Recently in General Category

At the time of the American Revolution, criminal law was a mixture of case law and statutes, with the elements of some crimes being established by courts and therefore changeable by them.  In some Eastern states that is still the case.  In Massachusetts, the basic felony-murder rule comes from case law, and today the Supreme Judicial Court abolished it, prospectively only, in Commonwealth v. Brown, SJC-11669.

Generally, murder is distinguished from manslaughter by the mental element of "malice."  Definitions of "malice" vary among the states.  Under the felony-murder rule, the intent to commit certain dangerous felonies (e.g., robbery) supplies the mental element so that every participant in the robbery is guilty of murder if someone is killed.  In its most extreme form, one robber can be guilty of the murder of the other if the other is justifiably killed by the robbery victim.  Even I think that's going way too far.

I have only skimmed the opinion so far, so I won't be commenting on it at this time.  Thanks to former CJLF Fellow Christine Dowling for the tip.

The ACLU's Deceptive Anti-DA Campaign

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Guest post by David Boyd

The ACLU has rolled out a new campaign in California to help people learn about the "most powerful elected official you may not know"; the elected District Attorneys. Instead, the ACLU has managed to increase misunderstanding rather than enhance any knowledge.

The ACLU states that a California DA has the "sole" power to decide what charges to bring and the severity of those charges. This is not true. Many, perhaps even most of the felony charges that are filed in California, can be charged either as a felony or a misdemeanor and the court has the authority to reduce that type of charge even when the DA chooses a felony charge. This power under section 17 of the Penal Code is not mentioned, but most certainly relates to the severity of a charge.

"They alone decide who is deserving of a jail or prison sentence and who will instead be routed into a diversion program to help rebuild their life, or have charges dismissed." Let me count the ways in which this is false. Odd that the ACLU would not mention that most crimes, including some violent crimes such as robbery, are probation eligible. In those instances, the court gets the final say on who goes to jail or prison, not the DA. Of course, the ACLU does not mention the power of the court to dismiss charges, penalties, or both, under section 1385 of the Penal Code either--a section invoked by the court, over the DA's objection, every single day in trial courts throughout the state.

Release Decisions By Computer

Eric Siddall of the L.A. Association of Deputy District Attorneys has this post.

As stories emerge about the Arnold Foundation's "algorithm" pretrial release tool, we should be disturbed about the results.  As covered in a previous blog, use of the tool is linked to two murders and the wholesale release of dangerous felons.
However, a Wired story raises even more questions about the Arnold Foundation algorithm.   It turns out the tool was given to San Francisco for free, but with conditions that bars the disclosure of "any information about the use of the Tool, including any information about the development, operation and presentation of the Tool."
There is something to be said for having decisions made according to a formula rather the subjective judgment of a human decision-maker.  In terms of practical effects, the formula may predict dangerousness better than a seat-of-the-pants judgment.  In terms of fairness, a formula avoids the problem of different judges making different decisions on the same facts.  A formula can also reduce bias problems, if done correctly.  Those were the reasons behind the Sentencing Reform Act of 1984 and the originally mandatory guidelines under that law.  A computer algorithm is essentially just a sophisticated formula.
In a masterpiece of bad timing, the pro-criminal Urban Institute tells us  --  on the day we learn that the steep spike in murder is now in its third year  --  that the problem is not murder, or crime at all, but us.  We're small-minded, racist and punitive. We need to concentrate, not on murder, but on our Neanderthal attitudes toward what is euphemistically called "serious crime."

[W]e looked at prison term trends in a new way and found that the longest terms are getting longer, particularly for violent offenses. But how long is too long? What is long enough? And do longer prison terms really translate into justice, rehabilitation, and public safety?

Efforts to meaningfully reduce the prison population must consider these questions, which may mean rethinking how we treat people convicted of serious crimes.

I'm grateful, though, that at least the Urban Institute doesn't promote the fiction that our prisons are filled with dope smokers.  It understands, and is pretty frank about, the fact that most inmates are in for violent crimes.  What it's less candid about is what's going to happen if we follow its suggestion for earlier release.  Maybe it hasn't read the recidivism statistics. Or maybe it has, but doesn't care.

Murder Continues to Rise in 2017

The information and predictions site 538 tells us that murder is on the increase for the third straight year.  The spike is smaller this year than in the last two  --  but this news is only so good, given that the 2015 and 2016 murder rate increases were substantial, the largest since at least the elder Bush was President.  Thus, 538 says that, while the figures so far this year are insufficient to project long-term trends:

...there tend to be more murders in the second half of the year, when it's warmer, especially in northern cities. Between 52 and 54 percent of big-city murders occurred in the second half of the year in every year between 2010 and 2015, according to the FBI's data.  So murder rates in those cities will likely ultimately be higher than the midyear statistics suggest.

Second, recent history suggests that not only does the absolute number of murders increase in the second half of the year, but the rate of increase also accelerates.

Ooooooops.  Hey, but let's keep lowering sentences anyway!
Jill Bleed and Andrew DeMillo report for AP:

LITTLE ROCK, Ark. (AP) -- A man yelled "Freedom!" as he crashed his vehicle into Arkansas' new Ten Commandments monument early Wednesday, nearly three years after he was arrested in the destruction of Oklahoma's monument at its state Capitol, authorities said.

The privately funded Arkansas monument had been in place outside the state Capitol in Little Rock for less than 24 hours before it was knocked from its plinth and smashed to pieces.

Michael Tate Reed, 32, of Van Buren, Arkansas, was booked in the Pulaski County jail shortly after 7:30 a.m. on preliminary charges of defacing objects of public interest, criminal trespass and first-degree criminal mischief. An arrest report lists his occupation as "unemployed/disabled."

Probably didn't do his car a lot of good, either.

Recycled Psychobabble

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It is not out of an intent to demean religion, or any denomination thereof, that I bring you this latest recycling, for the hundredth or two hundredth time (I've lost count), of the Bible-thumping cliches of people enraptured with the notion that they have superior moral wisdom.

They don't.  Indeed, they have next to no idea of what they're talking about.

A sample from near the beginning:

"Our country's overreliance on incarceration fails to make us safer or to restore people and communities who have been harmed," said James Ackerman, CEO of Prison Fellowship Ministries, at a June 20 news conference at the National Press Club.

Well, sure, overreliance on incarceration is a bad thing (by definition), but if what Ackerman means is considerably increased reliance on incarceration, then no part of his statement is true:  The significant increase in incarceration over the last 25 years had made us far safer, and that increased safety has disproportionately benefited the communities that were harmed, if not nearly destroyed, by rampant violent crime, much of it bred by drug trafficking.

I expect pious deceit from the NYT and the NACDL, but I would have hoped for something better from a group that trades on its claim to moral superiority.

CNN Tonight

I will be on CNN tonight on a panel discussing whether Special Counsel Bob Mueller is too personally close to a potential key witness, Jim Comey, to continue to serve.  I believe the panel will start at 8:30 EDT and run for perhaps half an hour.

My USA Today op-ed addressing this question is here.

UPDATE:  To anyone who inconvenienced himself or herself to watch, I apologize.  It was not anything like the discussion I thought it was going to be.

The final speaker rebutted the only point I was given the opportunity to make by saying that the personal relationship between Mueller and Comey did not matter, because it started with a professional or business contact.  That is incorrect.  Under the ethics rules, it is simply the fact of a personal relationship between the prosecutor and his witness, not its origin, that matters.  No one on the segment (all seven minutes of it) denied that Mueller and Comey are friends, or that this would cause a reasonable person to question Mueller's objectivity in evaluating Comey's prospective testimony.

Lest We Forget

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Let us all take a moment today to remember those who gave the last full measure of devotion to the cause of freedom.

Celebrating Murder

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Seth Barron writes in the City Journal:

The announcement that the 2017 Puerto Rican Day Parade would honor seditionist and Puerto Rican independentista Oscar López Rivera as a "National Freedom Hero" has led several sponsors of the parade to withdraw their endorsements. López Rivera was a leader of FALN, which conducted a campaign of deadly bombings around New York City and Chicago in the 1970s, and he was recently released from prison after having his 75-year sentence commuted by President Obama. Goya Foods, a significant backer of the parade for its entire 60-year history, has backed out, as have the NYPD Hispanic Society, the Patrolmen's Benevolent Association, and the other police unions representing the NYPD senior ranks. NYPD commissioner James O'Neill announced this afternoon that he will not march in the parade because he deems Lopez Rivera a "terrorist."

In response, city council speaker Melissa Mark-Viverito today held a "rally to defend the parade," though the parade itself is not in need of defense, its only sticking point being the inclusion of a convicted terrorist as guest of honor. About 50 ardent supporters of Rivera assembled in a meeting hall at the headquarters of 32BJ, the building-service workers local of labor powerhouse SEIU, where they displayed banners and chanted, "We stand with the Puerto Rican Parade/Oscar López is our hero today!"

Right Man, Wrong Job

There are news reports that the President is considering former Sen. Joe Lieberman as the next FBI Director.

Lieberman is a person of integrity and high character, schooled in the ways of Washington, and he has respect in Congress.  All are valuable qualities.  But he is not the man for this job.

The head of the FBI needs extensive experience in law enforcement, preferably federal law enforcement.  Sen. Lieberman has none.  He was at one point, many years ago, Attorney General of Connecticut, but that's it.  He is a respected political figure, but at this moment, the FBI needs someone who is not a political figure in any way at all.

People of equally high integrity and no political valence are available.  I have named two, Judge Julie Carnes of the Eleventh Circuit and former DEA Administrator Karen Tandy.  I hope the President will look in their direction.

Editorials Impersonating News

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The New York Times, more unabashedly than perhaps any other MSM outlet, is a cheerleader for less accountability for criminals.  It is, more specifically, a reliable shill for "sentencing reform"  --  which, it says (quoting only its usual stable of True Believers), continues to have "momentum" notwithstanding its wipe-out in Congress followed by Trump's election. 

The Times' "news" article is here. Actually, it's a poorly disguised editorial trying to sell itself as news.  (This apart from the fact that it isn't even new  --  it's a re-tread of exactly the same sentencing reform rah-rah we've been hearing for months).

I could do my same-old rebuttals to its same-old bolstering, but it would be tiring. Instead, I'll take just one paragraph and see how it might be re-cast by someone who'd like to see something closer to the truth.
It's being reported that the President has narrowed his list for head of the FBI.  I have previously suggested Judge Julie Carnes of the Eleventh Circuit.  I now want to add a second name  --  Karen Tandy.

Karen and I started off as Assistant US Attorneys.  I was immediately impressed with her diligence, concentration and fearlessness.  She went on to become an Associate Deputy Attorney General for George W. Bush who, in 2003, nominated her to be Administrator of the DEA.  I joined her there as her Counselor, and my working with her only impressed me more with her qualities.  She is a shrewd, decisive leader whose moral compass guides her every moment of the day.

About a year ago, she joined the National Security Advisory Council (see this news story, which also outlines her career).  She could make a zillion bucks, and did when she was Vice President of Motorola, but she's a patriot and would give it up to render further service to the country.

The President would do well indeed to give her serious consideration.

The Comey Firing

I have some first impressions of the big news this afternoon, the firing of Jim Comey as FBI Director.

How Many Lies Can You Spot?

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The ACLU put out a press release today that contains the following paragraph:

Although the mandate of prosecutors is to advance justice, many district attorneys have focused on punishment at any cost.  This approach has increased the jail and prison population; led to sentences that are too severe for the offenses; produced more wrongful convictions and more death sentences; and sent people with addictions, disabilities, and mental health conditions into jails and prisons who should receive treatment or other social services instead. These consequences of unchecked prosecutorial power burden people of color and the poor disproportionately.

Hence the title of this entry:  How many lies can you spot?

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