Author: Kent Scheidegger

Lying to the Voters in Ballot Arguments

by · Dec 28, 2020 2:46 pm

The ballot materials provided to California voters include pro and con arguments on the initiatives and other measures submitted to the voters. Opponents tend to exaggerate how extreme the measures are, and proponents tend to play down these claims.

What happens when a proponent’s argument simply lies about what the initiative’s language says? Not surprisingly, the California Supreme Court held today that the plain language controls over the argument. Does it matter if the shamelessly lying proponent is the Governor of the State? Nope. Continue reading . . .

LA’s Welcome Mat for Career Criminals

by · Dec 28, 2020 10:17 am

Kern County, California, District Attorney Cynthia Zimmer has this op-ed in the Bakersfield Californian, satirically inviting the habitual criminals of her county to move to L.A.

Are you a convicted felon with a history of violent crime? A murderer? Rapist? Child molester? Human trafficker? Drunk driver who kills? Do you take pleasure in using firearms to ratchet up body counts in all types of crimes? Do you think it unfair that your history of violent crimes makes your punishment for new crimes higher? If so, I have an exciting opportunity for you. Continue reading . . .

Marathon Bomber Update

by · Dec 23, 2020 9:27 am

Last Friday, I noted the Marathon Bomber case in the Supreme Court and discussed how this is the perfect test case for President-elect Biden’s new-found opposition to the death penalty in all cases. If he really means all cases, he should demonstrate that opposition to the nation in a case that cries out for that penalty.

Today, the Supreme Court scheduled the Tsarnaev case for conference on January 8. Continue reading . . .

Well, Hardly Ever Seek Sentence Enhancements

by · Dec 20, 2020 10:09 am

Rob Hayes reports for ABC7:

Los Angeles County District Attorney George Gascon on Friday said he was reversing course on some of the sweeping changes he announced when he took office earlier this month.

In a memo, Gascon said that effective immediately he would now allow deputy DAs to seek sentencing enhancements for hate crimes, child abuse, elder abuse, sexual assault, sex trafficking and certain financial crimes.

Gascon said he was amending his original directive “to allow enhanced sentences in cases involving the most vulnerable victims and in specified extraordinary circumstances. These exceptions shall be narrowly construed.” Continue reading . . .

Sentence Enhancements and Prosecutor Discretion

by · Dec 18, 2020 3:50 pm

The just punishment for a crime depends primarily on two factors: what the defendant did and what he has done before. The first step is determining what crime the defendant committed. One problem is that the crimes defined by statutes typically cover a broad range of conduct, and two defendants convicted of the same crime may have very different levels of culpability. Dividing crimes into degrees helps, but only up to a point. Another problem is that nearly everyone agrees that repeat criminals should be punished more severely than first offenders.

This is where sentence enhancements come in. They are essential parts of California’s current sentencing law to make the punishment fit the offense and the offender.

Newly elected Los Angeles DA George Gascón has directed all deputy DAs to never charge sentence enhancements under any circumstances. Is that legal? Can anything be done about it? Continue reading . . .

The Marathon Bomber, the Death Penalty, and the Biden Administration

by · Dec 18, 2020 9:51 am

On April 15, 2013, Dzhokhar Tsarnaev and his brother plotted a massacre as an attack on the country that had generously allowed him to come here and go to college. Tsarnaev intentionally chose children as his primary targets, setting his bomb down beyond a group of children near the Boston Marathon finish line.

Last month, AP reported that the President-elect’s spokesman said, “President-elect Joe Biden is against the death penalty and will work to end its use.”

Really? End its use means end it for all murderers, even the very worst. Does he really mean that? If so, he has a chance to show it right out of the gate. Continue reading . . .

First, They Came for the DA …

by · Dec 16, 2020 12:08 pm

Now, they are coming for the deputies.

Next, they will come for the judges.

But all is not lost.

The Metropolitan News-Enterprise has this article on an effort by the Los Angeles Public Defender’s Office to get its deputies to report deputy district attorneys who do not abide by new DA George Gascón’s directives and judges who refuse, among other things, to strike sentence-enhancing allegations. One deputy PD reported in a tweet that “our office received an email link from Mr. Gascón’s transition team instructing us to report every DA who is disobeying the new policy directives…with case details. It is very sad that the process has become Gestapo-like.” (Emphasis added.) Continue reading . . .

Making an Easy Retroactivity Case Difficult: The Argument in Edwards v. Vannoy — Part II, Reasonable Minds Before Ramos

by · Dec 15, 2020 3:37 pm

In the previous post in this series, I noted that the Supreme Court has stated clearly that any decision that overrules a prior decision is necessarily a “new rule” for the purpose of Teague v. Lane. The 1972 cases that upheld non-unanimous 12-person juries in state criminal cases, Apodaca v. Oregon, 406 U.S. 404 (1972) and Johnson v. Louisiana, 406 U.S. 356 (1972), were decisions for the purpose of this rule, even if neither contained one opinion that expressed a rationale agreed to by a majority.

Nonetheless, in Ramos v. Louisiana, three Justices opined that these cases were not precedents, and therefore the Supreme Court did not need to go through the usual analysis of whether to overrule a precedent in order to strike down Louisiana’s non-unanimous jury law. If we assumed that the view of these three was correct for the sake of argument, would it follow that Ramos is not a “new rule” for the purpose of retroactivity under Teague? No. Continue reading . . .

USCA9 Chastised on AEDPA Yet Again

by · Dec 15, 2020 2:23 pm

One year ago this Friday, Judge Carlos Bea of the Ninth Circuit warned his colleagues they were headed for reversal in Kayer v. Ryan, No. 09-99027: “Like clockwork, practically on a yearly basis since the Millennium, we have forced the Supreme Court to correct our inability to apply the proper legal standards under the Antiterrorism and Effective Death Penalty Act (‘AEDPA’”).”

Sure enough, yesterday the Supreme Court summarily reversed, saying “the Court of Appeals clearly violated this Court’s AEDPA jurisprudence.” Continue reading . . .

Bill of Rights Day

by · Dec 15, 2020 9:45 am

On this day in 1791, the first ten amendment to the Constitution were ratified, collectively known as the Bill of Rights.

Observance and enforcement of the Bill of Rights in all three branches of government has been uneven since then. At various times, the courts have both made up provisions that are not there and ignored provisions that are there. The elected branches sometimes seem disposed to give the Bill of Rights no more respect than the courts will require. And of course the Bill of Rights did not take us all the way home to the ideals expressed in the Declaration of Independence. We still had a long way to go.

Despite the limitations and imperfect observance, though, the Bill of Rights has been an important element of American liberty. Our Founding Fathers deserve our respect and thanks for this large and important step in the progress of liberty.