Sunday, June 29, 2008

Scotus Term Summary, 2007-08

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

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

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

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

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

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

Friday, June 27, 2008

Risk Assessment and Prison

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

Wednesday, June 25, 2008

Texas Justice Redux

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

And then, updating the topic there is this from Grits, who is devoted to the topic, on something as mundane as a data entry error that caused SCOTUS to have to weigh in. That would be the Rothgery decision (the opinion is at the link) from the current Supreme Court term. Here is analysis from Grits:
What's the significance? In the past, a defendant was not entitled to counsel at their bail hearing unless they couldn't make bond or bail was denied. In that case they had counsel appointed fairly quickly. But in the case where a defendant makes bond but also requests a lawyer, Texas courts previously held the defendant could not get a court appointed lawyer until they were indicted, leaving indigent defendants for weeks in limbo with no legal adviser. Now SCOTUS has said courts must appoint counsel for indigent defendants at their bail hearing.

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

Tuesday, June 24, 2008

Religion and The Family

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

Thursday, June 19, 2008

Texas Justice

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

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


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

Tuesday, June 17, 2008

Federalism Run Amok

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

Friday, June 13, 2008

Choosing to Allow so much Crime in America?

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

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

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

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

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

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

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

Tuesday, June 10, 2008

The Texas Hold'em Decision

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

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

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

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

Sunday, June 08, 2008

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

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

Is it us?

Wednesday, June 04, 2008

Booker Update

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