Monthly Archive: June 2021

Gascón’s Directive Releases Dangerous Criminals on Probation

Los Angeles District Attorney George Gascón’s Special Directive 20-08,  forbids the deputies working for him from applying sentencing enhancements to charges against criminals, even for violent crimes. As reported by Los Angeles Association of Deputy District Attorneys (ADDA) President Michele Hanisee today:

Nearly all…crimes are probation eligible. Murder is probation eligible. Carjacking is probation eligible. Kidnapping is probation eligible. What typically causes a crime to be ineligible for probation is the addition of a sentencing enhancement, for example, use of a deadly weapon or infliction of great bodily injury. But since filing all but a handful of sentencing enhancements is prohibited, nearly every crime remains probation eligible. Thus – even for murder – the presumptive offer for those roughly 95,000 plus cases for which plea bargains are offered must be probation absent “extraordinary circumstances.”

The directive does not define what qualifies as “extraordinary circumstances.” What does that mean in the context of a murder case, or a carjacking case? But by definition, “extraordinary circumstances” will be a rare exception. The rule is that prosecutors must offer a plea bargain that results in the defendant going home on probation rather than serving time in custody.  Even for murder.

Continue reading . . .

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.

Homicide Rates Climb, Citizens Told it is the New Normal

The Washington Post has this story addressing the steep increase in homicides across the country in the last year. 

“It’s going to get worse,” Cleveland Mayor Frank Jackson (D) said.

As the homicide rate climbed through a year of pandemic-imposed shutdowns and civil unrest, officials held firm to their belief that the rise was driven by that exceptional set of circumstances. As life returned to normal, the theory went, the killings would slow.

But even as coronavirus restrictions have been lifted and protests have quieted in recent months, the violence has not subsided. Indeed, it has continued to grow. And now, local leaders are grappling with a possibility they had long feared: that a decades-long era of declining murder rates in America’s cities may be over, and that the increased killings may be here to stay.

Continue reading . . .

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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Hot Pursuit and Entry Into Homes: Preliminary Note

As expected, the U.S. Supreme Court held today that the fact that a police officer is in “hot pursuit” of a person believed to have committed a misdemeanor (as opposed to a felony) is not by itself sufficient justification to enter a home with neither consent nor a warrant. The case is Lange v. California, No. 20-18. There are some interesting nuances here, which I will have more to say about later.

Chicago Mayor Clueless About Crime in Her City

After a record number of shootings last year and 875 deaths, nearly twice as many as in 2019, violent crime in Chicago is on track  to set a new record this year.  According to Newsweek, there were 956 shootings in Chicago resulting in 185 deaths during the first quarter of 2021, a 14% increase in homicide compared to the same period last year.  In the face of last year’s skyrocketing homicide rate and Black Lives Matter riots, Chicago Mayor Lori Lightfoot proposed cutting the police department’s budget by $59 million, while telling reporters that she does not support defunding the police as reported by CBS News.  She has variously blamed Chicago’s shootings and murders on former President Trump, the Corona Virus, and gun laws in Indiana and Texas.

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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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No SCOTUS Criminal Cases Today

As the U.S. Supreme Court winds down its October 2020 Term, it decided three civil cases today. They involve securities litigation class actions, antitrust and student athletes, and the Appointments Clause and patent reviews.

No new cases, civil or criminal, were taken up for full review in the next term. Continue reading . . .