Murder | Reason ArchivesThe leading libertarian magazine and covering news, politics, culture, and more with reporting and analysis.(c) Reason
2024-03-28T04:00:42Z https://reason.com/feed/atom/WordPressJeffrey A. Singerhttps://reason.com/people/jeffrey-a-singer/dr4liberty@aol.comhttps://reason.com/?p=82701182024-03-27T14:54:02Z2024-03-26T11:00:01Z
Today marks the 25th anniversary of Dr. Jack Kevorkian's conviction of second-degree murder for performing euthanasia on Thomas Youk, a Michigan man suffering from amyotrophic lateral sclerosis, or Lou Gehrig's Disease. Kevorkian, a medical pathologist, had been defying state laws by engaging in assisted suicide—he claimed to help more than 130 people die—often using machines he invented like the Thanatron (which delivered lethal doses of narcotics) and the Mercitron (which delivered carbon monoxide) and instructing patients how to use them to commit suicide. But this was different. Kevorkian was not assisting a suicide. Kevorkian videotaped himself injecting Youk with lethal chemicals. He was doing all the work. And despite having received Youk's informed consent, the Michigan Court considered it murder.
The United States has come a long way since Kevorkian began crusading to legalize assisted suicide. Today, physician-assisted suicide is legal in 11 jurisdictions: California, Colorado, the District of Columbia, Hawaii, Montana, Maine, New Jersey, New Mexico, Oregon, Vermont, and Washington. One can think of physician-assisted suicide as "active euthanasia" because the physician is providing the means and the instructions, but the patient performs the suicide. "Passive" euthanasia, where a physician or other caregiver ends a patient's life while the patient acquiesces, is illegal throughout the U.S.
Autonomous adults have the right to govern their bodies freely, provided they respect the equal rights of others. Self-ownership includes the right to commit suicide. People have the right to request a physician's assistance to commit suicide. They also have the right to ask a physician to perform euthanasia. Assuming a physician has accurately informed a patient of the prognosis and the patient gave informed consent, the government should not block physicians from respecting the patient's request to end their life.
Active and passive euthanasia are grim exercises for physicians like me who decided to become doctors because we wanted to save lives. But our mission includes doing what we can to ease the physical and emotional pain accompanying illness. Treating illness and ending suffering are often in tension. In painful terminal illnesses, assisting patients to end their lives—end their suffering—can comport with the doctor's creed. Yet many doctors, including myself, might consider the act too objectionable to perform. They can refer such patients to doctors more willing to assist.
The governments in Belgium, the Netherlands, and a few other European countries don't block patients from exercising their right to end their lives and permit physicians to either assist patients or perform life-ending procedures. Similarly, since 2016, Canada has removed government obstacles to active and passive euthanasia, dubbing the practice "Medical Assistance in Dying" (MAID).
Yet there have been several reports of Canadian health care practitioners misusing MAID. In Canada's taxpayer-funded single-payer health system, scarce resources can influence clinicians' behavior. There are documented instances of physicians offering MAID to patients "as though it was one of many standard treatment options." There are confirmed cases of providers offering MAID to Canadian veterans with spinal cord injuries when they tried to get costly resources and care. A July 2023 report by Canadian researchers pointed to "significant gaps in public funding for pharmaceuticals, mental health counseling, and dental care…and long wait times for many publicly funded medical services and disability supports. Patients are therefore being guaranteed MAiD but not mental health care, palliative care, disability supports, and myriad other essential health services." At the peak of the COVID-19 pandemic, one Canadian woman with multiple disabilities but no terminal diagnoses sought MAID because "she simply cannot afford to keep on living."
The government monopoly on the health care system can create perverse incentives for physicians and caseworkers to promote euthanasia over chronic treatment and support.
Ironically, the Canadian government respects people's right to end their lives but not the right to seek health care from a provider outside of the government-run system.
Recently, Canada's Health Minister postponed plans to offer MAID for mental illnesses. The Netherlands has the most experience providing assisted suicide to people with mental health disorders, having done so since the 1990s. But it is much more challenging for health care practitioners to offer euthanasia for mental illnesses than for physical ailments. Even in the Netherlands, practice standards for euthanasia in people with mental illnesses remain controversial and evolving.
For one thing, suicidal ideation can be a symptom of a correctable problem. Should mental health professionals simply agree to end the lives of patients with suicidal ideation, or should they refuse unless the patient first agrees to treatment? And when can a mental health practitioner safely conclude that the mental health problem is irremediable?
Then, there is the matter of determining whether a patient's mental condition impairs decision-making capacity, making informed consent difficult, if not impossible.
There are many thorny medical, psychiatric, and ethical issues that the health professions still need to resolve if they want to be able to help people exercise their right to end their lives without experiencing moral conflict themselves. Lawmakers, too, need to explicitly protect the rights of patients seeking to end their lives and the health practitioners who assist them and establish clear legal boundaries around the issue. However, the principle remains: self-ownership includes the right to end one's life.
Jack Kevorkian died in June 2011 at the age of 83. He had kidney and respiratory failure, and, knowing his prognosis, he refused artificial attempts to prolong his life. His death was reportedly painless. He needed no assistance. In the 1980s and '90s, politicians and pundits often ridiculed him, and he was the subject of stand-up comics' jokes. Some called him "Dr. Death." Others called him "Jack the Dripper." History should remember him as a fighter for patient autonomy and a champion for the "right to die."
]]>
Dr. Jack Kevorkian leaves the courtroom after he was convicted of second degree murder in Oakland County Circuit Court, March 26, 1999.Steven Greenhuthttps://reason.com/people/steven-greenhut/sgreenhut@rstreet.orghttps://reason.com/?p=82613602024-01-11T23:04:57Z2024-01-12T13:00:21Z
Forty-five years ago last Sunday, Vietnamese troops seized Phnom Penh and ended Cambodia's 45-month reign of terror known as the "killing fields." Under the leadership of Pol Pot, the Khmer Rouge government implemented policies—forced labor, resettlements, torture, starvation—that led to the death of 1.7-to-3 million people, or at least 20 percent of the nation's population. The regime destroyed the country, caused untold suffering, and left permanent scars.
Painful as it is, we should not let these grim anniversaries go unremembered. For context, imagine a "political experiment" that obliterated our society and left a quarter of our 331-million population dead. It's inconceivable. As the son of a Nazi concentration camp survivor and grandson of peasants who fled Russian pogroms, I've always been fascinated by a simple question: What are the conditions that lead to such horrors?
The obvious answer is these horrors always are rooted in ideas, typically radical ones that try to implement some utopian vision. They typically are the work of governments. Large swaths of the population take part—some willingly, others by force. The Cambodian revolution wasn't spontaneous. Its leaders honed their philosophy while studying in Paris. And one usually finds intellectuals behind crazy notions. As the saying goes, "Ideas have consequences"—and they're often tragic.
Cambodia's leaders sought to create an idyllic and classless agrarian society, one that harkened to the Angkor Empire from the 800s. "They wanted all members of society to be rural agricultural workers rather than educated city dwellers, who the Khmer Rouge believed had been corrupted by western capitalist ideas," according to the Holocaust Memorial Day Trust. Their philosophy echoed Mao Zedong, whose efforts to remake China led to unimaginable horrors.
For half of my life, the Cold War and the threat of communism was an ever-present feature. Time moves on, so it's no surprise that fewer Americans remember the widespread fear that totalitarianism might dominate. Communist regimes at one point controlled 30 percent of the world's population. Despite this history, a shocking 2019 poll found more than a third of U.S. millennials approve of communism, with only 57 percent preferring the Declaration of Independence to the Communist Manifesto, according to a report in the Independent.
In 1999, the "Black Book of Communism" tried to detail the number of civilian deaths caused by the world's communist regimes—not deaths caused amid wars and civil strife, but direct massacres from the kind of policies so efficiently carried out in Cambodia. The authors came up with a figure of 100 million. These deaths don't tell the entire story of fear, slavery, and repression. It's simply unfathomable that any modern American could have a view of communist regimes that were any more favorable than the views most of us hold of Nazism.
Then again, ideological narratives grab hold of people in ways that are hard to understand. So many young leftists are nurtured in a university hothouse that divvies up humanity into fixed groups of "oppressor" and "oppressed." They learned to have an endless faith in the government's ability to reorder humanity. They probably haven't been taught about what happens when officials are given unlimited powers to launch a "Great Leap Forward," create "Year Zero" or design a "New Soviet Man."
That's too bad because the reason we live such free and prosperous lives is because we live within a system that limits the government's power to take our property, throw us in prison, depopulate cities, execute us, force us onto long marches and put us in re-education camps. History proves that many people—including those who claim to have the best intentions—would do horrific things if they had such powers at their disposal. We can even point to horrors in the history of our own country, of course.
What lessons can modern Americans draw from the Cambodian nightmare? I'd suggest we show no tolerance toward grandiose social experiments of any kind (such as radically reordering society to avert a supposed climate doom) and focus instead on incrementally improving life within our current system. People get excited about big, transformative ideas even though they can upend society, yet lose interest in the nuts-and-bolts of the slow-moving democratic process. The latter can be hard work, so no wonder political radicals prefer dangerous shortcuts.
Back in Cambodia, the devastation from the 1970s still permeates the nation's politics. After Pol Pot was deposed, the country fell into a civil war that lasted until the 1990s, with an apparently unrepentant Pol Pot finally dying in exile 1998. As Time reports, many former Khmer Rouge officials remain in power and the country "still grapples with Pol Pot's brutal legacy." Cambodia's population is young, so few remember the horrors—but it still casts a pall over everything.
For the rest of us, all we can do is remember, or as author Elie Wiesel said: "For the dead and the living, we must bear witness."
This column was first published in The Orange County Register.
]]>
The museum of the killing fields of the red Khmer or khmer rouge outside the city of Phnom Penh of Cambodia. Cambodia, Phnom PenhEmma Camphttps://reason.com/people/emma-camp/emma.camp@reason.comhttps://reason.com/?p=82613252024-01-11T20:03:45Z2024-01-11T20:03:45Z
Alabama is one step closer to carrying out the first execution by nitrogen hypoxia, an untested execution method that has attracted controversy since it was approved in the state in 2018.
On Wednesday, a federal judge ruled that the execution of 58-year-old Kenneth Eugene Smith could go forward later this month, dismissing arguments that the execution would make him a "test subject" in an unproven execution method. The move appears to be a last-ditch effort to halt Smith's death, as Smith's lawyers had previously fought to allow him to be executed by nitrogen hypoxia instead of lethal injection.
"There is simply not enough evidence to find with any degree of certainty or likelihood that execution by nitrogen hypoxia under the Protocol is substantially likely to cause Smith superadded pain short of death or a prolonged death," wrote Judge R. Austin Huffaker Jr. "It could, in a highly theoretical sense, but only if a cascade of unlikely events occurs. Or it may well be painless and quick. Execution by nitrogen hypoxia is novel."
Smith was sentenced to death for the 1988 murder-for-hire of Elizabeth Sennett. Smith and another man were convicted of taking $1,000 each from Sennett's husband to murder her. Smith's accomplice was executed in 2010.
In November 2022, Alabama tried to execute Smith by lethal injection but abandoned the attempt after prison officials were unable to successfully place an IV line by the midnight deadline. In response to Smith's failed execution and two other similarly failed and botched execution attempts, Republican Alabama Gov. Kay Ivey announced a temporary moratorium on executions in the state. However, the moratorium was lifted in February 2023 after an opaque internal investigation.
In the meantime, Smith and his lawyers argued that he should be able to choose execution by nitrogen hypoxia instead. While the method was approved by the Alabama Legislature in 2018, it has yet to be used to actually execute someone. In theory, the inmate would be placed in a gas chamber with a respirator-type mask on. The percentage of oxygen in the air flowing through the mask would be slowly replaced with more and more nitrogen, until the mask only produced nitrogen, suffocating the inmate.
After a significant legal fight, Smith won the right to be executed by nitrogen hypoxia in August 2023. However, with his execution date set, his lawyers reversed course in a last-minute attempt to save his life, arguing that the state's execution protocol is flawed and likely to lead to an extended, painful death.
"The evidence establishes that executing Mr. Smith by nitrogen hypoxia using the Protocol would subject him to a substantial risk of serious harm," Smith's lawyers wrote in December. "Specifically, ADOC's plan to deliver nitrogen gas to Mr. Smith through a mask that is placed over his face subjects him to a substantial risk that (1) oxygen will infiltrate the mask, which could leave Mr. Smith in a persistent vegetative stroke, cause him to have a stroke, or to experience the sensation of suffocation, and (2) he will asphyxiate on his own vomit."
However, this latest attempt seems unlikely to save Smith's life. Since ending its execution moratorium, Alabama has expressed particular zeal for executing death-row inmates—having killed twoinmates in the past six months.
]]>
Billy Binionhttps://reason.com/people/billy-binion/billy.binion@reason.comhttps://reason.com/?p=82541482023-11-07T22:38:13Z2023-11-07T22:22:29Z
BELTON, TEXAS—A man in small-town Texas is facing life in prison for allegedly killing a police officer. But the trial—which commenced Monday after a nearly decade-long wait—is a confluence of police use of force, the war on drugs, and the right to self-defense. Its outcome will in part answer the following question: How far does a self-defense claim go when it's exercised against the state?
At around 5:45 a.m. on May 9, 2014, a SWAT team in Killeen, Texas—consisting of about two dozen officers—descended on Marvin Guy's modest apartment on Circle M Drive. They were there to execute a no-knock drug raid, a controversial approach that allows law enforcement to forcibly enter a residence, usually with a fabulous display of force, without first announcing themselves. An informant had reportedly told police that Guy was dealing cocaine.
The raid did not go as planned.
Officers smashed Guy's bedroom window and attempted to breach the door with a battering ram. But something appeared to be lodged behind the door, preventing police from immediately gaining entry and leaving them clogged outside the residence. In the rapidly unfolding mayhem, Guy fired several shots outside of his broken window, allegedly hitting four officers. Police quickly fired over 40 rounds in return. One officer, Detective Charles Dinwiddie, died.
Guy was arrested and ultimately charged with one count of capital murder and three counts of attempted capital murder. But he says he believed the police to be intruders when he was awoken and disoriented early that morning. Witnesses for the prosecution yesterday described the neighborhood as one that was known for its high crime rate. Less than a week before the raid, someone broke into Guy's neighbor's residence across the street in similar fashion, forcing entry via a first-floor window and choking a female resident nearly to death.
A series of protracted delays—stemming from the COVID-19 pandemic, Guy's declining health, disputes over the district attorney's office releasing all the evidence, and a slew of defense attorneys either quitting or being fired—have lengthened Guy's stay at the county jail, where he has been held for almost a decade on $4 million bond. For years, the state sought the death penalty, which also slowed trial preparations, as proceedings with the ultimate punishment on the table take more time. Prosecutors withdrew that last year, instead opting to pursue life in prison, to speed the process.
The case is not the first to pit self-defense against no-knock raids. The tactic has come under intense scrutiny in recent years. In 2020, Breonna Taylor was killed by police during a similar raid after her boyfriend, Kenneth Walker, grabbed a firearm he legally owned and fired one shot at police, believing them to be intruders. (Police claim they announced themselves before breaking down Walker's door; Walker says he didn't hear them.) Charges against him were ultimately dismissed. In 2021, a Florida man went to trial facing three counts of first-degree attempted murder of a law enforcement officer after he shot at deputies during a 2017 drug raid targeting his father. The government also charged the defendant, Andrew Coffee IV, with murdering his girlfriend, Alteria Woods, who was shot and killed by police, as prosecutors posited that Woods died as a result of Coffee's actions. A jury acquitted him of those charges.
The topic is particularly relevant in Guy's case, as Texas has the Castle Doctrine, a legal principle grounded in the eponymous idea that someone's home is their castle. As such, they have no duty to retreat when they believe they're facing a deadly threat. An exception: It does not apply when the person in question is engaged in illegal activity. The Killeen Police Department (KPD) allegedly found traces of white powder in Guy's car, on the floor of his apartment, and in the trash, amounting to 1 gram of "suspected cocaine." He was not charged with a drug crime.
But even if the jury decides Guy is not entitled to protection via the Castle Doctrine, they could still find he acted in self-defense. The state, however, has a radically different theory: At trial yesterday, Bell County Assistant District Attorney Fred Burns laid the groundwork for the notion that the problems cascading from the raid weren't a result of Guy not having enough information. On the contrary—it's because he knew too much, Burns said.
That theory began to take shape during the testimony of David Daniels, a retired SWAT officer with KPD who was hit by a bullet during the raid. In this telling, Guy had barricaded the door to his apartment not because he was afraid of intruders but because he knew SWAT was coming and plotted to kill the police when they arrived. "We were ambushed," Daniels said. It was not yet clear how the state would prove Guy's clairvoyance about the department's plans.
The subject of no-knock raids has been a fraught one for KPD. The city recently reached a settlement with the family of a man who was killed during a 2019 raid. In 2021, the local council voted to ban the tactic. Unfortunately, that came too late here.
]]>
Peter Sudermanhttps://reason.com/people/peter-suderman/peter.suderman@reason.comhttps://reason.com/?p=82531142023-10-27T13:43:39Z2023-10-27T13:50:05Z
"The law is not your friend," a woman tells a young boy in Anatomy of a Fall, the excellent, tricky new thriller from French director Justine Triet. For if the law is your friend, then it is not someone else's friend. The law cannot take sides.
If the law is not your friend, in this conception, then neither is the movie. Although it is structured much like a conventional courtroom thriller, with a mysterious death, an investigation, a suspect, and, eventually, an extended trial, this movie—part legal drama, part murder mystery—is anything but conventional.
Rather, the movie, which won the top award at this year's Cannes Film Festival, is an exacting examination of the ways that truth, especially the sort of secondhand truth one finds in murder trials or stories about another person's marriage, can be impossible to pin down. Indeed, in its final moments, the movie suggests that even those who have experienced events directly themselves may not ever really be able to know what happened.
The film opens with a question: "What do you want to know?" A young grad student is visiting a half-finished French chalet, where she's interviewing Sandra (Sandra Hüller), a writer known for books that are part fiction, part autobiography. Sandra pushes back on the interview, suggesting that she gets to ask half the questions, even though she's the subject. From the beginning, the movie insists on counter-narrative, on giving weight to opposing points of view.
As the interview haltingly proceeds, loud music intrudes. It's her husband, Samuel, who is heard but not seen, repeatedly playing a steel drum cover of rapper 50 Cent's "P.I.M.P." in the background. Is he just playing loud music to keep himself company while he works in the attic? Or is he trying to disrupt the interview from afar? Meanwhile, Sandra and Samuel's son, Daniel, who is mostly blind, takes the family dog on a walk. The interviewer leaves as the music becomes too distracting; when Daniel returns, we see Samuel for the first time—lying dead on the snow outside their home.
The police eventually focus on Sandra, who claims to have been working and sleeping nearby as her husband died, as the prime suspect. What follows is an exceptionally tricky balancing act: Evidence is uncovered that suggests Sandra might have had reasons to murder her husband: regrets, insecurities, affairs, jealousy over professional success, and an angry, ranging argument caught on tape the day before Samuel's death. But with every revelation, Sandra's defense lawyer Vincent (Swann Arlaud) argues, with equal plausibility, that their marriage merely had ups and downs like any marriage. The movie is as much an investigation of a complex marriage as it is a possible murder. Could this unassuming, middle-class woman really have killed her partner, the father of her child?
There is a telling moment in the middle of the trial when the prosecution brings up a blood spatter expert to testify that Samuel's death must have come from an intentional blow to the head, delivered by another human, before his fall. The expert is clearly convinced of his interpretation and has video simulations to help prove it. It seems definitive, and it clearly tilts the case against Sandra. She must have done it.
A moment later, however, another blood spatter expert argues that it is all but impossible for the spatter to have been caused by a blow from a human. Samuel fell onto a shed, the second expert says, then bounced into the air, his body spinning, releasing blood in exactly the pattern discovered. It would have been nearly impossible for a human to have delivered the precise blow to make the spatter found. The second expert has test-dummy evidence and mock-up drawings to prove it. Sandra couldn't have done it.
So what does the blood spatter really tell us? What does any evidence actually reveal about the world?
The point is that even hard physical evidence is often subject to interpretation and secondhand reevaluation, and that two utterly opposing views, even from credentialed subject matter experts, can seem just as convincing. Although the movie, to its credit, doesn't wade into the broader cultural implications of this notion, it's not too hard to see it as a comment on the raging debates about trust, truth, and information ecosystems in Western media and politics.
As the trial hurtles toward its end, the movie doesn't just force viewers to weigh slippery, competing truths, it shows how difficult it can be to achieve certainty even when dealing with one's own firsthand experiences. After all, what are memories but personal records, inaccessible to anyone else, and subject to reevaluation and reinterpretation like any other piece of evidence? Truth is illusory, experts say. But one thing we can be sure of is that Anatomy of a Fall is a very, very good movie.
]]>
Emma Camphttps://reason.com/people/emma-camp/emma.camp@reason.comhttps://reason.com/?p=82470632023-08-30T18:01:03Z2023-08-29T19:49:54Z
Alabama wants to execute a man so badly that they're likely to become the first state in the nation to kill someone by nitrogen hypoxia.
Kenneth Eugene Smith, 58, who was sentenced to death for a 1988 murder-for-hire killing, has already survived one execution attempt from the state. Last November, he won a court case allowing him to demand to be executed specifically by nitrogen hypoxia, a method that has been approved in Alabama since 2018 but has remained untested.
Nonetheless, Alabama Attorney General Steve Marshall still asked the state Supreme Court to set an execution date for Smith last week, with plans to use the method.
While four states in addition to Alabama have approved execution by lethal gas, no one has been executed using this method since 1999. While 20th-century gas chambers typically killed inmates using cyanide gas, death by nitrogen hypoxia is a completely untested method. Under the proposed process, an inmate would be placed in a gas chamber, where they would be forced to breathe pure nitrogen, ultimately causing death by suffocation due to the lack of oxygen.
After long arguing that they should be allowed to kill Smith by lethal injection because the state had not yet developed a nitrogen hypoxia protocol, state officials unveiled a formal nitrogen hypoxia process in conjunction with their motion to set Smith's execution date. Under the process, the inmate will wear a mask, which will force them to breathe pure nitrogen gas "for 15 minutes, or five minutes following a flatline indication on the EKG, whichever is longer," resulting in death by suffocation.
Smith won the right to be executed by this method in a ruling from the U.S. Court of Appeals for the 11th Circuit last November. Smith argued that a lethal injection attempt would expose him to "an intolerable risk of torture, cruelty, or substantial pain," citing the state's previous botched executions.
The same day as the 11th Circuit's ruling, the U.S. Supreme Court lifted a stay of execution for Smith. Alabama officials attempted to kill him by lethal injection that day, but they abandoned their attempt after they tried unsuccessfully for several hours to place IV needles in Smith's arms.
While nitrogen hypoxia has been touted as a more humane method for killing death-row inmates—it's simply unknown how much suffering death by nitrogen hypoxia causes.
"It's not humane," Joel Zivot, an associate professor of anesthesiology and surgery at Emory University, told the Montgomery Advertiser last year. "It's not going to be euphoric. You know, it may be bloodless, but it won't be simple."
]]>
Kenneth Eugene SmithPaul Cassellhttps://reason.com/people/paul-cassell/https://reason.com/?post_type=volokh-post&p=82423792023-07-17T14:40:32Z2023-07-17T12:15:47Z
It is well known that there were significant spikes in homicides in 2020, particularly in major urban areas. In an article I published in 2021, I attributed these spikes to what I dubbed the "Minneapolis Effect"–specifically reductions in proactive policing as police pulled back in the wake of the George Floyd protests. I blogged about my article here.
A few days ago, an important new statistical study found corroboration for my hypothesis in New York City. Professor Dae-Young Kim's article "Did De-Policing Contribute to the 2020 Homicide Spikes?" answers the question posed in the title in the affirmative.
Professor Kim's article examines NYC homicide data from 2017 through 2020. It divides homicides into six different categories: gun, non-gun, domestic, non-domestic, gang, and non-gang. It assesses the connection between homicide rates in those categories and a significant reduction in NYPD police stops of pedestrians. In NYC, stops fell from 13,453 in 2019 to 8,375 in 2020–a 30% decrease in proactive policing.
Professor Kim's article found that the reduction in stops led to an increase in three homicide categories:
… the interaction term of police stops and the pandemic presents the extent to which the 2020 homicide surges were attributable to reduced proactive law enforcement. Specifically, gun, non-domestic, and gang homicides significantly increased as police stops decreased in the pandemic and post-Floyd era. In addition, the supplementary correlation analyses present a significant correlation of police stops to gun (r=−.406, p =.008), non-domestic (r=-.321, p=.041), and gang (r=−.364, p=.019) homicides, respectively, in the pandemic and post-Floyd era. In contrast, the significant correlations disappear in the pre-intervention era.
While the full article is behind a paywell, one can gain a quick sense of the strength of Professor Kim's analysis by looking at graphs depicting NYC police stops, total homicides, and the six homicide categories described above:
In the first of the eight charts above, the reader can see the dramatic reduction in police stops by NYPD following the George Floyd protests. In the remaining charts, the simultaneous significant increase in homicides in the gun, non-domestic, and gang categories (but non in non-gun, domestic, and non-gang categories) is visually evident.
The explanation Professor Kim gives for this pattern tracks the one that I gave in my paper on the "Minneapolis Effect"–specifically, that police stops are targetted at gun crimes and related gang activity, and thus a reduction in stops will produce the greatest increase in homicides in these specific categories. As Professor Kim puts it:
Pedestrian stops are used to stop and frisk anyone, but mostly known gang members, on the street they suspect might engage in criminal activity or carry concealed weapons. Given the goal of pedestrian stops, the effects of de-policing should be more pronounced on gun, non-domestic, and gang homicides that usually occur in public settings. The current findings echo Piza and Connealy's (2022) study in that the lack of policing caused crime increases, ultimately compromising public safety and endangering communities.
Professor Kim's findings support the conclusions that I reached in my paper on the "Minneapolis Effect" about the compelling need to increase proactive policing. Here is the conclusion from my earlier article:
The quantitative data and qualitative evidence strongly suggest that a "Minneapolis Effect" has struck—that is, in the wake of antipolice protests following George Floyd's death in Minneapolis, police officers are being redeployed from antigun efforts and are retreating from proactive law enforcement tactics. This reduction in law enforcement efforts targeted at firearm crimes has led, perhaps predictably, to an increase in firearm crimes.
This article attempts to quantify the size of the Minneapolis Effect, estimating that about 710 more homicides and 2,800 more shootings occurred because of reduced policing in June and July alone. And the victims of these crimes are disproportionately Black and Brown, often living in disadvantaged and low-income neighborhoods.
While these estimates are stated in the cold precision of an economic calculation, it must be remembered that behind these grim numbers lies a tremendous toll in human suffering—lives lost, futures destroyed, and families left grieving. Understanding the nation's recent—and ongoing—homicide spikes requires urgent attention. And even more urgently, the nation needs to consider all possible responses to this tragedy, including responses that involve increased and proactive law enforcement efforts directed at combating gun violence.
]]>
Charles Oliverhttps://reason.com/people/charles-oliver/https://reason.com/?p=82381622023-06-12T15:03:42Z2023-06-16T08:00:31Z
Kalamazoo County, Michigan, prosecutor Jeff Getting says he is dropping all charges against Jeff Titus, who spent almost 21 years in prison for killing two hunters. Titus's conviction was overturned after it was discovered that the prosecution had withheld evidence in the case. No physical evidence connected Titus to the killings, and he has always maintained his innocence. The killings happened in 1990, and police at that time cleared Titus. Different investigators reopened the case 12 years later and zeroed in on Titus. But they also looked at another suspect, Thomas Dillon, who pleaded guilty in 1993 to killing five people who were hunting, fishing, or jogging between 1989 and 1992. The presence of another suspect was withheld from the defense.
]]>
Billy Binionhttps://reason.com/people/billy-binion/billy.binion@reason.comhttps://reason.com/?p=82353242023-05-30T18:11:03Z2023-05-26T18:41:22Z
The national conversation around criminal justice feels uniquely polarized. That's quite the feat in an age where almost everything, it seems, is political. But the debate is dominated by fights between the extreme ends of the spectrum, obscuring some of the routine problems facing Americans and the relative consensus around how to solve those issues.
One such area of common ground: that people who violently and habitually violate other people's rights deserve to receive proportional responses for those offenses. The media obviously cannot, and should not, cover every single crime. But by consistently glossing over routine crime victims in favor of stories with more unorthodox circumstances, the national press paints a distorted picture of a very real problem.
Aréanah Preston's murder in Chicago provides an example of this media trend. Upon getting home from her shift as a police officer early on the morning of May 6, Preston, 24, was assailed by a group of men who'd allegedly spent the evening committing a string of armed robberies. Joseph Brooks, the 18-year-old who confessed to shooting Preston, had been arrested nine times since 2019 for armed robbery and carjacking, among other things. The remaining three suspects also have multiple previous arrests on a slew of serious charges, from armed robbery and carjacking to possession of a stolen vehicle and weapons offenses.
The point is not that Preston's story is special. The point is that it isn't special. It's commonplace, and that's the issue. But the Prestons of the world are far less likely to attract national attention, inspire news cycles, and spur debate. In some sense, we've subconsciously accepted that things like this happen to people like her in places like that.
There are many such stories. Here's another: In late March, Philip Meyers allegedly approached John Sarquiz from behind, sucker-punched him, and then kicked him multiple times in the head, killing him. Meyers—who had 17 prior arrests and a homicide conviction from 1999—took cash from Sarquiz and threw the wallet back on his dying body.
The odds are pretty high that you've never heard of Preston or Sarquiz. That's at least in part because stories like theirs rarely make it further than the tabloid or local press.
And yet, the subject of crime is not nearly as polarized as it appears. The inverse is true: More than three-fourths of Americans view violent crime as a major problem, according to a Politico/Morning Consult poll released in October. Since this debate is often portrayed along racial lines, it's worth looking at that too: In August 2020, at the height of racial justice protests after the murder of George Floyd, 81 percent of black Americans said they wanted the police presence in their area maintained or increased, according to a Gallup poll. When black residents in Detroit were surveyed on the most pressing issue in their communities, the top answer was public safety. These are the people who unfortunately experience the brunt of these injustices.
It's easy to deprioritize those like Preston and Sarquiz, however, when criminal justice is a culture war debate—as opposed to one grounded in policy, where, ideally, the system targets the small group of prolific offenders responsible for the majority of violent crime. Prioritizing these types of clear-cut offenses, which too often go unsolved, is part of the solution.
To put it more plainly: The choice is not between "backing the blue" no matter what or "abolishing the police," although those are often the solutions portrayed on cable news and Twitter. The voices behind them are interesting, and it's understandable why they draw attention. But those options do not reflect the reality of the public safety policy debate.
The tragic killing of Jordan Neely in New York City birthed a weekslong news cycle and offered pundits left and right the chance to confirm all of their ideological priors. It's not every day a homeless man, whose life mattered, is choked to death on a subway train. Meanwhile, Preston and Sarquiz's deaths were unsurprising. Their murders were somehow simultaneously appalling and mundane—which is all the more reason not to look away.
]]>
Aréanah Preston was days away from receiving her master's degree from Loyola University.Jacob Sullumhttps://reason.com/people/jacob-sullum/jsullum@reason.comhttps://reason.com/?p=82323392023-04-25T19:02:22Z2023-04-26T04:01:28Z
This month a Texas jury found Army Sgt. Daniel Perry guilty of murdering Garrett Foster, a protester he encountered at a Black Lives Matter demonstration in July 2020. Less than 24 hours after that verdict, Texas Gov. Greg Abbott said he would pardon Perry if asked.
Abbott's hasty announcement, which seemed to be driven by conservative complaints that Perry had been unjustly prosecuted for shooting Foster in self-defense, illustrates how political prejudices convert empirical questions into tests of team loyalty. That bipartisan tendency is the antithesis of what jurors are supposed to do when they are confronted by the clashing narratives of a criminal trial.
Abbott took it for granted that Perry's account of what happened the night he killed Foster was accurate. Texas has "one of the strongest" self-defense laws in the country, the governor wrote on Twitter, and that law "cannot be nullified by a jury or a progressive District Attorney."
Contrary to the implication, the jurors who convicted Perry did not ignore the state's self-defense law, which allows someone to use deadly force when he "reasonably believes" it is "immediately necessary" to protect himself against the "use or attempted use of unlawful deadly force." The jurors simply did not believe the circumstances of Foster's death met those requirements.
Perry, who was stationed at Fort Hood, was in Austin that night, working an Uber shift. He honked his horn as he turned right from Fourth Street onto Congress Avenue, where a crowd was marching in one of the many protests against police abuse inspired by the murder of George Floyd in Minneapolis the previous May.
Perry later told police he had no idea the protest was happening or what it was about. But protesters had been marching in Austin for weeks, and messages from Perry indicated that he took a keen interest in such demonstrations.
Those texts and social media posts also revealed that Perry was angry about the rioting that accompanied many of the protests. He had repeatedly discussed the circumstances that would justify using deadly force against protesters, at one point declaring that "I might have to kill a few people on my way to work."
The Austin protesters, who believed Perry had deliberately driven into the crowd, angrily gathered around his car, slapping and kicking it. Foster, who was legally carrying a semi-automatic AK-47 rifle on a sling, approached the driver's side, and Perry opened the window.
It is not clear exactly what Foster said to Perry. But within seconds, Perry grabbed a revolver he carried for self-protection (also legally) and shot Foster five times. "The guy pointed a freaking weapon at me and I panicked," Perry said when he called 911 after driving away.
Whether Foster had in fact pointed the rifle at Perry was a crucial question during the trial. His statements to police were the only evidence supporting that claim, which was contradicted by several witnesses.
The defense did not present any photos or video that "showed the position of Foster's rifle when he was shot," the Austin American-Statesmanreported. Perry did not testify, and prosecutors maintained that Foster never raised his rifle, arguing that Perry acted out of anger rather than a reasonable fear.
Messages and social media posts revealed after the trial reinforced that argument, underlining Perry's hostility toward Black Lives Matter. The movement "is racist to white people," he complained in one. "It is official I am racist because I do not agree with people acting like monkeys."
Even without that additional evidence, the jurors unanimously concluded that the prosecution had disproven Perry's self-defense claim beyond a reasonable doubt. Andrew Branca, an expert on the law of self-defense, thinks that conclusion was "legally sound" in light of the evidence.
Abbott apparently disagrees, but it's not clear why. In any case, he cannot act on his knee-jerk impulse without a recommendation from the Texas Board of Pardons and Paroles, which one hopes will give the matter more careful thought.
"Stand your ground" self-defense laws have been back in the news recently, although it is not clear why. That mystery highlights longstanding journalistic confusion on this subject, which misrepresents such laws as a license to kill anyone who looks at you cross-eyed.
"A string of recent shootings have put renewed attention on the self-defense laws often known as 'stand your ground' laws," NPR's Adrian Florido reports. "In the span of a week, 16-year-old Ralph Yarl was shot twice after ringing the doorbell of the wrong house in the state of Missouri as he was trying to pick up his siblings. In upstate New York, Kaylin Gillis was shot and killed after her boyfriend pulled into the wrong driveway as they searched for a friend's home. And in Texas, two cheerleaders were shot after one accidentally got into a car that she thought was her own."
Florido adds that "the shooters in these cases have not yet invoked their state's 'stand your ground' laws." There are good reasons for that.
The distinguishing feature of "stand your ground" laws is that they eliminate the duty to retreat for people confronted by threats of violence in public places. The shooting of Ralph Yarl did not happen in a public place; it happened on the doorstep of the man who shot him. The shooting of Kaylin Gillis likewise happened on the property of the man who killed her. New York, in any event, is not one of the 28 states with "stand your ground" laws. And as Reason's J.D. Tuccille notes, the Texas cheerleaders, Payton Washington and Heather Roth, "were chased by their assailants, which isn't self-defense by any understanding."
So why does NPR suggest that any of these defendants might successfully invoke a "stand your ground" defense? You got me.
A recent New York Timesarticle that begins by citing the shootings in Missouri and New York is equally hazy on the relevance of "stand your ground" laws. Reporter Adeel Hassan compounds the confusion by mentioning a Florida jury's 2013 acquittal of George Zimmerman, who was charged with second-degree murder and manslaughter after he shot 17-year-old Trayvon Martin.
Zimmerman argued that he reasonably feared for his life when Martin pinned him to the ground, punched him, and smacked his head against the pavement. That account was supported by physical evidence and witness testimony. Given those circumstances, the absence of a duty to retreat did not figure in Zimmerman's defense or in the verdict.
Politico reporter Brakkton Booker nevertheless asserts that Florida's "stand your ground" law was "central" to Zimmerman's trial. Booker also thinks the shooting of Ralph Yarl "has all the ingredients to revive the national debate over 'stand your ground' laws," although he never explains why.
Hassan at least correctly distinguishes between "the common-law 'castle doctrine'" and "stand your ground" laws. The castle doctrine says people have no duty to retreat when they are confronted by intruders in their own homes. "Stand your ground" laws, Hassan notes, "go further" because they "apply anyplace where a person has a legal right to be, not just at home." He cites Florida's law as an example.
Under Florida's self-defense statute, "a person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony." The law adds that "a person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be."
Texas has a similar law. It allows someone to use deadly force when he "reasonably believes" it is "immediately necessary" to protect himself against the "use or attempted use of unlawful deadly force." It adds that "a person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described by this section."
Note that both of those statutes, like self-defense laws generally, require that the fear justifying the use of force be reasonable in light of the circumstances. A Texas Tribunestory about Daniel Perry, who was convicted this month of murdering Garrett Foster, a protester he encountered at a 2020 Black Lives Matter march in Austin, elides that crucial point. Reporter William Melhado says "the case sparked debates over Texas' 'stand your ground' law, which allows people to use deadly force against someone else if they feel they are in danger."
As Perry discovered, a feeling is not enough. Perry argued that he reasonably believed shooting Foster was immediately necessary because Foster had aimed a rifle at him. That situation would justify the use of deadly force regardless of any general duty to retreat. But Perry's statements to police were the only evidence supporting his claim, which was contradicted by several witnesses. The prosecution maintained that Foster never raised his rifle, and the jury evidently agreed.
Left-leaning critics of "stand your ground" laws are not the only people promoting myths about what those laws entail. Texas Gov. Greg Abbott, who the day after Perry's conviction promised to pardon him if asked, also implied that the duty to retreat had something to do with the case. "Texas has one of the strongest 'stand your ground' laws of self-defense," he wrote on Twitter, and that law "cannot be nullified by a jury or a progressive District Attorney."
Contrary to Abbott's implication, Perry could have offered the same defense in a state without a "stand your ground" law. After Foster raised his rifle, Perry's lawyer told the jury, Perry "had two-tenths of second to figure out whether he was going to live or die." The jurors' rejection of Perry's defense hinged on their skepticism of that account, not on their belief that the shooting would have been unjustified even if Perry had actually raised his rifle.
Homicide defendants do sometimes invoke the absence of a duty to retreat in public places, although often implausibly and unsuccessfully, and there is a legitimate debate about whether that extension of self-defense law is fair and prudent. But that debate is muddied whenever news outlets bring up the controversy in contexts where it is plainly irrelevant.
]]>
Ralph YarlEmma Camphttps://reason.com/people/emma-camp/emma.camp@reason.comhttps://reason.com/?p=82319112023-04-21T17:54:18Z2023-04-21T17:54:18Z
Oklahoma death-row inmate Richard Glossip is facing another setback in his 25-year effort to prove his innocence. On Thursday, an Oklahoma appeals court upheld Glossip's murder conviction, despite a request from the state's attorney general filed earlier this month seeking to vacate Glossip's conviction and retry the case.
Richard Glossip was convicted for the 1997 murder of his boss, Barry Van Treese. However, no one asserts that Glossip killed Van Treese himself. Prosecutors asserted that Glossip, who had been working as the manager of a motel owned by Van Treese, had paid Justin Sneed, a 19-year-old maintenance man, to kill Van Treese.
The only direct evidence linking Glossip to the murder came from Sneed's testimony—testimony that he only agreed to give as part of a plea deal that allowed him to escape the death penalty for murdering Van Treese.
Glossip's conviction was overturned in 2001 when an appeals court thought "the evidence at trial tending to corroborate Sneed's testimony was extremely weak." But he was reconvicted and resentenced to death for the crime in 2004.
Giving more reason to doubt Sneed's testimony, in the years since Glossip's conviction, Sneed has left cryptic messages hinting that he possibly wished to recant his testimony against Glossip. In 2007, Sneed wrote to his lawyer about Glossip's case, "There are a lot of things right now that are eating at me. Somethings [sic] I need to clean up," adding that he was "going to try to contact the indigent defense over [Glossip's] case or the D.A.'s."
In the years since his conviction, Glossip has narrowly escaped execution several times, receiving four separate stays of execution and even being served three last meals. However, things started to look up for Glossip following the release of an independent investigation into his case in 2022. The report concluded that the state had deliberately destroyed evidence in Glossip's case, with investigators stating that they "uncovered additional evidence, never presented to the jury or to any court, that would likely have led to a different outcome in the case."
Following the release of this report and the conclusion of a separate independent investigation earlier this month, Oklahoma's Attorney General Gentner Drummond announced that he had filed a motion requesting an appeals court to overturn Glossip's conviction and seeking a new trial in the case.
"After thorough and serious deliberation, I have concluded that I cannot stand behind the murder conviction and death sentence of Richard Glossip," Drummond said in a statement on April 6. "I do not believe that justice is served by executing a man based on the testimony of a compromised witness."
However, this wasn't enough for Oklahoma's Court of Criminal Appeals. On Thursday, the court concluded that Glossip hadn't provided enough new evidence showing that he needed a new trial.
"This case has been thoroughly investigated and reviewed in numerous appeals. Glossip has been given unprecedented access to the prosecution files, including work product, yet he has not provided this Court with sufficient information that would convince this Court to overturn the jury's determination that he is guilty," wrote Judge David B. Lewis.
"For over 20 years, the facts, evidence, and law relating to this case have been reviewed in detail by judges and their staffs through every stage of appeal allowed under our Constitution," concurred Judge Gary L. Lumpkin. "At no level of review has a court determined error in the trial proceeding of this Petitioner nor has there been a showing of actual innocence."
Despite the ruling, Drummond quickly announced that he would nonetheless refuse to allow Glossip's execution—which is currently planned for May 18—to go forward. "While I respect the Court of Criminal Appeals' opinion, I am not willing to allow an execution to proceed despite so many doubts. Ensuring the integrity of the death penalty demands complete certainty," he wrote on Thursday. "I will thoroughly review the ruling and consider what steps should be taken to ensure justice."
While the case against Richard Glossip has always been deeply flawed, his decades of failed attempts to overturn his conviction—and his narrow brushes with death—show just how hard it can be to prove your innocence, even when your own state concludes that it has little evidence against you.
"It is unconscionable for the court to attempt to force the State to move forward with his execution," said Don Knight, Glossip's attorney, in a Thursday statement. "We cannot permit this longstanding injustice to go unchallenged and will be filing for review of this manifestly unjust ruling in the United States Supreme Court."
]]>
Emma Camphttps://reason.com/people/emma-camp/emma.camp@reason.comhttps://reason.com/?p=82301302023-04-07T17:59:45Z2023-04-07T17:59:45Z
Oklahoma's attorney general has filed a motion to overturn the capital murder conviction of Richard Glossip, who has spent almost 26 years on death row. The move comes after the release of a new report detailing considerable issues in the state's case against Glossip, concluding that he was "deprived of a fair trial."
Richard Glossip was convicted in 1998 for the murder of his boss, Barry Van Treese, the year prior. Another man, Justin Sneed, had confessed to the murder, but testified during Glossip's trial that he killed Van Treese in a murder-for-hire scheme set up by Glossip. In exchange for his testimony against Glossip, Sneed avoided the death penalty and received a life sentence.
Cracks in the case against Glossip—who has long claimed innocence—began to show soon after his conviction. In particular, Sneed's testimony against him was the only direct evidence tying Glossip to the murder.
In 2001, an Oklahoma court overturned Glossip's conviction, writing that "the evidence at trial tending to corroborate Sneed's testimony was extremely weak." However, in 2004, another jury yet again convicted Glossip of murder, sentencing him to death. Over the years, Glossip has received four separate stays of execution.
In 2021, a group of over 30 lawmakers requested an independent investigation into Glossip's case. When the 343-page report was released in 2022, it revealed that the state had intentionally destroyed evidence before Glossip's trial and "uncovered police contamination of the state's star witness, Justin Sneed, the actual killer, who implicated Glossip only after the detectives mentioned Glossip's name to Sneed six times during his interrogation." Most damning of all, the investigation "uncovered additional evidence, never presented to the jury or to any court, that would likely have led to a different outcome in the case in the estimation of the Reed Smith team."
On Thursday, Oklahoma Attorney General Gentner Drummond announced that he had filed a motion to vacate Glossip's conviction. The development comes just three days after the conclusion of another independent investigation into Glossip's case—this one ordered by Drummond himself in January.
"After thorough and serious deliberation, I have concluded that I cannot stand behind the murder conviction and death sentence of Richard Glossip," Drummond said in a Thursday press release. "This is not to say I believe he is innocent. However, it is critical that Oklahomans have absolute faith that the death penalty is administered fairly and with certainty. Considering everything I know about this case, I do not believe that justice is served by executing a man based on the testimony of a compromised witness."
The attorney general "confirms in his report what we have long known: Richard Glossip's conviction is unreliable and granting him a new trial is required," wrote Don Knight, Glossip's attorney, in a statement.
While this is a major victory for Glossip, his case should serve as a reminder of how often death row inmates are executed before their cases get the reexaminations they deserve.
]]>
Elizabeth Nolan Brownhttps://reason.com/people/elizabeth-nolan-brown/elizabeth.brown@reason.comhttps://reason.com/?p=82300662023-04-07T15:48:12Z2023-04-07T13:30:17Z
Police in Farmington, New Mexico, fatally shot a man while responding to a domestic disturbance call at the wrong house. The man killed lived across the street from the house police had been called to.
"On April 5, 2023, at around 11:30 p.m., the Farmington Police Department received a call for a domestic violence incident occurring at 5308 Valley View Avenue," according to the New Mexico State Police Investigations Bureau, which is now investigating the incident. "Once on scene, officers mistakenly approached 5305 Valley View Avenue instead of 5308 Valley View Avenue." Police knocked on the (wrong) door, no one answered, and "officers asked their dispatch to call the reporting party back and have them come to the front door."
As they started to leave, 52-year-old homeowner Robert Dotson opened his front door holding a handgun—not an entirely unreasonable thing for someone to do when they get a strange knock on their door late at night.
No one alleges that Dotson pointed the gun at the police officers or threatened them.
Nonetheless, "at this point in the encounter, officer(s) fired at least one round from their duty weapon(s) striking Mr. Dotson," the state police report. The Farmington officers did not even tell the man who answered the door to drop his weapon nor give him time to comply with their order before firing upon him, according to the statement from state police.
This would be an insane overreaction even if the police had been at the right house. That police weren't even at the right house of course makes the shooting all the more senseless.
Dotson was pronounced dead at the scene.
"Mr. Dotson was not the subject of the call that our officers were responding to, and this ending is just unbelievably tragic," Farmington Police Chief Steve Hebbe said in a video posted to Facebook. "I'm extremely sorry that we're in this position. We'll find more facts as we go through the investigation."
Police say they will release body camera footage of the incident within a week.
People claiming to know Dotson reacted in disbelief and anger to Hebbe's Facebook announcement. "This was a good man. He had two kids in the home he was protecting. I hope they all are fired," posted RJ Brown. Another commenter responded, "Fired? They need prison time. No mercy."
"What a terrible loss to our community," posted Gregg Tradup. "He was a good man who worked hard to provide for his family and was a genuine great guy. All he was doing was what anyone of us would do when someone knocks on our door at that time of night."
FREE MINDS
Los Angeles sues journalist over photos of police officers. In response to a public records request from journalist Ben Camacho, the Los Angeles Police Department (LAPD) sent Camacho photos of undercover officers. Camacho gave the images to the Stop LAPD Spying Coalition, which published them on its website. But—whoops!—the LAPD now says it didn't mean to send the photos. So the city is suing Camacho and the Stop LAPD Spying Coalition to get them back. "The City seeks the return of these inadvertently produced photos to protect the lives and work of these undercover officers," city lawyers wrote.
"Susan Seager, an attorney for Camacho, said in a written statement that her client 'will fight the City's effort to censor his journalism about police, which is a matter of paramount concern,'" reports the Los Angeles Times:
Legal experts uniformly rejected the lawsuit as baseless and ripe for dismissal under the 1st Amendment and other well-established legal protections for journalists.
"This is a Hail Mary, desperation play by the city," said David Loy, legal director of the California First Amendment Coalition.
"The city is on very weak legal grounds," said Erwin Chemerinsky, dean of the UC Berkeley School of Law.
"This isn't even a close call," said Ken Paulson, former editor in chief of USA Today and now director of the Free Speech Center at Middle Tennessee State University.
IRS releases plans for $80 billion funding windfall. The IRS has released a plan for what it will do with the influx of cash it's getting as part of President Joe Biden's economic agenda. Joe Bishop-Henchman, executive vice president of the National Taxpayers Union Foundation, analyzes the plan in this Twitter thread, noting that it gives much more money to the IRS' enforcement arm than to taxpayer services and that it's short on specifics about how it will achieve a lot of taxpayer services goals.
Taxpayer services may be goal 1 and 2 but only gets a few billion dollars; enforcement gets $45 billion pic.twitter.com/eaDpTYKdDK
"The $80 billion is the largest single infusion of funds in the agency's history and was included in the Inflation Reduction Act, the sweeping climate and energy legislation that Democrats pushed through last year," notesThe New York Times.
"The I.R.S. plan repeatedly emphasizes that it will honor [Treasury Secretary Janet] Yellen's directive that the new money not be aimed at increasing audit rates for taxpayers who earn less than $400,000 a year," the Times points out. "The plan echoes Ms. Yellen's assurance that those audit rates will not rise above 'historical levels,' but does not specify the levels, suggesting that audit rates could rise above their existing levels."
QUICK HITS
• The Treasury Department is trying to lay the groundwork for greater regulation of cryptocurrency by citing concerns about (what else?) national security. A new report "sketches out how the Treasury Department plans to bring the market under greater federal oversight, suggesting that platforms that fail to establish sufficient vetting policies risk enforcement action," TheWall Street Journalreports.
• The U.S. Supreme Court won't intervene to immediately stop a 12-year-old transgender girl in West Virginia from competing as part of the girl's track team at her middle school. The girl's "case was the Supreme Court's first examination of restrictions on transgender athletes, and it came on an emergency application from the state," notesThe Washington Post. The decision not to get involved leaves intact a lower court's order pausing enforcement of a state law defining eligibility for sex-specific sports teams to "be based solely on the individual's reproductive biology and genetics at birth."
• TikTok's parent company, ByteDance, is introducing a new social media app in the United States. Called Lemon8, it's "a photo-based app that resembles a mixture of Instagram and Pinterest, and is sprinkled with videos that look like the ones posted on TikTok," notes the Associated Press.
• Members of a federal board in charge of reviewing exterior changes to homes and businesses in D.C.'s Georgetown Historic District "unanimously voted Thursday to deny a Georgetown University neuroscientist's request to keep a pair of massive Transformers sculptures posted outside his historic rowhouse in the neighborhood."
]]>
Billy Binionhttps://reason.com/people/billy-binion/billy.binion@reason.comhttps://reason.com/?p=82297342023-04-05T21:40:51Z2023-04-05T18:16:28Z
Lakeith Smith has been behind bars since he was 15 years old. He will be there for quite a while longer, having been convicted of murder in 2018. The catch: Prosecutors are certain he didn't kill anyone.
In February 2015, Smith and a group of teens carried out a series of daytime burglaries in Millbrook, Alabama, when residents weren't home. They were primarily looking for gaming systems. A neighbor phoned police when she noticed a car arrive at one house where she knew the owner to be out of town on business.
Law enforcement arrived shortly thereafter; one officer entered the home via the front door. His body camera was off, so the events immediately following remain somewhat unclear. But according to the government, at some point, a 16-year-old boy named A'Donte Washington shot at police. Washington then exited the home and darted out from the backyard fence, with a gun, at which point a different officer—whose body camera footage can be seen here—shot and killed him.
Prosecutors then charged Smith, along with three other teens who took part in the burglary, with Washington's murder.
That may sound upside-down. But under the felony murder rule, defendants can be prosecuted for the death of someone they didn't actually kill if that death occurs during the commission of other various felonies. Under Alabama's statute, those crimes include first-degree escape, robbery in any degree, and first- or second-degree burglary.
In other words, because Smith and his friends were present at the burglary, it is as if they all pulled the trigger and killed their friend. Smith was subsequently tried as an adult and sentenced to 65 years in prison: 30 years for murder, 15 years for burglary, and 10 years apiece for two theft convictions. (It was later reduced to 55 years.)
Part of that severity was a result of him exercising his Sixth Amendment right to a jury trial; the other boys accepted plea deals for far less prison time. Two of them, who are a year older than Smith, served 14 months. Even the original prosecutor on the case, C.J. Robinson, supported a resentencing hearing for Smith.
He got one last week. Judge Sibley Reynolds of the 19th Circuit allowed the sentences to run concurrently instead of consecutively, so Smith's punishment is the now the sentence he received for his murder conviction: 30 years.
Most states have some version of the felony murder rule. It's a little-known law that allows for broad application. Yet even with that wide berth and discretion, Smith's conviction may initially appear at odds with the text of Alabama's statute, which says that such charges may be brought if a person who participated in the underlying felony "causes the death of any person" and did so "in the course of and in furtherance of the crime that he/she [was] committing." Put differently, unless the government were to argue that the cop who shot Washington was an accomplice to the burglary and that he pulled the trigger as a part of carrying out that crime, then it would seem in contention with the law's intent.
But Alabama's Court of Criminal Appeals expanded the interpretation of its felony murder rule in a 2009 ruling, which set the scene for later convictions. That case, Witherspoon v. State of Alabama, centered around a duo who attempted to carry out an armed robbery at a gas station and who were promptly stopped by a store clerk with a gun. The cashier shot one of the robbers, Eric Baggett, who died. Baggett's co-conspirator, Jamie Marcus Witherspoon, was subsequently convicted of murdering him.
On appeal, Witherspoon argued that he couldn't have killed Baggett in the eyes of the law because, as the statute says, the clerk was not a part of the robbery. Had one of the robbers caused the death of, say, a customer, then felony murder charges would be fair game. But that wasn't the case.
In response, the court made a "logical leap," says Christine Field, an instructor of criminology and criminal justice at the University of Alabama. "The State established that Baggett would not have been killed but for the actions of Witherspoon and Baggett, who were participants in the robbery," wrote Justice Kelli Wise. "Because the actions of the participants in the robbery caused Baggett's death, Witherspoon was properly convicted of felony-murder." In other words, Witherspoon murdered Baggett by agreeing to rob the store with him.
"It's kind of bizarre the way that this went," Field tells Reason. "A plain reading [of the law] would appear to say…they're not talking about police or victims" killing someone who is committing a criminal act. That's especially true when considering the statute's second prong: "in the course of and in furtherance of the crime." Was the store clerk who shot Baggett furthering the robbery? Was the officer who shot Washington furthering the burglary?
The answer is obviously "no." But the decision in Witherspoon ruled solely on the "cause" prong and declined to address the furtherance piece altogether. That ambiguity has allowed prosecutors to continue pursuing charges against people like Lakeith Smith for breaking a law that it would appear they did not technically break.
"Right now, he's done about eight years in prison, and he didn't kill anyone," says Leroy Maxwell Jr., who represented Smith in his recent resentencing hearing. "The felony murder rule here in our state has sort of gone rogue."
It is not the only time where the rule has been used in puzzling ways. Last year, Vicky White, a correctional officer in Alabama, helped Casey White, a prisoner (with no relation), escape from the Lauderdale County Jail. When the police closed in on them, Vicky White killed herself. So the state turned around and charged Casey White with murdering her, because the two had committed a felony when they went on the run. This despite the fact that she shot herself in the head.
Alabama is also far from the only state with such prosecutions. In May of 2020, deputies with the Bonneville County Sheriff's Department in Idaho responded to a single-vehicle crash and a potential mental health crisis, as a woman named Jenna Holm was found standing in a dark, rural road with a machete. One of the responding officers had interacted with Holm a few days prior while she received help at the Behavioral Health Crisis Center in Idaho Falls. That officer ultimately tased Holm multiple times, subduing her.
Afterward, another officer, Deputy Wyatt Maser, crossed the street to handcuff Holm—at which point Sergeant Randy Flegel careened onto the scene in his patrol car, striking and killing Maser in the street.
She would go on to sit in jail for well over a year, awaiting trial on charges that she technically killed a man who died as she lay on the ground after having been repeatedly tased. But a judge ultimately threw out the charge—for the same reason that Smith's conviction may look odd: Maser was not killed by an agent of the underlying crime. (The offense, in this case, was Holm wielding a machete menacingly.)
Had Holm experienced her mental health crisis with an accomplice, and had that accomplice directly caused Maser's death, then the government could have proceeded. But Flegel—who is beyond a doubt the one who drove into Maser and killed him—was quite clearly not in cahoots with Holm. (An internal investigation, which the government attempted to conceal, concluded that the officers neglected to follow a slew of roadside safety protocols that evening, ultimately leading to Maser's demise.)
Holm's and Smith's similar cases and contrasting outcomes serve as somewhat of a microcosm for the debate that states across the country have had, and continue to have, about how to properly implement a felony murder rule without resulting in cases that border on parody. Idaho officially adopts what is known as the agency theory—where prosecutors cannot bring such charges against someone unless the death in question was caused by a participant in the related felony. But because of Alabama's decision in Witherspoon, that state employs the "proximate cause" theory, which makes no such specification and allows for prosecutions like Smith's.
"It was not corrected by the Legislature," adds Field.
In that vein, felony murder laws across the country have been the subject of intense scrutiny and amendment in recent years. Illinois, for example, recently reformed its law to follow the agency framework and made it so prosecutions like Smith's aren't possible. (Richly ironic is that Illinois' original felony-murder interpretation, prior to that reform, was cited by Alabama's Court of Criminal Appeals when it issued that fateful opinion in Witherspoon.) But another problem remains in places like Alabama: Such charges are treated on par with first-degree murder, which is defined by its intent to kill. Felony murder, on the other hand, is defined by the opposite. There is no intent.
Yet people convicted of felony murder still face the same ramifications. "You could charge someone with felony murder, but they shouldn't be sentenced on the same level as intentional murder, intentional rape, intentional sodomy, those sort of crimes," says Maxwell. "Lakeith [had] no intent to kill anyone, did not pull a trigger to kill anyone. However, he was punished on the same level as intentional murder, which carries in his situation 20 [years] to life in prison. So I think that right there is a major component that needs to be addressed."
It's not exactly a controversial proposal under our legal system, which already establishes gradations for murder based on aggravating factors—like intent. There's first-degree murder (a premeditated killing), second-degree murder (a crime of passion), and manslaughter (an unlawful killing without intent). The government agrees that felony murder is arguably most like door No. 3. And yet, in some states, it's punished as if it's the same as door No.1.
"I come from a background where I was taught that words mean things," says Field. "This is bananas."
]]>
A police officer shoots A'Donte WashingtonCharles Oliverhttps://reason.com/people/charles-oliver/https://reason.com/?p=82275492023-03-20T16:16:54Z2023-03-24T08:00:04Z
The body of Adam "A.J." Blackstock was found in the storage area of his SUV, which was parked at a Kansas City police station. It had been towed there after his family did not hear from him and tracked the vehicle down through a GPS device to a stranger's home, where it was covered with a tarp. The homeowner said it belonged to her uncle and gave the police the number of a man who said it was his. But Blackstock's father showed the insurance was in his name, and police convinced the homeowner to allow them to tow it. As the vehicle was being moved, they noticed a bottle of cleaning fluid on the ground next to it, an apparent bullet hole in the driver's seat, and what appeared to be blood on the floorboard. But they did not search it at that time. Police department policy calls for all vehicles to be searched before they are towed.
]]>
Emma Camphttps://reason.com/people/emma-camp/emma.camp@reason.comhttps://reason.com/?p=82275812023-03-20T19:36:03Z2023-03-20T19:36:03Z
Earlier this month, a Virginia man was killed when police officers and hospital employees "smothered" him to death. Now, the officers and medical workers involved in the killing have been charged with second-degree murder. Seven Henrico County sheriffs' deputies face charges for their involvement in the man's death.
"The family is truly grief-stricken after learning of the brutal nature of Irvo's death and his inhumane treatment in the hours preceding his death," a lawyer for the victim's family told NBC News. "The public, and experienced mental health professionals alike, will be appalled when the facts of this case are fully made known."
According to a statement from Henrico County police, 28-year-old Irvo Otieno was arrested earlier this month after police responded to a breaking and entering call. Otieno was believed to be a potential suspect in the crime and police arrested him and placed him under an "emergency custody order," which is used in cases of severe mental illness. According to police, Otieno was first taken to Parham Doctors' Hospital, where he became "physically assaultive towards officers." At this point, he was instead taken to a county jail, where he was booked on charges of assault on a law enforcement officer, disorderly conduct in a hospital, and vandalism.
Three days later, on March 6, he was taken to a state mental health facility. According to CNN, the officers eventually began to physically restrain Otieno during the intake process. Even though Otieno was already in handcuffs and leg irons, a total of seven officers and three hospital employees piled on top of him. At one point, at least 10 people were on top of Otieno, and he died of asphyxiation after being pinned on the ground for 12 minutes.
"Twelve minutes of him being splayed out on the ground," Dinwiddie, Virginia, prosecutor Ann Baskervill said. "It's just cruel and a demonstration of power that is unlawful — I mean, it killed him. They smothered him."
On March 16, the seven deputies involved in the killing were arrested and charged with second-degree murder. Three hospital workers were also arrested and charged. The union representing Henrico County police released a statement, writing that, "Policing in America today is difficult, made even more so by the possibility of being criminally charged while performing their duty," adding that "the death of Mr. Otieno was tragic, and we express our condolences to his family. We also stand behind the seven accused deputies now charged with murder."
While body camera footage of Otieno's death has not yet been made public, prosecutors announced they would release the footage this week. Both Otieno's family and their lawyers have seen the footage. "What we just viewed on the videos … was a commentary on how inhumane law enforcement officials treat people who are having a mental health crisis as criminals, rather than treating them as people who are in need of help," civil rights attorney Ben Crump said during a press conference last week. "It was inhumane."
"What I saw today was heartbreaking," said Caroline Ouko, Otieno's mother, during the press conference. "It was disturbing, it was traumatic. My son was tortured, to put it right. I saw the torture."
]]>
Elizabeth Nolan Brownhttps://reason.com/people/elizabeth-nolan-brown/elizabeth.brown@reason.comhttps://reason.com/?p=82267862023-03-15T15:58:15Z2023-03-15T13:34:06Z
Abortion "death penalty" bill doesn't mention the death penalty. More than 20 South Carolina lawmakers are proposing the death penalty for women who get abortions, according to a slew of major media reports making the rounds this week. But the truth—while still very bad—is not quite as disturbing as these articles suggest.
The proposal in question is a bill called the Prenatal Equal Protection Act (H. 3549). It was sponsored by Rep. Rob Harris (R–Spartanburg) and attracted 21 co-sponsors as of March 2—although six of these co-sponsors have removed their names from the bill this week.
The gist of the bill is defining personhood to begin at fertilization. From a legal perspective, this is, quite frankly, bonkers on many levels. People cannot even tell they are pregnant until weeks after fertilization. And the majority of fertilized eggs do not go on to become viable pregnancies; somewhere between 10 and 40 percent will die before even being implanted in a woman's uterus, and upwards of 50 percent may eventually be miscarried. Legally defining personhood as beginning at conception creates all sorts of thorny issues, from the serious (should the state start investigating all miscarriages as potential homicides?) to the odd (can a pregnant woman legally drive in a carpool lane?).
But the idea that personhood begins at conception is not a totally fringe idea: fetal personhood laws have been considered in a number of states and passed in five (Alabama, Arizona, Georgia, Kansas and Missouri). And implicit in this concept is the idea that all laws applying to me and you—including laws against assault and murder—would equally apply to all "unborn persons."
That's what South Carolina's proposed Prenatal Equal Protection Act would make explicit. It would amend the sections of the state code related to murder and assault to say that the term person "includes an unborn child at every stage of development from fertilization until birth." This change would mean that women who get abortions could be charged with homicide, and women who injure a fetus in some way could be charged with assault.
This is a terrible idea—perhaps especially the second part, which would not just affect people who get abortions but anyone who acted in a way that could possibly injure a fetus. It's the type of laws that could lead to increased surveillance, restrictions on, and criminalization of pregnant women across the board. And for women who did attempt an abortion in South Carolina, it could mean prosecution as a murderer.
The bill contains provisions stating that "where the victim is an unborn child and the defendant is the child's mother, it is a defense to prosecution under this article that the mother engaged in the proscribed conduct because she was compelled to do so by the threat of imminent death or great bodily injury," and that "medical care or treatment provided with the requisite consent by a licensed physician to avert the death of a pregnant woman that results in the accidental or unintentional injury or death of her unborn child when all reasonable alternatives to save the life of the unborn child were attempted or none were available does not constitute a violation of this article." Nonetheless, the severe penalties attached to the death of a fertilized egg, embryo, or fetus could make it much harder for pregnant women whose life or health is at risk to get the care they need. And it may make medical professionals slower to take action in situations when a pregnant woman's health is compromised if it puts the fetus at risk.
All of this is bad enough without exaggerating the stakes or the motivations of lawmakers, which seems to be exactly what many in the media have been doing this week by implying that killing women who abort is the bill's intent.
Nowhere in its text does the Prenatal Equal Protection mention the death penalty. And as far as I can tell, none of the sponsoring lawmakers have opined that women who get abortions should be put to death. In fact, Rep. Harris explicitly said that killing women who get abortions was not the bill's intent.
Now, this may be cold comfort, considering it is possible that the law could lead to the death penalty for women who get abortions. The death penalty is one possible punishment for people who plead guilty to or are convicted of murder, and that's certainly worth mentioning in coverage of the Prenatal Equal Protection Act. But there's nothing in the code saying that people convicted of murder must or necessarily should receive the death penalty. And—call me naive, but—I find it unlikely that the state would pursue it in abortion cases, or that courts would uphold this penalty if it tried.
Even without involving the death penalty, people found guilty of murdering fertilized eggs or fetuses could still face extremely severe consequences under the Prenatal Equal Protection Act. The mandatory minimum term of imprisonment for murder in South Carolina is 30 years.
South Carolina Republicans want at least 30 years imprisonment for women who get abortions is certainly a terrifying proposition in and of itself.
People are right to be sounding the alarm—loudly—about this bill and the lawmakers who support it. But exaggerating their motives and the bill's likely outcomes only gives South Carolina Republicans and other abortion opponents room to suggest that they're being misrepresented, that the press is being sensationalistic, etc.…and room for casual observers to conclude that the bill really isn't that bad and they shouldn't trust anything the media says about it. Ultimately, it could detract from serious discussion about the bill's implications and opposition to it.
FREE MINDS
Low-flying helicopter during 2020 protest "constituted assault, battery, and intentional infliction of emotional distress under D.C. law," alleges lawsuit. "The American Civil Liberties Union has filed a lawsuit against the D.C. National Guard for its use of military-grade helicopters on local protesters during 2020's demonstrations against police brutality," reportsDCist. "The D.C. ACLU filed the suit on behalf of 25-year-old Dzhuliya Dashtamirova, a protester who said she incurred injuries from the Guard's low-flying tactics on June 1, 2020, which blew dirt, glass, and debris into the air." (Here's my dispatch from that protest, where I was nearly hit by a big plank of wood the low-flying helicopter sent flying.)
FREE MARKETS
Meta says Facebook and Instagram will stop allowing people to post news content in Canada if the Online News Act passes. The Online News Act would require social media companies and search engines to pay publishers for links to news. Meta spokesperson Lisa Laventure "says paying for these posts is neither sustainable nor workable for Meta," reportsThe Canadian Press:
Tech giants like Meta and Google have fought against the proposed law known as Bill C-18, which would require digital giants such as Google to negotiate deals that would compensate Canadian media companies for linking to or repurposing their content online.
Large Canadian media companies and the federal Liberal government argue the bill would level the playing field for news outlets that compete with tech giants for advertising dollars.
Facebook blocked access to news in Australia after a similar law was discussed in 2021, but quickly backtracked after the government made changes to an arbitration mechanism in the bill.
U.S. lawmakers have not outright proposed a "link tax" like this, but they do want to make it easier for publishers to demand such compensation. But if Meta's responses in Canada and Australia (and common sense) are any indication, tech companies would rather scrap news links than pay for them—depriving consumers of an easily accessible source of information and news outlets of the web traffic that search engines and social media drive.
QUICK HITS
• "A man who has served more than 34 years of a 400-year prison sentence has been released after the state of Florida reinvestigated the case and determined he did not commit armed robbery," reports ABC News.
]]>
Joe Lancasterhttps://reason.com/people/joe-lancaster/joe.lancaster@reason.comhttps://reason.com/?p=82257642023-03-09T00:12:35Z2023-03-08T21:20:07Z
In November 2021, 15-year-old Ethan Crumbley killed four fellow students at his Michigan high school with a gun his father bought him as an early Christmas present. Prosecutors charged Crumbley with murder, assault, and terrorism, to which he pleaded guilty.
Prosecutors also charged his parents, James and Jennifer Crumbley, with four counts of involuntary manslaughter. This week, Michigan's Third District Court of Appeals heard arguments on whether the Crumbleys can be charged for their son's actions.
Prosecutors say that the school warned the Crumbleys about their son's behavior. The day before the shooting, a teacher noticed Ethan searching for ammunition on his cell phone and notified his mother, who later texted him, "Lol. I'm not mad at you. You have to learn not to get caught."
The next day, the Crumbleys were called to the school just hours before the shooting. A teacher spotted a note on Crumbley's desk featuring a drawing of a pistol and the words, "the thoughts won't stop, help me." It also featured a bullet, a gunshot victim, and the words "blood everywhere." Crumbley told school officials the drawings were for a video game he was designing.
The school asked Crumbley's parents to take him home for the day, but they refused, and he returned to class. Neither his parents nor the school knew Crumbley had brought the pistol from home in his backpack. Ethan later attested the gun was not locked up on the day of the shooting.
In this week's hearing, Judge Christopher Yates said there were "warning signs all over the place" regarding Crumbley's conduct. Mariell Lehman, an attorney for James Crumbley, contended that he "had no knowledge" of what his son was planning, prompting Judge Michael Riordan to interject, "He was called over to the school that day, wasn't he?… He had knowledge then." When Lehman countered that her client only had knowledge "that there was a drawing," not that his son had violent plans, Riordan asked, "It's certainly a warning signal, wouldn't you say?"
The Crumbleys clearly missed some signs about their son, but that doesn't mean they violated the law. As Reason's Jacob Sullum wrote in December 2021, "While 16 states have laws authorizing prosecution of adults who intentionally or carelessly give minors unsupervised access to guns, Michigan is not one of them." Nor does Michigan have laws requiring the "secure storage" of firearms. Arguing involuntary manslaughter could just be a way for prosecutors to get around the inconvenient fact that Michigan's legislature has not passed a law that would allow them to prosecute the Crumbleys for criminal negligence.
Oakland County prosecutor Joseph Shada also argued that when asked by the school to take their son home for the day, the Crumbleys refused. But according to Superintendent Tim Throne's letter to parents,school officials had not deemed Ethan a threat. He spent an hour and a half sitting in a counselor's office waiting for his parents to arrive. During that time, "the student verbalized his concern he would be missing homework assignments and requested his science homework, which he then worked on while in the office. At no time did counselors believe the student might harm others based on his behavior, responses and demeanor, which appeared calm."
Per Throne's letter, the meeting concluded with school officials telling Ethan's parents "that they had 48 hours to seek counseling for their child or the school would contact Child Protective Services. When the parents were asked to take their son home for the day, they flatly refused and left without their son, apparently to return to work." But as Throne notes in the very following sentence, "Given the fact that the child had no prior disciplinary infractions, the decision was made he would be returned to the classroom rather than sent home to an empty house."
Given that they had to return to work, this may have also been the Crumbleys' thought. Since firearm suicides among young people are at a 20-year high and school shootings remain statistically rare, it would have been perfectly logical for the Crumbleys to assume that if their son were truly disturbed, he would be safer in a classroom than at home in an empty house with a gun.
"Charging the parents of a shooter is rare and, frankly, it should be," Shada told the judges. "It should be reserved for an egregious set of circumstances, an extreme set of facts." The facts here don't support criminal prosecution.
]]>
Elizabeth Nolan Brownhttps://reason.com/people/elizabeth-nolan-brown/elizabeth.brown@reason.comhttps://reason.com/?p=82206082023-01-27T15:13:59Z2023-01-27T14:30:01Z
Five Memphis cops involved in the killing of Tyre Nichols have been indicted on charges that include kidnapping and murder. Nichols died after being pulled over for a traffic stop on January 7.
"A confrontation occurred," Nichols fled on foot, and then "another confrontation occurred," police said. He was taken to the hospital, where he died three days later.
In typical law enforcement speak, the Memphis Police Department characterized the 29-year-old's death as resulting from injuries sustained during a "use-of-force incident with officers."
Authorities will release body camera footage of that incident this evening, according to Shelby County District Attorney Steve Mulroy. And you can tell it will be bad by the fact that officials are already pleading with people not to riot.
"Officials in Memphis have braced for potential civil unrest and have called for peaceful protests ahead of video of the fatal police encounter that's expected to be publicly released Friday," reports CNN. "The local school district also canceled all after-school activities Friday in the 'interest of public safety.'"
President Joe Biden also issued a statement yesterday. "I join Tyre's family in calling for peaceful protest," said Biden. "Outrage is understandable, but violence is never acceptable."
(The satirical newspaper The Onionsums it up as "Police Urge Calm In Light Of Unspeakable Evil They Committed.")
The five officers charged in conjunction with Nichols' death—all now fired from the Memphis Police Department—are Tadarrius Bean, Demetrius Haley, Justin Smith, Emmitt Martin III, and Desmond Mills Jr. They have each been charged with one count of second-degree murder, one count of aggravated assault–acting in concert, two counts of aggravated kidnapping, two counts of official misconduct, and one count of official oppression.
All five officers are black, as was Nichols—highlighting how the culture of U.S. policing, not just racism, contributes to America's abysmal police brutality problem.
since this will come up a lot in media coverage of Tyre Nichols in Memphis: while I get that it seems narratively significant that the officers are black. Statistically, it is unsurprising. In tracking police violence, we never found that race of the officer made much difference
The body camera footage "cuts in as the first encounter is in progress," Mulroy told CNN on Thursday. "What struck me (about the video) is how many different incidents of unwarranted force occurred sporadically by different individuals over a long period of time."
Tennessee Bureau of Investigation Director David Rausch said he was "sickened" by what he saw in the video, calling it "absolutely appalling."
Antonio Romanucci, an attorney for Nichols' family, said Nichols "was defenseless the entire time. He was a human piñata for those police officers.…Not only was it violent, it was savage."
FREE MINDS
Judge issues preliminary injunction against California's COVID-19 censorship law. A federal judge has temporarily halted the implementation of a California law (Assembly Bill 2098) that empowered the Medical Board of California to sanction doctors who provide COVID-19 information that the state deems counter to "contemporary scientific consensus." The law is being challenged by the New Civil Liberties Alliance (NCLA). Judge William B. Shubb of the U.S. District Court for the Eastern District of California ruled yesterday that the NCLA has standing to bring the case, and he halted implementation of the law as the case plays out.
The phrase contemporary scientific consensus "lacks an established meaning within the medical community," noted Shubb in his decision. Accordingly, doctors are "unable to determine if their intended conduct contradicts the scientific consensus, and accordingly 'what is prohibited by the law.'"
"COVID-19 is such a new and evolving area of scientific study, it may be hard to determine which scientific conclusions are 'false' at a given point in time," Shubb added.
More on the decision here from Reason's Jacob Sullum.
FREE MARKETS
Freer countries, richer people. The Cato Institute's eighth annual Human Freedom Index (HFI) is out. The index ranks countries and jurisdictions around the world by looking at 83 indicators of personal and economic freedom:
On a scale of 0 to 10, where 10 represents more freedom, the average human freedom rating for the 165 jurisdictions fell from 7.03 in 2019 to 6.81 in 2020. Most areas of freedom fell, including significant declines in the rule of law and freedom of movement, expression, association and assembly, and freedom to trade. Based on that coverage, 94.3 percent of the world's population lives in jurisdictions that saw a fall in human freedom from 2019 to 2020, with 148 jurisdictions decreasing their ratings and 16 improving.
Countries that scored the highest (in order) were Switzerland, New Zealand, Estonia, Denmark, Ireland, Sweden, Iceland, Finland, the Netherlands, and Luxembourg.
Selected jurisdictions rank as follows: Canada (13), Taiwan (14), Japan (16), Germany (18), United Kingdom (20), United States (23), South Korea (30), Chile (32), France (42), Argentina (74), South Africa (77), Brazil (80), Ukraine (89), Mexico (98), India (112), Russia (119), Nigeria (124), Turkey (130), China (152), Saudi Arabia (159), Iran (162), Venezuela (163), and Syria (165).
Cato notes that freer countries tend to be richer countries.
Jurisdictions in the freest quartile enjoy more than twice the average per capita income ($48,644) of those in the other quartiles ($23,404 for the second freest). On average, the freest jurisdictions in the world have a much higher per capita income than those that are less free. The HFI also finds a strong relationship between human freedom and democracy.
• Biden's biggest immigration policy mistakes: "failing to frame the situation at the border as a refugee crisis and continuing some of former President Donald Trump's enforcement policies at the border."
• Special counsel John H. Durham's investigation into whether the Trump-Russia investigation was corrupt is closing, "without uncovering anything like the deep state plot alleged by Mr. Trump and suspected by [former Attorney General Bill] Barr," notes The New York Times. But at one point, the probe veered into investigating Trump himself for alleged financial crimes—a development reported in media at the time as if Durham had found evidence of criminal wrongdoing by people involved in the Russia probe.
• Ben Dreyfuss has some good observations on the Stanford student reading Mein Kampf.
• Spain is considering legislation to criminalize people who pay for sex and anyone who rents a room to "facilitate the prostitution of another person, even with their consent." Human Rights Watch urges Spanish lawmakers to reject this proposal.
• Economist Emily Oster drills down on research related to alcohol and health.
• "So much of the imagery that people see about abortion comes from abortion opponents who have spent decades spreading misleading fetal imagery to further their cause," write doctors Erika Bliss, Joan Fleischman, and Michele Gomez, co-founders of the My Abortion Network. They aim to showcase what pregnancy tissue in early pregnancy actually looks like.
• Flexible homeschooling is entering the mainstream, J.D. Tuccille writes.
]]>
Scott Shackfordhttps://reason.com/people/scott-shackford/sshackford@reason.comhttps://reason.com/?p=82184692023-01-11T18:49:25Z2023-01-11T19:00:52Z
Texas used lethal injection to execute 65-year-old Robert Fratta on Tuesday night despite an ongoing legal fight over the state's use of allegedly expired drugs.
Fratta, a former Houston cop convicted of hiring two people to kill his wife in 1994 amid a custody battle, was pronounced dead Tuesday night just before 8 p.m. after a lethal injection of pentobarbital.
For a short time on Tuesday afternoon, Fratta's fate hung in the balance because of an injunction ordered by Judge Catherine A. Mauzy of the 345th District Court of Travis County in response to a lawsuit by Fratta and three other death row inmates. These prisoners have been fighting what they claim is the use of expired pentobarbital for executions. According to their lawsuit, the pentobarbital stocks Texas is using expired years ago, and they claim the drugs will "act unpredictably, obstruct IV lines during the execution, and cause unnecessary pain." The plaintiffs also argued that using these expired drugs violates several Texas laws. They weren't asking the court to spare their lives, they insisted, but that the court forbid Texas from using expired drugs.
The state of Texas objected to this characterization, claiming it retests the doses to make sure they're still potent and then relabels the pentobarbital with a new expiration date. The state also argues that the restrictions on the use of pharmaceutical drugs don't apply to executions because the drugs aren't being used for treatment but to kill. Attorney General Ken Paxton turned to the Texas Court of Criminal Appeals to attempt to stop civil judges of district courts (where this lawsuit was being heard) from attempting to interfere with any upcoming executions, claiming that this is all under the jurisdiction of criminal courts.
Last week, the Texas Court of Criminal Appeals agreed and put out an order telling judges of the 345th District Court to "refrain from issuing any order purporting to stay the January and February executions" of these inmates.
On Tuesday afternoon, however, Mauzy attempted to thread the needle with her injunction. She declined to issue a stay of execution (noting that she lacks the power to do so) and instead ruled that Texas cannot execute these defendants with the expired pentobarbital. The state can still execute the men with pentobarbital, just not the expired pentobarbital allegedly in its possession. Mauzy approached the conflict as a drug safety question, one more normally decided by civil courts, not criminal courts.
While this may seem to be a simple order, it would have stopped all pending executions. The simple reason is that over the past two decades, most drug companies have stopped making their products available to prisons for use in executions. States that insist on using drugs to execute prisoners struggle to maintain unexpired supplies of them.
In response to the dwindling supply of execution drugs, Texas passed a law in 2015 to keep providers of their lethal injection drugs secret in order to prevent death penalty opponents from pressuring the drug companies and compound pharmacies that supply Texas. In November, The Texas Tribunecalculated that the state had enough remaining doses for seven executions. As of last April, the state had 199 inmates on death row, one less now that Fratta has been executed.
Mauzy's attempt at an injunction was promptly overturned Tuesday afternoon when the Texas Court of Criminal Appeals overruled her, again on the grounds that she lacked jurisdiction on how executions are handled. The Texas State Supreme Court then quickly rejected an appeal, so Texas moved forward with Fratta's execution.
Texas is clinging to expired drugs because it doesn't want to stop executing people. The ethics of the death penalty are already troubling—the state taking lives in an imperfect and heavily politicized justice system. By using expired drugs in violation of state and federal laws and consumer safety regulations, Texas and other lethal injection states are undermining the justice system.
]]>
Scott Shackfordhttps://reason.com/people/scott-shackford/sshackford@reason.comhttps://reason.com/?p=82173552023-01-04T21:53:44Z2023-01-03T17:30:14Z
The first execution of 2023 in the United States may also end up being the first execution of a trans inmate, but the media emphasis on Amber McLaughlin's identity obscures a more serious issue of how the state of Missouri sometimes allows judges to overrule juries in sentencing.
Today, Missouri plans to execute McLaughlin, 49, for killing her ex-girlfriend, Beverly Guenther, in St. Louis County in 2003. She was convicted under her birth name (Scott) and started her transition in prison three years ago, and as such she is believed to be the first transgender prisoner to face execution (according to the Death Penalty Information Center, DPIC). As such, McLaughlin's LGBT identity and the prison image of her in pigtails is getting a lot of attention.
But this obsession with identity shouldn't come at the expense of a serious flaw in McLaughlin's sentencing. When McLaughlin was convicted and sentenced in 2006, the jury deadlocked on whether to sentence her to death. They rejected three out of four aggravating circumstances that would allow for a capital sentence, but couldn't decide on the fourth. In states that still have the death penalty and in federal sentencing trials, a hung jury means that the defendant is sentenced to life in prison. Four states (California, Nevada, Arizona, and Kentucky) call for a retrial of the penalty phase under a new jury.
Missouri and Indiana are the only two states that give the judge hearing the trial the authority to make the decision. And so, ultimately, McLaughlin was not sentenced to death by a jury, but by a single judge. DPIC notes, "McLaughlin's trial judge then relied upon the aggravating circumstances rejected by the jury to sentence McLaughlin to death."
In 2016 a federal district court overruled the death sentence, determining that her defense hadn't adequately presented her mental health history showing physical and sexual abuse, brain damage, and multiple suicide attempts. But that decision was subsequently overruled by the U.S. Court of Appeals for the 8th Circuit, and the Supreme Court declined to hear the case.
McLaughlin's trans identity is a sideshow. Many news stories are, fortunately, also describing the circumstances that she ended up on death row in the first place. In December, seven retired Missouri judges (led by former state Supreme Court Justice Michael A. Wolff) sent a letter to Missouri Gov. Mike Parson asking for him to consider commuting her sentence. They argued not on the basis of McLaughlin's identity or upbringing (in fact, the letter refers to McLaughlin by male pronouns throughout) but because of the deep concern that McLaughlin's fate was determined by a single judge and not a jury. They see this as a flaw in Missouri's sentencing system:
This flaw is more pronounced in this case because the trial judge then relied upon aggravating circumstances specifically rejected by the jury. Thus, the trial judge made his own findings contrary to the will of the jury, which runs squarely against the fundamental principles of our justice system. The trial judge did a complete end-run around a jury, where Mr. McLaughlin's attorneys had persuaded at least one and maybe 11 jurors that death was not appropriate.
If Parson rejects mercy for McLaughlin and she is executed today, some superficial press coverage may focus on her gender identity. Don't let the fact that she is trans distract from the issue that her death sentence was imposed by a judge who overruled the jury.
]]>
Scott Shackfordhttps://reason.com/people/scott-shackford/sshackford@reason.comhttps://reason.com/?p=82168982022-12-28T19:02:28Z2022-12-28T19:05:04Z
The good news for opponents of the death penalty is that its use in the United States continued to decline in 2022. The bad news is that many of the executions that did take place appear to have been botched by officials who subjected prisoners to cruel torment.
Those are the main takeaways from the Death Penalty Information Center's (DPIC) annual year-end report. It shows that American states are increasingly turning away from executions, but that in those states where capital punishment still happens, there's been a turn toward cruelty and secrecy in the relevant government agencies.
Six states—Oklahoma, Alabama, Texas, Missouri, Arizona, and Mississippi—executed 18 people in 2022. That's an increase over the 11 people executed in 2021, but both numbers are low relative to the last decade. For eight consecutive years, states have performed fewer than 30 executions annually and issued fewer than 50 new death penalty sentences annually. Federal executions were halted entirely when President Joe Biden took office.
The downturn may not be permanent. Oklahoma halted executions in 2015 temporarily after a series of problems with the drugs that led to one man groaning and struggling as the drugs took hold in 2014 and a case in 2015 where they received the wrong drug entirely. In 2020, Republican Gov. Kevin Stitt announced Oklahoma would restart executions using those very same drugs. In 2021, Oklahoma executed its first two inmates in years. During the first of those executions, John Marion Grant reportedly convulsed and vomited before he died. In 2022, Oklahoma executed five inmates, making the state responsible for nearly a third of all executions.
And if the state gets its way, there will be many more to come in 2023. In June, Oklahoma Attorney General John O'Connor started planning 25 executions over the next few years. According to DPIC, the state has 11 planned for next year and 10 in 2024.
Richard Glossip is among those inmates, currently scheduled for execution in February. Glossip has become something of a national cause because he's on death row for a murder he personally did not commit. He is accused of allegedly masterminding the 1997 murder of Barry Van Treese by convincing Justin Sneed to do it with a promise of splitting Van Treese's money. Sneed confessed and pointed the finger at Glossip and avoided death row. Glossip has been fighting for his innocence and has managed to draw several Republican lawmakers on board who support the death penalty but are concerned that Glossip may be innocent. Stitt has permitted stays of execution to allow Glossip to pursue appeals.
But in November, Oklahoma's criminal appeals court denied motions by Glossip's attorneys to get a new evidentiary hearing. Stitt could ultimately decide to commute Glossip's sentence. In 2021 he commuted the sentence of Julius Jones, who, like Glossip, convinced several Republicans and the state's Pardon and Parole Board that there was enough doubt about his guilt to stay the executioner's hand.
In Texas, mercy came in 2022 to Melissa Lucio, convicted in 2007 and sentenced to death for allegedly killing her 2-year-old child. She has insisted that the child's death was from an accidental fall and not abuse. Just days before her scheduled execution she was given a reprieve by the state's Court of Criminal Appeals to analyze the evidence and see if there were enough problems with her conviction to justify a new trial.
Elsewhere, the continued use of lethal injections cause continued problems. The DPIC notes that seven of the attempted executions showed problems with the process itself in safely injecting the prisoners. In Alabama, the execution of Joe Nathan James in July was delayed by three hours. When it was over, it appeared as though it took many efforts by the prison team to find a vein, leading to many puncture wounds and a cut on his arm. The state insisted that nothing out of the ordinary happened.
But then, in September and November, two other Alabama executions were called off because corrections officials couldn't find the proper veins in time to inject the lethal drugs. Alabama Gov. Kay Ivey called for a "top-to-bottom review" of the execution process. Alabama Attorney General Steve Marshall insisted this was not a moratorium. Tennessee Gov. Bill Lee ordered a moratorium on executions this year and halted a pending execution after discovering that officials had failed to properly test the drugs they were using for impurities or contamination.
"After 40 years, the states have proven themselves unable to carry out lethal injections without the risk that it will be botched. The families of victims and prisoners, other execution witnesses, and corrections personnel should not be subjected to the trauma of an execution gone bad," said Robert Dunham, DPIC's Executive Director, in a summary of the DPIC year-end report.
On the positive side of the ledger, outgoing term-limited Oregon Gov. Kate Brown announced in December that she was commuting the sentences of the 17 people on death row to life in prison. The state has had a governor-ordered moratorium on the death penalty for years, but the penalty is enshrined in the state's constitution for certain crimes. Brown's replacement, Gov. Elect Tina Kotek, has promised to extend the moratorium.
"As the systemic flaws of the death penalty have become clearer and more pronounced, it is being regularly employed by just a handful of outlier jurisdictions that pursue death sentences and executions with little regard for human rights concerns, transparency, fairness, or even their own ability to successfully carry it out," the DPIC warns.
]]>
Scott Shackfordhttps://reason.com/people/scott-shackford/sshackford@reason.comhttps://reason.com/?p=82154902022-12-15T18:28:45Z2022-12-14T17:20:57Z
Outgoing Democratic Oregon Gov. Kate Brown announced Tuesday she'd be commuting the sentences of 17 people remaining on the state's death row to life in prison without the possibility of parole.
"I have long believed that justice is not advanced by taking a life, and the state should not be in the business of executing people—even if a terrible crime placed them in prison," she said in a prepared statement.
Oregon hasn't executed a prisoner since 1997. Under current Oregon law, only a conviction for aggravated murder is punishable by death (and this punishment is enshrined in the state's constitution). In 2019 Brown signed a bill that restricted the use of the death penalty even further, applying it only to murders in cases of terrorist acts by members of organized groups, killings of children, murders by people already incarcerated for murder, and premeditated murder of police officers.
Brown extended a total moratorium on executions put into place in 2011 by her predecessor, Democratic Gov. John Kitzhaber. Brown is leaving office due to term limits, and Gov. Elect Tina Kotek, also a Democrat, has said she'll continue to extend the moratorium.
Brown is blunt in her statement that the commutations aren't about whether those convicted have shown themselves deserving of mercy but instead about the flaws of the death penalty itself:
Unlike previous commutations I've granted to individuals who have demonstrated extraordinary growth and rehabilitation, this commutation is not based on any rehabilitative efforts by the individuals on death row. Instead, it reflects the recognition that the death penalty is immoral. It is an irreversible punishment that does not allow for correction; is wasteful of taxpayer dollars; does not make communities safer; and cannot be and never has been administered fairly and equitably.
President Joe Biden could follow in Brown's footsteps if he chose to do so. He campaigned on a promise to work on ending the federal death penalty (which he once supported). That's not quite what has happened. The Justice Department in July 2021 implemented a temporary moratorium on executions (even as it also fought for the authority to execute Boston Marathon bomber Dzhokhar Tsarnaev). A bill to end the federal death penalty has stalled in Congress. But Biden is well within his authority to echo Brown and commute the sentences of the 79 prisoners currently on federal death row.
]]>
Oregon Gov. Kate BrownScott Shackfordhttps://reason.com/people/scott-shackford/sshackford@reason.comhttps://reason.com/?p=82122402022-11-18T20:35:04Z2022-11-18T20:40:27Z
For the second time in three months, Alabama officials halted an execution because corrections officials couldn't find a vein into which they could inject the lethal drugs.
The prisoner, Kenneth Eugene Smith, 57, was scheduled to be executed Thursday night after his appeals to the Supreme Court were rejected. As the Associated Press notes, part of Smith's appeals involved Alabama's recent problems actually executing prisoners with intravenous drugs. In September, the execution of Alan Miller, also 57, was halted for the same reason—the Alabama Department of Corrections' execution team was not able to secure IV access in time by the midnight deadline.
Those two incidents come on the heels of the troubling execution of Joe Nathan James in July, where it appeared that officials had similar troubles finding veins. Emma Camp took note of the private autopsy performed on James, which appeared to show bruises all over his wrists and knuckles and even a deep cut, possibly from officials struggling to find a usable vein.
At the time, Alabama officials insisted "nothing out of the ordinary" had happened during James' execution. But since then, after Miller's execution stalled, a federal judge ordered the state to preserve medical supplies and records from that failed attempt for Miller's lawyer's review.
Smith was convicted for participating in a murder-for-hire of Elizabeth Dorlene Sennett in 1988. Sennett's husband, Charles Sennett Sr., killed himself when he became a suspect in the murder investigation. Ultimately, Smith and another man, John Forrest Parker, were convicted of being paid $1,000 each to kill her. Parker was executed in 2010.
The jury in Alabama actually voted 11–1 to spare Smith and sentence him to life in prison. But at the time, Alabama law actually allowed the judge to override the jury's recommendation and sentence him to death anyway. That law was eliminated in 2017, but as is the case with most changes in sentencing guidelines, it wasn't retroactively applied. Alabama is still insistent on putting Smith to death.
Alabama Gov. Kay Ivey essentially laid the blame on Smith for fighting his execution, saying, "Although that justice could not be carried out tonight because of last minute legal attempts to delay or cancel the execution, attempting it was the right thing to do." In reality, prison staff tried for more than an hour to establish the two lines necessary for the lethal injections and failed.
]]>
Kenneth Eugene SmithVeronique de Rugyhttps://reason.com/people/veronique-de-rugy/https://reason.com/?p=82119542022-11-17T18:06:37Z2022-11-17T18:20:26Z
After disappointing midterm election results for Republicans, many understandably pin blame on corrosive figures like former President Donald Trump. His losing record is impressive considering his cultlike persona appeal with MAGA voters. If Republicans finally learn to shed Trump and his ilk it will be a good thing. However, there's another looming issue for Republicans: their policy agenda (if this mishmash deserves such a name).
Let's face it: These last few elections weren't contests over conflicting policy visions. Instead, each party did little more than tell voters that they aren't as awful as the other party. Pointing that out is OK but doing so isn't a substantive agenda. Republicans, for instance, were all about how Democrats created inflation and how inflation was terrible for the American people. But Republicans themselves offered no plan to tame inflation. Where are the GOP's plans to control spending? Such control is necessary at the very least for the government to meet its debt-servicing obligations—which are rising with interest rates—without fueling inflation further.
Meanwhile, Democrats have spent the last campaign freaking people out that Republicans will cut Social Security. Whether that's true or not, Americans should be worried about the Democrats' do-nothing policy. Indeed, under the current policy, the Social Security trust fund runs dry by 2034 and benefits will be automatically cut by at least 25 percent, leaving little room to shelter the most vulnerable seniors who truly depend on it for most of their retirement income. This inevitable scenario will happen even sooner now that inflation has jacked up benefits. In practice, by doing nothing, Democrats too want to cut benefits.
Yet you didn't hear the Republicans make that point during the campaign. Nor did they make the case for reforming the program before its impending insolvency. They were completely silent on the need to reduce government debt policies. I understand that these are unpleasant topics of conversation—it is the proverbial "root canal" of policy, as the late Jack Kemp liked to say. But ignoring these realities will not change them.
What's more, in the rare occasions that Republicans have a policy idea, they're usually calling for awful and outdated ones such as industrial policy and protectionism, or even Democrat-like entitlements such as federal paid leave and a child universal basic income. And that's when Republicans aren't making the economically ignorant case to drop "market fundamentalism" and embrace central planning.
At this writing it appears that Republicans will have only the slimmest of margins, putting meaningful reforms out of the question. Instead, Republicans should use this time to educate the public. Impressing upon people the need to put government on more secure financial grounds can be done by explaining the negative impact of large government indebtedness on economic growth. Economic growth might not be popular now, but this makes it a perfect educational moment to note that a robustly growing economy can double the average American's living standards in a single generation.
And growth is especially important for the lowest income earners in America. The reality is that the biggest beneficiaries of economic growth are poor people. But the deepest case for economic growth is a moral one, as it affects our social attitudes and political institutions by reducing homicide rates, increasing female and minorities' empowerment, promoting tolerance and democracy, and so much more.
The good news is we know how to pull off all these benefits for our communities. As multiple scholars have established, there is a solid and positive association between economic freedom and growth. Economic freedom reforms that unleash supply in sectors like energy, housing, food, and health care will produce the largest rewards for all.
This can be done by removing idiotic regulations that require years of permitting to build roads and infrastructure, and to produce drugs—without significantly helping the environment or increase consumer safety; also, eliminating biofuel mandates—which increase the price of energy and food, and hence intensify food insecurity; reforming occupational licensing, zoning, and land-use restrictions; and ending subsidies to big agribusiness and other producers—payments that distort pricing and end up forcing consumers to pay more for less. There are so many exciting things that Republicans could embrace and reach across the aisle to promote a growth and opportunity agenda.
Republicans want to show voters that they care about the working and middle classes. They need to snap out of their policy lethargy and rediscover the excitement of championing policies that lift all boats and truly make America once again the land of opportunity.
]]>
Scott Shackfordhttps://reason.com/people/scott-shackford/sshackford@reason.comhttps://reason.com/?p=82108752022-11-10T18:46:26Z2022-11-10T18:50:50Z
Oklahoma's criminal appeals court has denied a motion by death row prisoner Richard Glossip for a new evidentiary hearing to consider the possibility that he's innocent of murder and shouldn't be executed.
Glossip has been on death row for most of the past 24 years, having been convicted in 1998 for orchestrating the murder of Oklahoma City hotel owner Barry Van Treese. Glossip was never accused of directly killing Van Treese. He was convicted of convincing Justin Sneed (who was 19 at the time), the maintenance man of the hotel where Glossip was the manager, to do the deed, with Glossip saying they would split Van Treese's money.
Glossip has maintained his innocence. Sneed's testimony has served as the primary evidence against Glossip. Sneed himself was sentenced to life in prison, and Glossip's lawyers have argued that detectives investigating the case essentially fed Sneed the story to blame Glossip to deflect full responsibility.
Though Glossip was first convicted in 1998, the Oklahoma Court of Criminal Appeals tossed out his conviction due to the poor evidence and he was retried. He was nevertheless convicted again in 2004.
The lack of much evidence outside of Sneed's testimony has lent a lot of credibility to claims of Glossip's innocence, and in the past year, a pack of bipartisan lawmakers (several of whom support the death penalty) have been calling for another review of the evidence. Bolstering Glossip's claims was a report from law firm Reed Smith detailing many problems with the case. In August they unearthed what appears to be a 2007 letter from Sneed to Gina K. Walker, who was his public defender, suggesting that he was rethinking his testimony, calling it a "mistake," and asking to meet with her.
Subsequently, Gov. Kevin Stitt ordered a two-month stay of Glossip's execution, which had been scheduled for Sept. 22, for his innocence to be considered. On Nov. 3, Stitt granted a second two-month stay as the legal proceedings continued. He is now scheduled for execution on Feb. 16, 2023.
But today's ruling puts a damper on those efforts and also serves to show how heavily the deck is stacked against defendants once they've been sentenced to death. Glossip's motion makes several claims of procedural and due process issues, none of which the court will consider, Judge David Lewis explains, because Oklahoma's Post-Conviction Procedure Act puts strict time limits on when these claims can be made.
The court can still consider claims of factual innocence, and Glossip did claim as such in this motion. Unfortunately the Criminal Court of Appeals did not find that Glossip had provided enough proof of his own innocence to call for a new hearing. Now that Glossip has been convicted by a jury, the onus fall on him to provide evidence that he's innocent. Oklahoma law requires that Glossip show by "clear and convincing evidence" (a legal standard showing a "high probability" that the claim is true) that he's innocent. David notes in the denial that "[The court's judges] weigh any evidence presented against the evidence as a whole, in a light most favorable to the State, to determine if Glossip has met his burden."
The judges note the various jailhouse informants who have provided affidavits claiming to have heard Sneed admit killing Van Treese in order to rob him while never mentioning Glossip and evidence that Sneed was a drug user with a "violent personality." But none of that clears Glossip. Davis writes, "Contrary to Glossip's assertion, there is no evidence that Sneed has ever sought to recant his testimony in any meaningful way. Further, none of the other witnesses against Glossip have changed their story."
In other words, the judges don't see a difference between the evidence used to convict Glossip in the first place and the evidence they're looking at now. But because Glossip has already been convicted, even if the evidence seems very thin now, the judges need Glossip to prove more than that it's highly likely that Sneed is lying. And mind you, all these hurdles are just to open a new evidentiary hearing, not to throw out the conviction.
"This is a very difficult decision to understand," said Don Knight, Glossip's attorney, in a written statement. "The evidence of Rich's innocence, and the State's misconduct, is overwhelming and deserving of, at the very minimum, a fair hearing where we can present our evidence. This is all we have ever asked for and is something that, obviously, the State is desperate to see never happen."
Glossip has a second petition for relief submitted to the same court, alleging prosecutorial misconduct and again mentioning Sneed's past interest in possibly recanting. Glossip has had his execution delayed six times now. But the clock is ticking again. In June, Oklahoma's attorney general asked the state to start scheduling executions of 25 inmates, Glossip just one among them. The state has executed four prisoners this year and has two more scheduled before the end of 2022.
]]>
Scott Shackfordhttps://reason.com/people/scott-shackford/sshackford@reason.comhttps://reason.com/?p=82101162022-11-10T01:10:52Z2022-11-07T20:35:26Z
Typically, when the Supreme Court declines to take up various cases, it's not interesting news unless it's a big case many people were hoping they'd weigh in on.
But today's denials include five dissents from five different justices saying they wanted the court to tackle certain cases. The justices who wrote the dissents include newcomer liberal Justice Ketanji Brown Jackson and conservative stalwart Justice Clarence Thomas. But what the five dissents all have in common is that the justices are attempting to encourage the court to tackle cases that have the potential to hold the government more accountable for bad behavior or otherwise treat citizens' rights more seriously.
The first dissent, by Justice Neil Gorsuch, involves the Department of Veterans Affairs (V.A.) failure to pay retired Air Force Serviceman Thomas Buffington's disability payments for several years. Buffington was discharged in 2000 and awarded benefits for his injuries. He was called back into service in 2003 after joining the Air National Guard. His benefits were suspended while he served. After he retired again in 2005, the V.A. did not restore his benefits. Buffington asked in 2009 where his benefits were, and they were eventually restored. But the V.A. refused to pay him the missed benefits for the previous years.
Apparently, despite the federal statute stating that these payments can only be suspended while a servicemember is actively serving, the V.A. has decided that the law's wording is ambiguous and requires that these eligible recipients request the benefits or the agency will not pay. The Supreme Court declined to take up Buffington's claims, but Gorsuch wanted to explore the limits of the doctrine of Chevron deference. A Supreme Court precedent from 1984, Chevron v. Natural Resources Defense Council, gave federal agencies wide deference to interpret statutes so long as the interpretation is reasonable and doesn't contradict the law.
Gorsuch argues that Chevron deference has been taken too far and that court systems, which are responsible for interpreting what laws mean, are essentially letting regulatory agencies interpret statutes however they like: "We place a finger on the scales of justice in favor of the most powerful of litigants, the federal government, and against everyone else." Gorsuch notes that the V.A. once had a rule that did what an average person thought it would do—as soon as a veteran retired again, these payments would resume. The law didn't change, but "agency officials proceeded to revise their rules anyway to place new burdens on veterans and make their own jobs easier. Expansive views of Chevron encourage and reward just these sorts of self-serving gambits."
Gorsuch calls upon the court to "acknowledge forthrightly that Chevron did not undo, and could not have undone, the judicial duty to provide an independent judgment of the law's meaning in the cases that come before the Nation's courts." But in this case, he was overruled.
Next up, Justice Sonia Sotomayor, joined by Jackson, wanted her peers to take on and reverse a verdict from Louisiana in an unusual case where a man, Willard Anthony, was convicted of rape and human trafficking by a grand jury after the court permitted the prosecutor to testify as part of the case itself. Over many objections by the defense and four calls for a mistrial, an assistant district attorney was permitted to testify. He did so to respond to the defense's efforts to challenge the credibility of two witnesses who had allegedly gotten deals to testify against Anthony.
Anthony was subsequently convicted and has been challenging his conviction because he didn't get a fair trial due to the impropriety of the prosecutor taking the stand. Sotomayor writes, "The prosecutorial misconduct in this case is not only blatant and egregious, but a clear due process violation. The court below nonetheless held that admission of the prosecutor's testimony was harmless error."
Sotomayor and Jackson disagree about the harmlessness of such an error. They believe that the prosecutor's participation in the trial as a witness was a jaw-dropping case of obvious injustice. They believe the verdict should be reversed:
These principles demand careful scrutiny of the rare cases in which a prosecutor takes the stand as a sworn witness in a jury trial. Because this case presents one of the most egregious instances of prosecutorial testimony amounting to prosecutorial misconduct, I respectfully dissent from the Court's refusal to issue a summary reversal.
Next up, Justice Thomas dissented from his peers in a case where the widow of Gary Clandening, who died of leukemia in 2016, was denied the ability to sue the federal government over claims that he was exposed to toxins and contaminated water while serving at Camp Lejeune. Under the Federal Tort Claims Act (FTCA) of 1946, private parties are permitted to sue the federal government for damages in claims involving government employees. But Feres v. United States, a Supreme Court decision from 1950, established an exception: Members of the armed forces cannot sue under FTCA for claims of injuries suffered on active duty.
Thomas believes that Feres was wrongly decided and should be overruled. He notes that the text of the FTCA specifically only exempts the government from liability claims from members of the military directly arising out of "combatant activities" during a time of war. But instead, courts are inconsistently deciding whether an injury is "incident to military service." One court determined that exposure to carbon monoxide at a military base was not incident to service (and therefore those harmed could sue), while another court determined that exposure to contaminated water at Camp Lejeune was incident to military service (and therefore could not sue.)
In short, Thomas believes that the wording of FTCA is clear that military members should be able to sue the federal government for harms they've suffered outside of war situations: "It would be one thing if Congress itself were responsible for this incoherence. But Congress set out a comprehensive scheme waiving sovereign immunity that we have disregarded in the military context for nearly 75 years. Because we caused this chaos, it is our job to fix it."
Next up, Justice Brett Kavanaugh and Gorsuch would have the Supreme Court examine whether it's constitutional for some states to convict people of crimes with juries of less than 12 people. Arizona and five other states allow for juries of smaller than 12. Ramin Khorrami was convicted by a jury of eight in Arizona in 2019 of fraud-related charges. Under Arizona law, trials for crimes where the death penalty doesn't apply and the maximum sentence is less than 30 years are heard by this smaller jury. Khorrami challenged his conviction, arguing that the Sixth and Fourteenth amendments require a jury of 12 to hear felonies.
Though the constitution doesn't actually indicate how many people should make up a jury, Gorsuch* notes that common law from the foundation of the United States (and even earlier in England) held that a criminal conviction required a "unanimous sentiment of the twelve jurors."
But in 1967, Florida passed a law allowing juries of just six to convict people of crimes. In a 1970 Supreme Court decision, Williams v. Florida, the justices determined that 12 people were not actually required for a conviction and that "the fact that the jury at common law was composed of precisely 12 is a historical accident, unnecessary to effect the purposes of the jury system and wholly without significance 'except to mystics.'"
Gorsuch calls this ruling "an anomaly the day it issued," and adds, "In doing so, the decision contravened the Sixth Amendment's original meaning and hundreds of years of precedent in both common-law courts and this one." He argues that the court should have taken Khrorami's case to overturn Williams.
And finally, Jackson, again joined by Sotomayor, wrote a brief dissent (her first as a Supreme Court justice) that the court should have taken up the case of Davel Chinn, who was convicted in Ohio in 1989 of murdering a man and was sentenced to death. His lawyers claimed that the state suppressed evidence showing that one of their key witnesses had an "intellectual disability" that may have affected his memory and ability to discern fact and fiction in his testimony. The witness, Marvin Washington, was 15 when the murder took place and admitted involvement. Chinn's lawyers have argued that had the jurors known about Washington's impairment, it might have affected the case's outcome.
Jackson believes that the lower courts did not apply the proper standards to evaluate this potential violation of disclosure rules and would have sent the case back for reconsideration:
Because Chinn's life is on the line, and given the substantial likelihood that the suppressed records would have changed the outcome at trial based on the Ohio courts' own representations, … I would summarily reverse to ensure that the Sixth Circuit conducts its materiality analysis under the proper standard.
So we have five very different cases and five different justices, but each case revolves around government power and accountability. It's also worth noting that in each case, the justices who want to hold the government to account or restrain its authority were in the minority.
* This post has been updated to correct that Gorsuch wrote the dissent in Khorrami v. Arizona, not Kavanaugh.
]]>
Charles Oliverhttps://reason.com/people/charles-oliver/https://reason.com/?p=82090942022-10-31T14:33:29Z2022-11-04T08:00:24Z
A California court has vacated the conviction of Maurice Hastings for a 1983 murder. DNA testing of semen collected during an oral swab of the victim, whose body was found in the trunk of her car, did not match Hastings. It did match that of another man who was convicted of an armed kidnapping in which he forced the victim to perform oral sex on him and placed her in the trunk of her car. That man died in prison in 2020. Hastings had asked for DNA testing on the oral swab in 2000, but the district attorney refused.
]]>
Kurt Loderhttps://reason.com/people/kurt-loder/https://reason.com/?p=82088622023-02-28T14:54:17Z2022-10-28T11:30:31Z
These are difficult times for the mad mullahs of Tehran. There they were last month, quietly going about their business of oppressing the Iranian people, which they've been doing for the past 43 years, when a big kerfuffle broke out over the death of a 22-year-old woman named Mahsa Amini. She had been in the custody of the government morality police when she died, arrested for wearing her hijab headscarf in a manner that was deemed to be not quite right. Witnesses said she was severely beaten; the government denied this, but Amini's father was nevertheless prevented from viewing his dead daughter's body.
Protests, largely led by women, broke out immediately and quickly spread nationwide; soon they were a subject of international celebration. Domestically, more than 200 Iranians were said to have been killed, either shot or clubbed to death by security police. Forty days later, presumably to the regime's alarm, the demonstrations were going even stronger, and there was open speculation that the end might finally be at hand for the hated theocracy.
This was pretty bad PR, especially for a government that was already widely despised. Now, to make things just a little bit worse, a new movie called Holy Spider is being released in the West. It's already won a best actress award for one of its stars, Zar Amir Ebrahimi, at this year's Cannes Film Festival, and it deserves a look. Raking over the smoldering embers of a 20-year-old serial-killer case, it's a powerful film, brash and bracing in the manner of a classic B-movie.
The story is set in the "holy city" of Mashhad, in northeastern Iran. There a construction worker named Saeed Hanaei launches a personal jihad against prostitution—specifically, the desperate hookers who line up along the sides of major roads, beckoning to passing autos (or, in the case of Hanaei, motorbikes). The killer has an unvarying technique for dispatching these women: luring them onto his bike with a flash of money or opium, then taking them home to the small apartment he shares with his wife and small children (carefully waiting until the family is absent). Sometimes he has preliminary sex with his victims before strangling them, often with their own hijabs. Afterward, he dumps their bodies wherever, in a tomato field or next to a road. In real life, Hanaei admitted that over the course of 11 months, from 2000 through 2001, he killed 16 women in this way. (Police believed there were more.)
After his arrest, this fervid soldier of God was taken up as a hero by his fellow dwellers in the religious-lunatic community. After all, had he not sought to purify society? Many in the military also approved of his activities, and police may have lent him a hand as well—they were said to have offered one victim's father money if he would publicly forgive his daughter's murderer. With so much popular support, Hanaei hoped to escape punishment. Surprisingly, though, he was found guilty and hanged, in a big, gym-like room in Mashhad prison, in 2002.
Holy Spider is raw and unsentimental, reminiscent in some ways of the gruesome 1986 true crime movie Henry: Portrait of a Serial Killer (although it's nowhere near as bloody). Director and cowriter Ali Abbasi has bolstered the story with one invented character, a female investigative journalist named Rahimi (played with bracing bluntness by Ebrahimi), and this was a useful idea—Rahimi's unflagging alertness makes us feel the everyday dangers of life in a brutally misogynistic society. And Abbasi draws an effectively low-key performance from theater veteran Mehdi Bajestani, who plays Hanaei as a man who seems dim, but is quietly very dangerous.
The director doesn't shy away from depicting the murders as sudden, shocking assaults (some might find them hard to watch). But he also brings a subtle chill to scenes in which we see Hanaei's teenage son, Ali (Mesbah Taleb), appearing to begin his own journey down his dead father's path. There's also a shivery conversation between Rahimi and another journalist—one who's actually been contacted by the killer. He says he asked the man—Hanaei—how long he intended to keep killing prostitutes. "As long as it takes," he said.
Philadelphia residents are bemoaning the closure of two iconic WaWa convenience stores, largely as a result of "continued safety and security challenges," according to the Pennsylvania company. Illustrating those concerns is dramatic security video footage of roughly 100 teens ransacking a store last month, and that was just one recent incident.
Philadelphians are far from alone in their concerns; after decades of improvement, crime has reemerged as an issue amidst a widespread sense of increasing danger. But there's a catch: because of changes in methodology, crime statistics are less reliable than in the past. That leaves us working from limited information.
"Inflation, crime, and immigration are the top self-stated voter issues heading into the midterms," according to a Harvard CAPS-Harris Poll released last week. Inflation ranked as "very important" with 74 percent of respondents, 68 percent said the same of crime, followed by immigration at 59 percent.
Most polls produce similar results, with inflation and the economy as the top concerns, and crime weighing heavily on voters' minds. But, in some places, crime has pushed into the lead.
"Asked to choose the most urgent issue facing New York State today, crime (28 percent) ranks first among likely voters followed by inflation (20 percent) and protecting democracy (14 percent)," the Quinnipiac Poll found last week.
Well beyond the looting of urban convenience stores, crime obviously worries Americans. The data seems to support those fears.
"The FBI's crime statistics for 2021 confirm that violent crime continued to be a major issue in the United States, remaining at or near the 2020 level which saw a 5.6 percent increase compared to 2019," the FBI reported earlier this month. "Murder and non-negligent manslaughter recorded a nationwide increase of 29.4 percent in 2020. … Overall, the analysis shows violent and property crime remained consistent between 2020 and 2021."
Rising crime is always a concern, and it's especially so when it reverses expectations. As recently as September 2019, the FBI boasted of declining violent and property crime, which steadily fell for decades.
"Both the FBI and BJS data show dramatic declines in U.S. violent and property crime rates since the early 1990s, when crime spiked across much of the nation," Pew Research noted in 2020.
Why the unfortunate turnaround? Social scientists will likely be building careers on that question. It's worth pointing out that high unemployment and stagnant economic activity of the sort we saw with the COVID-19 lockdowns tend to lead to social unrest. So do the aftermaths of pandemics in general. It's difficult to build peaceful, free, and prosperous societies, but not so hard to break them.
But, granting that things have changed for the worse, how worried should we be about the crime we see around us? There's the rub; despite those specific-sounding FBI numbers, we don't really know the current crime rate. The feds recently changed the way they compile data, and reporting law-enforcement agencies have yet to catch up.
"In 2021, the FBI retired its nearly century-old national crime data collection program, the Summary Reporting System used by the Uniform Crime Reporting (UCR) program," Weihua Li of The Marshall Project, which specializes in journalism about criminal-justice issues, reported earlier this year. "The agency switched to a new system, the National Incident-Based Reporting System (NIBRS), which gathers more specific information on each incident."
"Unfortunately, despite the advantages of the newer National Incident Based Reporting System, many state and local law enforcement agencies have yet to make the switch," the Brennan Center's Ames Grawert and Noah Kim commented this month. "Law enforcement agencies covering just over half of the population reported a full year's worth of data to the FBI in 2021. By comparison, the FBI's recent reports have been based on data from agencies covering upwards of 95 percent of the population."
"The gap includes the nation's two largest cities by population, New York City and Los Angeles, as well as most agencies in five of the six most populous states: California, New York, Illinois, Pennsylvania, and Florida," added Li.
The omitted agencies and jurisdictions plan to eventually catch up with the new reporting system. But those are major oversights when you're trying to figure out what's going on in large swathes of the United States. Yes, if the neighborhood outside your front door transforms from a pleasant oasis to a perilous hellscape (or the reverse), you've probably noticed. But if you're trying to get a grasp on what's really happening across the country, you're stuck working from limited information. And it's too easy to misinterpret what you see.
"Throughout the past two decades, the majority of Americans have reported that crime trends are worsening (Swift 2016), despite the fact that crime rates in a variety of contexts have been decreasing," researchers noted in a 2019 paper in Deviant Behavior.
Those researchers tested the common assumption that scary headlines and TV news stories were responsible for perceptions of rising crime when the country was actually getting safer and couldn't find a connection. When it comes to whodunnit, maybe it wasn't the media, after all. But that didn't change the fact of people's mistaken beliefs; it just means that they couldn't establish a cause. And that was at a time when crime statistics were fairly reliable.
There are other sources of crime data aside from the FBI, point out the Brennan Center's Grawert and Kim. But those sources, public and private, don't entirely agree with each other. Some show increases in homicides and violent crime in 2021, though at a slower pace than in 2020; others show a decline. These sources also aren't as well-known as the FBI data which, despite the flaws of the old methodology, gave us comparable information year after year.
That leaves us making judgments based on reports about convenience stores getting looted in major cities, and other high-profile news stories. But, while crime increased with the disruptions of 2020, those stories don't give us a good handle on whether conditions are still deteriorating or getting better. That makes it difficult to make plans, whether that involves personal decisions about where to move for a better life or policy judgments about things like criminal justice reform.
So, is crime getting better or worse? You can make an educated judgment about your own community. But on a larger scale, like most everything else right now, it will be a while before we sort out the mess.
Despite the popularity of cop shows about investigators bringing criminals to justice based on a few fingernail clippings and a dropped tissue, the track record of forensic evidence is spotty at best. Critics, including Reason journalists, have shown that too much crime-stopper "science" resembles tea-leaf reading more than it does the efforts of Sherlock Holmes.
Now a federal agency says that bitemark analysis, something of a poster child for bad forensic technique, is every bit as sketchy as skeptics claim.
"Forensic bitemark analysis lacks a sufficient scientific foundation because the three key premises of the field are not supported by the data," finds a draft report from the National Institute of Standards and Technology (NIST). "First, human anterior dental patterns have not been shown to be unique at the individual level. Second, those patterns are not accurately transferred to human skin consistently. Third, it has not been shown that defining characteristics of those patterns can be accurately analyzed to exclude or not exclude individuals as the source of a bitemark."
There's a lot more in the report, which is currently in its comment period and so isn't yet finalized. It's worth noting this 2022 document is a response to a 13-year-old call for a stronger scientific basis for the proliferating use of forensic evidence.
"NIST scientific foundation reviews fill a need identified in a landmark 2009 study by the National Academies of Sciences, Engineering, and Medicine, which called for research to address issues of accuracy, reliability and validity in many forensic science disciplines, including bitemark analysis," acknowledges NIST.
That was after journalist Radley Balko, then with Reason, had pointed out some of the glaring flaws in forensic science in general, and bitemark analysis in particular.
"He claims to have perfected a method of identifying bite marks using laser light and orange goggles that he modestly calls 'the West Phenomenon,'" Balko wrote in 2007 of Mississippi dentist Michael West. "He has said his error rate in bite mark analysis is 'something less' than the error rate of 'my savior, Jesus Christ' and has compared his bite mark virtuosity with the musical talent of Itzhak Perlman."
Balko subsequently literally wrote the book about West, fellow practitioner Dr. Steven Hayne, and the injustices resulting from their forensic testimony. But even with NIST acknowledging, at long last, that "the ability of bitemark analysis to accurately exclude or not exclude individuals as a source of the mark is not supported," he sees little hope for reform.
"If the criminal legal system prioritized justice, we'd have long ago seen a thorough review of every bitemark conviction in the country—if not after the first series of DNA exonerations of bitemark convictions, then certainly after the NAS report cast doubt on the entire discipline," Balko writes. "Tragically, judges and prosecutors seem to have concluded that real legitimacy lies in pretending the biggest, most consequential mistakes never happened."
Maybe not, but it's worth highlighting the extent to which the NIST report debunks bitemark analysis. The report points out that bitemark analysis relies on the assumptions that: teeth marks are unique; that they reliably transfer to surfaces such as skin; and that the marks can then be analyzed and linked to specific individuals.
First of all, it's not at all clear that bites leave distinct patterns. "Bitemark patterns typically only represent the anterior teeth" (those in the front of the mouth) and the marks they leave can vary depending on injuries, breakages, or obstructions. That leaves limited information with which to work even before we get to the contradictory evidence available about the individuality of bites from one mouth to the next.
Second, skin is the surface most often analyzed for bitemarks, but it's malleable and doesn't reliably take teeth marks to begin with. "In addition, human skin can change the appearance of a bitemark over time depending on the rate and amount of swelling at the site, healing, and skin elasticity." As a result, "human skin as a dependable material for bitemarks is a key area of dispute in the field."
Finally, linking bitemarks that may or may not be unique, left on elastic surfaces that swell and heal, to people is fraught with uncertainty. "Multiple studies have demonstrated a widespread lack of agreement on conclusions reached with bitemark data, including those relating to whether the mark was indeed a bitemark, features present, and inconsistency in techniques used to analyze bitemarks from one case to the next."
That's right. Scientists don't always agree they're examining a bitemark, let alone on who left it.
The NIST report might or might not inspire some humility in the criminal justice system. But it should offer ammunition to defendants against whom bitemarks are included in the prosecution's evidence.
"In September the President's Council of Advisers on Science and Technology (PCAST) released a report finding 'a dismaying frequency of instances of use of forensic evidence'—such as analyses of hair, bite marks, and shoe prints—'that do not pass an objective test of scientific validity,'" C.J. Ciaramella wrote for Reason in 2016. "This is not just a theoretical problem. Last year, the FBI admitted that nearly every one of the experts at its microscopic hair analysis lab had given scientifically invalid testimony. The breaches affected almost 270 cases. Of those, 32 defendants were sentenced to death, and 14 were executed or died in prison."
So, the NIST report on the failings of bitemark analysis provides extra backing for what even the White House admitted two administrations ago: those cop shows about super-accurate science linking criminals to their foul deeds are more science fiction than whodunnit. As it turns out, it takes a lot more evidence to end the use of bad forensic techniques than it does to throw people in prison or put them on death row.
]]>
Billy Binionhttps://reason.com/people/billy-binion/billy.binion@reason.comhttps://reason.com/?p=82062632022-10-07T00:10:24Z2022-10-06T21:24:05Z
President Joe Biden announced Thursday that he is pardoning every U.S. citizen and lawful resident convicted in federal court of simple marijuana possession. That is a very fortunate announcement for the several thousand people convicted at the federal level of simple possession, but it still leaves thousands of other federal cannabis offenders facing draconian sentences for larger quantities.
Consider, for example, that just months ago, Biden's Department of Justice successfully prosecuted a man named Jonathan Wall and sought 10 years to life in prison for the crime of conspiracy to distribute cannabis. While Biden deserves praise for pardoning people no longer imprisoned, it is important to remember that he is extending that olive branch while insisting that the people who sold them marijuana should be caged for decades.
"It remains deeply disturbing," Jason Flores-Williams, who represented Wall in court until the conclusion of his trial in May, tells Reason. "While we're glad that the president is pardoning people for pot possession, really what needs to happen is the decriminalization or total legalization of marijuana so that people like my current clients and people who I've represented don't spend any time of their short precious lives incarcerated in a cage for a plant that I can go buy around the corner."
Flores-Williams notes that he still represents several people accused of marijuana distribution. The disconnect between possession and distribution got even wider today, as those charged with the latter will continue to face prison terms exceeding those served by defendants convicted of rape, assault, and various types of homicide.
"This is not a case about marijuana possession," Assistant U.S. Attorney Anatoly Smolkin said during Wall's trial. "This is a case about a drug conspiracy to distribute massive amounts of marijuana around the country." If possession should not be a crime, why are we caging people who help others secure access to cannabis?
These days, many consumers buy cannabis legally, including at the brick-and-mortar stores popping up in cities around the U.S., where it is legal at the state and local levels but still federally prohibited. Wall is no worse a violator of federal law than the cannabis businesses located just a mile or so from the White House in D.C., and no worse a person than the people who Biden now insists should never have been incarcerated in the first place. After his conviction, he now faces a minimum of a decade behind bars.
"He's trying to adopt the most politically expedient by which this can somehow be done without fully being done," says Flores-Williams. "Federal prohibition of marijuana has been a mistake from day one. Too many people have suffered, and right now the penalties are so radically diverse and unjust." With Biden's announcement, that gap just broadened.
]]>
Jonathan Wall (left), President Joe Biden (right)Matt Welchhttps://reason.com/people/matt-welch/matt.welch@reason.comKatherine Mangu-Wardhttps://reason.com/people/katherine-mangu-ward/kmw@reason.comPeter Sudermanhttps://reason.com/people/peter-suderman/peter.suderman@reason.comC.J. Ciaramellahttps://reason.com/people/cj-ciaramella/cj.ciaramella@reason.comhttps://reason.com/?post_type=podcast&p=82058092022-10-03T21:10:53Z2022-10-03T21:30:12Z
In this week's TheReason Roundtable, editors Katherine Mangu-Ward, Matt Welch, and Peter Suderman and special guest C.J. Ciaramella talk about the aftermath of Hurricane Ian and the current political discourse surrounding criminal justice reform.
2:05: Hurricane Ian's aftermath
21:38: The Jones Act is still terrible.
25:37: Weekly Listener Question:
Dearly beloved Roundtable,
When considering foreign policy issues, shouldn't libertarians worry not only about acts of commission but also acts of omission? It seems that libertarians are reflexively worried about acts of commission but seldom focus on the consequences that derive from lack of action (i.e., acts of omission). Isn't it at least possible that failure to act can lead to a less-libertarian preferred outcome? If so, how should one balance action vs. inaction?
36:20: The current discourse on criminal justice reform
Send your questions to roundtable@reason.com. Be sure to include your social media handle and the correct pronunciation of your name.
Today's sponsors:
Everyday Dose is the coffee alternative to start your days with. It's made from nonpsychedelic mushrooms, collagen, and nootropics that elevate mood, sharpen focus, and give an energy boost, all without the jitters and digestive issues that come with drinking traditional coffee. It tastes great too and is quick and easy to make. Try risk-free with a 60-day, money-back guarantee by going here now.
It can be tough to train your brain to stay in "problem-solving mode" when faced with a challenge in life. But when you learn how to find your own solutions, there's no better feeling. A therapist can help you become a better problem solver, making it easier to accomplish your goals—no matter how big or small. If you're thinking of giving therapy a try, BetterHelp is a great option. It's convenient, accessible, affordable, and entirely online. Get matched with a therapist after filling out a brief survey, and switch therapists any time. When you want to be a better problem solver, therapy can get you there. Visit BetterHelp.com/roundtable today to get 10 percent off your first month.
]]>
Scott Shackfordhttps://reason.com/people/scott-shackford/sshackford@reason.comhttps://reason.com/?p=82055852022-09-30T18:59:34Z2022-09-30T18:55:14Z
In a complicated turn of events, a teenage girl who California law enforcement thought had been kidnapped by her father was killed in a shootout between deputies and her father. Now the state attorney general's office is investigating what exactly happened.
On Monday, a woman named Tracy Martinez was shot and killed in Fontana, California. The suspect in the shooting was Anthony John Graziano, her husband, who then went on the run. The two of them had a 15-year-old daughter, Savannah. Officials worried that Graziano had kidnapped Savannah and put out an Amber Alert looking for her.
San Bernardino County sheriff's deputies found Graziano driving in his pickup truck on highways between Los Angeles and Las Vegas in the Mojave Desert on Tuesday. The deputies gave chase. According to police and news reports, deputies pursued Graziano for 70 miles, with Graziano shooting at them at times, reportedly disabling one of the patrol cars.
Deputies finally managed to contain Graziano on an offramp near the town of Hesperia, and a massive gunfight followed (some of which was captured by bystanders on video). At some point, Savannah jumped out of the truck and ran toward deputies. She was shot and killed. (At this point, it's not clear whether she was shot by deputies or her father.) Graziano was also killed in the shootout.
When the San Bernardino County Sheriff's Department first discussed what went down, Sheriff Shannon Dicus said Savannah was wearing body armor and a tactical helmet. "Evidence suggests that Savannah Graziano was also a participant in shooting at our deputies," Dicus said. He did not at the time get into detail about what that meant or whether she was armed when deputies shot her. Nevertheless, Dicus' suggestion was treated as credible.
Then, L.A.'s ABC7 tweeted that she "shot at deputies before she was killed in a highway shootout between her father—a fugitive wanted in the death of the teen's mother—and law enforcement." This is not what Dicus said. While Dicus was irresponsible for presenting vague information as "evidence" at a press conference, ABC7 compounded the problem by presenting something under investigation as fact.
The latest reports now show that Savannah was likely unarmed at the time that she was killed. After the state attorney general's office took over the investigation of the shooting, it found that the only weapon on the crime scene was an AR-15 recovered in the truck, which is where Graziano was killed.
The sheriff's department is no longer answering questions, directing media to the state attorney general's office for the investigation, according to the L.A. Times. ABC7's irresponsible and inaccurate tweet is still up, and now the news that Savannah was likely not armed is being described by them as a "stunning new twist."
The story is turning out even more complicated. It's not clear anymore whether Savannah was a kidnapping victim at all. Videos and eyewitness testimony from the scene of the mother's killing show that Savannah was there in the back seat of the truck when Graziano shot Martinez. This doesn't necessarily mean she was there voluntarily or was an accomplice (as the sheriff was suggesting). But at the time of the chase, authorities thought Graziano picked up and kidnapped his daughter after shooting Martinez, and that's apparently not the case. Savannah had been living with her father as the couple went through a divorce.
All we do know is that an unarmed teenage girl was shot and killed as she jumped out of a truck and ran toward deputies. The sheriff then spoke vaguely about what might have happened, suggesting that the girl may have been a threat, and some media outlets treated that presumption as fact. Media outlets really, really need to stop doing that.
]]>
Anthony and Savannah GrazianoScott Shackfordhttps://reason.com/people/scott-shackford/sshackford@reason.comhttps://reason.com/?p=82050262022-09-26T20:32:29Z2022-09-27T11:00:07Z
Black people represent less than 15 percent of the U.S. population, but they account for more than half of all exonerations, according to a new report released today.
The National Registry of Exonerations releases an annual report each spring documenting trends in cases the previous year where people who have been convicted of crimes have subsequently been found guilty. Today's report delves into racial patterns of the 3,200 exonerations the registry has documented dating back to 1989.
The registry has taken note in its past annual reports of how black citizens are much more likely to be falsely convicted and then exonerated than white defendants. This report, looking over decades of history, shows that innocent black Americans are seven times more likely than white Americans to be falsely convicted.
There are some categories, like child sexual abuse and white-collar crimes, where a greater percentage of the exonerations are of white defendants. But in all categories except for white-collar crimes, blacks are disproportionately represented compared to their share of the population.
The reasons why are varied depending on the crime. It's more complicated than simply crying "racism," and the report explores some of the systemic issues. When talking about murder, the report doesn't shy away from the high homicide rate within the black community and the fact that the vast majority of homicides among both whites and blacks target somebody of the same race. Nevertheless, you can see big disparities in the likelihood of a black person getting convicted for a murder in which they are innocent. The report calculates that even though 40 percent of defendants imprisoned for murder are black, 55 percent of those exonerated for murder are black.
We shouldn't take this to mean that we should be looking for a more representative balance of race among exonerees. Rather, it's a warning of how our justice systems handle or mishandle investigations or prosecutions when the defendants are black. The report notes, "Official misconduct is more common in murder convictions that lead to exonerations of black defendants than in those with white defendants." The report analyzes several different types of government misconduct—from concealing evidence to witness tampering to perjury by officials—and calculates that such misconduct can be found in a greater percentage of murder cases with black defendants than white defendants. The difference is just 14 percentage points, but when you account for the greater number of black exonerations, official misconduct played a role in twice as many convictions (500 blacks to 236 whites) documented in the registry. And the study attributes the difference in the rate almost entirely to police misconduct.
For sexual assault, nearly 60 percent of all rape exonerations were of black defendants, even though only a quarter of all rape prosecutions involve a black defendant. Most are the result of misidentification by rape victims, most of whom were white. Innocent black people are almost eight times more likely to be falsely convicted of rape.
The misidentification problem is well-established by now, and the report points to the simplest explanation: "One of the oldest and most consistent findings of systematic studies of eyewitness identification is that white Americans are much more likely to mistake one Black person for another than to mistakenly identify members of their own race."
The number of new exonerations for sexual assault has declined, and that's actually good news. The number has plunged because the availability of pretrial DNA testing has made it much less likely that somebody will be convicted due to misidentification. DNA-based exonerations jumped up through the 1990s and early 2000s and then started to decline as the availability of testing stopped innocent people from being convicted in the first place. There have been only two documented cases of misidentified rape victims being exonerated since 2009.
Drug crime convictions also get some heavy analysis here because of the disproportionate enforcement of drug laws and the corruption it fosters in black communities. Even though surveys from the Department of Health and Human Services show that white and black people use drugs at similar rates (12 percent and 13.7 percent, respectively), blacks are up to five times more likely to be arrested for drug crimes, depending on the year surveyed.
The report notes that there's very little effort to exonerate people convicted of low-level crimes, even if they are innocent. Much of the effort focuses on people with very long prison sentences instead. But drug crimes are a big exception. They account for 17 percent of all exonerations, the second largest category after murders.
The registry focuses on these types of exonerations because of how they illuminate some very serious trends in bad policing. The registry notes clusters and groups of exonerations due to bad policing practices that draw in dozens, possibly even hundreds, of false convictions. In Harris County, Texas, for example, 157 exonerations happened over several years of people who had pleaded guilty to drug possession. Subsequent testing uncovered no illegal drugs in the substances that had been seized. And the registry notes that these exonerations only happened because Harris County has a policy of testing the drugs in a laboratory even if the suspect pleads guilty.
In Chicago, 186 people have been exonerated of drug crimes since 2017 due to a pack of police officers planting drugs, falsifying records, and committing perjury as part of running their own drug racket.
The emphasis on race when discussing criminal justice can frustrate people who see it all as a polarizing part of the culture war. The report doesn't treat it that way, fortunately. But what it does note in its conclusion is something libertarian criminal justice reformers note all the time. The elimination of the drug war entirely would result in a more just system that would be less likely to result in minorities as targets for police abuse. The solution to some of this racist police behavior isn't training or empathy or lectures on critical race theory. It's to just end the stupid drug war. The report concludes:
The causes of this extreme racial discrepancy are plain. Black people are much more likely than white people to be stopped and searched by officers who are trolling for drugs, which puts them at risk of false drug convictions based on factual errors. And Black people are the great majority of the victims of police officers who systematically fabricate evidence to frame innocent defendants for drug crimes.
The solution is equally clear: Stop treating illicit drug use primarily as a criminal problem. The War on Drugs is a heavy burden on our country, but the worst costs are born by Black people and other people of color. If white people were stopped, searched and humiliated as often as Black people, would we even have a War on Drugs? What if police across the country engaged in methodical programs of planting drugs on innocent white people? It's hard to believe.
]]>
Joe Lancasterhttps://reason.com/people/joe-lancaster/joe.lancaster@reason.comhttps://reason.com/?p=82047232022-09-24T00:44:20Z2022-09-24T00:45:33Z
On September 21, Netflix released its latest docudrama, Dahmer—Monster: The Jeffrey Dahmer Story. In 10 episodes, the series tells the story of one of the 20th century's most notorious and depraved serial murderers, with a particular focus on his victims. The Netflix synopsis wonders, "Across more than a decade, 17 teen boys and young men were murdered by convicted killer Jeffrey Dahmer. How did he evade arrest for so long?" The show points a portion of the blame at the police themselves.
The show opens on Glenda Cleveland (Niecy Nash), a single mother who lived next door to Dahmer (Evan Peters) in Milwaukee. She grimaces as she overhears unsettling noises from her neighbor's apartment and smells putrid odors through the shared vent. Dahmer goes out to a bar and brings a man, Tracy, home with him. Almost immediately, the vibe turns threatening, but Tracy manages to escape and flags down a patrol car. While initially skeptical, the officers investigate the apartment and find the remains of numerous victims. Dahmer is hauled away to prison, and all is right.
Except as the rest of the series demonstrates, all is not quite right: As Dahmer is escorted out in handcuffs, Cleveland shouts, "I called y'all, and I told you over and over a million times that something was going on, and you know what you did? Y'all did nothing!"
Indeed, the real-life Cleveland alerted authorities to the suspicious activities of her neighbor at least two months before Dahmer's arrest. As depicted in episode 2 of the Netflix series, Tracy was not Dahmer's first victim to escape: In May 1991, Cleveland's daughter and niece found Konerak Sinthasomphone, a 14-year-old Laotian boy, in an alley, naked and in distress. Nicole Childress, Cleveland's niece, called 911, who sent officers and an ambulance.
But Dahmer arrived on the scene as well, advising officers that Sinthasomphone was 19 and that the two were romantically involved. Dahmer explained that Sinthasomphone, who did not speak during the interaction, was drunk and that they had had a fight. Paramedics thought Sinthasomphone needed treatment, but the officers disagreed and sent the ambulance away. Rather than probe further, the officers returned Sinthasomphone to Dahmer's apartment and left. Afterward, they radioed back to the precinct, amid laughter, "The intoxicated Asian male was returned to his sober boyfriend." One quipped, "My partner is going to get deloused at the station."
As it would turn out, Sinthasomphone was nonverbal because, before his escape, Dahmer had drilled a hole into the boy's skull and poured acid into his brain. After police returned him to the apartment, Dahmer killed him.
As soon as police left, Cleveland began calling repeatedly to ask for more details. She offered her daughter and niece as witnesses, but the responding officers indicated, "It was an intoxicated boyfriend of another boyfriend…It wasn't a child. It was an adult." Finally, when Cleveland persisted, the officer replied "Ma'am. Ma'am. I can't make it any more clear. It's all taken care of. He is with his boyfriend, in his boyfriend's apartment… I can't do anything about somebody's sexual preference in life." In the incident report, the officers reportedly deemed the situation a "domestic squabble between homosexuals."
Four more victims were killed between Sinthasomphone's death and Dahmer's eventual capture. Dahmer would later tell police that when the boy was returned to the apartment, photos of previous victims were strewn around the floor and a body was in the bedroom "smelling like hell." And if police had run a background check on Dahmer, they would have seen that at the time, he was on probation for sexually assaulting Sinthasomphone's brother three years earlier, when he was 13.
The show depicts Dahmer behaving with a certain carelessness, as if he doesn't need to try particularly hard to cover his tracks. When Cleveland brings up the awful smell coming from his apartment, he shrugs her off: His tropical fish just died, so that's probably what it is. When the officers question him about Tracy, he tries the same tactic: "We're homosexuals," this is just "gay stuff." In each case, it seems clear that similar explanations have worked in the past.
Dahmer escaped suspicion by drawing most of his victims from the fringes, mostly gay racial minorities. As such, the show lays some of the blame on police for seemingly not caring enough about marginalized populations to sufficiently investigate. In fact, the real story is almost too unbelievable for dramatization: After Dahmer's arrest, the city fired the two officers who returned Sinthasomphone and joked about them afterward. But they were later reinstated on appeal, each receiving around $55,000 in back pay. A decade later, one of the officers, John Balcerzak, was even elected president of Milwaukee's police union, a position he held for four years.
Unfortunately, as Dahmer demonstrates, police failure to intervene when explicitly necessary is not new. All too often, police cannot be relied upon to protect the public and, in fact, are not even required to. As the Supreme Court ruled in DeShaney v. Winnebago County Department of Social Services (1989): "Nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors."
]]>
Elizabeth Nolan Brownhttps://reason.com/people/elizabeth-nolan-brown/elizabeth.brown@reason.comhttps://reason.com/?p=82027142022-09-08T14:02:34Z2022-09-08T13:32:34Z
Reporter was "pursuing a potential follow-up story" after earlier negative reporting on the official. An elected official in Las Vegas has been arrested in conjunction with the murder of Las Vegas Review-Journal investigative reporter Jeff German, who was stabbed to death outside of his Las Vegas home last weekend.
A longtime reporter for the Review-Journal, German had "made a career of breaking big stories about everything from organized crime and government malfeasance to political scandals," as the paper describes it.
One of the subjects of German's reporting was Clark County Public Administrator Robert Telles, who has now been arrested as a suspect in German's death.
The public administrator's office was "mired in turmoil and internal dissension," wrote German in May. "A half-dozen current and former employees interviewed by the Review-Journal are alleging the hostile work environment was fueled by the elected administrator of the office, Robert Telles, carrying on an 'inappropriate relationship' with a staffer that has harmed the office's ability to deal with the public in overseeing the estates of those who have died."
In a June letter posted to his campaign website, Telles "attacked the Review-Journal and its reporting and claimed the allegations against [him] were false," German reported at the time. The letter "also leveled what the employees allege was a threat to retaliate against them for stepping forward."
Telles lashed out at German on Twitter, too:
Does the @LVRJ know that @JGermanRJ may be doing double duty on their dime? Do they know he basically made a veiled threat to make me take down my site with the truth after I already lost the election? #LasVegaspic.twitter.com/9H2szMAGtV
Former Public Administrator John Cahill told German in June that Telles was "ethically challenged."
On Wednesday, the Review-Journal's executive editor, Glenn Cook, said the paper's staff were "relieved Robert Telles is in custody and outraged that a colleague appears to have been killed for reporting on an elected official."
German worked at the Review-Journal since 2010, coming there after two decades with the Las Vegas Sun.
At the time of his death, German "was pursuing a potential follow-up story about Telles in the weeks before he was killed," the Review-Journalreported today.
Telles' arrest came after police asked the public for help in identifying German's killer. "Police on Tuesday showed a brief video of a possible suspect walking on a sidewalk clad in bright orange 'construction attire' and distributed a photo of a distinctive red or maroon GMC Yukon Denali SUV with chrome handles, a sunroof and a luggage rack, saying it may have been linked to the case," notes the Associated Press. "Telles was seen in newspaper photos washing a similar vehicle parked in his driveway on Tuesday, and KTNV-TV reported the vehicle was towed away after police arrived on Wednesday."
FREE MINDS
The wage premium from having a college degree is falling:
The college wage premium has *falllen* over the last two years, as my new work with David Autor shows. Here is a sneak peek. Cc @jasonfurmanpic.twitter.com/PoHrYabzEI
A new paper looks at how access to guns helped decrease violence against black Americans in the Jim Crow south. The paper—to be published in an upcoming issue of the Journal of Law and Economics—comes from Mike Makowsky and Patrick Warren, two associate professors of economics at Clemson University. "Greater access to firearms in the Black community reduced the rate of lynching in the Jim Crow South," Makowsky summed up the results on Twitter. "In a context where you are excluded from the institutions of governance and public safety, where terrorism against you is condoned, the tools of self-defense matter."
"The more subtle result, though, is this: public policy and law is about more than the words on paper. It's about the institutions and mechanisms of enforcement," Makowsky added. "Firearms restrictions, from the 19th and early 20th centuries, were designed for Black disarmament, but they weren't *written* for Black disarmament. They didn't have to be. They understood that the enforcement institutions would ensure the laws would work as intended."
"When advocating, designing, and voting for public policies, we would do well to consider the prospect [of] unintended [consequences] created by the *precise intentions* of those enforcing them," he concluded.
QUICK HITS
BREAKING: US District Judge Reed O'Connor in Texas rules that requiring employers to provide coverage for PrEP drugs (preventing the transmission of HIV) violates the religious rights of employers under federal law (RFRA). pic.twitter.com/d85C3izqSF
— Chris "Subscribe to Law Dork!" Geidner (@chrisgeidner) September 7, 2022
• More on the PrEP decision here, from Reason's Stephanie Slade.
• "A judge on Wednesday struck down Michigan's 1931 anti-abortion law, months after suspending it," reportsThe Washington Post. "The law, which was long dormant before the U.S. Supreme Court overturned Roe v. Wade in June, violates the Michigan Constitution, said Judge Elizabeth Gleicher."
]]>
Billy Binionhttps://reason.com/people/billy-binion/billy.binion@reason.comhttps://reason.com/?p=82018722022-09-02T21:54:56Z2022-09-02T17:12:18Z
When Manhattan District Attorney Alvin Bragg was still a candidate for his position, there was a defendant he took a special interest in. "I #StandWithTracy," he tweeted in September 2020. "Prosecuting a domestic violence survivor who acted in self-defense is unjust."
There was a subtext to that message. He was referring to Tracy McCarter, a woman who was charged with murder for killing her estranged—and allegedly highly abusive—husband. It was Cy Vance, who Bragg was seeking to replace in office, who brought that charge against her. The translation: As your district attorney, I won't, and would never, prosecute such a case.
Bragg assumed office in January of this year. As of Tuesday, McCarter is officially headed to trial for murder.
It's not the first time Bragg has failed to apply the principles he won office promising to uphold. There was the case of Jose Alba, 61, a bodega worker who killed an irate customer: In early July, Austin Simon, 35, came behind Alba's workstation, attacked him after his girlfriend's payment was declined, and seemingly attempted to drag Alba out from behind the counter to continue the confrontation. Alba ultimately took a knife and stabbed Simon, who later died from his injuries.
Based on the store's surveillance footage, it appeared to be a fairly classic case of self-defense. Yet Bragg's office charged Alba with second-degree murder, sent him to Rikers Island—one of the most notoriously violent jails in the country—and initially sought a $500,000 bond to ensure he stayed there. This despite running on a platform infused with planks pledging not to overcharge and overincarcerate, and a promise to reform bail policies for pre-trial detention.
After a national outcry, Bragg dropped the charges. But McCarter has not been fortunate enough to attract the same outpouring of attention, notwithstanding the fact that her case also looks like a textbook definition of self-defense, and notwithstanding the fact that Bragg specifically leveraged her misery to distinguish himself from his predecessor.
McCarter was arrested in March 2020 after stabbing her husband, James Murray, who reportedly entered her home, where he did not live, heavily intoxicated, and allegedly threatened her life. She was found trying to administer CPR while screaming for assistance, and her neighbors say Murray had been on a bender in the building. But the grand jury that approved a murder charge against McCarter didn't hear about Murray's drunkenness that day, or his detailed history of violent behavior and abuse, because prosecutors declined to share it.
Bragg, however, could have charted a new course. As the D.A., he has power over which cases he does and does not want to prosecute. As I wrote in July:
Prosecutors enjoy wide discretion on the job—a discretion that Bragg exercises liberally when it suits him. Upon ascending to the top of the D.A.'s office, Bragg announced that he wouldn't prosecute certain crimes, like sex work and marijuana possession. That's not because the New York Legislature had a change of heart on those issues; it's because Bragg has the power not to enforce certain crimes as he sees fit.
Yet not unlike Alba, McCarter encountered a different Bragg from the outset of his time in office. She encountered the tough-on-crime Bragg, who initially fought to make sure she could not leave New York City for psychiatric treatment as a condition of her bail. It was an odd move, particularly when considering this is the same defendant who Bragg insisted should never have been charged with any crime in the first place, much less be subjected to restrictive pre-trial conditions.
"Bragg has demonstrably failed at living up to his campaign promises. He's very much turning out to be the opposite of what he ran on," says Olayemi Olurin, a public defender with the Legal Aid Society of NYC (and a friend of mine). "He drew attention to this case himself…and here he is in office with all the ability to drop the charges."
The latter point bears repeating. Bragg had a very public about-face in the case of Alba, who has since announced he is moving to the Dominican Republic. (Can you blame him?) But Bragg's office has only extended haphazard gestures of mercy toward McCarter. Earlier this week, a judge declined Bragg's request to downgrade the charges from murder to manslaughter—because prosecutors once again did not bother to furnish evidence of her domestic abuse. That evidence includes a 2009 police report detailing Murray's arrests, written correspondence from 2018 in which Murray admits to physical abuse, and a 2019 video of a naked, intoxicated Murray attacking McCarter.
"They affirm, without reference to exhibit or documentation, that she is a survivor of domestic violence," wrote Acting New York State Supreme Court Justice Diane Kiesel. Again, that's not because those exhibits don't exist.
But prosecutors' laziness with that motion just begs the same question once again: Why are they fighting to uphold any charge when they could seek to have it dismissed, as they did in Alba's case? Bragg could, for instance, reconvene a grand jury and actually present the evidence of domestic violence; it is also not unheard of for prosecutors to botch a grand jury hearing if they do not think the case is worth pursuing. So too could Bragg file a request to vacate the charge entirely. Instead, the same prosecutor who publicly called the killing "self-defense" must now ensure it is called murder in court, after admitting again this week—in court—that his office does not think it was a murder.
The ludicrousness of that proposition perhaps makes a bit more sense in the context of political expediency, something that Bragg has navigated clumsily since entering office. "I don't think charges should be brought against Jose Alba, and I think the good thing is for them to be dismissed," says Olurin. Yet Alba's case generated a rare sort of public backlash, particularly in conservative circles, attracting primetime segments on Tucker Carlson's Fox News program. "These progressive prosecutors are very attuned to media attention," she adds.
They are, after all, politicians. But while McCarter may have been useful on the campaign trail, she has proven decidedly less so after the fact.
For Bob and Angie Shepherd, the news kept getting worse. First, Angie's car was stolen from their Alexandria, Virginia, home. Next, police in Prince Georgia's County, Maryland, told them it was used in a murder. And now, District of Columbia officials are demanding the Shepherds pay $400 in tickets accumulated by the people who stole the car, even after the Shepherds sent them documents showing the car had been stolen.
]]>
Elizabeth Nolan Brownhttps://reason.com/people/elizabeth-nolan-brown/elizabeth.brown@reason.comhttps://reason.com/?p=82005592022-09-02T15:18:50Z2022-08-22T13:40:59Z
It's become commonplace to talk of an "epidemic" of mass shootings. But new data suggests the "only epidemic is in fear levels," as Northeastern University criminologist James Alan Fox puts it.
The data come from USA Today, Northeastern University, and the Associated Press, which tracked mass murders in which four or more people (excluding the killer) were killed in a 24-hour period. Fox oversees this database, which goes back to 2006. It includes not just mass shootings but other sorts of mass murder, such as arsons and vehicular homicides.
"The number of mass killings in 2022 is about average compared with previous years despite recent shootings that captured public attention," USA Todayreports. "The number of victims is somewhat higher than average but still below previous highs."
"Cases in which someone shoots strangers in a public place usually get the most attention," the newspaper adds. "But fatal public shootings are a small fraction of all mass killings."
Needless to say, murders of any kind are tragic. But the database challenges the conventional wisdom about mass murders, showing that their frequency has held relatively steady since 2006.
In 2006, there were 38 mass killings—the second highest number in the database. The year with the highest number was 2019, with 45 incidents (including 8 public shootings, 25 non-public shootings, and 12 non-shooting incidents). In 2008, there were 36 mass killings and 35 in 2021. On the lower end, there were 22 mass killings in 2012; there were 25 each in 2013, 2014, and 2018; and there were 26 in 2007. There have been 19 incidents so far in 2022.
Public mass killings occurred on average six times per year, notes Fox. The most in any one year was 10, in 2018.
Since 2006, the number of victims killed in mass murders of any sort—public and non-public, shootings or otherwise—was highest in 2019 (229 victims), 2017 (226), and 2016 (196). Before this, the highest years were 2006 (183), 2009 (172), 2021 (172), and 2008 (171).
The years with the least victims were 2020 (114), 2014 (113), 2013 (116), 2010 (121), and 2018 (140).
So far in 2022, there have been 108 people killed in mass murders—42 in public mass shootings and 66 in non-public mass shootings.
"A guy who kills his wife and children and sometimes kills himself is the most common type of mass killing," Fox told USA Today. "Mass killings take place far more often in private homes than in schools, markets or churches."
From 2006 to now, the data show 349 mass killings in some sort of residence or private shelter and 155 in public places, including 50 in commercial, retail, or entertainment establishments, 32 in open spaces, 12 at schools or colleges, and seven in churches. Regardless of location, the killers were overwhelmingly men.
Mass killings "take place across the country in towns of all sizes," the newspaper notes. "Homicides with fewer than four victims are more common in larger cities, but mass killings with higher death tolls often take place in smaller towns or rural settings."
FREE MINDS
Female voter registrations surge following abortion ruling. New data from the political data firm TargetSmart suggests that in the wake of the Supreme Court's ruling in Dobbs v. Jackson Women's Health Organization, some states have been seeing a surge of women registering to vote. "This isn't just a blue state phenomena. In fact, it is more pronounced in states where choice is more at risk, or has been eliminated by the decision," TargetSmart CEO Tom Bonier pointed out on Twitter.
The largest gender gap in new voter registrations was seen in Kansas, where voters at the beginning of August rejected an anti-abortion ballot measure. "70% of Kansans who registered to vote after the Dobbs decision was released were women," TargetSmart reported on August 3.
Double-digit gender gaps in new voter registrations are also seen in Idaho (18 percent), Wisconsin (17 percent), Louisiana (13 percent), Pennsylvania (12 percent), Ohio (11 percent), Missouri (10 percent), and Colorado (10 percent), per TargetSmart's data. Voter registration gender gaps ranging from 5 to 7 percent were seen in North Carolina, Connecticut, New Mexico, Alabama, Maine, Georgia, Indiana, South Dakota, Illinois, and Florida.
Here are the states with the biggest gender gap among new registrants since the Dobbs decision was handed down. This isn't just a blue state phenomena. In fact, it is more pronounced in states where choice is more at risk, or has been eliminated by the decision. pic.twitter.com/X4Kj2oG550
Drilling down a bit in some states, TargetSmart found that registrations have been heavily concentrated among younger women and Democrats. For instance, in Pennsylvania women account for more than 56 percent of post-Dobbs voter registrations. ("For reference, among all registrants in PA, women outnumber men by only a 4 pt margin," tweeted Bonier.) More than half of these new women voters were under age 25. And 62 percent registered as Democrats, compared to just 15 percent as Republicans. New male registrants in Pennsylvania also trended young and Democratic, but by smaller margins (41 percent under age 25, 43 percent Democrat, and 28 percent Republican).
In NC, pre-Dobbs, new registrants +1 GOP. Post-Dobbs, +5 Dem.
Meanwhile, "in states like New York or Rhode Island, where the right to choose is protected by state law and reinforced by state officials, the motivation amongst women to register to vote is much lower and the numbers aren't telling the same story," suggests TargetSmart. The gender gap among new New York voters was less than 3 percent, and in Rhode Island it was nearly equal.
FREE MARKETS
The North Carolina Department of Transportation (NCDOT) proposes seizing homes to make way for highway. The agency wants to use eminent domain powers to make room for VinFast, a Vietnamese automobile company, by expanding a highway to accommodate it.* "Altogether, NCDOT estimates it will need to take 27 homes and five businesses and move Merry Oaks Baptist Church," reportsThe News & Observer:
"They're going to mess up a good home place," said Lena Stone, who stands to lose four houses—hers and three rental properties where NCDOT plans to widen Pea Ridge Road. Stone has lived there since 1973, and the property has long been a family gathering place, said her daughter, Rhonda Mitchell….
It often takes many years for NCDOT to plan big highway projects like this. But the timeline here is set by VinFast and the state's desire to see it begin producing electric SUVs at the plant in 2024. Chatham County and the state offered the company $1.25 billion in tax and other incentives to locate here, including about $250 million for road and rail improvements in and around the site.
QUICK HITS
• Onlooker video shows police officers in Crawford County, Arkansas, beating up a man they pinned down outside a convenience store. Two of the deputies involved "have been suspended" pending the outcome of an investigation, the Crawford County Sheriff's Office said.
• A partial hand recount of Kansas votes on an anti-abortion ballot measure confirms that the measure failed. "Nine of the state's 105 counties recounted their votes at the request of Melissa Leavitt, who has pushed for tighter election laws," reports the A.P. "After the recounts, 'no' votes lost 87 votes and 'yes' gained 6 votes."
• A federal court has ruled against key parts of Florida's "Stop WOKE Act."
• Hugo Chavez and socialism are being "erased from the Caracas skyline," saysBloomberg. In their place: ads for makeup, phones, and jeans.
• A Florida sheriff's deputy has resigned after bodycam video showed him telling a speeding car "pull the vehicle over or I'll put you into the ground" and then pulling a gun on the driver of the car, who was a pregnant woman with kids in the backseat. "Rather than immediately pull over, [the woman] turned on her emergency lights and kept driving in order to find a well-lit area," the New York Postreports.
]]>
Scott Shackfordhttps://reason.com/people/scott-shackford/sshackford@reason.comhttps://reason.com/?p=81999862022-08-17T17:43:04Z2022-08-17T17:45:28Z
Oklahoma's governor has ordered a two-month stay of execution for Richard Glossip as the Oklahoma Court of Criminal Appeals considers whether to review new evidence that might prove his innocence.
Glossip was scheduled to be executed on Sept. 22. On Tuesday, Gov. Kevin Stitt released an executive order allowing a 60-day stay and rescheduling the execution for Dec. 8 "to allow time for the Oklahoma Court of Criminal Appeals to address a pending legal proceeding."
Glossip has been convicted twice of the 1997 murder of Oklahoma City hotel owner Barry Van Treese. Glossip did not kill Van Treese. Justin Sneed, who was 19 years old at the time, beat Van Treese to death with a baseball bat. Both Sneed and Glossip worked at a hotel Van Treese owned. Sneed claimed that Glossip orchestrated the murder out of fears that he would lose his job at the hotel and that he promised Sneed money. Glossip denied any involvement, and his lawyers have argued that what likely happened was a robbery attempt gone wrong by Sneed.
Sneed accepted a plea deal to avoid the death penalty and blamed Glossip. Glossip took his case to a jury and was convicted and sentenced to death, which he's been fighting ever since. The lack of concrete evidence against Glossip has fueled concerns that the state may be about to execute an innocent man. This year dozens of state lawmakers, including many Republicans who otherwise support the death penalty, have joined the chorus pushing for a new review of the evidence.
Last week, Reed Smith, the independent law firm that has been reinvestigating the case, released some new evidence that casts further doubt on Glossip's guilt. Sneed sent a letter to his public defender in 2007 saying he wanted to contact Glossip's attorneys, adding, "It was a mistake reliving this." Advocates of Glossip's innocence see this as a possible indication that Sneed was thinking of recanting his testimony against Glossip.
As a result of Reed Smith's disclosure, lawmakers have been pushing harder to convince Attorney General John O'Connor to support a new evidentiary hearing. Tuesday's order from Stitt creates an opportunity for the Court to consider if there's enough evidence that Glossip was wrongfully convicted. Glossip has also filed a clemency petition with the Oklahoma Pardon and Parole Board.
]]>
Richard GlossipScott Shackfordhttps://reason.com/people/scott-shackford/sshackford@reason.comhttps://reason.com/?p=81990752022-08-11T21:15:21Z2022-08-11T18:35:04Z
In a letter dated August 4, 61 state legislators urged Attorney General John O'Connor to join a request by Glossip for a new evidentiary hearing to look over some of the information compiled by national law firm Reed Smith that purports to show Glossip's possible innocence.
Glossip is on death row for the 1997 murder of Barry Van Treese. Glossip did not actually kill Van Treese himself. Rather he was convicted for allegedly masterminding a plan for Justin Sneed (who was 19 at the time) to kill Van Treese. Van Treese owned the hotel in Oklahoma City where the two men worked; Glossip was the manager and Sneed a maintenance man. Sneed claimed that Glossip pressured him and offered him money in return for the deed. Glossip would ultimately be convicted twice—the first conviction being tossed in 2001—and sent to death row almost entirely on Sneed's claims. For his part, Sneed was spared the death sentence, accepted a plea deal, and sent to prison for life for beating Van Treese to death with a baseball bat.
Glossip was scheduled for execution in 2015, but he was spared when prison officials realized they had received an incorrect drug for the cocktail they use to execute inmates. The governor ordered a stay on all executions until officials could figure out what happened. Executions in the state were paused until just last year.
In June, after successfully fighting off a constitutional challenge to the state's execution methods, O'Connor began the process of rescheduling dozens of executions for the inmates sitting on death row. Glossip is second on the list, and the rescheduling has prompted a new push for a chance to prove his innocence.
Reed Smith released a lengthy report and summary in July laying out some of the problems with the case. The report shows that police investigating the murder immediately suspected Glossip and when interrogating Sneed repeatedly brought up Glossip's name and essentially pushed Sneed to point the finger back at Glossip. Jurors were not played the interrogation tape at either of Glossip's two trials. Other problems with the case have been highlighted in depth over the past decade.
This week, Reed Smith released an update that shows a letter Sneed allegedly sent from prison in 2007, following Glossip's second trial, to Gina K. Walker, the public defender who handled his case. In the letter, Sneed says he's planning to contact the attorneys with the Oklahoma Indigent Defense System (OIDS) who represented Glossip in the second trial. "I think you know were [sic] I'm going," Sneed wrote, "It was a mistake reliving this." He asks Walker to write back.
Walker (who died in 2020) wrote him back acknowledging that "some things are bothering [him]." She says she knows OIDS lawyers attempted to talk to him on Glossip's behalf and says that had Sneed refused a plea deal, he would be on death row himself. She is unsympathetic to Glossip's situation, saying, "Mr. Glossip has had two opportunities to save himself and refused to do so both times," meaning that Glossip had refused plea offers of his own and insisted on a right to a trial to prove his innocence. She concludes, "I hope he has not or his lawyers have not tried to make you feel responsible for the outcome of his case and his decisions."
Of course, Walker's job here is to defend her client and discourage Sneed from making decisions against his own interest. And the fact that Sneed is not on death row himself is likely attributable to his acceptance of the plea deal. But the tone of both Sneed's letter and Walker's response should clearly cast doubt on the circumstances of Van Treese's murder.
This newly revealed letter has prompted Oklahoma state Rep. Kevin McDugle (R–Broken Arrow) to push harder for a new hearing on the evidence against Glossip.
"In 2014, there were statements circulating that Sneed's daughter said Sneed wanted to recant, but she never came forward. With this letter written by Sneed, we have compelling new evidence that strongly supports what we heard. That Sneed wanted to recant his statement implicating Richard Glossip and his attorney shut him down," said McDugle in a prepared statement. "Given that the state's case rests entirely upon Sneed's testimony implicating Glossip, it is imperative that the court remand the case for a hearing before Richard is scheduled to be executed on September 22."
Prosecutors in O'Connor's office have been resisting this push and urging Oklahoma's courts to reject the hearing as a delaying tactic.
]]>
Richard GlossipCharles Oliverhttps://reason.com/people/charles-oliver/https://reason.com/?p=81965082022-07-25T13:27:58Z2022-07-26T08:00:41Z
At around 7 p.m. on June 14, Parrish Chambers began banging on the door of Connie Dadkhah's San Diego home and screaming loudly. Two neighbors called 911 to report him. An NBC 7 report found that neighbors continued to call, at least five more times, over the next hour, but no officers were dispatched. At around 8, Chambers broke through the glass door on the balcony of Dadkhah's home. Neighbors again called, reporting the break in, with at least one telling a dispatcher that Chambers appeared to have a weapon. Cops arrived about 45 minutes later. When they arrived, neighbors pointed to the broken glass and told them Chambers was still inside. The police knocked on the door and called Dadkhah's phone. When she didn't answer, they left. The next morning, Chambers came outside and told a neighbor to call 911 because Dadkhah was dead. This time, police arrived in just a few minutes and arrested Chambers for her death.
]]>
Billy Binionhttps://reason.com/people/billy-binion/billy.binion@reason.comhttps://reason.com/?p=81950232022-07-13T21:01:06Z2022-07-13T21:01:06Z
An Alabama prisoner has been charged with murdering a correctional officer who killed herself.
That is not a misprint.
On April 29, Casey White escaped from the Lauderdale County Jail with the help of Vicky White, who was the assistant director of corrections. The pair were engaged in a romantic relationship (and were not related).
White's escape led to an 11-day search for the duo, culminating in a high-speed chase that ended with Vicky White fatally shooting herself in the head. Law enforcement recently charged Casey White with her murder.
It is not contested that Vicky White died by suicide, and prosecutors acknowledge that she acted on her own volition when she facilitated the escape. But under the felony murder rule, law enforcement may charge someone with a killing they didn't actually carry out if the death occurred in the commission of another felony—in this case, Casey White's first-degree escape.
He is certainly not a sympathetic character. But his murder charge is yet another example of how the felony murder rule has been bastardized in its application, joining a long list of cases that read almost like parody.
Consider the case of Jenna Holm, an Idaho woman who was experiencing an apparent mental health crisis when cops were called to help her. Upon arriving, Sergeant Randy Flegel drove his car into Bonneville County Sheriff's Deputy Wyatt Maser, killing him. An internal investigation produced a laundry list of safety protocols the cops failed to follow that evening. But instead of assigning blame to negligent officers, they charged Holm with manslaughter. If she had not been in crisis that evening, then police never would have been called, and thus they would all still be living.
The charges were eventually ruled unconstitutional under Idaho law, but only after Holm sat in jail for 16 months in pre-trial detention.
Not every defendant has been so fortunate, if you can call Holm fortunate. There was the case of Masonique Saunders, who, at 16 years old, allegedly helped her then-boyfriend, Julius Ervin Tate Jr., plan a botched robbery. A SWAT agent shot and killed Tate, which police acknowledge, yet law enforcement charged Saunders with murdering him.
A more traditional application can be seen with the case of Fanta Bility, an 8-year-old girl who police shot and killed in Pennsylvania while trying to break up a gunfight between two teens. The latter were charged with first-degree murder under the doctrine of transferred intent. Although those charges were later dropped, it's not unfair to argue that the teens created a violent environment that directly facilitated Bility's death. (Officers Devon Smith, Sean Dolan, and Brian Devaney have since been charged with manslaughter and reckless endangerment.)
But, as with so many laws, the government continues to weaponize felony murder, allowing some people—including government agents—to completely shirk responsibility.
]]>
Casey White (left) and Vicky White (right)Charles Oliverhttps://reason.com/people/charles-oliver/https://reason.com/?p=81875862022-05-31T14:40:16Z2022-06-06T08:00:19Z
The Kansas Supreme Court has disbarred former Shawnee County chief deputy district attorney Jacqueline Spradling, citing a "serious pattern of grossly unethical misconduct" in her 2012 prosecution of Dana Chandler for double murder. The court had earlier overturned Chandler's conviction because of prosecutorial misconduct. "She ignored the order of a district court, repeatedly made arguments to the jury that lacked any evidentiary support, intentionally lied to this court in her briefs and in oral arguments, and made false statements during the disciplinary investigation," the justices wrote.
]]>
Charles Oliverhttps://reason.com/people/charles-oliver/https://reason.com/?p=81843022022-05-09T15:01:32Z2022-05-12T08:00:17Z
A Maryland appellate court has overturned the murder conviction of Michael Maurice Allen Sr., who is serving life in prison for fatally stabbing his girlfriend in 2018. The court found a prosecutor and a judge violated Allen's constitutional right to remain silent during his trial. The prosecutor told jurors that Allen's decision to stop answering a detective's questions about the death indicated he was guilty. The judge overruled an objection by Allen's defense attorney and did not tell jurors to ignore that remark. The appellate court's decision means Allen can be retried.
]]>
Scott Shackfordhttps://reason.com/people/scott-shackford/sshackford@reason.comhttps://reason.com/?p=81812722022-04-22T17:29:57Z2022-04-22T17:40:41Z
A scheduled execution in Tennessee Thursday night was put on temporary hold by the governor, but it's not entirely clear why.
Oscar Franklin Smith, 72, was scheduled to be executed via lethal injection, but one hour before the deed was to be done, Gov. Bill Lee issued a temporary reprieve. A statement from the governor said that there was an "oversight in preparation for lethal injection," but didn't explain what the issues were.
The reprieve will last until the start of June.
The drugs states have been using to execute prisoners have become the source of controversy in recent years, particularly in Tennessee. Smith was actually scheduled to be executed back in 2020, but his lawyers filed a complaint over the three-drug cocktail they had planned to use. The cocktail would have stopped the prisoner's heart, but it was possible for him to remain conscious for several minutes and to feel searing pain in his veins. One of the drugs, midazolam, which is supposed to render the prisoner unconscious, has failed to work properly in some executions.
Smith's defense attorney, Kelley Henry, told The Tennessean that she believes the prison likely mishandled the execution drugs. She had requested that the Tennessee Department of Correction provide proof that the drugs had met all the appropriate testing standards but had not gotten a response prior to the governor's reprieve.
Smith was sentenced to death in 1990 after he was convicted of three counts of first-degree murder for killing his wife and her two teenage sons from another marriage. Smith has maintained his innocence throughout his imprisonment. He has been trying to get courts to consider whether new DNA evidence on one of the murder weapons—DNA that doesn't match his—could prove his innocence. But both the state's Supreme Court and the U.S. Supreme Court have rejected the effort.
Meanwhile, a rare execution by firing squad scheduled to happen next week has been temporarily put on hold by South Carolina's Supreme Court. Death row inmate Richard Moore had been scheduled to be put to death on April 29. Because of the aforementioned issues with lethal injection cocktails, South Carolina changed its execution methods in 2021 to either the electric chair or firing squad.
Moore is fighting the execution, his attorneys arguing that the state cannot retroactively change the method of execution on him. On Wednesday the South Carolina Supreme Court put out a brief order giving Moore a temporary stay of execution. The order did not explain why but said an explanation of the order that would establish the parameters of the stay would soon follow.
Smith and Moore may have survived so far, but over in Texas, prisoner Carl Wayne Buntion was put to death last night via lethal injection. Buntion, 78, was Texas' oldest death-row inmate, sentenced for killing a Houston police officer in 1990. He was given a lethal dose of the sedative pentobarbital, and after a few last breaths, he was pronounced dead at 6:39 p.m.