Law & Justice: February 2004 Archives

It's very common for illegal aliens to commit a crime such as murder (95% of outstanding homicide warrants target an illegal alien) and then flee to Mexico. California prosecutors can ask for extradition, but Mexico won't extradite anyone who may face the death penalty. However, once the Mexican authorities are aware of a crime that was committed in California, they may decide to prosecute it themselves, get a conviction, and then impose a rather light sentence (by American standards). For example:

Another example involves Mario Abendano Chaidez who shot and killed 17-year-old Francisco Barajas Lopez in Los Angeles on November 8, 1989 . The murder occurred after Chaidez lured Lopez out of his house to ask him about Lopez' telephone calls to Chaidez's daughter. After a brief conversation, Lopez walked away from Chaidez and was shot in the back of the head.

Chaidez then fled to Mexico where he was acquitted of murder then tried and convicted of manslaughter. Chaidez ultimately served two years in custody before being sentenced to an additional eight years in which he was required to serve time on weekends only. In California , Chaidez would have faced a murder charge and a possible sentence of 35 years to life.

The problem is that under current California law, if the criminal returns to the state we can't prosecute him for the crime anymore -- he's already been convicted in Mexico. (This isn't because of the double jeopardy prohibition in the Constitution.)

The end result is that prosecutors are wary of seeking extradition because they're often afraid that the request will be denied and that they'll then lose any opportunity to get a conviction later because Mexico will try the case itself (and give a lenient sentence).

Somewhat confusing, I know. California Assembly Bill 1432 seeks to amend the controlling statutes to allow authorities to prosecute suspected felons even if they've already been tried in another country. If it passes, it would likely lead to more extradition requests because it would remove one of the major disincentives. It doesn't mean more extraditions would be granted, but at least if criminals return to America we'd be able to go after them.

On an unknown date, Chaidez re-entered California before being arrested on a warrant for the 1989 murder in October 2002. Due to current California law, Chaidez's warrant was quashed and his case was dismissed. If Chaidez is arrested again and convicted of a felony, the three-strikes law and the five-year sentence enhancement for a prior serious felony conviction would not apply under the present law.

There seems to be an idea floating around that treaties can trump the Constitution. Eugene Volokh even mentions it here. Now, of course, there's no telling how activist judges of the future may interpret the Constitution (which seems to be Mr. Volokh's fear), but from a direct reading of the text it's hard to see much cause for concern. Paragraph 2 of Article VI says:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Thus, "laws of the United States" and "treaties" are put into the exact same category, as is appropriate. The former are proposed by Congress and signed by the President, and the latter are proposed by the President and ratified by the Senate -- there's no reason to think that either should have more authority than the other.

Further, even if one were to somehow conclude that treaties could be used to nullify portions of the Constitution, the Bill of Rights and subsequent amendments would be immune. Why? Because the authority of any treaty would rest here in Article VI, and when amendments are passed they override any pre-existing Constitutional obstacle to their enforcement. Just as the Thirteenth Amendment invalidated portions of Article IV, the Bill of Rights and subsequent amendments would have to be held to invalidate any interpretation or use of the treaty clause that opposed their enforcement.

In a surprising (to me) decision, the Supreme Court has decided that it's perfectly acceptable for states to discriminate against religious minorities by witholding scholarship funds from religious students that are otherwise available to everyone else.

The court's 7-2 ruling held that the state of Washington was within its rights to deny a taxpayer-funded scholarship to a college student who was studying to be a minister. That holding applies even when money is available to students studying anything else.

So I assume a state would be allowed to deny scholarships based on race or gender also, right? Or at least to people who plan on majoring in racial or gender studies?

The First Amendment should be construed so as to prevent the government from taking any notice of a person's religion, and should prevent religion from being the basis for any government decision. That means that just the government should not favor the religious above the secular, it should not deny benefits to the religious that it provides to the secular.

Despite the absolute depravity of the rape and murder of Maryann Measles, her killers shouldn't be sent into a system that implicitly uses rape and torture as an aspect of punishment, despite the desires of the victim's mother.

Alan Walter Jr., one of eight friends accused of abducting, raping and drowning 13-year-old Maryann Measles (search) in October 1997, pleaded guilty Thursday to six counts, including felony murder. Under the plea agreement, Walter, who was originally charged with capital felony, will be spared the death penalty. Prosecutors are recommending a life sentence, which in Connecticut is 60 years in prison. ...

Measles' mother, Cindy, broke down in tears as Litchfield State's Attorney David Shepack recounted the details of the crime. She said she signed off on the plea bargain because she wants Walter to suffer.

"I want him to learn how to sleep with one eye open, and always look over his back every second of the day, never have a moments peace," she said. "I want him to know some of the terror Maryann had to experience. I think that's done most effectively with life [in prison]." ...

"He's going to get to know Bubba very well," she said.

First of all, Alan Walter Jr. should be executed, not given a "life" sentence that will really let him out in 60 years. Failing that, does a country that's too squeamish to execute a brutal ax-murderer or impose a real life sentence want to purposefully condemn a criminal to decades of rape and torture? Or are we content to allow it to happen due to neglect?

Our prison system needs serious reform. It's not acceptable that inmates are held in such inhumane conditions -- and I'm not talking about giving them cable TV and weight rooms. I don't care if we lock them up alone in eight by eight concrete block cells. But if we want to torture people, let's have that debate and do it purposefully, rather than with a wink and a nudge. Let's take responsibility for our society, otherwise we really are no better than barbarians.

I had a conversation last night with a friend who claims that the disparities in incarceration rates between American whites and blacks is evidence of a racist justice system. She said that whites are sentenced more leniently than blacks for the same crimes under the same circumstances and I disagreed, pending evidence. In the context of the discussion there wasn't much opportunity for research, but I did some scrounging around the web this morning.

Here's a memo from Human Rights Watch that gives some statistics on the racially disproportionate incarceration of drug offenders. Essentially, more blacks go to jail for drug crimes than whites, and for longer terms. The most significant aspect of the memo, however, is the conclusion -- which echos my position from last night.

The specific reasons for the discrepancy between the black proportion of felony drug convictions and of drug admissions have not been analyzed. They may include such factors as the type of drug offense, the type of drug, and the presence of prior record. For example, blacks comprised 56 percent of persons convicted of trafficking felonies while whites comprised 43 percent.

When these critical factors are controlled for, it may turn out that blacks are imprisoned at a rate disproportionate to their population simply because they commit a disproportionate number of crimes. Other important factors may include whether or not the offender was abused as a child, whether he grew up in a single-parent family, and so forth. If so, these imprisonment statistics aren't evidence of racism inherent in the system.

Here's an excellent example of why it's important for police to follow legal "technicalities".

An innocent homeless man spent more than eight months in jail because of lies told by three preteen Garden Grove girls and a botched police investigation. ...

Police now admit they were wrong to arrest Nordmark, because they used the same lineup of suspect photos for all three girls. Usually the lineup is changed.

Unbeknownst to police, the kids conspired to identify suspect No. 5: Nordmark.

"Let's be honest. If we were to do this again, would we have left the defendant as No. 5 in the lineups? Definitely not," said Lt. Mike Handfield. "Certainly we can learn something from what happened here .... but it doesn't help when kids get together and make up a story."

Although everyone wants to protect children from predators, it's important to remember that children lie a lot. Anyone who is around kids knows that's a fact. Although it's generally difficult for a child to successfully deceive an attentive adult, it seems to happen more often when the adult is eager to believe the lie.

Relating to the (apparently?) sexual nature of the non-crime, allow me to reiterate that such accusations are serious and that law enforcement needs to remember that the accused is innocent until proven guilty beyond a reasonable doubt.

This is an interesting Catch 22: some doctors are suing to overturn the recently passed partial-birth abortion ban, contending that the procedure is medically necessary; however, the doctors are objecting to the Justice Department's attempts to examine patients' medical records in order to establish the facts of the case. Pretty tricky! Medical records are normally immune to subpoenas, but without some information from the records it's impossible to know whether or not partial-birth abortion was ever medically necessary.

At stake are records documenting certain late-term abortions performed by doctors who have joined in a legal challenge of the disputed ban. President Bush signed the act into law last year.

Critics of the subpoenas accuse the Justice Department of trying to intimidate doctors and patients involved in the contested type of abortion. ...

Ashcroft said the Justice Department will accept the records in edited form, after deleting or masking any information that would identify a patient. Abortion-rights supporters nonetheless depicted the subpoenas as a dangerous intrusion into medical confidentiality. ...

Ashcroft, at a news conference in Washington, said the subpoenas were needed to enable the government to rebut these claims.

"The Congress has enacted a law with the president's signature that outlaws this terrible practice," Ashcroft said. "We sought from the judge authority to get medical records to find out whether indeed the allegation by the plaintiffs, that it's medically necessary, is really a fact."

It seems to me that what the plaintiffs are lacking is an actual woman with an actual medical condition that somehow requires a partial-birth abortion and is willing to waive the confidentiality of her medical records. I'm not a lawyer, but without such a patient I don't really see how the doctors have standing to sue any more than I myself would.

Further, how can they introduce evidence to support their claim that partial-birth abortion is necessary? Won't they need the medical records themselves? Or are we just supposed to take their word for it? After all, abortion is a thriving industry and it's reasonable to expect that the doctors who perform the procedure are eager to keep it as broadly legal as possible.

Another example of why I'm not entirely libertarian: I really think we need to limit tort liability. Libertarians advocate a reduction in government regulation and claim that people will regulate their own activities if we have a strong court system that allows them to sue each other for civil damages. For example, we wouldn't need building codes if building owners could be effectively sued for damages when their buildings collapse on people. Such a suit could be brought now, but would likely lose if the buildings met whatever codes have been established by the government; under the libertarian system, the plaintiff would always win such a case based on the facts in evidence -- your building collapsed, ergo it was not built properly and you owe me money.

The multitude of problems with our medical malpractice system belies the theory behind this sort of regulation through unlimited tort. Jurors, unfortunately, don't appear to be smart enough or dedicated enough to make wise decisions in these matters, and their judgements are driving health costs through the roof and putting doctors out of business. Just as over-regulation can strangle an industry, so can trial lawyers and plaintiffs looking to win the legal lottery.

It's cases like these that incline me towards thinking that law enforcement should have the capability to get a torture warrant that would allow them to forcibly extract information from perpetrators.

The man suspected in Carlie Brucia's (search) abduction, which was captured by a surveillance camera on Sunday, has not been cooperating with investigators, the Sarasota County, Fla., sheriff said. ...

"We have strong evidence that he is in fact the perpetrator," said Capt. Jeff Bell, the lead Sarasota County sheriff's investigator on the case.

Sheriff Bill Balkwill (search) told reporters during a morning news conference that his department was certain the 1992 Buick station wagon "is the vehicle that was used in the abduction." ...

"We don't have any motive," Lesaltato said. "We've tried talking to him, but he refuses to talk to us."

I don't know enough about the details of this case to say that this guy should be tortured, but I do think such measures would be appropriate in some circumstances. The problem, of course, is where to draw the line. Some might argue that it's better to never use torture than to risk misusing it, but I'm not convinced. Our criminal trial process unjustly convicts people from time to time -- and even executes them -- but we don't throw up our hands in despair and eliminate the entire justice system.

Regardless, this guy should have been off the streets a long time ago.

Smith has been arrested at least 13 times in Florida since 1993, according to state records.

He was arrested in 1997 in Manatee County on kidnapping and false-imprisonment charges. A 20-year-old woman in Bradenton said he grabbed her as she walked by and tried to pull her away, according to records released by the Manatee County Sheriff's Office.

"He got on top of me and told me to shut up or he would cut me," she told authorities. After a struggle, she said, she managed to run into the street, and passengers in an approaching van stopped and rescued her. ...

Records show other convictions for heroin possession, prescription-drug fraud and aggravated battery. Smith was placed on probation for cocaine possession last March.

This type of lifetime criminal is generally never reformed, and well-meaning attempts to do so are what lead to tragedies like this kidnapping.

Update:
I guess torture wouldn't have made a difference in this case, since the poor girl was already dead. I hope the guy fries. Unfortunately, it sounds like he may have bargained for leniency in exchange for revealing the location of the body.

I'm going to remember this post so that if I ever have kids I'll be able to explain to them exactly how serious they have to be about their safety. From the video it appears that the girl could have probably gotten away by screaming or throwing a fit, but she went along with barely a struggle.

Update 2:
Donald Sensing has some good tips on what to teach little girls.

Since when is it illegal to kill a raccoon that's rifling through a garbage can? As far as I'm concerned, any animal that doesn't belong to someone is fair game for a-killin'. At least common vermin like raccoons; I could possibly be convinced that it's in the public interest to protect endangered species, but the best way to do that is probably through property rights.

I'm a strong supporter of the 2nd Amendment, but I don't think seniors with failing faculties should be carrying concealed weapons.

Dorothy Maddock's eyes aren't what they used to be and she's hard of hearing, but like many seniors she refuses to be a victim and is packing heat for protection.

"The idiots that are out there, they don't care about us, what we have," said retiree Maddock. "They'd just as soon kill us for a buck than look at us."

Well yes, that's true, but I think it's obvious that people should be required to demonstrate that they're competent to use a gun safely before they're allowed to carry. I'm not that worried about people's judgement on when using a gun is appropriate, but I do think it's important that anyone who carries be physically able to use their weapon in a safe and effective manner.

Forty-six states now let citizens carry concealed weapons (search), but is it safe for seniors whose hand and eye coordination isn't what it used to be to own a firearm? Haddock and friends say it's their right and they aren't taking any chances.

Own a firearm? Sure. Carry it out into public? No.

States should set up rigorous training and testing programs, and then license anyone who passes, regardless of age. But, just as with driving a car, it's likely that many elderly people should not be allowed to carry handguns in public.