The Criminals’ Political Party

by · Jun 4, 2025 1:26 pm

It may come as a surprise to some that in the American two-party political system, one of those parties is an aggressive advocate for people who commit crimes. The evidence of this is overwhelming and every day the news media provides us with more.  Some ongoing themes are so pervasive that specific proof is not needed. For example; the Democrat party has been the home of the anti-incarceration movement, which has been advocating against prison and jail sentences for criminals since the 1960s. They succeeded in reducing or eliminating punishment for most crimes in the 1970s but, when crime skyrocketed in the 80s and 90s, the public rebuked those policies and restored consequences.  This caused a dramatic decline in crime rates.  For at least the last two decades it would be difficult to imagine anyone who has not heard prominent Democrats proclaiming that police, prosecutors and the entire criminal justice system is racist. President Obama and his Attorney General Eric Holder repeatedly made this accusation 16 years ago and democrats across America serving as mayors, district attorneys, judges and supreme court justices parroted that narrative, which has repeatedly been proven false.

Continue reading . . .

Artificial Precedent

by · Jun 3, 2025 3:42 pm

Lawyers using artificial intelligence to write their briefs have a problem. The AI brief writers sometimes cite nonexistent cases to support their arguments, Daniel Wu reports in the WaPo. Yes, that’s certainly easier than combing through the pile of opinions that a computer search turns up to find one that actually supports your point.

Using new tools to make legal research better and more efficient is a great improvement. That has been steadily improving since computer-aided research was first invented long ago, and AI may well be a quantum leap in that development. Using AI to actually write your brief is a much riskier step. But submitting an AI brief without cite-checking it is gross negligence, in my opinion.

The WaPo story reports: Continue reading . . .

Supreme Court Takes Up Case on Emergency Home Entry

by · Jun 2, 2025 8:19 am

Generally, police need a warrant to enter a home, but there is a long-established exception for emergencies. In 2006 in Brigham City v. Stuart, the Supreme Court held that “an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury” will do.

This standard is not phrased in the usual terms of Fourth Amendment standards. It does not say “probable cause,” the term explicitly stated by that amendment as the requirement for a warrant. According to the defendant in Case v. Montana, No. 24-624, “The state courts and federal courts of appeals are deeply divided, however, on whether this ‘objectively reasonable basis’ standard requires police making a warrantless entry to have probable cause to believe an emergency exists or some lower level of suspicion.” The court apparently believes there is enough of a split to warrant its attention. Continue reading . . .

Modifying Federal Sentences

by · May 27, 2025 9:10 am

Federal law, 18 U.S.C. § 3582(c), provides a limited authority for a federal judge to modify a previously imposed term of imprisonment. One of the grounds, in subparagraph (1)(A), is that “extraordinary and compelling reasons warrant such a reduction.” Today the U.S. Supreme Court took up the case of Fernandez v. United States, No. 24-556, to decide if reasons that would support a motion to vacate a sentence constitute grounds for a 3582(c)(1)(A) modification. The motion-to-vacate statute, 28 U.S.C. § 2255, is Congress’s substitute for habeas corpus for federal prisoners.

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California Legislature Considering Early Parole for Murderers and Rapists

by · May 23, 2025 10:08 am

The California Legislature is considering moving up parole hearings and releases for murderers and rapists. The proponents of this change may be having some difficulty rounding up the votes, and they have employed a legislative trick to buy more time. People with sense need to use this time to tell their representatives to vote down this atrocity instead.

In California, sentences of X-to-life (as opposed to a set term of years) are generally reserved for the very worst criminals. Murderers make up the lion’s share of inmates with these “indeterminate sentences.” Most second-degree murders draw a sentence of 15-to-life, and first-degree murder without special circumstances draws 25-to-life. Some repeated or exceptionally heinous sex crimes also draw similar sentences. The Three Strikes Law — which was substantially narrowed in an initiative in 2012 — also provides an indeterminate sentence for the third conviction of felonies from lists designated “serious” or “violent,” but these lists are considerably narrower than their names imply. Assault with a deadly weapon is not on the “violent” list, for example.

Before 2016, all of the minimums above were real minimums. Credits for good behavior or program participation could shorten fixed-year sentences, but they did not move up the minimum eligible parole dates (MEPD) for the X-to-life sentences, with a few minor exceptions. Proposition 57 passed in that year. The state prison department, called the California Department of Corrections and Rehabilitation (CDCR), subsequently claimed that Prop. 57 authorized it to move up MEPDs via credits, untroubled by the fact that the initiative does not contain a single word about MEPDs.

CJLF and three crime victims filed suit over this and other issues with CDCR’s credit regulations. The Sacramento Superior Court agreed with us regarding MEPDs and issued a writ of mandate to cease early parole hearings and early releases. CDCR appealed, and the writ was stayed pending appeal as to the early hearings but remains in effect as to early releases. Oral argument in CJLF v. CDCR, No. C100274, was heard in the Third District Court of Appeal last Tuesday, May 20.

Assembly Member Ash Kalra is wringing his hands over the murderers and rapists being deprived of their early releases. If he cares anything at all about the victims and their families, he hasn’t shown it. So he took an unrelated bill about prison visitation, amended out all its text, and substituted language that would authorize CDCR to move up MEPDs this way. Continue reading . . .

Fraud Without Financial Injury

by · May 22, 2025 8:54 am

If a liar lies to induce someone into a deal and the other person suffers no monetary loss, is it still a fraud? Yes, under the federal “wire fraud” statute, the U.S. Supreme Court decided today in Kousisis v. United States, No. 23-909. The high court was unanimous as to that basic rule, but there were some disagreements on scope and the underlying issue in the fraudulent inducement.

The Pennsylvania Dept. of Transportation needed some restoration work done, and the federal government was picking up part of the tab. Federal regulations required a “disadvantaged-business program.” Kousisis represented that he would obtain painting supplies from a “disadvantaged” business, but that business was just a pass-through that got paid a fee for processing paperwork for supplies actually purchased elsewhere.

So PennDOT got the services it paid for, but it didn’t get the boost to supposedly disadvantaged business that was expressly made a material term of the contract. Is that fraud? Of course. Regardless of what one thinks of such clauses in government contracts, it was part of the deal. In order to get money, Kousisis made a fraudulent inducement on a term that was material to the other party, and that is all the law requires.

So where is the disagreement? Continue reading . . .

Justice Department Dismissing Biden Era Consent Decrees

by · May 21, 2025 11:11 am

“Today, we are ending the Biden Civil Rights Division’s failed experiment of handcuffing local leaders and police departments with factually unjustified consent decrees,” announced Assistant U.S. Attorney General Harmeet Dhillon. Since the beginning of the Obama administration and continuing over to the Biden administration, the Justice Department’s Civil Rights Division has filed dozens of lawsuits against mostly big city police departments alleging unconstitutional policing practices and racial bias. Breanne Deppisch and David Spunt of Fox News report that that the DOJ is now dismissing lawsuits against the Minneapolis and Louisville police departments launched after the George Floyd riots of 2020. In both cases the government claimed that the departments were racially biased.

Continue reading . . .

Police Use of Force and the “Moment of Threat”

by · May 15, 2025 10:52 am

The Supreme Court has long held that claims of unreasonable search and seizure under the Fourth Amendment must be evaluated under the “totality of the circumstances.” Since Illinois v. Gates in 1983, it has rejected categorical rules that confine the assessment. Today the high court decided in Barnes v. Felix that a claim of unlawful use of force against a police officer cannot be confined to the “moment of threat.” Unlawful use of force is considered a seizure and analyzed under the Fourth Amendment.

Today, we reject that approach as improperly narrowing the requisite Fourth Amendment analysis. To assess whether an officer acted reasonably in using force, a court must consider all the relevant circumstances, including facts and events leading up to the climactic moment.

No big surprise there. The decision was unanimous. Continue reading . . .

Enjoining State Prosecutions in Federal Court

by · May 15, 2025 10:32 am

After the Texas Attorney General gave Yelp, Inc. notice of intent to file a quasi-criminal enforcement suit against it, Yelp went yelping to the federal district court in San Francisco for an injunction against the enforcement.

Can they do that? No, said the district judge, and today a three-judge panel of the Ninth Circuit affirmed. This isn’t a new rule. It’s an old case called Younger.

Over 55 years ago, a federal district court enjoined a prosecution in California state court. The Los Angeles District Attorney (and future California Attorney General) Evelle Younger, took it all the way to the Supreme Court. In Younger v. Harris , 401 U.S. 37 (1971), the high court established a general rule that federal courts should abstain from using their injunctive powers against prosecutions in state courts. Federal-law defenses must generally be asserted in the state court. There is an exception for bad faith prosecutions.

First Amendment defenses generally are not an exception. Younger itself was such a case. Yelp did not succeed in showing bad faith here. Continue reading . . .