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The Left Goes Bonkers

I realize that I am sometimes prone to overstatement, but I think readers will find the title of this entry justified.  The subject is a post on Sentencing Law & Policy titled, "A Second Chance: Re-biography as Just Compensation."  I will quote verbatim the opening paragraph of the tract it references:

Once upon a time, reinvention was an integral part of the myth of the American Dream. As the story went, one could leave the old country or old neighborhood, without looking back -- fashioning one's own second chance by stepping into a newer, better identity, crafting a redesigned life story out of whole cloth if necessary.  As one legal historian noted, "American culture and law put enormous emphasis on second chances." For most of the 20th Century, this notion of the second chance was also alive and well in the American criminal justice system, as rehabilitation was considered its primary goal.  My earlier article, "A Good Name: Applying Regulatory Takings Analysis to Reputational Damage Caused by Criminal History," couched the need for rebiography upon reentry in terms of the ongoing reputational damage suffered by the previously convicted.  Then, regulatory takings analysis was applied to that reputational damage.  In doing so, it analyzed the critical property-like characteristics of reputation, concluding that reputation is a form of "status property" and that such continued stigma attachment and reputational damage constitutes a "taking" without just compensation. Finally, it was argued that rebiography can serve as "just compensation" for this type of taking.

For those of you who believed the old line about the criminal's owing a debt to society, wake up.  Society owes a debt  --  and thus "just compensation"  --  to the criminal (ummm, make that "previously convicted") for the indignity of having convicted him for his behavior.

Alexandra Petri at the WaPo weighs in on the controversy of who should be ejected to make room for a woman on US currency.
Former House Speaker Dennis Hastert has been indicted on charges of money structuring and lying to the FBI.  The indictment was returned in February and announced today.  The story is here.  Essentially, the allegation is that Hastert paid hush money, in cash, to an unnamed individual to keep that person from disclosing "past misconduct."  He withdrew the cash in amounts designed to avoid federal bank reporting requirements.

Hastert is entitled to the full presumption of innocence.  Whether he is actually innocent, I have no idea.  My experience is that federal grand juries do not return indictments on whim.

The reason I mention this case now is to rebut two arguments I frequently see. One is that the money structuring and false statements statutes are just sprawling overkill, a tool of power-mad prosecutors, and have nothing to do with behavior an ordinary person would understand to be wrong.  The second is that non-violent crime simply isn't all that serious, and that punishing it with imprisonment is just a waste of taxpayer money.

If the allegations of the indictment turn out to be true, it calls both arguments into question. If a man who wields the enormous power of the Speaker of the House built his career on years of concealment, deceit and payoff's, punishing that  -- and punishing it with at least some incarceration  --  may or may not be harsh. But it is not a waste of money.
It's really convenient to be able to retrieve online information about your taxes, Social Security earning record, health information, and all kinds of important data.  But there's a catch.  John McKinnon and Laura Saunders report for the WSJ:

The Internal Revenue Service said identity thieves used its online services to obtain prior-year tax return information for about 100,000 U.S. households, a major setback for the agency that is charged with safeguarding taxpayers' privacy.

The IRS said criminals used stolen Social Security numbers and other specific data acquired from elsewhere to gain unauthorized access to the tax agency accounts. About 100,000 more attempts were unsuccessful, the agency said.

The Case Against PowerPoint

Off-topic but priceless, Katrin Park has this modest proposal in the WaPo.  My favorite slide from this presentation is the Gettysburg one, copied after the break.

A Pause to Remember, Part II

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There are many nearly unbelievable stories of bravery to be shared on Memorial Day, but this one, related by Scott Johnson on Powerline, stood out to me.

Big for his age at 14, Jack Lucas begged his mother to help him enlist after Pearl Harbor. She collaborated in lying about his age in return for his promise to someday finish school. After training at Parris Island, he was sent to Honolulu. When his unit boarded a troop ship for Iwo Jima, Mr. Lucas was ordered to remain behind for guard duty. He stowed away to be with his friends and, discovered two days out at sea, convinced his commanding officer to put him in a combat unit rather than the brig. He had just turned 17 when he hit the beach, and a day later he was fighting in a Japanese trench when he saw two grenades land near his comrades.

He threw himself onto the grenades and absorbed the explosion. Later a medic, assuming he was dead, was about to take his dog tag when he saw Mr. Lucas's finger twitch. After months of treatment and recovery, he returned to school as he'd promised his mother, a ninth-grader wearing a Medal of Honor around his neck.

A Pause to Remember

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Let us take a moment today to remember those who gave their lives in defense of freedom.  Without their brave and selfless sacrifices, the world would be a very different and far less free place than it is today.

Just as important is passing on our traditions and values to succeeding generations.  In this photo, Scouts place flags on graves at the Cypress Hills National Cemetery in Brooklyn, New York.  Click on the photo for a larger view.

The "Broken" Criminal Justice System

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We keep hearing from the sentencing "reform" movement that our criminal justice system is broken.  We heard it once more today in an op-ed in the NYT.

Is it true?  Is our criminal justice system broken?

I stumbled across the graph below doing some research.  Judge for yourself.  

My own view is easy to state.  The claim that the criminal justice system is broken is not just misguided or poorly informed.   It's a point-blank lie.  The number of victims of violent crime aged 12 and over, per 1000 population, has dropped by two-thirds in one generation.  That is a spectacular success by any conceivable measure.  Whatever we're doing, we should do more of.
At SL&P, Doug Berman extensively quotes a NYT editorial about sentencing "reform" (i.e. letting felons out earlier to do it again, which the great majority will). The quotation starts with this paragraph (emphasis added):

It has been getting easier by the day for politicians to talk about fixing the nation's broken criminal justice system. But when states in the Deep South, which have long had some of the country's harshest penal systems, make significant sentencing and prison reforms, you know something has changed.

Here are a few statistics about how "broken" the criminal justice system is:  

The last time we had a number of serious crimes this low was 1973, or 42 years ago. The last time we had a murder rate this low was 1963, or 52 years ago. The last time we had a violent crime rate this low was 45 years ago.  The last time we had a property crime rate this low was 49 years ago. The last time the auto theft rate was this low was 51 years ago.  In 2013, the most recent year for which figures are available, we had 5,077,242 fewer serious crimes than in the peak crime year at the dawn of the Nineties.  That is more than five million fewer crime victims.

It may well be that, for the drug pushers, child rapists, con artists, thugs, hoodlums, rioters and others who earned the sentences we finally had enough sense to give them, the criminal justice system looks "broken." But on the theory that the NYT had a broader audience in mind, labeling the system "broken" is nonsense bordering on insanity.

Quick Now: Are There Thugs in Baltimore?

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In a world driven by race-huckstering and political correctness, it has become a matter of heated debate whether there are thugs in Baltimore.

Talking Points Memo carries the following story, noting that Baltimore Mayor Stephanie Rawlings-Blake, after a day of reflection on the arson, looting, and attacks on the police in her city, has got her Mind Right:

"We don't have thugs in Baltimore," Rawlings-Blake said. "Sometimes my own little anger translator gets the best of me..."

Her original use of the term "thugs" came on Monday night as she talked about the people engaging in violence amid protests over the death of Freddie Gray, a black man who died after suffering injuries while in police custody:

What we see tonight that is going on in our city is very disturbing. It is very clear there is a difference between what we saw over the past week with the peaceful protests, those who wish to seek justice, those who wish to be heard...and -- the thugs, who only want to incite violence and destroy our city.

I'm a life-long resident of Baltimore and too many people have spent generations building up this city for it to be destroyed by thugs...

So are there thugs or not?

In my last entry, I cited a Washington Post story on the President's remarks about the hooligan-driven anti-police rioting in Baltimore.  I noted that the President seemed to enter the Twilight Zone in taking the view that "long stints in prison" for Baltimore's criminals have contributed to its problems.  In fact, keeping criminals off Baltimore's streets is one of the few things that has helped alleviate its problems.

But the Post's reporting is none too swift either.  The Post's story says:

For Obama, there is a certain sense of déjà vu as Baltimore struggles with the aftermath of another death of a black man, apparently at the hands of police and seemingly without any crime having been committed.

Many critics believe Obama did not show enough passion or persuasion to connect with or restrain angry African Americans after the killing of Michael Brown by a police officer in Ferguson, Mo. Instead, Obama sounded calls for restraint, lawful demonstrations, commissions of inquiry and slow, steady progress toward reform.

Where to start?

Priorities for the New Attorney General

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The Crime Report is published daily by the Center on Media, Crime and Justice at the John Jay College of Criminal Justice in New York.  It includes investigative articles by a number of veteran crime reporters, plus analysis and commentary.

It asked me to write a memo for Loretta Lynch setting out what I believe should be her priorities as she takes the helm at Main Justice.  My response is here.  I start with questions about what model of leadership she should adopt (Michael Mukasey).  I go on to suggest how she should react when the White House starts to push her (push back) and what to do about the fact that by far most of the members of the majority party in the Senate opposed her (reach out to them).

I continue by making suggestions about what direction to take in dealing with drugs, over-criminalization, the decaying sentencing guidelines, assaults on the First Amendment (especially on campus), criminal justice "reform," the culture of grievance and racial preference, the growing chorus against police and prosecutors, calls for mass clemency, and enforcement of the death penalty.

That's for starters.  My extremely unsolicited (by Ms. Lynch) advice is set forth after the break. 
Now this is definitely the shortest opinion of the Ninth Circuit en banc I have ever read:

During a grand jury proceeding, defendant gave a rambling, non-responsive answer to a simple question. Because there is insufficient evidence that Statement C was material, defendant's conviction for obstruction of justice in violation of 18 U.S.C. § 1503 is not supported by the record. Whatever section 1503's scope may be in other circumstances, defendant's conviction here must be reversed.
A reversal for insufficient evidence implicates defendant's right under the Double Jeopardy Clause. See United States v. Preston, 751 F.3d 1008, 1028 (9th Cir. 2014) (en banc) (citing Burks v. United States, 437 U.S. 1, 11 (1978)). His conviction and sentence must therefore be vacated, and he may not be tried again on that count.
That's the whole thing.  The eleven judges on the pseudo-en-banc panel are so fractured that the court issued this brief disposition "per curiam" (by the court as an institution with no identified individual author) and then various judges weighed in with lengthy concurring and dissenting opinions.

Judge Rawlinson dissented, citing Ernest Lawrence Thayer.  "There is no joy in this dissenting judge. The per curiam and concurring opinions have struck out."   What's up with that?  The defendant is Barry Bonds.

Eric Holder Gets One Right

I have frequently been critical of Attorney General Holder, but I believe in giving credit where credit is due, and it is due here.

On the other hand, that he feels like he has to issue such instructions is a sorry comment on where DOJ is after more than six years of his "leadership."

New Leadership at NAAUSA

The National Association of Assistant United States Attorneys (NAAUSA) is an organization representing career federal prosecutors.  I was a member at one time, although my membership has lapsed.  It led the opposition of hundreds of prosecutors to the Smarter Sentencing Act, which failed in the last Congress (but has been re-introduced now).  Its opposition was cited by then Ranking Member, now Chairman, Chuck Grassley, in his statement in opposition to the Act after it got out of Committee.  It then never made it to the floor, despite then-Majority Leader Harry Reid's promise that he would bring it up  --  and that was before Sen. Reid lost the fight with his exercise bike.

NAAUSA last week elected Steve Cook as its President.  I have never met Mr. Cook, but I have occasionally exchanged emails with him.  I believe he is an outstanding leader for NAAUSA, and that he will do even more to strengthen its role in fighting the dumbing down of federal sentencing.

The text of part of the relevant part NAAUSA's press release announcing Mr. Cook's election follows the break.

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