Monday, April 30, 2007

So Your'e Going To Jail?

What the ***? Upgrades?

The new wave...not for ladies only.

Compare this:

“I have never run into this,” said Ken Kerle, managing editor of the publication American Jail Association and author of two books on jails. “But the rest of the country doesn’t have Hollywood either. Most of the people who go to jail are economically disadvantaged, often mentally ill, with alcohol and drug problems and are functionally illiterate. They don’t have $80 a day for jail.”

New York Times ROCKS. Thanks to Jennifer Steinhauer.

Friday, April 27, 2007

Back to Basics: AEDPA and Clearly Established Law (?)

Here is my favorite comment from the barrel over at Orin Kerr's post on this week's dp cases:

All Penry relief is collateral. If there is not something in Penry that is "clearly established," Penry has no meaning at all, since it is not a claim that can be asserted on direct review. Indeed, whatever you might "think" about the clarity of the law, the court has decided several penry cases under 2254. There is established law there. Maybe you agree with the variety of Supreme Court decisions to the contrary, but then you just don't really care about precedent and there's not much to say.

I wouldn't get too sidetracked about this "congress has no business" argument. That's just not the issue, and it would be a disservice to the majority to act like that is the holding.

The law here is close - but it's close on the question of what is clearly established. Yes, it is "confused," but not in the traditional sense that it is confused on the straight-up merits question.

People like Kent S. would like to have everyone believe that just because it is not clear what is clearly established, that this is sufficient ambiguity to bar relief. This is, of course, ridiculous. There's no logical limit if you are going to stack "clearlies." Does the law have to be clearly established, or does it have to be clear what is clearly established. How about clear about what is clear about what is clearly established.

The "mess" was all about what law was clearly established, so you can't circularly cite confusion as to what was clearly established as a reason for holding nothing is clearly established at all, if 2254(d)(1) is ever to mean anything.

Also, the Texas Court of Criminal Appeals is simply off the reservation. For those unfamiliar with the way they do business, it's a real eye-opener. I think the Fifth Circuit sometimes gets a bad rap because they're applying deference to a state court that already delivers the most lazy, cryptic criminal opinions in the country. All righteous anger about federal interference in state adjudication sounds truly absurd if you have state adjudications that lack any indicia of reliability.

AND HERE are some persuasive reasons why the dissent(s) are discombobulational:

[OK Comments: C.F.W., I don't understand this comment. So in your view, the Supreme Court's job is to follow statutes if and only if the Justices believe that Congress "has business" in passing the law? I suppose I'm not surprised that Roberts missed that.]

Roberts wrote a dissent, and knew how the AEDPA came about - from Lundgren in CA trying to work around 9th Circuit cases. The idea was to put a thumb on the scales of justice - in favor of death. A good federal courts professor would have given a C to a student who did not at least mention what is wrong (or questionable, and possibly unconstitutional) about the structure of the law - making the circuits and district courts irrelevant as creators of precedent.

cfw: how was it the "key point" in this case that "Congress has no business freezing the law as it was decided by a particular date by the USSCT"? This was pretty much a straightforward AEDPA case, whether you agree with AEDPA or not. In fact, I'm sure the majority would have gladly just ignored AEDPA if it could have, but so long as AEDPA is on the books and not ruled unconstitutional (which was certainly not at issue here), the Court has to abide by it. And so long as it has to abide by it, the majority opinion is awfully implausible.

The dissent is not persuasive unless it at least touches on the idea that telling judges what they can and cannot cite as precedent is unconstitutional (blurring lines between Article III and other parts of the US Const.). The dissent is materially incomplete, and the CJ knows it (from his days as an advocate - or assistant to advocates - in a DP case).

This may be getting just a bit cynical, but why doesn't congress just pass a law saying that only the Tennessee courts, or just pick any state, are the only courts from which precedent can be drawn? Then, of course, we'll pack the TN courts with Supreme Court level justices and "away we go" (Johnny lives on, or was that Jackie?).

Thursday, April 26, 2007

Adam Walsh (Act's)

Here's why this is such an ineffective waste of time, for Congress, for prosecutors, for police/enforcement generally. Doc Berman reports here, on the first sentence ever under the Act.

Report on Prisoner Reentry Issues

An awesome new report from the Urban Institute is here, on reentry, thanks to a knowledgeable source who shall remain anonymous (for now).

A brief description:
Returning Home is a longitudinal study of prisoner reentry in Maryland, Illinois, Ohio, and Texas based on personal interviews with prisoners before and after their release from prison. Previous reports from the Ohio project examined prisoners' expectations for life after prison and their experiences in the first few months after release. This final report—"One Year Out: Experiences of Prisoners Returning to Cleveland"—describes the lives of nearly 300 former prisoners at least 12 months after release, including their ability to find stable housing and reunite with family, and identifies factors associated with getting a job, and avoiding substance use and return to prison (recidivism).

Here, at this link, is another great report called Reconsidering Incarceration, by Don Stemen from the Vera Institute of Justice.

Wednesday, April 25, 2007

VERY interesting CRIMINAL day in SCOTUS

At 10 AM eastern, the Court released opinions in three criminal cases, Smith v. Texas, Abdul-Kabir v. Quaterman, and Brewer v. Quarterman. The opinions are here, (via SCOTUSblog--who else can keep up with that?).

The comments on Prof. Berman's SL&P are most interesting: in essence, the Court has no clue as to what it is doing, and a few justices (the "swingers") are at once principled and totally out in left field depending upon whether the right to abortion or the death penalty is in issue.

ALSO: The AP's Frederic J. Frommer reports here on this morning's oral argument in the campaign finance cases; Kristin Jensen and Greg Stohr have this article at Bloomberg; in the Washington Post, Robert Barnes reports here that a majority of the justices appeared skeptical about a key provision of the McCain- Feingold campaign finance act; and Rick Hasen has this post discussing his initial reactions to today's oral argument in FEC v. Wisconsin Right to Life (No. 06-969) and Sen. John McCain, et al., v. Wisconsin Right to Life (No. 06-970) at the Election Law blog. (Thanks, SCOTUSblog! You may not be the greatest, but you come close).

Thursday, April 19, 2007

What is "Violent Felony" getting 15 yr mandotory minimum sentence?

Here's Doc Berman (again--he's the GREATEST!): (the dissents are always the most interesting and informative--so much for "consensus" -- the five-to-four splits are always the most controversial too)

Though the rest legal world will sure obsess endlessly about the 5-4 Supreme Court ruling today upholding a federal ban on partial birth abortions, I plan to obsess (endlessly?) about the 5-4 Supreme Court ruling today upholding an application of a criminal history sentencing enhancement in James. Here is the basic early report from SCOTUSblog on James:

In another 5-4 decision, the Court ruled that an individual convicted of attempted burglary under state law has committed a "violent felony" for purposes of a mandatory 15-year sentence under federal law dealing with armed criminals. The ruling came in James v. U.S. (05-9264). Justice Samuel A. Alito, Jr., wrote for the majority. The voted produced an unusual array: with Alito in the majority were Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer, Kennedy and David H. Souter.

Based on the unusual vote line-up and the outcome, I suspect James will provide many tea leaves about future Sixth Amendment cases. I will, of course, post and comment on the opinion once it is available.

UPDATE: The James opinion can now be accessed here. It runs 44 pages total (including the syllabus). Here is the dissenting line-up: "SCALIA, J., filed a dissenting opinion, in which STEVENS and GINSBURG, JJ., joined. THOMAS, J., filed a dissenting opinion." Why can't my printer go faster!!

Other Stuff of Interest: (from How Appealing and Howard Bashman--again--he's the goto news guy on the blawgershpere!)

"Microsoft Settles Iowa Lawsuit": The Associated Press provides a report that begins, "Microsoft Corp. agreed Wednesday to pay Iowans up to $180 million to settle a class-action lawsuit that claimed the company had a monopoly that cost the state's citizens millions of dollars extra for software products."


Access online the transcript of today's U.S. Supreme Court oral argument in Tennessee Secondary School Athletic Assn. v. Brentwood Academy, No. 06-427: The transcript can be accessed here. In coverage of the oral argument, The Associated Press reports that "Court Considers Football Recruiting Case."


Access online today's (now yesterday's) U.S. Supreme Court ruling in the partial-birth abortion ban cases: You can access the decision at this link. Justice Anthony M. Kennedy delivered the opinion of the Court, in which the Chief Justice and Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito, Jr. joined. Justice Thomas also filed a concurring opinion in which Justice Scalia joined. Justice Ruth Bader Ginsburg wrote a dissenting opinion, in which Justices John Paul Stevens, David H. Souter, and Stephen G. Breyer joined.

Although the cases were argued separately (access the oral argument transcripts here and here), the Court disposed of the cases by means of a single opinion.

In his concurrence, Justice Thomas states: "I write separately to reiterate my view that the Court's abortion jurisprudence, including Casey and Roe v. Wade, 410 U. S. 113 (1973), has no basis in the Constitution." It is worth noting that the Court's two newest Justices -- the Chief Justice and Justice Alito -- did not join in Justice Thomas's concurring opinion.

Wednesday, April 18, 2007

Panetti in the Supreme Court Wednesday

From SL & P and Prof. Doc Berman:

Because the issue involves a somewhat crazy issue about a possibly crazy killer, the Panetti case to be argued before the Supreme Court on Wednesday is getting significant media attention. (See my prior post here along with more recent coverage from the AP, from the Houston Chronicle, and from the San Antonio Express.)

SCOTUSblog will also have more on this.

Uttecht and Criminal Jury trial(s) in Supreme Court Tuesday

Via SCOTUSblog:

The Supreme Court will hear oral argument (Tuesday, 4/17) in No. 06-413, Uttecht v. Brown. Lyle Denniston's preview of the case can be found here. A collection of other blog commentary on the case is below:

In Cornell Law School's Legal Information Institute Bulletin, Kelly Cooke & Heidi Guetschow preview the capital case here. Ross Runkel has this preview and prediction at the Supreme Court Times. Here, the Death Penalty Information Center gives a brief synopsis of the jury selection case.

Capital Defense Weekly has this post discussing Uttecht v. Brown; Doug Berman of Sentencing Law and Policy weighs in on the Court's decision to grant certiorari in this case here; Edward Bills has this post discussing the Seattle case at the Bodily Injury Blog.

UPDATE: The oral argument transcript in Uttecht v. Brown is now available here.

Sunday, April 15, 2007

April Newsletter: Z The Legal Monthly

My newsletter is now "up" for April.
Link here.

It's ON THE MONEY...BABYYYYYYYYYY! (Oops, wrong game).

Baseball's baaaaack.

Long live Ted Williams, the greatest hitter ever.

Go Os, go Nats. Go FCC!

UPDATE: Sunday was Jackie Robinson day! Number 42 put up some great numbers...the whole Dodgers team wore the big four two. Long live Rachel, and the foundation.

Friday, April 13, 2007

Prison Nation

God Save America: Prison Nation

It has become sadly necessary to tell the following story. It is a true story. It is told in order to deter others from doing something, anything, that will result in their going to prison. Unfortunately, in the world of today a man or woman need not necessarily do anything at all wrong to wind up imprisoned. The story is also told to show the rest of those of us who would never transgress the law, ever, in any event, about what happens to those who do end up in prison. Because many have no idea.

It is told in order to describe the American mis-adventure. The American episode following the turn of the twenty-first century is full of division and fear, hate and loss, discontent and hopelessness. This is to paint the canvass of an America in the age of terror, of global warming, of gilded decadence and condominium towers and marble enclaves: while millions overseas face starvation, malnutrition, disease, famine, remaining as prisoners of their own state and downtrodden and exploited by their own governments, America and the West shine on oblivious to the rest of the world.

In the 1990s Congress took away most of the teeth in the federal habeas corpus review of incarcerated prisoners’ claims of wrongful imprisonment and made it harder to obtain relief and easier to dismiss claims: Congress in 2006 specifically pared back habeas jurisdiction for prisoner “detainees” at Guantanamo and elsewhere in military custody in the so-called war on terror, just as many others in Congress and in the universities and human rights communities are now doing their very best to try to reinstate these fundamental rights. They do so for very good reasons.

The fundamental right to review of one’s detention is a precursor for justice that is as old as the magna carta. Without it, no person, man or woman is safe from the complete devastation of life wreaked through the long reach of arbitrary state power. Lawyers for American residents and citizens accused of terrorist crimes have said that their clients have been threatened with indefinite detention as “enemy combatants” if they refused to plead guilty to the government’s accusations against them. That kind of leverage would only be possible if and when habeas corpus has been stripped away. The consequence, surely unintended, is that the fundamental right to a fair trial has thereby also been stripped away.

There is a certain stigma attached to prisoners and accused persons both, so that the same stigma attaches to the lawyers and others in the community who represent, and try to help them. But there are many many in the community who nonetheless fight very hard for prisoners -- terrorist and criminally committed alike -- in order to ensure that justice is served and that justice is also preserved. And well they should. Then too, ours is a society in which sex offenders are made to live under bridges because of restrictions on residency making it impossible to find housing. That is surely not justice served or preserved at all.

What the hell is going on? We plaster the internet with registries of offenders, painting them all with a scarlet letter and green license plates regardless of whether they are actually ill, truly dangerous or present little or no risk of re-offending, making it easier to arrest them at the drop of a hat, driving the most dangerous underground, making it impossible for families of one-time offenders and statutory offenders, themselves hardly more than children, and young offenders and victims themselves to lead a normal life free from stigma, impossible to earn a normal living, and thus creating an atmosphere filled with fear and hate, and hopelessness and discontent.

All of this is driving a violent, drugged out, workaholic, numb, in-the-fast-lane, materialistic society into even greater violence, greater division, and greater moral and spiritual bankruptcy. Too many who do not belong in prison are put there, and there they languish, to be forgotten, to become fodder for the prison state that America is fast becoming. How many lives are connected to a single prison cell? To ten cells? Thousands? Millions? Many are guilty, many are not. Many got what they deserved. Many did not.

Society has been served with a bill of goods.

Tuesday, April 10, 2007

Texas Wrongful Convictions

One, "Wretched's" take on Dallas and Texas wrongful convictions:

At least James Curtis Giles' name is going to be cleared. Dallas County's "good" name? Not so much. For those of you counting, that's thirteen exonerations in the last few years. More than anywhere else in the country. That's partially because the concept of justice has been a tad loosely applied in there here parts. It's also because Dallas, unlike many other jurisdictions, actually holds on to it's forensic evidence.

Monday, April 09, 2007

Re Entry Center

Speaking of Second Chances, here is a link to Baltimore's program, called Re-entry Center (ReC) for Ex Offender re-entry assistance. I'll be meeting with Felix Mata, who heads up the center, and Ann Hosmer of PowerExcel, another ex-offender-assistance guru, tomorrow. That surely seems likely to result in a productive meeting of the minds.

UPDATE: Here is a little more on the Second Chance Act of 2007, courtesy of FAMM..

The Second Chance Act has a real chance!

Designed to reduce recidivism and increase public safety by addressing the needs of prisoners preparing to return to communities from the criminal justice system, the Second Chance Act has been introduced in both the House of Representatives and the Senate.

On March 20, Representative Danny Davis (D-Ill.) and 14 members of the House of Representatives from both parties introduced H.R. 1593, the Second Chance Act of 2007. On March 28, H.R. 1593 was discussed and "marked up" in the House judiciary committee. While amendments to limit some of the services included in the act were introduced, they were ultimately defeated and the bill passed unchanged out of the House judiciary committee. The bill will now be sent to the House floor for full consideration.

On March 30, Senators Joe Biden (D-Del.), Arlen Specter (R-Penn.), Sam Brownback (R-Kans.), and Patrick Leahy (D-Vt.) introduced S. 1060, the Senate version of the Second Chance Act.

Read testimony and watch the House judiciary committee debate H.R. 1593 on March 20, 2007.

Saturday, April 07, 2007

Second Chance Act

Over at SL and P, Professor Berman asks,

Will Congress (finally) pass a Second Chance Act?

In his 2004 State of the Union address, President George Bush spoke passionately about the importance of showing compassion (and providing job training and placement services) to convicted offenders because "America is the land of second chance." Since then, various bill seeking to live up to this mantra have surfaced in the House and Senate, and now there seems to be some real momentum in Congress to pass a Second Chance Act.

FAMM has this helpful webpage (with links) discussing the progress and particulars of the Second Chance Act of 2007.

Hey!, this sounds a lot like what I'm involved in. Here is a summary account of the bill:

Among other things, the Second Chance Act would provide reentry funding on the state and local level to support former prisoners' needs for housing, mental health and substance abuse treatment, education, employment and rebuilding family and community ties. Nearly 650,000 individuals are released from federal and state custody each year only to find limited support to aid in their reentry efforts. The Second Chance Act of 2007 would help the formerly incarcerated successfully transition back into communities.