I highly recommend you look at this chart via Kevin Drum.
Mr. Drum writes:
- Since 1996, arrests of juveniles have fallen by two-thirds. Arrests for violent crimes have fallen by more than two-thirds. Bottom line: Kids today are way better behaved and way less scary than they were in the 90s. One of these days we ought to start acting like we know this.
The Oregon Supreme Court has granted review to a case involving child porn sentencing. The issue is this: how many different criminal episodes are there when multiple images are found during a single search, but those images were obtained on different dates?
I won't reiterate the arguments here, but it's my case, so if anyone wants the briefs after they're filed, let me know.
If the defense wins, the impact could be that a defendant who is an "I" would stay an "I" for all counts. While much better than being an "A" after just a few counts, are there any other limitations that could dramatically shorten the sentence?
Yes. If the state can't prove separate victims, the 200% rule would kick in, and the defendant's likely sentence would be no more than 36 months.
But what if the images all involve separate children? My argument -- which I have written about before -- is that the burden is on the state to show that the people depicted in the images are still alive at the time of downloading by the defendant, because if they aren't, they are beyond all harm, and thus cannot be victims (in the same way you can't libel the dead).
The state's response, shared by some defense attorneys, is that when you download the images ten, twenty or even a hundred years later, you -- as a consumer of these images -- are the reason these images were created in the first place, thus you are complicit in the original abuse. Consequently, it is the harm from the original abuse that makes the children "victims" for all eternity, even if the porn people look at five hundred years from now is the same porn that exists today.
I think this is wrong because I don't think the law recognizes retroactivity in this type of culpability. Space/time certainly doesn't. But there is another key reason, and when I say it, you're going to be shocked, but read on, and you'll see I'm not promoting an argument that only a psychopath would make.
For US crime statistics, go to the FBI's Uniform Crime Reports. This is a good place to start. As Kevin Drum states, "Their data delivery tool provides a lot of flexibility, allowing you to get data for specific crimes, specific localities, and specific time periods. Unfortunately, it's usually two years behind the latest release, so you have to wade through the most recent PDF reports if you want current data. If you need a complete series, start with the data tool and then fill in the most recent couple of years by hand from the relevant reports."
. . . . unleaded gasoline. Or more precisely, the phasing out of leaded gasoline in the US in the 1970s. You can easily find previous articles and evidence of this around the internet. Perhaps the most compelling evidence is that the drop in violence is entirely predictable based on when and how quickly leaded gasoline was phased out, regardless of the country. Here is the evidence as it relates to Britain, which phased out leaded gasoline much later than occurred in the US but, once it did so, did so much more quickly.
This isn't rocket science. We know what lead does to the brain, in terms of intellectual development and impulse control. That getting it out of the environment would have long term benefits for the children who grew up after lead was reduced or eliminated in their neighborhoods is entirely predictable and born out by the evidence.
Today, the Oregon Supreme Court came out with an opinion in State v. Morgan. It's a good defense opinion but not a good one for this particular defendant.
The most significant holding is that in a robbery in the second degree based on "aided by another person actually present," the "other person" must actually intend to aid the principal in the commission of the robbery. It can't be inadvertent assistance.
But there are a few things from the opinion that are very much worth highlighting.
Article is here.
“Native-born Americans are more likely to be incarcerated than Central American immigrants, and recent increases in immigration occurred as crime actually fell in the US.”
The costs referred to in the title are purely financial. But even those are huge, and likely conservative. The report comes from the Prison Policy Initiative. I haven't read it closely enough to determine if it includes the loss of tax income from inmates who would be working if they weren't incarcerated.
SCOTUS granted cert last week to a case with the following facts (taken from SCOTUSblog's summary):
- The first grant came in District of Columbia v. Wesby, a case that presents important questions regarding the assessment of probable cause by police officers and qualified immunity. The case arose when police officers in Washington responded to a noise complaint about a vacant house, where they found scantily clad women and the smell of marijuana. No one seemed to know who owned the house or precisely what the occasion was, but some of the partygoers told police that they had been invited by someone named “Peaches” or “Tasty” – who was not at the party, but who admitted that she did not have the owner’s permission to use the house.
- The partygoers were arrested for trespassing, but no charges were ever brought against them. The partygoers then filed a lawsuit, in which they alleged that the police lacked probable cause to arrest them because they had told police officers that they had been invited to the house and therefore did not intend to trespass.
The first piece involves the reduction, by 50%, of the number of black males under 30 who are incarcerated since 2001. The reason won't surprise anyone who has regularly read this blog. The thing to keep in mind is that, around the country, you're seeing lower incarceration rates for young males AND lower crime rates. Keep this in mind when you hear people defend higher incarceration rates as the explanation for reduced crime.
The second is a Slate piece about Oregon prosecutors. It's brief, and it tries to cover a lot of ground. Consequently, it's a more superficial discussion than I would like, but it's a start.
Here's the story behind it. It's another example of how the greatest anti-crime measure this country ever undertook was removing lead from gasoline.
I wrote about this back in 2011, after the COA had approved a state's instruction on possession with intent to delivery in State v. Schwab. Here's what I wrote, edited somewhat:
- [T]he challenge to the instruction was very limited and therefore the COA's holding was narrow. ("In short, the issue that defendant frames on appeal — whether a jury instruction that indicates that a person may be found guilty of delivery of a controlled substance based solely on the quantity of the substance found — is not actually properly before this court.") The Supreme Court denied review, but another strange thing happened. There was a written concurrence to the denial of review, an event I don't know if I've ever seen before. (Dissents, yes, though primarily from SCOTUS. I'm sure it's happened before, but never, for me at least, memorably.)
The concurrence first quoted the instruction at issue:
- "Under Oregon law, possession with intent to deliver constitutes delivery, even where no actual transfer is shown. An attempted transfer occurs when a person intentionally engages in conduct which constitutes a substantial step and includes, but [is] not limited to, possession of a large amount of a controlled substance, not for personal use, but consistent, instead, with trafficking in controlled substances."
Then the concurrence said this about the instruction:
From Justice DeMuniz's concurrence in Sullivan v. Popoff:
- The first issue has to do with the relevance of the so-called effect-on-the-listener statements. Every statement has an effect on the mind of those who hear it; therefore, there is always an argument to be made that an out-of-court effect-on-the-listener statement is admissible because it qualifies as "not hearsay." However, an out-of-court statement is not hearsay only if it is (a) relevant, and (b) offered to show the statement's effect upon the listener's state of mind. Laird C. Kirkpatrick, Oregon Evidence § 801.01[d], 705 (6th ed. 2013); see, e.g., State v. West, 145 Or.App. 322, 325, 930 P.2d 858 (1996) (police officer could testify to instruction given by another officer to show the instruction's effect on defendant); see also State v. Hren, 237 Or.App. 605, 607, 241 P.3d 1168 (2010) ("Statements that are relevant to show their effect on a listener are not hearsay."). Stated another way, an out-of-court statement may be offered to show that the making of that statement had some effect on the person who heard the statement if that person's state of mind is relevant to an issue in the case. See State v. Thomas, 167 Or.App. 80, 83-84, 1 P.3d 1058 (2000) (trial court erred in excluding as hearsay witness's out-of-court statement offered to prove the effect on the defendant, one of the listeners). Not every out-of-court effect-on-the-listener statement is relevant to an issue in a case. For example, a police officer's state of mind is seldom relevant to an issue in a criminal case. Thus, when dealing with so-called "effect-on-the-listener," or state-of-mind statements, the question, "Is it relevant?" is just as important as the question, "Is it hearsay?" G. Michael Fenner, The Hearsay Rule 331-32 (3d ed. 2013). [Emphasis added.]
The first question in determining if evidence is admissible -- always the first question -- is relevancy. Once relevancy is demonstrated, the next step is admissibility (e.g., statement of a party opponent, excited utterance, doctrine of chances) and then lastly, whether the probative value is substantially outweight by its prejudicial effect (i.e., OEC 403.)
Normally, relevancy is easy. Does the evidence make a fact in dispute more or less likely?
Relevancy can, in some situations, have two prongs. Let's assume the evidence is only admissible if certain inferences are made. Inferences are okay, but speculation is not. But what if those inferences depend on a separate "fact" that in turn is merely an inference?
If the inference is only relevant if the separate fact is true, then the party seeking to offer the evidence must prove that separate fact before the evidence is admissible. Otherwise, there is improper speculation.
See these recent footnotes from State v. Jesse:
- 6 See also OEC 104(2) (if “relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition”).
- 7 The line between permissible inferences and impermissible speculation is difficult to articulate with precision. The federal courts usefully have described that line in these terms:
- “The line between a reasonable inference that may permissibly be drawn by a jury from basic facts in evidence and an impermissible speculation is not drawn by judicial idiosyncrasies. The line is drawn by the laws of logic. If there is an experience of logical probability that an ultimate fact will follow a stated narrative or historical fact, then the jury is given the opportunity to draw a conclusion because there is a reasonable probability that the conclusion flows from the proven facts.” Tose v. First Pennsylvania Bank, N.A., 648 F2d 879, 895 (3d Cir), cert den, 454 US 893 (1981), abrogated on other grounds by Griggs v. Provident Consumer Discount Co., 459 US 56, 103 S Ct 400, 74 L Ed 2d 225 (1982).
If the evidence is being offered by the state, defense counsel MUST request a limiting instruction to be given at the time the evidence is presented to the jury. If no limiting instruction can successfully mitigate the substantial prejudice of admission, then the evidence must be excluded. Consequently, the court must decide what the limiting instruction would be prior to determining if the evidence is admissible. In this way, an inadequate limiting instruction can result in reversal, even if the evidence might be admissible if a proper instruction were given.
- Two of the cases that the justices agreed to review today, Turner v. United States and Overton v. United States, arise out of the brutal 1984 murder of Catherine Fuller, a District of Columbia mother. The petitioners in the case are a group of D.C. men who were convicted of the crime, based in large part on testimony from alleged eyewitnesses. Decades later, a reporter learned that defense attorneys had not received a statement suggesting that someone else had committed the crime; additional discovery then revealed that prosecutors had failed to turn over other evidence that could have aided the defendants. The men sought to vacate their convictions, but were unsuccessful in the lower courts.
- Today the Supreme Court agreed to review both cases. Overton had asked the court to weigh in on the standard that the lower court used to evaluate his claim that prosecutors had not complied with their obligations under Brady v. Maryland, which requires the government to turn over information that could exonerate the defendant. Turner and his co-defendants had asked the court to consider whether, when determining the significance of suppressed evidence, courts can consider information that comes to light after trial. But the court today announced that it would review a more straightforward question in both cases: whether the men’s convictions must be set aside under Brady.
Last week, the Court of Appeals remanded for merger of three counts of sexual abuse involving three different body parts (two belong to the victim, one the defendant.) The case is State v. Nelson.
Over the past eight years or so, the defense bar has won a tremendous number of merger arguments. This is one of the last big ones. A few more can be found here.
AMENDED: Oops, Villagomez, while still a great opinion, isn't as broad as I assumed below. See State v. Stewart.
First, State v. Villagomez. Before this case, you'd virtually never see a level-4 DCS. They would all be level-6 or level-8. After Villagomez, most Boyd deliveries will be level-4s. What's the difference between 6 and 4? In some cases less prison, in other cases, no prison, and in others, less probation.
Secondly, keeping with the CDO theme, State v. Rankins. This case, by weakening one of the CDO factors (specifically drug records, which no longer include routine texts between dealer and buyer), in combination with Villagomez, will help save a lot of people from prison.
Third, State v. Mansor,, the one computer search warrant case that is essential reading. Police are now routinely getting search warrants for our client's phones, especially in drug cases and homicides. This case will significantly reduce the state's discovery -- and reliance -- on a lot of bullshit character evidence. For example, read this story from Sentencing Law and Policy blog about how a Facebook post written by a defendant when he was 13 is being used by the prosecutor to give a minor life in prison. Key quote:
- Prosecutors will use a Facebook post from 2010 when Gerome Moore was 13 showing him in possession of a handgun and "arguably" displaying gang signs to try to show Moore should be sentenced to life without parole in the January 2015 shooting death of Carolyn Temple in Belhaven. Moore was convicted of capital murder in September, but his sentencing is on hold. A capital murder conviction had meant a mandatory life sentence without the possibility of parole, but a 2012 Supreme Court ruling said judges must consider the unique circumstances of each juvenile offender....
- Moore was 17 at the time of the crime. He didn't shoot Temple, but his gun was used. He and at least two others were driving around that evening looking for someone to rob. Prosecutors say they followed Temple's vehicle, a Mercedes, to her boyfriend's house in Belhaven. Once she got out her car and went to the curb to retrieve her boyfriend's garbage can, two of the individuals tried to take her purse. She resisted and one of them shot her. Prosecutors believe Moore stayed in the car and was the getaway driver, although he provided the weapon.