Category: Constitution

Baby Murderer Granted Early Parole

by · Apr 25, 2025 1:53 pm

Herbert Brown beat his two-year-old daughter to death in 2013. He was convicted of murder and sentenced to 15-to-life, of which he has only done 12 years. So why is the Board of Parole Hearings granting him parole?  The San Luis Obispo County District Attorney’s Office has this press release.

“It is shameful for the Parole Board to grant Herbert David Brown III early release from prison,” said District Attorney Dan Dow. “Mr. Brown was convicted of murdering his own 22-month young daughter Lily due to abuse he inflicted upon her while he was using and under the influence of methamphetamine. Brown, who now identifies as a woman and goes by the name ‘Allie Brown,’ was sentenced to serve 15-years-to-life and should have served every day of the 15 years before being considered for possible parole. I ask the Board of Parole Hearings: ‘Where is the justice for Baby Lily?’” Continue reading . . .

Immigration Enforcement, the Laken Riley Act, and State Standing

by · Jan 11, 2025 10:08 am

The House of Representatives has passed the Laken Riley Act by a whopping 264-159. The bill may set up a constitutional showdown on the question of the standing of states to sue federal officials for failure to enforce federal law, but not any time soon.

The bill adds theft offenses to the crimes for which aliens may be taken into custody. In addition, though, it grants standing to state attorneys general to sue the Secretary of Homeland Security for a variety of failures to enforce several immigration laws. Can Congress do that? Continue reading . . .

USCA9 Vacates SF Camping Injunction

by · Jul 8, 2024 11:00 am

In January, the U.S. Court of Appeals for the Ninth Circuit upheld an injunction against San Francisco, preventing the city from enforcing its ordinance against camping on public property based on its precedents in Martin v. City of Boise and Johnson v. City of Grants Pass. The decision was 2-1, with Judge Bumatay dissenting, noting that “there’s nothing in the text, history, and tradition of the [Cruel and Unusual Punishment] Clause that comes close to prohibiting enforcement of commonplace anti-vagrancy laws, like laws against sleeping on sidewalks and in parks.”

Last week the Supreme Court reversed in Grants Pass, taking the same view of the Eighth Amendment as Judge Bumatay. See this post.

Today, the Ninth withdrew its published opinion and replaced it with a brief “memorandum,” i.e., an unpublished opinion. Continue reading . . .

Arms, Abusers, and Originalism

by · Jun 21, 2024 11:17 am

Federal law prohibits persons who are subject to domestic violence restraining orders from possessing firearms. (See 18 U.S.C. § 922(g)(8).) Today, the U.S. Supreme Court rejected a facial challenge to this law, 8-1. Only Justice Thomas dissented.

A key issue is how closely a gun-control law must track those in existence at the Founding to be considered consistent with the Second Amendment. Chief Justice Roberts, writing the opinion of the Court, states that the historical analyses of recent cases “were not meant to suggest a law trapped in amber.” Just as the protection of the amendment is not limited to the muskets of 1791, neither are the permissible regulations limited to duplicates of those in force at the time. This touches off an extensive discussion of originalism. Continue reading . . .

SB 94 – Lies, Damn Lies, and Statistics – Murderers do not “Age Out”

by · Aug 30, 2023 4:35 pm

Steve Smith of Pacific Research Institute has this post on a bill that is exceptionally bad even by the California Legislature’s low standards. The bill  would make a large number of murderers sentenced to life without possibility for parole eligible for parole.  Smith notes:

SB 94 is based on the simplistic and poorly researched premise that, based on arrest statistics alone, criminals age out of crime. The bill’s author, Senator Dave Cortese, argues that “research overwhelmingly shows that people age out of violent crime….”

Both [Sen. Cortese’s] press release and the study [it cites] suffer from a glaring omission. Neither make the connection between age and the crimes for which the offender was sentenced. Continue reading . . .

Judicial Factfinding, Multiple Sex Offense Convictions and Consecutive Sentences

by · May 25, 2023 4:18 pm

Over a period of 10 months, Edgar Sandoval Catarino sexually abused his 9-year old cousin on multiple occasions.  He was charged with 8 counts of forcible lewd acts on a child under the age of 14 (Penal Code §288(a)) .  Each charge alleged an identical range of dates during which these offenses may have occurred.  A jury subsequently convicted him on 6 of the counts and the verdict also included the same range of dates alleged on each count, but did not further specify on what dates each of the crimes took place.  At sentencing, the court found that each conviction occurred on separate occasions and sentenced him to full, consecutive terms for each pursuant to Penal Code section 667.6(d).  Catarino argued that because the jury did not make specific findings that each of his convictions constituted separate incidents occurring on separate occasions, it violated his Sixth Amendment right to a jury trial.  The California Supreme Court rejected this argument and upheld his full, consecutive sentences this morning in People v. Catarino (S271828) Continue reading . . .

The “True Threats” Doctrine

by · Apr 21, 2023 2:15 pm

On Wednesday the United States Supreme Court heard oral argument in Counterman v. Colorado, No. 22-138 (transcript here, audio here).

The issue in this case involves how courts should determine what constitutes a “true threat.”  True threats are not protected by the First Amendment.  The question before the Court is whether a state may define speech to be a “true threat” if it would be regarded by a reasonable person as a true threat, or whether the First Amendment requires a state to prove beyond a reasonable doubt that the speaker subjectively intended the communication to be a threat.

In this case, Billy Raymond Counterman, was convicted of stalking and was sentenced to 4.5 years in prison for sending thousands of private Facebook messages to a local singer/songwriter named C.W. C.W. found the private messages to be “weird” and “creepy” and did not respond to any of them. She blocked Counterman from her Facebook accounts, but he created new accounts and continued to message her. As time went on without response from C.W., Counterman’s messages became more angry and alarming, causing C.W. to become extremely fearful and scared. Counterman also alluded to making physical sightings of C.W. in public. Continue reading . . .

Supreme Court Takes Up Arizona Murder Case

by · Mar 28, 2022 8:05 am

This morning, the U.S. Supreme Court released this orders list from last Friday’s conference. The Court took up the case of Cruz v. Arizona, No. 21-846. The case involves the familiar scenario of a murderer who could have made a particular objection at trial or on direct appeal but did not. When he tries to raise the objection in a collateral attack on the judgment, the state court tells him it is too late. As usual, the issue in this case has nothing whatever to do with whether the defendant committed the crime. It only relates to whether he should receive the punishment his crime deserves or whether justice should be tempered with mercy to let him off with less than he deserves.

From the state’s brief in opposition:

On the day he was killed, Officer Patrick Hardesty was questioning [John] Cruz as part of a hit-and-run investigation. App. 2a. During the questioning, Cruz ran from Officer Hardesty and Officer Hardesty gave chase on foot. Id. at 202–03, ¶¶ 2–4. At some point during the chase, Cruz shot the officer five times, emptying the five-shot revolver he was carrying. Two shots struck Officer Hardesty’s protective vest, two others struck him in the abdomen below the vest, and one entered his left eye, killing him almost instantly. Id. at 203, ¶¶ 5–7. Four of the shots were fired from no more than a foot away. Id. at 203, ¶ 6.

Cruz claims that the jury should have been told he would not be eligible for parole if they gave him life in prison. The Supreme Court precedent on that point was decided nine years before the crime. Cruz’s trial attorney did not request such an instruction, even though the trial judge offered one while denying a related motion, and his appellate attorney did not make that objection on direct appeal.

This is familiar turf for CJLF. We played a role in developing the rules that generally prohibit this kind of “heads I win, tails we take it over” gamesmanship. Continue reading . . .

A Second Amendment Case Ready for Cert?

by · Mar 25, 2021 9:30 pm

Kent noted yesterday a split Ninth Circuit en banc decision that upholds Hawaii’s very strict gun control law.  The percolating Second Amendment question out in the country is whether and under what conditions a law-abiding citizen can legally carry a gun for self-defense outside his home.  The Hawaii case might very well prove to be grist for that mill, but there is another case in the pipeline that might get there first.  My friend Prof. Josh Blackman has the story.

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.