Recently in General Category

The tape of the Federalist Society teleforum I had the opportunity to join with Judge Alex Kozinski is not yet available.  When it is, I'll post the link.

In the meantime, I can repeat only half the discussion, to wit, my opening statement.  (Judge Kozinski did not prepare a written opening).

Our debate continued what has become a national examination of some extremely important topics in criminal law, including what some call "incarceration nation," imploding crime rates, policing and police behavior, the reliability of forensic evidence, the increasing number of non-mens rea offenses, prosecutorial immunity, and plea bargaining, among many others.

Although the Judge and I had our disagreements, the breadth and sharpness of his knowledge was something to behold.

My opening is below.
I noted here that tomorrow, Tuesday November 24 at 3 pm EST, Judge Alex Kozinski and I will be talking over the failings (or successes) of the criminal justice system.  After introductory statements of 10 to 12 minutes each, we'll be taking audience questions.

The call-in number is 888-752-3232.  

Neither of us has much of a reputation as a wallflower, so if you have something about the system that's been bothering you, now is the chance to speak up with a question.
The Federalist Society will be hosting a teleforum next Tuesday at 3 pm EST titled, "Pros and Cons:  Our Criminal Justice System at Work."  The participants will be Judge Alex Kozinski of the US Court of Appeals for the Ninth Circuit, and yours truly.

The topic is introduced as follows:

Our panelists will discuss the criminal justice system generally, and the role of the prosecutor in particular.  Some argue that, with the weight of the state and its resources on one side, including a deep book of potential crimes, the deck is unfairly stacked against criminal defendants.  Others argue that police and prosecutors act in good faith, and credit them with incapacitating career criminals, trimming recidivism, and causing a plunge in national crime statistics.  Who has the better of the argument?

Judge Kozinski has been outspoken on this subject, see, e.g., his preface here to the 44th Edition of Georgetown Law's Annual Review of Criminal Procedure. 

There will be an opportunity for call-in questions.  A lively time should be had by all.
The U.S. House Judiciary Committee has this press release on a package of bills that, if the descriptions are accurate, may actually make improvements in the criminal law.

In recent years, it seems like every package labeled "reform" has actually been a proposal to condemn us to repeat the soft-on-crime errors of the Age of Aquarius. 

According to the press release, these four bills would address (1) the required mental state where the statute specifies none, (2) acts made criminal by regulations rather than statutes, (3) acts that never should have been made criminal in the first place, and (4) just plain drafting errors.  These are all genuine problems that genuinely need fixing.

I hope to have time soon to look at the actual bill language and see if the bills live up to their billing.

And I am really looking forward to citing the Fix the Footnotes Act of 2015 in a Supreme Court brief.

Veterans Day 2015

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To all who served in defense of our freedom, thank you. 

I have noted this on the blog before, but it bears repeating.  Statesmen may proclaim freedom until the cows come home, but the declarations are only scraps of paper unless and until the forces of freedom win the war.

The people who volunteer to fight that fight sacrifice much.  At a minimum, they give up much of their own freedom for the duration of their service and accept a life of discipline and obedience.  Too often, they sacrifice much more, lives and limbs.  We must not forget that or fail to respect it.
The LA Times was one of the biggest cheerleaders for Prop 47  --  an initiative which, with the Times' and other media support  --  won a decisive victory.  Prop 47 was the Golden State's version of what is known inside the Beltway as "sentencing reform."

Probably the central pivot in getting to victory was the promise that Prop 47 would not only save money but would make Californians safer.  The old idea that incarcerating criminals keeps them from committing crime was just Puritanical hogwash  --  either that or quasi-racist propaganda.

Enough time has passed, and enough results are in, to show that the promise was a lie.  I  strongly suspect the people making it knew it was a lie at the time, but wanted less incarceration anyway because they view criminals as victims, society as callous, and hoped either (a) that the fallout of increasing crime could be covered up, or (b) that someone else could be found to take the blame. 

The LAT seems to have settled on (b), having found itself unable to bring off a cover-up as big as has turned out to be needed.  Hence its new promise of a week-long explanation about how the crime-ridden outcroppings of its deceit are really the fault of (ready now?) the people who warned us about it.  

Do you get it yet?  Crime is never the fault of the people who do it.  It's the fault of those who, having been handicapped by our favorite Proposition, are now less able to clean up the mess.

Iran Channels Its Inner ACLU

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If you read this without the references to Iran, and without otherwise knowing the source, how many of you could tell it was not from the ACLU?

The Iranian regime is...inviting the families of those killed by law enforcement to attend a discrimination conference in Iran Monday.

The third annual "New Horizons" conference will focus on "police brutality against blacks in America," according to the event announcement.

"We have invited 30 anti-Israel blacks from America to attend," Nader Talebzadeh, the event organizer said in an interview with Cinema Press, an Iranian news outlet.

"Blacks in America are the only group who utilize their right to protest, and Iran is the perfect place to host them and to initiate a direct relationship with this segment of the American population," Talebzadeh said, referring to the 3-day conference as a gathering of "human rights defenders" and "social activists."

It gets worse from there, as you might expect.  But it's not that much worse than what you can hear every day in the faculty lounge at Harvard, Stanford or (to be honest) Georgetown.  For that matter, it's not that much worse, if any at all, than today's editorial in an esteemed newspaper.

One thing you have to love about the Left is that it cannot even begin to hear its own anti-Americanism. 

Until his death a few years ago, Prof. James Q. Wilson was arguably the foremost authority in the country on crime and justice issues.  Scott Johnson makes a strong case that the title now belongs to Heather McDonald:

Heather Mac Donald has made herself the most valuable player supporting law enforcement in the teeth of the generation-long movement against it originating in the American Civil Liberties Union. The movement has now culminated in Black Lives Matter and embedded itself inside the Obama administration. Celebrating its twenty-fifth anniversary, City Journal has just published Heather's powerful new essay on the subject under the title "The decriminalization delusion." I asked City Journal editor Brian Anderson for a brief introduction that might persuade readers to click on the link. Brian writes:

In "The Decriminalization Delusion," her deeply researched essay in our brand-new twenty-fifth anniversary issue, Heather Mac Donald shows how the growing movement to reduce incarceration (which has partisans on the right as well as the left) traffics in myths. The biggest myth of all, frequently promoted by President Obama, is that America's prisons and jails are filled with nonviolent drug users, kids who've just had a bad break or two. The reality is that prisons are dominated by thugs and serial thieves, as she noted as well in last week's Congressional testimony. If they're returned in large numbers to city streets, crime is sure to rise--and we're already seeing signs of it happening in California. This is the latest of Mac Donald's major essays on crime and punishment, which will be anthologized in a book in 2016.

Click here for the tape.

When President Obama announced his appointment of Jim Comey to be FBI Director, he was greeted with wide acclaim, including from me.  Comey's intelligence, experience and  --  most importantly for that position, independence and political neutrality  --  won him plaudits from all over the spectrum.

In a talk at the University of Chicago last week, Comey showed all his best traits, especially his independence, when he came out and said what many entries on this blog have said:  That ramped-up public snarling at the police has an intimidating effect, and that when the police are intimidated, crime goes up (which is exactly what has been happening for at least six months).

Thus, as Reuters reports:

Murder rates are soaring this year in many U.S. cities partly because police are holding back from aggressive tactics, fearful of being taped on smartphones and accused of brutality, FBI Director James Comey said on Friday.

Lie about them.

That's the message, shorn of the fluff, of this LA Times story.

The Los Angeles Police Department continued to struggle in accurately classifying serious assaults last year, according to an audit released Tuesday.

The audit comes after a Times investigation last year revealed that the department had routinely misclassified serious assaults as minor offenses that weren't counted in the city's crime rate.

The new review examined one crime category: aggravated assault. Based on sampling done by auditors, officials estimate that there were actually 23% more aggravated assaults in 2014 than the LAPD originally reported.

Big cities tend to be one-party jurisdictions, and the people running them have a strong incentive to cook the books to support the narrative convenient to their interest groups.  In California, those would include the (very flush) backers of Prop 47. Although they have had only limited success in covering up how much a crime disaster Prop 47 has been, they don't want the reported damage (and hence the push for repeal) to get any worse than it is now.  Hence the cooked crime statistics (not that this is the only reason  --  garden variety deceit and bureaucratic self-interest haven't gone away, either).

As the push for more widespread "sentencing reform" grows, I guarantee this will not be the last set of cooked figures we see, designed to have a lulling effect about the true incidence of rising crime.

French Train Attack Hero Recovering

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Here is a bit of good news.  Don Thompson reports for AP:

SACRAMENTO, Calif. (AP) -- A U.S. airman hailed as a hero for helping thwart a European terror attack was upgraded from serious to fair condition Friday as he recovered from three stab wounds suffered in a late-night attack near a bar, UC Davis Medical Center officials said Friday, indicating that his vital signs are stable and normal and he is conscious.

Airman 1st Class Spencer Stone, 23, "is awake, able to get out of bed and in good spirits," the hospital said in a statement.

Where the Justice System Can Save Money

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Justice is expensive.  This is a fact we need to understand.  But to understand it is not to say that taxpayers should put up with every expense some sorehead litigant can think of to create.

And it's not death penalty litigation I'm talking about here.  It's the story of a Municipal judge in Cleveland who was suspended by the state Supreme Court for being an abusive, arrogant prig.  She's in a trial, of sorts, seeking to undo the suspension. Thus far, Cleveland taxpayers have paid out nearly a million dollars with no end in sight, and no prospect visible in the story that the suspension should or will be overturned.

This is not a criminal case, mind you.  Indeed, it's not a "case" at all in the conventional sense.  But it is Exhibit A for the proposition that procedure has run amok.  No sane system would put up with this.

Perhaps one reason Cleveland is putting up with it is that the Judge in question is the daughter of a once-powerful Cleveland politician. But even that falls short.

The story is here.  I wonder if we'll be hearing from anyone on the Ohio death penalty study commission who takes the view that the expenses of capital sentencing  -- which has at least the virtue of being morally significant  --  might be better handled if we put an end to nonsensical waste like this.  
After the Republican Debate Wednesday night, numerous media outlets published "fact-check" stories regarding claims made during the debates.  So far I have not found a single "mainstream media" fact-check story that has questioned Carly Fiorina's whopper, "Two-thirds of the people in our prisons are there for non-violent offenses, mostly drug related."

As this pie chart illustrates (click on the graph for a larger view), that is not remotely close to the truth.  Why the silence?

Cutting Back the Excesses of the Lacey Act

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I noted here the wild overgrowth of the Lacey Act.  It started out as a conservation law, then sprawled beyond all comprehension.  It is Exhibit A in the effort to curb overcriminalization.  My former Georgetown Law student Jarrett Dieterle wrote an excellent case study about how an originally decently sensible statute can balloon beyond recognition.

I have often criticized Sen. Rand Paul, but he, together with Senate Majority Leader Mitch McConnell, deserve praise for their bill to pare back some of the Act's excessive criminal penalties.
Peggy Noonan has this column in the WSJ.  She is writing about the debate in Europe over how to deal with the refugee crisis, but what she says applies just as much to debates in this country over crime and punishment.

But here is a problem with Europe's decision-makers, and it connects to decision-makers in America.

Damning "the elites" is often a mindless, phony and manipulative game. Malice and delusion combine to produce the refrains: "Those fancy people in their Georgetown cocktail parties," "Those left-wing poseurs in their apartments in Brussels." This is social resentment parading as insight, envy posing as authenticity.

But in this crisis talk of "the elites" is pertinent. The gap between those who run governments and those who are governed has now grown huge and portends nothing good.

Rules on immigration and refugees are made by safe people. These are the people who help run countries, who have nice homes in nice neighborhoods and are protected by their status. Those who live with the effects of immigration and asylum law are those who are less safe, who see a less beautiful face in it because they are daily confronted with a less beautiful reality--normal human roughness, human tensions. Decision-makers fear things like harsh words from the writers of editorials; normal human beings fear things like street crime. Decision-makers have the luxury of seeing life in the abstract. Normal people feel the implications of their decisions in the particular.

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