Bank Loots Treasury: Taxpayer Loses!

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

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

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

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

ENOUGH ALREADY.

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

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?

Mass Incarceration and the Liberal

Insights into the politics of crime from Doug at this permalink

Recent ideas for reform include asset forfeiture for sex crimes. I happen to think that this would be a solution worse than the problem it seeks to solve, as with registries. Money isn't a motivating factor in this type of crime, in contrast to the drug trade.

But whether I am "liberal" or "conservative" on this point is an intriguing question.

Crime is obviously not a good thing and over-incarceration (and over punishment) is even worse than the alternative. We have definitely forgotten the old saw that it is "better to let ten guilty go free than to convict one innocent man".

So in the spirit of conservation, liberation, AND bipartisanship let's reach across the aisle and return to the mindset of the old saw. All it takes is budget cutting. Cut the crime fighting budget. Period. It's just that simple. I will offer that this is definitely a fiscally conservative position in addition to being socially conservative.

Even so, I think of myself as a "liberal" these days because I'm more libertarian than not, and I agree with redistributing wealth up to a point and disagree with a system that lets the uber rich abuse the rest of us just because they can. I say this tongue in cheek but have observed that the recent period of "Republican" rule has allowed exactly this type of abuse to occur, almost unfettered. It would have been unfettered if the rich had their way.

Examples in point: gasoline prices, home prices (mortgage abuse). These two elements of the economy have almost single handedly produced the current recessionary market in my view and both could easily have been avoided. Both gasoline and homes are akin to "utilities" or necessaries that require a robust regulatory oversight.

So I have just one question. How did we turn a budget surplus 8 years ago into massive deficits and recession. Maybe even stagflation. OMG I'd love to blame the liberals for this as well as for overincarceration, but I think I'd be wrong.

What is "Violent Felony" getting 15 yr mandotory minimum sentence?

Here's Doc Berman (again--he's the GREATEST!): (the dissents are always the most interesting and informative--so much for "consensus" -- the five-to-four splits are always the most controversial too)

Though the rest legal world will sure obsess endlessly about the 5-4 Supreme Court ruling today upholding a federal ban on partial birth abortions, I plan to obsess (endlessly?) about the 5-4 Supreme Court ruling today upholding an application of a criminal history sentencing enhancement in James. Here is the basic early report from SCOTUSblog on James:

In another 5-4 decision, the Court ruled that an individual convicted of attempted burglary under state law has committed a "violent felony" for purposes of a mandatory 15-year sentence under federal law dealing with armed criminals. The ruling came in James v. U.S. (05-9264). Justice Samuel A. Alito, Jr., wrote for the majority. The voted produced an unusual array: with Alito in the majority were Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer, Kennedy and David H. Souter.

Based on the unusual vote line-up and the outcome, I suspect James will provide many tea leaves about future Sixth Amendment cases. I will, of course, post and comment on the opinion once it is available.

UPDATE: The James opinion can now be accessed here. It runs 44 pages total (including the syllabus). Here is the dissenting line-up: "SCALIA, J., filed a dissenting opinion, in which STEVENS and GINSBURG, JJ., joined. THOMAS, J., filed a dissenting opinion." Why can't my printer go faster!!

Other Stuff of Interest: (from How Appealing and Howard Bashman--again--he's the goto news guy on the blawgershpere!)

"Microsoft Settles Iowa Lawsuit": The Associated Press provides a report that begins, "Microsoft Corp. agreed Wednesday to pay Iowans up to $180 million to settle a class-action lawsuit that claimed the company had a monopoly that cost the state's citizens millions of dollars extra for software products."

and

Access online the transcript of today's U.S. Supreme Court oral argument in Tennessee Secondary School Athletic Assn. v. Brentwood Academy, No. 06-427: The transcript can be accessed here. In coverage of the oral argument, The Associated Press reports that "Court Considers Football Recruiting Case."

and

Access online today's (now yesterday's) U.S. Supreme Court ruling in the partial-birth abortion ban cases: You can access the decision at this link. Justice Anthony M. Kennedy delivered the opinion of the Court, in which the Chief Justice and Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito, Jr. joined. Justice Thomas also filed a concurring opinion in which Justice Scalia joined. Justice Ruth Bader Ginsburg wrote a dissenting opinion, in which Justices John Paul Stevens, David H. Souter, and Stephen G. Breyer joined.

Although the cases were argued separately (access the oral argument transcripts here and here), the Court disposed of the cases by means of a single opinion.

In his concurrence, Justice Thomas states: "I write separately to reiterate my view that the Court's abortion jurisprudence, including Casey and Roe v. Wade, 410 U. S. 113 (1973), has no basis in the Constitution." It is worth noting that the Court's two newest Justices -- the Chief Justice and Justice Alito -- did not join in Justice Thomas's concurring opinion.

Quaint Thoughts About Criminal Procedure

A Very Interesting Telephone Conversation

nb. Here is an interesting item I just found, entitled, "Recidivism and Reform, Competing Views of the State's Role in Prison" (by Jordan Ballor)--you will also find this very interesting pdf, "The State of the Law, 2006: Legal Developments Affecting Government Partnerships with Faith-Based Organizations" (by Ira Lupu and Robert Tuttle, of George Washington University's School of Law)
The Acton Institute's article was so good that I have added them to my list of links to Foundations. It is the Power Blog that you might want to sniff around in.

Yesterday I spoke to a kind and generous guy who shall remain anonymous. This person is a fellow attorney and member of the local county bar association. When I told him that the primary “target” of my project was prisoners, he kindly informed me that this group is not his primary concern, and that he sought rather to be serving the unmet legal needs of people outside of prison, making a special point to mention that these are people who have not been convicted of a crime. I should add the term not “yet” been convicted.

It was curious, thinking back now, that he would point out the fact of the conviction rather than the incarceration. So wait, do all prisoners fall into the category of needing to be locked up? Alternatives may be just as effective in some cases. That’s point number one.

It is far too easy for us to think of prisoners as richly having deserved to be imprisoned. In many cases true desserts is justified. In more than a few cases it’s not. An example is drug crimes and morality crimes. But we stray. Focusing on the crime makes it far easier to justify the prisons, to justify building, maintaining and expanding them. But when the price is paid, the sentence is carried to its full conclusion, the prison doors are opened and the prisoners become “free” again.

The attitude on the other end of my anonymous conversation clearly indicates the general nature of the prejudice that all prisoners face as a class, seeking to return to society when they are freed, in hurdling the barrier to “normalcy,” whether or not they needed to be imprisoned. That means in most cases needing a living wage and job, gainful employment. They could just as well have been whipped or put in stocks and sent on their way, back to work, or whatever. Probation for first time offenders is like this. Mandatory minimum sentences changed all that. Has it made society any better, safer, more, well, improved?

Imprisonment is actually banishment. Try moving to a new place and remaking your life. That in itself is punitive. Then try doing this after having slept, like old Rip Van Winkle, for a hundred years (okay, I exaggerated), locked away. All but forgotten.

Not only that, my caller demonstrated the hurdle that we all face, you and me, when seeking not to be charged with a crime, initially, even at the investigative stages, and when seeking to defend against charges of crime after they have been brought against the individual. The prejudicial character of this slice of American life is very strong, and this slice of American life is not insignificant.

The preference to look away is perfectly understandable. At the same time I now find it surprising coming from someone who should have, but clearly has not considered the matter very carefully. I must confess that I was one of those who had failed in an earlier life to consider this matter more carefully, even as I embarked on a career that included a bit of indigent defense work.

It was distasteful, admittedly, (I can not quite say why--perhaps I was rightly or wrongly thinking of raising my family, for their safety, or just of what I could choose or not choose to expose them to as part of my own career, or of my own childhood--maybe these are just excuses--I really do not have the answer, except perhaps to blame it on prejudice) and I chose to try to get away from it. But I can not look the other way any more. I’ve had what some might call a conversion or epiphany. Now I understand the importance of this particular section of American life.

To make a long story short I suggested to my very generous anonymous lawyer, generous for letting me talk to him for so long, that he consider the fact that people in the prisons have at a minimum four (4) (parents, siblings, grandparents, and children) individual immediate family members (and on further thought, four classes of family members) who are more than likely feeling the immediate impact of their situation, that is, of knowing somebody actually locked away in prison.

It is the needs of this cohort or group of American citizens that the Innocence Project hopes to serve the most. At the same time these efforts benefit all of the individuals who have been charged, as well as those who will be charged in the future , because the rights to habeas corpus and other “quaint” matters of criminal and constitutional procedure have a way of directly affecting the way in which the fundamental rights to Criminal Trials, and Appeals are vindicated. I hesitate to say it, but there could well be consequences whether intended or not for related areas of (non-criminal) constitutional law and federal civil procedure. The very nature of all of all of our fundamental rights are at stake when we tinker with habeas corpus, criminal procedure, and the Constitution.

Whenever a fundamental right is at stake you had better believe that it affects you in ways that you might never understand, until one day you wake up and discover that it is gone. When you hear of people given to complaining about the fact that “new” constitutional rights are being “made up” by the “personal preferences” of “activist judges,” you should well consider who is behind these efforts to take away certain hard-won and well established constitutional rights that have been around for so long a time already. Then consider who is trying to save them. Then, after that, think about who benefits.

Lopez v. Gonzales: Trafficking does not mean help to possess

Yesterday, the Supreme Court issued its opinion in the case of Lopez v. Gonzales. IMHO
a Common Sense Definition (of "trafficking" in the INA) prevailed over a very Legalistic argument. Even if the State makes a crime a felony the INA's language is controlling. The conclusion is worth quoting:

In sum, we hold that a state offense constitutes a “felony punishable under the Controlled Substances Act” only if it proscribes conduct punishable as a felony under that federal law. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

Surprising, or not surprising, that what appears to be a VERY simple and straight-forward, as in fastball down the middle, question went all the way to the Supreme Court? But let it be noted that there was a lone dissent, by Justice Thomas.

IMHO he continues fighting the bad war on drugs with the get-tough approach; but let's do that someplace else, and not make bad law over it. Is he just making a political statement?

Giving Aid and Comfort to ... Injustice is the Enemy

It is the rare generation that is given, and then seizes, the opportunity to make history. Not since WWII and the internment of Japanese-Americans and trials of German POWs have the courts had to become so actively engaged in prisoner litigation. Yes, of course, you have the “run of the mine” habeas corpus cases and lots of them perennially, but the recent so-called “terrorism cases” have become the hot potato for judicial review on a broad scale, involving questions of jurisdiction, federalism, separation of powers and Executive prerogative, in conjunction with American and enlightened notions of fundamental civil liberties. After a long swing of the pendulum toward "get tough on crime" (aka "lock'em up and throw away the key), perhaps a throughgoing review of this (including torture and abuse in our prison and criminal justice system) has been long overdue. We, Americans, as well as our bretheren overseas, confront a world that our parents and grandparents could never have dreamed up.

SCOTUSblog has this update:

Since the Supreme Court's decision in Hamdi v. Rumsfeld on June 28, 2004, a question has lingered over the President's authority to hold war-on-terrorism detainees who are captured inside the U.S., not in a foreign battle zone. The issue did not get finally resolved in the highly visible case of Jose Padilla because the government shifted him to a criminal trial court before the Supreme Court could rule. It is now unfolding in the Fourth Circuit Court, in the case of Al-Marri v. Wright (Circuit docket 06-7427). But, on Monday, the Justice Department sought to turn that case into another test of Congress' power to strip the federal courts of authority to hear habeas challenges to detention, even as Al-Marri's lawyers filed their opening brief on the merits (brief can be found here).
***
the Justice Department, in a filing also submitted on Monday, argued that the Fourth Circuit no longer has any authority to decide Al-Marri's case, because it is a habeas challenge and Congress in the new Military Commissions Act of 2006 stripped the federal courts of all authority to rule on detainees' habeas cases. The case thus should be dismissed, the government argued in the filing, found here. The Department said that the two sides had agreed on a briefing schedule on this motion, with Al-Marri's response due Jan. 5 and the government's reply Jan. 17. (The Circuit Court has tentatively set the week of Jan. 31-Feb. 3 to hear the case.)