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March 1, 2023
RFK's assassin, Sirhan Sirhan, denied parole after 17th California parole board hearing
As reported in this New York Times article, a "California panel on Wednesday denied parole for Sirhan B. Sirhan, the man convicted in the 1968 assassination of Senator Robert F. Kennedy, in its first review of the case since Gov. Gavin Newsom decided last year that Mr. Sirhan, 78, should not be released." Here is more:
The parole board’s latest decision, which followed a hearing via videoconference from the state prison in San Diego, where Mr. Sirhan has been held, was the second time in three years that Mr. Sirhan’s release had been considered. He has spent more than a half-century behind bars for shooting Mr. Kennedy, then a candidate for president, inside the Ambassador Hotel in Los Angeles at the end of a campaign appearance in 1968. At the time, Mr. Sirhan was 24.
His lawyers have argued that he is not a danger to the public and should be released. In 2021, a panel of the parole board agreed. But after an extraordinary chain of events, the governor overruled the panel last year, charging that Mr. Sirhan had not yet been rehabilitated.
On Wednesday, after Mr. Sirhan’s 17th parole hearing, the new recommendation was made by a commissioner and a deputy commissioner who were not part of the review panel in 2021. Governor Newsom had no comment....
By 2021, California law required the parole board, when making a determination on releasing an inmate, to consider the inmate’s advanced age and his relative youth at the time a crime was committed. After 15 prior denials, a panel of commissioners granted him parole that year. They noted then that Mr. Sirhan had improved himself by taking classes in prison. Two of Mr. Kennedy’s sons had also urged leniency.
But most of the family was adamant that Mr. Sirhan remain behind bars and pleaded with Mr. Newsom to exercise his power under California law to reject the panel’s recommendation. In January 2022, after more than four months of review, the Democratic governor — who has long spoken of Mr. Kennedy as a role model — granted that plea.
“After decades in prison, he has failed to address the deficiencies that led him to assassinate Senator Kennedy,” the governor wrote last year. “Mr. Sirhan lacks the insight that would prevent him from making the same types of dangerous decisions he made in the past.”
Mr. Sirhan’s lawyer, Angela Berry, has since asked a Los Angeles Superior Court judge to reverse Mr. Newsom’s 2022 parole denial. With that petition pending, she said on Wednesday that she believed the panel’s latest decision had been influenced by the governor’s rejection last year.
Prior related posts:
- Notably high-profile cases now the focus of parole decision-making
- RFK killer. Sirhan Sirhan, recommended for parole after decades of denials
- "If Democrats don't think Robert Kennedy’s assassin deserves parole, do they really support criminal justice reform?"
- California Gov Newsom reverse parole grant to Sirhan Sirhan, RFK's assassin
March 1, 2023 at 09:43 PM | Permalink
Comments
Here's a good a spot as any. Re: Plata.
Your denigration of Scalia is basically a dressed up cheap shot. In the comment you criticize, Scalia really is doing two things--he's invoking the absurd results canon and he is calling out the majority for (a) ignoring the fact that the PLRA was passed to severely restrict federal courts' ability to order the release of criminals and (b) that the faux class/mass joinder methodology was incompatible with the statute. You, of course, have no answer to this.
Additionally, the idea that there was evidence that releasing 46,000 criminals would increase public safety is daft, and Scalia explains why judges are ill-suited to make such determinations, as this is policy-making rather than traditional judicial fact-finding.
Regarding your shilling for the FBI regarding the Hunter laptop--recall that the FBI had the laptop over a year before the story broke, so it knew that the "Russian disinfo" charge was BS.
Posted by: federalist | Mar 2, 2023 8:26:05 AM
And then we have your president:
https://redstate.com/bonchie/2023/03/01/insane-joe-biden-laughs-about-mother-whose-sons-died-from-fentanyl-n710423
Posted by: federalist | Mar 2, 2023 9:30:16 AM
Here's an interesting sentencing case: https://www.npr.org/2023/03/02/1160577292/native-hawaiians-hate-crime-sentencing-beating-maui-kahakuloa-kunzelman-white
Your readers may be interested in this.
Posted by: federalist | Mar 2, 2023 10:16:28 AM
federalist, the text of the PLRA has a section expressly titled "Prisoner release order," 18 U.S.C § 3626(a)(2), which describes the particular requirements that courts must follow in order to issue such an order. It is not an "absurd result" when a lower court orders precisely the relief provided for expressly by statute and when it does so after following the express instructions that Congress has set forth in the statute.
Justice Scalia did not like the result of a "Prisoner release order" being issued here in accord with 18 U.S.C § 3626(a)(2), but he seemingly realized it was consistent with the text of the law. That accounts for why he felt compelled to say, at the very start of his opinion, that he thought his vision of the "proper outcome ... ought to shape the law, rather than vice versa." It is also why he said, in favor of his preferred (non-textual) outcome, that he wished his Court "would bend every effort to read the law in such a way as to avoid" the result he disfavored (but which the text of the law supported).
This is not a "cheap shot," it is straight-forward explanation for the result-oriented, anti-textual comments by Justice Scalia at the start of his opinion. Please know, I quite appreciated his candor, especially since I think every judge in every case is results-oriented to some degree (and that's why I think interpretative strategies like textualism, purposivism and originalism only get us so far). As you put it, Justice Saclia was troubled the PLRA called for "policy-making rather than traditional judicial fact-finding." But that's what Congress authorized in the PLRA, and that's what judges were duty bound to do in the face of the extreme unconstitutional conditions that had been festering (and causing weekly preventable deaths) in California's prisons for years.
Congress set forth text in the PLRA that the majority in Plata concluded was properly followed. If you or Justice Scalia were writing the law, especially after Plata, maybe you would put additional limits on judicial release orders or maybe you would authorize someone other than judges to be involved in this kind of "structural" litigation. But I do not think Congress has restricted PLRA since Plata, no doubt in part because the result in that case was not absurd in light of California's deadly prison record. (In addition, according to an accounting of crime in California, since the state started significant decarceration beginning in 2006 through 2019, violent crime, property crime, murders and just about every other crime metric dropped 20% or more: https://www.disastercenter.com/crime/cacrime.htm)
As for your eagerness to keep complaining about the FBI, I recently noticed this BLM report linking recent FBI activity to 1960s-era FBI activity: https://m4bl.org/wp-content/uploads/2021/08/Struggle-For-Power-The-Ongoing-Persecution-of-Black-Movement-by-the-U.S.-Government.pdf. I am not vouching for, or disputing, any complaints about the FBI during the Trump years or at other times. As I have mentioned before, I have never worked in federal law enforcement (or other law enforcement). I keep hoping Bill or others who have worked directly and extensively with the FBI might be able to weigh in on these kinds of complaints about FBI biases which cut across the political spectrum.
Also, federalist, unless you have renounced your US citizenship, isn't Joe Biden is your president, too? (And if you have so many political news items you want to discuss, start your own blog or substack like Bill has.)
Posted by: Doug B | Mar 2, 2023 10:19:52 AM
I can't say it better than the Man:
Whether procedurally wrong or substantively wrong, the notion that the plaintiff class can allege an Eighth Amendment violation based on “systemwide deficiencies” is assuredly wrong. It follows that the remedy decreed here is also contrary to law, since the theory of systemic unconstitutionality is central to the plaintiffs’ case. The PLRA requires plaintiffs to establish that the systemwide injunction entered by the District Court was “narrowly drawn” and “extends no further than necessary” to correct “the violation of the Federal right of a particular plaintiff or plaintiffs.” If (as is the case) the only viable constitutional claims consist of individual instances of mistreatment, then a remedy reforming the system as a whole goes far beyond what the statute allows.
Posted by: federalist | Mar 2, 2023 10:28:06 AM
Yep, and the majority of the Supreme Court saw it differently and addressed this points at length in the opinion for the Court. The section concludes this way: "The PLRA’s narrow tailoring requirement is satisfied so long as these equitable, remedial judgments are made with the objective of releasing the fewest possible prisoners consistent with an efficacious remedy. In light of substantial evidence supporting an even more drastic remedy, the three-judge court complied with the requirement of the PLRA in this case."
Notably, Justice Scalia was only able to secure one other Justice to sign on to result-oriented, anti-textual comments. So really there were seven Justices who did not embrace his assertion in Plata that the "proper outcome ... ought to shape the law, rather than vice versa" and his wish that the Court "would bend every effort to read the law in such a way as to avoid" the result he disfavored.
Posted by: Doug B. | Mar 2, 2023 11:48:08 AM
"Justice Scalia did not like the result of a "Prisoner release order" being issued here in accord with 18 U.S.C § 3626(a)(2), but he seemingly realized it was consistent with the text of the law. That accounts for why he felt compelled to say, at the very start of his opinion, that he thought his vision of the "proper outcome ... ought to shape the law, rather than vice versa." It is also why he said, in favor of his preferred (non-textual) outcome, that he wished his Court "would bend every effort to read the law in such a way as to avoid" the result he disfavored (but which the text of the law supported)."
No. No. No. What Scalia was saying was that the majority worked hard to get to the result. Scalia got to his result through text and common sense.
Posted by: federalist | Mar 2, 2023 11:49:01 AM
No. No. No. What Scalia actually said was "tradition and common sense [in this case] ought to shape the law, rather than vice versa." Scalia had his preferred result and he said, rather than follow the text of the law, he wished "this Court would bend every effort to read the law in such a way as to avoid" the result he disfavored. I will praise his result-oriented candor, while you try to rewrite what he actually wrote.
Posted by: Doug B | Mar 2, 2023 12:19:58 PM
Sigh. You read the music but fail to catch the tune.
"One would think that, before allowing the decree of a federal district court to release 46,000 convicted felons, this Court would bend every effort to read the law in such a way as to avoid that outrageous result. Today, quite to the contrary, the Court disregards stringently drawn provisions of the governing statute, and traditional constitutional limitations upon the power of a federal judge, in order to uphold the absurd."
That's the full quote. Note how Scalia states that the majority is "disregarding" text.
Posted by: federalist | Mar 2, 2023 12:24:44 PM
But funny, and telling, federalist, that Justice does not fault the majority for failing to follow the law; instead, he is troubled that it fails to "bend every effort to read the law in such a way as to avoid" the result he dislikes. I can read the music and hear the tune quite clearly, federalist, you are the one eager screech about the topic again because you apparently hope you can drown out the plain fact that the song remains the same: in Plata, Justice Scalia's result-oriented opinion is impressively candid about his view that in this case the "proper outcome ... ought to shape the law, rather than vice versa."
Posted by: Doug B | Mar 2, 2023 12:57:06 PM
That's absolutely not what the opinion says. First of all, he is flipping the absurd results canon (and the release of tens of thousands of criminals is an absurd result) around to prove a point---he's saying, "Instead of blowing off stringent restrictions in the statute, i.e., bending over backwards to hook up criminals, if you're going to bend the statute, bend it the other way--after all PLRA was enacted to restrict court-ordered jaibreaks."
Scalia shows how the PLRA absolutely prohibits the result. You're yanking this totally out of context. You remind me of all those who point to Trump saying that Russia should release Hillary's emails when he was being sarcastic. Scalia's just saying, look guys, if you're in the business of bending statutes, you should bend it in a manner that would not allow a federal court to order the release of tens of thousands of criminals.
Posted by: federalist | Mar 2, 2023 1:38:26 PM
Federalist, I am just noting what Scalia said about bending and shaping the law. You can spin to your heart's content, as this obviously bothers you since you are bringing it up again out of the blue. But I can read what Justice Scalia said, and he said he thought HIS notion of the "proper outcome ... ought to shape the law, rather than vice versa."
Justice Scalia is not a bad guy for being result-oriented in this case or others. All judges are, in part because it is very hard not to be. His candor is what's notable --- saying out loud that, because HE thought the result was bad, then he wanted the Court to "bend every effort" / "ought to shape" the law to achieve what HE thought was a better outcome. I appreciate his result-oriented honesty, and your spin does not change his result-oriented starting sentence: "There comes before us, now and then, a case whose proper outcome is so clearly indicated by tradition and common sense, that its decision ought to shape the law, rather than vice versa."
Posted by: Doug B | Mar 2, 2023 2:01:54 PM
You're not looking at the whole sentence . . . .
First of all, his dissent is text-based (as well as constitutionally based). So he's not saying, "Well, the statute says X, but what Congress really meant was Y." You're mistaking criticism of the majority with the rationale for his position.
"But funny, and telling, federalist, that Justice does not fault the majority for failing to follow the law"--that's just wrong---here's what he said: "the Court disregards stringently drawn provisions of the governing statute". You should retract that one.
Posted by: federalist | Mar 2, 2023 3:46:47 PM
Your game efforts to draw back the curtain to cover the result-oriented Oz, federalist, are quaint. And if you still want to believe the Wizard of Scalia never was result-oriented, I do not want to burst your bubble.
But the result-orientation remains plain see when his first full paragraph bemoans what he considers an "outrageous result" and then chides his colleagues for not being willing to "bend every effort to read the law in such a way" to avoid that result. And he so chides after stating this was a kind of case in which he believes his view of the "proper outcome ... ought to shape the law, rather than vice versa."
The phrase "vice versa" is the extra tell, as Justice Scalia reveals that he knows the majority is allowing the law to shape the outcome in this case. But he wants it here to run the other way, so that his preferred outcome can "shape the law, rather than vice versa."
Posted by: Doug B. | Mar 2, 2023 7:00:39 PM
First of all, I didn't see a retraction of something clearly retractable. Second, in a way you are correct, although Scalia sees the result as text/constitution dictated---the absurd results canon is "results-oriented." Correct, though, in only the most trite of ways.
Posted by: federalist | Mar 3, 2023 12:04:41 PM
I will say, federalist, that Scalia is complaining in spots about how the majority is applying the "governing statute." But he does so only in a few spots phrase after moaning at the outset of the majority "bend every effort to read the law in such a way" to avoid the result he disfavors. And he does so after stating this was a kind of case in which he believes his view of the "proper outcome ... ought to shape the law, rather than vice versa." In context, I read him to be saying "here is how the law ought to be bent and shaped in order to get to the only result that I consider proper here."
And, if you are eager to be nit-picky, you ought to retract your assertion that "the PLRA absolutely prohibits the result." The result was a prisoner release order that the PLRA expressly authorizes as long as certain processes are followed. The majority concluded those processes were followed. If the PLRA "absolutely" prohibited the result, there would be obvious text which says in absolute terms that "no prisoner release orders are permitted." Instead, it says here are the rules for prisoner release orders. If you say, well it does not allow "this type of order," that's not an absolute prohibition, but a restrictive allowance.
I am not going to pester you, federalist, to "retract" anything because these are blog comments, not a record of congressional debates. But if you have time to defend here the result-orientation of Justice Scalia's dissenting opinion in Plata, maybe you are trying to develop some kind of record for the ages. A couple of weeks ago you said "I am not interested in rehashing this," and yet here we are. I guess that statement might merit retraction as well, but again I do not really care.
Posted by: Doug B | Mar 3, 2023 1:27:41 PM
You're right--I should retract my statement--and substitute therefor: "The PLRA and the Constitution" prohibit the result.
Posted by: federalist | Mar 3, 2023 1:38:42 PM
How does the Constitution prohibit a congressionally authorized prisoner release order intended to remedy Eighth Amendment violations? Are you saying any prisoner release order is unconstitutional or only a big one?
Posted by: Doug B | Mar 3, 2023 1:49:07 PM
Read the dissent. Put simply, Scalia's points are as follows:
(1) The majority twisted the law to get at the result it wanted.
(2) If we are going to have results-oriented decisions, then this case would be one that cries out for one so as not to release tens of thousands of criminals.
(3) PLRA prohibits this sort of non-individualized order (for two reasons, by the way, substantive and procedural).
(4) The Consitution's separation of powers prohibits the policymaking findings "of fact" necessary to support the PLRA prerequisites to the District Court order.
Scalia accused the majority of twisting the law. He did not himself do that.
Posted by: federalist | Mar 3, 2023 3:00:12 PM
https://freebeacon.com/democrats/defend-creeps-for-a-living-dems-have-second-thoughts-about-making-you-a-federal-judge/
This may be something your readers are interested in.
Posted by: federalist | Mar 3, 2023 3:00:59 PM
Doug, I'd be interested to hear your thoughts on the judge issue--getting rid of the girl's anonymity wasn't strictly necessary to defend a client. Does that make it fair game?
Posted by: federalist | Mar 3, 2023 3:33:19 PM
I have read Scalia's dissent in Plata more than a few times, federalist, and every time I see him start by saying that his view of the "proper outcome ... ought to shape the law, rather than vice versa." To me that is a statement that, at least in this case, we ought to start with the result that seems right and then seek to shape the law to reach that result rather than (vice versa) starting with the law and seek whatever result it shapes.
As for the judge issue, I know nothing about Mr. Delaney nor about the suit in which he is accused of shady dealing. And I have not practiced in the civil arena in decades and never encountered in my civil practice the challenge of defending a suit brought by an anonymous complainant. The press piece suggests that he could have defended his client without getting rid of the girl's anonymity, but is the allegation that the revealing of the name was entire vexatious or was that it just was not really that helpful to providing a robust defense. There is a reference in the article to "statutory rape," which suggests this could have included a consensual encounter that just was not allowed by law. If there were viable claims of consent that might have been key to the defense, how might that be readily explored if the identity had to be cloaked? And so on and so on. In other words, I would need a lot more information before feeling confident about weighing in.
Posted by: Doug B | Mar 3, 2023 4:01:52 PM
You miss the critical part--he's saying that if you are a judge of the type that does the results-oriented thing, then you should be avoiding the release of 46K prisoners. Remember, too, he's weaving in the absurd results canon, judicial roles and the language of the PLRA and commonality when it comes to class actions. You're yanking language out of context.
Posted by: federalist | Mar 6, 2023 8:44:19 AM
Regarding the lawyer--I was more asking the political question--should the 'cans sink this nominee over this?
Posted by: federalist | Mar 6, 2023 8:56:26 AM
1. Justice Scalia starts his dissent by saying he finds the result so "absurd" that he views this case as one in which his view of the proper result "ought to shape the law, rather than vice versa." For emphasis, he follows up by lamenting that the majority did not "bend every effort to read the law in such a way" to avoid the result he disfavors. The "context" is this is how he begins -- by stressing the results ought to drive and define how the Court looks at the law "rather than vice versa." You can spin that however you want; I see it as a clear introduction to HIS results-driven decision-making and his complaint that the majority was instead law-driven ("vice versa").
2. Unlike some, I always want to know a lot more facts before trying to sort through any "political question." Moreover, I find the "politics" of both major parties these days to be quite mysterious and dangerously short-sighted. I am quite glad to have neither a job nor much of an interest in figuring out these kinds of "political questions."
Posted by: Doug B | Mar 6, 2023 9:20:32 AM
Once again--here is the full sentence:
"One would think that, before allowing the decree of a federal district court to release 46,000 convicted felons, this Court would bend every effort to read the law in such a way as to avoid that outrageous result. Today, quite to the contrary, the Court disregards stringently drawn provisions of the governing statute, and traditional constitutional limitations upon the power of a federal judge, in order to uphold the absurd."
Scalia is talking about a Court that "disregard[ed] stringently drawn provisions of the governing statute," which, of course, is "bending efforts." He's saying, if you're going to bend efforts to read statutes to get a result, you'd read it to avoid release of 46,000 criminals. Instead, these guys twisted the law to create a jailbreak. Those judges own every bad outcome.
Posted by: federalist | Mar 6, 2023 9:37:51 AM
Once again, federalist, you have skipped over the first, result-oriented preamble that starts the opinion and provides the context for all that follows: "There comes before us, now and then, a case whose proper outcome is so clearly indicated by tradition and common sense, that its decision ought to shape the law, rather than vice versa." The meaning of this first statement from Justice Scalia is clear: here, my notions of the proper result, driven by my vision of "tradition and common sense," should "shape the law, rather than vice versa" (namely, rather than having the law shape the outcome). Spin all you want, but the call for taking a result-oriented approach to "shape the law" in this case is as clear as the words on the page.
As for the outcome that the majority blessed, it helped to reduce/eliminate deadly unconstitutional conditions in California prisons that had festered for years (and was producing an unnecessary death every week in state custody). In addition, according to an accounting of crime in California, since the state started significant decarceration beginning in 2006 through 2019, violent crime, property crime, murders and just about every other crime metric dropped 20% or more: www.disastercenter.com/crime/cacrime.htm. (In contrast, in many states that did not decarcerate over this period like Arkansas and Nebraska and North Dakota, there were increases in violent crimes (and murders in AK/ND).)
Of course, lots and lots of factors impact crime rates. But outcomes have been worse in some states that have not improved incarceration systems. And, of course, I assume we both generally want courts to shape and bend their decisions with attentiveness to the law rather than their (necessarily incomplete) view of the "proper outcome" or "common sense."
Posted by: Doug B | Mar 6, 2023 10:20:29 AM
There were consequences to that ruling, and the price was paid in blood. As for the preamble, good grief. When a federal appeals court is faced with policy-making "fact-finding," as a makeweight to command a state to release 46,000 prisoners under a law that was specifically passed to limit mass release orders, yes, that result (which Scalia aptly called outrageous and absurd) ought to have impact on how a Court is going to look at the law. (Remember, Scalia was also talking about the Constitution, which tradition and common-sense do impact). And he ably pointed out how the majority blew off the law. You're just grasping at straws.
Posted by: federalist | Mar 6, 2023 6:01:18 PM
I am not grasping at anything, federalist, I am just noting Justice Scalia's clarion call for results-oriented law-making in this context. You now seem to be close to admitting that Justice Scalia is calling for a results-oriented decision here, while now also suggesting that, in this context, you view Justice Scalia's result-oriented approach to legal interpretation is justified. Fine, but the majority decided the law should shape the outcome, "rather than vice versa."
Posted by: Doug B | Mar 6, 2023 9:10:52 PM
