Wednesday, January 30, 2008

One More Arrow in the DP Abolition Quiver

A few choice excerpts:
Hill and his team work out of an office in the Capital Defenders’ headquarters, in downtown Atlanta, in a mock courtroom that is normally used for training. The prosecution has indicated that it may call as many as four hundred witnesses, and in Hill’s office are twenty-seven black binders, spanning eight feet of floor space, containing witness statements and other evidence gathered by the district attorney. The prosecution has also produced more than forty thousand pages of other material, and there are more than four hundred hours of tapes of telephone calls that Nichols has made from jail. On the wall are twenty sheets of yellow paper, each one representing a location relevant to the case. ***

Nichols was prepared to plead guilty to every count in the indictment and accept a sentence of life in prison if Howard agreed to abandon his quest for the death penalty.

Howard said no. As an elected official, he had little to lose by taking a hard line against one of the most notorious criminals in the country. The long wait to bring Nichols to trial has been frustrating for Howard, who works in an office in the old courthouse, five floors beneath the murder scene. Defending his decision to reject Hill’s plea offer, Howard told me, “My belief is that punishment is a question that should be decided by the community. It is not appropriate to kill four people and outline for the citizens what his punishment should be. I don’t think the defendant should choose his own punishment.” ***

Florida caps legal fees in death-penalty cases at fifteen thousand dollars, and South Carolina and Oklahoma allocate twenty-five thousand. Expenses for experts, however, often push the total cost in those states to six figures; in Georgia the average death-penalty defense costs about three hundred thousand dollars, and so it is not surprising that a case as complicated as Nichols’s has cost a great deal more. ***

Last month, Fulton County allocated a hundred and twenty-five thousand dollars for a psychiatric evaluation of Nichols and for other defense experts, but the standoff over the other costs of his defense remains unresolved. On January 18th, the Georgia council asked Judge Fuller to assign the case back to the state Capital Defenders. Hill would not comment, but Stephen Bright, of the Southern Center for Human Rights, called the move “a gross violation of the right to counsel.” Both Judge Fuller and Nichols’s defense team have argued that changing lawyers at this point would violate Nichols’s rights. Ironically, the refusal of state authorities to continue to pay Nichols’s legal fees has only increased the chances that he will avoid the death penalty. (“If this case was properly funded, it would have been over a year ago,” Fuller told me.) And, in the meantime, the Georgia council’s financial problems are beginning to affect other trials. In November, a judge in a murder case in rural Pike County removed two private attorneys because the council could no longer afford to pay them.

Saturday, January 26, 2008

Ohio and AWA

I know you were wondering how 300 sex offenders could so quickly file court papers to contest the provisions of Ohio's inplementation of the new federal Adam Walsh Act (and onerous, unconstitutional burdens placed on both the individuals and states) -- the Ohio Public Defenders website has useful looking sample motions and updates on the more than 300 cases filed in Ohio.

Ohio recently passed restrictive new sex offender laws per the AWA. However the Department of Justice has not yet issued guidelines for implementation, leaving states holding the bag. Many states could simply walk, after determinations that half-baked efforts at compliance would be vastly more costly (and ineffective, I might add), than non-compliance.

The registries are becoming much more costly than once were thought, if thought was ever given to this aspect of the consequences (a growing police state). Many experts view these sex offender law as failing in the positive purposes they were thought to serve: Prevention of Crime. They simply make it easier for government to violate the public's constitutional rights and privacy.

Are we truly safer and our children better protected as a result? Let's not throw good money after bad, and not follow California's example. Because of a bloated prison system, and now bloated sex offender registries, Californians will be facing reduced government services and/or higher tax burdens.

More Ohio News
Law Struck Down
Sex Offender Sentencing
Re Thinking Age of Consent

Friday, January 25, 2008

March Supreme Court Calendar

The March cases set for argument are summarized here, thanks SCOTUSBLOG! I'll post a comment after I review them. Five of twelve are criminal matters.
But I wonder what makes the question involving rate of paralegal compensation so important--I guess I'll just have to take a look.

Campaign Trail 2008

UPDATE: Literally, this is about buying elections. We all know that the media influences people. This is not about free speech. All we want to know is WHOM is purchasing the votes influenced by these movies, nothing more nothing less. Don't waste my Court's time with this crap.

Here is the way the appeal describes the Clinton movie: “It includes interviews with numerous individuals and many scenes of Senator Clinton at public appearances. It is about 90 minutes in length. It does not expressly advocate Senate Clinton’s election or defeat, but it discusses her Senate record, her White House record during President Bill Clinton’s presidency, and her presidential bid.”

So it is a electioneering communication prohibited during primaries and general elections? Or not? It does/does not advocate for or against a particular candidate? Coming soon: Obama The Movie.

What if they just made something called Democrats The Movie? HT: Scotusblog.

Here is an additional campaign related post: HTM

This too I like. It is class. Even with the almost detectable political bias it makes sense. From the Doc:

Obama could (and should) talk not about "Libby justice," but rather about "Rich justice," which could and should be a sly reference to Bill Clinton's ugly pardon of Marc Rich. Obama could (and should) highlight that upper-middle-class drug dealers are treated as heroes in TV shows, while poor drug dealers are often subject to harsh mandatory minimum sentences. Obama could (and should) highlight that college graduates are far less likely to commit crimes than high-school dropouts and thus investing resources in education for the disadvantaged is likely the most cost-effective way to fight crime. Obama could (and should) highlight that much of the money society need for broader health care coverage is now being spent incarcerating low-level non-violent offenders. Obama could (and should) highlight that our criminal justice system generally protects individuals with lots of money (and even perhaps mention OJ Simpson in this discussion), but generally fails to protect those who a less economically advantaged. Obama could (and should) highlight that California's budget crisis is so severe (and will require cuts in important services to the law abiding) in part because it has perhaps the most dysfunctional criminal justice system in the nation.

More Sosen News from Ohio

Doc Berman is on top of the Sosen related news. Here is how the recent post begins, with links to additional reference sources. Surprisingly, or not so surprisingly the costs are beginning to escalate and AWA is not looking so good after all. You would think the legislatures have better things to do, and taxpayers would want better laws. Similar to the national ID program imposed on the states, this one isn't worth the candle.

I always thought AWA was just another way to kick felons after they are already down. Wouldn't employers just love to have another source of cheap unemployable "cash" labor? And we could build bigger bridges for housing the homeless ones too.

But could we at least add kitchens and toilets this time?

Both Sex Crimes and Sex Offender Issues have posts spotlighting what a mess the new federal Adam Walsh Child Protection and Safety Act is starting to make in the states. This strong article from, headlined "Will states say 'no' to Adam Walsh Act?" provides this essential background:

Facing a 2009 deadline to comply with a controversial federal law intended to crack down on sex offenders, states are nearing a crossroads. They either must fall in line with the statute or ignore it and absorb the penalty — a 10-percent cut to their share of funds in a congressional grant program used to fight crime.

Thursday, January 24, 2008

Sosen Related Blog

Here's a new blog that promises to be of interest to ConLaw specialists, psychologists, legislators and others, called "There is Life After Sexual Abuse"

Click on this link for a lawsuit filed in this connection

A Progressive Digression

A kindly old demogogue is what popped to mind hearing Sen. McCain telling us on CNN that Iraq is the "number one battleground in the war against Al Qaeda". No fire and brimstone, just smooth talk. Not quite Hitlerian, but worse.

And then I thought about the fact that we could have rebuilt the entire nation's infrastructure with the money we have thrown into Iraq, which I have viewed as a disasterous distraction in the international efforts to counter, ward off, contain, destroy, etc., Bin Laden and terrorism. Bring those boys home and figure out a better way. We can rebuild our country and keep it safe as well without playing in the sandbox in this destructive fashion.

UPDATE: Just expanding on the rebuilding idea, that means lots of money spent right here, putting contractors to work all across the country. Timely, considering the tanking economy and structural issue we seem to be avoiding (loss of jobs overseas). This "war" has been draining the economy, and America, not keeping it safe and strong.

We should also increase domestic energy initiatives, etc. etc. and find ways to earn/spend at home, not be quite so quick to spending our dollars overseas IN A WAY THAT UNDERCUTS AMERICAN JOBS. I don't mind imports, but make the field level, don't allow American workers to sink to the levels in Bangladesh or China.

Secure our borders by hurting those who hire the illegal worker. If hiring stops the influx will end. Place the responsibility right where it counts.

Law Struck Down for Disparate Treatment

Here, Padilla sentence is discussed by AP.

Doc Berman straight and unadulterated: (here is the comment to Doc's post, which I found interesting) Thanks to this post at DotD, I see that divided panel of the Third Circuit in Doe v. Pennsylvania Board of Probation, No. 05-4200 (3d Cir. Jan. 23, 2008) (available here), has struck down part of Pennsylvania's sex offender notification statute because its "disparate treatment of out-of-state offenders violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution."

A brief scan of the opinions in Doe suggests that Con Law folks ought to be interested in this ruling. For example, consider this final footnote from the majority's opinion:

An undercurrent to our dissenting colleague’s argument is that under rational basis review, the government always wins. That, quite simply, cannot be so. In fact, were that the case, our review of issues under this standard would be equivalent to no review at all. A necessary corollary to and implication of rationality as a test is that there will be situations where proffered reasons are not rational. That precise situation is graphically presented here. Put simply, every reason proffered by the Commonwealth for its disparate treatment of Doe in this case is meritless, and hence irrational. No reason the Commonwealth offers for disparate treatment can be considered “rational” because each is contrary to the promises it made to the other signatories when it signed-on to the Compact. Indeed, in the several instances, the stated purposes of the Interstate Compact itself contradict what the Commonwealth claims are its reasons for the disparate treatment it gives to in-state and out-of-state offenders.

Monday, January 21, 2008


I'm still not sure where the connection to the criminal side of my blog is with this, but clearly we have a political connection to this ad for a new election year movie. Transparency is always a positive good worth paying for.

UPDATE: (this changes everything, I'm not out to promote the movie; I would never say anything bad about my friend Hilary) HT: The Hill

A U.S. District Court joined the Federal Election Commission (FEC) in a ruling Tuesday, finding that Citizens United, the group behind the productions of “Hillary: The Movie,” must disclose its donors.

Citizens United planned to promote the movie, which paints an unflattering portrait of presidential candidate Sen. Hillary Rodham Clinton (D-N.Y.), with paid advertising, which both the court and the FEC said violated the Bipartisan Campaign Reform Act of 2002. FEC said in a release Wednesday that Citizens United had pushed the court “to block the FEC from enforcing disclosure and other provisions of campaign finance law related to the film ‘Hillary: the Movie’ and advertising intended to promote it.”

The FEC found the movie to be “electioneering communications,” which falls under the BCRA language requiring donor disclosure.

“Hillary: The Movie” features commentary from a number of pundits and politicians including Ann Coulter, former Speaker of the House Newt Gingrich and Dick Morris, a former Clinton adviser and currently a columnist for The Hill.

Sunday, January 20, 2008

Court to Brave Certain and Uncertain Unenumerated (Penumbrated) Rights


Issues that Can Be Avoided

One issue that the Court will be able to duck, because it isn’t present here, involves the incorporation of the Second Amendment into the Fourteenth. Because the District of Columbia is not a state, but part of the federal government, no incorporation issue appears. Of course, that also means that, regardless of the decision in Heller, the incorporation question will remain for future cases.

In addition, the often-discussed question of what sort of weapons fall within Second Amendment protection should be easy for the Court to avoid should it choose to do so. The Heller plaintiffs are not asking for the right to possess machine guns, bazookas, or nuclear weapons, but ordinary firearms whose inclusion within any individual-rights view of the Second Amendment is unlikely to raise difficult questions.

The Heller case may also allow the Court to avoid, for the moment, any line drawing regarding the extent to which state or federal laws involving licensing or registration of firearms, or requiring licenses for public carrying of firearms, are permissible under an individual-rights view of the Second Amendment. The District of Columbia gun ban under question is so draco­nian that it can plausibly stand only if the Court finds no individual right to arms at all.

II. Issues that Cannot (Easily) Be Avoided

Other issues will require a decision. The most significant is the question whether the Second Amendment protects some sort of individual right to own guns, or merely a “collective right” of states to arm militias. That question is squarely presented in Heller, as is recognized by the Court’s own statement of the issue:

Whether the following provisions — D.C. Code secs. 7‑2502.02(a)(4), 22‑4504(a), and 7‑2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state‑regulated militia, but who wish to keep handguns and other firearms for private use in their homes.

Some observers read the Court’s statement of the issue to presuppose the existence of some sort of individual right,[4] but that seems less clear to us. But the Court can hardly avoid answering this question in deciding the case—or, at least, it cannot do so without contortions that would have made it more politic to simply deny the petition for certiorari.

Even if the Court concludes that the Second Amendment protects an individual right, it must then articulate a standard of review to, in Richard Fallon’s usage, “implement” the Amendment[5] by articulating “decision rules” to guide it and lower courts in future cases.[6] The Court could thus rec­ognize an individual right while prescribing a deferential standard of review that permits anything short of outright prohibition[7]—think Kelo’s review of “public use.”[8] Even if the Court were to announce a more rigorous standard, there is always the possibility that it will be applied in a relaxed fashion. Pace Gerry Gunther, “strict in theory” is not necessarily “fatal in fact.”[9]

Another HT to How Appealing

Politics and the Court

Will populist sounding winds of change steamroll the Conservative Court or will the Court steamroll the Populist? The thesis is explored here: (HT, How Appealing)

In keeping with the general rule that political change at the Court comes slowly indeed, the current rightward tilt of the Court is likely to last for the foreseeable future. Even if a Democrat wins election in 2008, it is unlikely that he or she will get to replace any of the conservative justices, thus tipping the Court in a more liberal direction. The two justices most likely to retire in the next four years are Stevens and Ginsburg, both members of the Court's more liberal wing. Thus, if a liberal appoints their successor, it will only preserve the status quo.

At the same time, however, the country's politics may well be on the verge of a sea-change. On the Democratic side, both Barack Obama and John Edwards are running on platforms centrally focused on the idea of bringing dramatic reform to our political system and to greater accountability for both government and business. Although perhaps less committed to these issues, Hillary Clinton, too, is likely to adopt these themes if she becomes the Democratic nominee.

All told, it would not be surprising if 2008 saw the election of a Democratic president ushered in on a somewhat populist reform platform, who will also enter office with substantial Democratic majorities in both houses of Congress. And if this happens, then the resulting reform coalition will run smack into an increasingly conservative Supreme Court whose decisions already betray deep hostility to the very kinds of reform such a reform coalition would favor.

The current Supreme Court, for example, is extremely hostile to campaign finance reform and has made it much tougher to hold businesses accountable for their wrongdoing in court. Yet campaign finance reform and greater regulation of business (including through lawsuits) are high on the reform agenda.

It is too soon, of course, to make any predictions about a titanic clash between the Court and the elected branches. But a few years ago, such a clash seemed unimaginable. It is not so now.


During arguments last week on the nation's strictest voter ID law, liberal-leaning Justice David Souter abandoned his usual Yankee reticence and became downright angry when more conservative justices suggested they might choke off a whole class of voter lawsuits. The question is whether groups � here the Indiana Democratic Party and American Civil Liberties Union � can broadly attack an allegedly discriminatory law before it takes effect, without waiting until individuals have been affected.

If the majority adopts such a restriction, Souter declared, "there can never be a (broad-based) challenge to a registration requirement, a voter ID requirement."

"The horse is going to be out of the barn," Justice Ruth Bader Ginsburg added. "They will have the election, and … the result will be skewed in favor of the opposite party."

AND REMEMBER how the previous term ended:

The heated rhetoric on the bench last term carried over to opinions at the end of the 2006-07 session when the conservative majority dominated and the liberals were relegated to angry dissents. The court curtailed abortion rights, limited schools' racial integration plans and carved out another exception for student speech rights.

"It is not often in the law that so few have so quickly changed so much," Breyer said, delivering a dissenting opinion.

BUT this is what may be coming around the curve:

After arguments in December in that case, a majority including Kennedy appeared ready to rule that the detainees can protest their confinement in U.S. courts.

In other recent oral arguments, Kennedy appeared more likely to go to the right. In the voter ID dispute, he characterized the law's burden on potential voters as "a minor inconvenience."

"This case demonstrated again how deeply divided the court is," says Steven Shapiro, the ACLU's legal director, after attending arguments in the Indiana case. "The court was obviously quite aggressive in its questioning."

When justices accepted the voting rights and lethal-injection cases for review, it looked like a positive development for civil rights groups and death penalty foes. In the former, the justices agreed to review Indiana's law requiring people to present a government-issue photo ID before voting. Challengers said the law particularly hurts poor and minority voters. In the latter case, when the justices took appeals from two Kentucky death row prisoners, they prompted a temporary halt on executions.

The oral arguments in the cases, however, indicated that eventual rulings might be more to conservatives' liking. A majority did not seem ready to re-evaluate lethal injections. Instead, some justices seemed poised to reject the claim that the lethal-injection mix is "cruel and unusual punishment," and some seemed eager to end the moratorium on executions.

"I'm very reluctant to send (the case) back to the trial court so we can have a nationwide cessation of all executions," Scalia said.

In an Internet child pornography case heard in October, the justices appeared amenable to upholding an Internet anti-porn law for the first time in a decade.

And then, of course, there is this:

the initial wave of reaction to the suit treated Padilla not as the little guy, but as the strong-arming giant. Or if not Padilla himself, then the human rights clinic at Yale Law School—which filed suit on his behalf. Law professor and blogger Jonathan Turley called the filing "highly questionable." Law professor and blogger Orin Kerr, finding Yale's involvement in the suit "particularly interesting" and noting that Yoo is a Yale alumnus, wrote, "I don't think Yale Law School ends up looking very good on either side of this one." And then the Wall Street Journal really piled on, calling the suit a "political stunt," "nasty business," and snidely speculating that Yale Law School Dean Harold Koh must be "proud of suing an alumnus [Yoo] on behalf of a terrorist."

Update: And this on same topic:

The past week has included a lot of blog action about the lawsuit Jose Padilla (and his mother) filed against John Yoo – for example here and here and here and here and here and here.

And this:

Jan. 18 (Bloomberg) -- The U.S. Supreme Court gave us more evidence earlier this week of what people in the stock market already knew: This is no time to be an investor.

People who buy shares in companies that defraud them can't sue those who may have helped in an illegal deed, the court said. Money lost because Smith Co. and Jones Co. lent a hand while Acme Co. cooked the books? The court says tough luck unless Smith and Jones somehow led you to buy Acme's stock.

This judicial gift came via the Jan. 15 decision in Stoneridge Investment Partners LLC versus Scientific-Atlanta Inc. and Motorola Inc. Stoneridge, a Malvern, Pennsylvania, money manager, alleged that the two cable-television box-makers helped pull off an accounting fraud that let Charter Communications Inc. show more revenue than it really had. The court ruled on whether Stoneridge could sue so-called abettors, not on whether the allegations were true.

Thanks Howard, for collecting these articles in one place.

Saturday, January 19, 2008


Good Sentencing Stuff here: (thanks Doc).
And here, on steroids and baseball.

Tuesday, January 15, 2008

Categorically Not a Person? Sounds Like Texas!

Here, in full, is the text of the Second Amendment: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." The meaning and application of this provision comes before the Supreme Court this year in the Heller case, and I think the case may result in a number of surprising outcomes. One such outcome that surprises me comes from the US government's brief filed late last week.

As detailed in this SCOTUSblog post, through the filing of this amicus brief, the "Bush Administration urged the Supreme Court Friday night to rule that the Second Amendment protects an individual right to have a gun for private use." Though this amicus brief is full of interesting points, I was taken aback by this assertion: "the Second Amendment, properly construed, ... does not provide any protections to certain individuals, such as convicted felons, who have never been understood to be within the Amendment’s coverage." In other words, it seems that the US government is arguing that "the people" referenced in the Second Amendment's text does not include any of the millions of Americans with a felony conviction.

Notably, the Bill of Rights uses the phrase "the people" in four other Amendments (the First, Fourth, Ninth and Tenth). I have never before heard a claim that all convicted felons are categorically denied the individual rights protected by all these Amendments. The Fourth Amendment, notably, speaks of the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Supreme Court has never suggested that individuals, once convicted of a felony, thereafter cannot assert Fourth Amendment rights. (The Supreme Court has held that searches of prisoners and paroles can be reasonable even without any individualized suspicion; but such rulings are a far cry from suggesting that all convicted felons are no longer among "the people" who have rights under the Fourth Amendment.)

I find notable and telling the US government's need to take such a blunderbuss approach (pun intended) when seeking to limit the reach of Second Amendment rights. The government's brief confirms my instinct that, if an individual-right genie emerges from Heller, it may prove quite hard to get Second Amendment rights back into the regulatory bottle.


Friday, January 11, 2008

Sex Offender Sentencing

Good recidivism methodology analysis as well in US v. McIlrath, No. 07-1266 (7th Cir. Jan. 10, 2008) (available here), which has been described as a must-read.

A Case of Bad Law But Good Decision?

I, for one, would have favored letting the suit proceed, contrary to the majority of the federal judges in this case. They do know best on which side their bread is buttered unlike others, who have no clue, or don't care, where the dough comes from.

Oh, you didn't know? It grows on trees. By this standard we will soon have many more of the environmentally conscious on the benches but hopefully not in the sense of bench warmers.

Opinion (7-2; Jan. 8) in John R. Sand & Gravel v. United States (06-1164) is now available here. HT SCOTUSBLOG.

Criminal Matters Upcoming

Thanks to SCOTUSBLOG here are the certs granted from January 4:

Three of the six are criminal matters. How interesting!

Docket: 06-7517
Case name: Irizarry v. United States
Issue: Whether a judge must give both sides notice in advance of imposing a criminal sentence that departs from the Sentencing Guidelines.


Docket: 07-210
Case name: John Bridge v. Phoenix Bond & Indemnity Co., et al.
Issue: Whether plaintiffs who did not rely on but were nonetheless harmed by false statements made to third parties can establish proximate cause in a civil RICO action.


Docket: 07-330
Case name: Greenlaw v. United States
Issue: Whether a federal circuit court may sua sponte increase a defendant’s sentence in the absence of a cross-appeal by the government.


Docket: 07-343
Case name: Kennedy v. Louisiana
Issue: Whether the Eighth Amendment bar on cruel and unusual punishment prohibits capital punishment for the crime of child rape.


Docket: 07-411
Case name: Plains Commerce Bank v. Long Family Land & Cattle
Issue: Whether Indian tribes’ courts have authority to decide a civil lawsuit that involves business dealings between a company owned by a member of the tribe and a bank that owns land on a reservation, but itself is not owned by a tribal member.


Docket: 07-552
Case name: Sprint Communications Company, et al. v. APCC Services
Issue: Whether a plaintiff assigned the right to pursue a legal claim, but which stands to gain no proceeds from the outcome of the litigation, has established standing under Article III. (Disclosure: Akin Gump represents the petitioner.)

Monday, January 07, 2008

Not Quite Business As Usual

Via How Appealing: Yesterday's edition of The Times and Democrat of Orangeburg, South Carolina contained an article that begins, "The South Carolina Appellate Court has handed down a decision that upheld a circuit court judge's 2005 contempt ruling after a St. Matthews woman instructed the judge to kiss her derriere. Judith Law will serve extra time in jail after losing an appeal on a 2005 contempt-of-court charge for offering the written instruction to a circuit court judge." You can access last month's unpublished ruling of the South Carolina Court of Appeals at this link.

Thursday, January 03, 2008

OBE and Newsletter

I have been recently OBE (namely Thanksgiving, Christmas, New Years revelry), nonetheless the December/January newsletter is up at the link to your right.