A Smear Job by a Sitting Federal Judge

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Are you in favor of the system of stern federal sentencing that has helped reduce crime to levels not seen since the Baby Boomers were in grade school?

If so, you're not merely mistaken, misguided or misinformed.  You're in bed with lynching.

That is the level of "argument"  --  indeed, that is exactly the argument  --  put forth in a new article by a sitting US District Judge, Mark Bennett of Iowa.  The article, available here, is titled, "A Slow Motion Lynching? The War on Drugs, Mass Incarceration, Doing Kimbrough Justice, and a Response to Two Third Circuit Judges."

Never one to appeal to emotion or fiction, Judge Bennett starts his hatchet job on those who disagree with him with this:

The 2014 Best Picture Oscar winner, 12 Years a Slave, is based on the 1853 autobiography by Solomon Northup.1 Northrup, a black freeman in New York, was kidnapped and sold into Southern slavery.2 There is an eternally haunting, prolonged, and grueling scene in the movie where Northup has a noose around his neck and strains for breath by tiptoeing on the ground to keep from being lynched.3 Other slaves on the plantation are paralyzed by fear and ignore him. Like a ballerina en pointe, Northup spends long hours in this slow motion lynching dance until he is rescued by his owner.

This article is supposed to be about modern federal sentencing, mind you.

Of course, a number of paragraphs later, Bennett inserts the obligatory if limp disclaimer, a disclaimer embarrassing for its blase' insincerity:

This Article does not suggest that incarcerating almost exclusively black men for unprecedented lengthy terms of incarceration, for crack cocaine offenses they illegally committed, is the equivalent of lynching innocent blacks. It does, however, suggest both actions have strong racial overtones; both share a lack of public outcry; both share tacit public complicity; both share governmental complicity; both share devastating effects on families, children, and neighborhoods; and both have been accomplished largely at the hands of those unknown--at least to the general public.

Today the Supreme Court heard argument in Ohio v. Clark.  The Confrontation Clause of the Sixth Amendment limits the use of out-of-court statements of people who do not testify as witnesses in the criminal trial, but exactly where that line is drawn has been a problem for a long time.  From the 1980 decision in Ohio v. Roberts until the 2004 decision in Crawford v. Washington, the focus was on the reliability of the statement.  Crawford threw that overboard and asked if a statement was "testimonial."  Under this rule, the reliability of the statement is at best irrelevant to whether it is excluded by the Confrontation Clause, and often the rule operates perversely, letting less reliable statements in while excluding more reliable ones.

Some of the Justices have been uncomfortable with that ever since, and that discomfort showed in today's argument over the statement of an abused child to his teacher.

So far, Justice Thomas has been alone in his view that the Confrontation Clause applies narrowly to the kinds of practices it was specifically aimed at, such as the use of depositions in lieu of live testimony.  In this view, the admissibility of most hearsay statements would be questions of state evidence law, not a federal constitutional mandate.

I think Justice Thomas has it right, and my brief takes a historical view consistent with his thesis.  There was no discussion of this view in today's argument, but the Justices seem uncomfortable with the status quo, and CJLF's arguments sometimes appear in the opinions without having been featured at oral argument.  We'll see.

News Scan

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Arkansas May Adopt Cell Phone Locator Law:  The Arkansas House has passed a bill that would allow police to locate a cell phone in an emergency.  Max Brantley of the Arkansas Times reports that the measure was introduced by Rep. Rebecca Petty, the mother of a murder victim.  It would require cell phone companies to provide police with location information for wireless phones in response to a call from emergency services or police in situations where the phone's owner was suspected to be at risk of physical harm.  Opponents fear such access would violate the Fourth Amendment.  The bill passed out of the House 70-8.  

Bipartisan Effort To Amend CA Prop. 47:  Republicans and Democrats are working together in the California Legislature to give voters a chance to amend Proposition 47, which voters adopted last November.  The measure lowered the classification for several so-called "low level" crimes from felonies to misdemeanors causing what some say were unintended consequences.  Among the crimes which are no longer considered felonies are firearm theft and possession of "date rape" drugs.  Don Thompson of ABC News reports that, according to police, property crimes have increased.  "I don't believe the voters truly knew what they were signing up for," said the President of the California State Sheriffs Association.  If bills to restore felony charges for possession of "date rape" drugs (SB333, AB46)  and firearm theft (AB150) are passed by majorities of both houses, the reforms would appear on the state's next general election ballot.  Another measure to allow DNA testing for those charged with crimes previously considered felonies (AB390) can be adopted by a majority vote and the Governor's signature.   

Murderer's Execution Set For March 17:  A Georgia man sentenced to death for the 1992 ambush murder of 70-year-old John Watson is scheduled for execution later this month.  The Rockdale Daily Citizen reports that days after habitual felon Brian Keith Terrell had been released from prison he stole several checks from Watson and began cashing them.  When Watson learned that Terrell was cashing the checks he called the police and Terrell's mother, who was a friend.  Two days later, Terrell waited outside of Watson's house until the older man came out to go to his dialysis appointment.  Terrell then shot Watson four times and beat him so badly that a bone penetrated his brain.  A jury recommended the death sentence following his conviction in 2001.  

CA Supremes Overturn Jessica's Law Residence Restriction:  In a unanimous decision released today, the California Supreme Court held that the provision of the state's 2006 Jessica's Law which bars paroled sex offenders from living within 2,000 feet of a school or playground is unconstitutional.  Keegan Kyle of the Orange County Register reports that the court found the restriction overly broad, prohibiting sex offenders from more than 97% of available rental housing.  The initial impact of the decision will fall on San Diego County, which is where the legal challenge to the restriction was raised.

US Supreme Court Today

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The U.S. Supreme Court is in session and is hearing oral argument in Ohio v. Clark, regarding whether the Confrontation Clause allows a teacher to testify as to what a preschool child said about who abused him.  CJLF's brief is here.  My post at the time of filing is here.

The Court also released its orders list from last Friday's conference.  It took up a case on the interpretation of the federal extortion law.  The Question Presented follows the break.

News Scan

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Realignment Offender Arrested After Violent Attack: A California man released from custody and placed on light supervision under Realignment is behind bars once again after authorities say he was involved in a violent assault and robbery Wednesday evening.  Susan C. Schena of Patch.com reports that it took several officers, a police K-9, and a CHP helicopter to track down and arrest 36-year-old Warren Haley, who at the time of the attack, had two outstanding warrants for his arrest.  Haley is currently in county jail facing charges of assault with a deadly weapon, robbery, and resisting arrest.

Utah High Court Upholds LWOP For Juvenile: In a 4-1 decision, the Utah Supreme Court has upheld the life without parole (LWOP) sentence for a juvenile convicted of rape and murder.  Pat Reavy of Deseret News reports that Robert Houston was 17-years-old when he violently raped and stabbed to death a youth counselor who had been assigned to work with troubled teens.  Since Houston was a minor at the time of the murder, prosecutors could not seek the death penalty and instead pursued a life sentence.  Houston, who already had two prior knife-point sexual assault charges prior to the killing, is the only juvenile in Utah state history to be sentenced to life without parole. 

Mexico Captures Notorious Drug Kingpin: Authorities in Mexico have captured one of the country's most wanted drug lords, 49-year-old Servando "La Tuta" Gomez.  Anahi Rama and Lizbeth Diaz of Reuters report that aside from being wanted in his native country of Mexico, Gomez was also wanted in the U.S. on charges of trafficking methamphetamine and cocaine. He is also believed to have been involved in the murders of 12 Mexican federal police officers in 2009.  More than 100,000 people have been killed in gang-related violence in Mexico since the country's government began cracking down on drug cartels in 2007.

Would We Be Safer if Fewer Were Jailed?

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The NYT Room for Debate page has a collection of six short articles under the heading above.  The subhead is, "Can the use of jails be reformed to reduce the number of inmates without increasing society's risks?"  The question presented was specifically on county jails, not state prisons.  There is quite a stink in the Big Apple over conditions at Rikers Island.

Before clicking on the link, care to guess how many of the six answer the main question "no"?  Or who wrote it?  (Oops, that singular pronoun in the second question sorta gave away the first.)

California v. National Crime Rates

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Here is an update on California versus overall United States crime rates.  The table below shows the rates per 100,000 population for the FBI's violent crime index and property crime index for 2011, nine months of which predates the Realignment program, and 2013, the most recent year with full data available.  The data are from the downloaded files on the FBI's Crime in the United States reports for the respective years.

The nation as a whole had a 6% drop in property crime over the two-year period, while California had a 3% increase, a difference of 9%.

News Scan

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Update: GA Execution Delayed By Weather: The Georgia woman who was scheduled to be executed yesterday for the murder of her husband will spend a few more days on death row after inclement weather delayed her execution.  David Beasley of Reuters reports that officials delayed the execution and rescheduled it for next Monday after a weather forecast predicted three inches of snow overnight.  The last time a woman was executed in the U.S. was in September 2014.

Repeat DUI Offender Charged with Murder: A California man who authorities say was convicted of DUI last June is behind bars once again and facing murder charges after allegedly killing a man while driving under the influence Saturday afternoon.  Robert Salonga of the San Jose Mercury News reports that 25-year-old Marco Chamale is facing a variety of felony charges including DUI, hit-and-run, and murder after authorities say he veered onto the sidewalk and hit a fruit vendor before dragging the man's body 30 feet and fleeing the scene.  Chamale is currently being held in county jail without bond. 

Prop 47 Increased Property Crime For CA Town: Police one Northern California town are dealing with higher rates of property crime since voters passed Prop 47, which reduced a number of crimes from felonies to misdemeanors last November.  Ryan McCarthy of the Daily Republic reports that the Mayor of Vacaville, CA, Len Agustine, blamed the proposition for his city's increase in property crime and believes criminals are committing these types of crimes because they know they can get away with it.  Mayor Agustine believes Governor Brown is more interested in getting people out of jail rather than putting people in.  

Can the AG Take Pot Off Schedule I?

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The question whether the Attorney General can, strictly on his own initiative, take pot off Schedule I of the federal schedule of controlled substances has been kicking around for some time now.

As with everything inside the Beltway, it's hard to get a straight answer.  The Washington Post at least gives it a good college try today.  The key part of its piece is here (emphasis added):

Under federal law, the attorney general can move to add, reschedule or remove drugs on his own, at the request of the health and human services secretary or in response to a public petition. But the law also requires the attorney general to gather data and scientific and medical evaluation from the HHS secretary before doing so.

Congress can pass laws to change the scheduling of drugs. Even if the attorney general does decide to move toward rescheduling, Congress can overturn his decision, experts say.

The Drug Enforcement Administration already has denied a petition to reschedule the drug, based on findings by HHS. HHS determined that marijuana has a "high potential for abuse" and "no currently accepted medical use in treatment in the United States," leading the DEA to reject the petition in 2011. The petition was filed nearly a decade earlier, in 2002.

I would add four observations.  First, pot is already de facto legal, as you can find out by going to any of a zillion frat parties this weekend.  Second, the incoming AG, Loretta Lynch, has said firmly that she opposes pot legalization  --  a quite direct answer, given the entirety of her testimony.  Third, it was several years into the present Administration that the federal government refused a request to take pot off Schedule I.  Fourth, a Congress vastly more liberal than this one (2006-2010) made absolutely no move to remove pot from Schedule I.

The facts being what they are, this is not that hard to figure out, unless you're stoned.

News Scan

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Suit demanding CA adopt an execution process brought by ex-NFL Star Kermit Alexander
Tracy Connor of NBC News reports on the murders of Kermit Alexander's family, profiling his story and his continued wait for justice.  Earlier this month, after filing a suit demanding CDCR adopt regulations for lethal injection, the Superior Court agreed that Mr. Alexander has standing to bring the action, giving him hope to move forward after decades of waiting.  The story is available here.
Kermit Alexander will be on KFI Radio after 4:30 p.m. today.

News Scan

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Crime Victims to Testify Against Obama Immigration Policies: Family members of those killed by illegal immigrants released under President Obama's immigration policies will testify at a Congressional hearing Wednesday morning.  Joel Gehrke of the National Review reports that of the 36,000 convicted illegals released by the Department of Homeland Security since 2013, 1,000 of them have been arrested and convicted of crimes.  The crime victims' families are hopeful that their testimony will encourage  sensible immigration reform.

Bills Require Lifetime Tracking Of Sex Offenders: A group of Florida lawmakers have introduced a pair of bills that would require convicted sex offenders to wear or carry an electronic monitoring device for the rest of their lives.  Anneliese Delgado of WOKV News reports that under the legislation, sex offenders would wear the GPS device even after they have completed their court-ordered probation, and would also be responsible for reimbursing the Department of Corrections for the cost of the device.  If the bills are passed, they would go into effect October 1, 2015.

GA To Execute Female Murderer: The Georgia parole board has denied a request for clemency submitted by the state's only female death row inmate, allowing the state to move forward with executing her Wednesday evening.  The Associated Press reports that 46-year-old Kelly Gissendaner was sentenced to death in 1998 after a jury found her guilty of murder in the death of her husband.  If the execution is carried out as scheduled, Gissendaner will be the first woman executed by the state of Georgia in roughly 70 years.  

Fisherman Wins SarbOx Case

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By the narrowest of margins, the U.S. Supreme Court has spared a fisherman from the overbroad drafting the Sarbanes-Oxley Act, a law that was supposed to be about corporate financial accountability, not throwing fish overboard.  The vote in Yates v. United States is 4-1-4, with Justice Ginsburg writing the plurality opinion and Justice Alito concurring in the judgment in a separate opinion.  These split results typically produce a lot of head-scratching as lawyers and lower courts try to figure out what the heck the law is.

Update:  On an initial quick read, the plurality and concurrence don't seem all that different to me.  The SarbOx law prohibits destroying etc. "any record, document, or tangible object."  Is "tangible object" limited to information-containing objects along the lines of documents and records, or does it extend to any objects whatever?  The plurality and concurrence invoke the standard rules of statutory construction of considering words in their context and considering words in a list to be in the same general category as the others in the list.  The concurrence also notes the title of the section, "Destruction, alteration, or falsification of records in Federal investigations and bankruptcy."  Yep.  Titles should get more attention than they do.  I especially dislike the old rule that too many lawyers write into documents that you should ignore the titles.  They are important clues into the genuine intent of a document.

Justice Kagan in dissent insists that "A fish is, of course, a discrete thing that possesses physical form," citing the renowned lexicographer Theodor Geisel by his better-known pen name.*  Pretty sure that's a first.

News Scan

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Evaluating Inmates: States across the U.S. have been using surveys and other evidence-based instruments to predict a prison inmate's risk of committing serious crimes if released.  These tools are a key element of the "smart sentencing" movement which insists that most criminals should be rehabilitated in community-based programs rather than incarcerated in expensive prisons. In an in-depth Associated Press report Eileen Sullivan and Ronnie Greene found many problems with the accuracy of these tools often resulting in tragedy. One violent sex offender rated low risk and released from a Texas prison in 2013, moved to Indiana and murdered a 19 -year-old girl a year later. When arrested he led police to the bodies of six other women. Hell of a way to save money.   

AK Allows Recreational Marijuana Use: Starting today, residents of Alaska can smoke, grow, and own small amounts of marijuana after voters narrowly passed the measure last November.  Jason Redmond of Reuters reports that anyone aged 21 or older is allowed to have up to an ounce of marijuana and can grow up to six plants, however, smoking, buying, and selling the drug in public still remain illegal.  Voters in Oregon approved a similar measure in November, but the law won't take effect until July.

Hundreds of Matches Found In Backlogged Rape Kits: After processing nearly 7,000 untested rape kits, authorities in Texas have been able to start charging people with crimes that up until now had gone unsolved.  The Associated Press reports that the city of Houston began processing the untested kits in October 2013, since then, charges have been filed against 29 people-six of whom have been convicted.  Similar backlogs exist in police departments around the country due to the high cost of DNA testing.

Jennings v. Stephens Podcast

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The Federalist Society has this podcast by CJLF's Legal Director Kent Scheidegger on the U.S. Supreme Court's January 14 decision in Jennings v. Stephens.

SCOTUS Tuesday

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Only one decision from the U.S. Supreme Court today.  It is an "original jurisdiction" case, states suing each other over river water:  Kansas v. Nebraska.  Still waiting on Elonis v. United States.

Today's criminal law argument has to do with the disposition of firearms seized from a defendant when the criminal case is over and the now-convicted defendant can no longer legally possess them: Henderson v. United States, No. 13-1487.

Death Penalty Repeal Fails in Montana

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Mike Dennison reports in the Montana Standard:

The state House deadlocked Monday 50-50 on a bill to abolish the death penalty in Montana, likely killing the measure for the 2015 Legislature.
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Monday's vote fell largely along party lines, with most Republicans against it - but it took three of the House's 41 Democrats voting "no" to reject the bill, which would abolish the death penalty in Montana and substitute it with life in prison without parole. Montana has two murderers on death row.
While the vote is welcome, it is unfortunate and worrisome that they got that close.  Repeal supporters have swung marginal votes with arguments that the process takes too long and costs too much, when the obvious answer is to make in faster and, in the process, cheaper.

The way to make review of death penalty cases faster and cheaper while making it more reliable with regard to genuine miscarriages of justice is to limit all repeated reviews, after the first full round of review, to questions with some bearing on actual innocence. 

News Scan

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Illegals Riot In Texas Prison: Nearly 3,000 inmates at a federal prison in southern Texas will be relocated to new facilities after a riot over the weekend resulted in significant damage.  Newsmax reports that inmates at the private prison, which primarily houses illegal immigrants, broke out of their cells and set fire to several areas and tore down tents that had been set up for additional housing.  So far, 300 inmates have been relocated and hundreds more are scheduled to be moved throughout the week. 

OH Delays Execution Of Cop Killer: The Ohio Supreme Court has granted a routine stay of execution for a man convicted of murdering a police officer in 2008.  Marc Kovac of The Daily Record reports that Ashford Thompson was sentenced to death in 2010 after being found guilty of shooting a police officer multiple times in the head during a routine traffic stop.  Thompson's lawyers appealed his sentence with claims that legal and procedural errors were made during his trial.  Last October, the state's high court upheld Thompson's death sentence in a 4-3 decision.

Nevada Lawmakers To Hear Several Gun Bills: This may be the 'year of the gun' in the Nevada Legislature as at least nine gun-related bills have already been introduced or are being drafted by lawmakers.  Sean Whaley of the Las Vegas Review-Journal reports that the proposed bills include expanding justifiable homicide to carjacking situations and making it illegal for anyone convicted of domestic violence to own a gun.  Nevada Assembly Judiciary Chairman Ira Hansen believes the high number of gun-related bills may be a response to the national effort by anti-gun groups to limit gun rights of citizens.  

Framed by the Innocence Project?

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We previously noted the Alstory Simon story here in 2008 and here last November.

Jacob Siegel reports in the Daily Beast on the restitution suit filed by the "actual killer" in one of the earliest and most famous "exoneration" cases.  The ironic and inconvenient truth is that the "actual killer" nailed by the "innocence" crusaders was actually innocent.

"It took two sides to get this thing done," Crawford says of the forces that pulled Simon into the murder case and put him in prison.

"This thing" Crawford refers to darkly is the collusion between overzealous state prosecutors and a high-profile leader of a since disbanded franchise of the Innocence Project, a nationally lauded legal program that gathers evidence to exonerate wrongfully convicted prisoners. In this case Crawford and others allege that in its eagerness to free a prisoner on death row, the Northwestern University branch of the Innocence Project framed Simon, and Cook County prosecutors went along with it.

Simon was convicted in 1999 for a double-murder in Chicago in 1982 on the basis of what he says was a coerced confession and released on Oct 30, 2014 after being exonerated by a new investigation. Now, in a bid for restitution and maybe some justice, Simon has filed a $40 million lawsuit against Northwestern and former professor David Protess, famed founder of Medill's Innocence Project.

According to Simon's lawsuit, "The horrific injustice that befell Simon occurred when defendants, Northwestern University professor David Protess, Northwestern University private investigator Paul Ciolino, and attorney Jack Rimland, conspired to frame Simon for the murders in order to secure the release of the real killer, Anthony Porter," the suit reads.
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The problem, as Cook County State's Attorney Anita Alvarez said in a statement after Simon's release, was that the "investigation by David Protess and his team involved a series of alarming tactics." Those tactics, "were not only coercive and absolutely unacceptable by law-enforcement standards," Alvarez said, "they were potentially in violation of Mr. Simon's constitutionally protected rights."


The U.S. Supreme Court begins its February-March argument session today.  The big news will be on the last day, Wednesday, March 4, the Obamacare subsidy case, King v. Burwell.

The main issue of that case is, of course, off-topic for the blog, and CJLF takes no position on it.  Yet the law is a seamless web, and we always watch Supreme Court cases for points that may spill over and have an effect on our cases.  Adam Liptak reports for the NYT that the issue of standing may pop up in this case.

Standing is an issue in two of CJLF's current cases, HCRC v. USDoJ and Winchell & Alexander v. Beard.  See this post two weeks ago.  Liptak's article begins:

The Supreme Court has developed elaborate tests to determine if plaintiffs have standing to sue. But their essence, Justice Antonin Scalia once observed, is a four-word question: "What's it to you?"

To get into court, it is not enough to be unhappy about something. Only people with a direct stake in a dispute have standing to sue.
But a very complex body of law lies beneath that seemingly simple question.

I don't think it takes a genius to figure this one out.  Still, the sponsors of Prop. 47 nervously assure us that it's "too early" to draw the predictable (and predicted) conclusion from these breathtaking figures.  Of course, by the time they admit the conclusion everyone else can see, their line will be that we just don't have the money to "go back."

When you shrink drug enforcement, you get more property crime as well as more drug abuse.  And I don't mean just pot.  I mean meth.

Read the entire Los Angeles Times story for yourself.


Click on the graph for a larger version.

Hat tip to Doug Berman at SL&P, who brought this piece to the attention of his readers. 

My friend Prof. Greg Dolin of the University of Baltimore Law School writes, "When Barack Obama ran for President, he argued that terrorism should be primarily a law enforcement rather than a military issue. Now he apparently thinks that it's primarily a labor and human services and not a law enforcement issue."

The source of Greg's remark is the following story, which I post with only the observation that this Administration's delusional thinking about terrorism has gone past the point of parody.  

White House Press Secretary Josh Earnest said Friday that FBI Director James Comey was not invited to the White House Summit to Counter Violent Extremism, because they didn't want the perception that the conference "was overly focused on law enforcement tactics...."

"Certainly law enforcement is a very important role to play. That's why we had the nation's top law enforcement official in attendance," Earnest said.

"That's why we had police chiefs and other law enforcement officials from communities across the country in attendance, but the focus here is on the broader set of tools that are available to communities all across the country to protect vulnerable people who could be susceptible to violent extremist ideology that's propagated on social media," he added.

That's it, ladies and gentleman.  We plan to fight Jihadist decapitation with Facebook posts about how to moderate the inequities of capitalism.  If you gave me a thousand years, I could not come up with this stuff.

Juan Williams has this article with the above title at the WSJ.  "This black history month is an opportunity to celebrate the most influential thinker on racial issues in America today...."

The Chair

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AP reports:

NASHVILLE, Tenn. - The Tennessee Supreme Court has agreed to hear a legal challenge over a law allowing the state to electrocute death row prisoners if lethal injection drugs are unavailable.

The challenge is part of a lawsuit filed by 34 death row inmates over Tennessee's death penalty protocols -- both lethal injection and electrocution. The state wants the court to dismiss the challenge to electrocution protocols because none of the inmates are currently scheduled to die by electrocution.

The new electrocution law was meant to jumpstart the state's stalled execution process, but it opened the door to new legal challenges.

The hearing is scheduled for May 6 in Knoxville.

The high court also is considering whether the state must release the identities of the people who carry out executions.

Jumpstart?  A curious choice of words.

Sometimes your allies are more trouble than your opponents.  These bills to revert to the electric chair or firing squad are not going to fix anything.  Look at Oklahoma, folks.

News Scan

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Convicted Killer set to be Released: A former hit man for the Mexican Mafia who was sentenced to life without parole after being found guilty of first-degree murder is set to be released from prison in a matter of days after becoming an informant for law enforcement.  Robert Holguin of ABC 7 News reports that over the past several years, 52-year-old Rene Enriquez has testified for law enforcement agencies as an expert witness and has even been a regular speaker at law enforcement seminars.  Enriquez has been behind bars since 2003, he is set to be released sometime next week unless Governor Brown intervenes.

Bill Aimed at Strengthening Gun Laws: Republican lawmakers in Nevada have introduced a bill that would prohibit people convicted of domestic violence from owning a gun.  The Associated Press reports that SB175 would also prevent individuals convicted of domestic violence that have an active restraining order filed against them from purchasing a gun.  In addition to strengthening gun legislation, the bill would also expand concealed carry laws and expand the definition of justifiable homicide.

Indiana High Court Upholds Death Sentence: The Indiana Supreme Court has upheld the death sentence for a man convicted of killing two children in a fire.  The Indy Channel reports that in 2010, Jeffery Weisheit trapped his fiancee's two children their home before setting fire to the building, in what prosecutors described as an agonizing death. Attorneys for Weisheit appealed his sentence based on the claim that the trial judge prevented a witness from testifying about their client's ability to be in prison without harming himself, his request for a new sentence was ultimately denied.

The Road Ahead For Oregon

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John Kitzhaber is no longer Governor of Oregon.  There is no news of his issuing any death row commutations on his way out the door.  AP has this story on a noncapital commutation. 

Kitzhauber's December 6, 2011 reprieve, quoted in the Oregon Supreme Court's decision in Haugen v. Kitzhaber, S060761 (June 20, 2013), reads,

NOW, THEREFORE, by virtue of the authority vested in me by Article V, Section 14 of the Oregon Constitution, I, John A. Kitzhaber, MD, Governor of the State of Oregon, hereby grant Gary D. Haugen a temporary reprieve of the aforementioned death sentence for the duration of my service as Governor.
The duration of his service is over.  The reprieve is over.  What next?

The new Governor, until-today Secretary of State Kate Brown, can and should allow the law to take its course.  The primary thing wrong with the death penalty is that the judgments take too long to carry out.  Imposing a moratorium as a remedy makes no more sense than the nineteenth-century doctors bleeding patients as a remedy.

But will she?

News Scan

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FL High Court Halts Execution: The Florida Supreme Court has stayed the execution of man who has been on death row for nearly three decades.  Payton Guion of The Independent reports that Jerry William Correll was sentenced to death for the murders of his daughter, ex-wife, ex-wife's mother and sister.  He execution was scheduled for February 26.  The state's high court stayed Correll's execution while it awaits a decision by the U.S. Supreme Court on the legality of the use of midazolam as the first drugs in a three-drug lethal injection protocol, the method presently in use in Florida and Oklahoma.  

Bill Would Expand Sex Offender Registry: A legislative panel in Idaho is reviewing a bill to add people convicted of violent crimes, such as murder and felony domestic violence, to the state's sex offender registry.  The Associated Press reports that the House Judiciary, Rules and Administration Committee has already voted unanimously to consider the bill, which is intended to improve public safety.  Other crimes that may be considered for the registry include attempted murder, human trafficking, and battery with intent to commit a serious felony.

WA Lawmakers Weigh Death Penalty Bill: A House Committee in Washington state is set to hear public testimony on a bill to  abolish the death penalty.  The Associated Press reports that House Bill 1739 would eliminate the death penalty in Washington and replace it with a sentence of life in prison without the possibility of parole.  Last year, Washington Governor Jay Inslee imposed a moratorium on capital punishment.  

I want to follow up on my post yesterday, "An Amazing Fantasy," to show how the New York Times, one of the most prominent cheerleaders for lower criminal sentences, attempts to advance its cause.  Let me cut to the chase.  Its principal means are condescension and deceit.  In this, it is all too representative of the movement for which it speaks.

I will begin by analyzing yesterday's editorial one piece at a time.  As you will see, there is barely a sentence in it that's not condescending or deceptive or both.

"Root Causes," the Insane Asylum Version

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Complacency about crime typically expresses itself in the same phrases, year after year.  Perhaps the most shopworn is the phrase, "root causes,"as in, "You Neanderthals should quit being so heartless and try to understand the root causes of crime." It inevitably turns out that the "root causes" have nothing to do with greed, selfishness or lack of morals.  Instead, they're always about something for which the hoodlum du jour is not responsible, such as poor education, bad parenting or unemployment.

The "root causes" theory of thuggish behavior just hit the jackpot.  The inimitable Ms. Marie Harf of the State Department had this to say about the world's most notorious and mind-bending criminals, ISIS terrorists:

MARIE HARF, U.S. STATE DEPARTMENT: I think there are a few stages here, right now we are trying to take their leaders and their fighters off the battlefield in Iraq & Syria, that is where they really flourish.

CHRIS MATTHEWS, MSNBC: Are we killing enough of them?

MARIE HARF: We're killing a lot of them. And we're going to keep killing more of them. So are the Egyptians and Jordanians, they're in this fight with us. We can not win this war by killing them. We can not kill our way out of this war. We need in the medium and longer term to go after the root causes that lead people to join these groups, whether it is lack of opportunity for jobs...

It would be wrong, even perverse, to blame the criminal defense bar for this stultifying nonsense.  That said, however, what struck me right off when I read it was its eerie similarity to the allocution I heard again and again from defense counsel:  "Your Honor, we can't do any good by imprisoning my client.  We cannot incarcerate our way out of drug abuse.  We need in the medium and longer term to go after the root causes that lead people to join these gangs, whether it is lack of opportunity for jobs..."

Moral of story:  Once personal responsibility for your behavior goes out the window, there's no telling where it will stop.

Ignorance At The Top

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You can't expect the average Joe on the street to understand precisely what a case pending before the U.S. Supreme Court is about.  I do expect the press to get it right, but I'm not shocked at an occasional error.

What is shocking, though, is for the Attorney General of the United States to completely misunderstand what a case before the high court is about. 

Sari Horwitz reports in the WaPo:

Attorney General Eric H. Holder Jr. said Tuesday that he would support a national moratorium on lethal injections until the Supreme Court reviews the protocol used in a botched execution in Oklahoma last year.
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"The Supreme Court's determination as to whether or not lethal injection is consistent with our Constitution is one that ought to occur," Holder said after reiterating his personal opposition to the death penalty.

"I think a moratorium until the Supreme Court made that determination would be appropriate."

That is the most ignorant statement I have ever heard from an Attorney General.

The Supreme Court is not determining whether lethal injection generally is consistent with the Constitution.  There is no serious question that the single-drug pentobarbital method that Texas has used without incident nearly 40 times is constitutional.  The case of Glossip v. Gross does not involve any question that would call that method into question.  That case involves the three-drug method used in Oklahoma, with midazolam as the first drug and with additional drugs to follow that would surely cause extreme pain if the inmate is not anesthetized by the first one.

To call for a national moratorium on all lethal injections, including those not implicated by the method involved in the case, is irresponsible and ignorant.  If Mr. Holder is concerned about the method being used in Oklahoma, he should show some leadership in helping to break down the barriers to the states' acquisition of pentobarbital.

The sooner he is gone the better.

The Best Case Yet for Loretta Lynch

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A significant number of conservatives believe Loretta Lynch should be confirmed simply because she is not Eric Holder. Personally, I have my doubts, but that view of things got bolstered significantly by Mr. Holder's Twilight Zone remarks about radical Islam and  --  ready?  --  Fox News.  This piece is just delicious:

There is a recurrent fantasy within the Obama administration that they could get away with anything, if only that damn Fox News would shut up. Well, sometimes that could be true. But other times, it's delusional. Like when Eric Holder blamed Fox News for Islamic radicalism:

Whenever you're getting criticized by both sides, it probably means you're probably getting it right. We spend more time, more time talking about what you call it, as opposed to what do you do about it, you know? I mean really. If Fox didn't talk about this, they would have nothing else to talk about, it seems to me.

Sure. It's not the beheadings, the burning alive, the selling of women into slavery, the parading of prisoners in cages that has people concerned about Islamic extremism. It's not reality, it's Fox News! But what is Holder's point? Why is the administration so allergic to acknowledging that the terrorists who are wreaking havoc are Islamic radicals?

Radical Islam, Islamic extremism; I'm not sure an awful lot is gained by saying that. It doesn't have any impact on our military posture; it doesn't have any impact on what we call it, on the policies that we put in place.

As if we had a policy in place to put these ISIS savages out of business.

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