Kent posted earlier today the words of then-Attorney General Robert H. Jackson. Jackson's remarks are long, but well worth your read because they shed so much light on so many questions involving the power and judgment of United States Attorneys.

Those subjects would become especially pointed in a matter of hours.  On what is almost certainly the eve of a politically incendiary deal with Iran, the Justice Department indicted Sen. Robert Menendez of New Jersey on corruption charges. The Wall Street Journal has the story.

Sen. Menendez is by far the most prominent Democratic opponent of the deal. His outspoken opposition creates substantial headaches for the Administration, because it complicates the coming spin that criticism of the deal is just partisan Republican obstructionism.

I have not read today's indictment.  At present, I am certain of only three things, based on my experience as both a civil service and politically-appointed officer at DOJ. First, Sen. Menendez is entitled to the presumption of innocence, and I hope he gets more of it than Darren Wilson ever did.  Second, the feds almost never indict without a very strong factual case for guilt, and you can be sure that that is true in this well-publicized matter.  Third, the timing of this indictment smells to high heaven.  

UPDATE:  On the same day the Administration decides to indict its political enemy, it decides not to indict its political ally, Lois Lerner, in a matter related to her using her office at the IRS to target conservatives.  Politico has the story, and the stench from politics mixed with the power of prosecution just got considerably worse.
The New York Times never saw a killer it couldn't find an excuse for, and today it continues in that tradition with this op-ed by Linda Greenhouse.  Doug Berman of Ohio State aptly titles his entry on it, "Should the Supreme Court Reflect the Country's Disenchantment with Capital Punishment?"

Ms. Greenhouse's op-ed is chock full of the self-righteousness that has become abolitionism's principal inventory. But I want to focus here on Doug's title, because it wonderfully captures abolitionism's second-most copious commodity  --  deceit.

First, as Ms. Greenhouse surely knows at some level of cognition, for the Supreme Court to base its jurisprudence on alleged (or real) popular disenchantment is the opposite of what it exists to do.  The expression of popular will is for the political branches, not the courts.  Were it otherwise, Obamacare, which has been in the public approval dumpster for quite some time, would, under the Greenhouse theory, have gone down the SCOTUS tubes long ago.  But Ms. Greenhouse said only two months ago that that the Court should keep hands off.

If Ms. Greenhouse were a judge, this would be called "result orientation," but, may God be praised, she isn't.

Second, in fact the country is, not only not disenchanted with capital punishment, it favors the death penalty by just short of two-to-one.  Such robust approval exceeds, to pick one example out of the air, the confidence it has in newspapers

Liberals used to vote against hypocrisy, before they voted for it.

News Scan

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Chicago Robbers Copy Cartel Roadblock Tactics:  Robbers on Chicago's south side are emulating Mexican cartel tactics by setting up fake roadblocks as a ruse to trap motorist and violently rob them.  Ildefonso Ortiz of Breitbart reports that this tactic is prevalent with both known Mexican drug cartels such as the Gulf Cartel and Los Zetas, and is so common in some Mexican border states that Federal police officers escort tourists to avoid danger.  Since the Mexican cartels control much of the illegal drug trade in Chicago, some speculate whether the robbers intentionally copied them or came up with the scheme on their own.

Iowa Bill to Shield Crime Victims' Addresses:  The Safe at Home Act, advancing through the Iowa legislature, would keep the home addresses of victims of domestic violence, sexual assault, trafficking and stalking confidential.  Mark Carlson of KCRG-TV9 reports that victims would receive a new legal address to be included on public records, but their actual address would not be available to the public.  Law enforcement and select officials would still have access to victims' true residences.

Bill Would Put Time Limit on Rape Kit Processing:  A bill passed yesterday by the Tennessee Senate Judiciary Committee, SB 0981, would require rape test kits to be sent to the state's testing lab within 60 days of the victim's written consent.  Kelli Cook of Local Memphis reports that law enforcement in the state are currently not require to submit a rape kit at all, resulting in thousands of untested kits, some of which are decades old.  The bill as it stands, however, is not the ultimate solution, as some officials maintain that there is a need for more funding for labs, prosecutors, and law enforcement.

NC Legislation Would Raise the Age of Juvenile Offenders:  A bipartisan group of lawmakers in North Carolina have introduced HB 399, or the Young Offenders Rehabilitation Act, which would raise the age of juvenile jurisdiction of 16- and 17-year-olds who have committed low-level misdemeanors to ensure that they do not end up in the adult criminal justice system.  Sandy Selvy-Mullis of the Stanly News & Press reports that according to a child advocacy group, 16- and 17-year-olds handled in the adult criminal justice system are twice as likely to recidivate as offenders in the juvenile criminal justice system.  North Carolina is only one of two states, along with New York, that automatically prosecutes all 16- and 17-year-old misdemeanants as adults, regardless of the seriousness of the crime.  New York is expected to revise their version of the law this spring.

DNA Collection at Arrest in Effect Today in Wisconsin:  A new law in Wisconsin requires all people arrested for violent felonies and anyone convicted of a felony or misdemeanor to submit a DNA sample.  This is expected to generate an additional 25,000 DNA samples from violent felony arrests and convictions and 43,000 samples from misdemeanor convictions.  Dee J. Hall of the Wisconsin State Journal reports that the state has expanded its Crime Laboratory and hired more analysts and forensic technicians to handle the increase.  Wisconsin is the 29th state to implement a DNA sample requirement at arrest.

The Federal Prosecutor

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Address by Robert H. Jackson, Attorney General of the United States
(and later Associate Justice of the Supreme Court)
to the United States Attorneys
April 1, 1940

It would probably be within the range of that exaggeration permitted in Washington to say that assembled in this room is one of the most powerful peace-time forces known to our country. The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen's friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.

Registering to Comment

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We received an email inquiry from someone wanting to register to comment but unable to do so.  Since others may have the same question, I decided to make the answer a post.

When the blog started, would-be commenters could register on the blog and get a user ID and a password.  Upon one of the periodic updates of the blog software, I was horrified to discover that some genius at Movable Type (the software maker) had decided that self-registerers would be designated "authors" rather than "commenters" by default, meaning they could write posts as well as comment on them.  As that was unacceptable, I had to shut the feature off.  Legacy commenters can still use their IDs, but nobody can register on their own.

To compensate, I opened commenting to people who sign in through other services, including OpenID, Google, and Yahoo.  At the "sign in" page, there is a drop-down menu to choose one of these other sign-in methods.

Some of these other sign-in methods have an annoying "feature" (or bug, IMHO) of using a long string of random characters for a user name.  For those signing in this way, we request that you adopt a "handle" and "sign" your comments in the text so everyone can see which comments come from the same person.

At some point in the not too distant future, hopefully, I will be able to restore the original registration system, and then I will phase out use of the alternative services.  But I am employed mainly as a lawyer here.  Being the IT Guy is "additional duty" that I do when I get around to it.  So I don't know when that will be.  In the meantime, we appreciate your patience.

The Flood Begins

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If you like your drug dealing, you can keep your drug dealing.

That's the message President Obama sent with the numerous drug clemencies he granted yesterday, as detailed in this article from USA Today. And plenty more are coming:

[I]t could represent the crest of a new wave of commutations that could come in Obama's last two years in office. Last year, the Justice Department announced a new clemency initiative to try to encourage more low-level drug offenders to apply to have their sentences reduced. That resulted in a record 6,561 applications in the last fiscal year...

It's scarcely news that this Administration is as soft on drugs as it is on deserters  -- that's depressing but not surprising.  What's surprising is this, also from the article:

Obama wrote each of the 22 Tuesday, saying they had demonstrated the potential to turn their lives around...."Now it is up to you to make the most of this opportunity. It will not be easy, and you will encounter many who doubt people with criminal records can change," Obama wrote. "I believe in your ability to prove the doubters wrong."


Question:  Did Obama ever write a warm, personal note to the soldiers who risked life and limb trying to recover Bowe Bergdahl?

The Boston Bombing Trial Defense Rests

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The Boston Globe begins its story:

After 15 days of victims recounting their injuries, experts testifying about explosives and terrorism, and witnesses detailing the deaths of three people in the Boston Marathon bombings, the defense team of Dzhokhar Tsarnaev had its turn to make a case.

It was over in six hours.

Defense counsel has been understandably circumspect in dealing with the press. Still, in an exclusive to this author, counsel gave a brief statement:

In the guilt phase of the trial, there wasn't a lot we could do.  We've been preparing for what we expect will be the penalty phase.

What's needed is to humanize the client, to show he's not a monster. That's where we've been aiming.  Still, it's not been without trouble. In the months we've been working with Mr. Tsarnaev, it's become clear that he's a narcissistic brat.  Not only did he never deny planting the bomb, he's proud of it. He's told us that America had it coming for its treatment of Muslims. When his brother broached the idea, he couldn't have been more enthusiastic. He thinks the little boy he blew up was just one more infidel.  To make things worse, he was headed toward an arrogant life of White Privilege. He was so spoiled he even wanted to play Little League. Can you imagine?

The reason I'm willing to discuss these things is that I think it's important for lawyers to tell the truth, be fully forthcoming, and not try to hoodwink anyone. I mean, this is about justice, right?"


News Scan

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Spring Break Shooting Prompts Debate About Restrictions:  A spring break house party on the Florida Panhandle that erupted with gunfire and left seven people injured has prompted officials to consider cracking down on the out of control spring break season.  "This is what we've been trying to warn people about," said Bay County Sheriff Frank McKeithen. Until the shooting, the Sheriff's warnings had been ignored by most local officials.  Melissa Nelson-Gabriel and Matt Sedensky of the AP report that Panama City Beach's city council has allocated up to $200,000 to contribute to increased police patrols, discussed the implementation of an alcohol ban on beaches, as well as making the last-call on alcohol sales earlier.  The shooter, David Jamichael Daniels, was arrested and charged with seven counts of attempted murder.

Bill to Grant New Orleans DA Investigators Arrest Powers:  The city of New Orleans continues to surge with violent crime, leading a local state lawmaker to propose new legislation that would grant the Orleans Parish District Attorney's office more law enforcement authority, allowing the NOPD to focus on fighting crime.  Sabrina Wilson of Fox 8 WVUE reports that HB 179, created by Rep. Austin Badon, would give DA investigators arrest powers, which is the only element of authority that they currently don't share with police officers.  The district attorney supports the idea.

Bill Criminalizes Disclosure of Police and Military Personnel's Residences:  Pennsylvania state senator Lisa Boscola has proposed legislation that would make it a crime to disclose the home addresses of police officers and military personnel.  Jim Deegan of Lehigh Valley Live reports that disclosure would be classified as a third-degree misdemeanor and would apply to social media.  Given the dangerous and sensitive nature of both law enforcement and military duties, Boscola believes, once the bill is passed, it will protect them and their familes from harassment and potential violence.

COPPS Unit Successfully Targets Property Crime:  The implementation of a specialized unit last year in Columbus, Indiana called Community Oriented Policing and Problem Solving, or COPPS, allows police to focus on problem areas in the city.  Teresa Mackin of Wish TV reports that the unit doesn't take patrol calls during their shifts, which allows for more in-depth investigations and the opportunity to act proactively in an effort to target repeat offenders.  Chief of Police Jonathan Rohde says property crime has decreased in areas the unit has worked.

Immigrant Gang Arrests Decline Under Obama's Policies:  Arrests of immigrant gang members has been in rapid decline since 2013, raising concern about whether the Obama Administration regards international gang activity as a priority.  Caroline May of Breitbart reports that gang activity and the number of immigrant gang members has not declined.  South Texas Border Patrol agents' say that an increasing number of MS-13 gang members have been crossing the border since 2011.  Jessica Vaughn, an expert for the Center for Immigration Studies, emphasizes the need for greater immigration enforcement, but points out that the Obama Administration's policies, such as the Deferred Action for Childhood Arrivals, "have shielded too many gang members from deportation."

What the Death Penalty Is Really About

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There's a lot of background noise going on about capital punishment.  The press plays up stories of alleged "exoneration," Jim Crow, drunk defense lawyers, cheating prosecutors, phony evidence, lethal injection supplies, and a great deal more.

Many of these are worth discussing.  I think all of them have been discussed on this blog, some of them many times.

But in the din of secondary (though important) issues, we risk losing sight of the main item:  We have the death penalty, and it continues to enjoy overwhelming public support, because there are instances where it is the only punishment consistent with the Eighth Amendment that comes close to fitting the crime.

Although you'd hardly know it, what with the legal blogosphere's recent obsession with Indiana's version of RFRA (as to which CJLF takes no position), there is a case currently underway that makes this unarguably clear.  I have to give readers notice that this is rough sledding unless you're made of stone.
There is a regular pattern in constitutional law.  The U.S. Supreme Court announces that the Constitution has magically sprouted a new rule, trumping the power of the people to enact laws through the democratic process in a way that it never did before.  Many people, perhaps most, agree with the rule in its simple form.  Ah, but life is not simple.  With every rule comes pesky little details about its boundaries in the gray zone and the means by which disputes on its application are resolved.  Since no one but the U.S. Supreme Court can authoritatively decide for the whole country what a federal constitution rule actually means, the high court is stuck with the details.

Should people with intellectual disability, formerly called mental retardation, be categorically exempt from capital punishment, regardless of how many or horrible their crimes?  I will assume for the sake of argument that the consensus of the American people would be "yes" for the moderately retarded and below.  I very much doubt that such a consensus would exist for the mildly retarded if people knew what that meant.  If fully informed, I think most people would agree with the 1989 rule of Penry v. Lynaugh that intellectual disability in that range should be considered as a mitigating factor to be weighed in the balance, not a trump card.

Even so, in Atkins v. Virginia in 2002, the Supreme Court extended the blanket prohibition to everyone diagnosable as retarded, but not to "borderline intellectual functioning," the next step up.  The fuzzy distinction between mildly retarded and borderline had been of little consequence while both were mitigating and neither was a trump card, but suddenly the distinction made a great difference.  A wave of death row inmates claiming to be retarded, a few of whom actually were, made Atkins claims.  How do we go about deciding them?  Does every one who makes the claim get a full-blown hearing?

Should a judge who receives an Atkins claim look to the record of a pre-Atkins sentencing and decide on the basis of that record alone, without giving the inmate an opportunity to submit any additional evidence, that he has no claim?  Of course not.  If you read only the question presented as phrased by lawyers for the inmate in Brumfield v. Cain, No. 13-1433, you might think that is what happened in that case.  Not really.
We continue to make small gains in the ability of victims of crime to have their voices heard in cases affecting the criminal justice system.  On March 12, I noted that the California Court of Appeal had rejected the attempt of the California Department of Corrections to throw out the suit of two victims' families to force it to adopt a lethal injection protocol.

Meanwhile, back in federal court, the fight continues over the attempt to squelch the federal "fast track" on capital habeas cases, the never-implemented major reform of the Antiterrorism and Effective Death Penalty Act of 1996.  Since USDoJ is not interested in fighting this as vigorously or expeditiously as is needed, I moved to intervene on behalf of Marc Klaas, the father of a murdered little girl.  Unsurprisingly, the other side's favorite district judge rejected the intervention motion, so I filed an appeal from that order plus a protective appeal from the injunction on the merits of the case. 

The capital defense lawyers, being represented contra bono publico* by the Orrick firm, moved to have the merits appeal dismissed before briefing.  Today the appellate commissioner denied that motion.  On its face, the denial is "without prejudice to renewing the arguments in the briefs," but since the whole point is to preclude the briefing, that is a win for the good guys.

Examining the Medical Model of Crime

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The Heritage Foundation is in my view on the wrong side of sentencing "reform," but remains a valuable, intellectually stimulating and honest organization.  (For example, its Senior Fellow, John Malcolm, acknowledges that increased incarceration accounts for from 25 to 35 percent of the huge decline in crime over the last generation).

Those who are interested and able might wish to attend its Tuesday, April 14 lecture titled, "How Modern Psychology Undermines Morality" by psychiatrist and author Theodore Dalrymple. Its description is:

Modern psychology is one of the most powerful intellectual authorities of our time. Its appeal derives in no small part from its ability to absolve us of responsibility for our misdeeds, vices, and failings. It's never our fault. It's the fault of our subconscious drives, our parents, or our genes. And the solution to our behavioral problems lies not in reforming our character, but in medicines and therapy that can cure the diseases and disorders diagnosed by psychology.

In Admirable Evasions: How Psychology Undermines Morality, the well-known writer, social critic, and psychiatrist Theodore Dalrymple shows how the findings of psychology are superficial and its net effects deleterious. Dalrymple examines the damage psychology has done to our politics by relieving individuals of moral responsibility and diminishing their ability for honest self-reflection. Theodore Dalrymple is the pen name of Anthony Daniels.

News Scan

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Prison Population Down, Payroll Up:  As the prison population drops 38 percent, the payroll costs for the CDCR have increased 5.3 percent, resulting in one third of officers earning more than $100,000 a year due to an increase in overtime hours worked.  Joel Hoffman of UT San Diego reports that overtime shifts have become a necessity due to a wave of retirements as well as recruitment classes slashed during budget crises.  Currently, four training academies are operating and are expected to generate 7,000 new recruits in the next three years to remedy the disparity.

CA's Death Row Runs out of Room:  Governor Jerry Brown is seeking $3.2 million from the California legislature for the addition of 100 cells for condemned inmates at San Quentin State Prison because the state's death row has run out of room.  Paige St. John of the LA Times reports that the death row population has increased steadily, from 646 inmates in 2006 to the current 751, and an average of 20 new death row arrivals are anticipated in each upcoming year.  Expanding death row is not out of the realm of possibility being that the prison's general population has decreased with the passage of AB 109 and Prop. 47.  Critics of the proposal emphasize Gov. Brown's failure to take steps to resume executions.

Fetal Homicide Debate Continues in CO:  Heated debates continue in Colorado over a fetus' legal rights after the brutal attack of an 8-month-pregnant woman, whose unborn child died when it was cut from her body, failed to result in a homicide charge.  Ivan Moreno and Nicholas Riccardi of the AP report that the state of Colorado has rejected fetal homicide proposals twice, fearing they could interfere with abortion rights.  Current law states that a person can face a murder charge in the death of a fetus "only if there is evidence that it survived apart from its mother."  In this case, there was no such evidence.

Some people may be surprised to learn that the State of Kansas has a state supreme court that tilts very heavily in favor of criminals, especially murderers in capital cases.  This is a result of the state's judicial selection process, which unwisely gave the state bar the keys to the initial entry gate to the bench, naively believing that this would result in selection of judges according to merit.  In reality, so-called "merit selection" only substitutes bar politics for general politics, a big step down.

Today the U.S. Supreme Court took up the highly controversial cases of the Carr brothers, both titled Kansas v. Carr, Nos. 14-449 (Jonathan) and 14-450 (Reginald), along with Kansas v. Gleason, No. 14-452.

Update:  Questions presented follow the break.

Yet Another Summary AEDPA Reversal

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The U.S. Supreme Court has yet again summarily and unanimously reversed a decision of a federal court of appeals for failure to observe the limitation that Congress placed on its authority to second-guess decisions of state courts.

If two courts disagree on a question of law, which court's opinion should prevail?  Within the hierarchy of appellate review, the "higher" court's opinion prevails.  That is what we mean when say that questions of law are reviewed "de novo."  (For questions of fact, the judge or jury at trial gets broad deference.)

When a federal court considers the decision of a state court on habeas corpus, though, the situation is different.  A federal district court or court of appeals is not "higher" than the state supreme court in this sense.  Congress has never placed any federal court but the Supreme Court above the state courts in the sense of appellate jurisdiction.

So what do we do when a habeas petitioner claims in federal court that he is in jail illegally, but his legal argument has already been considered and rejected by the state court on appeal or state collateral review, and the U.S. Supreme Court has either refused or not been asked to review the state court's decision directly?  It's complicated.

GPS, Searches, and Civil v. Criminal

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The U.S. Supreme Court summarily reversed a decision of a North Carolina court regarding GPS monitoring of sex offenders and the Fourth Amendment.  The North Carolina court's error illustrates once again how far too many lawyers in the post-Mapp world have come to view the Fourth Amendment and the exclusionary rule as the same thing.  They are not.  Not even close.
As the direct cost of video recording plummets to the insignificant, there is widespread support for more cameras in law enforcement, from interrogation rooms to dashboards to the cops themselves.  From the standpoint of those who generally support law enforcement, we are confident that in the vast majority of cases where police misconduct is alleged, a recording will refute the allegation.  The most powerful example of where a video could have done a world of good, of course, is the recent Ferguson, Missouri debacle.  We now know that "hands up" was a lie and this was a fully justified use of force, but that would have been known from the beginning and the story would never have been more than a local incident if there had been a video recording.

Where the video does indeed show that the cop is a bad apple, it will be valuable in weeding him out, leaving us with a better police force.

But what about other people inevitably captured on police video?  By the nature of police work, the videos will very often record people in the worst moments of their lives.  Should those videos be public?  Might a video of a college student being arrested while sloppy drunk be used in an attack ad 20 years later when the now-mature upstanding citizen runs for public office?  Could videos be used in extortion schemes similar to those we saw with "revenge porn," except that unlike the revenge porn the person shown had no choice in the making of the video in the first place?
Accusing the police of racially-motivated abuse has become a favorite indoor sport. As the title of this entry suggests, the most prominent recent episode by far was the malicious and fake accusation that white police officer Darren Wilson murdered a peaceful and compliant Michael Brown simply because Brown was a teenage African American.  It turns out that the accusation was concocted, but it got plenty of currency, including from the Attorney General (until his own Justice Department, months later, quietly debunked it).

As ever undeterred by the truth, the Cops-Are-Klansmen industry keeps right on going. The latest episode I've learned about was this case, in which a rich Hollywood actress accused the cops of  --  you'll never guess  --  racially profiling her son.

As it turns out, the son is a small-time druggie and made up the story.  The actress at least had the decency promptly to apologize to the police.  Would that some MSNBC hosts had the same scruples.

 

New Leadership at NAAUSA

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The National Association of Assistant United States Attorneys (NAAUSA) is an organization representing career federal prosecutors.  I was a member at one time, although my membership has lapsed.  It led the opposition of hundreds of prosecutors to the Smarter Sentencing Act, which failed in the last Congress (but has been re-introduced now).  Its opposition was cited by then Ranking Member, now Chairman, Chuck Grassley, in his statement in opposition to the Act after it got out of Committee.  It then never made it to the floor, despite then-Majority Leader Harry Reid's promise that he would bring it up  --  and that was before Sen. Reid lost the fight with his exercise bike.

NAAUSA last week elected Steve Cook as its President.  I have never met Mr. Cook, but I have occasionally exchanged emails with him.  I believe he is an outstanding leader for NAAUSA, and that he will do even more to strengthen its role in fighting the dumbing down of federal sentencing.

The text of part of the relevant part NAAUSA's press release announcing Mr. Cook's election follows the break.
"Evidence-based" sentencing is one of the catch-phrases of the sentencing reform movement.  I have never been able to figure out exactly what it means (my experience as an AUSA was that evidence has always been considered at sentencing), but I think it means that sentencing should be based on facts.

OK, good, if that's what it actually means.  That idea was, as Kent has pointed out (cf. his comment on this thread), one of the main selling points of Prop 47 in California.  Prop 47 reduced sentencing for a number of drug and property offenses by re-classifying them as misdemeanors.  The theory, or so we were told, was that judges would be given more leeway to impose "flexible," evidence-based sentences, and that this would help reduce crime.

Now that, in the wake of Prop 47, property crime (and violent crime) has exploded in the Golden State, however, the refrain is that it's, ummm, too early to pay attention to the evidence so attesting.


And no, I am not making this up.  Read it for yourself.

Abolitionism versus Reality

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Statement of abolitionism, via the head of the National Coalition to Abolish the Death Penalty (interviewed by Salon):

"How death penalty politics radically, shockingly changed:  Death row's days are numbered..."

Statement of reality, via Gallup:

"Americans' Support for Death Penalty Stable.  WASHINGTON, D.C. -- Six in 10 Americans favor the death penalty for convicted murderers, generally consistent with attitudes since 2008."

For willingness to lie, belligerently and with a straight face, I have seldom encountered anything like the abolitionist movement.  The refrain is that public support for the death penalty has been crumbling in recent years, but the truth is otherwise (as abolitionists know while they continue to dissemble). 


News Scan

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Yolo County Questions Prop. 47 Sentencing:  Yolo County District Attorney Jeff Reisig has expressed disagreement with two Yolo County judges regarding the handling of low-level drug offenses under Prop. 47, adopted by CA voters last November.   Sarah Dowling of the Daily Democrat reports that the Reisig believes that drug offenders are less likely to pursue drug treatment without incarceration or the threat of incarceration.  He has proposed developing new sentencing guidelines for drug offenses, and Chief Probation Officer Brent Cardall agrees.  He is suggesting reforms to probation protocols that would help prevent drug offenders from avoiding treatment.

Gov. Brown To Parole Sick, Elderly Convicts:  In a cost-cutting effort, Governor Jerry Brown has proposed the parole of  hundreds of convicts who are chronically sick, mentally impaired, and over the age of 60.  Thomas D. Elias of the Napa Valley Register reports that this idea was first introduced in 2002 by Ray Procunier, the former California director of corrections under Ronald Reagan, who pointed out that Reagan cut the prison population by one-third with no increase in crime.  Since violent crimes are typically committed by young offenders in their teens and 20s, and the costs of treating sick and/or elderly inmates is extremely expensive, many consider their release to be a sensible solution to ease prison overcrowding.

Burglaries Linked to Prop. 47:  A rash of burglaries in La Cañada, California has residents wondering whether or not it is the direct result of Prop. 47, a law passed in November that released thousands of inmates from state prisoners.  Anita S. Brenner of the La Cañada Valley Sun reports that burglaries have been on the rise statewide, likely due to drug offenders, who often commit thefts and burglaries in order to feed their habit, receiving only a citation for their crimes.  State corrections officials insist that long-term studies must be conducted before the "true effect" of Prop. 47 is seen. 

CA Loosens Jessica's Law:  Jessica's Law, or Prop. 83, which forbids sex offenders from living within 2,000 feet of a school or park, is becoming less restrictive in California.  Kate Mather of the LA Times reports that the "blanket restrictions" outlined in the law will no longer be imposed, and cases will be assessed more individually.  The law, as it stands now, will still apply to high-risk sex offenders and offenders whose crimes involved children under the age of 14, who will be forbidden from living within a half-mile of a school or park.  This loosening of the law comes after a CA Supreme Court decision holding that the restrictions could not be applied in San Diego County due to a lack of residential properties 2,000 feet from schools and parks.

Desertion and Consequences

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AP has an article headlined, "Bergdahl Charged Despite Torture, Attempts to Escape Taliban" (italics added):

Army Sgt. Bowe Bergdahl says he was tortured repeatedly in the five years he was held captive by the Taliban: beaten with a copper cable, chained, held in a cage and threatened with execution after trying to escape.

Bergdahl described his captivity in a note his lawyer made public Thursday after sharing it with the Army in an attempt to avert a court martial.

The Army charged Bergdahl nevertheless on Wednesday, accusing him of desertion and misbehavior before the enemy for leaving his post in Afghanistan in June 2009.
Despite?  Nevertheless?  Is desertion any less desertion because it is followed by bad consequences for the deserter when the enemy he places himself in the hands of turns out to be (surprise, surprise) the enemy?

"Bergdahl's lawyer Eugene Fidell said the sergeant has already suffered more than enough."  Okay, consider that in sentencing, but he is still a deserter, and his military record needs to reflect that.
Anyone who knows anything about polling will tell you that you can produce dramatic swings in results by how you phrase the question.  A common and blatant method of skewing a poll is to build arguments for one side into the question.

Public Policy Polling has done a poll on the Pennsylvania Governor's death penalty moratorium that is so blatantly worded that it reads like a parody of bad polling.  If an instructor gave his students an assignment to "draft the worst poll question you possibly can," it would read something like this:

Governor Wolf has temporarily paused executions in Pennsylvania until concerns about the risk of executing innocent people, the high cost of the death penalty, and serious issues of unfairness can be addressed by a bipartisan study commission. Do you strongly support, somewhat support, somewhat oppose or strongly oppose the decision to temporarily pause executions?
Yet even skewed to the max they didn't crack a majority.  "Strongly support" and "somewhat support" only totaled 50%.

They also asked the extremely biased "which punishment" question we have noted many times before, implying that the respondent must choose a single punishment for all murderers.

The press seems to be lapping this up, uncritically reporting the poll result with no mention of the extreme bias in the wording.  See, e.g., this article in the Wilkes-Barre Times Leader.

The real news here is that support for the death penalty remains so robust that even a badly worded question like this can't generate a substantial majority.  No one seems to be getting that.

News Scan

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Sen. Gillibrand Promotes Sex Assault Legislation:  In the wake of the findings that the UVa gang rape story published in the Rolling Stone in November was false, New York Senator Kristen Gillibrand still wants sexual assault on college campuses to be addressed more seriously.  Jessica Bakeman of Capital New York reports that Gillibrand's bill, the Campus Accountability and Safety Act, "would require colleges to sign memorandums of understanding with local law enforcement" in order to promote collaboration.  She hopes that victims will feel more comfortable reporting legitimate on-campus sexual assaults if they understand that law enforcement officials will be involved.

Big Data Assesses Risk and Recidivism:  The criminal justice system is leaning toward big data analytics to make predictions about future criminality, which would influence sentencing.  Dawinder Sidhu of the Baltimore Sun reports that 20 states have already adopted this approach, which purports to more accurately differentiate between high- and low-risk offenders. US Attorney General Eric Holder supports the use of risk-assessment tools, but is concerned that factors such as race and sex will inaccurately skew an individual's results.

Rape Victim Fights to Extend Florida's Rape Law:  Orlando resident Danielle Sullivan stands behind new legislation called the 43 Days Initiative Act, which would extend Florida's statute of limitations to ten years for reporting adult rape.  Ann Keil of My Fox Orlando reports that Sullivan was raped five years ago, but when she went to report it after four years, she was 43 days too late to seek prosecution.  Thirty-two states have a statute of limitations of ten years or more, while 18 states have no statute of limitation at all for reporting adult rape.  The passage of this bill would bring the state of Florida "in line with the rest of the nation."

Calaveras County Probation to Arm Officers:  The Calaveras County Board of Supervisors unanimously approved the purchase of guns for its probation officers due to the increased threat posed by high-risk offenders out on AB 109 (Realignment).  The Union Democrat reports that because so many higher risk offenders are out on Realignment, probation officers must conduct home visits accompanied by an armed Sheriff's deputy.  

Senate Committee Kills Bill That Would Shield Drug Companies:  A South Carolina Senate committee killed the bill with a 7-7 vote that would hide the names of companies that sell execution drugs, although it is still alive in the Legislature.  Jeffrey Collins of the AP reports that Democrats primarily voted against it on the grounds that condemned inmates have the right to know the identities of the companies making the drugs that will kill them.  Senator Mike Fair, in favor of the bill, has suggested that the identities of these companies can be kept secret from the public but confidentially disclosed to the person being executed and their defense team, just as with the identities of the doctors and nurses involved with executions.

The WSJ discusses the prosecution of Sgt. Bowe Bergdahl, illustrating why the pardon I predict (at a politically convenient moment for the Commander-in-Chief) will be a betrayal of duty and honor by the President even more stunning than Bergdahl's embrace of Jihad:

[T]he bigger story [in the Bergdahl case] is the extravagant price the U.S. has paid because President Obama wanted to score political points.

Readers will recall that then-Private First Class Bergdahl went missing from his post in Paktika province in eastern Afghanistan in June 2009. Fellow soldiers suspected desertion, though the Army conducted a risky manhunt to recover him...

The Associated Press has reported that an internal Pentagon investigation in 2010 found "incontrovertible" evidence that he had walked away from his post. Journalists also uncovered an exchange of letters in which the soldier wrote to his father "the title of U.S. soldier is just the lie of fools," that he was "ashamed to even be american," and that "the future is too good to waste on lies." Replied father Robert: "OBEY YOUR CONSCIENCE!"

All of this would have been known to President Obama and National Security AdviserSusan Rice when the Administration decided to swap Sgt. Bergdahl for five Guantanamo Bay detainees--all top Taliban leaders--in May 2014. Mr. Obama even invited Sgt. Bergdahl's parents to a [chipper  --  ed. addition] Rose Garden ceremony to announce the swap, while Ms. Rice declared on a Sunday talk show that the soldier had served his country with "honor and distinction."



It Was Murder

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The most shocking news this morning is reported by the Wall Street Journal:

The co-pilot of Germanwings Flight 9525 appears to have deliberately crashed the plane after he was left alone in the cockpit, according to a French prosecutor.

The captain was intentionally locked outside minutes before the A320 crashed into an alpine mountain ridge, French Prosecutor Brice Robin said Thursday. Co-pilot Andreas Lubitz, a 28-year-old German national, was silent throughout the plane's descent and was alive at the point of impact, according to the prosecutor.

Mr. Robin's conclusions are drawn from the plane's cockpit voice recorder, recovered at the crash site in the French Alps late Tuesday and analyzed by French accident investigators on Wednesday.

The recording contains screams believed to be from passengers, once they recognized the plane was crashing.

As with ISIS's burning to death a caged Jordanian pilot, the mind-bending horror of a mass murder undertaken like this causes me to wonder how any principled person can woodenly oppose capital punishment.  It took eight to ten minutes for the plane to hit the ground, after a steep, controlled dive that those on board could not have helped knowing was their last time on this earth. The horror and panic of it, multiplied for 150 passengers, is something I cannot put into words.

The co-pilot who engineered this horror died in it.  But he might have survived  -- it happens every now and again.  Had that happened, it's beyond my comprehension that a jury of fair-minded people, after hearing all the evidence, should be absolutely barred from having at least the chance to consider a death sentence.

The idea that a term of years is fitting punishment for the horror-laden, violent murders of dozens of helpless men, women and children  --  people subjected to a grotesque mental torture incapable of description (before being smashed to death)  -- is incoherent in any system I could recognize as civilized.



News Scan

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Hispanic Activists Support Tougher Immigration Laws:  SB 185, a bill in the Texas Legislature that would stop cities from enforcing policies that ban police officers from asking immigration-related questions to detainees, is gaining significant support from Hispanic Texans.  Kristine Galvan of My Fox Houston reports that supporters feel strongly that police officers need to have "all the tools available to them to keep us safe," which would include asking questions to arrestees and suspicious persons regarding legal status.  Maria Espinoza, director of the Remembrance Project, an organization that works with families of American citizens killed by illegal immigrants, is recruiting Hispanic conservatives to voice their support of SB 185.

Pension-Forfeiture Bill Proposed for Child Predator Teachers:  Washington State Senator Barbara Bailey has introduced a bill that would strip the pensions of persons in violation of the public trust, such as a teacher convicted of child molestation.  Dan Springer of Fox News reports that in the state currently, 22 of the 130 teachers who lost their licenses are convicted felons that are costing taxpayers $2 million to pay their pensions.  The Washington Education Association is challenging the bill, arguing that "the criminal justice system should have no bearing on a public employee's retirement benefits."

Violent Crime Up 26% In LA:   Los Angeles Police Chief Charlie Beck told the police commission Tuesday that violent crime in the city was up 26%.  The Chief reported that property crime rose by 11% and that serious crime has climbed 14% so far this year.  Richard Winton of the LA Times reports that the surge of violence was driven in part by a spike in aggravated assaults, which began last year and is still climbing.  The Chief noted that many of the increased assaults were domestic violence and alcohol-fueled street attacks.  Last year a Times investigation found that 1,200 violent or serious crimes had been misclassified  by the Department as low-level offenses. 

Serving with "Honor and Distinction"

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Those are the words the President's National Security Advisor, Susan Rice, used to characterize Sgt. Bowe Bergdahl.  It was politically necessary for Ms. Rice to praise Bergdahl in order to defend her boss from criticism that he had swapped five high value Taliban commanders for one traitor.

Today, Mr. Honor and Distinction was formally charged with desertion in battle and (in effect) cooperating with the enemy.

Confession #1:  I previously, and it now turns out wrongly, predicted that the Administration would just let the whole mess disappear into the fog, because it has no heart for prosecuting a "misguided youth."

Confession #2:  I also predicted, also wrongly, that if perchance the Administration allowed the Army's investigation to proceed at all, it would be cut short by a preemptive pardon, which I wrote here.

Prediction:  In light of my record of fumbling, I could scarcely blame readers for discounting my next prediction, but here it is anyway.  There won't be a Bergdahl pardon until roughly 21 months from now, after the 2016 election, and "in the spirit of Christmas."  Marc Rich, call your office.

A Civil Day at SCOTUS

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Today is all civil cases at the U.S. Supreme Court.  The oral argument calendar is three consolidated EPA cases.  The two decisions announced today were in civil cases.  Still waiting on Elonis.

The most controversial case, by far, will be the racial gerrymandering case, Alabama Black Legislative Caucus v. Alabama.   Part IV of the opinion deals with when race is the "predominant motivating factor," an issue that comes up in Batson cases.  Not sure if there will be any spillover.

In dissent, the ever-entertaining Justice Scalia takes aim at the way the majority bends over backwards to allow the plaintiffs to change their theory of the case after they were losing.

However, rather than holding appellants to the misguided legal theory they presented to the District Court, it allows them to take a mulligan, remanding the case with orders that the District Court consider whether some (all?) of Alabama's 35 majority-minority districts result from impermissible racial gerrymandering....  It does this on the basis of a few stray comments, cherry-picked from district-court filings that are more Rorschach brief than Brandeis brief, in which the vague outline of what could be district-specific racial-gerrymandering claims begins to take shape only with the careful, post-hoc nudging of appellate counsel.
Well, I know how I'm going to title my next pleading:  "Rorschach Brief in Support of Motion for Leave to Take a Mulligan."

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