Bits of History

Speaking of the Fourteenth Century, which some historians have compared to our own Twentieth (that's the last one, not the 21st--this is yet to unfold), and of Religion and Chivalry, the dominant political idea of the ruling class, in A Distant Mirror, Barbara Tuchman writes:

King Arthur's knights adventured for the right against dragons, enchanters, and wicked men, establishing order in a wild world. So their living counterparts were supposed, in theory, to serve as defenders of the Faith, upholders of justice, champions of the oppressed. In practice, they were themselves the oppressors, and by the 14th century the violence and lawlessness of men of the sword had become a major agency of disorder. When the gap between ideal and real becomes too wide the system breaks down...the sword is returned to the lake... Violent, destructive, greedy, fallible as he may be, man retains his vision of order and resumes his search.

Wash, Rinse, Repeat..., Rinse, Repeat ...., .....

More dots on the emerging financial meltdown from NYT.

Now, with the Madof debacle, I'm tempted to ask, "Where were the regulators" -- Oversight is so passe?

Sosen Newsletter

Here's a link to Sosen's inaugeral newsletter. They finally got it together. Hurrah!

Here is a reminder that my very own newsletter published issue number 16 last month. It is at this link!

Habeas and the Guantanomo Bay Prisoner Cases

Thanks to Scotusblog, at this link is a Supreme Court Order issued today remanding the case of four Britons released from Guantanomo, who then sued United States Military officials for misconduct in the treatment, allegedly torture. That means the opinion of the DC Circuit Court must be reconsidered in light of the Supreme Court Opinion in the case of Boumedienne, issued more recently this year. The opinion to be reconsidered was issued January 11, 2008 and is available at this link. If I can find it I'll post a link to the Boumedienne case as well.

A Petition for Justice

Here, at this link, read about the tragedy that is Ricky's life, or non-life. He's 19. She's 16, was 13 when, but lied and said she was about his age. Now, Ricky lives with the consequences. When will the madness end?

Is it Time to End Prohibition (Again)?

At this link is a post at Prof. Berman's Sentencing Law blog. The debate in the comments is interesting and well worth reading. I agree with those who are pushing to end the Modern Era of Prohibition we are living with today. For all the reasons Zack lists in the comments, I agree.

From Berman's post:

The main group behind all this call for a new repeal of old drug prohibitions is Law Enforcement Against Prohibition. Here's what's up on their site today:

December is the 75th anniversary of when America's leaders had the good sense to end alcohol prohibition. Today, we have another ineffective, harmful and expensive prohibition, the "war on drugs." LEAP has made it easy for you to take action and let your legislators know that we can't afford prohibition in these tough economic times. Visit www.WeCanDoItAgain.net for more information.

Good Reference Commentary

Letsgetreal has posted comments on my last post concerning the Adam Walsh Act and related concerns.

145 Million At Stake in Frederick County, Maryland, Wrongful Death Suit

Here is a link to an opinion in which United States District Judge Quarles, of Maryland's US District Court, discusses breach, and in particular the concepts of gross negligence and malfeasance in a contract context. If past is prologue, the opinion could shed light into what could happen in a case pending before the same Judge Quarles. I am still waiting for this opinion to appear on the Court's website.

Judge Quarles penned an opinion reinstating the County and Sheriff's office as defendants being sued along with a deputy for the death by taser of a Frederick County youth.

Jarrel Gray, 20, of Frederick, died Nov. 18, 2007, hours after being shocked twice by a Taser operated by Cpl. Rudy Torres.

Here is a link to the article in the Frederick News Post about it.

Don't want to come into contact with a registered sex offender?

Use the website to locate them more easily. But don't use the sidewalks, they don't wear the yellow stars, or the red A, just yet.

At the same time, more and more serious studies are showing that registration such as this is a waste of time and money, tax payer money, to be more precise.

I cannot help commenting on this post by Corey at SexCrimes. The new and improved federal sex offender website is getting a ton of hits every day, apparently. According to the press release, posted by Mr. Young on his blog, the purpose is now not the protection of our children, but to protect "communities from coming into contact with" the target population. Here's Assistant AG Sedgewick:

"NSOPW provides the public with information to protect themselves, their families and their communities from coming into contact with registered sex offenders," said Jeffrey L. Sedgwick, Assistant Attorney General for OJP.

Clearly Established Law Not Always Clear

Here is a petition to watch, with links to the opinion below, petition for cert and reply concerning the recent Cunningham decision in the Court. The appellate court held Cunningham did not establish new law, following Blakely, making defendant eligible for habeas relief under 2254. Frustrating, isn't it, to see how much litigation can arise from the simple phrase, "clearly established".

It was quite interesting to search the blog for "clearly established". There are too many prior posts to list here. A cursory review shows that this is a key concept in habeas and civil rights litigation. It is typically used in order to limit claims for relief.

Thank you Scotusblog:

Docket: 08-517
Title: Curry v. Bulter
Issue: Whether the Court’s ruling in California v. Cunningham (2007), which struck down part of the state’s sentencing scheme, was dictated by the Court’s ruling in Blakely v. Washington (2004) or instead announced a “new rule” that cannot be applied retroactively on habeas review.

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition*
• Petitioner’s reply

Soros on the Crisis

At this link to the NYRB, read George Soros's take on what went wrong in the financial system.

New Commerce Clause SORNA piece

Here is Cory Young, Associate Professor of Law at Marshall, posting in his Blog, Sex Crimes:

I've posted a draft of a shorter article of mine that will be out soon in the Federal Sentencing Reporter. The article builds upon the Commerce Clause discussion in my other forthcoming article, One of These Laws is not Like the Others: Why the Federal Sex Offender Registration and Notification Act Raises New Constitutional Questions. My article is titled: The Sex Offender Registration and Notification Act and the Commerce Clause. This is the abstract:

In 2006, the Sex Offender Registration and Notification Act ("SORNA") created a new federal crime of "failure to register" which is punishable by up to ten years imprisonment. Since that time, sex offenders across the country have been prosecuted even though the offenders had no prior connection to the federal criminal justice system. For almost all of the prosecutions under SORNA, the argued jurisdictional basis for federal prosecution has been that the sex offender travelled across state lines. Based upon this travel, which is an element of the crime of failure to register, the government has argued that the new registration crime is justified under Commerce Clause authority. An overwhelming majority of courts that have addressed Commerce Clause challenges have accepted the government's argument that interstate travel is a sufficient jurisdictional hook. However, a careful examination of existing Commerce Clause law demonstrates that these courts are mistaken. For the Commerce Clause to have any meaning and for the decisions in Lopez and Morrison to make sense, the alleged interstate travel must be connected to the underlying offense in fact and time. Despite the limitations of prior Supreme Court precedent, courts have enabled the government to prosecute sex offenders who crossed state lines years before SORNA was even enacted. Further, courts have not required any showing that the travel had any connection to the alleged offense of failing to register. While some have argued that the decision in Raich effectively ended the federalism revolution, SORNA expands federal jurisdiction into entirely new territory. As a result, this article concludes that courts should dismiss most indictments under SORNA based upon a lack of federal jurisdiction and/or Congress should amend SORNA to properly reflect the jurisdiction authorized under existing precedent.

If you are interested in reading the whole article, you can follow the link to SSRN. Unfortunately, SSRN has hidden its download link, but it is located in the upper middle of the abstract page (it's labelled "Download"). If you have any problems downloading or if you have any comments, feel free to email me.

Curious Registry Stuff: Real Offender is the Law

Here is the intro to this good piece (ht, Doc), called "Real Offender,"

In its relentless efforts to expel Wendy Whitaker from her Columbia County home, the state of Georgia has crossed the line from protector to persecutor of its citizens. The state isn’t inciting torch-wielding mobs to chase Whitaker from her home 20 miles west of Augusta. But it is using a gaggle of state attorneys and a politically driven, poorly written sex offender law to wreck her life.

Punitive, or Not Punitive to Register

A very unusual ruling, at the cusp of right to jury trial and constitutional issue of whether a requirement to register as a sex offender is or is not punitive, for a person not convicted of a misdemeanor sex offense but required to register is available at this link, made available by the one and only Doc Berman.

Cheney, Gonzalez indicted

Read up on the indictments issued against Cheney and Gonzalez at the link (wp).

Effective Assistance of Counsel

Here at this link is an article one kind reader called attention to. Called Effective Assistance of Counsel and Consequences of Guilty Pleas (2002), it represents slow if steady progress in the study of criminal law in general, and one of the pillars thereof, the right to a lawyer for your defense, which often means nothing more than advice to take a plea if you don't want to go to jail for a much longer time, pay out your life savings for legal fees, and/or both.

Bank Loots Treasury: Taxpayer Loses!

Today I heard that certain people on Wall Street were getting bonuses of 13 point something BILLION for the year!!!

That was after the company they worked for had accepted 10 BILLION from the Tarp (I think that's what Hank called it) the 'GOVERNMENT BAILOUT'. wtf???

GUESS what else I heard? Certain banks that accepted our BAILOUT $$$ have, instead of making loans available to the businesses and consumers that need them, BUYING OTHER HEALTHY BANKS!!! Once more, wtf??? IN UNISON NOW,... WTF???

Never mind, Lou Dobbs, this gives an entirely new meaning to the term CORPORATE SOCIALISM.

ENOUGH ALREADY.

Mike Mukasey, you have got your work cut out for you now, and so have you PRESIDENT OBAMA!

Corporate Crime

We need to correct this BS asap: The WaPo headlines a piece which features a tax policy regulation issued recently that amounts to corporate welfare -- correct that: stealing taxpayer money to pay banks and other corporations that only lose money.

For losing money in a given year, these conservative executives expect the government (taxpayer) to give them a cash refund. What Balls. If this is "conservative" as in what conservative economists think, then I am definitely not a conservative, and not in this mold.

That is as radical socialist as it gets. That's called corporate socialism. That's what we've had for 8 years and that's enough of that.

Excerpt: full article at this link.

The opposition to Section 382 is part of a broader ideological battle over how the tax code deals with a company's losses. Some conservative economists argue that not only should a firm be able to use losses to offset gains, but that in a year when a company only loses money, it should be entitled to a cash refund from the government.

Section 1983, DNA, Claims of Innocence (and Potty Fodder for Newsletter)

Here is a new cert grant in a DNA evidence case, District Attorney’s Office v. Osborne (08-6) courtesy of SCOTUSBLOG. An implied question is whether an inmate has a right under the Fourteenth Amendment, after conviction, to seek that type of evidence when the right is based upon the Supreme Court’s 1963 ruling in Brady v. Maryland, requiring prosecutors to turn over evidence that would help the accused’s defense.

Fodder for the Newsletter, which I promise will be out before December. Now for the POTTY FODDER UPDATE, Dahlia Lithwick gives us the following in Slate: (Shit Doesn't Happen, The Supreme Court's 100 percent Dirt-Free Exploration of Dirty Words)

FCC v. Fox Television is not a First Amendment case. It's a First Amendment-minus case, in that while the various justices insist that it need not be decided on constitutional grounds, it nevertheless provokes one of the best First Amendment debates I have ever heard. Since the Supreme Court decided FCC v. Pacifica in 1978, which found the midday radio broadcast of George Carlin's "Filthy Words" monologue to be indecent, the FCC rule has been this: The agency may regulate a daytime broadcast of the sort of "verbal shock treatment" of the Carlin monologue, but it will overlook the "isolated use" of one-off potty words. A 2001 clarification of the FCC policy provided that a finding of indecency requires that the naughty word "describe or depict sexual or excretory organs or activities" and be "patently offensive as measured by contemporary community standards."

Enter Bono, who accepted his 2003 Golden Globe with the heartfelt (live) declaration that the honor was "really, really fucking brilliant." Oh. And Cher, who received her 2002 Billboard music award with the gracious, "I've also had critics for the last 40 years saying that I was on my way out every year. So fuck 'em." And the ever delightful Nicole Richie, who wowed them at the Billboard awards the following year with the observation that "it's not so fucking simple" to remove "cow shit out of a Prada purse."

A Workout Plan

Just for the record, here is one plan put forward by a couple of lawyerly individuals in the New York Times.

I like the community based aspect of this one. My thoughts on this are for agencies at Hud or Treasury to work with existing local-community based non-profits, such as Habitat and others, to provide funding and/or guarantees for private buyouts and lease-backs for those still able to make a reasonable, market-adjusted, mortgage or rent payment. Lease-back might not be the technically correct term; just so I'm clear, private investors, local non-profits, and not the federal government would be the purchasers; the original homeowner could stay on the mortgage, and in the home, under the new terms, or be provided a rent-to-own provision if they want.

Warrant, Searches, and Qualified Immunity

Here is the Scotuswiki on a Supreme Court case that promises to be interesting to say the least. Quickly, the court's oral argument has taken place and further briefing ordered on whether Saucier v Katz (2001) should be overruled. More, after digestion commentary, to be forthcoming.

This is important because the qualified immunity test maintained in Saucier essentially makes it impossible to determine what "clearly established law" is in this context. And that is important because in the absence of a common sense understanding, any arbitrary, unreasonable, boorish and/or stupid conduct of police and other government actors cannot be held to account by the common citizen simply because the bad government actors were unable to determine that their conduct violated or would violate "clearly established law."

GOBAMA! GO!

What the World Could Look Like

Ronald Dworkin in NYRB, among others in the special election issue.

If McCain wins, however, Kennedy's vote would probably be irrelevant and his influence negligible because Mc-Cain's first appointment would probably create an unstoppable rock-solid conservative majority for a generation or more. (Stevens is eighty-eight, Souter sixty-nine, and Ginsburg, Kennedy, and Breyer in their seventies.) We cannot predict all the important constitutional issues that might arise in that long period. But it seems likely that a solid ultra-conservative majority would finally wipe away all constitutional protection for abortion, which Scalia and Thomas have repeatedly vowed to do. Such a majority would also allow a significantly greater role for religion in public schools and public displays and occasions; effectively end any form of affirmative action in employment or education; cut back on protections for accused criminals; and again broaden the scope of capital punishment.

Most frightening of all, it would likely embrace the Bush administration's most extravagant claims of presidential power: the so-called unitary executive doctrine Garry Wills describes below, which allows the president dictatorial powers over all executive functions, including the power to wage war, spy on citizens, and detain and torture prisoners, ignoring any congressional constraint.

Obama's promise is as great as McCain's threat. His race and background would refute the charges of American racial arrogance that have helped recruit many angry terrorists. His remarkable and apparently near-unanimous appeal abroad—an appeal the insular Republicans scorn—would immediately help redeem our soiled international reputation. He has a striking, deep intelligence, and a gift for combining clarity and strong feeling in his writing and speeches; and he uses these qualities to expose and explain complexity rather than bury it under slogans. It is said that he lacks experience. On the contrary, he alone among prominent politicians has the experience that counts most in a threatening and densely interdependent world: the crucial experience of empathy. He has lived, and been poor, in both domestic and foreign worlds that few national politicians can even imagine.

Investing in Future: More Stimulus

What to make of the idea of more economic stimulus, now that we seem to be determined to shore up failed banks, and the bankers that failed them? The first rule: avoid a massive asset bubble. We've seen at least two recently; real estate and before that, high tech stock. The second rule: all public spending is political, whether we recognize it or not. If I'm not mistaken, that's why we've seen declining funding for R&D and basic research. Leaving this to the private sector results in capital flight to areas that yield quick returns on Wall Street and speculation. The untempered "Free Market" philosophy of the last thirty years has proven itself to be, as in the previous century, not good for the people. Similarly, leaving philanthropy and charity to the private sector is tending sheep with wolves.

The best investments we could make would seem to be R & D in new science and technology applications, manufacturing enterprises we cannot do without such as autos and planes, the obvious -- energy, medical/health just to name a few. Of course injecting more $$$ into these areas is not as rapid an economic stimulus as cash in the pocket, but it may be almost as fast as the infrastructure projects Washington is talking about.

Careful screening may yield investment in businesses that are in a position to put many people into decent jobs quickly, such as construction projects. What else?

Here is another unique idea: provide a "co-op" fund for government and community organizations to invest in and rehabilitate houses. That would immediately begin to adjust the failing housing market. It might even put some people to work right away.

Serious Appellate Review Can Make a Difference

If perfunctory or truncated review of Georgia's death sentences by the state Supreme Court would be likely to result in imposition of arbitrary and unconstitutional sentences, then, by similar logic truncated federal habeas review over state criminal proceedings would likely result in rising incidents of unfair and unconstitutional decisions at the state level.

At this link is the opinion by Justice Stevens in which he underscores the truncated Georgia Supreme Court mandatory review of its death penalty cases is not the kind of review represented to the US Supreme Court in Zant.

Global Finance in Crisis

We're off on a tangent, political economy, aka the credit crisis, global recession, market meltdown. M y previous post focused on this and questioned specifically what caused the market to tank, banks to stop lending if that is indeed the situation, and well, putting us all through another Black October.

Fareed called it "hiding mountains of debt in complex instruments." As is often the case the Economist has attempted to provide an answer including info on the financial instruments and policy to blame, perhaps, such as credit default swaps, interest rate swaps, derivatives, options, futures. In a word however, the slant is not surprisingly a policy question concerning regulation. In A Short History of Modern Finance, the closing question is whether the future of the increased regulation that seems inevitable will be as benign as the past "liberalized" capital regime has been for growth.

To my mind, tactically, questions should be couched in terms of transparency and disclosure. For instance, at some point during the previous 18 months, when oil and gasoline prices started to ratchet upward for reasons which must remain unspoken, when mortage defaults first started to become noticeable, coupled with and perhaps caused by job losses, slowing growth, and slowing demand for, and then plummeting home prices, all related to core inflation and stagnant wages, who could have failed to see the risks increasing with respect to the securities tied to home mortgages. By then, of course, it was too late to do anything except sell. Hedging seemed like a good idea, but this only increased exposure if you guessed wrong about the direction of the market, and ratcheted up volatility.

And how do you sell something that is an "off balance sheet" instrument, by definition something you don't want the investing public knowing about. And there is another problem, there is no market or clearinghouse for these things, not surprisingly. So my question from the previous post still remains, how could reasonably smart people have been enticed to continue to sell these things knowing that the rapid rise in home prices could only mean one thing, an asset bubble. Bubbles are a recurring phenom, so...? Greed is the word. As AIG executives have recently shown, taking junkets with taxpayer dollars, stupidity is also rampant.

Finally, after Enron, how could regulators have failed to outlaw similar "off balance sheet" transactions? Or, was the investing public hoodwinked into believing the practice was obsolete?

My question is this. In times of good growth anything goes and nobody notices a few bad decisions, even sleazy ripoffs. When things get tough, when prices are falling, and when people are losing jobs, it is not regulation or the lack thereof that is the problem. It is just that times are tough. Free trade might take it's share of the blame. Let's not forget the corporate execs who forgot to pass along the cost savings and other goodies realized from free trade and robust growth to consumers and workers while socking away golden parachutes, bigger boats and mansions to pass the time. This seems less of a crisis in global finance than a crisis in global productivity and the division of labor, aka the global distribution of wealth. This is a failure of the notion of the Economy and the discipline of Economics itself, as we know it. This is called politics and it is criminal, paying lip service to the theme of this blog. Heads must roll.

The rich have been allowed to get away with far too much. The blame rests squarely with the failed execution and incoherent policy of the current, soon to be ex, President and the cronies who ran his administration. I predict that we will not see another such disasterous presidency, not at least until my grandchildren are grown.

Just one more thing. When banks fail you know we are in for a rough ride. So just on more question to think about. How could we have allowed matters to come to this?

Hiding Mountains of Debt in Wall Street?

Here's what I want to know more about. What about this "hiding mountains of debt in complex instruments?"

It brought down Enron and others. Is that what the "mortgage backed securities" were all about? This is Fareed, in Newsweek:

If there is a lesson to be taken from this crisis, it's a simple and old rule of economics: there is no free lunch. If you want something, you have to pay for it. Debt is not a bad thing. Used responsibly, it is at the heart of modern capitalism. But hiding mountains of debt in complex instruments is a way to disguise costs, an invitation to irresponsible behavior.

And, excuse me, but could someone please explain to me how a "derivative" in the sense used here and on Wall Street, differs from a worthless piece of paper sold to an unwitting investor with knowledge it had no intrinsic value or economic basis in equity, meaning something of tangible value such as an asset. Is a derivative something derived from a mortgage, but not a piece of the pie?

Am I right on this, or what? These were never worth more than precisely zero? How could they have been purchased? Zachary Karabell in Newsweek:

... Absurd though these all were, they paled in comparison to the financial innovations that grew out of the mortgages—derivatives built on other derivatives, packaged and repackaged until no one could identify what they contained and how much they were, in fact, worth.

More New Conclusions on Federal Habeas

Continuing to review the Hoffmann & King, Rethinking the Federal Role in State Criminal Justice
DRAFT, forthcoming N.Y.U.L.Rev. DRAFT, at page 9 we find the following remarkable conclusions:

Given the time to habeas filing and disposition, most defendants convicted of felony offenses in state court have no practical access to federal habeas review.22 For the latest year with available data, 60% of all defendants who were convicted of felony crimes in state court did not receive any prison sentence at all,23 and the average prison sentence for the remaining 40% was less than five years, with release in less than three.24 This means that the average habeas petition is filed after the average prisoner is released.

It should not be surprising, therefore, that in examining who filed habeas cases, the study found that nearly 30% of prisoners who challenged their state criminal judgments were serving life sentences,25 even though fewer than 1% of all state felons who are sentenced to state prison receive life terms.26 At the other extreme, only 12% of those who filed federal habeas petitions were serving sentences of five years or less27 – even though the latter group represents the majority of all those who are sent to prison.28 Federal habeas corpus review of state convictions and sentences is unavailable to those who are not serving a very long prison sentence or who have not received a death sentence. For most of the more than two million people now incarcerated for state offenses,29 the Great Writ is a pipe dream.

Economical Thinking in Federal Habeas

Here is how a new draft by King and Hoffman, to be published in the NYU Law Review next year opens. Commentary will follow once I've read more. At the link you can download the whole thing from SSRN. Thanks, Doc B!

We believe that it is time to rethink the federal role in state criminal justice. The present approach is a failure, because it relies almost entirely on post-hoc litigation in the federal courts – especially federal habeas litigation. A recently completed empirical study,1 conducted by one of the co-authors of this essay, has exposed the futility of habeas review today. In 99.99% of all state felony cases – excluding those cases in which the defendant is sentenced to death2 – the time, money, and energy spent on federal habeas litigation is wasted, generating virtually no benefits for anyone. Non-capital federal habeas has become, in essence, a lottery, funded at great expense by taxpayers, open almost exclusively to the small group of state inmates who are sentenced to the longest prison terms, and producing almost no marginal increase in the enforcement of constitutional rights.

Not Just Election Politics

The following description of current state of affairs is accurate and not good, because the state of the nation is not good, which qualifies as the understatement of the year. It can only get better, we hope. From the editors at New Yorker Oct. 13: (read complete article at the link)

....The Republican disaster begins at home. Even before taking into account whatever fantastically expensive plan eventually emerges to help rescue the financial system from Wall Street’s long-running pyramid schemes, the economic and fiscal picture is bleak. During the Bush Administration, the national debt, now approaching ten trillion dollars, has nearly doubled. Next year’s federal budget is projected to run a half-trillion-dollar deficit, a precipitous fall from the seven-hundred-billion-dollar surplus that was projected when Bill Clinton left office. Private-sector job creation has been a sixth of what it was under President Clinton. Five million people have fallen into poverty. The number of Americans without health insurance has grown by seven million, while average premiums have nearly doubled. Meanwhile, the principal domestic achievement of the Bush Administration has been to shift the relative burden of taxation from the rich to the rest. For the top one per cent of us, the Bush tax cuts are worth, on average, about a thousand dollars a week; for the bottom fifth, about a dollar and a half. The unfairness will only increase if the painful, yet necessary, effort to rescue the credit markets ends up preventing the rescue of our health-care system, our environment, and our physical, educational, and industrial infrastructure.

At the same time, a hundred and fifty thousand American troops are in Iraq and thirty-three thousand are in Afghanistan. There is still disagreement about the wisdom of overthrowing Saddam Hussein and his horrific regime, but there is no longer the slightest doubt that the Bush Administration manipulated, bullied, and lied the American public into this war and then mismanaged its prosecution in nearly every aspect. The direct costs, besides an expenditure of more than six hundred billion dollars, have included the loss of more than four thousand Americans, the wounding of thirty thousand, the deaths of tens of thousands of Iraqis, and the displacement of four and a half million men, women, and children. Only now, after American forces have been fighting for a year longer than they did in the Second World War, is there a glimmer of hope that the conflict in Iraq has entered a stage of fragile stability.

The indirect costs, both of the war in particular and of the Administration’s unilateralist approach to foreign policy in general, have also been immense....

The VP Debate

My take on last night's VP debate:

She is a well indoctrinated republican who recited and mangled canned lines regardless of the question on the floor, not qualified to occupy the office.

He is a well qualified, experienced, connected, grounded U.S. Senator of long years.

You do the math: change? or more of the same?

Biggest Growth Industry?

The biggest growth industry amid the economic cliff hanging? Alan Dershowitz (writing in Newsweek) tells us, here.

Against the Grain on Registries

Finally, this constitutional erosion seems to be gaining attention. Excerpt from ABAJ,

at least two courts this year have sided with the critics and invalidated some or all of the registry law. In both rulings, the courts referred back to a line of U.S. Supreme Court cases from the 1990s that limited the federal government’s reach into state law.

Meanwhile, a third federal court temporarily halted the new law until it had a chance to hear arguments on the issue.

More is at stake than just the sex offender registries, observers say. Americans have become accustomed to national crime registries, and courts could throw them into doubt.

“Not surprisingly, given our increasing sense of informational entitlement and disdain for criminal offenders, we are seeing registration and notification laws spread to other subgroups, such as domestic abusers,” says Florida State University law professor Wayne A. Logan, author of the forthcoming book Knowledge as Power: A History of Criminal Registration Laws in America.

Constitutional Crisis or Just Business as Usual?

Here is the big picture, from Prof. Bruce Ackerman of Yale, via Stirling Newberry at KOS. Link. On one side is the economy, politics on another and upon the third leg the constitution, the supposed "order" our Republic stands upon. The monetary/financial system is clearly being manipulated to serve the rich; the rich get richer, the system spends like no tomorrow to preserve and increase their own wealth. Tell me something new guys. But can Democrats fix it?

Convicting Innocents, Sex Offender Laws, Anthrax Investigation in the News

Here is an interesting post from Grits in Texas, who always does good work, about Ivins, the accused, and now dead, pushed by the investigation to commit suicide, FBI anthrax case suspect. I've felt something fishy about this matter. So do the investigating members of the Senate committee in charge. It begins like this.

Pat Leahy, one of the US senators targeted in the 2001 anthrax attacks, made this shocking declaration yesterday that he doesn't believe Bruce Ivins, the scientist blamed for the attacks who committed suicide earlier this year, acted alone:

"If he is the one who sent the letter, I do not believe in any way, shape or manner that he is the only person involved in this attack on Congress and the American people," Leahy told FBI Director Robert S. Mueller III at a hearing yesterday. "I believe there are others involved, either as accessories before or accessories after the fact. I believe that there are others who can be charged with murder."

At this report, Grits independently concludes and takes up the banner many of us have been carrying, that the Sex Offender Registration/Targeting laws only produce more wrongful convictions and collateral damage and nothing to keep anybody, much less our children safe: Conceived literally in error from their inception. And he can point to yet another DNA exoneration to make the point. The American people are so stupid. They can't imagine the harm these ineffective and wasteful laws have imposed upon all the rest of us in society.

There is more than enough fear to go around now, so can we please move on to more serious stuff, like fixing inflation and stagnation, and making more stuff so more people can have jobs making and selling it? Please.

AWA Cruel and Unusual Judge Rules

Doc Berman notes this decision, in his words:

Thanks to this post at Sex Crimes, I have learned of this recent federal district court opinion which concludes "that a 30-year mandatory minimum sentence for [the defendant], under the specific facts of his case, is so grossly disproportionate to his crime as to constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution." US v. Farley, NO. 1:07-CR-196-BBM, slip op. at 8 (N.D. GA. Sept. 2, 2008).

Secretly Shrinking National Security

Concerns over the lingering Gitmo cases expressed by Judge Leon as reported by AP, here.

Excerpt,

WASHINGTON (AP) -- A federal judge overseeing cases against dozens of Guantanamo Bay detainees said Wednesday that he fears the public - and the detainees themselves - will be locked out of the courtroom when evidence in the case is scrutinized for the first time.

Hundreds of detainees are awaiting hearings in a Washington federal court in the coming months to determine whether they were properly labeled enemy combatants and imprisoned without being charged.

U.S. District Judge Richard J. Leon, who has said he wants to resolve the 24 cases assigned to him before the next president is sworn in, urged President Bush's administration to find a way for at least part of those cases to be held in public.

"If it can't be done, I have great concern that these hearings will be virtually or exclusively classified, closed to the public and, I might add, to the detainees," Leon said.

Update to Doe privacy/national security appeal

The privacy case appeal, involving the Patriot Act, "national security letters" and judicial review powers, link here, (Doe v Mukasey; How Appealing, Lawdotcom), updating my earlier post, "Secret Government" was heard with skepticism on the part of a panel of 2d Circuit judges this Wednesday.

Excerpts from Lawdotcom:

Judge Calabrese expressed his concern to Assistant U.S. Attorney General Gregory Katsas that such language would permit the issuance of NSLs and gag orders in traffic safety investigations or operations seeking to determine if a state governor is patronizing prostitutes.

"Why isn't the appropriate thing to say that Congress here used, in a First Amendment sense, language that simply goes too far?" asked the judge.

The panel also expressed concern that the statute constrained judges reviewing such gag orders to uphold them unless they had "no reason to believe" any harm would arise from permitting disclosure.

Katsas countered that this standard could be "charitably construed" as "no good reason" and said the FBI's certification process was geared toward counterterrorism and national security concerns.

But Calabrese said he was particularly uncomfortable that gag orders could be certified by a special agent-in-charge, rather than a more senior FBI official.

"A special agent-in-charge is not someone who is directly responsible to the people," the judge said.

The ACLU brought the underlying case on behalf of a small Internet service provider served with an NSL several years ago. Jameel Jaffer, the director of the ACLU's national security project, told the court that gag orders were preventing many opposed to the Patriot Act's surveillance programs from speaking out.

But the judges pointed out that, of more than 40,000 NSLs issued, only three parties had complained about their inability to discuss them.

"Do we have any reason to believe there is anyone out there other than your client who is dying to make a speech about this?" Judge Sotomayor asked.

Tax Policy a Crime?

Economic Growth, the lifeblood of the economy, the fountain of youth of the Garden of Eden that we call the economy, is apparently not well served by ripping off the poor after all, via tax cuts for the rich. Sorry about that. I thought otherwise in my youthful days of indiscretion. Although I did have some misgivings that it could really be so.

Read about that here, in TNR. Does the right wing spin machine have a response? Or do they really just love to take candy away from babies? Exactly how stupid do they think the regular working stiff is? Really. Pretty stupid has got to be the answer to that one.

Annual Review, Criminal

For housekeeping purposes and future review and research, here is a link to a "terrific" summary of the USSC term as compiled by Prof. Rory Little of Hasting Law.

Alice, the Judge and the Constitution

How do Lewis Carroll, Humpty Dumpty, and Alice relate to the law? Check this piece out, by a "rogue" juror who refused to take an oath selected by the trial judge. Excerpt:

The scene in the judge’s robing chambers that day reminded me of a passage in Lewis Carroll’s Through the Looking Glass, where Alice is talking with Humpty Dumpty, the latter having just taken words out of context. In other words, Humpty Dumpty was lying:

"When I use the word," Humpty Dumpty said, in a rather scornful tone, "it means just what I chose it to mean – neither more nor less."

"The question is," said Alice, " whether you can make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be the master – that’s all."

Judge Young’s court presumed a world without an objective reality, just like Humpty Dumpty’s worldview.

Hamdan Verdict

Here, is Hirch's (Newsweek) take on the Hamdan verdict. As I've begun to suspect, opinions are written not only by judges, less frequently by lawyers (at least not quickly) and with the most brevity by the media, some in the media. The case is certain to be appealed and has a good chance of being thrown out, as it does not seem clear that driving a car, even carrying a terrorist, is a war crime worthy of much punishment, much less torture.

Why did the administration decide to lead off with this one? Is it the strongest case? Strongest argument for maintaining Gitmo? A risky decision. But that's why I'm not serving in this man's government.

As Matt Waxman, the former Defense Department assistant secretary of detainee affairs, put it to me (the author): "In terms of global perceptions, it's really been the U.S. system that's on trial more than individual terrorism suspects … The government has certainly lost the perceptions battle on this case so far."

SORNA and the Constitution

Here, at SexCrimes blog by Prof. Corey Young, are an article draft and the first Circuit (8th) decision interpreting the new sex offender federal registration act (SORNA). Prof. Young notes serious commerce clause constitutionality questions with the law and the recent ruling as well.

And here, (at CJLF's Crime and Consequences) we find the following excerpt, describing an examplary incident that demonstrates precisely why the registration laws are nothing more than a feel good, politically correct, ineffective, (and unconstitutional if not un-American) pieces of paper containing worthless ink.

Convicted Sex Offender Strikes Again, Victim Only 16: Angel A. Perez Jr., a 32-year-old convicted sex offender, failed to register his new address with police. He also had several outstanding warrants for larceny, which would have qualified him for diversion programs for "nonviolent" offenders. Now, he's charged with raping a 16-year-old girl in a park near her home, an ordeal that lasted for around an hour, according to Brian Fraga's story for the Standard-Times. Repeat offenders are just that, and the only way to protect society from them is for them to be incarcerated for increasingly longer periods of time.

Government and Secrecy

A good one from New Republic, by Jack Goldsmith (Harvard Law School professor, and former Bush Administration appointee) titled Secrecy and Safety here.

A sample of the analysis:

A root cause of the perception of illegitimacy inside the government that led to leaking (and then to occasional irresponsible reporting) is, ironically, excessive government secrecy. "When everything is classified, then nothing is classified," Justice Stewart famously said in his Pentagon Papers opinion, "and the system b
becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on selfprotection or self-promotion." And he added that "the hallmark of a truly effective internal security system would be the maximum possible disclosure," noting that "secrecy can best be preserved only when credibility is truly maintained."

The Bush administration defied these precepts and suffered as a result.

The secrecy of the Bush administration was genuinely excessive, and so it was self-defeating. One lesson of the last seven years is that the way for government to keep important secrets is not to draw the normal circle of secrecy tighter. Instead the government should be as open as possible, and when secrecy is truly necessary it must organize and conduct itself in a way that is beyond reproach, even in a time of danger. In the end, not Congress, nor the courts, nor the press can force the government to follow these precepts. Only the president can do that.

Could someone please tell me what good has come from our secret, illegal, lying, spying programs, aka domestic and foreign "wiretapping" surveillance, about which the President and administration have lied, concealed and perpetrated with our money, right under our noses? From the politicization of justice and the economy that the administration has similarly perpetrated?

I have some ideas, but your comments are most welcome.

Conviction Reversed (Almost)

Lessons from an important insider trading case, in which Joseph Nacchio formerly of Quest, gets a new trial, is the title of a potential review of this one, from the Tenth Circuit.

Habeas and Unconstitutional Deference

The Supreme Court granted petition re: the 28 USC 2254(d) deferential standard of review in the case of Bell v Kelly (SCOTUSwiki preview here). The practical issue is, how do you get to present "new" evidence that was lost previously through your lawyer's conduct or misconduct, (or the governments sleight of hand, or procedure) when the standard of review won't allow for a fresh look at all the circumstances, but only a "reasonableness" test brushing over what is already in the record below? Petitioner took issue that the state court proceedings did not afford a full and fair hearing, sufficient to consider the element of prejudice. Finding no prejudice, but affirmative deficient performance, the courts below had denied relief.

To noone's surprise, there is a split in the circuits. Technically, it might be phrased: (1) whether the deferential 28 U.S.C. § 2254(d) standard should apply to a claim resting on evidence that the state court did not consider and was thus introduced for the first time on federal habeas.

It occurred to me reviewing the briefs (available at SCOTUSblog wiki) that the adverse position makes a good practical case in point for why the statute is facially unconstitutional: following the dictates requires no substantive review, contrary to the traditional, constitutional role of higher court review.

Do we want our higher courts rubber stamping decisions in other areas as well? Not, hopefully.

An argument schedule for cases in Nov. follows:

Mon., Nov. 3

Wyeth v. Levine (06-1249) — federal preemption of state drug labeling law

Ysursa v. Pocatello Education Association (07-869) — state legislative control of county and city payroll policies

Carcieri v. Kempthorne (07-526) — federal power to set aside land for Indian tribes’ use

Tues., Nov. 4

FCC v. Fox Television Stations (07-582) — scope of federal law on use of single or fleeting use of “indecent” words on radio and TV

U.S. v. Eurodif (07-1059) and USEC v. Eurodif (07-1078) — federal power to impose “anti-dumping” fees on imports (cases consolidated for one hour of argument)

Jimenez v. Quarterman (07-6894) — clarification of one-year filing deadline for habeas petitions

Wed., Nov. 5

Negusie v. Mukasey (07-499) — availability of asylum in U.S. for individual who formerly was a prison guard abroad

Van de Kamp v. Goldstein (07-854) — legal immunity for supervisors of prosecutors at the trial level

Mon., Nov. 10

Chambers v. U.S. (06-11206) — failure to report to jail as “violent felony” under federal armed career criminal law

U.S. v. Hayes (07-608) — ban on gun possession after conviction for domestic violence

Melendez-Diaz v. Massachusetts (07-591) — right to confront at trial a forensic expert who prepared a crime lab report offered as evidence

Tues., Nov. 11 (legal holiday; no arguments)

Wed., Nov. 12

Pleasant Grove City v. Summum (07-665) — right to display religious monument on government property, including public park

Bell v. Kelly (07-1223) — scope of federal court duty in habeas to defer to state court findings

Maryland Secret Government

Speaking of secret government, check this out. Apparently, Maryland's Gov. Erlich was doing some of that too. Spying on Anti war and death penalty activists under the pretext of fighting terrorism. How the definition morphs!

Secret Government?

At this link is brief of amicus curiae, the National Archive (of Washington, D.C.) and Electronic Frontier Foundation, in the case of Doe v. Mukasey, on appeal from the US District Court, Southern District of New York. Summary of the argument: judicial review of government's demands for secrecy is necessary to protect the security of the nation and quality of government decision making.

The case has an aspect of interest for habeas watchers: it challenges an attempt by Congress to usurp the traditional role of the courts. Part of the AEDPA, governing federal judicial review of habeas corpus, does this also, and may well fall under fire from recent constitutional challenges.

Criminal Justice Symposium

A criminal justice Symposium! The press release is at the link: "Alternatives to Incarceration"

Here's the meat:

Presenters at the symposium include federal and state judges, congressional staff, professors of law and the social sciences, corrections and alternative sentencing practitioners and specialists, federal and state prosecutors and defense attorneys, prisons officials, and others involved in criminal justice. Approximately 250 individuals representing the federal and state criminal justice communities, academia, and public interest groups have been invited to attend. Topics to be examined include –

* drug courts and treatment options for certain offenders;
* alternative sentencing options in the federal and state systems;
* restorative justice-based programs;
* prison programs resulting in reduced sentences;
* the Second Chance Act and re-entry issues; and
* collateral consequences of convictions.

UPDATE: A link to "Notes" is here, authored by Kent. The Sentencing Project makes waves there. Not taken seriously by the author of the notes. Apparently the transcript will be made available in E form. HT to Doc Berman (once more).

Texas Justice Re-redux

One more instance of a Texas exoneration, and how bad laws make everybody less safe, and life more miserable for the accused and wrongly convicted by making it easier to be wrongly convicted, at the link. Having identified the problem, let's put a stop to it. Thanks, Grits.

Scotus Term Summary, 2007-08

New York Times summarizes here, the most important decisions of the Supreme Court term just ended, leading with the Guantanamo Bay habeas/access to courts decision, Boumediene v. Bush, No. 06-1195, (the guarantee of habeas corpus applies at the Navy base in Cuba, the court said, and the truncated alternative procedure that Congress set up was not an adequate substitute.).

Not very surprisingly, the decision was “no bolt out of the blue” according to the majority. The minority (Justice Scalia for one) strove mightily to instill fear, the fear of deaths of more Americans, as a direct result of the decision.

Curious, how justices can disagree so drastically on the nature of a notion of what it means to live, and govern, under the rule of law.

What one hand giveth, the other taketh away: By contrast to the sharp division in the Guantánamo case, the court was unanimous in another case on the availability of habeas corpus. It rejected the Bush administration’s argument that two United States citizens facing criminal charges in Iraq, and held in that country by the American military, could not seek federal court review of their detention. The two were entitled to file habeas corpus petitions, Chief Justice Roberts wrote for the court in Munaf v. Geren, No. 06-1666. Proceeding to the merits of the petitions, the court ordered them dismissed on the ground that holding the men while awaiting further action by the Iraqi authorities did not violate their rights.

The Times counts five access to courts decisions deserving of mention.

Of the ten criminal cases deserving mention, two involved sentencing after Blakely: Gall v. United States, No. 06-7949, (upheld a trial judge’s refusal to impose prison time on a young drug offender, despite the sentence of 30 to 36 months called for by the guidelines), AND Kimbrough v. United States, No. 06-6330 (the court upheld a lower sentence for a man convicted of a crack cocaine offense than the guidelines called for under a formula that treated crimes involving crack cocaine much more harshly than those involving cocaine in its powdered form. Justice Ginsburg wrote the opinion. Both cases were decided by the same 7-to-2 alignment, with Justices Thomas and Scalia dissenting). Others involved the lethal injection challenge, death penalty for rape of a child, money laundering, and another had implications for international law.

Risk Assessment and Prison

In this post, titled "Examining the School to Prison Pipeline, readers of Doug's blog respond with interesting comments on the topic of the overincarceration and undereducation of our nation's citizenry. It leads naturally to ask not why are so many low risk offenders being locked up, but how can you tell the low risk offender apart from the truly dangerous, and habitual. Is it really that difficult?

Texas Justice Redux

Here is some more recent "Texas Justice" from the Fifth Circuit. Read that together with this from UK judges remarking on efforts to install an federal style sentencing "grid" system across the pond. Wow, Professor Berman, good work. If you thought judges should curb excesses of the legislature that have proven to be very, very foolish you'd be wrong respecting the Fifth.

And then, updating the topic there is this from Grits, who is devoted to the topic, on something as mundane as a data entry error that caused SCOTUS to have to weigh in. That would be the Rothgery decision (the opinion is at the link) from the current Supreme Court term. Here is analysis from Grits:

What's the significance? In the past, a defendant was not entitled to counsel at their bail hearing unless they couldn't make bond or bail was denied. In that case they had counsel appointed fairly quickly. But in the case where a defendant makes bond but also requests a lawyer, Texas courts previously held the defendant could not get a court appointed lawyer until they were indicted, leaving indigent defendants for weeks in limbo with no legal adviser. Now SCOTUS has said courts must appoint counsel for indigent defendants at their bail hearing.

That's how most other states do it; Texas had just been skimping by not appointing counsel earlier. According to the opinion, "The Court is advised without contradiction that not only the Federal Government, including the District of Columbia, but 43 States take the first step toward appointing counsel before, at, or just after initial appearance. To the extent the remaining 7 States have been denying appointed counsel at that time, they are a distinct minority."

PREVIOUS POST ON TOPIC:
Here is my earlier verbose-but-important post on Rothgery.

Religion and The Family

This book, The Family, by Jeff Sharlet, (his blog here) promises to be a must read for anybody who cares about religion and the future of our nation.

Texas Justice

Here is more new evidence from Grits that Texas justice means lock 'em up, actually innocent, accused, and falsely convicted. Just don't become accused, and you're alright if in Texas. Got enemies? Tuff. Stay out of Texas.

UPDATE: More on Texas "yo yo" justice as applied to - well, matters of life and death, here.

A FAMMGRAM!

A Famm (Families Against Mandatory Minimums (Sentences)) Gram, at this link, tells about the Second Chance Act, and more. Again, thanks Doc Berman.

Federalism Run Amok

Here is a ruling on SORNA, striking provisions. When I have a chance to read the entire decision I'll post on it further. Thanks to Doug, of course.

Choosing to Allow so much Crime in America?

The following is a comment from Doug's blog (link to post, about James Q. Wilson guest blogging about crime, here). Of the fifty or so comments, and during the two years I've been reading his blog, I've yet to see someone actually make this point so well. It really isn't rocket science, as he, DK, (commentator) states:

And if people believed they would be caught for murder, they are less likely to commit it. The fact of the matter is that deterrence proponents, much like economists, are full of shit. Crime, like much economic activity, doesn't occur because people rationally weigh costs and benefits. A central premise of your argument is a pure fiction. Sure, your program may cause movement at the margins, but why should I listen to somebody promising misery for millions in exchange for, at the most, negligible returns? Your program tolerates the perpetual creation of crime victims.

Contrary to posters above, we do in fact know why crime occurs and we do in fact know how to substantially reduce it (as opposed to marginally reduce it). There is a reason the U.S. has so much more crime than other industrial nations, and it is not, of course, because we are too fair and lenient--as would have to be the case were we to buy the snake oil you're selling about deterrence. Our society, the richest in the world in absolute terms, has abandoned a large segment of our population to utter squalor, some of the poorest in the world.

Bill Otis wrote: "It is not up to the government to preemptively control its citizens so that they do not commit crime. It is up to people to control THEMSELVES to conform to the law and not to cheat, rob, bully, etc. their neighbors. When they are unwilling to do that, the fault does not lie with the rest of the world."

No, it lies with those who use their disproportionate power within the society to systematically deprive large segments of people of the means and resources (including, e.g., health care, stable employment with a living wage, and stable housing) to effectively govern themselves. Those countries that do a better job in this respect unsurprisingly have less crime. It's not rocket science. It really isn't.

I completely agree that deterrence is give far too much weight. Very very few actually calculate the probability of being caught, and then how much punishment they would receive, prior to committing crimes. Food for thought: why do we systematically impress so large a portion of Americans into a life of squalor and poverty? It surely is not because we are not a poor nation...

Can this be a topic of the next empirical research project?

The Texas Hold'em Decision

More on the FLDS Children decision, with many comments here, at Talkleft.

Also, here is Sen. Cornyn of Texas regarding children, and how to protect them, from an op ed in Southeast Texas Record. Two points, Senator, with respect. One. The following is old fashioned fear mongering: "Local, state and federal government must be vigilant as technology makes some crimes easier;" and, in "Texas has been at the forefront in modern efforts to protect children," considering the first subject of this post, the phrase "screwing up efforts to protect children" should be in your statement somewhere.

The only thing about which the Senator and I could agree is the following, "there is no substitute for loving, caring and alert family members. I wonder how the family members of the FLDS children, wrongly deprived of their parental rights by force, feel about this? On how many other occasions has Texas gotten it wrong, but parents were too overwhelmed, poor, or uneducated to be able to assert their rights in court?

Increase the budget for the state in this area, and watch in horror the numbers of families wrongly torn apart increase in proportion.

World Oil Production Stuck: Conspiracy, or All Down Hill?

Just in case you were not sinking deeper and deeper into depression already due to the subject matter of this blog, here's something else to think about. It's called "All for the low, low price of ..." and in the comments, a trivial fact if indeed it is true, that world oil production has been stuck at the same level for the last three years.

Is it us?

Booker Update

Yale Law Journal article on Federal Sentencing and Booker promises to be a great read.

More From Grits on the Texas Mormon Children

If you have been Walthered, I would like to know about it. Please contact me through comments on this site or email me.

If you want to know more about what this new verb, Walthered, means (and how it originated), link to Grits, Scott Henson's great Texas blog. The comments on his post are juicy, ripe for action, and will give you a spicy taste of attitudes prevailing in Texas-style justice and politics.

Grits's searing coverage, updated with every new develoment, is the best I've seen.

Good question: why did the lefties initially support the raid and "conservatives" not do so. I was aghast from the beginning, and consider myself a convert to the left after having flirted with the right in my youth. A recent series of Presidential blunders have turned me away from the right wing party in this country forevermore.

Independently of my political pieties, I was aghast because I know first hand what it is like to be separated both from your parents, and from your children. I've seen it from both ends, unfortunately. I'm not necessarily in favor of bigamy or underage marriage. I just had a hunch Texas CPS had bitten off a little more than could be chewed, comfortably. Now, we'll get to see how national attention could possibly have an effect upon this particular area of what they call family law in this state.

You gotta love Scott's new slogan for CPS: No Child Left With Mom (!!!)

PREVIOUS Z POST ON SUBJECT:
Grits on FLDS Children Takings

Prison Conditions and Other Petitions to Watch

You won't appreciate the facts alleged in this Bivens (Sec. 1983) case (on the list of petitions to watch at SCOTUSBLOG) unless you have seen the insides of our prisons.

At this link is the tail end of at least one more interesting action making it onto the list, involving removal of children from families and parental rights, that has been ongoing for ten years in Illinois (Dupuy, et al. v. McEwen).

Habeas and Sentencing

For those who haven't yet discovered the exciting world of habeas, here is a brief intro:

The quintessential example of a claim within the core of habeas is a challenge to the validity of the prisoner‟s conviction or sentence, that is, a claim that the police, the prosecutor, the defense lawyer, the jury, or the court made a constitutional error resulting in an unlawful conviction or sentence.
***
A prisoner challenging the conditions of confinement, on the other hand, is permitted to bring suit under § 1983.

At this link is an article in which a whole new world of habeas seems to have been rediscovered. In which the Preiser doctrine is turned on its head for good reason. I'm also stunned to see how clearly the authors show that federal judges get it wrong, (on at least two occasions) at pp 18-19. Demonstrating splits in the circuits here is also helpful.

The recommendation splitting sentence admin claims from other categories makes much sense; federal courts are likely to find it very helpful. That further deference is suggested for reviewing state court decisions where state judicial review avails is problematic. The problem of reviewing parole and disciplinary cases remains a daunting, growing, task. Deference only gives state reviewing courts the first opportunity to ignore (sweep under carpet) the valid federal claim. Having said this, AEDPA and PLRA are both legislative mistakes making it only easier to ignore valid claims. The consequences of this will continue to be evident as the prison population grows by leaps and bounds, as a toll on those unfortunate enough to be swept into the dragnet, their families, friends and acquaintances. Policies making it easier to convict and harder to undo wrongful convictions should be viewed with very critical eyes.

I hope after Doc Berman has a read on it he'll post his take. Following is a snippet from the paper by NANCY J. KING Vanderbilt University School of Law and SUZANNA SHERRY Vanderbilt University Law School :

Before 1972, it was not clear whether sentence-administration decisions by state corrections and parole officials were subject to constitutional regulation at all. In that year, the Court held in Morrissey v. Brewer that a parolee does have a liberty interest in his continued release on parole, which cannot be revoked without due process.5 In 1974, in Wolff v. McDonnell,6 the Court extended Morrissey to decisions that deprive d inmates of good-time credits and thus delayed the date of presumptive release. Five years later in Greenholtz v. Inmates of Nebraska Penal and Correctional Complex,7 the Court recognized a liberty interest in the denial or delay of parole, if the state parole system created an entitlement to a parole hearing after a set amount of time served. In particular, the Court held in Greenholtz that a state‟s decision to deny parole must meet minimum due process standards.8 These cases made it possible for state prisoners to raise constitutional challenges to sentence-administration decisions that had previously been unregulated by federal law.

Here are several of the more controversial statements, with which I tend to agree wholeheartedly, to be viewed critically by a trained eye:

The Court‟s expansion of the liberty interests of prisoners, the shift away from discretionary to
mandatory release laws, and the early decisions in Preiser and Wolff were not the only developments that contributed to an increase in the number of prisoners seeking habeas relief for sentence-administration claims over the past thirty years.

Once Edwards was combined with the changes in sentencing and release law described above, it ultimately channeled many sentence-administration challenges into habeas. But there was yet another development, almost simultaneous to the doctrinal change worked by Edwards, which has turned an unfortunate situation into an intolerable one.

in the years leading up to passage of the Act there is no sign in the legislative history that lawmakers anticipated the application of the new provisions to attacks by non-capital state prisoners on administrative decisions that affected the timing of their release from prison.

In general, the law recognizes (1) that similar claims by state and federal prisoners are treated similarly in terms of access to judicial review; (2) that federal courts are more reluctant to interfere with the judgments of state courts than with the actions of other, non-judicial state actors; and (3) that deprivations of physical liberty are the most egregious invasions of liberty.

Wilkinson further complicates the problem, because almost every case can be described both as satisfying and as not satisfying the Wilkinson standard: If the prisoner wins his procedural challenge, it means both that the first hearing was constitutionally invalid (and thus that the result of the hearing was invalid) and that the plaintiff is entitled to a new, constitutionally adequate, hearing.90

when states choose not to authorize judicial review, federal
oversight of the decisions made by their prison and parole officials will be more
exacting than it would have been had the state provided judicial review.

UPDATE: this SSRN piece is still in draft stage.

Grits on the FLDS Children,Takings and Prosecutions

Just a sample from Texas of the FLDS case(s), by Grits:

I have no idea what's being said in those interviews, but IMO CPS is overreaching tremendously to assume law enforcement will get to use that information in any criminal proceedings. By wholesale ignoring the right to counsel for people openly asking for their attorneys, combined with the flimsy totality of the premise of the state's action in the first place, it's a safe bet some judge, somewhere, will toss out big chunks of any criminal case before it ever gets to trial. I'm not a lawyer and couldn't cite to case law, but I'll be surprised if some judge somewhere along the line doesn't agree CPS is acting as law enforcement's stalking horse.

Meanwhile, I'm angered and embarrassed for our state and nation at this news that CPS may tell FLDS parents they have to give up their religion to get their kids back, including kids who no one thinks have ever been abused. These parents are in the same predicament as Abraham in the Bible, ordered by God to slay his son Isaac: Choose between your children and your faith. What would you do?

How Ideas Happen

In 1999, when Nathan Myhrvold now of Intellectual Ventures, left Microsoft and struck out on his own, he set himself an unusual goal. He wanted to see whether the kind of insight that leads to invention could be engineered. He formed a company called Intellectual Ventures. He raised hundreds of millions of dollars. He hired the smartest people he knew. It was not a venture-capital firm. Venture capitalists fund insights—that is, they let the magical process that generates new ideas take its course, and then they jump in. Myhrvold wanted to make insights—to come up with ideas, patent them, and then license them to interested companies. He thought that if he brought lots of very clever people together he could reconstruct that moment by the Grand River.

One rainy day last November, Myhrvold held an “invention session,” as he calls such meetings, on the technology of self-assembly. What if it was possible to break a complex piece of machinery into a thousand pieces and then, at some predetermined moment, have the machine put itself back together again? That had to be useful. But for what?

New Yorker, May 12, 2008

A Review

A new site, a new book.

Against the Grain

At this link is an opinion being appealed to the Supreme Court by Major League Baseball, and a bunch of other hippo size bodies with brains of peas (I take that back y'all---go ahead and spend money however you want to---I would do the same thing---or maybe not---maybe I grew up---maybe I don't like throwing money into the toilet---who knows...nobody cares), who want to control the use of their own statistics, already public domain stuff, by a fantasy baseball game maker. I wish I had half of the cash the parties have already spent on this lawsuit. I'd settle for a quarter of it. Read more at SCOTUSBLOG'S petitions to watch section.

Wait. I just remembered that running against the grain is how you get things done. So, now when I write my book and talk about the awesome Iron Man playing ball, and how, I need MLBPA permission. Not.

That would make the world a better place, if you're MLBPA. Anyhow,

It sure does make for interesting first amendment reading! There is also an interesting breach of warranty claim discussed in this case. Seriously, a game has entertainment value as art or a novel. If the maker wants to make a few bucks to defray the cost of his game why should we stop that.

I play fantasy yahoo for free and wonder how they do it, keep it free, that is.

This is just another case of the rich bully wanting to take the poor man's toy away. As if it wasn't enough to push the price of gas up to five dollars a quart.

I respectfully beg the Court to deny cert to resolve the issue. Watch out, that's certain to provoke them to grant the petition.

More Common Sense

Link here for this study, thanks to Doc Berman. Laws based on actual fact as opposed to imagined fictions could make the world a better place.

Does Residential Proximity Matter? A Geographic Analysis of Sex Offense Recidivism

Grant Duwe

Minnesota Department of Corrections, GDuwe@co.doc.state.mn.us

William Donnay

Minnesota Department of Corrections

Richard Tewksbury

University of Louisville

In an effort to reduce sex offense recidivism, local and state governments have recently passed legislation prohibiting sex offenders from living within a certain distance (500 to 2,500 feet) of child congregation locations such as schools, parks, and daycare centers. Examining the potential deterrent effects of a residency restrictions law in Minnesota, this study analyzed the offense patterns of every sex offender released from Minnesota correctional facilities between 1990 and 2002 who was reincarcerated for a new sex offense prior to 2006. Given that not one of the 224 sex offenses would have likely been prevented by residency restrictions, the findings from this study provide little support for the notion that such restrictions would significantly reduce sexual recidivism.

Common Sense

Our power and authority is eroding because of the amounts we are sending abroad for energy…." Link here (NYT) and here (Mother Jones).

The full quote by Sen. Bayh of Indiana:

“In the short run, that they are investing here is good,” Senator Bayh said. “But in the long run it is unsustainable. Our power and authority is eroding because of the amounts we are sending abroad for energy and consumer goods.”

So, why don't we just take the oil and not pay for it? I can't believe how dumb we are.

Convicting Innocents: Numbers

You have got to admit that the Death Penalty, questions of life and death and fairness bring out the extremes in a man. The passion never fails to surprise me, with terms: bloodlust, police state, medieval, and limited government bandied about dripping with sarcasm.

We've all been wanting to know more about exonerations, which is another way of saying wrongful conviction. Here are some numbers, and where they come from: (from comments at Doug's site, link here).

DPIC, which you suggested, has info here: http://www.deathpenaltyinfo.org/article.php?did=412&scid=6#inn-yr-rc

In the last 5 full years (2003-2007), twenty-four (24!!!!) people have been exonerated. Three have also been exonerated so far in 2008.

The DPIC also states that, since 1973, 129 people have been released from death row with evidence of innocence.

I'm not surprised that your (a blogger named "federalist") bloodlust is based on inaccurate information. Of course, I'm sure you'll claim that you referred to 4 "DNA exonerations" whereas the DPIC stats are for "exonerations," as though there is some great difference. Let me preemptively note that the DPIC has an additional category titled "Released From Death Row (Probable Innocence)" which does not appear to be included among the numbers I gave. So whether from DNA evidence or something else, the 24 listed exonerees had more than "probable innocence."

A follow up comment shining more light on the subject:

Here are the standards for making it on DPIC's list of "exonerations," the list that shows 24 people in the last 5 full years, as I mentioned above.

For Inclusion on DPIC's Innocence List:
Defendants must have been convicted, sentenced to death and subsequently either-
a) their conviction was overturned AND
i) they were acquitted at re-trial or
ii) all charges were dropped
b) they were given an absolute pardon by the governor based on new evidence of innocence.
http://www.deathpenaltyinfo.org/article.php?scid=6&did=109

I can only guess that you will pound the table about (a)(ii), claiming such cases aren't "real" exonerations or something. But I would suggest prosecutors don't dismiss charges lightly and I cannot fathom any reasonable explanation not to include such people as exonerees.

I mean, I can predict a rant against, say, the exclusionary rule, arguing that *maybe* one of these cases involved dropped charges after a state post-conviction court found key evidence should have been suppressed [do recall that federal courts cannot grant a habeas petition on fourth amendment grounds], but such an argument only reveals a desire for a police state where the authorities should be able to ransack our homes. Such constraints on our liberty would merely be the price we pay for making sure that the police catch all wrong-doers and are not deterred from finding them using any means. We must protect the children, after all.

And,

RE: DNA - I think it behooves us to remember the Dallas prosecutor's office of 1970s and early 80s. (AKA "The reason why so much case law ends in Dretke") We know how bad they were in part because they were the only (or one of the only? I'm relying on newspapers here) offices to keep evidence from which DNA could be collected.

Dallas News carries an ap report on that round table debate on wrongful convictions in Texas.
http://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/050908dntexdna.e0f8d470.html

Age of Regression?

In this curious ruling Judge Brownback relies upon the Last in Time Rule, dating from Chinese Exclusion Cases, 1889, to support MCA jurisdiction to try Kadr, a child soldier from Afghanistan pressed into service by AQ. The defense, and forces of the enlightenment, argue that current treaty and international law obligations prevent such jurisdiction over juveniles (brief available at link, thanks to Scotusblog).

Perhaps we should simply go back to utilizing the cat at the main and get this over with.

Wars can always be relied upon to provide a diversion for our excesses, precious material, manpower, and judicial resources as well. Will the twenty-first century be known as the Age of Regression?

Wrongful Convictions: Sixty Minutes

Here is something to catch up on, if you missed it (I was at my daughter's swim club banquet--could not miss the good prime and mousse): The Sixty Minutes special on Texas's exonerations investigations.

Moral Panic

Over at Doug's blog, the latest in the saga of sex offender panic, and extra reading about this puritanical phenomenon:

"Moral Panic," by Philip Jenkins. Essentially a history of sex offenders in modern America. Also Carl Sagan's "The Demon-Haunted World," which has excellent chapters on the "satanic ritual abuse" fever that gripped the nation for a decade or more. Opened my eyes to the historical realities as much as Mike Gray's "Drug Crazy" did for the drug war when I was in high school.

Additionally, here is a post regarding our swollen prison population and which political party/politicians are responsible.

Unconstitutional Tool: Terrorism Again

Designations (Annals of Surveillance, New Yorker) amount to a kind of economic embargo: anyone who does business with a designated person risks criminal or civil penalties. The Treasury Department can act more quickly than the police or the F.B.I., who may take action only after an investigation. By preëmptively freezing a suspect’s assets, “the government does not have to watch these dollars continue to flow over a period of months or years as it investigates whether it will pursue criminal charges,” a department spokesman, Andrew DeSouza, told me.

Authorities also need less evidence for a designation than they would for prosecution, and they can rely on evidence that would not be admissible in a criminal trial. Matthew Levitt, who until last year was deputy assistant secretary for intelligence and analysis at the Treasury Department, says that designations involve “an extremely robust process. This is not something that can be done easily or willy-nilly.” But Lormel, who retired from the F.B.I. in 2003, says he would have been “hard pressed” to act on some of the material that Treasury officials used. “Oftentimes, I think they base their evidence on media stories or public-source information, whereas we would never use only that,” he told me.

In addition, the Treasury Department may use classified evidence that is never disclosed to the designated party, despite an established principle of the American legal system that the accused should have an opportunity to confront evidence against him. Designations can be challenged before a federal judge, but lawyers for the designated party are not shown all the government’s evidence and cannot introduce their own. Nearly five hundred individuals and groups have been labelled Specially Designated Global Terrorists since 2001; there has never been a successful challenge in court. A designation “effectively denies people province over their own property in a largely unreviewable way,” Aufhauser, the department’s former general counsel, told me. “Such an extraordinary power needs to be exercised with discretion, because it could be constitutionally suspect.”