Recently in International Category

Four days ago, Russian-backed separatists using a Russian-supplied surface to air missile shot down a commercial passenger jet, killing the 298 people on board, all civilians. Since then, those same Russian-backed separatists have taken control of the crash scene, seized the "black box" (and reportedly sent it to Moscow), stuffed the bodies in a bunch of bags like they were picking up trash, stonewalled the mourning relatives, and generally behaved as you would expect from people who murder about 300 of their fellow creatures because, ya know, these rocket launchers are really cool and fun to set off.

Baghdad Harry

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Alexander Bolton of the Hill covers  Senate Majority Leader Harry Reid's statement to reporters yesterday assuring the nation that America's southern border is secure.  He made this remarkable statement as news video streams across the airwaves showing tens of thousands of foreigners flooding across the border into Texas, Arizona and New Mexico overwhelming the already inadequate border patrol and forcing agents to become caregivers to thousands of Central American children rather than a security force looking for drug smugglers and terrorists.   In the face of what is clearly a complete breakdown of U.S. border security Senator Reid is trying to BS the entire country.  Some may remember Mohammed Saeed al-Sahaf, Saddam Hussein's Minister of Information better known as Baghdad Bob, who in April 2003 stood in front of cameras on a Baghdad street and announced that Saddam's army had repelled coalition forces, while U.S. tanks were passing behind him. 
Today's opinion in Bond v. United States quotes Justice Felix Frankfurter's classic article, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527 (1947).  I have modified that title a bit for this post.

In Bond, the Court "ducked" the constitutional question of whether Congress had the authority to make a federal case out of an ordinary assault perpetrated by chemical means, which would normally be a purely state case, in order to implement the international Convention on Chemical Weapons.  The Court did so by finding that the statute doesn't actually reach Ms. Bond's conduct at all, in the process plowing some difficult ground in the field of statutory interpretation.

I had previously posted on this case in January 2013, when the Court took the case up, and last October, when the Court heard oral argument.  As previously noted, Carol Bond's "husband and best friend had an affair, resulting in the friend's pregnancy.  Bond was certainly justified in being angry and taking action, but poison was over the top.  That is a crime for which she should have been prosecuted and punished -- by the Commonwealth of Pennsylvania" not the federal government.  Today the Supreme Court agreed unanimously, but disagreements as to why explain why this case took so long.

"Hard cases make bad law," it is often said.  This case exemplifies how bad laws make hard cases.  We begin with treaty negotiators botching the drafting process, with Congress meekly following suit.  The result is a mess. 
Alison Hsiao reports for the Taipei Times:

While the existing Criminal Code stipulates that a person who "kidnaps another to extort ransom shall be sentenced to death, life imprisonment or imprisonment for not less than seven years" and that "if aggravated injury results from the offense, the offender shall be sentenced to death, life imprisonment, or imprisonment for not less than 10 years," the amendments made yesterday scrapped the capital punishment from these two clauses.

The bill was proposed by the Executive Yuan, who referred in its proposal to the International Covenant on Civil and Political Rights, which was ratified by Taiwan in 2009 and says that in countries that have not abolished the death penalty, "the sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide."

In the United States, no one has been executed for a crime not resulting in the death of the victim in the post-1976 era.  Most of the statutes enacted to comply with Furman v. Georgia limited the death penalty to murder, and the Supreme Court struck down most of the others in Coker v. Georgia (1977) and Kennedy v. Louisiana (2008).
This AP story speaks for itself:

Two teenage sisters in rural India were raped and killed by attackers who hung their bodies from a mango tree, which became the scene of a silent protest by villagers angry about alleged police inaction in the case. Two of the four men arrested so far are police officers.

Villagers found the girls' bodies hanging from the tree early Wednesday, hours after they disappeared from fields near their home in Katra village in Uttar Pradesh state, police Superintendent Atul Saxena said. The girls, who were 14 and 15, had gone into the fields because there was no toilet in their home....India tightened its anti-rape laws last year, making gang rape punishable by the death penalty, even when the victim survives.

But the most memorable part of the story is at the end, from a fellow I gather is running for president of the Indian version of the NACDL:

Last month, the head of Uttar Pradesh state's governing party, the regionally prominent Samajwadi Party, told an election rally that the party was opposed to the law calling for gang rapists to be executed.  "Boys will be boys," Mulayam Singh Yadav said. "They make mistakes."

Joshua Keating has this post with the above title at Slate. "With India, Japan, and Indonesia rejoining the U.S., the world's largest democracies are death penalty countries and the practice has heavy popular support in all of them."

Should We Follow International Law?

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No.  We should follow the Constitution.  But we can learn from international law, absolutely. We can learn something this very day, as it happens, from the world's largest democracy. Too bad the Supreme Court didn't get it a few years back.

Perhaps evolving standards of respect for women, not to mention respect for the most minimal human decency, will bring about a change of heart.

P.S.  When abolitionists tell us that we should adhere to the opinions of the "international community," what they actually mean is that we should adhere to the opinions of white people in Europe.  The death penalty predominates among "people of color" (as the phrase goes) in the Orient, the Subcontinent, the Middle East, the Caribbean, most of Africa and most of North America. 

Another Clueless Baldwin Rant

Before you blast someone, especially in public, it's a good idea to make sure you have your facts straight and are aiming at the right target.  The notorious Alec Baldwin is apparently unaware of this.  Nardine Saad reports in the L.A. Times that Baldwin tweeted this on Monday:

"Flying from Nassau, Bahamas 2 NY. TSA 'random selects' my 5 month old daughter 4 a pat down. I am not kidding. #travelinginUSisadisgrace."
The TSA is, of course, a part of the United States Department of Homeland Security.  The TSA does not do the airport screenings in the Bahamas for the obvious (to persons of sense) reason that the Bahamas are not part of the United States.  The esteemed (by many, though I can't fathom why) Mr. Baldwin was apparently unaware that he was in a foreign country being screened by an agency of a foreign government.  So his hashtag says traveling in the United States is a disgrace because of an incident that occurred outside the United States completely out of the control of the U.S. government.

Upon this being pointed out, his "correction" says, "I guess what I'm saying is: Traveling in the US is a pain in the ... ass."  Ms. Saad notes, "Still not the U.S., though, Alec."
Opponents of the death penalty never tire of telling us how other countries have rejected it.  That rejection, though, is usually by a fiat from above, not by the people.  Nowhere is the disconnect between the government position and popular opinion greater than south of our border.  David Agren has this story in USA Today.

Texas' execution of Edgar Tamayo for the murder of a U.S. police officer was heavily criticized by Mexican officials, who say their country rightly banned capital punishment years ago.

But if many people in Mexico had their way, the death penalty would be an option to deal with murderers such as Tamayo, surveys and criminal experts say.

Surveys by polling firms and media outlets in Mexico over the past seven years show that support for the death penalty has increased to a point where a majority would like to see it reinstated. Recent polls found 70%-80% would like to see the death penalty imposed for crimes such as murder and kidnapping, a rate above the majority support for the death penalty in the USA.

Tamayo Execution Proceeds

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Edgar Tamayo was executed in Texas last night for killing Police Officer Guy Gaddis in 1994.  AP story here.  Prior post here.

The U.S. Supreme Court denied petitions for certiorari and stays of execution in two orders, here and here.  No dissent is noted for the first.  Justices Ginsburg, Breyer, and Sotomayor would have granted the stay in the second.  That is the last-minute Atkins claim of supposed mental retardation.  The Fifth Circuit held, correctly IMHO, that the District Court did not need to put up with this strategy of holding a claim until election eve.

Finally, we agree with the district court that Tamayo's claim was not brought within a reasonable time." See, e.g., In re Osborne, 379 F.3d 277, 283 (5th Cir. 2004). The [Supreme] Court's opinion in McQuiggin was issued on May 28, 2013, nearly 8 months ago. Tamayo waited until January 20, 2014, two days before his scheduled execution, to file this motion. The district court did not abuse its discretion in concluding that this was not a "reasonable time" and in denying the motion. [Footnotes omitted.]

Vienna Convention, Once Again

The State of Texas intends to execute Edgar Arias Tamayo at 6:00 p.m. CST today, which is about five hours from this writing. Tamayo is one of the murderers whose case was included in the International Court of Justice (ICJ) case of Mexico v. United States, more commonly known as the Avena decision.  The issue in these cases has to do with the failure of the police to advise an arrested foreign national of his right to have the consulate notified, as required by the Vienna Convention on Consular Relations.  The AP has this story on the objections of the Mexican government.  Update:  Michael Graczyk has this story for AP on the case, including the Fifth Circuit's rejection of Tamayo's Atkins claim.  Update 2:  Tamayo was executed.  See later post.

As of this time, a certiorari petition is before the Supreme Court as case No. 13-8358, and a stay application has been filed as No. 13A762.  The Supreme Court denied relief in similar circumstances in 2011 in the Leal case, and nothing has changed since.  See this post at that time.

The problem is considerably more complex than is commonly perceived.  In a nutshell, I believe the United States should comply with the decision of the ICJ in the cases actually before it in Avena, which includes Tamayo, and not otherwise.

300 Strikes and Still Not Out?

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The Mirror (London) reports:

Career criminals are avoiding jail despite committing more than 300 offences.

Eight crooks with the shock crime record escaped prison in 2012, figures released under freedom of information have revealed.

Dozens more hardened offenders avoided time behind bars - despite racking up more than 250 offences.

Critics said the revelations exposed Britain's soft-touch justice system for repeat offenders.
The author of the study, Peter Cuthbertson of the Centre for Crime Prevention, said:

"The most prolific offenders are responsible for a growing percentage of all crime, and locking them up would have a massive impact on the crime rate.

"New Zealand recently fought rising crime by letting criminals know that it is 'three strikes and you're out'. In Britain, we don't even have 300 strikes and you're out."

The majority of the country's most prolific criminals avoided prison despite their previous offences often numbering in the triple figures, according to the study.
We learned that lesson the hard way in the United States, but apparently we have now forgotten it and are rushing headlong to repeat the mistakes of the past.  See, e.g., this post.

Hate Crimes

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French prosecutors have charged a visiting 72-year-old American with "inciting hate" for supposedly comparing Croats with Nazis.

The defendant's name is Bob Dylan.  Yes, that Bob Dylan.  Inti Landauro has this story in the WSJ (subscription).

Opinions vary on hate crime laws, even among those of us who generally agree on criminal law matters.  Some think they should be abolished altogether.  Speaking strictly for myself, I think they have a place when a person is targeted for a crime of violence because of his race.  Broadly defined hate crime laws are a different matter.  As the French example shows, they slip too easily into gross violations of freedom of speech, and such laws should be given the heave-ho.

If convicted, BTW, Dylan will probably get off for a fistful of euros.

Opening Argument at Nuremberg

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Sixty-eight years ago today, chief prosecutor Robert H. Jackson (TDY from the Supreme Court) delivered his opening argument at the Nuremberg trials.  John Q. Barrett writes an email list with lots of biographical information about Justice Jackson, although his opinions while on the Supreme Court are curiously absent, even when highly relevant to current controversies.  Today's entry is on the Nuremberg argument.  It will later be archived here, but it's not there as of this writing, so I have taken the liberty of copying it after the break.

Standing Up to Europe

In 1776, the United States of America declared that our people were going to "assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature's God entitle them."  Our forefathers then fought a long and bloody war to make that declaration a reality.

Among other things, that means we are not going to let Europe tell us whether we can give our worst murderers the punishment they deserve.

Alan Zagier reports for AP:

Missouri will move ahead with two planned executions despite efforts in Europe to block a common anesthetic from being used in the procedure, Gov. Jay Nixon said Monday.

German company Fresenius Kabi produces almost the entire supply of propofol, but the European Union is considering possible export limits as part of its anti-capital punishment policies. Missouri has enough to carry out it next two executions and one more, the first scheduled for later this month, but Nixon declined to say what the state would do if it is unable to get more propofol. The drug made headlines in 2009 when pop star Michael Jackson died of an overdose. The Missouri executions would be the first to use propofol.

Nixon said state and federal court systems, not European politicians, will decide death penalty policy in Missouri.

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