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Speaking of Fake News....

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...here's a juicy item from today's Sentencing Law and Policy:

The title of this post is the title of this intriguing little paper authored by Emily Fetsch for the Ewing Marion Kauffman Foundation and now available via SSRN. Here is the abstract:

One in three Americans has a criminal record.  Given the significant size of this population, the ability for these individuals to attain economic success after they leave prison has tremendous implications for our economy and economic mobility...
There is a paragraph and a half following that squib in the SL&P entry, but I stopped right there, because there is a limit on how many brain cells I'm willing to kill by reading pure tripe.
Sherri Papini went for a run on November 2nd, but never returned home.  She did not pick up her two young children from daycare that evening and her cell phone was found lying on the side of the road.  Three weeks later, she is found alive in the very early morning hours by a passing motorist on the side of a County Road approximately 150 miles from her home.  She is chained and severely injured.  Her nose is broken and her skin has been branded by her captors

I live in the County where she was found that morning.  A friend of mine was the CHP Officer first on the scene.  When I got the news that she had been found alive, my first reaction was of shock and disbelief.  Too often these types of missing persons cases end with a dead body.  The cynic in me assumed that Sherri Papini would be found at some point in a similar manner.  Thankfully for her children and family, her story did not end in a typical fashion.

Unfortunately, immediately upon her discovery, the media and public jumped to the conclusion that the whole thing was a hoax.  Really?  A hoax by whom?  The severely beaten, branded and chained up woman who'd been thrown from a moving car onto the side of a pitch dark road in the middle of the night in the freezing cold?  Why are people so quick to assume that she's lying, or her husband is lying?  Perhaps I'm too trusting or gullible to believe otherwise.  Or perhaps despicable people like Scott Peterson or Drew Peterson make it hard to believe the story being told.

The details will come out eventually and I hope whoever is responsible is caught.  Any punishment the perpetrators receive, however, will in no way compare to the cruel and unusual torture that Sherri Papini endured and will continue to endure emotionally for the remainder of her life.   

A Thanksgiving to Unite Us

Melanie Kirkpatrick has this story in the WSJ on President Lincoln's 1863 proclamation and the magazine "editress" who led the campaign for the Thanksgiving holiday in its modern form.

Election Day has come and gone, and after one of the most divisive campaigns in memory, "healing" seems to be the word of the hour. What better time to begin than Thanksgiving, which Benjamin Franklin called a day of "public Felicity" to give thanks for our "full enjoyment of Liberty, civil and religious." Thanksgiving, our nation's oldest tradition, is a moment to focus on our blessings as Americans, on what unites us, not on what divides us.

Such was the case in 1863, when Abraham Lincoln called for a national Thanksgiving celebration. He did so at the urging of a farsighted magazine editor who believed that a Thanksgiving celebration would have a "deep moral influence" on the American character, helping to bring together the country, which was divided over the issue of slavery. Lincoln's 1863 proclamation was the first in the unbroken string of annual Thanksgiving proclamations by every subsequent president. It is regarded as the beginning of our modern Thanksgiving holiday.
Those who seek a safer and more peaceful country have a huge amount to be thankful for this year.  Indeed, it's hard to recall a year where we have done better across the board.

The good news is wherever you look: Capital punishment, criminal justice reform, and respect for the police.

It's not that there's no bad news; there's plenty of that too, as the disastrous, pro-criminal policies and rhetoric of the Obama years come home to roost. It's that the good news predominates by so much.

FedSoc National Lawyers Convention

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The Federalist Society's National Lawyers Convention is underway in Washington.  The theme is "The Jurisprudence and Legacy of Justice Scalia."  Regrettably, I am not able to attend this year.  Duty calls.

Live streams of some of the panels and links to video of concluded panels are available at the FedSoc Blog.  The criminal law panel is at 3:30 EST today.  Not sure if it will be live streamed.  Justice Thomas is the dinner speaker at 7:00 EST.  Update:  They are live streaming the Separation of Powers panel instead.

Of course, there is much more to the convention than the presentations, interesting as they are.  Conversations in the hallways and at the events with people I only see "face-to-face" once a year are just as valuable.  I am sure that the question of who will be the next Attorney General is a hot topic, and the question of who will be nominated as the successor to Justice Scalia is even hotter.

Passing the Baton With Grace

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Jason Gay reports in the Wall Street Journal on passing the leadership baton painfully yet gracefully.

Veterans Day

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With all that is happening right now, it would be easy to forget, but we must not.  Let us all thank the veterans of our armed forces, without whom all our country's great documents of liberty would be nothing but empty promises. 

Justice for the littlest victims

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Cameron Morrison was only 19 months old, but had suffered more catastrophic injuries than any person should ever ensure in an entire lifetime.  Cameron's mother's boyfriend, Darnell Deangelo Dorsey, was babysitting Cameron and his half-brother while their mother was at the gym.  When she returned home and found Cameron unconscious, Dorsey claimed that Cameron had "possibly choked on some food" and he had "shook and slapped the boy in an attempt to revive him."  Cameron died after being taken off of life support a few days later as a result of a severe traumatic brain injury due to blunt force trauma.  At the time of his death, Cameron's brain was so swollen there was "virtually no space between the brain and the skull."  Scans also showed Cameron had 18 rib fractures in various stages of healing, a lacerated liver, subdural hematoma, retinal hemorrhages, lung contusions, and hemorrhaging to his adrenal glands.  All the experts agreed that Cameron did not choke on food.  But rather had suffered blunt force trauma to his head and body that was inflicted while he was in Dorsey's care.

Yesterday, after an 8-week trial, Dorsey, who had a prior violent "strike" offense, was convicted by a jury of killing Cameron.  Yolo County Deputy District Attorney Michelle Serafin said, "At great sacrifice, the jurors dedicated eight weeks to finding justice for Cameron. Overwhelming evidence was presented to the jury thanks to the thorough investigation of the medical professionals at UC Davis Medical Center and the Davis Police Department. The hard work and dedication of the jurors, the doctors and the police officers is deeply appreciated by Cameron's family."

Dorsey's sentencing hearing is scheduled for December 2nd where he faces the possibility of 50 years to life in state prison.  A press release from the Yolo County District Attorney's Office can be found here.


LifeZette has an eye-opening piece on crime and law enforcement, two issues that justifiably have entered the election debate.  Its article is ominously but accurately titled, "America in Decline, Part IV: Crime."  It features short essays by Steve Cook, a veteran federal prosecutor and President of the National Association of Assistant US Attorneys; David Clarke, Sheriff of Milwaukee County, Wisconsin; and yours truly, holding forth from (although not in any way representing) Georgetown Law.

Steve's and David's contributions are definitely worth your time.  Whether mine is is not for me to say, but, for those interested, I include it after the break.  Thank goodness LifeZette at last gives us a right-of-center source in Washington, DC to tell us the things we're not going to read in Politico or hear on MSNBC.
With large numbers of people getting their information primarily from alternative media, mostly on the Internet, the prosecution side of criminal law may need to rethink how it approaches cases and public opinion.  Tony Saavedra writes in the Orange County (CA) Register:

It's a standard line in almost any Hollywood legal drama: A prosecutor tells a herd of reporters he won't answer a question because "I don't want to try this case in the court of public opinion."

In real life, that premise might be changing.

Go to YouTube this week and punch in the words "Orange County District Attorney and Kenneth Clair" and you'll find a legal drama playing out almost exclusively in the court of public opinion.

On one side is the first in a series of short videos from the District Attorney's Office explaining why it thinks there should be no new trial, or any leniency for Clair, who in 1987 was convicted of the murder three years earlier of Linda Faye Rodgers, a Santa Ana nanny.

Note the important distinction that this is a long-ago trial in which the judgment is being collaterally attacked.  This is not a case presently going before a jury, and it never will go to a jury again if the DA and AG can help it.

Advocates for death row inmates regularly whip up public opinion on the net with misleading characterizations of the case.  When Georgia sought to execute cop-killer Troy Davis, there was a national furor.  The U.S. Supreme Court took the extremely rare step of entertaining a habeas corpus petition filed directly in that court and transferring it to a district court for hearing and findings.  The district court judge, after hearing the witnesses in person, held that Davis's case was "largely smoke and mirrors" and "not credible or lacking in probative value."  The bottom line was, "Mr. Davis is not innocent."  Would the case have gotten that far if the PR campaign for Davis had been met with a PR response?  Would that be a better result?

When Flakiness Becomes Criminal

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There are a lot of flaky people in the world, people with strange and stupid ideas that defy logic and science.  They have the right to be flaky as long as they don't hurt anyone else.  When flaky people become parents, though, they may very well hurt someone else.  Ross Guidotti reports for KDKA in Pittsburg:

A mother in Fayette County is facing charges for allegedly starving her 11-month-old son.

The child's father brought the boy to CYS and told them that his estranged wife was "obsessed" with following a strict diet, and only fed the child fruit and nuts.

Elizabeth Hawk, 33, is charged with endangering the welfare of a child after investigators say she allegedly failed to give her 11-month-old son sufficient food.

Answer Found for Rising Violent Crime

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Earlier today, I posted the news that violent crime, and murder in particular, had risen by double digit percentages in 2015.  (Actually, this has been known for months, and Kent and I have often said as much, but the official UCR statistics came out today).

It did not take long for the founder of Black Lives Matter to come up with the solution: Get rid of the police.  And no, I am not making this up.  The article begins thusly:

Since policing is a problem, the police should be removed from communities altogether, according to Black Lives Matter founder Alicia Garza.

Garza argued that the United States gives too much respect to police officers, explaining that when police do wrong, a few bad cops are blamed, rather than a "corroded and corrupt system."

"Quite frankly, many of our [Black Lives Matter] members are continuing to investigate what it would mean to have police-free communities. I think what we've continued to see over time is that no moral appeal is actually stopping the deaths of black people, whether they be armed or unarmed." Garza told Complex.

I believe BLM is the most audaciously lying social movement I have seen in my forty-some years as a lawyer and law professor.  The murder rate got cut by more than half in the two decades (1992-2012) in which the number of police in this country rose substantially.  Since blacks are disproportionately murder victims, they were disproportionately beneficiaries of the decreased murder rate.

Complacency Mongers, Start Your Engines!

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Today, the FBI came out with a shocking crime report.  A total of 1,532 more people were murdered in the United States in 2015 than the year before.  This represents an 11% increase in the number of murders.  The murder rate was higher in 2015 than at any time since 2009.  We have lost six (or now, more likely seven) years of progress against our most serious crime.

This dreadful news should set off alarm bells, but it won't.  It will set off the complacency brigade.  We will be told, for example, that it's just a "statistical variation."  

Right!  Two percent or three percent or possibly even five percent might be a "statistical variation."  Eleven percent is not.  It shows a change in behavior with a cause. Academics and policy makers should be concerned about this, rather than concerned about finding a way to dismiss it.  But you know that's not going to happen.

Two Years of a Staggering Surge in Murder

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Prof. Doug Berman of SL&P is often maddeningly honest, much to the consternation of his numerous liberal and libertarian followers.  His article today provides a good example.  In the face of a Brennan Center "study" that purports to find not a whole lot to worry about on the national crime front, Doug notes this sentence buried below a bunch of bullet points in the Center's work:

Nationally, the murder rate is projected to increase 31.5 percent from 2014 to 2016 -- with half of additional murders attributable to Baltimore, Chicago, and Houston.

When the murder rate increases by nearly a third in two years, that, ladies and gentlemen, is a national crisis.  (And yes, it's true that if you subtract enough of the cities with the biggest increases, then, nationally, you'll get a smaller (though still startling) increase.  Maybe the Brennan Center thinks its readership hasn't learned fifth grade math).


The Criminal Justice Summit

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I've been remiss in not having posted tapes of the panels from last week's Washington Post Criminal Justice Summit.

The panel on which I appeared, concerning the role of prosecutors (and by extension, prosecutions) is here.

The panel specifically about sentencing reform, featuring NAAUSA President Steve Cook and House Judiciary Committee Chairman Bob Goodlatte, is here.

The half hour interview with Attorney General Loretta Lynch is here.

For those with the time, the whole ball of wax is here.  Readers might be interested in seeing how thoroughly the discussion inside the Beltway is dominated by those who tend to see criminals as victims.  If Trump is elected, the shock waves in DC will be unlike anything I have experienced in my forty-plus years in this town.

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