Principles of a lower court's discretion according to SCOTUS

The decision in Beard, comparing the per curiam (unsigned) opinion in Michigan v. Fischer, Stevens and Sotomayor dissenting (opinion here); the Court swoops in to reverse the trial judge and appellate affirmation in Fischer ruling in favor of suppression motion while in Beard narrowly holds on the basis that discretion in the lower courts ought to be preserved.

Makes sense as long as one does not take into account principle too strongly.

Postconviction Practices

Thanks to Doug, as alway, here is the ABA symposium on postconviction practices:

Prof. Berman also posts here on Second Amendment cases, Heller and McDonald, suggesting that the cause of criminal justice reform is related, discussing the politics as well.

Remarkably there is in the air a question whether SCOTUS might overrule a one hundred year old decision in the Slaughterhouse cases regarding the Privileges or Immunities clause of the Second Amendment! Doug suggests liberals should tend towards favoring the overruling. You have to go read the McDonald brief.

That would place liberals in bed with the NRA. Gives new meaning to the phrase intercourse between nations, or in this case national political parties. You gotta love how those clever libertarians love to stir the pot. Karl Rove, where are you now?

Yes, the states should and can be incubators for reform (in all vectors). But which one has the balls to move sensibly toward what we might call, fiscal responsibility, anti- tough (stupid tough) on crime? Restore judicial discretion, remove mandatory minimums, for starters.


Symposium link

Topics include

collateral consequences
clemency
claims of innocence
procedural obstacles

and a primer by Prof Taslitz at Howard University in DC.

New blog

Found a new blog, Stand Up, by Sam Caldwell.

It looks promising.

Shitake Awards, one more on topic, for a good belly laugh! The line: "giving anti-former offender politicos and celebrities what they really deserve"

Convicting Innocents

Here is a link to Sean Penn's documentary Witch Hunt (2008). The description from Emanuel Levy:

"Witch Hunt" chronicles the unraveling of a small town's justice system. The main characters in this new non-fiction film are working class parents, moms and dads, who were all wrongly convicted of child molestation in the early 1980s in the town of Bakersfield, California. Each of these falsely convicted people was recklessly pursued by the same Kern County District Attorney who remains in office today. "Witch Hunt" is a true crime drama, where the real criminals were the authorities, themselves.

PLEASE watch the film and tell me the system is not corrupt.

There is dire need for judicial reform. Although this episode happened over 20 years ago the abusive practices continue in ever more sophisticated fashion.

Check Sosen's site on the sidebar of this blog and the many comments on topic during the previous 9 months at Emanuel Levy.

There's a book I read a few years ago I thought was called cynically titled Presumed Innocent, not to be confused with Turow's of the same title. The one I read is about the Bakersfield travesty. I am having a hard time tracking it down. If anybody sees this and can help please do so.

Reforming Criminal Justice

NYRB has an interesting review of three books, by David Cole, called Can Our Shameful Prisons Be Reformed. November issue. Not much new here, but the problem is gaining in notoriety, perhaps.

Da System, Baby, Is Working, But Not so Great

Who has not heard of the case of Garrido, and Sowell?

The girls Sowell had over are not so well.

One fell out the balcony and had too much. She is not so well.

Sowell is not so well.

That's a good thing.

Sorry, so well...

See you in hell.



The proof is so often in the pudding.

Here, the proof seems to be putting in the house.

Sorry Sowell.

See you in hell.



Remember Garrido

You and matron kept her 20 years

Nobody knew any different

Not GPS, not judge, not parole officer;



OMG, the system, baby, is not so great.

Who should we hate?

All the criminal loving lawyers

is who.

Without them Garrido would be hung by the bun

Gee.

Already.

Finis

Can Sex Offenders be Banned From Church?

Most recently, Profs Berman and Dorf weigh in. If churches are anything like schools, I am surprised that the law does not provide for limited exceptions for attending church services. Perhaps the state could have thought of that, or will they add a provision to avoid going to court?

Or, with the constitutional analysis pending, will sex offenders be further separated into legal categories, such as dangerous, dangerous to children, and not dangerous, not violent, and no risk? Many, from what I understand, present absolutely no risk of reoffending whatsoever. And that's the point of these laws, correct? Let's get them off the registries! It will make it easier to track the ones requiring the attention.

What might that do to the notion of tracking, registries, and bans from residence in proximity to schools, school bus stops and such?

One Parthenogenetically Reborn Business

American prisons make the inmates they are made for: the thesis of Prof. Sharon Dolovich and many works to whom she refers in her new SSRN piece (download here) to appear in Harvard Law and Policy Review symposium.

Mass incarceration has become a virgin birth industry. It keeps laying eggs and the eggs are us. From the view of an egg who both justice and society failed, and having collected a five year degree from the Texas Dept of Criminal Justice along with an M.A. in Government from Notre Dame, and J.D. from The American University, I could not agree more. Prof. Dolovich puts it all together.

Her title,

Incarceration American Style

Here is the RUNAWAY FREIGHT TRAIN which reproduces itself at great cost to the taxpayer:

"society never has to confront the fact that the perceived need to control an out-of-control population may stem from the conditions, both inside and outside the prison, to which the incarcerated have been subjected.

The absence of any meaningful re-integrative project is thus revealed as both cause and effect of the system’s reproductive success; without such a project, prisoners’ re-entry efforts will in many cases be doomed to fail, and one can expect no real social investment to reintegrate those regarded as (non)people unfit for society.

Here is an effective recipe for simultaneous social abandonment and continued carceral control, as those who have been incarcerated and subsequently deprived of any meaningful social or psychological support are sure to become ever more marginalized from the body politic, and the more marginalized they become, the more likely they are to wind up back in prison."

That troubles me. It could be you too, innocently convicted and trying to re-make your life. Do you know anybody like that?

There is hope here:

Emphasize "the humanity and individuality of the people we put behind bars. It is embodied in Taifa and Beane’s call for an evidencebased approach to tackling the risk factors for criminal conduct; in Judge Gertner’s endorsement of evidence-based sentencing practices and guided discretion; and even in Clear and Austin’s macro-level demand that policymakers reduce the prison population by eliminating mandatory sentencing.

The self-perpetuating character of the American carceral system will not be disrupted until society as a whole begins to see that it is fellow human beings we are incarcerating. Until this fact is recognized, the wise strategies for change proposed by these authors will not be widely or seriously considered. But once it is recognized, those same strategies will be irresistible.

Actual Innocence and DNA Testing Waivers

In this post exploring DNA testing waivers, the real issue of interest to me is why innocent accused plead guilty to crimes they did not commit. Does this interest anybody else? Does it not trouble you?

A snippet: Defense lawyers who have worked on DNA appeals strongly oppose the waivers, saying that innocent people sometimes plead guilty -- mainly to get lighter sentences -- and that denying them the ability to prove their innocence violates a fundamental right. One quarter of the 243 people exonerated by DNA had falsely confessed to crimes they didn't commit, and 16 of them pleaded guilty....

from the Post article Doc cites.

Prison Reform and Justice Go Hand in Glove

New York could be the model for prison/crim justice reform efforts nationwide. See the NYT article here, contributed by Robert Gangi, executive director of the Correctional Association of New York, a nonprofit organization that monitors prison conditions.

Stimulating the Stimulus

Here is a crazy idea: devalue the dollar which will lead to immediate demand abroad for us goods and services creating exports and an influx of cash to exporters and the overall economy. The free market at work works well! Cons: consequences of a falling dollar?

I see the Wapo leads with an article on the economy today, as Speaker Nancy Pelosi reviews the options for rapidly lifting lagging employment indicators.

On a Slow News Day ... Dominated by War, Health Care and Letterman's Sex Life

Purchasing a lawsuit by the good citizens of North Carolina is shown here (the comments on Prof Berman's blog are interesting). The law banning sex offender from church because it has a day care is being challenged, AP reports here (where experts Prof Jonathan Turley, G-town U., Sara Tofte, Human Rights Watch, and Sara Totonchi, Southern Center for Human Rights weigh in). Katherine Parker of ACLU is assisting in this case.

And thank you anonymous for your kind comment which you posted here. Actual innocence is alive and well in criminal justice reform.

Whats the Point?

Jumping into the thicket I am going to venture that award winning producer Roman Polanski has done his time. It is 30 years of self imposed exile. To jail him now is merely a gesture to the idea that justice must be strict admitting of no compassion, that to set an example Roman must be punished more than that which he has imposed on himself. I disagree with this justice. Justice should be able to bend over backwards to fit unique circumstances.

What happened was rape and illegal. The victim no longer wishes to see Roman punished. It is over and has been for a long time. The state's interest in putting Roman in jail is far from clear at this point, has no point. The exile has been long enough.

On this, Robinson at Wapo has spoken here, calling the crime "brutalization." In his opinion, I'm not sure what he really thinks. Should Roman go to jail? I guess he thinks so. What purpose would it serve?

Supreme Court takes up Sex Offender Issues

The Court, already committed to one ruling on laws involving sex offenders, on Wednesday added another: Carr v. U.S., 08-1301. That case, from Indiana, asks the Court to interpret the Sex Offender Registration and Notification Act of 2006, requiring those convicted of sex crimes to register with state and federal databases. The question before the Court is whether it was unconstitutional for the U.S. Attorney General to apply the law retroactively to an individual whose underlying crime occurred before the law was enacted by Congress — in other words, an “Ex Post Facto” clause issue. (The other sex offender case the Court has on its decision docket, but not yet scheduled for argument, is United States v. Comstock, 08-1224, testing the constitutionality of continued imprisonment of a sex offender considered to be dangerous, after that individual has completed serving a prison sentence for the crimes.)

Docket: 08-1301
Title: Carr v. United States
Issue: Whether a person may be criminally prosecuted under 18 U.S.C. § 2250 for failure to register when the defendant’s underlying offense and travel in interstate commerce both predated the Sex Offender Registration and Notification Act’s enactment ; whether the Ex Post Facto Clause precludes prosecution under § 2250(a) of a person whose underlying offense and travel in interstate commerce both predated SORNA’s enactment.

• Opinion below (7^th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

Off the Wall

Show me what a man reads and I will tell you what kind of man he is.
Who said this?

Show me the books he loves and I shall know
The man far better than through mortal friends.
— S. Weir Mitchell

According to Book Browse, S. Weir Mitchell.

The phrase came to mind as I was reading John Keane's, The Life and Death of Democracy, (2009). Bio here. Here is a precious line from this work:

The struggle against blind arrogance and stupidity caused by concentrated power is never ultimately winnable, yet it is among the struggles that human beings abandon at our own peril. Democracy is a powerful remedy for insolence. Its purpose is to stop people getting screwed. Democracy is a good weapon for publicly exposing corruption and arrogance, false beliefs and blind spots, bad decisions and hurtful acts. It helpfully injects critical thinking and matter-of-factness into the design and operation of complex organisations and networked systems; above all it is an indispensable means of tackling problems (like climate change) for which there are currently no agreed definitions, let alone viable solutions. Democracy champions not the Rule of the People -- that definition of democracy belongs in more ways than one to the Age of Monarchy and Era of Dictatorship and Total Power -- but the rule that nobody should rule.

That's a mouthful.

False Evidence: Fabrication, Subornation of and Use at Trial,

My pet issue has made it to the Supreme Court:

Whether a prosecutor may be subjected to a civil trial and potential damages for a wrongful conviction and incarceration where the prosecutor allegedly violated a criminal defendant’s “substantive due process” rights by procuring false testimony during the criminal investigation, and then introduced that same testimony against the criminal defendant at trial.

The case is Pottawattamie County et al v McGhee et al. (at Scotus wiki).

Far from impairing the judicial process, prosecutors must be held accountable for bad conduct. The judicial system would benefit greatly from the credibility this lends to notions of justice contrary to the arguments presented by petitioners.

SMART is not so smart at making you safer

All RECENT studies taking up the question whether sex offender registries are effective at what they purport to achieve, reducing sex crimes and making us and our children safer, do not in fact accomplish this purpose. Don't take my word for it. Do the homework yourself, search my site or consult Professors Corey Young's Sex Crimes Blog, Doug Berman's Sentencing Law and Policy blogs for newsy and scholarly articles on topic. Also visit SOSEN's website, now posting news and primary sources of information every day. You may wish to conveniently locate them on my sidebar.

Nonetheless here is a press release from SMART announcing that Ohio and the Umatilla Tribe are the first two jurisdictions to implement the SORNA (sex offender registration act passed under Pres. Bush) under the Adam Walsh Act.

Thesis: Supreme Court & Public Opinion

Friedman’s thesis about the influence of public opinion on the Supreme Court sees the justices and the people as partners in a “marriage” that bypasses the elected legislature and the president.

The Will of the People

Hate and Fear

Repairing Our Broken Justice System is the title of this piece found at Nation Mag, by Gara LaMarche, director of The Atlantic Philanthropies. I wonder if this is possible. Senator Webb's Criminal Justice Commission Act is directed at a similar issue: Hate and Fear institutionalized by wars on terrorism, drugs and now sex offenders.

He writes: The Constitution Project report, from a bipartisan commission chaired by Walter Mondale and William Sessions, provides a blueprint for action by states and the federal government. Implementing these steps must be a central element of infrastructure repair for the justice system.

and,

the new domestic human rights movement points the way to a different future. Here, too, there is a blueprint: Human Rights at Home, a collaborative effort of more than forty organizations moving forward through the Campaign for a New Domestic Human Rights Agenda with a multipronged education and advocacy strategy.

and,

At the center of our vision is achieving the state of justice in which race and gender and ethnicity are not the determinants of who ends up in prison or on an ICE airplane to the Mexican border, or winds up dead at the hands of an abusive husband or an out-of-control cop or soldier. We will have achieved a small but important part of that goal when the Supreme Court looks like the America of those whose rights it is the ultimate guardian. Yes, the Court should have some connection to and empathy with those who come before it challenging a powerful interest, whether it's the state or a rich corporation.

Local Restriction Survives

Clearly an uphill battle to humanize notions behind residency restrictions, as this loss in Miami-Dade court shows. Story at the link.

The ACLU promises to appeal.

I hope the people paying the legal fees to defend the ordinance are happy.

Claim and Counterclaim

Lets examine Dr. Anna Salter’s "prize-winning work in which she cites studies finding that the average sex offender assaults more than 100 different victims during a lifetime." Because I am not aware of a single such study I had to take a few moments to review, briefly.

Dr. Salter's website is here. Does "average" mean most, about half? In what context ...?

Sex offender by definition means someone on the registry. You don't know who is a sex offender until they land on the registry. Dangerous pathological criminal is not the definition a rational mind would use to define sex offender based upon the information available at this time despite what we see on the registries, which is "criminal history" of conviction, and despite what Dr. Salter and Webster imply. I have not examined the registries carefully, but my gut tells me it is rare to see individuals with multiple convictions listed.

The claim re "average sex offender" and 100 victims was passed on by this professor, as if citing a fact:

Dr. Wendy Murphy, an Adjunct Professor at New England Law School, has an opinion piece entitled Sex offender laws flawed but critical. The editorial criticizes the recent Economist article (previously mentioned here), which Professor Murphy describes as a "puff piece about how sex offenders are treated unfairly and sex offender registries are barbaric."

Said response to the Economist piece were found here, Sex Crimes, in which Corey responds, in the context of sex offender registries:

Studies that show the incredible number of victims certain offenders have are irrelevant to the efficacy of sex offender registries except insofar as those instances of victimization occur after arrest, conviction, and release. Yet, in the article Murphy dismisses the use of post-release statistics (which are the only numbers we should care about in assessing the value of collateral restrictions). Pre-arrest numbers simply have no bearing on the subject. Further, the claim that, "the average sex offender assaults more than 100 different victims during a lifetime" is simply indefensible. There is no such evidence.

Peliminary Conclusion: So Murphy and Salter, two well educated pillars of the community are passing along misinformation for what purpose, by accident or mistake, or merely ignorance? It is hard to underestimate the damage these sorts of people cause among the rest of us, the unwitting accepting public.

Maryland Legal Update

Whats new in Maryland concerning laws pertaining to sex offenders?

Bills that passed in the 2009 session of the General Assembly are retroactivity, minors, photographs and one more I will have to review, all housekeeping sorts of things. An onerous bill to ban from public parks where children regularly gather reported unfavorably. In all there were 36 bills of which 4 became law. Curiously, re minors, retroactive registration is required, a topic addressed in the recent 9th Cir. panel decision discussed in this post.

Maryland currently does not have residency restrictions. These, and additional bans from public property (Md currently bans so from schools and day care property) would make it even more difficult for the ex felon to reenter society, create sex offender ghettos, and headache and expense to enforce. We see this from experience in Georgia, Iowa, Florida and other states that do this restriction.

Residency restrictions typically restrict within various distances from schools, day cares, bus stops and parks. In places this effectively bans so from large portions of the city, in some instances the entire metro area. Rural locale become the only place so may live. In Miami, a bridge causeway has become home to many. Homelessness is the only option for many.

Registration
Registration is not effective and should be reviewed. At a minimum the three tier risk category regime needs work. Too many on the registry do not belong there, do not require monitoring, and pose no danger to the community. The risk regime fails to account for this.

Registration is costly and tax payers do not see any benefits.

Registration has collateral consequences for ex offender's families, many of whom face stigma simply by being related to a registered person. This is unjustifiable given that most registered persons are either wrongly convicted, pose no danger, or are convicted of minor off-the-wall offenses as solicitation, aiding and abetting, public urination, possession of child porn, romeo and juliet and statutory sex that present no danger of recidivism, crimes that non puritan societies do not consider crimes. Most do not recidivate according to DOJ and all credible studies (95 percent).

Registration does not separate predators from the non dangerous variety.

Registration cannot forecast future crimes, or the geographical location of crime as thought to be related to the public disclosure of so residence addresses, and not even if the perp is a registered person as the recent Garrido case shows. The case spotlights the failure of registration to perform the intended function, which is prevention and public safety.

California is considering a registry for arsonists.

Registries create an underclass and movement toward tyranny, toward government sanctioned badges of poverty and slavery, an underclass of have-nots. Registries are a tool of oppression useful only to fear mongers and business seeking to maintain a cheap labor pool. As history tells it from ancient times to Hitler's Germany, Stalin's Russia, this is the beginning of the end of free society. The right wing, neo-con, southern churches and oil lobby have concocted this as part of a scheme to roll back the freedoms of the New Deal and liberal allies have taken the bait, hook, line and sinker. These are the same lobbies that seek to cut medicare and medicaid, children's health insurance, fight bitterly against a public health insurance option, seek to abolish the department of education and roll back a minimum wage law. Look at your neighbor, your elected representative, your mayor, your congressm or senator, and see if that is him or her.

It would be nice to know who is going to commit the next crime or sex crime but this is impossible to predict. Those convicted of sex crime are not so different from the general population of ex offender as to warrant the special attention they have received. Registries are a threat to freedom everywhere. Everyone deserves a second chance to make a first impression.

A Blue Chip Empirical Study of Registries Finds no Support that they are effective

Here is a Dec. 2008 piece from Amanda Agan at the University of Chicago Dept. of Economics, thanks again to Prof. Berman's unparalleled research. Available from SSRN.

Retroactivity in SORNA Unconstitutional Punishment

This is huge. A favorable retroactivity opinion from a Ninth Cir Panel. Thanks Doug.

Here is Corey Young on this subject. Volokh weighs in too, calling the decision or opinion not clearly correct. But this disregards common sense in favor of a technicality and precedent established by a quasi political cum legal establishment, the Supreme Court of the United States. Imo a decision is correct, right, when it makes sense. The opinion can always be tailored to fit the decision. Thus, distinguishing a juvenile from an adult in this instance is simply a clever if obvious way to suggest that the effect of retroactivity on adults is punitive as well. Does anybody disagree that registration and its consequences are punitive in light of the many, many studies in recent years finding safety concerns are not well served by registration? How can we continue to maintain the fiction that registration's stated purpose is not punitive but promotes a public purpose?

It is well past time to review the notion that registration serves any good purpose whatsoever, retroactively applied or not.

Ruling is limited to juveniles adjudicated delinquent under the Federal Juvy act. I didn't know there was such a thing. Why is there?

On Health, Care, and the Battle on the Hill

Just a little something from Katha over at Nation Magazine. Let's git 'er done:

Listening to the radio earlier this summer, I heard a 59-year-old nurse named Robin Batin testify in the most heart-rending way before the House subcommittee on oversight and investigations, chaired by Representative Bart Stupak. When she developed invasive breast cancer, her insurance company, Blue Cross and Blue Shield, rescinded her coverage because of a pre-existing condition--dermatitis--even though her dermatologist called to say it was acne, not, as the company claimed, a precancerous condition. Stupak confronted the heads of Assurant Health, UnitedHealth and WellPoint with the fact that there are some 1,400 conditions that can be used to cancel a policy, most of them so minor and obscure that the executives had never heard of them. Between 2003 and 2007, the three companies saved $300 million by rescinding at least 19,776 policies. By the time Batin finally got her surgery, her tumor had doubled in size. The Congressmen were shocked--they had no idea. Neither did I. The program? This American Life. I love Ira Glass, but come on, people! "Rescission" should be a word on the tip of everyone's tongue by now.

As of this writing, it is far from clear how much of the vocal opposition to reform represents wider popular feeling and how much is a mobile mob of gun nuts, birthers and teabaggers paid for and organized by lobbyists and Republican outfits like Americans for Prosperity, Conservatives for Patients' Rights and FreedomWorks. Several polls show a majority of Americans still want reform. But polls don't mean much politically if everyone stays quiet. Where's the superb organizing the Obama campaign was famous for? Where's the pushback from the left--for the public plan, or even for single-payer? It may be a non-starter in Congress, despite the upcoming vote on Representative John Conyers's HR 676, but one thing you can say for single-payer--it's easy to explain and to understand.

Oh army of Obama supporters who swarmed the country less than one year ago, we need you back knocking on our doors and sleeping on our sofas. We need you to stand on street corners handing out fliers that explain what healthcare reform is really all about and how people can make sure it doesn't get swallowed whole by the drug and insurance companies. Surely you're not too young and strong and healthy and vegan to care about boring parent stuff like health insurance? The diss on you was always that you were infatuated with Obama's charisma and with vague notions of "change"--not with the long slog of political engagement. That isn't true, though, is it?

Sources and Resources

Talk about a great week, today I found a Voice of Witness series book called, Surviving Justice: America's Wrongly Convicted and Exonerated. This came through Atlantic Monthly link to New Yorker piece hot off the press, Trial By Fire: Did Texas Execute an Innocent Man? by David Grann.

A quote:

In the summer of 1660, an Englishman named William Harrison vanished on a walk, near the village of Charingworth, in Gloucestershire. His bloodstained hat was soon discovered on the side of a local road. Police interrogated Harrison’s servant, John Perry, and eventually Perry gave a statement that his mother and his brother had killed Harrison for money. Perry, his mother, and his brother were hanged.

Two years later, Harrison reappeared. He insisted, fancifully, that he had been abducted by a band of criminals and sold into slavery. Whatever happened, one thing was indisputable: he had not been murdered by the Perrys.

Apparently, there is a Center on Wrongful Convictions at the Northwestern U. Law School mentioned by Grann.

Here are the final words of Josh Willingham, whose homicide may well become the first acknowledged by any state to have been executed in error:

“The only statement I want to make is that I am an innocent man convicted of a crime I did not commit. I have been persecuted for twelve years for something I did not do. From God’s dust I came and to dust I will return, so the Earth shall become my throne.”

Sex Offender Registration Ineffectiveness Becoming Widely Accepted

Registries ineffectiveness is finally becoming mainstream, as this piece from WSJ shows. California's Sex Offender Management Board is recommending against adopting the federal requirements concerning risk assessment.

RSOL dot org

They slipped in a new group on me. RSOL has been around for a while and are doing good work fighting the oppressive new war on sex offenders. The E Mag and new Forum are accessible from this link, which is now also on my sidebar under the appropriate head.

Another excellent resource, Habitat for Sex Offenders, was found thru the RSOL site. There is a lot going on, as with all revolutions, critical mass and right thinking will prevail. Liberties of all Americans are threatened by the virulent extremists who are proposing and expanding the registry laws, and the politicians seeking votes off the skin of registered sex offenders, their families and circles of friends. Shame on you if you let this continue.

Help for the Falsely Accused

I discovered a new blog and resource link for those who are falsely accused of child rape/sexual abuse. There is help out there for this nightmare scenario. It is especially important in view of the new War on Sex Offenders being waged by unscrupulous law makers and fear mongers.

Related posts on this topic can be found at Grits, and Doc Berman's Sentencing Law and Policy.

Terrorism and U.S Prisons Update

A tad old, but here's a good update on the overall picture of America's prison problem. And it isn't Guantanano or terrorists that are the problem. As somebody once said, "we have met the enemy, and it is us". I am a proud American, and I think we can do better. Senator Webb, good luck. I'm on your side. Can I have a job?

From Slate: Guantanamo is the Least of Our Problems by Dahlia Lithwick.

Also from Corey Yung, America's Emerging War on Sex Offenders is the latest by America's top sex offense criminal law analyst.

This is the abstract:

This article addresses four central questions. First, what is the difference between normal law enforcement policy and a “war” on crime? Second, assuming such a line can be discerned, has the enactment of the Adam Walsh Child Protection and Safety Act (“AWA”) in combination with other sex offender laws triggered a transition to a criminal war on sex criminals? Third, if such a criminal war is emerging, what will be the likely effects of such a transition? Fourth, if such a criminal war is emerging with substantial negative consequences, how can it be stopped?
By reviewing America’s history of criminal wars, primarily the War on Drugs, the article identifies three essential characteristics of a criminal war: marshalling of resources, myth creation, and exception making. It concludes that the federalization of sex offender policy brought about by the AWA elevated law enforcement to a nascent criminal war on sex crimes. This change could have repercussions as substantial as the drug war has had on American criminal justice an society.

Yung has completed another article, about judicial activism.

Here, at the Economist, is a piece called America's Unjust Sex Offender Laws. Includes an audio interview podcast with Sarah Geraghty, a lawyer and activist for reform in Georgia.

Actual Innocence in Scotus

Here is a link to WP picking up a Scotus order for a hearing in the case of a Georgia man on death row who has put forward recantations of seven witnesses in support of his claim that he is innocent.

Can it Get any Worse?

Things can always get worse, is the theme of this review of the work of historian William Appleman Williams, titled Off Dead Center, by Greg Grandin appearing in Nation Magazine. Read and heed and relish the big picture; exhilarate in taking your mind out of the cesspool of the instant 24 hour media "news" cycle.

One Hot August

August is a hot month in the Northern hemisphere. For the victims of the only two atomic weapons to ever have been deployed, August 1945 was even hotter. For more on that take a look at this link, to the Avalon Project of Yale University, a collection of primary sources on this, as well as other topics of historical interest.

Family of Secrets and The Family

Here's a link to a piece about The Family (the "Christian" mafia as they like to be called) in Salon. Now that I'm reading Family of Secrets I'm wondering about the connections that must exist between them.

There is no doubt that Lou would make a good member of the crowd as his recent Open Letter below shows:

Lou Pritchett is one of corporate's true living legends- an acclaimed author, dynamic teacher and one of the world's highest rated speakers. Successful corporate executives everywhere recognize him as the foremost leader in change management. Lou changed the way America does business by creating an audacious concept that came to be known as "partnering." Pritchett rose from soap salesman to Vice-President, Sales and Customer Development for Procter and Gamble and over the course of 36 years, made corporate history.

OPEN LETTER TO PRESIDENT OBAMA

Dear President Obama:
You are the thirteenth President under whom I have lived and unlike any of the others, you truly scare me. You scare me because after months of exposure, I know nothing about you.

You scare me because I do not know how you paid for your expensive Ivy League education and your upscale lifestyle and housi ng with no visible signs of support. You scare me because you did not spend the formative years of youth growing up in America and culturally you are not an American.

You scare me because you have never run a company or met a payroll.

You scare me because you have never had military experience, thus don't understand it at its core.

You scare me because you lack humility and 'class', always blaming others.

You scare me because for over half your life you have aligned yourself with radical extremists who hate America and you refuse to publicly denounce these radicals who wish to see America fail.

You scare me because you are a cheerleader for the "blame" America crowd and deliver this message abroad.

You scare me because you want to change America to a European style country where the government sector dominates instead of the private sector.

You scare me because you want to replace our health care system with a government controlled one.

You scare me because you prefer 'wind mills' to responsibly capitalizing on our own vast oil, coal and shale reserves.

You scare me because you want to kill the American capitalist goose that lays the golden egg which provides the highest standard of living in the world.

You scare me because you have begun to use 'extortion' tactics against certain banks and corporations.

You scare me because your own political party shrinks from challenging you on your wild and irresponsible spending proposals.

You scare me because you will not openly listen to or even consider opposing points of view from intelligent people.

You scare me because you falsely believe that you are both omnipotent and omniscient.

You scare me because the media gives you a free pass on everything you do.

You scare me because you demonize and want to silence the Limbaughs, Hannitys, O'Relllys and Becks who offer opposing, conservative points of view.

You scare me because you prefer controlling over governing.

Finally, you scare me because if you serve a second term I will probably not feel safe in writing a similar letter in 8 years.

Lou Pritchett TRUE CHECK

http://www.snopes.com/politics/soapbox/youscareme.asp
This letter was sent to the NY Times but they never acknowledged it. Big surprise. Since it hit the internet, however, it has had over 500,000 hits. Keep it going. All that is necessary for evil to succeed is that good men do nothing. It's happening right now.

Litigation Update

Here are a pair of cases worth noting:

Norwood v Vance (9th Cir.) prison officials may be liable for prisoner's lack of exercise;

Michael Joe Williams v. Jones (10th Cir.) habeas overturning jury verdict.

And from ABC News, here is a sad sex crime story about those who have served their prison time being doomed to failure from the moment they set foot outside. What is it about this that lawmakers have seen fit to create colonies of homeless vagrants, under curfew and restricted?

Santimonious Pantheon

This one is too good to pass over, by the beautiful Mo, (and the NYT) about all the great affairs of the world. Sorry, Marco.

Oh, and I almost forgot; thank God the War (remember, the Iraq War?) is finally over! We only lost 95 (and counting) troops this year, quite an improvement. It didn't turn out to be quite as good for the economy as some might have thought it would. Then, for some, it has turned out quite nicely, thank you.

At least not as many Jewish and eastern (Polish) people (or Russians) died this time. Just kidding. Bad Joke, very, very bad.

All aboard the troop express home in 48 hours! Alright.

Productivity, Global (Office) Warming and Japan

The Hilary Clinton of Japan business productivity and cutting energy are all featured in this Newsweek eyecandy, "Want to Save Energy, Think Japanese" -- always interesting for one who was born in Otaru (that's Japan, up North, where the air is/was could not be cleaner, the mountain waters fresher, the veggies and fish more fresh and nutritious). Wonder what it's like there now?

BECAUSE, I have been reading history in my spare time, by Regius Prof. of Modern History, Richard Evans of Cambridge, The Third Reich at War, my posting has been sparse, sorry.

Here is a HABEAS piece that promises to be of interest, re Tarbles case from UVA profs, Woolhandler and Collins, via bepress (thanks Doc as always).

The Big Bankers and the Bigger Fools Who let them Bank Your Money

Once again, after a few weeks of noting nothing newsworthy, in itself newsworthy an occasion, (besides the bankruptcies of our largest automakers of course, but who didn't see that coming?) I see the New Yorker is on the ball again with a review of a promising new look at the CREDIT DEFAULT SWAP, called FOOL'S GOLD (link here). The "new" financial product is taking much of the blame for the recent implosion of the banking industry, deservedly so, except that the blame should be placed on the person and persons who made them happen without adequate regulation to. The so called "off sight" meetings of the big bankers during this period also looks to be VERY interesting reading.

A morsel of this review:

In June, 1994, when a team from J. P. Morgan went on an off-site weekend to Boca Raton, they conformed to normative behavior in certain respects. Binge drinking occurred; a senior colleague’s nose was broken; somebody charged a trashed Jet Ski and many cheeseburgers to somebody else’s account. Where the J. P. Morgan team broke with tradition was in coming up with a real idea—an idea that changed the entire nature of modern banking, with consequences that are currently rocking the planet.

A pair of state cases

I've been asked to comment on this case as I find time to review it:

http://www.in.gov/judiciary/opinions/pdf/04300901rdr.pdf

Initially, I see Indiana has expanded the Registry to include several more categories of crime in addition to sex offenses: these include Murder, Voluntary Manslaughter, under certain circumstances Kidnaping and Confinement (according to the opinion). If we must have a registry at all, which is a bad idea in my opinion for reasons which have been articulated elsewhere here on this blog and by other experts on the topic to whom I have referred and linked at various times, perhaps it should also include financial crimes.

In this age of transparency nothing is private, yet why should government be in the business of publishing lists of people who have done bad things, then punishing people again for failing to self-register? It already does so in Court records should anyone care to search them. The bad guys aren't going to register anyway, so I suppose it makes it easy to identify those; the ones on the registries are not the ones who are committing these crimes. If they are not keeping communities safer, as recent research indicates, get rid of them. They are a waste of valuable government resources at all state and federal levels.

Also, getting to the technical details, ex post facto provisions of the Constitution of Indiana are in play and the court concludes registration laws are punitive in effect if not in intent. That is a contrary conclusion to the US Supreme Court's conclusion in a similar case from Alaska, interpreting that state's laws, which the opinion explains is permissible because an independent view or review is justified and well within the boundaries of the court's powers of judicial review.

Just a case from Maryland that was brought to my attention today:

Doe v. Dept. of Public Safety and Corr. Svcs., CSA No. 22, Sept. Term 2008. Reported. Opinion by Wright, J. Filed May 12, 2009.se

How Many Drops of Water in the Bucket?

Can't believe it's been nearly 2 weeks since I posted, and a month since baseball began. Here is a case in which FAMM (Families Against Mandatory Minimums) played an active role, which just shows that not all mandatory minimum sentences relate to drug offenses.

The case is US v. Polouizzi, No. 08-1830 (2d Cir. April 24, 2009) (available thanks to Doc):

Nothing Criminal

The O's won a nailbiter 10 to 9 last night at Texas in a game that had it all including a double steal by Texas in the bottom of the ninth to no avail as closer George Sherril got the strikeout to end the inning and the game with the winning run on second. Uehara got the win. Almost everybody had rbi or scored. They improve to 5-2. Hitting was no problem either but the pitching was nerve wracking. The rotation needs a little work.

The Texas bullpen held Baltimore to 4 scoreless innings to end the game. The O's Uehara loaded the bases in the 6th and everybody made it around on 3 hits to make it close. Baez gave up a two run homer in the 8th to make it a one run game. Ranger's Kinsler started the 9th with a leadoff double, Sherril gave up a walk before getting the all important K. That's how it ended.

Nothing criminal about that. WP/AP (Stephen Hawkins) on it here.

No Shrimpy Fried Rice?

Why is This News? Because somebody ought to charge her with criminal mischief for wasting the time of at least two valuable public servants and peace officers.

Reform of Criminal Justice Much Needed

And of reforming the legal / criminal justice system, we have this development, the dismissal of indictment against Sen. Stevens, a judge demanding accountability of the prosecutors office, and vows of reform. How far will it go (stealing one of Doc's good lines)? Supremacy Claus sure has talent as evidenced by his biting wit in the comments in the source (see link). Recall that the prosecutors misconduct purportedly caused dismissal, and only the Senator's age prevented his retrial. He's not on his deathbed but what good is it to prosecute the elderly? This is a pragmatic business after all. And of course he's suffered enough, probably lost his status as well as the election. Enough already.

Prison Nation or Nation of Jailbirds?

Getting serious attention, if Lexington can be serious over at Economist. The new crime bill is newsworthy. The article begins:

THE world’s tallest building is now in Dubai rather than New York. Its largest shopping mall is in Beijing, and its biggest Ferris wheel in Singapore. Once-mighty General Motors is suspended in a limbo between bail-out and bankruptcy; and the “war on terror” has demonstrated the limits of American military might.

But in one area America is going from strength to strength—the incarceration of its population. America has less than 5% of the world’s people but almost 25% of its prisoners. It imprisons 756 people per 100,000 residents, a rate nearly five times the world average. About one in every 31 adults is either in prison or on parole. Black men have a one-in-three chance of being imprisoned at some point in their lives. “A Leviathan unmatched in human history”, is how Glenn Loury, professor of social studies at Brown University, characterises America’s prison system.

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Conditions in the Leviathan’s belly can be brutal. More than 20% of inmates report that they have been sexually assaulted by guards or fellow inmates. Federal prisons are operating at more than 130% of capacity. A sixth of prisoners suffer from mental illness of one sort or another. There are four times as many mentally ill people in prison as in mental hospitals.

As well as being brutal, prisons are ineffective. They may keep offenders off the streets, but they fail to discourage them from offending. Two-thirds of ex-prisoners are re-arrested within three years of being released. The punishment extends to prisoners’ families, too. America’s 1.7m “prison orphans” are six times more likely than their peers to end up in prison themselves. The punishment also sometimes continues after prisoners are released. America is one of only a handful of countries that bar prisoners from voting, and in some states that ban is lifelong: 2% of American adults and 14% of black men are disfranchised because of criminal convictions.

It is possible to pick holes in these figures. Some of the world’s most repressive regimes do not own up to their addiction to imprisonment (does anyone really believe that Cuba imprisons only five in every 1,000 of its citizens?). No sane person would rather be locked up in Russia or China than in America. A country as large and diverse as America boasts plenty of model prisons and exemplary training programmes. But all that said, the conclusion remains stark: America’s incarceration habit is a disgrace, wasting resources at home and damaging the country abroad.

Corruption, Greed, Prisons

America, we can do better. When judges are corrupted it takes a long time to undo the damage, as you can only imagine from this article about youth in Pennsylvania sentenced by two greedy (but well educated) judges. You can't make this stuff up.

Criminal Justice Commission Act of 2009

Jim Webb, Senator from Virginia, gets it. He and Sen. Specter cosponser this legislation to review and reform criminal justice and incarceration policy.

Not your Chevrolet's America

Chevy, "this is America"

This past year, both the Republican and the Democratic Presidential candidates came out firmly for banning torture and closing the facility in Guantánamo Bay, where hundreds of prisoners have been held in years-long isolation. Neither Barack Obama nor John McCain, however, addressed the question of whether prolonged solitary confinement is torture. For a Presidential candidate, no less than for the prison commissioner, this would have been political suicide. The simple truth is that public sentiment in America is the reason that solitary confinement has exploded in this country, even as other Western nations have taken steps to reduce it. This is the dark side of American exceptionalism. With little concern or demurral, we have consigned tens of thousands of our own citizens to conditions that horrified our highest court a century ago. Our willingness to discard these standards for American prisoners made it easy to discard the Geneva Conventions prohibiting similar treatment of foreign prisoners of war, to the detriment of America’s moral stature in the world. In much the same way that a previous generation of Americans countenanced legalized segregation, ours has countenanced legalized torture. And there is no clearer manifestation of this than our routine use of solitary confinement—on our own people, in our own communities, in a supermax prison, for example, that is a thirty-minute drive from my door.

Thank you New Yorker Magazine, Atul Gawande et al.

Blawger's Baseball League

As I was perusing Blonde Justice's anonymous blog, (not trying to blow anybody's cover or anything like that, and I'll add that she links to Texas and other geographic places as well) I came across Baltimore Crime which I'll add to my blog roll, as if it's not overloaded already. I just had to do it.

Overcome by the same fit of curiosity I came across this one, (pdiblog) too, by a member of last year's league, Sanchovilla.

The reason for looking was to see if she's still there, and if we're going to do the Blawger's baseball league again this year.

Actual Innocence, DNA Testing, Sec. 1983, Osborne in the Supreme Court

At this link is the transcript of oral argument in the Supreme Court in the Osborne DNA case from Alaska in which the government argues that new evidence in the form of DNA testing should be denied, remain untouched, apparently in the interests of "finality", one, because 1983 civil claim is not the appropriate way to ask for it, and it is more of a discovery request, and prisoner does not have a federal constitutional right to his own DNA for testing, and because he refuses to swear unde penalty of perjury that he is actually innocent and has confessed twice, and remarkably, that there is no right to present new evidence that shows, or could show, your actual innocence (more to come) -- HuH?

I took some notes yesterday and stupidly kept thinking I'd return to post to the blog and didn't so it's lost, only to be retrieved from memory. Perhaps I'll not bother. Now to return to finish reading the transcript...,

For now, let's just say that this case tests whether or not there is a constitutional right to obtain evidence of actual innocence that is in the possession of the state.

Doc Berman's post on the case has the usual good commentary, here.

Citizens for Change

A new reader found my site, left a comment here, so at the request of JustaDadatHome, I'll be adding a direct link to Citizens for Change (cfcamerica.org) under the Sex Crime, Public Education, and Civil Rights section of my blog. Thanks, JaDaH!

I'm looking forward to seeing the great logo link on their website to my blog! It's nice to have talented friends!

Justice Center Chair Facing Removal in Texas CCA

I don't know how to describe this but, just the facts, sir. Judge Keller, Honorable Sharon Keller, Presiding Judge, Texas Court of Criminal Appeals (the supreme criminal court) is the Chairman of the Board of Directors of the Justice Center which is the umbrella organization controlling the Reentry Policy Council noted in my last post. I just happened to stumble upon this fact today while reviewing the website out of an abundance of curiosity.

Unfortunately, the Judge is now facing a removal proceeding and trial (estimated to cost $250,000 dollars of your taxpayer money) thanks to the State Commission on Judicial Proceedings. Just one more reason to stop electing judges is this article about the fee, in which her lawyer, Chip Babcock, says they'd defend her for a buck, but are prohibited by law for giving a discount on legal fees to a judge as it would amount to an illegal political contribution! The buck in question is the amount the lawyer hired by the Commission is set to receive for prosecuting the case against Keller.

Allegations state that Judge Keller refused to follow written procedures in the Richardson execution causing the lawyer's request for stay based upon the USSC grant in Baze to be rejected. It is alleged she knew the lawyers wanted to file the request but could not get it to Court by the five pm close and refused to allow papers to be filed late. I might have added, stupidly and callously refused, but that would just be my spin on it. We'll just have to see what kind of sanction, if any, is appropriate for this kind of behavior by our supreme court justices.

All major Texas newspapers, including Texas Monthly have decried Keller's hastening of the execution of Richardson. To a man, all have called for Keller's removal.

I wonder how will this affect the future of the reentry movement?

The Justice Center's Board provides guidance on the Center's priorities and is comprised of senior level state officials who shape criminal justice policy.

Grits has this post on it.

Grants for Prisoner Reentry

Second Chance Act grant solicitations are on the way, link for more info from the Reentry Policy Council. Understanding the Act's provisions is easy with this link to Sections 101 (for State and Local Governments) and 211 (for Nonprofits).

Sex Offender Hysteria

I noticed recently that I received nice comments and might have picked up a few more readers, not that I'm counting. But it's encouraging to see that other people find this of interest.

More and more we're seeing media articles cutting into sex offender hysteria and wondering where it will lead, such as these collected from Sex Crimes (WBAY Channel 2 Wisconsin) blog, Residency Restrictions don't work (Syracuse dot com); Rights Must be Observed, (Tufts Daily student paper); No Homes (Wall Street Journal); and Massachusetts Struggling (Herald: federal AWA requirements difficult to implement); this is change in the sense that more attention is being given to the ineffectiveness of residency restrictions, banishment, and throw away the key mentality. This is change in the sense that more in the media seem to be showing an interest in this issue, and seem less willing to just go along with stupid legislative proposals designed to serve one purpose, that of seeming to be tough on crime in order to further the politicians political career. Who could be that cynical?

I see that Rep. Sensenbrenner wants to impeach Judge Kent to keep him from receiving his 169 thou and change retirement pay now that he's pleaded to obstruction after being charged with sex crimes.

Getting Down to Business

Reviewing some posts from Doc's place I could not help thinking that here is where we are (the greatest prison nation), and unfortunately, here is where we are going (same direction).

Just One More, Reduce Rates to 4% and Let's Everybody Do The Refi!

I forgot to mention this solution, as I see more talk about nationalizing big banks that are set to lose more money this year and become insolvent. The good news is, they are already insolvent, and always insolvent, according to their debt to equity ratios. The bad news is they still don't know how insolvent because they haven't yet resolved their "computations" respecting those "bad mortgages" no doubt hoping they could unload all the worst "investments" on the feds, or get more money because of them.

Instead, write these down immediately to zero (creating certainty over the amount of the loss), suspend the capital requirements (to ensure lending without running afoul of federal rules) and federally insure all deposits under 250 thousand (in case there is a run for cash). That should cover most of us working stiffs.

Am I a genius? Or what?

A Fourth Crazy Bad Mortgage Scenario

Moratorium on Foreclosures for one year, to be extended if necessary based on events on the ground.

Two Bad Mortgage Scenarios

Case Study in the Market for Homes with Bad Mortgages

Link to BW "How Banks are Worsening the Forclosure Crisis"

P 1:

Home owners in bad mortgages don't deserve to be rescued.

Then,

a. let the banks foreclose, and the sooner the better. Homeowners take their earnings assuming they have jobs and rent until they reestablish credit to purchase another home.

b. new prospects need to be found to take foreclosed homes off the market.

c. work is created for realtors, movers and people who clean up and fix homes (and credit) for resale.

P 2:

Plenty of people with money will come forward to purchase these homes at the right price.

Then,

a. the market will be readjusted asap. This is the best case.

b. many homes remain vacant and neighborhoods deteriorate.

c. homes are leased/rented at market and neighborhoods deteriorate at a slightly reduced rate.


Compare Alternative Case A

P 1 Saving the homeowner is necessary condition for economic recovery.

Then,

a. bankruptcy courts readjust mortgages to a reasonable market rate.

b. mortgage holders do so on their own initiative.

c. market will be readjusted asap.


Alternative B

Homeowners walk.

White knight purchases homes at short sale and resell/release to the original homeowner.

See P 2, above.

Extension of Prosecutorial Immunities

When a civil rights lawsuit claims “that a prosecutor’s management of a trial-related information system is responsible for a constitutional error at [a] particular trial, the prosecutor responsible for the system enjoys absolute immunity just as would the prosecutor who handled the particular trial itself.”

The case of Van de Kamp v. Goldstein (07-854) involved a plea to the Court to head off a civil rights damages lawsuit by a man who had been prosecuted and convicted of murder in 1980. That conviction had been based in part upon the testimony of a jailhouse informant alleging a confession to the murder.

Inaugeration: Off With the Medieval Currents

Bye Bye, and Hello...a historic moment rises; feel the ground swell of hope, fresh ideas, new thinking. Check out all the different views here, (Atlantic) and here (Roll Call), and here (The Nation), and here (Newsweek).

Don't forget Fox, or the guys on the Right, no doubt making every effort to keep the "Big Tent Democrats" under control. I am getting the feeling that we're starting to ALL PULL TOGETHER.

But what else could go RIGHT?

EVERYTHING!!!

UPDATE: Just one more thing. The Banks cannot be fixed; they need to be reformed in every sense of the word, as in creation. Giving a falling bank money fixes nothing. Give that money to somebody who thinks up, makes, and fixes a tangible good that adds value to the economy (as opposed to somebody who skims off the cream, and thinks up new ways to skim more cream) is the better bet.