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The New York Times is a wonderfully reliable mouthpiece for the interests of criminals, drug pushers in particular, and it does not disappoint in yesterday's editorial.  What it adds, however, are two  point-blank lies early in the piece designed to smear Donald Trump.  

This is the editorial's first sentence:  "In the decade or so before Donald Trump became president, America's approach to criminal justice was changing fast -- reckoning with decades of destructive and ineffective policies that had ballooned the prison population and destroyed countless lives."

The proposition that our criminal justice policies were "ineffective" is not merely breathtakingly false but upside down.  Over roughly the last three decades, starting in the term of President George H. W. Bush, crime rates fell by half.  These policies, in particular more police, more aggressive policing, determinate sentencing systems, and increased use of incarceration, have to count by any sane reckoning as one of the biggest success stories of the post-WW II era.  And they did not destroy lives; they saved lives, by the thousands.

The Times quickly moves on with this:  "Within minutes of taking office, Mr. Trump turned back the dial, warning darkly in his Inaugural Address of 'American carnage,' of cities and towns gutted by crime -- even though crime rates are at their lowest in decades."

Good grief.  Crime rates are not "at their lowest in decades."  In the two years before Trump took the oath in January 2017, violent crime had skyrocketed from what it was just in 2014.  Murder increased by more than 20% nationwide in 2015 and 2016.  Indeed, in those two years alone, we gave back all the gains we had made against violent crime since 2010.  The Times can read the same statistics anyone can find in less than thirty seconds  --  and it very likely did, and simply chose to lie about them.

Finding Common Ground on Criminal Justice

Although there remain stark differences on criminal justice reform, it occurs to me  --  thanks in part to President Trump's sometimes moving State of the Union Address  --  that there are potential areas of common ground.  Three come to mind.

1.  Prison reform.  Conditions in federal prison are decently good, but this cannot uniformly be said for the states.  Same with health care and vocational training.  

Prisoners are our fellow human beings.  In the huge majority of cases, they earned their way to incarceration.  But almost all will return to civil society one day, and for their sake and ours, they should be given every reasonable chance to lead safe and productive lives.  Efforts at rehab are not uniformly successful to say the least, but that is not a reason to give up.  It's a reason to try harder.

2.  Mens rea reform.  It should be too obvious to need saying, but no one should go to jail for behavior a normal person would not regard as wrong, much less criminal.  The increasing use of criminal law as a cudgel of the administrative state is a threat to liberty and needs to stop.

Some who have been dragging their feet on this question argue that mens rea reform would make it more difficult to impose criminal punishment on corporate executives.  These tend to be the same people who, in every other context, understand that, under the Constitution, it ought to be difficult to impose criminal punishment on any citizen.  But something about corporations drives them nuts.

3.  Mandatory sentencing.  Mandatory minimum sentencing was and is needed to rein in naive, willful and feckless judges  --  judges who were part of the problem in America's 30 year-long crime explosion, 1960-1990.  To the extent mandatory sentencing has also been a part of the increased use of incarceration, it has accounted for a portion of the sharp decrease in crime, and is thus a major public benefit.

That understood, there is room to debate whether mandatory sentencing is better undertaken through statutory minimums or through mandatory guidelines rigorously enforced.  Since we no longer have mandatory guidelines, this is for the moment a moot question.  If such guidelines were to return, however, and if they proved fully effective after a period long enough to be sure, the possibility of changes in mandatory minimum sentencing statutes would at least be worth examining.

Why We Separate Church and State

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Religion informs the moral beliefs that shape many, probably most, Americans' views of criminal law.  To my way of thinking, this is a good thing.  The Constitution, however, separates church and state, and, to my way of thinking, this is also a good thing.  One of the reasons for this is captured in the following headline in the ABA Journal:  "Judge informs jurors that God told him accused sex trafficker isn't guilty."

Jurors in Comal County, Texas, weren't swayed when the judge entered the jury room and said that God told him the defendant wasn't guilty.

Judge Jack Robison said God told him to let jurors know that Gloria Romero Perez should not be convicted, report the Austin American-Statesman and the San Antonio Express-News. Robison spoke with jurors after they signaled they had reached their verdict, jury foreman Mark House told the Express-News.

Jurors had already decided to convict Perez on a charge of continuous trafficking of a person and to acquit her on a charge of sale or purchase of a child. They stood by their verdicts...

Robison reportedly said, "When God tells me I gotta do something, I gotta do it."

One other lesson we can take from this story is that, while judges should be and are allowed considerable discretion, giving them 100% discretion 100% of the time (by, for example, eliminating mandatory minimum sentencing) would be nuts.

DIY Alternative Sentencing or Extortion?

Joe Palazzolo and Sarah Nassauer report for the WSJ:

Until recently, a first-time shoplifter caught in any of about 2,000 Wal-Mart stores got a choice: pay hundreds of dollars, complete an education program and all will be forgiven--or don't and potentially face prosecution.

Corrective Education Co. and Turning Point Justice, Utah-based companies that provide the programs, emerged in recent years as alternatives to the often-overtaxed criminal justice system. They spare law-enforcement resources and hold offenders accountable without leaving the scar of a criminal conviction, their supporters say.

But Wal-Mart Stores Inc., one of the biggest clients of Turning Point and Corrective Education, suspended the programs earlier this month as more local officials questioned the legality of asking people for money under threat of criminal sanctions, though it said it found the programs effective at reducing shoplifting and calls to police.

The move followed a ruling from a California court in August finding that Corrective Education's program violates state extortion laws.

SF SPCA Robocop Deactivated

Jim Carlton reports for the WSJ:

SAN FRANCISCO--Last month, the San Francisco Society for the Prevention of Cruelty to Animals deployed a 400-pound robot to help combat a sharp rise in car break-ins and other crime at one of its animal shelter facilities here.

On Thursday, the Knightscope K5 was benched amid complaints that it was being used to harass the neighborhood's sizable homeless population.

The shelter's officials said in local news reports that break-ins and discarded drug needles had decreased at the Mission District campus after the robot was deployed. The white, Weeble-shaped robot rolled along snapping photos that it relayed to human guards.

"It's scaring a lot of homeless, because they think it's taking pictures of them," said Moon Tomahawk, an unemployed 38-year-old man who frequents the homeless encampments nearby.

Yes, Carjacking Is a Crime of Violence

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Today, the Ninth Circuit decided United States v. Gutierrez, No. 16-35582:

The sole question presented by this appeal is whether the federal offense of carjacking is a "crime of violence" under 18 U.S.C. ยง 924(c). We hold that it is.
Odd that the question can be asked seriously.  All the circuits to consider the question have decided it the same way.  See pages 5-6 for citations.

The same panel decided in United States v. Werle, No. 16-30181 that "a Washington state conviction for felony harassment constitutes a crime of violence under the Federal Sentencing Guidelines."

Dead People Commenting

Turns out that dead people not only vote, they also comment on proposed federal regulations.  James V. Grimaldi and Paul Overberg report for the WSJ:

A comment posted on the Federal Communications Commission's public docket endorses a Trump-administration plan to repeal a "net neutrality" policy requiring internet providers to treat all web traffic the same.

Calling the old Obama-era policy an "exploitation of the open Internet," the comment was posted on June 2 by Donna Duthie of Lake Bluff, Ill.

It's a fake. Ms. Duthie died 12 years ago.
I have known that comment spam was a problem in rulemaking procedure since the California Department of Corrections and Rehabilitation tried to promulgate a lethal injection protocol and was deluged with tens of thousand of repetitive and usually irrelevant comments.*  I was not aware of the extent of fakery, though, until this excellent piece of investigative journalism.

It is a federal felony to knowingly make false, fictitious or fraudulent statements to a U.S. agency.
*      *      *
In a random sample of 2,757 people whose emails were used to post those 818,000 comments [on the "net neutrality" rule], 72% said they had nothing to do with them, according to a survey the Journal conducted with research firm Mercury Analytics.
Wow.  72%.
This article at the WSJ discusses the tax advantages of giving appreciated stock directly to your favorite charity, avoiding capital gains tax and getting a charitable deduction for the full appreciated value.

This seems to be a particularly good year for this strategy, given the gains in the stock market and the uncertain future of the tax code.

And if your favorite charity just happens to be the Criminal Justice Legal Foundation, our contact info is here.

Assurances from Cyber-Burglars?

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Greg Bensinger and Robert McMillan report for the WSJ:

Uber Technologies Inc. on Tuesday revealed it paid hackers $100,000 in an effort to conceal a data breach affecting 57 million accounts one year ago, a disclosure that adds to a string of scandals and legal problems for the world's most highly valued startup.

The ride-hailing firm said it fired its chief security officer, Joe Sullivan, and deputy Craig Clark for their roles in the breach and for covering it up.

In addition to the names, emails and phone numbers of millions of riders, about 600,000 drivers' license numbers were accessed, Uber said. Uber said financial information such as credit cards and Social Security numbers weren't taken. Uber said it identified the hackers and "obtained assurances" they had destroyed the stolen data.

Oh, well, if they obtained assurances from the criminals that makes me feel so much better.

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."

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