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Robocalls

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All I want for Christmas is to stop the damn robocalls.

Congress passed the Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act last week, and the President is expected to sign it. Ryan Tracy and Sarah Krouse report for the WSJ on what the act will and won't do.

Memorial Day 2019

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MemorialDay2019.jpg


















Take a moment today to remember those who gave the last full measure of devotion.

Soft on Crime Up North

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The Fairbanks News-Miner has this op-ed by seven of Alaska's nine district attorneys:

Many of us are lifelong prosecutors who have spent years in the trenches trying to do the best we can to keep Alaskans safe and seek justice. We work side by side with law enforcement to try and get those offenders off the street who are likely to do more harm, get those offenders into treatment who need some help and achieve the best outcome under the circumstances to protect the community. The current criminal laws tie our hands along with the hands of judges and keep us from achieving these important goals.
Among the problems noted are a lack of consequences for drug offenders, removing an important incentive to them to get clean, a risk assessment tool that doesn't work, particularly with chronic offenders, insufficient consequences for probation and parole violations, and failure of the sex offender registration law to include out-of-state offenders moving to Alaska.

"Justice" for Whom?

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Rafael Mangual has this article in the City Journal with the above title. The subtitle is "Left-leaning urban prosecutors are working to undo the successes of the crime-fighting revolution."

Anarchy May Be Hazardous to Your Health

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Kelly Weill reports in the Daily Beast:

John Galton and his girlfriend Lily Forester had finally made it. On a March 2017 evening, the young American couple sat on their balcony above Acapulco, Mexico, counting their blessings. They'd recently moved into a big house on a mountainside and were eyeing an ambitious push into the artisanal bong business.

Galton and Forester were anarcho-capitalists who slipped U.S. drug charges worth 25 years in prison, they said in a YouTube video that night. They'd hopped the border and resettled in what Galton called one of the world's "pockets of freedom," a community billed as a libertarian paradise.

Almost two years later, Galton was murdered.
The subhead of the article is, "A bitcoin millionaire created a haven for 'anarcho-capitalists' in Mexico. When one of his followers was killed, he said it was just the cost of doing business."

One Bad Idea After Another

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Bob McManus has this article in the City Journal lamenting the parade of bad ideas on crime in New York, although the problem is certainly not limited to New York.

New York governor Andrew Cuomo is urging the exemption of mugshot photos and arrest booking information from public disclosure under New York's freedom of information laws. This is understandable, given the impressive montage that might be made from mugshots of one-time Cuomo aides, advisors, and associates now on their way to prison, but it nevertheless raises serious civil-liberties issues around press freedom and public information--and it seems like yet another gubernatorial pander toward the Democratic Party's crime-coddling Left.

Cuomo isn't the only politician moving in this direction. Virtually the entire Democratic presidential field has embraced it to one degree or another, as has every elected Democrat of note in New York. And Cuomo is typical of the state party's establishment. He long ago embraced sanctuary-statism. He has turned a blind eye to the wholesale theft of mass-transit services--that is, fare evasion--that cost the MTA $215 million last year. He's on board with the refusal of most New York City district attorneys to enforce laws against the public use of illegal drugs, and he strongly backs the legalization of marijuana. He hasn't said a word about the de Blasio administration's effective abandonment of quality-of-life policing in the streets, or about the need for discipline in public schools.

These positions are rooted in the left-wing notion that "social justice" must take precedence over criminal justice when enforcement of certain laws falls disproportionately on favored demographic groups. It's the doctrine of disparate impact, along with its cousin in the public schools, restorative justice--together, the two concepts are turning conventional standards of accountability on their head.

Burglary and Shoplifting

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From the California Supreme Court today in People v. Colbert, S238954:

In approving Proposition 47, the 2014 voter initiative that reclassified certain theft-related and drug-related felonies as misdemeanors, voters created a new misdemeanor offense called "shoplifting." (Pen. Code, § 459.5.) Shoplifting is defined as the act of entering a commercial establishment with intent to steal property while the establishment is open during regular business hours, where the value of the property taken or intended to be taken is $950 or less--an act that had formerly been punishable as felony burglary. (Ibid.; see id., § 459.) This case presents a question concerning the line separating shoplifting from burglary: If a person enters a store during regular business hours but then proceeds to a private back office with intent to steal therefrom, which crime has he or she committed? We conclude that entering an interior room that is objectively identifiable as off-limits to the public with intent to steal therefrom is not shoplifting, but instead remains punishable as burglary.
Opinion by Justice Kruger, unanimous.

Defending America's Prosecutors

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AUSA Timothy Harker has this article in the journal of the NAAG Training & Research Institute:

More than thirty years of law review articles insist that overzealous prosecutors, intentionally or negligently exceeding the scope of their legitimate authority, present a systemic threat to the very foundation of our criminal justice system ...

In reality, there is virtually no empirical support for these propositions.  On the contrary, the available evidence supports the conclusion that prosecutorial misconduct occurs with admirable infrequency and the nation's federal, state, and local prosecutors perform their daily tasks with an impressive fidelity to their constitutional and ethical responsibilities.  The vitriol with which they are attacked is unwarranted.

Federalist Society Convention

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The annual National Lawyers Convention of the Federalist Society is next week, Thursday the 15th through Saturday the 17th. The panel sponsored by the Criminal Law Practice Group is The Pros and Cons of Plea Bargaining, 3:30 to 5:00 Eastern Time Thursday. That's 12:30 to 2:00 here on the Left Coast.

If you can't make it to Washington, I expect it will be available live-streamed here. The panel is:

  • Hon. Stephanos Bibas, United States Court of Appeals, Third Circuit
  • Mr. Greg Brower, Shareholder, Brownstein, Hyatt, Farber, Shreck
  • Prof. Carissa Hessick, Anne Shea Ransdell and William Garland "Buck" Ransdell, Jr. Distinguished Professor of Law, University of North Carolina School of Law
  • Mr. Clark Neily, Vice President for Criminal Justice, Cato Institute
  • Moderator: Hon. Lisa Branch, United States Court of Appeals, Eleventh Circuit

Goodies for Crooks in the Fine Print

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James Coll reports in the City Journal how New York politicians cleverly wrote an ostensibly anti-corruption ballot measure so that corrupt pols often keep their government pensions while in the slammer.

Sheldon Silver was due to begin his seven-year sentence this week for violating the law, the public trust, and the responsibilities of his office as assembly speaker--a position he occupied for 21 years. Though a federal judge has stayed his entry date while Silver appeals his conviction, many New Yorkers are justifiably pleased to see Silver heading off to jail, viewing his conviction as a long-overdue draining of the Albany swamp. With recent convictions of other top players in state politics, it appears that New York may have begun to clean itself up.

But while Silver is eventually going to prison, he won't lose a single taxpayer-funded pension paycheck of $6,602 per month, even while serving his time behind bars. And in spite of his own federal conviction, former New York Senate Majority Leader Dean Skelos also continues to receive a $95,831 annual pension, courtesy of New York taxpayers. If this makes you angry--as it should--it might further upset you that these ill-gotten pensions could have been eliminated if our elected lawmakers had done their job properly during the most recent legislative session.

Last November, New York voters passed by a nearly two-to-one margin a state constitutional amendment known as Proposal #2. The common reading of the proposal, and the one most people thought that they were voting for, was that it would punish legislators convicted of felonies by stripping away their pensions. In reality, lawmakers wrote an amendment with enough poison pills to ensure that even when they lose, they win.

An Ill-Conceived Felony Murder Bill

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Presently on California Governor Jerry Brown's desk is a bill to revamp California's felony murder rule. There are just two problems. First, the bill is poorly written, retroactive, and would put murderers on the street. Second, the bill is unconstitutional because it effectively amends a statute enacted by initiative, which can only be done by putting it back on the ballot and letting the people vote on it.

Let's take the second point first. That is not merely my opinion or the prosecutors' opinion. The Legislative Counsel told the legislators that, and they passed it without a ballot-ratification provision anyway. The letter is here.

On the substance, some pruning of the felony murder rule may very well be in order. In recent years, though, both the Legislature and the proponents of initiatives in California have gone at the criminal law with chain saws instead of pruning shears. This bill is no exception. The most obnoxious of the provisions is the retroactive reopening of old cases.

Reopening old cases is an exceptionally dangerous business, and it often results in further sentence reductions for criminals who got off too easy the first time. Old cases are often the result of plea bargains. Those that did go to trial will lack specific findings that were not required at the time on facts that might have been easy to prove then and impossible now.

Forty-two of California's district attorneys have signed a letter asking Gov. Brown to veto the bills. The signers include DAs from some of the state's most politically liberal jurisdictions, including Alameda and Marin Counties. Darrell Smith has this story in the Sacramento Bee on this bill and another dangerous one regarding under-16 murderers.

I do hope the governor vetoes it. If not, the fight to have it thrown out for violating the California Constitution will begin immediately. Perhaps next year the proponents will be reasonable and work out a judicious pruning of the felony murder rule.

Expunging DNA and Retroactive Laws

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California collects DNA samples from people convicted of felonies or the juvenile court equivalent. Proposition 47 reclassified many felonies as misdemeanors and allowed reclassification of old convictions. If a pre-Prop. 47 felony conviction is reclassified as a misdemeanor, is the defendant entitled to expunge his DNA from the database?

No, the California Supreme Court ruled unanimously today in In re C.B., No. S237801.

The decision is mostly an exercise in statutory interpretation which may not have much relevance to other states. Another interesting aspect of the case, though, is the effect of retroactively applying changes in the law when the prosecutors would likely have charged the same conduct differently if current law had been in effect then.

Braiding While Unlicensed

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There may be no better example of overcriminalization than the 2014 arrest of Melek Ustunluk in Passaic, New Jersey for the crime of braiding hair without a license.  Taylor Tiamoyo Harris had this story at NJ.com in May on the controversy and the bipartisan legislation then going through the New Jersey Legislature to fix it.

Well, Governor Phil Murphy vetoed the bill.  The WSJ has this editorial titled A Hair-Brained Veto.

AG Sessions Addresses CJLF Annual Meeting

Yesterday, the Criminal Justice Legal Foundation held its annual meeting in the Biltmore Hotel in downtown Los Angeles.  We were honored to have U.S. Attorney General Jeff Sessions as our guest speaker.  His remarks are available on the USDoJ web site.


I gave my report to the board on CJLF's work since the previous meeting, as I always do.  Then Mr. Sessions gave us his remarks, choosing to focus on the immigration controversies.
Alison Sider and Andrew Tangle have this article in the WSJ.

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