish the federal death penalty.  Janta Kan of the Epoch Times reports that Senator Cory Booker, who is running for president, was joined by Judiciary Committee members Patrick Leahy and Dick Durbin in an announcement Wednesday that the legislation would prohibit the execution of those convicted in federal court of aggravated first degree murder.  Co-sponsors of the bill include presidential candidates Kamala Harris, Bernie Sanders and Amy Klobuchar.  The bill is in response to Attorney General William Barr's recent announcement to move forward with the executions of five federal murderers who have exhausted their appeals.  Among the killers the bill's sponsors want to spare is Wesley Ira Purkey, sentenced to death for the violent rape and murder of a 16-year-old girl, whose body he dismembered, burned, and dumped in a septic pond. He also was convicted in state court for using a claw hammer to bludgeon to death an 80-year-old woman who suffered from polio and walked with a cane.  CJLF Legal Director Kent Scheidegger said that the bill will go nowhere, citing polls indicating that most Americans do not want to abolish capital punishment.  The odds are zero that the Senate bill or the companion bill in the House will pass in either chamber.    

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