Author: Kent Scheidegger

SCOTUS Unties ACCA Hemp Knot

by · May 23, 2024 11:19 am

In the Armed Career Criminal Act (ACCA), Congress prescribed severe punishment for people with extensive criminal records who violate federal gun laws. The priors are generally state offenses, so there is a problem matching up criminal laws from different jurisdictions. Under the “categorical” approach the Supreme Court has developed, mismatches often spring loose criminals whose actual conduct meets the definition of the crime that Congress sought to include, frustrating the intent of the law. The Supreme Court has had to decide many cases on this topic, and today’s decision in Brown v. United States is the latest installment.

This decision involves two cases, one from Florida and one from Pennsylvania. In both cases, the drug dealers in question dealt in drugs that remain illegal under federal law. Between the times of their state drug-dealing crimes and their federal weapons sentencing, though, the federal government narrowed its definitions of controlled substances so that the state and federal laws were no longer a perfect match. Should that get them off? Three justices voted for that undeserved escape on a technicality, but the majority of six did not. Continue reading . . .

Pound Cake at 20 Years

by · May 17, 2024 11:03 am

Twenty years ago today, at an NAACP event commemorating the golden anniversary of Brown v. Board of Education, Bill Cosby gave a speech that has come to be known as the Pound Cake Speech. Cosby was a towering figure at the time, a major star in the entertainment industry. He triggered an earthquake by delivering a message that a great many people did not want to hear.

Looking at the incarcerated, these are not political criminals. These are people going around stealing Coca Cola. People getting shot in the back of the head over a piece of pound cake! Then we all run out and are outraged: “The cops shouldn’t have shot him.” What the hell was he doing with the pound cake in his hand? I wanted a piece of pound cake just as bad as anybody else. And I looked at it and I had no money. And something called parenting said if you get caught with it you’re going to embarrass your mother.” Not, “You’re going to get your butt kicked.” No. “You’re going to embarrass your mother.” “You’re going to embarrass your family.”

Cosby turned out to be a horribly inappropriate messenger, but his message was spot on then and remains true today. His downfall was fully justified, but a tragic side-effect was that no one with the stature that he had then has picked up the baton. Continue reading . . .

Ban-the-Box Busted

by · May 14, 2024 9:45 am

Among released criminals, there is a substantial connection between employment and going straight. That is, those who find employment are less likely to commit new crimes. The “ban the box” movement seeks to forbid employers from asking about criminal convictions. A related effort is to expunge criminal convictions. The theory is that by removing this information from employers, more past offenders will find employment, and fewer will return to crime.

But does it work?

This study has recently been posted on the National Bureau of Economic Research site. “We find consistent evidence that removing an existing record does not improve labor market outcomes, on average.”

Add another example to the list of confirmations of H.L. Mencken’s famous observation: “There is always a well-known solution to every human problem—neat, plausible, and wrong.” Continue reading . . .

Insufficient SCOTUS Cases

by · May 13, 2024 8:54 am

The WSJ has this article by Jess Bravin on comments by Justice Kavanaugh that the Supreme Court is not taking enough cases. The majority of his colleagues evidently do not agree.

As if on cue, the Court today announced yet another Monday orders list taking no new cases for full briefing and argument.

We now have a working majority on the Court who believe in enforcing the Constitution actually ratified by the people, not one made up later by judges twisting the original words out of shape to fit their own policy preferences. In criminal procedure, there are huge piles of pseudo-constitutional muck violating the people’s right of self-government and needing cleaning up. So far, though, we do not seem to have enough justices interested in doing so. Continue reading . . .

Soft-on-Crime Congressman Has Luggage Stolen in SF

by · Apr 30, 2024 10:52 am

Kevin Fagan reports for the San Francisco Chronicle:

Hello to the city, goodbye to your luggage. That was U.S. Senate candidate Adam Schiff’s rude introduction to San Francisco’s vexing reputation for car burglaries Thursday when thieves swiped the bags from his car while it sat in a downtown parking garage.

The heist meant the Democratic congressman got stuck at a fancy dinner party in his shirt sleeves and a hiking vest while everyone else sat in suits. Not quite the look the man from Burbank was aiming for as he rose to thank powerhouse attorney Joe Cotchett for his support in his bid to replace the late Dianne Feinstein.

“I guess it’s ‘Welcome to San Francisco,’ ” Cotchett’s press agent Lee Houskeeper, who was at the dinner, remarked dryly.

Congressman Schiff is a “progressive” on criminal justice, meaning that he seeks to water down the consequences of crime to criminals. See his congressional website, where the crime page is a collection of all the left’s standard fallacies and buzzwords. His approach necessarily means weakening deterrence and incapacitation. Yet he claims that his program will make us more safe, selling the old snake oil that rehabilitation programs will transform criminals into law-abiding people in large enough numbers to make a real difference in crime rates. This is the criminal justice equivalent of Lucy promising Charlie Brown that she won’t pull away the football. The promise has been made for decades, but the programs only change recidivism rates slightly at the margins. Yet people still fall for it.
Continue reading . . .

Harvey Weinstein Conviction Reversed

by · Apr 25, 2024 10:06 am

New York’s highest court reversed the conviction of the notorious Harvey Weinstein today, on the ground that evidence of other crimes was admitted beyond the limits allowed under New York’s landmark precedent in People v Molineux, 168 N.Y. 264 (1901). The court divided 4-3, with two judges recused and the replacements in the majority. That is, a majority of the court’s regular judges participating in the case voted to affirm. Continue reading . . .

Qualified Immunity and Armchair Quarterbacks

by · Apr 1, 2024 11:12 am

Four years ago, Daniel Hernandez died on the street in Los Angeles because of his own inexcusable act of coming at a police office with a raised knife* in his hand and continuing after repeated warnings. So, as is common these days, there were protests and a lawsuit claiming that the police violated his civil rights.

The U.S. Court of Appeals for the Ninth Circuit affirmed the district court’s dismissal of the federal civil rights actions on March 21 in Estate of Hernandez v. City of Los Angeles, though it held that state-law claims can go forward. Parsing the various shots fired by Officer Toni McBride, the court held that the first and second volleys were clearly justified but a third pair of shots presented a question of excessive force. Qualified immunity applies, though, because the law is not clearly established regarding the later shots. This holding raises the usual squeals that the qualified immunity standard is too restrictive, requiring a precedent that is a factual match. See, e.g., this article by Kevin Rector in the LA Times.

I agree with the Ninth Circuit’s legal analysis of the qualified immunity question. It correctly applies U.S. Supreme Court precedents on the subject. What I find troubling about the case, though, is the exercise of people in their comfortable offices carefully parsing video of an event on the street that happened in mere seconds. Continue reading . . .