Monthly Archive: December 2020

Gascón Plans to Release Thousands of Criminals

by · Dec 9, 2020 2:07 pm

Newly elected Los Angeles District Attorney George Gascón told ABC News Monday that he estimates that his directive forbidding sentence enhancements for habitual felons will impact at least 20,000 cases.  Hans Bader writes in Liberty Unyielding that Gascón’s directive would prevent prosecutors in LA County from seeking the “increased penalties for repeat offenders who commit willful homicide, forcible rape, robbery and aggravated assault with a firearm,” approved when California voters adopted Proposition 8.

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LA’s New DA: Hugs for Thugs, Snubs for Victims

by · Dec 8, 2020 10:09 am

The new District Attorney for Los Angeles County yesterday issued a series of criminal-friendly policies. There is so much wrong with them, it will take multiple posts to describe it all. Among other things, the office will not seek any sentence enhancements under any circumstances, and the office will take the criminal’s side in seeking to remove already imposed enhancements in prior cases. That includes the ultimate sentence enhancement, capital punishment.

One of the things that strikes me about all the sentencing policy memos is how they almost completely ignore the victims of the crimes. Continue reading . . .

No New SCOTUS Cases Today

by · Dec 7, 2020 8:05 am

The U.S. Supreme Court issued an orders list from last week’s conference this morning, but it took up no new cases. On Friday, the Court took up one civil case.

The Court is hearing oral arguments this week, but no criminal cases are on the docket. Perhaps that comes under the “no news is good news” rubric.

A Teague Primer

by · Dec 4, 2020 4:46 pm

Before getting to the oral argument of December 2 in Edwards v. Vannoy, a basic explanation of the rule of Teague v. Lane is in order. To understand the rule, and to understand why it has an exception that is never met, one needs to know the background.

Before Teague, the Warren Court had established a three-prong test for when a rule would be applied retroactively to earlier cases. The Court was making up new rules at a brisk pace, so this question was important. The majority that created this approach to retroactivity, initially, was a coalition of the more pragmatic members of the liberal wing of the Court, including Chief Justice Warren and Justice Brennan, who saw non-retroactivity as a way to reduce resistance to changes they thought were needed, and the relatively conservative justices who saw it “as a way of limiting the reach of decisions that seemed to them fundamentally unsound,” as Justice Harlan put it in his separate opinion in Mackey v. United States, 401 U.S. 667, 676 (1971). Continue reading . . .

What Ramos v. Louisiana Says About Its Own Retroactivity

by · Dec 4, 2020 1:29 pm

Last April 20, the U.S. Supreme Court decided in Ramos v. Louisiana that juries must be unanimous in state criminal trials, contrary to the result reached by a splintered Court in 1972 in a pair of cases, Apodaca v. Oregon, 406 U.S. 404 and Johnson v. Louisiana, 406 U.S. 356. Those two states continued to allow convictions by juries split 10-2 or 11-1 in reliance on those decisions for many years, although the voters of Louisiana changed to a unanimity requirement for future trials in the 2018 election.

What about cases tried before Ramos ? On the day of the decision, this seemed like an easy question. Under well-established Supreme Court precedent, those cases of nonunanimous verdicts still pending their initial appeal would be reversed, but that would not be a ground for a collateral attack (i.e., habeas corpus or an equivalent procedure) for old cases that were tried and became final in accordance with what had been the law at the time. Indeed, the several opinions in Ramos itself either said or clearly implied as much. Continue reading . . .

The Danger of Introducing New Factual Claims at the Supreme Court Level

by · Dec 3, 2020 3:13 pm

Yesterday, the U.S. Supreme Court heard oral argument in Edwards v. Vannoy, No. 19-5807, on the retroactivity of the unanimous jury requirement of Ramos v. Louisiana. See this post from the day the Court took up the case. I will have much more to say on the law of retroactivity in a later post, but for now I want to call attention to an alarming practice that the Supreme Court should squash — introducing new factual claims at the Supreme Court level with no realistic opportunity for the other side to challenge them. Continue reading . . .

Get Used to Increased Crime

by · Dec 3, 2020 2:02 pm

For months local news outlets have been reporting on a spike in shootings and homicides in large American cities, often with experts attributing it to the pandemic and the unrest following the death of George Floyd.  But with most businesses closed and most people staying home shouldn’t there be less violent crime?  George Floyd’s death was in May, and while there are still sporadic protests in places like Portland and Seattle, this does not explain the reported 728 people shot in Philadelphia in the month of November, the highest number of Los Angeles murders in a decade, the 26% homicide increase in Nashville, or the 38% increase in Sacramento.

Continue reading . . .

A Surprise Backer for the New Independent Counsel

by · Dec 2, 2020 6:56 pm

It’s not news by now that AG Barr has appointed US Attorney John Durham as an Independent Counsel to continue to pursue the investigation of the Russia probe that fueled the failed impeachment effort against President Trump.  Although some of Barr’s opponents have criticized the appointment as a political stunt, one prominent lawyer wrote this in defense of precisely this sort of appointment:

“The need for a special counsel who is to some extent independent of the Attorney General and free of the conflicts of interest that exist when an Administration investigates alleged wrongdoing of its own officials has unfortunately been demonstrated several times in [the last] century.”

Who is the mystery author?

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Walter Williams, R.I.P.

by · Dec 2, 2020 2:56 pm

Walter Williams, Professor of Economics at George Mason University, died today at the age of 84. Donald Boudreaux, also as GMU economics professor, has this article in the WSJ:

For 40 years Walter was the heart and soul of George Mason’s unique Department of Economics. Our department unapologetically resists the trend of teaching economics as if it’s a guide for social engineers. This resistance reflects Walter’s commitment to liberal individualism and his belief that ordinary men and women deserve, as his friend Thomas Sowell puts it, “elbow room for themselves and a refuge from the rampaging presumptions of their ‘betters.’ ”

Professor Williams’s insights were not limited to economics. Although not a lawyer, he gave us the best, most concise description of the “living Constitution” view of constitutional law that I have ever heard.

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Who decides if a teen killer should be tried as an adult?

by · Dec 2, 2020 10:53 am

On Tuesday morning, the California Supreme Court heard oral argument in the case of O.G. v. Superior Court (S259011).  The issue is whether the California Legislature unconstitutionally amended the statutory provisions of Proposition 57 when it enacted SB 1391.  Prop. 57 was voted into law by a majority of California voters in 2016.  The ballot measure eliminated a District Attorney’s ability to directly file criminal charges against individuals under age 18 in adult court.  The measure instead gave juvenile court judges the sole authority to decide whether violent juveniles ages 14 and older should be prosecuted as adults only after conducting a full evidentiary hearing in the juvenile court.  In 2018, former Governor Jerry Brown signed SB 1391 into law.  SB 1391 prohibits 14 and 15 year olds from being criminally prosecuted as adults regardless of the crime committed.  In a nut shell, voter enacted Prop. 57 gives juvenile court judges the sole authority to decide whether juveniles (ages 14 and older) should be prosecuted as adults and legislature enacted SB 1391 prohibits 14 and 15 years olds from being prosecuted as adults.  SB 1391 (the legislature) takes away what Prop. 57 (the voters) authorized.  CJLF filed a brief (found here) arguing that SB 1391 unconstitutionally amended Prop. 57.

Continue reading . . .