Miguel Bustillo reports for the WSJ that Texas AG Ken Paxton has been indicted by a county grand jury.  However, the fact that this case was instigated by the same group that brought the preposterous charge that former Governor Rick Perry committed a crime by vetoing a bill makes the whole matter suspect.  See prior post on that case.

The allegation is violation of disclosure and registration requirements for people selling securities, prior to Mr. Paxton becoming Attorney General.

The group calls itself Texans for Public Justice.  First the case went to District Attorney of Travis County, who said she had no jurisdiction and referred the case to Collin County.  The DA there, a friend of Mr. Paxton's, recused himself.  Two defense lawyers were appointed as special prosecutors.

The Texas Legislature may want to look at the state's special prosecutor system.  People who have not been elected and who are not responsible to any elected executive officer should not be exercising the executive authority of the state.  There needs to be a better way to deal with recusals.

Salon Follows Up on Slate, Blows It

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Kent noted that Slate author Mark Obbie published a piece profiling me and my efforts to oppose the plans for mass sentencing reduction, said plans going under the euphemistic name "sentencing reform."  While I do not agree with the bulk of Mr. Obbie's views of the subject, I was impressed that he took considerable time to talk with me and, as his article makes clear, to read a great deal of what I have written.  I appreciate his diligence, an increasingly scarce commodity in journalism.

On Thursday, Salon followed up on the Slate piece with an article by Elias Isquith.  I have not met or spoken with Mr. Isquith, and to my knowledge he made no effort to contact me.

The gist of his article, which I urge readers to judge for themselves, is that my efforts have traded on emotion rather than facts or reason, and that my opponents' failure to understand and counteract my tactics underlie their difficulties in passing sentencing "reform."  I don't think it's an exaggeration to say that the Salon article assumes that any fair-minded person, not sidetracked by emotion, would sign onto "reform" and reject my trailer park blandishments.

I respectfully dissent.

News Scan

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Man Killed Good Samaritans Because Daughter Laughed at Him:  A Native American couple was shot and killed, and their daughter shot and wounded, after they stopped along a Montana roadside on Wednesday to help a man whose vehicle had run out of gas, all because the daughter "laughed" at the stranded motorist.  Fox News reports that 18-year-old Jesus Deniz, a Mexican national and green card holder, shot and killed 51-year-old Jason Shane and 47-year-old Tana Shane, and shot and wounded their 26-year-old daughter Jorah Shane in the back as she fled, "because he was getting tired of waiting around, and because the daughter laughed at him."  Deniz was out on bond after being arrested last month for burglary in Wyoming, but authorities could not deport him because he was not convicted of the crime.

Illegal Immigration Prevention Spending a Waste of Money:  The Obama administration's efforts to bolster society in Honduras, Guatemala and El Salvador by flooding their economy with hundreds of millions of dollars to prevent more surges in immigration, has proven to be in vain, likely due to corruption or incompetence among Central American governments and the continued belief among Central Americans that the U.S. has a lax attitude regarding immigration.  Stephen Dinan of the Washington Times reports that the Government Accountability Office (GAO) released a report Wednesday on last summer's surge of migrants, which saw a total of 70,000 children traveling without parents and more than 60,000 children and parents traveling together, stating that "confusing and lenient U.S. policies pushed illegal immigrants to make the crossing," and in particular, Obama's 2012 Deferred Action for Childhood Arrivals (DACA) program.  Homeland Security and State Department officials have launched a "massive information campaign" to warn would-be immigrants of the dangers of the journey and that they will not qualify for amnesty.

Mistrial Declared in Shooting by AB 109 Probationer:  A deadlocked jury led to a mistrial in the case of two alleged gang members charged with capital murder for the fatal shooting of an innocent bystander, who was caught in gang crossfire in Pasadena on Christmas Day in 2012.  Brian Day of the San Gabriel Valley Tribune reports that 23-year-old Larry Darnell Bishop and 27-year-old Donald Harris, both Bloods gang members, opened fire at a rival gang member and inadvertently shot and killed 49-year-old Victor McClinton as he walked with a friend to put a Christmas gift in the friend's car.  Bishop was released from custody without supervision under California's prison realignment program, also known as AB 109, six months before the shooting after serving less than one-year of a two-year sentence for a previous assault with a deadly weapon, and had two prior felony convictions as well.  Prosecutors have not decided whether they will retry the case.

Escaped PA Inmate Suspected of Killing Woman:  Police are searching for an escaped inmate suspected of killing a woman after walking away from a work-release program on Thursday morning in western Pennsylvania.  The AP reports that 38-year-old Robert Crissman, in jail for violating probation on a drug charge, ran away from the jail after going outside to retrieve meals from a truck that he was to deliver to other inmates.  Later in a nearby home, the body of 55-year-old Tammy Long was discovered.  Authorities were able to confirm that Crissman, who is still at large, did visit Long's home but have not released information regarding her cause of death.

Michele Hanisee, Vice President of the Association of Los Angeles Deputy District Attorneys, has this post at the ADDA Blog.

The world contains extremely dangerous and evil people who cannot be deterred by threat of incarceration.  I'm not talking about the average gang murder or robbery gone bad.  I am talking about the people who rape infants to death, who kidnap, torture, rape and murder children, who target police officers in the line of duty, who kill not just one, but a half dozen or dozen or more innocent victims in serial and mass murders.  These people are the reason why California still needs a death penalty.
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Once California has an execution protocol in place, there is little the Governor or the Attorney General can do to thwart the implementation of the law.   After all appeals are final, jurisdiction over these cases returns to the local District Attorney and the local courts.   It is the local District Attorney and court who then schedule an execution date.  CDCR has no more power to refuse compliance than they have to refuse to accept a sentenced prisoner for housing.

It is important to remember that only a jury of one's peers can impose death - not the police, not the District Attorney, not the judge.  Jury verdicts are rendered by the citizens of the community because they have the strongest interest in keeping their communities safe and protecting residents from the criminals who would prey on them.  The people of this state voted to keep the death penalty and the Governor and Department of Corrections have an obligation to honor the will of the voters and impose the law of this state.
The Marshall Project, a soft-on-crime advocacy organization masquerading as a journalism organization, has this article claiming that Dylann Roof is an anomaly in that he is a white person who will likely face the death penalty for the murder of black people, dragging out the old race-of-victim bias claim again.

They quote raw numbers on race and executions from another masquerading organization, the Death Penalty Information Center.  But raw numbers mean nothing because of the apples-and-oranges problem.  Patterns of offending are not uniform across races, and a comparison of two groups that differ in ways other than the variable of interest proves absolutely zilch.  That is lesson one of day one of an elementary social science class, but if your purpose is to inflame rather than inform, you can just skip right over that.

Then there is this gem:

Slate Article on Bill Otis

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Mark Obbie has this article in Slate with the subtitle, "Nothing can stop the bipartisan coalition pressing for criminal justice reform. Nothing, except maybe Bill Otis."

The title of the article is "Meet the last man standing."  The thesis is that Bill is the only voice opposing the movement to soften sentencing.  It is good to see Bill's prominence as an advocate recognized, particularly by a partisan outlet for the other side.  The assertion that he is the only one is, of course, preposterous.  The exaggeration is even greater than the earlier National Journal article about me and the death penalty.

Former Attorney General Michael Mukasey is a stronger advocate in this fight than the article lets on.  As noted in this post, the Association of Assistant United States Attorneys has done significant work in this area. CJLF is also an important voice, although we have focused more on California than on the present federal controversy.

Despite the article's deficiencies, Bill's forcefulness and effectiveness as an advocate makes him a force to be reckoned with, and the recognition of that fact is well deserved.

News Scan

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664,607 Illegals Granted Amnesty:  Under the Obama administration's Deferred Action for Childhood Arrival (DACA) program that went into effect in 2012, 664,607 illegal immigrants have been granted amnesty, many of whom have connections to fraud, terrorism and gangs, according to the U.S. Citizenship and Immigration Services (USCIS) agency.  Paul Bedard of the Washington Examiner reports that the USCIS is also producing 144,275 employment documents each month, and applicants for permanent residence have risen from 3,000 per month to 7,500.  Of the 664,607 applications approved as of March, at least 49 had gang ties, six had a possible link to terrorism and 3,959 had indicators of fraud.

CA Teen Charged as Adult in Killing of 8-year-old Neighbor:  A 15-year-old Santa Cruz boy is being charged as an adult for the kidnapping, rape and murder of an 8-year-old girl at a community artist complex where they both lived.  The AP reports that according to a charging document, Adrian Jerry Gonzalez lured Madyson Middleton into his family's apartment, tied her up, sexually assaulted, killed her and dumped her body in a recycling bin, where it was discovered Monday evening.  Authorities haven't been able to determine a motive yet for why Gonzalez, who could spend the rest of his life in prison, killed the "alternately shy and gregarious" girl.

Baltimore Monthly Homicide Count Reaching Historic High for Second Time:  For the second time this year, Baltimore's homicide count is reaching a historic high.  The AP reports that as of Wednesday night, a total of 46 people were murdered in the month of July.  The month of May had 46 homicides as well, which made it the deadliest month on record since August 1990.  Baltimore has seen 186 homicides in 2015, a nearly 60 percent increase over the same time last year.

TX Judge Declares State's Online Solicitation Law Unconstitutional:  The Texas law prohibiting the use of the internet or any other electronic communication to arrange a meeting with a minor for sexual relations was declared unconstitutional Wednesday afternoon by a district court judge, who ruled that the law is a violation of the First Amendment.  Bob Price of Breitbart reports that Judge Kelly W. Case's 9th District Court ruling derived from Texas v. Paquette and "could have a devastating effect on prosecutions of online sexual predators if allowed to stand."  In that case, defendant Daniel Paquette, charged with using email to solicit a minor for sex, argued that the law infringed on the right to freedom of speech on the grounds that many internet users engage in the sexual fantasy 'ageplay,' "where one or more participants in a sexual-oriented conversation falsely represent themselves to be underage children."  The defendant's motion for dismissal was granted by Judge Case, and the indictment was thrown out.  Montgomery County 1st Assistant District Attorney Phil Grant will appeal the ruling to the 9th Circuit Court of Appeals.

Jails More Dangerous Under AB 109:  Because of AB 109, also known as realignment, California jails are more dangerous and a greater challenge to manage than they were before, according to James Ramos, chairman of the San Bernardino County Board of Supervisors; John McMahon, San Bernardino County Sheriff; and Greg Devereaux, San Bernardino County CEO, in this piece on the SB Sun.  Since AB 109 took effect in 2011, they have seen inmate-on-staff assaults in local jails more than double from 21 in 2010 to 49 in 2014, while inmate-on-inmate assaults nearly doubled from 364 to 630.  Additionally, medical costs in all aspects - prescriptions, monthly doctor visits, off-site clinic referrals, hospital admissions and treatment for diseases - have soared due to increased demand from inmates serving longer sentences, putting a heavy financial burden on county taxpayers.  The three authors note that this is not a unique issue to San Bernardino County; the same is true for nearly all of the California's 58 counties because "the state has essentially transformed [our jails] into prisons."

The Other Side of the Story

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It's hardly news by now that I oppose the proposed mass sentencing reduction  --  for both garden-variety drug dealers and classic violent criminals  --  that goes under the deliberately vague name of sentencing "reform."

My view is a minority among academia-oriented and think-tank culture that dominates inside the Beltway.  In the interest of robust debate, I want to present the other side of the story from Prof. Frank Bowman, a friend of mine from many years ago, when we worked together on the Attorney General's Advisory Subcommittee on sentencing.  This was back in the mid- and late 1980's, at the dawn of the Sentencing Reform Act of 1984.

Frank is one of the leading experts in the country on federal sentencing policy. Although we now see things differently on that score, I am pleased that Frank gave me permission to re-print a note he sent me in response to yesterday's Slate article profiling my efforts in this area.


News Scan

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Illegal Immigrant Freed by Feds Suspected of Murder:  An illegal immigrant, released earlier this month by Ohio sheriff's deputies after U.S. Customs and Border Protection agents instructed them not to hold him, is now suspected of murdering one woman, wounding another and attempting to rape a 14-year-old girl.  Edmund DeMarche of Fox News reports that Painesville Municipal Court Judge Michael Cicconetti says he doesn't understand how federal authorities could have ordered the release of 35-year-old Juan Emmanuel Razo on July 7, considering he had no green card, birth certificate or driver's license to verify his identity.  At the time, Border Protection officials informed local deputies that Razo was an illegal immigrant from Mexico, but would not pick him up for deportation because he hadn't committed a crime at that point.  Razo is being held on $10 million bond.  His public defender entered a not guilty pleaTuesday, despite Razo's confession.

Rumored Threats of Gang Violence Spread on Social Media:  A rumored competition spreading on social media under the hashtag #100Days100Nights has South Los Angeles residents afraid to step outside.  The objective is to pit gangs against each other to see who can murder 100 people first.  Amy Powell of ABC 7 reports that the hashtag started appearing online over the weekend while police responded to several shootings in the area resulting in a tactical alert.  LAPD Assistant Chief George Villegas says that the post has spread in circular, word-of-mouth manner that creates a challenge for law enforcement to identify any one particular gang or gang member as the original poster.  LAPD officials have increased patrols throughout the South Los Angeles area in case the threats are carried out.

MS-13 Recruiting Newly Arrived Migrant Children in NY:  Latin street gangs, chiefly MS-13, are seeking more than 3,000 new recruits, targeting Central American migrant children under the age of 18 who have recently settled in the Long Island, New York area, according to authorities in Nassau and Suffolk counties.  Fox News Latino reports that departments across Long Island have been closely monitoring other Latin American gangs such as the Latin Kings, Netas and Surenos, but MS-13, with as many as 10,000 members in 46 states, is the most concerning.  Like most immigrant organized crime groups, MS-13 starts by targeting their own community, and the vulnerability and susceptibility of the young migrants from Central and South America gives the notorious and ruthless gang the advantage to expand.

Capital Case Prosecutors Convention

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The Association of Government Attorneys in Capital Litigation (AGACL) opens its 36th annual conference today in Charleston, SC.  Its agenda is here.  I have the honor of addressing the General Session on Friday afternoon.  The subject will go under the broad heading, "Death Penalty Policy."

I'm planning it in three parts  --  a description of where I think the country is right now on capital punishment; the most effective answers I have seen over the years to abolitionist arguments; and a call to action in defense of the death penalty.

Any suggestions as to what in particular readers think it might be useful for me to say would be welcome. 

Heroin Deaths, Out of Control

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The Washington Examiner has the grim story:

Heroin deaths are spiking in the U.S., concerning lawmakers who proclaim it an epidemic and public health issue.

Between 2012-13, the number of U.S. drug overdose deaths resulting from heroin spiked from 5,900 to 8,200, said Michael Botticelli, director of the White House Office of National Drug Policy Center.

"I've been with [the] DEA almost 30 years, and I have to tell you, I've never seen it this bad," Jack Riley, acting deputy administrator of the Drug Enforcement Administration, said at a House judiciary subcommittee hearingTuesday.

Only in a parallel universe could our lawmakers be considering lighter sentencing for heroin at a time that its lethal impact has never been more appalling.

If there is to be a vote in Congress on lowering drug sentences, it should be taken one drug at a time.  There may be many who would vote to lower sentences for pot. But if there are those who also want to lower sentences for heroin (or meth or Ecstasy or numerous other hard drugs), it would improve visibility and accountability if legislators would stand up, one at a time, and say so, drug-by-drug.

There was a day when liberals and libertarians agreed that visibility and accountability were valuable qualities in government.  We may see soon if that is still their view.

Ann Rule

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Levi Pulkkinen reports for the Seattle Post-Intelligencer:

Northwest true crime author Ann Rule has died.

Rule, 83, had been in declining health in recent years. She appears to have died Sunday night at a Seattle-area hospital.

Andrea Vitalich, Deputy Prosecuting Attorney in King County, Washington noted her passing.

Ann Rule was an asset to true-crime writing: she did not sugar-coat the horrible things her subjects did to other human beings, she did not glamorize her subjects, she was a meticulous researcher, and she always paid respectful tribute to the victims.  She was well-liked and well-respected by everyone in law enforcement who knew her.  She was also a very nice person.

News Scan

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CA Teen Arrested After Body of Missing Girl Found:  A 15-year-old male neighbor was arrested after authorities discovered the remains of who they believe to be an 8-year-old Santa Cruz girl that disappeared on Sunday.  Fox News reports that Madyson Middleton was last seen on Sunday riding her scooter around the Tannery Arts Center, an artist community and housing center where she lived with her mother.  The suspected teen, who lives at the complex with his family, is described by neighbors as "polite and well-liked," and his relationship with Madyson is not yet clear.  The housing center is located in a busy area populated by businesses, and a major construction project is going on nearby.

Prison Worker Pleads Guilty to Aiding Escapees:  The former prison employee accused of helping two convicted murderers escape from a maximum security prison in upstate New York last month plead guilty to the charges on Tuesday.  Emily Shapiro of ABC News reports that 51-year-old Joyce Mitchell allegedly provided tools to two inmates serving life sentences, Richard Matt and David Sweat, by concealing them in hamburger meat.  A three-week manhunt, which began on June 6, ended with Matt fatally shot and Sweat shot and apprehended with non-fatal injuries.  Mitchell pleaded guilty to first-degree promoting criminal contraband and fourth-degree criminal facilitation, facing a sentence of 2 ½ to seven years.  She will be sentenced on September 28.  David Sweat's case for first-degree escape will go to a grand jury early next month.

Attacks by Homeless Increase in NYC:  Two recent violent attacks perpetrated by homeless persons in New York City have prompted City Hall and NYPD to urgently address homelessness in the city.  Arthur Chi'en of Fox 5 reports that one of the attacks involved a 72-year-old architect, who was stabbed in the neck with a pair of scissors by a homeless woman while waiting on a street corner; the other victim was a tourist leaving his hotel, who was clubbed in the face by a homeless man.  The NYPD plans to put one-third of its officers through intensive training over the next year to deal with the homeless problem, but Police Commissioner Bratton says that handling this generally non-criminal crisis will be difficult because "we can't arrest out way out of this problem."

Man Killed by WV Escort Possible Serial Killer:  A man who was shot and killed by a West Virginia escort after he attacked and attempted to strangle her is being eyed as a possible serial murderer in three states.  Cristina Corbin of Fox News reports that 45-year-old Neal Falls knocked on the door of a Charleston, West Virginia prostitute on July 18, asked her "live or die?" when she answered, and attempted to assault her.  She shot and killed him with his handgun that he put down during the altercation.  Upon inspection of his vehicle after the crime, authorities say they discovered an arsenal of items that aroused suspicion that he could be responsible for the killings of sex workers in Nevada, Illinois and Ohio.  Falls has no known criminal history.  The FBI is assisting in the multi-state probe.

U.S. Spent Nearly 2 Billion Jailing Criminal Aliens:  A new study of state and federal data reveals that in fiscal year 2014, American taxpayers paid approximately $1.87 billion to incarcerate illegal immigrants, almost all of which was shouldered by the states.  Joel Gehrke of the National Review reports that 92 percent, or $1.71 billion, came from the states, while the other eight percent was paid for by federal-government reimbursements administered through the State Criminal Alien Assistance Program (SCAAP).  However, SCAAP's funds have declined in recent years, leading many state and local jurisdictions to opt out of the program, which causes the cost of holding inmates to rise.  This financial burden is also "exacerbated by policies designed to defy federal immigration status."

Killers and Rapists, Rejoice!

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One thing my father taught me was to thank God for your opponents.  As usual, he was right.

My opponents in the sentencing reform battle  --  those favoring mass sentencing reduction and the additional crime that is certain to come with it  --  have been shrewd up to now in being relatively quiet about the fact they they favor releasing killers, rapists and muggers of all sorts along with the fabled "low-level, non-violent" offender.

But, giddy (and careless) with new momentum as more and more Republicans allow themselves to be bull-rushed into sentencing "reform," the other side has prematurely tipped its hand.

It was never about just "low-level, non-violent" offenders; that was the head fake. It was about creating a new violent crime wave in America (something that is already happening as serious policing has come under attack and, in California, Prop 47's dumbing down of the criminal code has started to do its work).

Hat tip to Doug Berman for putting up two op-eds that spell it out.
California's capital punishment opponents have a problem.  Despite about a thousand capital judgments in the post-Gregg era (beginning with the passage of the Deukmejian bill in 1977), they don't have a single substantiated case of an actually innocent person receiving that sentence.  So they have to make some up.

SF Chrontrarian Debra Saunders has this column on the CNN series Death Row Stories and its episode on Kevin Cooper.  First, she notes a prior episode of the series.

Last year, CNN's "Death Row Stories" ran an episode about a California woman convicted of first-degree murder, then freed when a federal judge overturned the verdict because prosecutors withheld evidence. I had a few issues with the episode, in part because Gloria Killian was not tried for capital murder and never spent a minute on Death Row. I wrote at the time, CNN should rename the series, narrated by capital-punishment opponent Susan Sarandon, "Death Row Propaganda."
On to Cooper:

When the tests finally were done, DNA nailed Cooper to the crime scene, where he claimed never to have been. In 2004, [defense investigator Paul] Ingels told me, "It proves, beyond any shadow of a doubt, that Kevin Cooper was involved in the murders."

When Cooper's lawyers devised this elaborate story about officials framing Cooper by manipulating DNA, forensics expert Dr. Edward T. Blake objected because he relies on those tests to exonerate innocent convicts. When I asked Blake if Cooper is guilty, Blake answered, "Yeah, he's guilty, as determined by the trial and the failure of a very extensive post-conviction investigation to prove otherwise." Blake also had worked for Cooper's defense team.

I've covered a lot of crime stories. I've never had two people who worked for the defense tell me an inmate is guilty.
Saunders has more on the case in a blog post.

Rory Little has this summary at SCOTUSblog of the criminal and related cases for the coming Supreme Court term.  What I found most interesting, though, is what is not there.  Not a single case of a state prisoner challenging his conviction or sentence in federal court has been scheduled for oral argument next term.

The full list of cases taken up for the next term so far is here.  Not a single "CFH" on the list.  There are two "CSH" cases, where the Supreme Court has taken a habeas corpus (or equivalent) case directly from the state courts.  There are four "CSY" cases, straight criminal appeals from state courts.  (Two of these arise from the same case, and a third presents a common question with the two.  CJLF has filed a single brief in all three.)  There are three "CFY" cases, federal criminal appeals.

Federal habeas for state prisoners lies at the crossroads of federalism, criminal law, and protection of individual rights, and that intersection has been the site of many collisions.  It has occupied a disproportionate amount of the Supreme Court's docket for many years.  Maybe not this year.

There are, of course, many more cases to be added.  Daniels v. Webster, discussed in this post by Ian Sonego, is a federal-prisoner habeas case that is highly likely to be added to the docket.

In addition to argued cases, there are summary dispositions, and chastising federal courts that just can't stand the fact that Congress took them down a peg in 1996 will doubtless be among those.  Even so, this could be the lightest term for state-prisoner federal habeas in some time.

As Rory notes, the reason for the Supreme Court to take criminal and habeas cases directly from the state courts is to get straight to the underlying issue without dealing with the limitations placed on the federal habeas remedy by Congress or the Supreme Court itself.  Perhaps the Court believes that the major questions of habeas procedure and limitations have largely been addressed and wishes to devote more attention to the underlying criminal law and procedure questions.

News Scan

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Court: Prop 47 Applies Equally to Minors:  A three-judge panel of the California State District Court of Appeal ruled Thursday that Proposition 47, the November 2014 voter-approved initiative that reduced some low-level felonies to misdemeanors, applies equally to juvenile offenders as well as adults.  Kristina Davis of the San Diego Union-Tribune reports that the ruling, in the case of one San Diego County teen convicted of commercial burglary in 2013, sets a new precedent for more than 100 other minors in the county, who can now petition to have their previous qualifying convictions reclassified as misdemeanors.  The teen in this case has also requested to have his DNA expunged from the state database since DNA collection does not apply to misdemeanors.  The District Attorney's office has yet to announce if it will appeal the ruling.  

Another Bloody Weekend in Baltimore:  Baltimore saw 15 shootings, three of them fatal, and at least one stabbing between Friday evening and Monday morning, culminating in yet another violent weekend in the struggling city.  Colin Campbell and Sean Welsh of the Baltimore Sun report that seven of the shootings occurred between 10 p.m. Friday and 9 a.m. Saturday.  Police are still seeking information related to all of this weekend's incidences.

Youngest Juveniles Ever Charged As Adults for 1st-Degree Murder to be Released:  The youngest Americans ever to face adult charges for first-degree murder are set to be released from prison in two weeks, sixteen years after their crime.  Fox News reports that Curtis and Catherine Jones, Florida siblings who were 12 and 13 when they killed their father's girlfriend, claiming that she did nothing to protect them from sexual abuse by a male relative.  They had initially planned to kill the male relative as well as their father.  They pleaded to second-degree murder in 1999 and received 18-year sentences.  They will both be on probation for the rest of their lives.

Body Count on the Rise in St. Louis:  The homicide rate in St. Louis, Missouri is on track to reach its highest level in 20 years, putting increased pressure on Mayor Francis Slay, who won control of the police department two years ago in order to hold it more accountable, to take action.  Nicholas J.C. Pistor of St. Louis Post-Dispatch reports that murders have already surpassed 100 this year, 60 percent higher than the same time last year, thrusting Slay into "unfamiliar territory."  However, most of the pressure to fix the homicide problem will fall on Police Chief Sam Dotson, who unveiled a crime-fighting partnership Monday, involving 50 police officers from St. Louis and St. Louis County that will work with federal agents to reduce the bloodshed, focusing on violent offenders and drug traffickers.

Gang Crime Down in Dallas:  Police officials in Dallas, Texas say that gang-related crime is down in the city despite recent, high-profile violence, but gang experts are not convinced that the trend is permanent.  Tristan Hallman of the Dallas News reports that gang expert Greg Knox of the National Gang Crime Research Center says that federal authorities have managed to weaken the centralized hierarchy of gangs, making them more of a neighborhood clique rather than a regional or national power, but cautions that "their networks still exist."  Another expert, Pastor Omar Jahwar, a former gang member who now participates in gang intervention, says that gangs of today lack leadership and understanding of gangs' histories and "rules of the game," leading to reckless, reactive violence.  

Chicago Bloodshed Continues:  Reeling in violence along with several other major cities across the nation, Chicago ended its weekend with seven dead and 35 wounded from shooting incidents.  Peter Nickeas and Megan Crepeau of the Chicago Tribune report that the weekend's close has brought this year's total homicides in the city to 263 and total gunshot victims to 1,532.  Both homicides and non-fatal shootings have increased over the previous years in the city.

A Wall That Does WHAT Back?

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When I saw this in my paper this morning, I thought at first that it was an Onion story mistakenly picked up as real.
Last Wednesday was the 20th anniversary of the murders of two toddlers, Michael and Alex Smith, by their mother, Susan Smith.  Ms. Smith was having an affair and hoped to run off with a man who didn't want to be burdened with kids  --  who can, after all, be quite a load at that age.  She dealt with this by strapping them in seat belts in her car, which she then rolled into a lake.  

In one of the more spectacular miscarriages of justice I can remember, the jury rejected a death sentence and gave her life.

She is taking full advantage.  This story, from ABC news, is chock full of lessons for those of us interested in criminal law, and capital cases in particular. 
Is it a crime for a governor to threaten to veto a funding bill because he does not believe the head of the office being funded can be trusted to use the money appropriately?  Of course not.  We elect governors and other officials to make such judgments.

Yesterday, the Texas Third Court of Appeals threw out one of the charges brought against former Governor Rick Perry.  This WSJ editorial summarizes the case:

A special prosecutor in notorious Travis County essentially charged Mr. Perry for exercising his constitutional right to oppose and veto an act of the legislature. Mr. Perry threatened to veto a funding bill for the Travis County District Attorney's Public Integrity Unit unless D.A. Rosemary Lehmberg resigned. She had been arrested and pleaded guilty to drunk driving, but she refused to resign and Mr. Perry followed through with the veto. The charges boil down to criminalizing routine political debate and controversies.
The procedural mechanism invoked by Perry is a pretrial writ of habeas corpus.  Under Texas case law, this procedure can only be used for facial challenges to statutes, not "as applied" challenges.  The Court of Appeal held that the Coercion of Public Servant statute was unconstitutional on its face.  It regulates speech, and its prohibition of threats is not limited to "true threats" within the meaning of the U.S. Supreme Court cases on that point.

Perry's challenge to the charge of Abuse of Official Capacity is not cognizable in this proceeding, so that one will have to be thrown out at some point down the line.

French Surveillance Law Upheld

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Sam Schechner and Matthew Dalton report in the WSJ:

PARIS--France's top constitutional court mostly upheld a new French surveillance law that would give intelligence services broad new powers to spy in France and abroad.

The court-backed provisions of the law allow a wide range of new surveillance techniques meant for the Internet age, including the collection of "metadata" about online traffic and the use of software that can monitor every keystroke on a computer. The court said intelligence services can use these tools without approval of a judge, though the government must still seek permission from an independent body created to oversee surveillance activities.

The court, known as the Constitutional Council, did strike down a provision of the law that would allow emergency surveillance without the approval of the prime minister or another minister in the government.

Pollard Release Imminent?

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Devlin Barrett reports for the WSJ:

The Obama administration is preparing to release convicted Israeli spy Jonathan Pollard from prison, according to U.S. officials, some of whom hope the move will smooth relations with Israel in the wake of the Iran nuclear deal.

Such a decision would end a decadeslong fight over Mr. Pollard, who was arrested on charges of spying for Israel in 1985 and later sentenced to life in prison. The case has long been a source of tension between the U.S. and Israel, which has argued that a life sentence for spying on behalf of a close U.S. partner is too harsh. Israel has for years sought Mr. Pollard's early release, only to be rejected by the U.S.

Now, some U.S. officials are pushing for Mr. Pollard's release in a matter of weeks. Others expect it could take months, possibly until his parole consideration date in November.
Such a deal for Israel.  First we sign the most toothless agreement since Neville Chamberlain came back from Munich in 1938 waving a document and claiming "peace in our time," an agreement that practically guarantees that a country determined to wipe Israel off the map will acquire nuclear weapons.  But not to worry, we will make it up by releasing one spy.

Ann Coulter has this article on her website titled Trump Opponents Take Nuanced View of Child Rape, discussing incidences of child rape committed by illegal immigrants.  Whether or not you agree with the knife-twisting way in which Ms. Coulter presents her argument (remember, this helps her sell books!), you have to commend her for always doing her research.  She may brutalize her honesty more than most, but her facts are there to back it up.

A:  So awful  --  because so radically pro-criminal  --  that even the Obama administration can't bite down on it.

I didn't think I would ever type that sentence, but there is no other conclusion to be drawn from today's BuzzFeed article, which begins:

The Obama administration objects to key provisions in a bipartisan criminal justice bill in the House that has picked up support from both the tough-on-crime end of the Republican Party and advocates of overhauling federal prison sentencing guidelines, BuzzFeed News has learned.

The bill's sponsors say the Safe, Accountable, Fair, Effective Justice Reinvestment Act of 2015 -- or SAFE Act -- takes the best ideas from state criminal justice efforts in recent years and applies them to the federal system, but Obama administration officials have told supporters of the bill they don't like several of its provisions, including a key one that would essentially create a federal version of the drug court programs an increasing number of states use to divert low-level, first-time drug offenders away from prison and into probation.

Ah yes, the proverbial "low-level, first-time" drug offender.  Not that sentencing "reform" aims to stop there, or anywhere near there, and not that the "low-level, first time" drug offender is the harmless choir boy so often presented to us, as Kent pointed out in his comment just today.



News Scan

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Three Killed, Including Gunman, at a Louisiana Movie Theater:  A lone gunman opened fire inside of a packed Lafayette, Louisiana movie theater Thursday evening, killing two and injuring several others before turning the gun on himself.  Tom Winter, Tracy Connor and Erik Ortiz of NBC News report that 59-year-old John Russell Houser was described as a drifter, and his former wife told authorities that she had all guns from their home removed due to his history of "extreme erratic behavior" and mental problems.  Police are still investigating a possible motive for why Houser gunned down moviegoers during the 7:10 p.m. screening of the comedy "Trainwreck."  Lafayette Police Chief Jim Craft says that, due to the recovery of disguises and license plates in Houser's motel room, they believe that the event was planned and he intended to leave alive.

Sanctuary Cities Become Havens to Avoid Lawsuits:  Some sanctuary cities become havens for illegal immigrants and refuse to enforce federal immigration policies "not because of any moral obligation to immigrants," but rather, for fear of lawsuits.  The AP reports that sanctuary cities across the nation are under fire since July 1, when Kathryn Steinle was shot and killed while walking on a San Francisco pier by an illegal immigrant with seven felonies and five prior deportations.  He was released into the community even though U.S. Immigration and Customs Enforcement sought to deport for a sixth time.  House Republicans passed a bill Thursday to push cities that refuse to share information with federal immigration authorities, and plan to introduce legislation that specifically addresses the release of immigrants sought by federal authorities for deportation.   

Prop 47 Plays 'Significant' Role in LA County Crime Rise:  Los Angeles County Sheriff Jim McDonnell says that Proposition 47, the voter-approved initiative that downgrades certain felonies to misdemeanors, plays "a significant role" in the rising crime rate throughout Los Angeles County, and has eliminated incentive for drug addicts to seek treatment.  Tami Abdollah of the AP reports that so far this year, violent crime has increased 3.39 percent and property crime has gone up 6.9 percent, while county treatment rolls for drug addicts are down 60 percent.  Los Angeles County was experiencing a 10-year trend of crime reduction and was at 50-year lows in many areas, up until the passage of Prop 47 last November.  "It would be naïve to say that 47 didn't play a major role in that," McDonnell adds.

87% of Illegal Immigrants to Remain in the U.S.:  A new report by the Migration Policy Institute (MPI) concludes that President Obama's executive action on immigration enforcement will provide "a degree of protection" to an estimated 87 percent of illegal immigrants in the U.S., who in turn, will not face threat of deportation.  Caroline May of Breitbart reports that the Obama administration's plan to replace the Secure Communities program with the Priority Enforcement Program (PEP) will have a significant impact on immigration enforcement, with an estimated reduction of 25,000 interior deportations from the U.S. annually.  MPI also estimates that only 13 percent of illegal immigrants would be considered enforcement priorities under the new policy guidelines, compared to 27 percent under the 2010-11 guidelines.

Those who think it's time to roll back sentencing for drugs might want to take in next Tuesday's House Judiciary Committee hearing about the on-the-ground realities with one of America's most notorious drugs, heroin.

But please remember what a person puts into his own body is no one else's business.  If the person happens to be an addict, on on his or her way to addiction, or is a teenager prostituting herself to get money for the next fix, or is one hit away from an overdose death, hey, look, that's the way the cookie crumbles.  

Here is the notice of the hearing.
This story from Roll Call says a good deal about who will win and who will lose if mandatory minimum sentencing is dumbed down or eliminated  --  not that any of this was hard to understand before.

The headline of the story is "Convicted Republicans call for mandatory minimums changes".  It's about three formerly high-level Republicans, Kevin Ring, Bernie Kerik, and Pat Nolan, all of whom discussed with Congressional staffers the supposed evils of mandatory minimum sentencing (although, oddly, none of their sentences resulted from mandatory minimums).

What the three have in common is that they are convicted felons, and the offenses for which they served time involved corruption, influence peddling and/or dishonesty. It's telling that this sort of resume' is what the sentencing reform side views as making you an "expert" on questions of public policy. Some of us might say that the more apt term for this outlook would be "conflict of interest" or "unreconstructed self-justification."

What might be even more telling is that Washington is now so completely engulfed by interest group culture that ex-cons are considered, in the Beltway's lobbyist lingo, "stakeholders" in "the system."

Will Committee staffers bring in Blago next?  How about Dzhokhar Tsarnaev? They've got even bigger "stakes" to "hold."
The Supreme Court established the basic framework of capital sentencing in the mid-1970s and then tinkered with it for some years thereafter.  Under this framework, a state cannot make all murderers eligible to even be considered for the death penalty.  There must be some additional factor beyond the basic requirements of murder.  It has to be a reasonably objective one.  "Especially heinous, atrocious, and cruel" won't do.

The methods vary by state.  Texas defined a higher degree of murder called "capital murder."  Most states have a designated list of "aggravating circumstances."  California calls its list "special circumstances" because we just have to be different.

In some states the plus factors are found concurrently with guilt.  In others they are decided along with the decision on penalty.  Colorado apparently "trifurcates" its capital trials, sandwiching an "aggravating factor" phase between the guilt and penalty phases.  (California does that with the prior murder circumstance only.  All the rest are decided concurrently with guilt.)

Are the following factors true in the case of the Aurora shooting?

• Intentionally killing a child under the age of 12.

• Killing more than two people during the same criminal act

• Creating a grave risk of death to people other than the 12 victims.

• Committing the murders in an especially heinous, cruel or depraved manner.

• Ambushing the victims.

The jury did not find the first one, apparently not satisfied on the specific intent requirement.  What's that fourth one?  Hopefully the jury got a "narrowing" instruction to define that more precisely.

Jordan Steffen and John Ingold have this story in the Denver Post.  Maria LaGanga has this story in the LA Times.

Trafficking in Human Organs

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In answer to a question received from a correspondent, which others may be asking as well, the federal law prohibiting trafficking in human organs is 42 U.S.C. § 274e.
WaPo editorial writer Charles Lane has this article on sanctuary cities:

In reality, there is no free lunch. In the alternate reality known as the American political debate, however, that's the only kind on the menu.

Conservatives say tax cuts boost economic growth, which yields higher revenue. No need to worry about bigger budget deficits.

Meanwhile, over on the left, we have laws and policies in more than 200 jurisdictions, including some of the largest cities and counties in the country, that are meant to protect immigrant communities by preventing local authorities from cooperating with federal deportations of undocumented immigrants who have run-ins with the law.

Advocates claim that "sanctuary," as they call it, achieves a moral goal -- peace of mind for people who, whatever their immigration status, are often longtime residents, leading productive lives -- at little or no practical risk or cost to anyone.
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