Recently in General Category

As I noted last week, the failure to impose the death penalty on violent and dangerous killers gives them the opportunity to do it again.  Every now and again they do; indeed, there are more than 100 instances of killing by inmates previously convicted of murder (there may be many more than that; I lost track years ago).  If abolitionists view these murders as even regrettable, much less as a serious moral problem, I have yet to hear about it.

Reader federalist alerts me to three more preventable murders that were committed recently in Florida.  These were not because of a prior failure to impose capital punishment, but they stem from the same clueless Give Peace A Chance "thinking" that oozes from the abolitionist mind.

The story is that when twice-convicted felon Kelser Dufrene, an immigrant from Haiti, was released from his most recent prison sentence (his first arrest was at age 14), he was supposed to be deported.  But it never happened because, even though ICE authorities had him in custody, they let him loose under an Obama administration edict that no one could be deported to Haiti in light of the damage and chaos in that country wrought by the earthquake two years ago.  Instead, ICE released him to prey upon the legal residents of Miami, which he promptly did by killing three of them, including a 15 year-old girl.

The story is here, and the moral of the story is that as long as the criminal justice system allows gushing sentiment to replace hard thinking about what's going to happen next, this sort of travesty is certain to repeat itself. 

Devlin Barrett reports in the WSJ:

The Federal Bureau of Investigation shut down Thursday one of the world's most popular file-sharing websites, MegaUpload.com, and announced the arrest of four of the people behind it in a global crackdown against the suspected online pirates.

The FBI's move pushed the raging piracy debate to new territory: the role of online 'lockers' where users around the world store and share material, often times pirated movies and music. The raid came a day after Washington lawmakers were besieged by complaints about legislation designed to crack down on offshore file-sharing services. Internet sites like Wikipedia and Google Inc. protested the legislation as censorship.

A copy of the indictment is linked to the story.

Jack Dolan has this story in the LA Times about appalling actions by California's State Personnel Board.

When does the law require a person to report a crime by someone else?  That question is getting renewed attention in the wake of the Penn State scandal.

At common law, there was a crime called misprision of felony.  Most states have abolished it.  The federal code still has it, 18 U.S.C. §4, but that statute requires an element of concealment as well as nonreporting.

A wide variety of people whose work involves children are required to report child abuse under various state and federal laws. 

Everyone in mental health knows the Tarasoff rule, a case law tort rule requiring psychiatrists, etc. to break confidentiality and warn the target of a specific threat by their patient.  Too bad our profession will not accept for itself the same kind of duty to report and limit on confidentiality that it imposed on another.

Kimberly Hefling of AP has this story on the Clery Act.

Prof. Doug Berman put up an entry today on Sentencing Law and Policy about the last book published by the late Harvard Law Prof. William Stuntz.   The book is titled, "The Collapse of American Criminal Justice."   Its thesis, not too surprisingly given the title, is that our criminal justice system has fallen into utter failure.

Prof. Berman's entry notes that the Stuntz book was reviewed by former Justice John Paul Stevens.  The review is favorable, and likewise laments the putatively rampant shortcomings of the system, even while noting that Justice Stevens would refrain from using the word, "collapse."

Hello!!!   

The whole thing  --  all of it  --  is preposterous.  Over the time this alleged disaster is supposed to have happened (roughly the last 20 years), the crime rate has fallen off a cliff.  The property crime rate is down by 43%; the violent crime rate by 47%, and the murder rate by slightly more than 50%.  The raw figures are here, and you can do the math yourself.  If you look at the numbers, you'll see that the murder rate is lower now than it has been at any time in almost 50 years.

Perhaps the most stunning figure, however, is this:  The number of serious crimes annually 20 years ago was 14,872,900. The number last year was 10,329,135. That is a drop of 4,543,765.  Four and a half million fewer crime victims.

That is not a "collapse" or anything remotely similar.  It is, to the contrary, an astonishing success story. I am not aware of a similarly successful domestic program of comparable size and scope, ever.

I will readily concede that the system looks "broken" to two categories of observers: (1) academics who never saw a criminal for whom an excuse could not be manufactured, and who thus lament their incarceration; and (2) the criminals themselves, now thankfully keeping each other company rather than the rest of us.

One of the favorite slogans of the "Incarceration Nation" crowd is, "Schools Not Prisons!"  This is shorthand for the argument, such as it is, that the money we spend on prisons would be better spent on schools.

There are at least two tacit assumptions going on here.  The first is that we're not getting all that much for the money we spend on imprisonment.  The second is that we'd get a good  return, or at least a better one, by putting the money into education.

Both assumptions are, not merely wrong, but demonstrably preposterous.  I have shown previously that the money we invest in imprisonment has reduced serious crime  -- murder, rape, robbery and so  on  --  by more than one million episodes a year.  I am not aware of any domestic program, ever, that has had such dramatic and beneficial results.

And what's the return on the much larger amount of money we have spent on education?  While billions upon billions have been poured into schools and  teachers, and education spending per pupil has doubled over the last forty years, the improvement in educational attainment has been  --  ready now?  --  zip.

That's  zip, as  in zero.  The charts tell the tale (courtesy of John Hinderaker at Powerline).  This is something to remember next time someone from Occupy Wall Street, or whatever, starts chanting "Schools Not Prisons."

...what it would be like to have real leadership from the President on issues in criminal law.?

Once upon a time, we knew.

Reader mjs alerts me to a Slate article pointing to the reason crime has continued to decrease even as the recession and its aftermath linger. 

Now it's a little odd that anyone would feel the need to "explain" a new cause for the continuation of a trend  that's been underway for 20 years or so.  But when you see what the explantion is, and who's pushing it, the oddness vanishes.

The theory is that crime has continued to decline because Barack Obama got elected, and the cheerleaders  for this theory are  --  you guessed it  --  a bunch of academics who were swooning for exactly that!

Yes, the article does begin with a mumbled admission that the reasons for the generation-long drop in crime are already fairly well understood.  It even admits, albeit quickly and quietly, that increased incarceration and more aggressive policing are in the mix.  But the real reason, you see, is that Obama's election has "given the government more legitimacy."

Let's accept this conclusion arguendo, notwithstanding the fact that the government beforehand was perfectly "legitimate" under any comprehensible standard, whether or not you would have preferred Kerry to win the 2004 election. 

The new argument is baloney anyway, because its tacit premise is absurd.  The premise is that the folks otherwise inclined to knock over the gas station or belt granny with a tire iron to get her purse are first assessing their "faith in governmental and social institutions," as opposed to, say, their desire for more moola.

You have to wonder whether the people pushing this theory have spent even ten minutes in a criminal courtroom.  If they had, they might understand that the real reason people commit crime is to get money without working for it, and the real reason they refrain is when they think "governmental and social institutions"  --  namely jail  --  will be waiting for them if they get caught.

There is much talk these days about how "overcriminalization" is unnecessarily driving up costs and putting people in prison  --  often federal prison  --  who don't need to be there.

There is something to this, and good people like former Attorney General Ed Messe have expressed their concern.  At the same time, I suspect that some of the "overcriminalization" push reflects heartburn about any criminalization at all.  Isn't the more serious problem criminals, not ciminalization?

For however that may be, the overciminalization side got a boost today when the Chairman of the Senate Judiciary Committee provided what is likely to become Exhibit A:  He wants to make it a federal felony to mislabel products as containing maple syrup.  And no, I am not making this up.

The big drive to save money is on.  I'm all for it  --  as long as we're saving it in the right places.  That would be, for example, bloated nanny state entitlements, which we have known for years we can't afford and shouldn't be handing out anyway.  (The lesson my parents taught was that you make your own way and pay your own bills. And yes, I know, I'm an anachronism).

Still, there's broad agreement, I would hope, that we'd cut back on a lot before we'd cut back on the first obligation of government, that being to secure the physical safety of the citizens and prosecute those who jeopardize it.

So much for that, at least in Topeka, Kansas.  Want to belt your wife around?  Have at it.

The cynicism of liberals is just astounding.  For how many decades have they told us we could, and should, spend without limit?  Now they say they've discovered frugality  --  only it's a frugality aimed at programs they never liked to begin with, like the police and prosecutors.  The actual cause of our impending bankruptcy  --  entitlement addiction  --  will go unaddressed while women get beaten up.

This is where it leads.  And this is only a preview. 

 

AP reports another strange story from the Texas-New Mexico borderland:

The Neuroskeptic blog has a great post about the controversy surrounding the practice of "Le Packing" that is used with autistic children.  Not only is this practice complete bunk, but it is child abuse.  Alas, there is a great movement afoot to resurrect psychoanalytic thought by wedding it to neuroscience.  Not all psychoanalytic thought is worthless, but a whole lot of it is.  One way to tell whether someone is trying to pull the wool over your eyes is the use of jargon.  Social scientists love to use jargon when they're hiding the fact that they don't really have anything useful to say after all.

Case in point:

During the first months of life, an infant will actively practice his or her archaic reflexes. Of these, the grasping, which will progressively disappear as voluntary prehension emerges around the age of 4-5 months, is of great interest. The facilitation and/or anaclitic relationships between this reflex and adhesive identification are even more interesting to study together because, for instance, in an autistic child, the first model will integrate under the form of pathological adhesive identification.

In such an example, a strategy for thinking about these two phenomena and making them compatible is using a third term (e.g., Peircean logic, in which adhesive identification is an icon of grasping). If we refer to this important principle from this great American semiotician, the icon is part of the logical representation scheme from the most elementary, the icon, to the most evolved, the symbol, passing by the intermediate, the index...

In the age of cutbacks to the criminal justice system, one thing we should preserve  --  yea, expand  --  is, we are told, job training for inmates.  In principle, this makes perfect sense.  If inmates don't have job skills, you don't have to be a genius to figure out what they're going to do to get money once they're released. 

But what, exactly, is the government's version of "job training?"  This would seem to be a central question, but I seldom see it asked.  A recent Wall Street Journal piece took a look.  The job training it surveyed was not specifically designed for inmates, but it's reasonable to assume that what inmates get won't be any better (when is it ever?).

What the WSJ found was that "job training" imparts, not so much marketable skills, as a combination of freebies for politicians, bad work habits for trainees, and outright nonsense.  For example:

...the Job Training Partnership Act, JTPA , spent lavishly--to expand an Indiana circus museum, teach Washington taxi drivers to smile, provide foreign junkets for state and local politicians, and bankroll business relocations. According to the Labor Department's inspector general, young trainees were twice as likely to rely on food stamps after JTPA involvement than before since the "training" often included instructions on applying for an array of government benefits.****

[The recent] stimulus package expanded federally funded summer jobs. And so young men and women used puppets to greet aquarium visitors in Boston. Teens in Washington, D.C.'s Green Summer Jobs Corps maintained "school-yard butterfly habitats." And summer workers in Florida, the Orlando Sentinel reported, "practiced firm handshakes to ensure that employers quickly understand their serious intent to work."

The article is depressing but revealing.  It's a primer on what to bear in mind the next time you're lectured about the virtues of "job training."

I think I've related the old joke about why scientists doing behavioral experiments with animals are considering switching from rats to lawyers:  There are some things a rat won't do.

The joke came to mind when I saw this article.  Readers may judge for themselves whether a rat would do it.

Sure, defense counsel in a capital case has to push the envelope.  It might be proper to seek information about whether the officer charged with inserting the needle has hand tremors or bad eyesight.  But the inquiry here mocks  --  how shall I put this?  --  the evolving standards of decency that mark the progress of a maturing society.  Well, maybe not so much.  It mocks any decency at all.

We have also seen recent efforts by the bar to ban comfort dogs used to help terrified child rape victims when they testify, and to pooh-pooh the sexual sadism that went on in the Petit murders by saying (almost certainly falsely) that Mr. Nicey didn't really sodomize the 11 year-old victim before he burned her to death, he "claimed only to have 'ejaculated upon' the girl," 

This kind of stuff is what some call "acting in the highest traditions of the profession."

Yikes.

The following is a guest post by Andrea Vitalich:

As a person who has been proud to serve the public as a prosecutor for over 15 years, I have long believed that the most critical decision a prosecutor makes in any case is the charging decision.  In making this critical decision, a prosecutor must try to accurately describe the scope of the defendant's conduct, to charge the case in a manner that will result in a punishment that is proportionate and just, and to avoid overreaching.  In other words, a prosecutor should always serve justice.  If a prosecutor does not serve justice, and makes a charging decision that is unjustly lenient or unreasonably harsh, that prosecutor will serve only to shake the public's confidence in a system of which many are already distrustful.

 

That said, it is sometimes the case that the only just decision is not to charge a crime at all.

 

These principles were brought into sharp focus when I read this story about the prosecution of several Italian scientists, who are charged with manslaughter.  Their "crime," according to the prosecutor, was the failure to issue a sufficiently urgent warning about the possibility of an earthquake following a period of seismic activity in a region where -- six months later -- a serious quake killed over 300 people.

While the deaths of these innocent people is unquestionably a tragedy, what theory of criminal liability supports the charge of manslaughter in these circumstances?  Was the scientists' conduct (or, in this case, the lack thereof) criminally negligent?  Certainly, if the scientists had known with any degree of certainty what would occur in six months' time, they would have shouted urgent warnings from every rooftop.  I'm no scientist, but even I understand that predicting an earthquake is about as exact a science as predicting the stock market these days.

 

What overarching purpose does this prosecution serve?  Certainly not deterrence, unless the conduct to be deterred is the issuance of any information whatsoever by any Italian scientists in the future.  Not retribution, because the scientists did not cause the deaths, even in the most Rube Goldbergian view of the universe.

 

Perhaps if the Italian prosecutor had asked him- or herself what I believe is the most crucial question, this prosecution would have never begun.

 

That question is:  Will this charge serve justice?