An initiative to establish rights of victims of crime has qualified for the November ballot in Montana, reports Dustin Klemann of MTN News.

Here is the summary:

CI-116 would add a new section to the Montana Constitution establishing specific rights for crime victims. The rights enumerated include the right to participate in criminal and juvenile justice proceedings, to be notified of major developments in the criminal case, to be notified of changes to the offender's custodial status, to be present at court proceedings and provide input to the prosecutor before a plea agreement is finalized, and to be heard at plea or sentencing proceedings, or any process that may result in the offender's release. CI-116 guarantees crime victim's rights to restitution, privacy, to confer with the prosecuting attorney, and to be informed of their rights. CI-116 defines specific terms and requires no further action by the Legislature for implementation. CI- 116, if passed by the electorate, will become effective immediately. Fiscal impacts are expected for the Office of the Public Defender, Judicial Branch, Department of Corrections and local governments from passage of CI-116, but those costs could not be accurately determined at this time.
The full text is here.  Compare Article I, §28(b) of the California Constitution.

News Scan

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CA Murderer's Death Sentence Upheld:  The California Supreme Court upheld the death sentence on Monday of an Orange County man who organized a fatal robbery and then convinced his girlfriend to kill a witness over two decades ago.  Kelly Puente of the OC Register reports that in 1991, William Clinton Clark, 62, was the mastermind behind a Fountain Valley computer store robbery, in which Kathy Lee was killed as she arrived to pick up her son.  Three years later, Clark persuaded his girlfriend, Antoinette Yancey, to murder Ardell Love Williams, 19, by luring him to a location with a promise of a job before he could testify at Clark's trial.  Yancey was sentenced to life in prison without parole for her role.  Clark was convicted in 1996 of two felony counts of murder.  He will remain on death row.

Another Deadly Weekend in Chicago:  Chicago saw yet another bloody weekend as numerous shootings continue to plague the city, mostly fueled by its incessant gang war.  Warner Todd Huston of Breitbart reports that 51 people were wounded and seven were killed over the weekend, topping 2014 and 2015 records.  There were at least 48 isolated shooting incidents over a four-day period, with 28 occurring on Saturday and 20 on Sunday.  Thus far in 2016, 311 total people have been slain across Chicago, 285 males and 26 females.  In addition to the staggering number of homicides are the 1,375 men and 146 females that have been wounded in the violence.

CA Woman Arrested and Released 41 Times:  The perpetual arrests and releases of a repeat offender have prompted Shasta County residents to question whether the California's justice system is working and if criminals are learning their lesson.  Action News Now reports that Christina Burke of Redding has been arrested and released 41 times, with nine of them occurring in 2016 alone, and local law enforcement cite AB 109 and Proposition 47 as contributing factors in her continual arrests and releases.  AB 109, aimed at maintaining a low prison population, has resulted in habitual offenders like Burke being released much quicker, while Prop. 47 has reduced several property and drug offenses from felonies to misdemeanors.  Law enforcement and residents alike are taking notice to criminals' lack of accountability under the measures, forming groups such as Take Back Redding and Redding Crime Watch.  Residents also filed a petition called "Dear Governor Brown, we are taking a stand."

The American Constitution Society hosted a panel that addressed this topic:

Marginalized, disproportionately low-income communities, including communities of color, sexual minorities and transgender people, have a fraught relationship with the criminal justice system. Overcriminalization and overincarceration, the inevitable consequences of our current criminal justice policies, rob marginalized communities of financial and human capital, and exacerbate these communities' lack of political and economic power. Over- and under-policing (in which police aggressively police communities for minor crimes while failing to prevent or investigate major, violent crimes) fail to adequately address threats of violence, both at the hands of criminals and the police. What measures best empower these communities to achieve the political and economic influence to ensure self-determination and prevent continued mistreatment by the criminal justice system?

I am grateful that I was invited to present a dissenting viewpoint, which I started out by noting, in my typically diplomatic way, that I disagreed with the ACS's conclusions, but not as much as I do with their even more misguided premises.

The discussion is here.  I am especially in the debt of the panel's moderator, Kanya Bennett, Legislative Counsel to the Washington Office of the ACLU.

The War on Cops and the Spike in Murder

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Murder has been on a shocking surge for a year and a half.  There are those who want to pretend the cause is a mystery, or that it's a statistical blip, or that even if it's real, It doesn't mean  --  in the favorite phrase of those who blink reality  --  that "the sky is falling."

It is of course true that the sky is not falling, as it tends not to.  But murder is spiking, and it has a cause.

The main cause is that the police have become considerably more cautious due to a cascade of unhinged criticism.  

The police deserve and get scrutiny.  They are public employees with tremendous power. The problem is not scrutiny.  The problem is bansheeism.

The best in the business in diagnosing the what we're facing is Heather MacDonald.  Her C-SPAN interview is here.
Kent points to an excellent article by Professor Richard Epstein in the current issue of the Harvard Journal of Law and Public Policy (vol. 39, no. 3).  The issue also contains an interesting student note on the history of the John M. Olin Fellowship program sponsored by the Federalist Society. 

As a fellow Olin fellow, I can attest to the strengths of the program.  Each year this competitive fellowship places smart, ambitious conservative and libertarian scholars at some of the finest law schools in the country.  My fellowship at the University of Pennsylvania Law School was a time that I treasured, enjoying the privilege of working closely with the keen minds of people such as Stephen Morse, David Skeel, Stephanos Bibas, and Paul Robinson to name just a few. 

But the stark reality is that there is very little intellectual diversity in the legal academy and despite the efforts of the Olin Fellowship, conservative and libertarian thinking is an endangered species among law faculty: 

As Eugene Meyer, the President of the Federalist Society, observed, Dean Kagan both deserved and did not deserve credit for increasing ideological diversity on Harvard's faculty. Meyer posed the following hypothetical to illustrate his point: Say you have a school with 100 members on the faculty, one of whom is conservative. If you hire two more conservatives, do you say that the number of conservatives has tripled, or do you say that only three percent of the faculty is conservative?  It is also notable that in the ten years since Dean Kagan hired Manning, Goldsmith, and Vermeule, not a single conservative has been hired at Harvard (at 918-19). 

It is a real shame that such conditions continue in the Academy because it leads to an intellectual sterility that is at least partially responsible for irrelevancy of legal scholarship.   Judge Posner bemoans the flaccidity of legal scholarship - well when everyone is saying essentially the same thing then there isn't much insight to drive decision making. 

Linguistic Relativism

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Rightly or wrongly, the belief is widely held by the practicing profession that this Court no longer respects impersonal rules of law but is guided in these matters by personal impressions which from time to time may be shared by a majority of Justices. Whatever has been intended, this Court also has generated an impression in much of the judiciary that regard for precedents and authorities is obsolete, that words no longer mean what they have always meant to the profession, that the law knows no fixed principles.
-- Justice Robert Jackson, Brown v. Allen, 344 U.S. 443, 535 (1953) (opinion concurring in the judgment).

If law is to be law and not whim, then words must have the power to constrain.  If the power to interpret words has no limit, if words are infinitely elastic and can be stretched to support whatever result the interpreter wishes, then the people do not have the power to govern themselves through the democratic process.  The laws and constitutions they enact are nothing but staff recommendations to the interpreters, who make the actual decision.

In the current issue of the Harvard Journal of Law and Public Policy (vol. 39, no. 3, pp. 583-630). Professor Richard Epstein has an article titled Linguistic Relativism and the Decline of the Rule of Law.  It is well worth reading.  Readers of this blog may be particularly interested in pages 607-610, on the "judicial adventurism" of the Supreme Court's misinterpretation of the Cruel and Unusual Punishments Clause.

News Scan

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OH Struggles to Find Lethal Injection Drugs:  Just over six months ahead of Ohio's first scheduled execution since 2014, and with two dozen other convicted killers scheduled to die over the next three years, the state has not managed to secure a supply of lethal injection drugs.  Alan Johnson of the Columbus Dispatch reports that Ohio Department of Rehabilitation and Correction officials have attempted to secure a supply through several avenues, including compounding pharmacies and from overseas sources, but all their efforts have been in vain.  The state's biggest hurdle, which affects all states with the death penalty, is resistance from major manufacturers that either stopped making drugs used for lethal injection or refuse to sell them to states for use in executions.  Currently, Ohio law only allows lethal injection for executions, and transitioning to an alternative method, which some officials have suggested, would require changing state law.  The state's next scheduled execution is on Jan. 12, 2017, when Ronald Phillips is set to die.

SCOUTS Upholds Gun Ban for Domestic Violence:  On Monday, the U.S. Supreme Court upheld the broad reach of a federal law that bans people with a domestic violence conviction from owning firearms.  Fox News reports that the high court ruled, in a 6-2 decision, that reckless domestic assaults can be considered misdemeanor crimes to restrict gun ownership.  The case involved two Maine men, Stephen Voisine and William Armstrong, who were both found guilty of misdemeanor domestic assaults which prohibited them from possessing firearms.  Voisine argued that the law only covers intentional acts of abuse and not those committed in the heat of an argument, while Armstrong argued that the ban violates his second amendment rights.  Voisine's argument was rejected and although Armstrong's was not addressed in the ruling, it was questioned during oral argument.

ISIS Targets SF, Las Vegas in New Video:  The Islamic State (ISIS) released an ominous video on Sunday showing footage of San Francisco landmarks and the Las Vegas Strip in what appears to be a threat of attack on the two cities.  Adelle Nazarian of Breitbart reports that in the video, a man providing English voiceover, who introduces himself as Abu Ismail al-Amriki ("the American"), encourages "attacks in San Francisco in the same vein as the Pulse incident in Orlando."  Sunday's video in the third released by the terrorist group that claims responsibility for the Orlando attacks and advocates that others follow the example of the gunman, Omar Mateen.

Still Waiting for Justice

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Brenda Van Dam's life changed forever 13 years ago when her seven-year-old daughter, Danielle, went missing from her bedroom and was later found murdered.  Danielle's killer, David Westerfield, was convicted of kidnapping, murder, and possessing child pornography and was sentenced to death.  Today, over a decade later, he continues to sit on California's death row.  In this powerful op-ed penned by Van Dam in the San Diego Union-Tribune, she writes,

Now, 13 years later, he still waits for his sentence to be carried out, living at taxpayers' expense, the taxes I pay, at San Quentin's death row. And we who loved Danielle, searched for Danielle, wept for her and sat through every moment of the trial also still wait for that sentence to be carried out. We wait still for justice.

Sadly, we are not alone either. While Westerfield has been on death row for 13 years, there are others who have committed terrible crimes against innocent people, including against those who serve and protect us in law enforcement, and against our children, who wait on death row. And their families, like us, wait for justice to be done.

Our legal system, which is supposed to work for the people, has evolved into a frustrating patchwork of legal blockades and stalling tactics that has allowed attorneys for death row inmates to abuse the system to drag out and delay death sentences from being carried out for, in some cases, several decades. Some convicted death row inmates even outlive the family members of their victims. The family members die never having seen justice done to those who changed their lives forever.

Fortunately, the people of California have an opportunity to change that. Thanks to the hard work of a number of law enforcement professionals, public safety officials and elected officials, the California Death Penalty Reform & Savings initiative was submitted to elections officials throughout the state in order to qualify a reform measure for the November ballot.

The U.S. Supreme Court today decided the case of the bribery convictions of a former Governor of Virginia and his wife, McDonnell v. United States.

To convict the McDonnells of bribery, the Government was required to show that Governor McDonnell committed (or agreed to commit) an "official act" in exchange for the loans and gifts. The parties did not agree, however, on what counts as an "official act." The Government alleged in the indictment, and maintains on appeal, that Governor McDonnell committed at least five "official acts." Those acts included "arranging meetings" for Williams with other Virginia officials to discuss Star Scientific's product, "hosting" events for Star Scientific at the Governor's Mansion, and "contacting other government officials" concerning studies of anatabine. Supp. App. 47-48. The Government also argued more broadly that these activities constituted "official action" because they related to Virginia business development, a priority of Governor McDonnell's administration. Governor McDonnell contends that merely setting up a meeting, hosting an event, or contacting an official--without more--does not count as an "official act."
The Court agrees with McDonnell on the main point in a unanimous opinion by Chief Justice Roberts.  To hold otherwise would raise serious First Amendment concerns.

The Court rejects McDonnell's attack on the "honest services" statute as unconstitutionally vague, a holding based in part on the narrow interpretation in the previous part of the opinion.

The Court declines to address McDonnell's "insufficient evidence" claim because the parties have not yet had a chance to address it in light of the Court's clarification of the elements of the offense and therefore leaves that issue to the Court of Appeals on remand.  That is important because a reversal on incorrect jury instructions (the main point addressed in today's opinion) permits a retrial, but a reversal on insufficient evidence is effectively an acquittal and precludes retrial.
The U.S. Supreme Court today decided Voisine v. United States:

Federal law prohibits any person convicted of a "misdemeanor crime of domestic violence" from possessing a firearm. 18 U. S. C. §922(g)(9). That phrase is defined to include any misdemeanor committed against a domestic relation that necessarily involves the "use . . . of physical force." §921(a)(33)(A). The question presented here is whether misdemeanor assault convictions for reckless (as contrasted to knowing or intentional) conduct trigger the statutory firearms ban. We hold that they do.
Kent has a thoughtful post about Judge Jon Newman's suggestions to broaden the means to hold police accountable for infringing the constitutional rights of citizens.  I would add for the moment only four brief points which, together, make me wonder whether Judge Newman's op-ed is fully forthcoming.

First, the Judge uses the Freddie Gray acquittal as a springboard to note the supposed inadequacies of present law, but never hints that Gray's family already filed suit and, ten months ago, received a multi-million dollar settlement.  It is impossible for me to believe either that Judge Newman did not know this or thought it irrelevant.

Second, the Judge likewise never hints that the issue of practical and legal immunity for the police has been considered carefully by the Supreme Court.  Kent remedies this deficiency, but it should never have been Kent's job.  Why is a federal appellate judge entirely failing to disclose to a lay readership the fact and the substance of the Supreme Court's thinking?

Third, Judge Newman simply assumes that the Baltimore police were liable for tortious, if not criminal, conduct.  He does this without quoting a single word from the Baltimore trial court's factually detailed opinion, which, to put it gently, puts Judge Newman's assumption in doubt.

Last, Judge Newman says this: "Juries, and even judges in non-jury trials, are reluctant to convict police officers of a crime, even in the face of ample evidence." Yes, well, that might be because, as Judge Newman also full well knows, and in other contexts insists upon, "ample" evidence is insufficient to convict.  It takes evidence proving every element of the offense beyond a reasonable doubt.

Can we expect something more balanced than this from a veteran federal judge?
Senior Circuit Judge Jon Newman of USCA2 has this op-ed in the WaPo, proposing expanded civil remedies for police misconduct.  It is an important subject and worthy of serious consideration, but I think Judge Newman's article may mislead folks who are not familiar with the law in this area, both nonlawyers and lawyers who specialize in other areas.  Judge Newman writes,

The acquittal Thursday of another Baltimore police officer charged in the death of Freddie Gray, like the acquittal 25 years ago of the Los Angeles officers who beat Rodney King, reveals the inadequacy of the criminal-law remedy. Suing the police for money under a strengthened federal civil rights law would be a better response to police misconduct.

Right now, however, federal law makes it more difficult to sue a police officer for denying a citizen his constitutional rights than for injuring him by ordinary negligence. If an officer negligently drives his car and injures a citizen, the victim can win money just by proving negligence, and the city that employs the officer pays whatever the jury awards.

But when an officer uses excessive force or makes an unlawful arrest or search, proving wrongful conduct is not enough. Under Section 1983 of the federal civil rights statute, the officer can escape liability with the special defense of qualified immunity -- showing that he reasonably believed his conduct was lawful, even if it was not. And if the jury finds the officer liable, federal law does not require his employer to pay the award.
There is some truth here, but there is more to it.

The Silence of the Civil Liberties Lambs

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When there is an acquittal in a high-profile prosecution  --  particularly a prosecution that reeks of political opportunism and racial edginess  --  the civil liberties and criminal defense bars often whoop it up.

There was such an acquittal yesterday.  But, from the usual criminal defense spokesmen, I'm not hearing any celebration. Indeed, I'm  not hearing much of anything. 

Why?

It's no big secret:  Because the person acquitted was a cop  --  the lead Freddie Gray defendant.

He was acquitted notwithstanding a hostile jurisdiction, a grandstanding prosecutor, a courthouse mob outside the building that could be heard inside, a poorly-hidden assumption of malice within the dominant culture, the widespread deep-sixing of the presumption of innocence, a long-ago trial and conviction in the media, and an overall circus atmosphere.

These are exactly the features of criminal justice that civil libertarians frequently condemn.  They do so in the name of providing a fair process to all, no matter how ugly the crime or how despised the accused.

Unless, that is, they're the ones doing the despising.  In that event, good luck in hearing, from the civil liberties lambs, a single BAAAA.

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Death Penalty Sought in FL Doctor's Murder:  Prosecutors announced Wednesday that they are seeking the death penalty against two suspects in the murder of a Florida doctor.  One of the suspects is the victim's husband.  Fox News reports that Mark Sievers, 48, and Jimmy Rodgers, 26, will face capital punishment in the death of Teresa Sievers, 46, a holistic physician and mother of two who was found bludgeoned to death in her home last June.  A third assailant, Curtis Wayne Wright, 46, pleaded guilty to second-degree murder in February in exchange for a 25-year sentence and agreed to assist prosecutors in their case against Mark Sievers.  Investigators uncovered a plot last December orchestrated by Mark, in which he directed Rodgers and Wright to attack Teresa and promised them a chunk of the $4.4 million life insurance payout.

45 Foreign Fugitives Arrested this Week:  U.S. Immigration and Customs Enforcement (ICE) issued a report this week stating that 45 foreign fugitives were arrested this week for serious crimes committed in their home countries.  Maria Biery of the Washington Examiner reports that in an operation dubbed "Project Red II," U.S. Marshals and ICE focused their efforts on individuals with Interpol red notices.  Those arrested were wanted in 22 countries on a multitude of charges, including fraud, homicide, illegal gang activity, drug trafficking, rape, embezzlement, extortion and kidnapping.  A total of 1,789 foreign fugitives have been removed from the U.S. since October 2009.

Cop Stable After Shooting; Suspect in Custody:  The Pennsylvania police officer shot multiple times and seriously wounded Friday morning is in critical but stable condition, and a suspect has been taken into custody.  Dan Stamm and Brian X. McCrone of NBC 10 report that the Folcroft Borough officer, Chris Dorman, 25, was shot in the neck, face and shoulder in the rear of an apartment building while responding to a report of people smoking narcotics.  Dorman is a one-year veteran of the force.

A Clue from Brexit

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Everyone writing on a blog will have one take or another from yesterday's vote by the UK to leave the European Union, and I don't want to be an exception.

The thing that most struck me about the backing for remaining in the EU was how much it resembled the backing in this country for undertaking sentencing reform: The "bi-partisan consensus;" nearly uniform enthusiasm from academia, think tanks and those who see themselves as better educated; overwhelming support from the mainstream press; likewise from the urban and the urbane; and the cheerleading from celebrities.

And one more thing  --  the premature, and false, claim of victory.  The most recent British polls showed the public favoring remaining in the EU, just as sentencing reformers claim majority public support for giving judges more discretion (at least until the unwelcome fact comes out of what happens when they use it). 

Our Betters inside the capital city and in academia are not about to take any lessons, either from the Brexit vote or from the fact they can't move sentencing reform.  The idea that "We Know Better than You People with Big Hair," and the silky self-righteousness behind it, are too firmly entrenched.

Those of us favoring the present national sentencing structure and the crime reduction it has helped bring about would be ill-advised to look for any congratulations.  We'll have to be content  --  so it would seem for the moment  -- merely to win.


This morning, the U.S. Supreme Court decided three consolidated cases involving the implied consent laws that all 50 states utilize in their efforts to combat the serious problem of drunk driving.  The implied consent laws imply a lawfully arrested motorist's consent to chemical testing as a matter of law and the state uses the test results as probative evidence of intoxication in a subsequent DUI prosecution.  Some motorists, usually repeat offenders, refuse requests for testing because they know that the Blood Alcohol Concentration ("BAC") results would impose harsher penalties than that of simply refusing a test.  The standard legal consequence in most states for test refusal is the suspension or revocation of a motorist's driver's license.  A refusal can also be admitted as evidence of intoxication in a DUI prosecution.  Based on recidivist drunk driver statistics, it does not matter if they have a driver's license or not.  The suspension or revocation of a driver's license does nothing to stop a person from drinking and driving if that person chooses to get into a car and drive while intoxicated.

Thirteen states gave some teeth to their implied consent laws and made it a crime to refuse testing.


As Bill noted earlier today, Officer Caesar Goodson was acquitted today of charges arising out of the death of Freddie Gray.  Because Goodson chose to waive a jury trial and have his case decided by the judge, we have a full explanation of the verdict.  The transcript is here.

The case is State v. Goodson, Circuit Court for Baltimore City, No. 115141032.
Hat tip to Prof. Doug Berman for posting this entry, noting and linking a Reuters news story.  It seems that the scandalous Stanford rape "sentence" has awoken the very liberal California state legislature to the need for  --  ready now?  --  mandatory minimum sentencing.

I don't know whether it's more unfortunate or more revealing that it takes a politically incorrect crime to jar these people into action.  My own view (for the last few decades) has been that judges, like other people, operate better with rules than without.

There are numerous crimes so degrading, damaging and/or vicious that no combination of mitigating factors warrants a degree of leniency that would shock a normal person.  That is where the legislature needs to step up.  Giving judges a considerable degree of discretion in the great run of cases  --  which we should  -- does not require or even suggest giving them 100% discretion 100% of the time.

News Scan

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La. Cop Killed by Probationer:  A Louisiana detective was fatally shot during a pedestrian stop on Wednesday in what the Jefferson Parish Sheriff called "a cold-blooded murder."  Phil Helsel of NBC News reports that Detective David F. Michel, Jr. was shot once in the back and two additional times at point-blank range as he fell by Jerman Neveaux, 19, who is currently in custody.  Neveaux confessed to killing the officer because he was on probation and did not want to go back to jail for possessing a firearm.  Michel had been with the sheriff's office since 2007.

AR High Court Upholds Lethal Injection Secrecy Law:  In a 4-3 decision Thursday, the Arkansas Supreme Court ruled that the state can continue to administer lethal injections to death row inmates without supplying them with information about the manufacturer, seller or any other information about the drugs, reversing a lower court ruling.  Claudia Lauer of the AP reports that the ruling stems from a challenge to the state's secrecy law by a group of inmates, who argued that it is unconstitutional to have such laws because the lack of disclosure of the information deprives inmates' assurance that the punishment would not be cruel and unusual. Arkansas currently has eight pending executions, though it has not been made clear when the state will be able to resume executions.  It has been over a decade since the state carried out an execution.

SCOTUS Deadlocks on Obama's Deportation Amnesty:  The U.S. Supreme Court deadlocked in 4-4 vote Thursday on President Obama's deportation amnesty, leaving in place a lower court's ruling that blocked the White House from shielding millions of illegal immigrants from deportation.  Stephen Dinan of the Washington Times reports that the Fifth Circuit Court of Appeals ruled that Obama's program broke immigration law, and many agreed that the president attempted to subvert the Constitution.  Obama's program, announced in 2014, would have applied to as many as five million illegal immigrants who either came to the U.S. as children or who have children that are citizens or legal residents, granting them three-year stays of deportation, work permits, Social Security numbers and other taxpayer benefits.

Freddie Gray Prosecution Implodes

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Small-time Baltimore drug dealer Freddie Gray was alive when he was placed in a police van and all but dead when he came out (he died a few days later).  Six police officers, three white and three black, were charged with various crimes related to his death.

I said at the time (e.g., here, here, here and here) that the States Attorney, Marilyn Mosby, struck me as a politicized, grandstanding amateur who would be headed for trouble.  In any other context  -- that is, where the defendants were not police  --  her behavior, consisting of events indistinguishable from campaign rallies, would be scorched by civil liberties groups as unprofessional if not borderline unethical. But such groups have been quieter than the proverbial church mouse.  I guess cops aren't worthy of due process.

Here are the results so far:  In an overwhelming black and liberal city, the first officer got a mistrial.  The second got an acquittal on all counts. This morning, the third, against whom the most serious charged was lodged (negligent homicide), was likewise acquitted, also on all counts.

I have no personal knowledge of the facts of the case.  An acquittal does not mean the defendant didn't do it.  But to go to trial three straight times and get not a single count of conviction is, in my experience, nearly unprecedented.  I strongly suspect the court found this prosecution just as ill-conceived and ideological as I did and, more important for the purposes for which trials are convened, just as lacking in solid evidence of guilt.

Mixed Result in DUI Cases

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In three consolidated cases, of which the lead is Birchfield v. North Dakota, No. 14-1468, the U.S. Supreme Court held today:

Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. As in all cases involving reasonable searches incident to arrest, a warrant is not needed in this situation.
CJLF filed a brief in one of the three, Beylund v. Levi, No. 14-1507, a civil case challenging the suspension of Beylund's driver's license for refusing a blood test after being informed he could be criminally prosecuted for refusing.  In addition to the legality of the requirement, CJLF argued that the suspension was valid regardless, as the federal Fourth Amendment exclusionary rule does not apply to civil proceedings.  The U.S. Supreme Court left that question open for the North Dakota Supreme Court on remand on the theory that state law might "provide a remedy" not required by federal law.

Although we did not get everything we wanted, this is mostly a win for the life-saving cause of getting drunks off the road. 

The New CounterTerror Strategy: Kumbaya

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I only wish the Administration's strategy to dismantle our successful sentencing system  --  the one that has helped crater crime rates for a generation  --  more closely  resembled  its "strategy" to "dismantle" Jihad.  Yesterday, Attorney General Loretta Lynch explained the battle plan against Islamic terror:

"Our most effective response to terror and hatred is compassion, unity and love," Lynch said after meeting with officials in Orlando, Fla., on Tuesday -- a week after a gunman at a gay nightclub killed 49 in the deadliest mass shooting in modern American history.

When I was at camp at about age 13, I thought it would be a good idea to try to impress a 13 year-old girl by singing "Kumbaya." This didn't work out too well, but the worst that happened was that she rolled her eyes and paid attention to another boy.  

I wonder if that's the worst that will happen when we sing "Kumbaya" to Khalid Shaikh Mohammed.

The fecklessness of these people in understanding what we're facing cannot be captured in words.

UPDATE:  Scott Johnson is also embarrassed for Ms. Lynch, if "embarrassed" conveys the extent of it.



Jason Riley nails it at the WSJ.

News Scan

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IN Killer to get Execution Date:  A Gary, Ind., man on death row for murdering his family nearly a decade ago is getting to closer to receiving an execution date.  Ruth Ann Krause of the Post-Tribune reports that Kevin Isom, 50, was given the opportunity during hearings on March 14 and May 2 to sign a petition to file post-conviction relief.  Lake Superior Court Magistrate Natalie Bokota repeatedly informed him that failure to sign the petition would result in the post-conviction appeal being taken off the table, allowing for an execution date to be set.  An order has been issued asking that the Indiana Supreme Court set an execution date.  Isom was convicted of three counts of murder in 2013 for the August 2007 shooting deaths of his wife, Cassandra Isom, 40, and stepchildren, Michael Moore, 16, and Ci'Andria Cole, 13, all of whom were shot multiple times.

CA Assemblymen's Bill would close Prop. 47 Loophole:  Two California Assembly members introduced legislation Tuesday that aims to protect small businesses from shoplifting syndicates taking advantage of the reduced sentences under Proposition 47.  The Santa Clarita Valley Signal reports that Assembly Members Tom Lackey (R-Palmdale) and Scott Wilk (R-Santa Clarita) have proposed AB 2287, which would allow prosecutors to use conspiracy laws to target organized shoplifters and charge individual thieves with felonies if they steal more than $950 in a six month period.  Prop. 47, approved by voters in 2014, reduced certain crimes from felonies to misdemeanors, including theft, so long as less than $950 worth of goods was stolen at a time.  Since Prop. 47's implementation, criminals have become wise to this loophole, which has caused retail theft to almost double.  Wilk describes the legislation as "a common sense reform to fix an unintended consequence of Prop. 47."

Criminal Aliens Being Released into US:  A report released by Homeland Security's inspector general this week exposed major flaws in the immigration system, including the practice of releasing criminal aliens onto U.S. streets when their home countries refuse to take them back.  Stephen Dinan of the Washington Times reports that this issue stems a 2001 court decision in Zadvydas v. Davis which prohibits the U.S. Immigration and Customs Enforcement's (ICE) from detaining criminals for longer than 180 days in the absence of extraordinary circumstances1 court decision.  ICE states that once 180 days of detention are up, their ability to monitor and supervise individuals is limited, allowing for criminals to return to the streets and commit new crimes.  Last year Jean Jacques, a Haitian immigrant whose home country refused to take him back after he served time for attempted murder, was released from prison and murdered Casey Chadwick within months.  Several thousand  illegal immigrants walk U.S. streets today for this reason, 35,000 from Cuba alone.  ICE says it's working with the State Department to press other countries to comply with repatriating their citizens.

Who Should Make Prison Policy?

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The saying about the inmates running the asylum used to be a joke.  

What is "violent" crime?

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Here is a good example of an article that I largely agree with for its main point, even though I come from an opposite viewpoint on the underlying policy question.   The title above is the first sentence of Benjamin Levin's article in Slate, while the actual headline and subhead is "less pithy," as Doug Berman points out.  "It's time to rethink 'violent' crime: How mislabeling misconduct contributes to our bloated criminal justice system. -- The distinction between violent and nonviolent crime is a problematic metric for determining criminal punishment."

As with many other terms, "violent" and "non-violent" are easy enough to distinguish in their core territories (e.g. murder v. tax evasion), but there is a gray zone.

Burglary is generally classified as a "property" crime rather than a violent one.  That is where you will find the numbers tallied in the FBI's Uniform Crime Reports.  Yet in terms of its effects on victims, burglary of a home is a crime of psychological violence.  The emotional reaction to having one's inner sanctum invaded is often far worse than any tangible property loss.  Many victims make an explicit analogy to sexual assault in terms of their reaction.
A:  I don't know, but a DOJ study confirms that the Ferguson Effect  --  i.e., unhinged, ideological criticism of the police and their resulting increased caution  -- has, indeed, contributed to the rise in murder.

Our News Scan has this item, addressing the causes of the crisis-level 17% murder increase last year:

The [DOJ] study offers two explanations regarding the Ferguson Effect and how it has impacted crime, specifically murder. The first explanation asserts that increased police scrutiny in the wake of highly publicized shootings have caused law enforcement to pull back, allowing for criminals and potential murderers to roam freely, undeterred.  The second emphasizes the distrust and discontent that exists between the police and African American communities, resulting in a lack of cooperation with police investigations.*

There are at least two very important conclusions to be gleaned from this study. First, contrary to the Attorney General's and the White House's false assertions, there are indeed "data" showing the Ferguson Effect and its harmfulness (thank goodness Jim Comey was around to tell the truth).  The previously invisible data were found by DOJ itself, after a conveniently long interval to let the previous mendacious narrative sink in.

Good grief.

Second, the study, while a welcome admission of what anyone connected to reality has known for months, has a serious flaw, to wit, it suggests an alternative explanation where none actually exists. 

News Scan

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Obama Administration Lowballs Crimes by Illegal Aliens:  The watchdog group Fairness and Accuracy in Reporting (FAIR) revealed that the 30,558 criminal aliens released in FY 2014 committed 13,288 additional crimes, a far higher number than the 1,423 reported by the Obama administration last July.  Caroline May of Breitbart reports that the president of FAIR, Dan Stein, criticized the Obama administration upon discovering the Immigration and Customs Enforcement (ICE) records obtained via a Freedom of Information Act (FOIA) request, for attempting to hide the true numbers by providing inaccurate information to Congress and the public "[r]ather than end dangerous politically-driven policies that have put a total of 85,000 deportable criminal aliens back into the streets in the last three years."  In FY 2014, the 30,558 released criminal aliens went on to commit an array of new crimes, including vehicular homicide, domestic violence, sexual assault, DUI, burglary and assault.

Ferguson Effect to Blame for Increase in Murder Rates:  America's largest cities have seen a 17% spike in murder rates over a one-year period, and according to a new study released by the U.S. Department of Justice, the "Ferguson Effect" could be partly to blame.  Richard A. Webster of the Times-Picayune reports that the study focuses on 56 of the nation's most populous cities that consist of more than 250,000 residents, 18 of which have seen homicides spike by more than 25% and 12 that have seen a 50% increase. The study offers two explanations regarding the Ferguson Effect and how it has impacted crime, specifically murder. The first explanation asserts that increased police scrutiny in the wake of highly publicized shootings have caused law enforcement to pull back, allowing for criminals and potential murderers to roam freely, undeterred.  The second emphasizes the distrust and discontent that exists between the police and African American communities, resulting in a lack of cooperation with police investigations.  Another possible explanation for the nationwide murder spike is the expansion of inner-city drug markets fueled by the heroin epidemic.

Petition Submitted to Block Manson Follower's Parole: 
A petition was submitted to California Gov. Jerry Brown on Monday in an effort to block the parole of a follower of Charles Manson imprisoned for killings a wealthy grocer and his wife over four decades ago.  The AP reports that Leslie Van Houten was convicted of murdering Leno and Rosemary La Bianca in 1969, one day after other "Manson family" members killed pregnant actress Sharon Tate and four others.  Debra Tate, Sharon's sister, along with a nephew and grandson of the La Biancas, turned in 140,000 signatures, taking up three boxes, at Brown's Capitol office.  Van Houten was recommended for release by a parole board in April.  The recommendation will go to Brown in August and he will have until mid-September to decide whether or not to block Van Houten's release.

Serial Killer's Fate Depends on OK Authorities:  A man currently serving a 60-year sentence for abduction could potentially face the death penalty after he was linked to several murders across both Texas and Oklahoma. KFOR reports that William Reece recently led police to the remains of Kelli Cox, whom he abducted and murdered in 1997. Police believe that there are at least five women whom have also suffered the same fate at Reece's hands, though he has only been formally charged with one murder. Texas officials have Reece in custody and have decided not to impose the death penalty if he agrees to lead them to the bodies of other victims. Oklahoma's authorities have yet to make a decision in regards to the death penalty and may still decide to impose it.

An Aggravated Assault On Death Row

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The primary reasons for punishing people who have committed serious offenses are retribution, incapacitation, deterrence, and rehabilitation.  Prison largely incapacitates, but not entirely, as this AP story reminds us.

Officials say a prison guard is recovering after he was attacked by a condemned inmate on California's death row.

They say 27-year-old Jesse Manzo assaulted the San Quentin State Prison correctional officer Thursday evening as he was being escorted back to his cell after taking a shower.

Manzo slipped his wrist out of an open handcuff and used the handcuff to hit the officer several times.

Officials said Friday that the officer was taken to an outside hospital for treatment of cuts including a significant facial injury.

Manzo has been on death row since 2013.

He was convicted of first-degree murder in Riverside County for the 2008 gang-related hate crime killing of Raymond Franklin.
Given that he has only been on death row three years, this is not a case where we can say he should have been executed already.  Even so, this is a reminder that he will be a danger from now until he is executed.  If the repeal initiative passes, he will be a danger from now until he dies of other causes, which may be a very long time.
Many astute writers about criminal justice pride themselves on analysis of data.  This is fine (as long as the data aren't intentionally skewed to omit inconvenient facts). Numbers can tell us a lot  --  for example, that shootings of police officers are markedly up this year, that murder is spiking in dozens of cities, and that heroin trafficking and related overdose deaths have reached epidemic levels.

The other side of the coin is that "data," even when considered honestly, can be used to create a miles-deep fog of what academics tell us is a "nuanced" and "careful" analysis.  Such analysis, we are lectured, is in contrast to the screeching of wahoos, cowboys and assorted brickheads who, in their Trailer Park way, have become alarmed about crime and think that punishment and incapacitation are warranted.

Every now and again, it's useful to clear away the academic fog to recall what it's being used to obscure.  This is one such story, taken not from the annals of death penalty arguments, buy merely from the inner section of yesterday's Washington Post.  The whole mind-bending article about a random savage murder is a revelation, but this is the paragraph that caught my eye (emphasis added):

[P]olice called to the scene discovered William Bennett's body, but [defendants] Roberts and Bowman had moved Cynthia Bennett, then 55, behind a fence and she lay unconscious for 45 minutes before she was spotted. Howard David Reines, a trauma surgeon at Inova Fairfax Hospital, testified in 2011 that Cynthia Bennett suffered cuts and broken bones in her face and around her eyes, one ear was partially torn off, she had a severe injury to her pelvic area and she lost more than five quarts of blood through the wound in her lower body before doctors could halt the bleeding. "In 30 years, I don't think I've ever quite seen anything like it," he said.

This is the kind of stuff crime victims live with.  Good luck finding a word about it on SSRN.


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