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.
Monday, December 22, 2008
Thursday, December 18, 2008
Tuesday, December 16, 2008
Monday, December 15, 2008
Saturday, December 13, 2008
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.
Thursday, December 11, 2008
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.
Saturday, December 06, 2008
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.
Thursday, November 27, 2008
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:
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.
Tuesday, November 25, 2008
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.
Saturday, November 22, 2008
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.
Friday, November 21, 2008
Wednesday, November 19, 2008
Saturday, November 15, 2008
Thursday, November 13, 2008
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.
Mike Mukasey, you have got your work cut out for you now, and so have you PRESIDENT OBAMA!
Sunday, November 09, 2008
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.
Wednesday, November 05, 2008
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."
Thursday, October 30, 2008
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.
Sunday, October 26, 2008
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."
Saturday, October 25, 2008
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.
Wednesday, October 22, 2008
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.
Tuesday, October 21, 2008
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.
Thursday, October 16, 2008
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?
Monday, October 13, 2008
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.
Wednesday, October 08, 2008
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.
Monday, October 06, 2008
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.
Sunday, October 05, 2008
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....
Friday, October 03, 2008
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?
Saturday, September 27, 2008
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.
Monday, September 22, 2008
Saturday, September 20, 2008
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.
Thursday, September 18, 2008
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).
Friday, August 29, 2008
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.
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.
Tuesday, August 19, 2008
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.
Monday, August 18, 2008
Thursday, August 14, 2008
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:Judge Young’s court presumed a world without an objective reality, just like Humpty Dumpty’s worldview.
"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."
Friday, August 08, 2008
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."
Sunday, August 03, 2008
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.
Friday, August 01, 2008
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.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?
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.
I have some ideas, but your comments are most welcome.
Wednesday, July 30, 2008
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
Friday, July 18, 2008
Saturday, July 12, 2008
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.
Thursday, July 10, 2008
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.
Tuesday, July 01, 2008
Sunday, June 29, 2008
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.
Friday, June 27, 2008
Wednesday, June 25, 2008
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.PREVIOUS POST ON TOPIC:
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."
Here is my earlier verbose-but-important post on Rothgery.
Tuesday, June 24, 2008
Thursday, June 19, 2008
UPDATE: More on Texas "yo yo" justice as applied to - well, matters of life and death, here.
Tuesday, June 17, 2008
Friday, June 13, 2008
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?
Tuesday, June 10, 2008
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.
Sunday, June 08, 2008
Is it us?
Wednesday, June 04, 2008
Saturday, May 31, 2008
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
Thursday, May 29, 2008
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).
Sunday, May 25, 2008
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.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.
A prisoner challenging the conditions of confinement, on the other hand, is permitted to bring suit under § 1983.
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.
Sunday, May 18, 2008
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?
Saturday, May 17, 2008
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
Friday, May 16, 2008
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.
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
Minnesota Department of Corrections, GDuwe@co.doc.state.mn.us
Minnesota Department of Corrections
University of LouisvilleIn 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.
Sunday, May 11, 2008
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.
Friday, May 09, 2008
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.
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.
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?
Monday, May 05, 2008
"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.
Sunday, May 04, 2008
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.”