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 Stateline.org, 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.

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"


UPDATE: Click on this link for a lawsuit filed in this connection
http://sexoffenderissues.pbwiki.com/f/PJ%20Lawsuit.pdf

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.

HTM

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.

The 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.

Court to Brave Certain and Uncertain Unenumerated (Penumbrated) Rights

here:

I. 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.

AND ALSO HERE WHERE WE SEE THIS SHARP REBUTTAL:

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.

Tidbits

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

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.

From Doug, HT SCOTUSBLOG

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.

• Opinion below (11th Circuit)
• Petition for certiorari
• Brief in opposition

__________________

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.

• Opinion below (7th Circuit)
• Petition for certiorari
• Brief in opposition
• Amicus brief of McKesson Corporation (in support of the petitioner)

__________________

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.

• Opinion below (8th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

__________________

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.

• Opinion below (Supreme Court of Louisiana)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Amicus brief of Louisiana Public Defender Offices in Parishes Impacted by Hurricanes Katrina and Rita (in support of the petitioner)
• Amicus brief of the National Association of Social Workers, et al. (in support of the petitioner)
• Amicus brief of the National Association of Criminal Defense Lawyers (in support of the petitioner)

__________________

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.

• Opinion below (8th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

__________________

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.)

• Opinion below (D.C. Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Amicus brief of Qwest Communications, Inc. (in support of the petitioners)

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.

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.

SCOTUS on Gall and Kimbrough

Link here to more good stuff from Berman on the Gall and Kimbrough decisions. Additional commentary from SCOTUSBLOG.

Here's Justice Ginsburg in Kimbrough: We hold that, under Booker, the cocaine Guidelines, like all other Guidelines, are advisory only, and that the Court of Appeals erred in holding the crack/powder disparity effectively mandatory. A district judge must include the Guidelines range in the array of factors warranting consideration. The judge may determine, however, that, in the particular case, a within- Guidelines sentence is “greater than necessary” to serve the objectives of sentencing. 18 U. S. C. §3553(a) (2000 ed. and Supp. V). In making that determination, the judge may consider the disparity between the Guidelines’ treatment of crack and powder cocaine offenses.

And Justice Stevens in Gall: We now hold that, while the extent of the difference between a particular sentence and the recommended Guidelines range is surely relevant, courts of appeals must review all sentences — whether inside, just outside, or significantly outside the Guidelines range — under a deferential abuse-of-discretion standard. We also hold that the sentence imposed by the experienced District Judge in this case was reasonable.

Watson case was also decided today (Dec. 10) by the Supreme Court. Again from Doc Berman, "Here's the basics from SCOTUSblog:

In the last of three rulings on Monday, the Court decided unanimously that one does not “use” a gun, for purposes of imposing a mandatory five-year sentence, if the person receives the gun in a trade for drugs. Justice David H. Souter wrote the opinion in Watson v. U.S. (06-571).

The opinion in Watson (06-571) is here, and this ruling (along with Gall and Kimbrough) reinforce my view that the US Supreme Court is right now the most pro-defendant appellate court on criminal sentencing issues in the nation. Whatever one thinks about the Court's purported moves to the right on other issues, in the arena of criminal sentencing, federal defendants certainly should be more hopeful arguing before the current Justices than before any other group of appellate judges.

Crack Cocaine Sentencing

Here is the Sentencing Commission official press release concerning decision to make new crack cocaine sentencing guidelines retroactive. HT: Doc Berman

And here is a very interesting excerpt, including many stats on "Re-entry," from US News and World Report (Alex Kingsbury, reporting). Ka Shing, more thanks to the analysis from Doc.

Though not quite stated in these terms, some of the debate over the retroactivity of the new crack amendments is really a debate about whether the offenders that might benefit from the reduced sentences are prepared to re-enter the community and become productive citizens. Against this backdrop, this new article about reentry realities in US News & World Report is a must read. Here are some highlights:

Getting cons to stay ex-cons has long been one of the most vexing challenges of the criminal justice system. One out of every 31 American adults is in jail, on parole, or on probation, and the central reality is this: Nearly everyone who enters the prison system eventually gets out.

The problem is, most of those ex-offenders quickly find themselves back inside. Today, ending the cycle of recidivism has become an increasingly urgent problem as communities nationwide are forced to absorb record numbers of prisoners who also often struggle with addiction and other illness.

There are more than 1.5 million people in state or federal prison for serious offenses and 750,000 others in jail for more minor crimes. Prison populations have swelled since the early 1970s, and now offenders are returning to their neighborhoods at a rate of more than 1,400 per day. In 1994, nearly 457,000 prisoners were released from state and federal custody, and in 2005, almost 699,000 prisoners were released. That is the largest single exodus of ex-convicts in American history....

The process of coordinated prisoner reintegration is now known as "re-entry," rather than rehabilitation or release. Whereas rehabilitation assumed that individuals could change on their own, re-entry focuses on educating employers and communities about how they can help the offender on the outside. It aims to break though the red tape that has historically delayed social services for felons and to prevent the snags — like drug treatment programs that reject offenders who have been clean only a short time — that keep them from making a healthy return to society.

In practice, that means synchronizing many different social and correctional services while offenders are still inmates and continuing that assistance after their release. Re-entry programs don't necessarily require more funding, just better coordination of existing resources like job training and stable housing. "Rehab is focused on the individual offender; re-entry is about communities, families, children, coworkers, and neighbors," says Amy Solomon, a criminal justice researcher at the Urban Institute.

Moratorium Continues

Doug also says: As detailed in this SCOTUSblog post, the Justices continue to block every state effort to go forward with lethal injections. Here's the basics:

The Supreme Court on Wednesday afternoon delayed the execution of Thomas D. Arthur, previously scheduled for 6 p.m. on Thursday. Arthur has a petition pending (Arthur v. Allen, 07-395) challenging the state’s use of a lethal injection protocol to carry out executions.... The Court in recent weeks has not permitted any execution to proceed when the inmate has sought a stay while challenging lethal injection. It is scheduled to hold a hearing on such challenges on Jan. 7 at 10 a.m.

Growth is Not Good

From Doc Berman, these statistics come home for the holidays:

Among many holiday season traditions for sentencing fans is the release by the Bureau of Justice Statistics of its national head count of the number of persons in State and Federal prisons, and the number of persons on probation and parole, at yearend the prior year. Here are links to these data-filled reports:

• Prisoners in 2006
• Probation and Parole in the United States, 2006

Here are some of the statistical highlights from this press release discussing both reports:

The U.S. adult correctional population — incarcerated or in the community — reached 7.2 million men and women, an increase of 159,500 during the year, the Justice Department’s Bureau of Justice Statistics (BJS) announced today in a new report. About 3.2 percent of the U.S. adult population, or 1 in every 31 adults, was in the nation’s prisons or jails or on probation or parole at the end of 2006.

The number of men and women who were being supervised on probation or parole in the United States at year-end 2006 reached 5 million for the first time, an increase of 87,852 (or 1.8 percent) during the year. A separate study found that on December 31, 2006, there were 1,570,861 inmates under state and federal jurisdiction, an increase of 42,932 (or 2.8 percent) in 2006.

During 2006 the number of inmates under state jurisdiction rose by 37,504 (2.8 percent). The number of prisoners under federal jurisdiction rose by 5,428 (2.9 percent).

In 2006 the number of prisoners in the 10 states with the largest prison populations increased by 3.2 percent, which was more than three times the average annual growth rate (0.9 percent) in these states from 2000 through 2005. These states accounted for 65 percent of the overall increase in the U.S. prison population during 2006. The federal system remained the largest prison system with 193,046 inmates under its jurisdiction.

Retroactivity and Crack, Jack

Crack, Retroactivity and Hilary are the topic of this good post by Doc Berman, with additional good sources on this technical, but political, subject.

Iraq, America and Future Insanity

Senator Schumer and other Democrats on the Joint Economic Committee have been trying (not very successfully, so far) to get other policy makers and the public at large to focus on the sheer insanity of pumping hundreds of billions — if not trillions — of public dollars into a failed venture with no end even remotely in view.

There are myriad better ways to use the many millions of dollars that the U.S. spends on Iraq every day. Two important long-term investments that come to mind — and that would put large numbers of Americans to work — are the development of a serious strategy for achieving energy independence over the next several years and the creation of a large-scale program for rebuilding the aging American infrastructure.

New York Times (Herbert)

A Bit of History

Here, we have the foreblawgers. HT: How Appealing

Why The Confession? Come to Papa

Check out this case, a rare instance in which the Government is actually caught red-handed obtaining a false confession. How many other confessions are false, but cannot be proven to be false? If the pilot had never inquired about his tranceiver Higazy would still be in jail. HT: How Appealing.

Here is the final ruling, which Howard Bashman points out is controversial due to fact that the court sought to restrict access to the original ruling. Curiouser and Curiouser.

DNA Releases Another Innocent Prisoner

Here is a link to a story of exoneree in New York, Jeffrey Deskovic, released last year, incarcerated since he was sixteen. I feel his pain.

Ball's Blue?

This certainly looks interesting!
Happy Turkey Day, y'all. (HT Grits)

As does this, Holiday Reading, thanks to Doc Berman:

American Buffalo: Vanishing Acquittals and the Gradual Extinction of the Federal Criminal Trial Lawyer by Frank O. Bowman III

Abstract: This essay is an invited response to Professor Ronald Wright's impressive study of the fact that the acquittal rate in federal criminal trials is declining even faster than the rate of trials themselves, Trial Distortion and the End of Innocence in Federal Criminal Justice, 154 U. PA. L. REV. 79 (2005). The essay concurs with Professor Wright's conclusion that one significant factor driving down both federal trial and acquittal rates is the government's use of the markedly increased bargaining leverage afforded to prosecutors by the post-1987 federal sentencing system consisting of the U.S. Sentencing Guidelines interacting with various statutory mandatory minimum penalties. It offers some additional evidence in the form of statistical data and personal experience supporting that conclusion.

However, the essay goes on to wonder whether Professor Wright's proposed explanations for the disproportionate decline in federal acquittal rates capture the whole story. It suggests that part of the explanation for both the continuing decline of trials and the disproportionate decline in acquittals may be the gradual extinction of true trial lawyers, particularly in U.S. Attorney's Offices. The essay concludes by expressing concern that the decline of trial lawyers may be having deleterious affects on the justice system as a whole.

And this, also reported widely already:

As detailed in this AP report, "Georgia's top court overturned a state law Wednesday that banned registered sex offenders from living within 1,000 feet of schools, churches and other areas where children congregate." Though the outcome itself is noteworthy, the legal theory behind the ruling in Mann v. Dept. of Corrections (available here) is particularly interesting and could garner US Supreme Court attention: the court finds a takings problem with the law. Here is a key paragraph from the ruling:

Looking to the magnitude and character of the burden OCGA § 42-1- 15 imposes on the property rights of registered sex offenders and how that burden is distributed among property owners, Lingle, supra, 544 U.S. at 542; see also Mann, supra, we conclude that, under the circumstances present here, justice requires that the burden of safeguarding minors from encounters with registered sexual offenders must be "spread among taxpayers through the payment of compensation." Lingle, supra at 543. We therefore find that OCGA § 42-1-15 (a) is unconstitutional because it permits the regulatory taking of appellant's property without just and adequate compensation. Accordingly, we reverse the trial court's ruling denying appellant's request for declaratory relief in regard to the residency restriction.

That's Grits

From Grits,

Sign Our Judicial Complaint Against Judge Sharon Keller

If you are as shocked as we were by Judge Sharon Keller saying "We close at 5" and refusing to accept an appeal 20 minutes after 5 PM by lawyers representing a man about to be executed, then sign on to this complaint. We will submit this complaint to the State Commission on Judicial Conduct on November 16, 2007, which is also the day we will have a protest at the Texas Court of Criminal Appeals at 4:45pm. Anyone can sign the complaint. In order for your name to count on the complaint for the submission, you must provide all the requested contact information, including your phone number and occupation. If you would like to download a copy of the complaint for your records, click here.

If you would like to help us with a donation, please click the button to the left or send a check made out to Texas Moratorium Network to 3616 Far West Blvd, Suite 117, Box 251, Austin, Texas 78731. Donations are not tax-deductible. If you have questions, please call 512-302-6715.

SCOTUS FOCUS

The January Calendar is here (thanks SCOTUS blog!)
Seven of the twelve so far scheduled are clearly criminal law cases, including the lethal injection case.

Here is a link to the Fourth Amendment case: the State High Court was right on this one. If the states refuse to provide a remedy for a violation of state law, law that is "within the scope or reach" of the constitution, then they must be held to it. The states should not re-write the fourth amendment and then fail to enforce their own revision.

The Gitmo Detainee Cases march on: here is link to reply briefs.

The fallout from Carey v Musladin is beginning to hit the ground, as seen here, in a brief in opposition to certiorari, involving defendant's habeas relief under either Cronic or Strickland. The brief does an exceptional job of clarifying the notion of "clearly established law"... as well as the distinctions among Hill, Cronic, Strickland lines of ineffectiveness of assistance of counsel claims.

Finally, here's one for the Crow's Nest. GPS Tracking could-go-all-the-way-

Wild Guesses -- Riding Bareback

Two models of the presidency are at odds, one whose founding father was George Washington, the other whose founding father was Richard Nixon. Under the aegis of Dick Cheney, who considered the scandal in Watergate to be a political trick to topple Nixon, the original vision has been entrenched and extended. Cheney is the pluperfect staff man, beginning as Donald Rumsfeld's assistant in the Nixon White House, and was aptly code-named "Backseat" by the Secret Service when he pulled the strings in the Ford White House as chief of staff. For Cheney and the president under his tutelage, eagerly acting as "The Decider" on decision memos carefully packaged by "Backseat," the Constitution is a defective instrument remedied by unlimited executive power.

Who wrote this?

Where was it published?

Hint: (Sidney Blumenthal is joining the Hillary Clinton campaign as a senior advisor, and this is his last column for Salon.)

Update -- More good stuff here: In ways that Nixon did not achieve, Bush has reduced the entire presidency and its functions to the commander in chief in wartime. And in order to sustain this role he has projected a never-ending war against a distant, faceless foe, ubiquitous and lethal. Fear and panic became the chief motifs substituting for democratic persuasion to engineer the consent of the governed, and here

So vital is torture to the imperial presidency that Bush staked the nomination of his new attorney general, Michael Mukasey, on his refusal to oppose a ritual designed during the Spanish Inquisition to purge sinful heresy: waterboarding. Were Mukasey to have called waterboarding torture, as it surely is, he would have been obligated to prosecute those responsible for war crimes. also here,

On Oct. 25, Sen. Dick Durbin of Illinois received written responses from Mukasey to questions he had submitted. In one question, Durbin asked about a report that Mukasey had met with unnamed conservative figures to discuss his legal views and allay any misgivings they might have.

The list of names extracted from Mukasey by Durbin passed by unnoticed in the controversy. Mukasey revealed that on order of "officials within the White House" he sat down with six prominent right-wing leaders, whose gathering constituted a de facto subcommittee of the "Inner Party" of the conservative movement. Those present were Reagan's attorney general, Edwin Meese III; former Reagan and Bush I legal officials Lee Casey and David Rivkin; the executive vice president of the Federalist Society, Leonard Leo; the president of the Ethics and Public Policy Center, Edward Whelan; and the chief counsel for the American Center for Law and Justice (founded by Pat Robertson), Jay Sekulow.

Mukasey's meeting with this group at the insistence of the White House amounted to a supra-official confirmation hearing. The incident demonstrates that the Bush imperial presidency is a central tenet of the permanent elite of the party extending beyond his administration. Politicizing paranoia, subsuming intelligence by ideology, purging and deputizing prosecutors, dismissing law by fiat (signing statements) and holding in contempt checks and balances are not temporary measures. It is no accident, as the Marxists (or neoconservatives) say, that President Bush will address the 25th anniversary gala of the Federalist Society on Thursday.

and finally,

Now, on a personal note, I have reached the end of my critique of the Bush administration, having elaborated it for years. (In fact, my book on "The Strange Death of Republican America" will be published in April 2008.) As events continue to unfold there will undoubtedly be many more things to say about Bush, Cheney, their administration and the Republican field. But given the momentous stakes, I have decided that nothing is more important than committing myself wholly to the outcome. Therefore, beginning here, the tone changes.

Readers know of my background in the Clinton White House. (See "The Clinton Wars.") They are familiar with my long friendship with Sen. Hillary Clinton. When she recently asked me to join her campaign as senior advisor I felt I must accept, though not out of obligation but, rather, wholeheartedly. There will be other times and places for me to explain how I have seen her grow into the person I now feel is best qualified and suited to restore the presidency, an office I observed and participated in for four years and about whose nature, I know from working closely with her, she has a deep grasp.

I believe that the reason the Republicans have promoted the talking point that Hillary is unelectable is that they fear that more than any other candidate she can create a majority coalition, win and govern. They fear more than loss in one election; they fear the end of the Republican era beginning with Nixon. They know that she has the knowledge, skill and ability to govern. They know that she has already taken everything they can throw against her and is still standing.

Just as the disintegration of the Democrats brought about the rise of the Republicans, the collapse of the Republicans has created an opening for the Democrats. But the Democrats have been victims of their own false euphoria, sanctimony and illusions before. Now, only the Democrats can revive the Republicans. Nixon, Reagan and Bush were all beneficiaries of Democratic disarray and strategic incompetence. The Democrats have snatched defeat from the jaws of victory before and it can happen again, even under these circumstances, when history is turning the Democrats' way.

The Democrats at key junctures have been seduced by the illusion of anti-politics to their own detriment. Anti-politics upholds a self-righteous ideal of purity that somehow political conflict can be transcended on angels' wings. The consequences on the right of an assumption of moral superiority and hubris are apparent. Their plight stands as a cautionary tale, but not only as an object lesson for them. Still, the Republican will to power remains ferocious. The hard struggle will require the most capable political leadership, willing to undertake the most difficult tasks, and grace under pressure.

More on Moratorium on DP

Here is a good link to discussions about the recent developments in SCOTUS and the death penalty.

Re: Thinking Age of Consent

Food for thought here:
If nothing else, the article points out how the sex offender laws are netting individuals who have not traditionally been thought engaged in criminal behavior.

UPDATED

And here, about how the laws are ineffective.

Also here, describing how the "worst of the worst" fare in Virginia.

"quis custodiet ipsos custodes?"

- "Who will guard the guards?" wrote the Roman poet Juvenal. Citing numlerous instances of CEO robbing the public coffers with huge payoffs to self after losing billions of shareholder $$$, so also asks William Lerach, Plaintiff's lawyer and shareholder advocate, here, as he prepares to go to jail to serve a one year sentence for boldly stepping over the line in his advocacy, as he put it:

in my zeal to stand up against this kind of corporate greed over the years, I stepped over the line. It turns out that the legal system is a lot tougher on shareholder lawyers than it appears to be on Wall Street executives.

Criminal Justice Reform Could Go All The Way

WHAT: WHEN: WHERE: WHO:	Policy & Media Briefing on Release of Unlocking America November 19, 9:30-11a.m. National Press Club, 529 14th Street, NW 13th Floor, Washington, D.C. Moderated discussion with nationally syndicated columnist Clarence Page. Panelists to include:
			James Austin, President, JFA Institute Devon Brown, Director, Washington, D.C. Department of Corrections Marc Mauer, Executive Director, The Sentencing Project Dr. Fred Osher, Director, Center for Behavioral Health, Justice, & Public Policy, University of Maryland Dr. Michael Pinard, University of Maryland, School of Law Christy Visher, Research Associate, Urban Institute

Catching Up to Child Porn in Scotus

WASHINGTON — The Supreme Court appeared open Tuesday (10/30) to arguments that a law intended to criminalize the advertising of purported child pornography is constitutional and would not cover promotions of Lolita and American Beauty, as challengers say.

The 2003 law arises from Congress' effort to staunch the demand for child pornography and save the children exploited in the creation of the illegal materials. It makes it a crime — punishable by at least five years in prison — to advertise, promote or solicit materials purported to depict children engaging in sex acts.

A federal appeals court last year struck down the ban as overly broad in violation of the First Amendment free-speech guarantee. The court said the law could cover fake or non-existent porn offerings.

A lawyer for Michael Williams, a Florida man convicted under the law, says it could threaten the marketing of movies depicting adolescent sex. The National Coalition Against Censorship and other free-speech groups are backing him.

The Justice Department counters that the law targets solicitations that fuel the child porn market and would not cover ads about mainstream movies.

As the justices pummeled both sides with questions, they seemed torn on the reach of the law. Overall, the comments, particularly from swing-vote Justice Anthony Kennedy, suggested they may reverse the U.S. Court of Appeals for the 11th Circuit and uphold the law.

By Joan Biskupic

USA TODAY

Baze: Is Three Drug Cocktail Unconstitutional?

Here's how the New York Times has put the question:

The central question of Baze is: Does the Eighth Amendment bar an execution method that creates an unnecessary risk of pain and suffering, or does it merely protect inmates against the wanton infliction of pain and suffering?

If it’s the former, then the three-drug cocktail is probably unconstitutional, because states would not have a compelling reason to continue to use it. But if it’s the latter, then states could probably stick with the old deathly recipe, as long as someone on the execution team had the fortitude, after administering the first drug, to shake the inmate or look in his eyes, or otherwise make a passing attempt to see if the anesthetic took.

Crow's Nest

This summary is not available. Please click here to view the post.

Counsel for the Defense (Yes, We don't just shoot em first)

GOVERNMENT MOVES TO DISMISS KHADR APPEAL

In what can only be described as the latest ironic twist in the sad and strange tale of military commissions, Administration lawyers today filed a motion to dismiss Omar Khadr’s appeal from a special military appeals court decision allowing military commission proceedings to resume at Guantanamo Bay. Administration lawyers argue, in effect, that the Secretary of Defense lacked the authority to issue a military commission rule giving the defense the same ability as the government to seek review of military appeals court decisions.

The rule in question is part of the so-called Manual for Military Commissions, a set of procedures for military commissions issued by the Secretary of Defense in January of this year. The Manual implements the controversial Military Commissions Act of 2006 (MCA). The government’s filing appears to be an effort to hit the “delete” button on language in Rule for Military Commission 908(c)(3), which gives the defense a coequal right to seek review of decisions by the Court of Military Commission Review. Significantly, the MCA required the Secretary to report the rules to Congress for its review prior to commencement of commission proceedings. The Administration filing could be viewed, in effect, as an attempt to change those rules without proper notification of Congress.

Moreover, the government’s position is particularly ironic in light of positions taken before the Court of Military Commission Review in this very case. There, the government argued that the Secretary of Defense had broad authority to issue rules implementing the MCA and another federal statute giving the Secretary the power to delegate his responsibilities to subordinate DoD officials.

The position reflected in the government’s filing is, to say the least, odd coming from an Administration that has arguably made the most expansive claims for executive power in U.S. history. Indeed, the Administration has contended that the President can vary the meaning of federal statutes through so-called “signing statements,” and can ignore federal statutes that, in the Administration’s view, infringe on the President’s powers as Commander-in-Chief. Yet, in the Administration’s view, the responsible executive branch official in this case apparently lacks the authority to interpret the MCA in a way to make the commissions process slightly fairer to the accused. One wonders how they can even make the argument with a straight face.

Mukasey for AG -- NOT

Mukasey's weaseling on water-boarding was unworthy of him. Perhaps feeling pressure from his White House sponsors, he cast himself last week as little more than Torture Boy in long pants. His refusal to call water-boarding torture delighted the White House. His suggestion that he really wasn't familiar with the particulars of the technique was laughable. By now, no literate American adult is unfamiliar with this charming form of interrogation by near-drowning, which makes the claim even more absurd coming from a retired New York federal judge whose main claim to fame is presiding over difficult terrorism trials. Mukasey's response that "if water-boarding is torture, torture is not constitutional" was a transparent evasion. And the entire exchange throws a more sinister light on his borrowed quip that the infamous Gonzales-sponsored torture memo "was worse than a sin, it was a mistake. It was unnecessary." One now fears that Mukasey doesn't so much disagree with the substance of that memo, as he thinks that writing it down was a political error.

ouch. Read more from Prof. Bowman at Slate.

October - November News

Z

The Legal Monthly

Vol. 2 No. 8 Read Z the Blog at http://zlegaltimes.blogspot.com/ Oct/Nov. '07

The Uniquely Gregarious Source Of Legal News And “Divers” Contrary Information

Contents

The Costs of Justice

First Take TNR

JEC Rap Sheet

Dworkin: “The Supreme Court Phalanx”

Scotus Focus

A Prediction

A Cute, if Sardonic, Irony

Human Rights Watch Report

Sentencing

Retroactivity

Oral argument

Sex Offender Residency Restrictions

Mailbag

Read the rest at the Newsletter site.

Change or No Change? Big Money and Moray Hinge on This

Supreme Court’s agreement on Sept. 25 in Baze v Rees to rule on the constitutionality of the lethal injection method, and the Court’s order on Wednesday to postpone a scheduled execution in Virginia (Emmett v. Johnson).

Read the rest Here

Where's the Good Life Gone?

Hmmm. Here's Judith Warner at NYT:

newest set of poll results showing Clinton’s surprising levels of popularity among lower- and middle-class women, white moderate women, even black voters, was another story this week, based on a new set of data from the I.R.S.

It showed that America’s most wealthy earn an even greater share of the nation’s income than they did in 2000, at the peak of the tech boom. The wealthiest 1 percent of Americans, the Wall Street Journal reported, earned 21.2 percent of all income in 2005 (the latest date for which these data are available), up from the high of 20.8 percent they’d reached in the bull market of 2000. The bottom 50 percent of people earned 12.8 percent of all income, compared with 13 percent in 2000. And the median tax filer’s income fell 2 percent when adjusted for inflation (to about $31,000) between 2000 and 2005.

More and more people are being priced out of a middle class existence.

More Key Points

* The United States has the highest reported incarceration rate in the world. While the United States currently incarcerates 750 inmates per 100,000 persons, the world average rate is 166 per 100,000 persons. Russia, the country with the second highest incarceration rate, imprisons 624 per 100,000 persons. Compared to its democratic, advanced market economy counterparts, the United States has more people in prison by several orders of magnitude. Although crime rates have decreased since 1990, the rate of imprisonment has continued to increase.

* Growth in the prison population is due to changing policy, not increased crime. Many criminal justice experts have found that the increase in the incarceration rate is the product of changes in penal policy and practice, not changes in crime rates. Changes in sentencing, both in terms of time served and the range of offenses meriting incarceration, underlie the growth in the prison population.

* Changes in drug policy have had the single greatest impact on criminal justice policy. The Anti-Drug Abuse Act of 1986 created mandatory minimum sentences for possession of specific amounts of cocaine. The Act instituted a 100-to-1 differential in the treatment of powder and crack cocaine, treating possession of 5 grams of crack cocaine the same as possession of 500 grams of powder cocaine. Crack cocaine is typically consumed by the poor, while powder cocaine, a significantly more expensive drug, is consumed by wealthier users. Mandatory minimum sentences for low-level crack-cocaine users are comparable (and harsher in certain cases) to sentences for major drug dealers.

* The composition of prison admissions has also shifted toward less serious offenses, characterized by parole violations and drug offenses. In 2005, four out of five drug arrests were for possession and one out of five were for sales. The crime history for three-quarters of drug offenders in state prisons involved non-violent or drug offenses.

* The prison system has a disproportionate impact on minority communities. African Americans, who make-up 12.4 percent of the population, represent more than half of all prison inmates, compared to one-third twenty years ago. Although African Americans constitute 14 percent of regular drug users, they are 37 percent of those arrested for drug offenses, and 56 percent of persons in state prisons for drug crimes. African Americans serve nearly as much time in federal prisons for drug offenses as whites do for violent crimes.

* The U.S. prison system has enormous economic costs associated with prison construction and operation, productivity losses, and wage effects. In 2006, states spent an estimated $2 billion on prison construction, three times the amount they were spending fifteen years earlier. The combined expenditures of local governments, state governments, and the federal government for law enforcement and corrections total over $200 billion annually. In addition to these costs, the incarceration rate has significant costs associated with the productivity of both prisoners and ex-offenders. The economic output of prisoners is mostly lost to society while they are imprisoned. Negative productivity effects continue after release. This wage penalty grows with time, as previous imprisonment can reduce the wage growth of young men by some 30 percent.

* Prisons are housing many of the nation’s mentally ill. Prisons are absorbing the cost of housing the nation’s mentally ill. The number of mentally ill in prison is nearly five times the number in inpatient mental hospitals. Large numbers of mentally ill inmates, as well as inmates with HIV, tuberculosis, and hepatitis also raise serious questions regarding the costs and distribution of health care resources.

* The United States faces enormous problems of offender reentry and recidivism. The number of ex-offenders reentering their communities has increased fourfold in the past two decades. On average, however, two out of every three released prisoners will be rearrested and one in two will return to prison within three years of release.

The Costs of Justice, American Style

JOINT ECONOMIC COMMITTEE TO EXAMINE ECONOMIC COSTS OF SURGE IN U.S. PRISON
POPULATION AND POSSIBLE SOLUTIONS Hearing on Costs of Mass Incarceration Called by VA Sen. Webb in Light of 500 Percent Increase in Prison Populations In Last 30 Years Washington, D.C. – U.S. Senator Jim Webb (D-VA) will hold a Joint Economic Committee (JEC) hearing to explore the economic consequences and causes of and solutions to the steep increase of the U.S. prison population. The hearing entitled, “Mass Incarceration in the United States: At What Cost?” is scheduled for Thursday, October 4, 2007 at 10:00am in Room 216 of the Hart Senate Office Building. The United States has 25 percent of the world’s prisoners,despite having only 5 percent of the world’s population. The JEC will examine why the United States has such a disproportionate share of the world’s prison population, as well as ways to address this issue that responsibly balance public safety and the high social and economic costs of imprisonment.

Expert witnesses have been asked to discuss the costs of maintaining a large prison system; the long-term labor market and social consequences of mass incarceration; whether the increase in the prison population correlates with decreases in crime; and what alternative sentencing strategies and post-prison re-entry programs have been most successful at reducing incarceration rates in states and local communities.
WHAT: Joint Economic Committee Hearing:

“Mass Incarceration in the United States: At What Cost?”
WHEN: Thursday, October 4, 2007 – 10:00am
WHERE: 216 Hart Senate Office Building
Witnesses (as of September 27):

• Dr. Glenn Loury, Economics and Social Sciences Professor, Brown University
• Dr. Bruce Western, Director Inequality and Social Policy Program, Harvard University
• Alphonso Albert, Executive Director, Second Chances
• Michael Jacobson, Executive Director, Vera Institute for Justice
The Joint Economic Committee, established under the Employment Act of 1946, was created by Congress to review
economic conditions and to analyze the effectiveness of economic policy.
www.jec.senate.gov
# # #

Dworkin On the Court

Not last nor least, here's Ronald Dworkin (beating - not bleating) about the bleeding Supreme Court:
(appearing here)

The Supreme Court Phalanx

By Ronald Dworkin

Anthony Kennedy
(click for larger image)

1.

The revolution that many commentators predicted when President Bush appointed two ultra-right-wing Supreme Court justices is proceeding with breathtaking impatience, and it is a revolution Jacobin in its disdain for tradition and precedent. Bush's choices, Chief Justice John Roberts and Justice Samuel Alito, have joined the two previously most right-wing justices, Antonin Scalia and Clarence Thomas, in an unbreakable phalanx bent on remaking constitutional law by overruling, most often by stealth, the central constitutional doctrines that generations of past justices, conservative as well as liberal, had constructed.

These doctrines aimed at reducing racial isolation and division, recapturing democracy from big money, establishing reasonable dimensions for freedom of conscience and speech, protecting a woman's right to abortion while recognizing social concerns about how that right is exercised, and establishing a criminal process that is fair as well as effective. The rush of 5–4 decisions at the end of the Court's term undermined the principled base of much of this carefully established doctrine. As Justice Stephen Breyer declared, in a rare lament from the bench, "It is not often in the law that so few have so quickly changed so much."

It would be a mistake to suppose that this right-wing phalanx is guided in its zeal by some very conservative judicial or political ideology of principle. It seems guided by no judicial or political principle at all, but only by partisan, cultural, and perhaps religious allegiance. It urges judicial restraint and deference to legislatures when these bodies pass measures that political conservatives favor, like bans on particular medical techniques in abortion. But the right-wing coalition abandons restraint when it strikes down legislation that conservatives oppose, like regulations on political advertising and modest school district programs to further racial integration in public education. It claims to celebrate free speech when it declares that Congress cannot prevent rich corporations and unions from evading restrictions on political contributions. But it subordinates free speech to other policies when it holds that schools can punish students for displaying ambiguous but not disruptive slogans at school events. Lawyers have long been fond of saying, quoting Mr. Dooley, that the Supreme Court follows the election returns.^[1] These four justices seem to follow Fox News instead.

---

---

They need a fifth vote to win the day in particular cases, and they most often persuade Justice Anthony Kennedy to join them. Kennedy has taken Sandra Day O'Connor's place as the swing vote on the Court. Twenty-four cases—a third of the Court's decisions—were decided by 5–4 votes last term, nineteen of them on a strict ideological division. Kennedy voted on the winning side in all twenty-four of them. He joined with the right-wing justices in thirteen of the ideological cases; he voted against them and with the four more liberal justices—John Paul Stevens, David Souter, Ruth Ginsburg, and Breyer— in the remaining six cases, including four death penalty appeals from Texas. He showed deplorable partisanship when he voted with the majority in the Court's intellectually disreputable 2000 decision to elect Bush president.^[2] He wrote a poor and insensitive majority opinion this year in the Court's so-called partial-birth abortion case. (I discussed his opinion in these pages earlier this year.)^[3]

But in 1992 Kennedy joined O'Connor and Souter in the key opinion upholding abortion rights in principle and providing a firmer constitutional basis for them,^[4] and in 2003 he wrote a strong opinion for a 6–3 majority, relying on that earlier abortion decision, ruling that states cannot make homosexual acts criminal.^[5] He therefore offers hope—slim, but real—of some moderating influence on the Jacobins; lawyers who argue important cases before the Court in the next few years will presumably frame their arguments to convince him.

2.

These are strong claims about the revolutionary character and poor legal quality of many of the Court's 5–4 decisions, and it is necessary to review these decisions with some care, in the remainder of this essay, to explain and defend those claims. The most important decision was the Court's 5–4 ruling striking down school student assignment plans adopted by Seattle and Louisville. . . . ****

N.b. Commentary to follow

Front and Center at the Supreme Court

A 2006 law, passed by Congress and signed by Mr Bush prohibits Guantanamo Bay detainees from challenging their confinement in federal courts and states their cases can only be heard by military commissions, not civilian courts.

This term, Supreme Court justices will decide whether in doing so, the law has violated the constitutional requirement to provide habeas corpus - a procedure under which someone who holds a prisoner is required to show reason why to a court - to prisoners in the US.

The US Appeals Court for the District of Columbia Circuit ruled that habeas corpus does not apply to foreign nationals being held at Guantanamo Bay because it is not US soil.

Professor AE Dick Howard, of the University of Virginia School of Law, said the Guantanamo cases would be "front and centre" of the new session.

Laura Smith-Spark
BBC News, Washington

Nb. If the detainees "win" is that a conserative or liberal outcome? Hint: is the Constitutional right to habeas corpus a conservative or liberal notion? Hint 2: Is supporting tyranny conservative or liberal?

Check these for more previews: Adler

Wittes: "it made fools of those of us who believe in it as something more elevated: an institution that aspires to rule based on principle. It was depressing, and the most depressing part is that sinking feeling that the justices will do the same thing again beginning today."