Thursday, September 20, 2007

A Prediction by Tom Goldstein

Direct and unalloyed from Scotusblog:

Because the public's interest in the Court is notoriously weak and its memory short, the relevant question in deciding whether the Court can be a mobilizing force in the 2008 election for ideological groups is therefore not "how were cases decided in OT2006" (the focus of commentary so far), but instead "how will OT2007's cases be decided?" And I think that the existing and anticipated docket strongly suggests that, during OT2007, the outcomes of the highest-profile cases will be perceived as quite liberal.

As a consequence, I think it is exceptionally unlikely that next Term will end as this one did, with front-page stories and reports leading the evening news describing the Court as profoundly conservative, with laudatory commentary by the right and howls of protest from the left. Instead, we will see (mistaken) talk of the "surprising" tack by the Court back to the left and (among the legal glitterati) the "good Kennedy, bad Kennedy" phenomenon in which his ideological views seemingly oscillate dramatically from Term to Term. In fact, this commentary will be wrong: the Justices and their views will be exactly the same come June 2008; it is the cases that will be different.

Equally or more important when considering the potential electoral consequences of the Term, the leading cases will be ones in which the more liberal position is distinctly - even profoundly - unpopular with conservatives, creating the prospect that the Court will serve as a rallying cry to mobilize the electorate. Even if the left ultimately does not win all of the five most significant cases of this Supreme Court Term, that wing of the Court will carry the banner for accused terrorists, crack dealers, child pornographers, child rapists, and those who want to forbid gun possession.

First, consider the existing docket. The most prominent decision, by far, will come in the cases brought by detainees held at Guantanamo Bay as accused terrorists (see, for example, Lyle's post here). The conventional wisdom is that the detainees will win. I agree.

The next-highest-profile case involves the crack-powder disparity in sentencing (Kimbrough v. United States) discussed in this post by Lyle. This is something of a "throwback" case; crack is not as prominent an issue as it once was. Nonetheless, it is one with which the public is familiar. The particular question presented is whether, in the wake of the holding of Booker v. United States (opinion here) that the Sentencing Guidelines are advisory rather than mandatory, district judges can refuse to follow the crack Sentencing Guideline (which imposes a 100:1 ratio to cocaine sentences by weight) on the ground that they disagree with the policy judgment underlying it. I think that the government is overwhelmingly likely to lose.

A third significant and publicly accessible case involves the constitutionality of a particular federal regulation of child pornography (United States v. Williams) (Lyle's post here). The PROTECT Act makes it a crime to distribute something in a manner that shows you believe, or causes someone else to believe, it constitutes child pornography. The case is a successor to Ashcroft v. Free Speech Coalition (opinion here), which invalidated as overbroad in violation of the First Amendment a prior statutory provision making it a crime to possess images that "appear to be" or "convey the impression" that they are child pornography. The new statute focused on the act of pandering the material, rather than its possession. A panel of the court of appeals held that the Supreme Court would not find the change significant enough to save the statute. I agree, though the question is difficult and likely to be close. The Free Speech Coalition majority was fairly sweeping on this point (the Court divided seven to two). In particular, Justice Kennedy's opinion for the five-Justice majority (himself and the left) indicated that this type of fix would be insufficient because it would still make unlawful the distribution of material that is not in fact pornographic.

So, in the three most significant cases of the Term granted thus far, the position of the Court's more liberal members will be (in the caricature that comes with much popular reporting on the Court) that accused terrorists deserve more rights, crack dealers deserve lighter sentences, and the First Amendment protects would-be distributors of child porn.

But Tom, in Ditech's words "people are smart" -- I think we're beginning to see through the right-wing "conservative philosophy" yoyo bullshit, don't you? The argument is that people are stupid. I respectfully disagree.

Monday, September 17, 2007

A Cute, if Sardonic, Irony

RATS in robes

sardonic "Like sarcastic, but more in order to cause amusement than insult"

I know, relative to the other Supremes, Roberts is comparatively young, but at 52 years, "young man" seemed a stretch. But like everything else with the Supremes, it's all relative, right? Relative conservatives, relative liberals, relative moderates, relative reactionaries? Well, no -- the latter are pretty clear, the RATS of this court: Roberts, Alito, Thomas, and Scalia -- they're sure to surprise people, if only by how far they'll go to bat for a Republican president. I have no doubt that, should the Democrats actually win the White House in 2008, the RATS will work hard to oppose that new president; they know which party they represent. Rehnquist certainly set that mold for them, and Roberts will follow it. Their creed:

concentrated Republican executive power good,

unchecked corporate power good,

environmental law/regulation bad,

human rights bad,

property rights good,

free speech bad,

economic speech good (e.g., being able to pay for the privilege of said "free" speech, like campaign donors)

That's a pretty reliable barometer of their approach, and I doubt they'll stray from the script much, unless a Democrat wins in '08, then they might oppose concentrated, unchecked executive Democratic power. But we'll see; they might, in principle, maintain that in hopes that the GOP is able to seize power again.

Thursday, September 13, 2007

The Crow's Nest

A new report from Human Rights Watch on laws, registries and restrictions for sex offenders:
Laws aimed at people convicted of sex offenses may not protect children from sex crimes but do lead to harassment, ostracism and even violence against former offenders, Human Rights Watch said in a report released today. Human Rights Watch urges the reform of state and federal registration and community notification laws, and the elimination of residency restrictions, because they violate basic rights of former offenders. The 146-page report, “No Easy Answers: Sex Offender Laws in the United States,” is the first comprehensive study of US sex offender policies, their public safety impact, and the effect they have on former offenders and their families. During two years of investigation for this report, Human Rights Watch researchers conducted over 200 interviews with victims of sexual violence and their relatives, former offenders, law enforcement and government officials, treatment providers, researchers, and child safety advocates.
Here, at my newsletter, read more on that: (Source:
Just as Ohio has toughened its sex offender registration system, evidence is building that registration causes more problems than it solves.

There is no empirical evidence that proves sex offender registries do what they're supposed to do -- keep children safe. The U.S. Justice Department is now commissioning and funding studies looking at the effectiveness of registries, Singleton says. But the evidence so far is troubling, according to Jill S. Levenson, southern regional coordinator for the Center for Offender Rehabilitation and Education and a board member of the Ohio Chapter of the Association for the Treatment of Sexual Abusers. "There is a growing body of research that documents what we call collateral consequences of registration and notification; in other words, the kind of unintended consequences of these laws that disrupt stability and interfere with the ability of these offenders to reintegrate and create law-abiding constructive lives for themselves," Levenson says. "Criminals who are placed back in the community need jobs, and they need a place to live. People aren't very sympathetic to that. But the reality is that we know that the factors that are ... associated with a good community adjustment and less recidivism in the future -- desistance from crime -- are stability in housing, social support and employment. These laws contradict what the research tells us about the environmental conditions that lead to the desistance of crime.

Also missing from the law is a mandate to educate the public -- practical information to help people avoid and survive any kind of attack or information to help eliminate myths and misconceptions about sex offenders.

"Sex offenses and sex offenders fall into a really broad range," Levenson says. "Everybody who is convicted of drunk driving is not an alcoholic. Everyone who is convicted of a sex offense is not a sexual predator."

Friday, September 07, 2007

Retroactivity: A Good Thing? But Don't Ask Martha. And A Sidenote on National Security Policy

Links to briefs in Danforth v. Minnesota (06-8273) -- a case examining state courts' authority to expand retroactivity of Supreme Court criminal procedure rulings -- which is scheduled for argument on October 31:

Click here to read the petitioner's brief, filed by the Minnesota Public Defender's office, and here to read the respondent's brief.

Click here and here for amicus briefs from the American Civil Liberties Union and the National Association of Criminal Defense Lawyers in support of the petitioner; here for an amicus brief from Alaska and ten other states in support of the respondent; and here for an amicus brief from Kansas in support of neither party. Hat tip to Doug, at S, L & P.


Here, also at SCOTUSBLOG, read about how the revelation of our program of kidnapping and torture presents a "grave risk of injury to national security" (quote from the government's brief in opposition for writ in the Supreme Court: El-Masri v. Tenet, 437 F.Supp.2d 530, 541 (E.D.Va.2006) and El-Masri v. U.S., 479 F.3d 296 (4th Cir., 2007)).

I should think so. If true, and even if not, the allegation alone, rumor only perhaps, presents untold harm to the reputation and moral standing of the United States among the community of nations.

Cover that up, and bring lots of dirt to do it with. That's mud, as in "dragging through the mud" -- as in the reputation of the former AG, whose worst day was "better" than his own father's best day. I'm so glad I'm not his dad. Aren't you?

Thursday, September 06, 2007

Sentence in Fourth Circuit Affirmed

Here's the Fourth Cir. affirming over dissent by Judge Gregory the lower court's denial of motion to withdraw plea after having conditionally accepted same pending receipt of presentencing report, and challenge to the 120 month sentence for possession of firearm. United States v. Battle (Sep 5). And,

Retroactive restrictions are unfair and violate the Constitution. Hat tip --

- this link is just in from Ohio (district court presumably): (AP, WDTN - Dayton) - and more on that here.

A federal judge in Akron has ruled in favor a sex offender in a residency case.

Lane Mikaloff filed a lawsuit after he was ordered out of his home because he lives too close to a school.

Wednesday, September 05, 2007

Connecticut Criminal Sanctions Strong Enough

Three members of a prominent Cheshire, Conn., family were slain in their home in July after being held hostage for hours. The gruesome murders, and the arrests of two career criminals out on parole for the crime, have left Connecticut residents justifiably outraged. More than 42,000 people have signed an online petition advocating that their state pass a “three strikes and you’re out” law to force judges to impose lengthy sentences on criminals convicted of three felonies. That is the wrong solution, for Connecticut or any state. Source: New York Times