Author: Bill Otis

Merrick Garland Suspends Use of the Federal Death Penalty

Attorney General Merrick Garland yesterday announced that he is suspending use of the federal death penalty:

“The Department of Justice must ensure that everyone in the federal criminal justice system is not only afforded the rights guaranteed by the Constitution and laws of the United States, but is also treated fairly and humanely,” said Attorney General Garland. “That obligation has special force in capital cases.”

What to make of this announcement, and of its timing?

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Biden Tanks as Violent Crime Rises

The Washington Post, ever tooting the horn for President Biden and his pet project of more gun control, nonetheless apparently sees itself as forced to cover some of the uncomfortable truths about surging violent crime, what the public wants to do about it, and what the President says he wants to do about it.  (What he’s actually done, so far as on-the-ground results show, is nothing).

The Post’s headline is, “Concern over crime is growing — but Americans don’t just want more police, Post-ABC poll shows.”

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Joe Biden’s Senior Moment in Trying to Deal with Surging Violent Crime

Pres. Biden was older when he took office than Ronald Reagan was when he left.  It’s not exactly a secret that older people can have problems with forgetfulness.  Pres. Biden seems to be having such a moment in his attempts, summarized here and here, to come up with an answer to the dramatic rise in violent crime (a rise that started under his predecessor last year but has continued full throttle during Biden’s tenure).

On the other hand, perhaps it’s not so much that Biden can’t remember how to deal with crime effectively  —  a project he helped advance as a senator 25 years ago  —  as it is that, given the radical leftward shift in the Democratic Party, he can’t afford to remember.  Instead, he has to pretend that the Left’s reality-free narrative  —  a jazzed-up version of the failed soft-on-crime policies of the Sixties and Seventies  —  is the answer.

It isn’t.  It’s pathetic.  And it will cost lives, disproportionately  —  as is always the case with violent crime  —  black lives.

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Hot Pursuit and Entry Into Homes, a Practical Take

Kent did a short introduction of today’s Fourth Amendment case, Lange v. California, and I await his more detailed analysis.  In the meantime, I was discussing the case with a defense lawyer friend of mine, a very smart guy and a bit of a cynic.  One of his pals said that the CNN summary of the case went, “The U.S. Supreme court ruled Wednesday that police cannot enter a home without a warrant when pursuing someone for a minor crime.”  My buddy had a different view:  “That’s a dead wrong description of an opinion that effectively says the police can do this [a warrantless entry in hot pursuit] 99% of the time and claim good faith the other 1%.”

For most practical purposes in future litigation, that strikes me as pretty much dead on.

How De-Funding the Police Works When Reality Strikes

The George Floyd riots led some politicians, mostly in Leftist-dominated cities like Minneapolis, Portland and Seattle, to call for de-funding the police.  For those not inclined to view the world through the prism of anti-Americanism, and who therefore knew where reducing police presence would lead, the resulting surge in violent crime was hardly a surprise.  (It’s unfortunate that adults, or persons posing as adults, have to learn that where the police are stepped back, or not present at all, criminals will quickly get the picture and take advantage.  But this seems to be where we are).

Still, that relentless enemy of the Leftist narrative  —  that is, reality  —  will have its way, generally sooner rather than later.  It’s all nicely summarized in one flow chart.

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Some Sound Advice on Crack Sentencing

Assuming that Sen. Sheldon Whitehouse can break away from his all-white country club, the Senate Judiciary Committee should have full attendance today for its hearing about crack cocaine sentencing.  As the Washington Post informs us, today’s hearing will center on the Biden Administration’s proposal to lower the cost of doing business for crack dealers by reducing their sentences and, as an extra bonus, making the reductions retroactive.  This will assure earlier release for this particular cohort of drug traffickers, a large percentage of whom will recidivate within five years, according to Sentencing Commission figures. (The number is actually higher than Commission reports, first because yet more dealers recidivate after the five year window, and second because drug trafficking is a notoriously under-reported crime in any event).

Crack sentencing has been a hot topic for years, going back at least to the Fair Sentencing Act of 2010, co-sponsored by Sen. Dick Durbin and a man I’m proud to call a friend, then-Senator and later Attorney General Jeff Sessions.  Back then, that self-same Washington Post had some sound observations on crack sentencing, observations Congress would do well to heed today.

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Lying During, and About, Plea Bargaining

SL&P has this post bemoaning that so much lying goes on during, and to prop up, the negotiation and tendering of bargained-for guilty pleas.  The gist of the post  —  you will not be shocked to hear  —  is that the system is rigged against blameless defendants, who then, with the cynically weary but perforce assistance of their lawyers, lie repeatedly by admitting to crimes they did not commit.

I litigated criminal cases in federal court for a quarter of a century.  There is indeed a considerable amount of lying that goes on.  But it’s not defendants’ admitting to stuff they didn’t do.  It’s defendants’ denying stuff they most certainly did do.  Anyone who actually does criminal litigation will admit this if approached in a rare moment of candor.

Still, let’s assume arguendo that innocent defendants, with their lawyers’ connivance, do falsely inculpate themselves by lying during plea bargaining in order, they calculate, to evade the otherwise looming draconian consequences of a rigged system.  Let me suggest a simple six-word remedy:  Quit lying and tell the truth.

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A Problem of Racism on the Senate Judiciary Committee?

Two days after the first national celebration of Juneteenth, you probably thought we were past the time when United States senators, particularly on the Judiciary Committee charged with helping to guarantee civil rights, would be members of fancy all-white clubs.  Indeed, until just now, I wasn’t aware that all-while clubs still existed.

Time to wake up.  Meet Senator Sheldon Whitehouse, former US Attorney for Rhode Island and now Chairman of the Senate Judiciary Subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights.

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Drugs, Arrest, Incarceration, Responsibility and the Resurrection of a Life

This country has been having a seemingly endless debate about drugs.  Although there are gradations in between, there seem to be two mostly opposing camps, to wit, those who would treat drugs as a law enforcement problem, and those who would treat them as a public health problem.

I spent four years as Counselor to the head of the Drug Enforcement Administration.  Drugs are both a law enforcement and a public health problem, and we aren’t going to solve it either by dismissing law enforcement as mere latter day Puritanism, nor by dismissing the opportunity for treatment as mere mush-minded coddling.  But what’s getting overlooked is that no part of the system can be the foundation for a solution.  The foundation for overcoming drugs, as with so much else, is the individual’s understanding that he is responsible for his life and behavior, and his determination to own that responsibility every minute of every day.  This post is about the story of one young lady, Ginny Burton, who resurrected her life with the indispensable help of law enforcement, incarceration, and coming to terms with her failings  —  and then, wonderfully, her potential.

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