Monthly Archive: December 2020

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 . . .

Is Just Sentencing Racist?

by · Dec 18, 2020 3:39 pm

The claim repeated endlessly by liberal politicians, race hustlers and the mainstream media, that America’s criminal justice system is racially biased has been debunked by studies and hard data many times, but it continues to dominate every discussion of criminal justice policy.   Hans Bader’s piece below, addresses this claim, most recently made by newly elected Los Angeles District Attorney George Gascón:

Punishment should be tailored to fit the crime, not ignore things that make a crime worse or more serious.  Criminal’s punishment should be proportional to their offense, according to Supreme Court rulings.  That’s why sentencing enhancements exist for crimes committed by repeat offenders, or for those who committ “great bodily injury.”  But Los Angeles County’s progressive district attorney opposes them.
Continue reading . . .

Life in Progressive New York City

by · Dec 18, 2020 11:15 am

Progressive social and criminal justice policies are running the show, or perhaps I should say running amok, in New York City.  Such policies are said to aim to help the poor and those who must rely on public services.  Just now I received a small but valuable insight from the brilliant Rafael Mangual who lives in the City.  Judge for yourself how much “help” is being provided.

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 . . .

Crime in Reformed Cities

by · Dec 17, 2020 3:45 pm

With the help of George Soro’s bottomless checkbook and the relentless “police are racists” drumbeat of Black Lives Matter, several large U.S. cities have embraced “criminal justice reform” by electing District Attorneys willing to use their office as an instrument of social justice.  George Gascón, recently elected District Attorney of Los Angeles, is in the running to become the most renown of these reformers.  In a piece in The Hill, journalist Rafael Mangual, notes that Gascón’s platform like those of other reform-minded District Attorneys “read as if they were written by those vying to be public defenders.”  He has announced that his office will simply not prosecute misdemeanors such as driving without a license or resisting arrest.  Arrestees for any crime up to murder, will not have to make bail, but will be released to rehab until trial, and at those trials, habitual criminals, even those with violent priors, will be treated like first-time offenders.

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 . . .

The “Decency Defender”

by · Dec 15, 2020 11:44 pm

Much is being written (see, e.g., here) about the “progressive prosecutor.”  A progressive prosecutor, to sum things up, is an ideological defense lawyer elected in a one-party jurisdiction  —  virtually always Democratic  —  and financed directly or indirectly by anti-American billionaire George Soros.  He typically promises public safety and concern for crime victims, but in fact couldn’t care less about either.  His aim is to advance the interests of criminals, either by not prosecuting them at all, or prosecuting them on scandalously reduced charges, and then recommending some sentence like anger management (if any sentence at all).

All the talk about progressive prosecutors got me to thinking.  If we can “re-imagine” prosecutors, can we re-imagine defense counsel?  We often hear that the re-imagined prosecutor should consider himself in a broader role  —  i.e., as a “minister of justice.”  Would it be possible for defense attorneys to re-imagine themselves in a role beyond merely getting a walk for the client on this particular charge, and instead being an advocate for his client’s embracing a better life?

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 . . .