Monthly Archive: November 2022

LA Votes for More Crime

by · Nov 17, 2022 11:32 am

With the election of liberal congressperson Karen Bass as Mayor, and the replacement of LA County Sheriff Alex Villaneuva with former Long Beach Police Chief Robert Luna, Los Angeles voters have made a clear choice to reject any aggressive effort to reduce the crime and violence which plagues the city.   Sheriff Vilaneuva’s tough-on-crime approach will be replaced by Sheriff Luna’s promise to investigate his own department and develop a “more collegial” relationship with pro-criminal District Attorney George Gascon.  During the campaign, mayoral candidate Rick Caruso promised to add 1,500 officers to the police force, restore the Crash Unit that targets high crime areas, crack down on gun traffickers, and push for reform or repeal of Proposition 47.  He set a goal of taking 30,000 homeless off the streets in the first year, clearing out parks, beaches and sidewalks. He pledged to build and repurpose properties to create shelter space at half of LA’s current $700,000 per bed housing cost. He has also pledged to expand mental health and drug addiction services to get the 67% of LA homeless who are mentally ill or addicted to drugs into care.

Continue reading . . .

Judicial Override, the Sixth Amendment, and Retroactivity

by · Nov 16, 2022 9:55 am

Sentencing a murderer to death generally requires three decisions in the United States today: (1) a factual finding that the defendant is guilty of the highest degree of murder; (2) a further factual finding that an additional aggravating factor is true;* and (3) a discretionary decision that death is the appropriate punishment for this murder and this murderer, considering both aggravating and mitigating factors.

The first decision must be made by a jury under the Sixth Amendment, unless the defendant waives that right. In Ring v. Arizona, the Supreme Court held that the second decision must also be made by a jury, though it previously held the opposite multiple times. The third decision may be vested in a judge (or panel of judges) or a jury by state law. Only Nebraska currently vests the decision in judges.

If a state can vest the decision in the judge entirely, can it also have a jury make a recommendation but still leave the final decision with the judge no matter what the jury recommends? Of course. If a state has such a system but decides to change it and make the jury’s life-sentence recommendation binding, does the U.S. Constitution require that it make that change retroactive, overturning final judgments entered under the old system? Of course not.

Yet that question is before the Supreme Court today in the case of hired hit man Kenneth Eugene Smith. [Update: Stay denied without comment or dissent.] Continue reading . . .

Is Crime in San Francisco Worse Than NYC?

by · Nov 14, 2022 11:42 am

Responding to MSNBC interviewer’s statement that New York City residents “don’t feel safe in this town,” and are “worried we could become San Francisco,” the state’s newly-elected Governor Kathy Hochul said NYC “will never be San Francisco.”  Mallory Monench of the San Francisco Chronicle reports that Hochul went on to say that the Big Apple was successfully fighting crime, with homicides and shootings down dramatically from last year.  While the two cities have vastly different populations, on overall crime they are generally comparable.   Homicides are tracking down 14% in New York City compared to last year while they are up in San Francisco by .43%.  But NYC saw dramatic increases in 2020 and 2021, while San Francisco homicides increased only slightly.  Both cities have unacceptable rates of violent crime.  When it comes to property crime Hochul is correct about San Francisco.  The numbers for 2020 show almost three times the rate of property crimes in San Francisco than in New York.  The reporter admits something that most of the media and liberal think tanks ignore, “The number is almost certainly higher in reality since many people don’t report property crime to the police because of the perception that doing so won’t make a difference.”

Continue reading . . .

Juries Less Than 12

by · Nov 14, 2022 11:38 am

In its 2020 decision in Ramos v. Louisiana, the Supreme Court held that nonunanimous juries are unconstitutional in the guilt phase of criminal trials, and no doubt to the finding of sentencing factors to which the right of jury trial extends under the Apprendi rule. The high court did so despite the heavy reliance of two states on its contrary decision on the precise point nearly a half century earlier.

Last week, two Justices fired a shot across the bow of the six states that still allow juries of less than twelve people. Those states would be well advised to get rid of their small juries—prospectively only—immediately, before the Supreme Court does so retroactively. Continue reading . . .

Supreme Court Takes Up Medicaid Fraud Case

by · Nov 14, 2022 10:36 am

The U.S. Supreme Court has taken up for full briefing and argument a case regarding Medicaid fraud and the Identity Theft Penalty Enhancement Act, Dubin v. United States, No. 22-10.  What is the question presented? Here is the petitioner’s version:

The federal aggravated identity theft statute provides: “Whoever, during and in relation to any felony violation enumerated [elsewhere in the statute], knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person, shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.” 18 U.S.C. § 1028A(a)(1).

The question presented is whether a person commits aggravated identity theft any time he mentions or otherwise recites someone else’s name while committing a predicate offense.

And here is the respondent’s (i.e., the Government’s):

Whether sufficient evidence supported the jury’s finding that petitioner “use[d]” the means of identification of another person to commit fraud, in violation of 18 U.S.C. 1028A(a)(1), by submitting a Medicaid claim invoking a specific patient’s right to reimbursement for a fictitious three-hour examination by a licensed psychologist on a date when that patient would have been eligible for the reimbursement.

Are these people talking about the same case? Continue reading . . .

2022 Ig Nobel Prizes

by · Nov 10, 2022 9:40 am

A bit late on this report. The 2022 Ig Nobel Prizes were awarded in September. The winners list is here. The prize in literature went to Eric Martínez, Francis Mollica, and Edward Gibson for their research on why legal documents are hard to understand: “Poor Writing, Not Specialized Concepts, Drives Processing Difficulty in Legal Language.” I pretty much knew that, but it’s nice to see it confirmed in published research. Continue reading . . .

Court Denies Resentencing of Two So-Cal Murderers

by · Nov 7, 2022 1:06 pm

Progressive Los Angeles District Attorney George Gascon’s effort to reduce the sentences of every murderer in the county received a setback last week courtesy of the state’s Second District Court of Appeal.  In the case of People v. Machado a unanimous panel held that a trial judge has the discretion to refuse a sentence reduction even if both the district attorney and the defense attorney request it.  The City News Service reports that convicted murderer Ernest Machado appealed a trial judge’s refusal to reduce his 25-years-to-life sentence for a 1982 conviction for first-degree felony murder.  He claimed that SB 1437, a 2018 sentencing reform law eliminating most murder convictions for accomplices, invalidated his conviction.  In this case, the evidence indicated that both Machado and his accomplice participated in the murder and robbery, allowing both to be convicted under the felony murder rule.  Machado also claimed that Gascon’s 2020 directive ordering his deputies not to oppose a murderer’s request for a reduced sentence, required the judge to grant it.

Continue reading . . .

Violent crime is a key issue for U.S. midterm election

by · Nov 7, 2022 11:47 am

Crime has become a big issue in the U.S. midterm elections. According to a recent Gallup poll, crime ranked as the second most important issue among voters, with 71% of registered voters saying it was either “extremely” or “very” important to their vote. This came second after the economy, which 85% of voters said would be extremely or very important to their vote. According to a different Gallup survey released a few weeks ago, more than half of Americans (56%) said there was more crime in their area compared to a year ago. According to Gallup, “That’s up a whopping 11 points from 2021 and 18 points from 2020, and is the highest mark ever measured.” This issue was a concern across party lines, with 73% of Republicans, 51% of Independents, and 42% of Democrats all agreeing that crime is getting worse (in 2020, these percentages were 38%, 38%, and 37%, respectively).

Continue reading . . .

Misconceptions about racial disparities in police investigations: Results from Tucson

by · Nov 4, 2022 11:13 am

Debates about racial inequalities in the criminal justice system have ramped up in the last several years. This has been largely driven by discussions about racially-biased police violence, but many also speculate about disparities in how the police treat crime victims. For example, one common belief is that the thoroughness of police investigations varies based on victim and officer race. But a recent study published in The Journal of Law and Economics (subscription required for access) suggests otherwise, at least in the context of residential burglary.

Continue reading . . .

Paul Pelosi Attacker is an Illegal Alien

by · Nov 3, 2022 1:26 pm

The man who attacked House Speaker Nancy Pelosi ‘s husband in their San Francisco home last week is an illegal alien who has been living in the U.S. since 2008, according to CNBC.  David DePape, a Canadian, crossed the southern border as a temporary visitor, which allowed him to stay in the U.S. for six months.  For the past several years he has been living in a converted bus in Berkeley.   The New York Post reports that his ex-girlfriend, who is currently in prison, said that DePape has been mentally ill for years.  The Department of Homeland Security has sent a detainer request to the San Francisco Police Department asking that they hold him for deportation after his trial.  De Pape has been charged with attempted murder and multiple other crimes related to his October 28 hammer assault on 82-year-old Paul Pelosi. Under California law, attempted murder is punishable  by 5 to 9 years in prison.  Unfortunately, because California is a sanctuary state, if and when De Pape completes his sentence, he will not be turned over to ICE for deportation.