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FedSoc Convention Video/Audio

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The video and audio recordings of the Federalist Society's 2017 Annual Lawyers Convention are now available here.  The Criminal Law Practice Group's panel was Thursday at 3:30.  The address by Attorney General Sessions was Friday at 2:15. 

FedSoc Convention Live Stream

The Federalist Society's Annual Lawyer's Convention is tomorrow through Saturday.  The FedSoc is live streaming selected portions of the program at this page.  The Criminal Law panel, titled What Should Be Done to Address Rising Crime Rates, is tomorrow at 3:30 - 5:00 EST. The address by Attorney General Sessions is Friday at 2:15 - 2:45.

The Difficulties of Having an Honest Debate

One of the very neat things about Crime and Consequences is the opportunity to have an honest debate.  Within normal rules civil discourse, debate is welcome here, and there have been numerous enlightening debates about, for example, the death penalty, sentencing, judicial selection, and police behavior.

Of late, I have been blogging less, and Kent's entry today, Known Felon With Gun Goes on Shooting Rampage, reminds me why. 

The entry highlights something we have seen again and again:  A known, dangerous criminal who could have and should have been in jail was set free; does dreadful and, in this and other cases, lethal damage; yet the drumbeat about how we have a problem with overincarceraion goes on without a hitch, simply whistling past the huge and massively documented costs of underincarceration.

It's simply impossible to have a worthwhile debate with people who will not so much as acknowledge, much less take seriously or give a forthright accounting of, the costs their policies will impose and are imposing.

Veterans Day 2017

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Home of the Free Because of the Brave
Orin Kerr has this post at the Volokh Conspiracy discussing "a new case, from the Massachusetts Supreme Judicial Court, on the intersection between the pearly gates and the cloud."

Jason Riley on Thurgood Marshall

Jason Riley has this column in the WSJ regarding Thurgood Marshall, a new film about him, and Marshall's opinion of "activists."
The movement against "overcriminalization" covers too much territory to allow me to take a position on it.  To the extent it condemns non-mens rea offenses, or seeks to scale back using criminal law as the cudgel of the nanny state, I'm for it.  To the extent it's just cover for the movement to legalize heroin and other drugs, I'm against.

The following example, however, shows why the campaign against overcriminalization has merit, now more than ever.  When we threaten our fellow citizens with a year in the slammer simply for being boorish, things are out of hand.  

Here's the story:

California can now start jailing people that refuse to use the preferred gender pronouns of nursing home residents after Democratic Gov. Jerry Brown signed the bill Thursday.

The law's effect is limited to nursing homes and other long-term care facilities, but mandates that those who "willfully and repeatedly" refuse "to use a transgender resident's preferred name or pronouns" can be slapped with a $1,000 fine and up to one year in prison, according to the California Health and Safety Code.

Sgt. Manning, freshly living free courtesy of a gigantic commutation for treasonous behavior, must be wearing a big smile just now.

CORRECTION:  It was Pvt. Manning, not Sgt. Manning, at the time of discharge.

The kind of criminal justice "reform" that gets most talked about is "sentencing reform."  That label is code for a return to unserious sentencing for dealers in hard drugs like heroin, and for indulging anything-goes discretion for judges.  In other words, it's a call for a return to the failed policies of the past  --  the kind of policies that brought us a generation's worth of exploding drug use and crime through the Sixties, Seventies and Eighties.

But there's a kind of reform worth doing  --  although, oddly, no Democrats seem interested in doing it.  That would be mens rea reform.  I'm grateful that Sen. Orin Hatch, together with Sens. Cruz, Perdue, Mike Lee and Rand Paul have introduced a bill to get it done.

This should be easy for anyone interested in justice rather than The Agenda.  The idea was summarized by Sen. Hatch in his press release introducing the bill: "Individuals should not be threatened with prison time for accidentally committing a crime or for engaging in an activity they did not know was wrong."

I will add only one brief thought.  Not only is criminally punishing someone for accidentally creating injury morally wrong (tort law, by contrast, provides remedies for negligent injury); it undermines the essential distinction upon which citizens accept the imposition, and the stigma, of criminal punishment  --  that a bad heart deserves a different response from the law than just a poorly functioning brain.

UPDATE:  Kent makes an important distinction I failed to elaborate.  Extreme negligence can indeed stand in the shoes of bad intent for criminal law purposes, as it did in a case I was involved with many years ago, US v. Fleming, 739 F.2d 945 (4th Cir. 1984).  A drunken defendant unintentionally, but with gross negligence, collided with and killed a mother of nine.  It remains one of the most horrible cases I ever dealt with, and no mens rea reform should exclude instances like it from the reach of criminal law.
No, they're not running to blockade Heather MacDonald's next campus appearance. That's tomorrow at their "Social Justice Warriors Rally for Inclusion, Except for You" What they're scurrying away from today are the nationwide data showing a second consecutive sharp increase in murder.  This is after a generation of steep declines, almost all of it under the get-tough policies of Presidents Bill Clinton and George Bush.

The number of murders last year was 17,250, a staggering increase of more than 3000 corpses, or 20% more, than what the country had just two years before (14,164). The statistics are found in the revised UCR report, here

To put it in perspective, the UCR shows that we have not had this many people murdered in one year in America for 20 years.  Or to put it more graphically, in the last two years of Obama's Presidency. we lost nearly two decades of progress against murder.

That situation is a shock and crisis under any sane understanding.  Will any lessons be learned?  Will any sobriety return?

From the usual Leftist crowd that insists we must adopt "evidence-based policies," beware this afternoon's stampede to spin, belittle, dismiss, or just ignore this morning's evidence  --  or to claim that, gosh, it's all just a mystery.  But the one danger you won't face is hearing any of the previous trumpeting about the "success" during these same years of state "sentencing reform" programs that gave shorter sentences and earlier release to thousands upon thousands of criminals. But it's not hard to find the earlier chest-thumping with just a little looking, e.g., here. and here.

Still, I must concede, it's true:  Incarceration has indeed been reduced.  Are we, as sentencing reformers promised us ten thousand times, "just as safe?"  What does the evidence say?

The wages of reality-free policy-making is, literally, death.

A Black Life that Didn't Matter

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The Washington Post reports (emphasis added):

Zaire Kelly was returning home from a college prep course and was less than 300 feet from his front door when authorities said a man tried to rob him along a footpath in a small park in Northeast Washington.

The 16-year-old Zaire -- a standout high school senior and track athlete -- used a pocket knife to defend himself Wednesday night, D.C. police said, and stabbed the attacker in the abdomen. Police said the would-be robber had a gun and shot Zaire once in the head....

Police identified the assailant as Sequan Keyleo Gillis, 19, who had been freed from jail two weeks ago to await trial on a charge he took a vehicle without permission, and he had been wearing a court-ordered GPS ankle bracelet to track his movements.

It's certainly comforting that the criminal justice system was "track[ing] his movements" while he murdered a young black man with a world of promise.

This sort of preventable murder of African Americans  --  preventable if we changed our thinking from naivete' and "community supervision" to a decent regard for the next victim  --  has become so routine that it's difficult any longer to think of laxity as mere foolishness instead of head-in-the-sand racism.  

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!

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