Texas Justice Redux

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

And then, updating the topic there is this from Grits, who is devoted to the topic, on something as mundane as a data entry error that caused SCOTUS to have to weigh in. That would be the Rothgery decision (the opinion is at the link) from the current Supreme Court term. Here is analysis from Grits:

What's the significance? In the past, a defendant was not entitled to counsel at their bail hearing unless they couldn't make bond or bail was denied. In that case they had counsel appointed fairly quickly. But in the case where a defendant makes bond but also requests a lawyer, Texas courts previously held the defendant could not get a court appointed lawyer until they were indicted, leaving indigent defendants for weeks in limbo with no legal adviser. Now SCOTUS has said courts must appoint counsel for indigent defendants at their bail hearing.

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

PREVIOUS POST ON TOPIC:
Here is my earlier verbose-but-important post on Rothgery.

Religion and The Family

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

Texas Justice

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

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

A FAMMGRAM!

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

Federalism Run Amok

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

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?

The Texas Hold'em Decision

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

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

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

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

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

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

Is it us?

Booker Update

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

More From Grits on the Texas Mormon Children

If you have been Walthered, I would like to know about it. Please contact me through comments on this site or email me.

If you want to know more about what this new verb, Walthered, means (and how it originated), link to Grits, Scott Henson's great Texas blog. The comments on his post are juicy, ripe for action, and will give you a spicy taste of attitudes prevailing in Texas-style justice and politics.

Grits's searing coverage, updated with every new develoment, is the best I've seen.

Good question: why did the lefties initially support the raid and "conservatives" not do so. I was aghast from the beginning, and consider myself a convert to the left after having flirted with the right in my youth. A recent series of Presidential blunders have turned me away from the right wing party in this country forevermore.

Independently of my political pieties, I was aghast because I know first hand what it is like to be separated both from your parents, and from your children. I've seen it from both ends, unfortunately. I'm not necessarily in favor of bigamy or underage marriage. I just had a hunch Texas CPS had bitten off a little more than could be chewed, comfortably. Now, we'll get to see how national attention could possibly have an effect upon this particular area of what they call family law in this state.

You gotta love Scott's new slogan for CPS: No Child Left With Mom (!!!)

PREVIOUS Z POST ON SUBJECT:
Grits on FLDS Children Takings

Prison Conditions and Other Petitions to Watch

You won't appreciate the facts alleged in this Bivens (Sec. 1983) case (on the list of petitions to watch at SCOTUSBLOG) unless you have seen the insides of our prisons.

At this link is the tail end of at least one more interesting action making it onto the list, involving removal of children from families and parental rights, that has been ongoing for ten years in Illinois (Dupuy, et al. v. McEwen).

Habeas and Sentencing

For those who haven't yet discovered the exciting world of habeas, here is a brief intro:

The quintessential example of a claim within the core of habeas is a challenge to the validity of the prisoner‟s conviction or sentence, that is, a claim that the police, the prosecutor, the defense lawyer, the jury, or the court made a constitutional error resulting in an unlawful conviction or sentence.
***
A prisoner challenging the conditions of confinement, on the other hand, is permitted to bring suit under § 1983.

At this link is an article in which a whole new world of habeas seems to have been rediscovered. In which the Preiser doctrine is turned on its head for good reason. I'm also stunned to see how clearly the authors show that federal judges get it wrong, (on at least two occasions) at pp 18-19. Demonstrating splits in the circuits here is also helpful.

The recommendation splitting sentence admin claims from other categories makes much sense; federal courts are likely to find it very helpful. That further deference is suggested for reviewing state court decisions where state judicial review avails is problematic. The problem of reviewing parole and disciplinary cases remains a daunting, growing, task. Deference only gives state reviewing courts the first opportunity to ignore (sweep under carpet) the valid federal claim. Having said this, AEDPA and PLRA are both legislative mistakes making it only easier to ignore valid claims. The consequences of this will continue to be evident as the prison population grows by leaps and bounds, as a toll on those unfortunate enough to be swept into the dragnet, their families, friends and acquaintances. Policies making it easier to convict and harder to undo wrongful convictions should be viewed with very critical eyes.

I hope after Doc Berman has a read on it he'll post his take. Following is a snippet from the paper by NANCY J. KING Vanderbilt University School of Law and SUZANNA SHERRY Vanderbilt University Law School :

Before 1972, it was not clear whether sentence-administration decisions by state corrections and parole officials were subject to constitutional regulation at all. In that year, the Court held in Morrissey v. Brewer that a parolee does have a liberty interest in his continued release on parole, which cannot be revoked without due process.5 In 1974, in Wolff v. McDonnell,6 the Court extended Morrissey to decisions that deprive d inmates of good-time credits and thus delayed the date of presumptive release. Five years later in Greenholtz v. Inmates of Nebraska Penal and Correctional Complex,7 the Court recognized a liberty interest in the denial or delay of parole, if the state parole system created an entitlement to a parole hearing after a set amount of time served. In particular, the Court held in Greenholtz that a state‟s decision to deny parole must meet minimum due process standards.8 These cases made it possible for state prisoners to raise constitutional challenges to sentence-administration decisions that had previously been unregulated by federal law.

Here are several of the more controversial statements, with which I tend to agree wholeheartedly, to be viewed critically by a trained eye:

The Court‟s expansion of the liberty interests of prisoners, the shift away from discretionary to
mandatory release laws, and the early decisions in Preiser and Wolff were not the only developments that contributed to an increase in the number of prisoners seeking habeas relief for sentence-administration claims over the past thirty years.

Once Edwards was combined with the changes in sentencing and release law described above, it ultimately channeled many sentence-administration challenges into habeas. But there was yet another development, almost simultaneous to the doctrinal change worked by Edwards, which has turned an unfortunate situation into an intolerable one.

in the years leading up to passage of the Act there is no sign in the legislative history that lawmakers anticipated the application of the new provisions to attacks by non-capital state prisoners on administrative decisions that affected the timing of their release from prison.

In general, the law recognizes (1) that similar claims by state and federal prisoners are treated similarly in terms of access to judicial review; (2) that federal courts are more reluctant to interfere with the judgments of state courts than with the actions of other, non-judicial state actors; and (3) that deprivations of physical liberty are the most egregious invasions of liberty.

Wilkinson further complicates the problem, because almost every case can be described both as satisfying and as not satisfying the Wilkinson standard: If the prisoner wins his procedural challenge, it means both that the first hearing was constitutionally invalid (and thus that the result of the hearing was invalid) and that the plaintiff is entitled to a new, constitutionally adequate, hearing.90

when states choose not to authorize judicial review, federal
oversight of the decisions made by their prison and parole officials will be more
exacting than it would have been had the state provided judicial review.

UPDATE: this SSRN piece is still in draft stage.

Grits on the FLDS Children,Takings and Prosecutions

Just a sample from Texas of the FLDS case(s), by Grits:

I have no idea what's being said in those interviews, but IMO CPS is overreaching tremendously to assume law enforcement will get to use that information in any criminal proceedings. By wholesale ignoring the right to counsel for people openly asking for their attorneys, combined with the flimsy totality of the premise of the state's action in the first place, it's a safe bet some judge, somewhere, will toss out big chunks of any criminal case before it ever gets to trial. I'm not a lawyer and couldn't cite to case law, but I'll be surprised if some judge somewhere along the line doesn't agree CPS is acting as law enforcement's stalking horse.

Meanwhile, I'm angered and embarrassed for our state and nation at this news that CPS may tell FLDS parents they have to give up their religion to get their kids back, including kids who no one thinks have ever been abused. These parents are in the same predicament as Abraham in the Bible, ordered by God to slay his son Isaac: Choose between your children and your faith. What would you do?

How Ideas Happen

In 1999, when Nathan Myhrvold now of Intellectual Ventures, left Microsoft and struck out on his own, he set himself an unusual goal. He wanted to see whether the kind of insight that leads to invention could be engineered. He formed a company called Intellectual Ventures. He raised hundreds of millions of dollars. He hired the smartest people he knew. It was not a venture-capital firm. Venture capitalists fund insights—that is, they let the magical process that generates new ideas take its course, and then they jump in. Myhrvold wanted to make insights—to come up with ideas, patent them, and then license them to interested companies. He thought that if he brought lots of very clever people together he could reconstruct that moment by the Grand River.

One rainy day last November, Myhrvold held an “invention session,” as he calls such meetings, on the technology of self-assembly. What if it was possible to break a complex piece of machinery into a thousand pieces and then, at some predetermined moment, have the machine put itself back together again? That had to be useful. But for what?

New Yorker, May 12, 2008

A Review

A new site, a new book.

Against the Grain

At this link is an opinion being appealed to the Supreme Court by Major League Baseball, and a bunch of other hippo size bodies with brains of peas (I take that back y'all---go ahead and spend money however you want to---I would do the same thing---or maybe not---maybe I grew up---maybe I don't like throwing money into the toilet---who knows...nobody cares), who want to control the use of their own statistics, already public domain stuff, by a fantasy baseball game maker. I wish I had half of the cash the parties have already spent on this lawsuit. I'd settle for a quarter of it. Read more at SCOTUSBLOG'S petitions to watch section.

Wait. I just remembered that running against the grain is how you get things done. So, now when I write my book and talk about the awesome Iron Man playing ball, and how, I need MLBPA permission. Not.

That would make the world a better place, if you're MLBPA. Anyhow,

It sure does make for interesting first amendment reading! There is also an interesting breach of warranty claim discussed in this case. Seriously, a game has entertainment value as art or a novel. If the maker wants to make a few bucks to defray the cost of his game why should we stop that.

I play fantasy yahoo for free and wonder how they do it, keep it free, that is.

This is just another case of the rich bully wanting to take the poor man's toy away. As if it wasn't enough to push the price of gas up to five dollars a quart.

I respectfully beg the Court to deny cert to resolve the issue. Watch out, that's certain to provoke them to grant the petition.

More Common Sense

Link here for this study, thanks to Doc Berman. Laws based on actual fact as opposed to imagined fictions could make the world a better place.

Does Residential Proximity Matter? A Geographic Analysis of Sex Offense Recidivism

Grant Duwe

Minnesota Department of Corrections, GDuwe@co.doc.state.mn.us

William Donnay

Minnesota Department of Corrections

Richard Tewksbury

University of Louisville

In an effort to reduce sex offense recidivism, local and state governments have recently passed legislation prohibiting sex offenders from living within a certain distance (500 to 2,500 feet) of child congregation locations such as schools, parks, and daycare centers. Examining the potential deterrent effects of a residency restrictions law in Minnesota, this study analyzed the offense patterns of every sex offender released from Minnesota correctional facilities between 1990 and 2002 who was reincarcerated for a new sex offense prior to 2006. Given that not one of the 224 sex offenses would have likely been prevented by residency restrictions, the findings from this study provide little support for the notion that such restrictions would significantly reduce sexual recidivism.

Common Sense

Our power and authority is eroding because of the amounts we are sending abroad for energy…." Link here (NYT) and here (Mother Jones).

The full quote by Sen. Bayh of Indiana:

“In the short run, that they are investing here is good,” Senator Bayh said. “But in the long run it is unsustainable. Our power and authority is eroding because of the amounts we are sending abroad for energy and consumer goods.”

So, why don't we just take the oil and not pay for it? I can't believe how dumb we are.

Convicting Innocents: Numbers

You have got to admit that the Death Penalty, questions of life and death and fairness bring out the extremes in a man. The passion never fails to surprise me, with terms: bloodlust, police state, medieval, and limited government bandied about dripping with sarcasm.

We've all been wanting to know more about exonerations, which is another way of saying wrongful conviction. Here are some numbers, and where they come from: (from comments at Doug's site, link here).

DPIC, which you suggested, has info here: http://www.deathpenaltyinfo.org/article.php?did=412&scid=6#inn-yr-rc

In the last 5 full years (2003-2007), twenty-four (24!!!!) people have been exonerated. Three have also been exonerated so far in 2008.

The DPIC also states that, since 1973, 129 people have been released from death row with evidence of innocence.

I'm not surprised that your (a blogger named "federalist") bloodlust is based on inaccurate information. Of course, I'm sure you'll claim that you referred to 4 "DNA exonerations" whereas the DPIC stats are for "exonerations," as though there is some great difference. Let me preemptively note that the DPIC has an additional category titled "Released From Death Row (Probable Innocence)" which does not appear to be included among the numbers I gave. So whether from DNA evidence or something else, the 24 listed exonerees had more than "probable innocence."

A follow up comment shining more light on the subject:

Here are the standards for making it on DPIC's list of "exonerations," the list that shows 24 people in the last 5 full years, as I mentioned above.

For Inclusion on DPIC's Innocence List:
Defendants must have been convicted, sentenced to death and subsequently either-
a) their conviction was overturned AND
i) they were acquitted at re-trial or
ii) all charges were dropped
b) they were given an absolute pardon by the governor based on new evidence of innocence.
http://www.deathpenaltyinfo.org/article.php?scid=6&did=109

I can only guess that you will pound the table about (a)(ii), claiming such cases aren't "real" exonerations or something. But I would suggest prosecutors don't dismiss charges lightly and I cannot fathom any reasonable explanation not to include such people as exonerees.

I mean, I can predict a rant against, say, the exclusionary rule, arguing that *maybe* one of these cases involved dropped charges after a state post-conviction court found key evidence should have been suppressed [do recall that federal courts cannot grant a habeas petition on fourth amendment grounds], but such an argument only reveals a desire for a police state where the authorities should be able to ransack our homes. Such constraints on our liberty would merely be the price we pay for making sure that the police catch all wrong-doers and are not deterred from finding them using any means. We must protect the children, after all.

And,

RE: DNA - I think it behooves us to remember the Dallas prosecutor's office of 1970s and early 80s. (AKA "The reason why so much case law ends in Dretke") We know how bad they were in part because they were the only (or one of the only? I'm relying on newspapers here) offices to keep evidence from which DNA could be collected.

Dallas News carries an ap report on that round table debate on wrongful convictions in Texas.
http://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/050908dntexdna.e0f8d470.html

Age of Regression?

In this curious ruling Judge Brownback relies upon the Last in Time Rule, dating from Chinese Exclusion Cases, 1889, to support MCA jurisdiction to try Kadr, a child soldier from Afghanistan pressed into service by AQ. The defense, and forces of the enlightenment, argue that current treaty and international law obligations prevent such jurisdiction over juveniles (brief available at link, thanks to Scotusblog).

Perhaps we should simply go back to utilizing the cat at the main and get this over with.

Wars can always be relied upon to provide a diversion for our excesses, precious material, manpower, and judicial resources as well. Will the twenty-first century be known as the Age of Regression?

Wrongful Convictions: Sixty Minutes

Here is something to catch up on, if you missed it (I was at my daughter's swim club banquet--could not miss the good prime and mousse): The Sixty Minutes special on Texas's exonerations investigations.

Moral Panic

Over at Doug's blog, the latest in the saga of sex offender panic, and extra reading about this puritanical phenomenon:

"Moral Panic," by Philip Jenkins. Essentially a history of sex offenders in modern America. Also Carl Sagan's "The Demon-Haunted World," which has excellent chapters on the "satanic ritual abuse" fever that gripped the nation for a decade or more. Opened my eyes to the historical realities as much as Mike Gray's "Drug Crazy" did for the drug war when I was in high school.

Additionally, here is a post regarding our swollen prison population and which political party/politicians are responsible.

Unconstitutional Tool: Terrorism Again

Designations (Annals of Surveillance, New Yorker) amount to a kind of economic embargo: anyone who does business with a designated person risks criminal or civil penalties. The Treasury Department can act more quickly than the police or the F.B.I., who may take action only after an investigation. By preëmptively freezing a suspect’s assets, “the government does not have to watch these dollars continue to flow over a period of months or years as it investigates whether it will pursue criminal charges,” a department spokesman, Andrew DeSouza, told me.

Authorities also need less evidence for a designation than they would for prosecution, and they can rely on evidence that would not be admissible in a criminal trial. Matthew Levitt, who until last year was deputy assistant secretary for intelligence and analysis at the Treasury Department, says that designations involve “an extremely robust process. This is not something that can be done easily or willy-nilly.” But Lormel, who retired from the F.B.I. in 2003, says he would have been “hard pressed” to act on some of the material that Treasury officials used. “Oftentimes, I think they base their evidence on media stories or public-source information, whereas we would never use only that,” he told me.

In addition, the Treasury Department may use classified evidence that is never disclosed to the designated party, despite an established principle of the American legal system that the accused should have an opportunity to confront evidence against him. Designations can be challenged before a federal judge, but lawyers for the designated party are not shown all the government’s evidence and cannot introduce their own. Nearly five hundred individuals and groups have been labelled Specially Designated Global Terrorists since 2001; there has never been a successful challenge in court. A designation “effectively denies people province over their own property in a largely unreviewable way,” Aufhauser, the department’s former general counsel, told me. “Such an extraordinary power needs to be exercised with discretion, because it could be constitutionally suspect.”

Politicized, Corrupted, Justice

How far does the political influence reach? Infinitely. Read the rest of this one, from WP, which begins:

GUANTANAMO BAY, Cuba, April 28 -- The Defense Department's former chief prosecutor for terrorism cases appeared Monday at the controversial U.S. detention facility here to argue on behalf of a terrorism suspect that the military justice system has been corrupted by politics and inappropriate influence from senior Pentagon officials.

Sitting just feet from the courtroom table where he had once planned to make cases against military detainees, Air Force Col. Morris Davis instead took the witness stand to declare under oath that he felt undue pressure to hurry cases along so that the Bush administration could claim before political elections that the system was working.

His testimony in a small, windowless room -- as a witness for Salim Ahmed Hamdan, an alleged driver for Osama bin Laden -- offered a harsh insider's critique of how senior political officials have allegedly influenced the system created to try suspected terrorists outside existing military and civilian courts.

Davis's claims, which the Pentagon has previously denied, were aired here as the Supreme Court nears a decision on whether the Military Commissions Act of 2006 that laid the legal foundation for these hearings violates the Constitution by barring any of the approximately 275 remaining Guantanamo Bay prisoners from forcing a civilian judicial review of their detention.

Davis told Navy Capt. Keith J. Allred, who presided over the hearing, that top Pentagon officials, including Deputy Defense Secretary Gordon R. England, made it clear to him that charging some of the highest-profile detainees before elections this year could have "strategic political value."

Wrongly Convicted Struggle: Solution -- Revive Section 1983

Here is one from WP, Exonerated Struggle.

And from Reason, Suing the DA, Should prosecutors be immune from civil lawsuits?

(Radley Balko | April 24, 2008)

Last week, the U.S. Supreme Court agreed to hear the case of Thomas Goldstein, an ex-marine who was convicted of murdering his neighbor.

Goldstein served 24 years before his conviction was thrown out when the main witness against him was shown to have lied. That witness was a lifelong criminal who was given a deal on his own charges in exchange for testimony that Goldstein confessed to him in a jail cell. Goldstein alleges that the district attorney's office that prosecuted the case routinely used the testimony of so-called "jailhouse snitches" prosecutors knew or should have known weren't reliable.

Goldstein's case is unusual because he's not suing the prosecutor who convicted him, but John Van de Camp, the district attorney who supervised that prosecutor. The U.S. Court of Appeals for the Ninth Circuit has allowed Goldstein's case to go forward, causing the U.S. Supreme Court to agree to hear it.

Goldstein's lawsuit stems from federal law 42 U.S.C. 1983, which states that "…[e]very person" who acts under color of state law to deprive another of a constitutional rights shall be answerable to that person in a suit for damages," and provides a means for those wronged by government officials to file suit in federal court.

***

We tend to measure a prosecutor's performance based on how many people he's able to throw in jail, not necessarily by how well he metes out justice.

Rarely, for example, does a prosecutor get public recognition for the cases he doesn't take. So we have people in a position where they have the enormous power to take away someone's freedom, incentives nudging them to err on the side of prosecuting aggressively, and absolute immunity from lawsuits should they overstep their bounds.

It's a recipe for abuse.

***

The New York-based Innocence Project reports that prosecutorial misconduct played a role in about 40 percent of DNA exonerations over the last decade or so. Such misconduct could include knowingly putting on false testimony, withholding exculpatory evidence from defense attorneys, and coercing witnesses, among other transgressions.

I recently reported a case in reason magazine quite similar to the Goldstein case. In 2006, Church Point, Louisiana resident Ann Colomb, 57, and her three sons were wrongly convicted in federal court of running a massive drug operation out of their home, thanks largely to the testimony of several jailhouse informants.

Despite the fact that the family's home was modest, and that the sons held down several hard labor jobs and went to school during the years of the alleged conspiracy, the government witnesses — who were offered time off from their own sentences in exchange for their testimony — claimed to have cumulatively sold the family some $500,000 worth of crack each month.

The family was released from prison when it was revealed that the jailhouse witnesses in the case had participated in an information sharing network within the federal prison system. Inmates were sharing photos, case summaries, and even grand jury testimony about pending cases, memorizing the information, then offering to testify in exchange for breaks on their own prison terms.

And on the recent Death Penalty case, via Doug (I could not have said it better):

Edward Lazarus has this new piece at FindLaw, titled "Five Decades of Fighting Over the Constitutionality of the Death Penalty: What Can We Learn from This Lengthy War?". Here is how it starts:

These days, when one speaks of a "war without end," the reference is usually to Iraq. But in the legal world, the phrase also provides an apt description of the five-decade-long fight over the constitutionality of the death penalty.

Last week's decision in Baze v. Rees, in which the Court rejected a challenge to Kentucky's three-drug protocol for carrying out lethal injections, is just the latest painful yet inconclusive battle. Like the Court's many dozens of death penalty decisions, issued over the last 45 years, the decision in Baze ensures only that the larger war will continue and that the Court's own internal culture will continue to be one of its casualties.

Prison Nation

Here is another Times piece on the topic of what I call American Gulag: Prison Nation. Thank you Doc!

Newsletter

The new issue of the Newsletter is now out. Link to it here.

Prison Talk

This site made news today. Thanks Doc!
This is the NYT piece on it, including many good references on prison culture and media.

Convicting Innocents

At this link is a post titled "Who is Trying to Count Sentencing Mistakes?" Berman explores and readers offer helpful comments on this topic as well as the phenom of innocents' convictions. One in seven seems to be the low estimate.

This is not cool. Or maybe, if we are just trying to create more cheap felon labor, homelessness, and disrespect for the law, it is. Prison is grad school for criminals.

Candidates on Policy

Where they stand, via Sentencing Project.

Sex Crimes: Where Nobody Wants to Go

This post, referencing an in-depth 4-part series by the Deseret Morning News (Utah) by Doug is a must read for all involved in the sex crimes arena, legislators, enforcers, and other professionals alike. The public could find a healthy dose of reality there as well.

This should explain why support and educational groups, such as Sosen, are so necessary and deserving of support. Victims and perps alike have special, albeit diffferent, needs that one who has not been there cannot possibly understand. Below are links to Sosen and related sites.

• Constitutional Fights
• There Is Life After Sexual Abuse
• Sex Offender Issues (Z Man)
• Sex Crime Defender
• No Sex Offenders Need Apply
• E Advocate
• Sex Crimes (Corey Young)
• Sex Offender Research Voice of Reason
• Sex Offender Too (Willy)

Criminal Law Blog

Kent's Crime and Consequences needed to be moved into the best crime and criminal category.

Rothgery Argument in Supreme Court

a policy of denying appointed counsel to arrestees released from jail on bond and by failing to adequately train and monitor those involved in the appointment-of-counsel process.

This is at the core of Rothgery v. Gillespie County, (scotusblogwiki) to be argued today in the Supreme Court. My prediction is that plaintiff Rothgery wins, case returns to the District Court for further proceedings.

Curious that the question arises in the context of a civil rights action. But he's already won his criminal case and is now seeking redemption, damages, for the violation. Loss of income, etc., for having to sit in jail in order to get a lawyer appointed, among other things. He is just one of the lucky ones who was actually innocent and won. Until we find a way to make counties and states pay for violations and policies that result in violations it seems clear to me that said violations will continue.

No wonder the County is fighting so hard to maintain their own, clearly wrong, policy.

The case has special significance for me because I was one of those in another county in Texas who was denied appointed counsel because I had made bond. I was also not even aware of the examining trial process to probe the existence of probable cause until today, when I read about it in the Fifth Circuit's opinion.

Even though he'd been arrested, brought before a magistrate, and read Miranda rights, according to the Fifth Circuit Panel,

the summary judgment evidence fails to establish that adversary judicial proceedings had been initiated against Rothgery during his magistrate appearance.

Here is my question, getting technical, if as the court says the affidavit was filed only to establish pc for arrest and not to initiate charges, if the hearing was not an "arraignment" which concededly triggers the right to counsel, why would Rothgery need to be held on bail? Why would he need a Miranda warning? Didn't Mirandization trigger the right to counsel all by itself?

And isn't getting pc for arrest the initial step in filing charges? Should we presume that arrests do not initiate adversary proceedings? Until when do they not initiate them. Until a prosecutor decides not to prosecute. Does that make sense? Not to me. So, in the court's opinion here, "investigation" is not an adversary proceeding. That almost makes sense until you see the circumstances in which the investigation was being conducted, and by whom. Until Rothgery's own lawyer got involved nobody thought to check the bona fides of the California "conviction." That's an investigation?

I must be too dumb to understand the reasoning behind the opinion. In fact, I confess, I see only conclusory statements and little reasoning.

UPDATE: Transcript of oral argument is here.
Thanks as always to Scotusblog.
FURTHER UPDATE: I notice that Bill Long, here, agrees with my assessment, although he blogged on it earlier I only noticed this now in reviewing who else has been blogging on it. Not many so far. Simple Justice on it here. Grits here (the comments are interesting). Orin Kerr here. I guess I was aware of the "examining trial" but by another name, preliminary hearing.

"Supreme Court , Inc." in Numbers

Reading this made me feel exactly the way I felt after seeing No Country for Old Men, which won Best Pic: The bad guys are getting away with murder. So what? Here's a little snippet from a review of Alterman's new book, Why We're Liberals, by Scott McLemee who serves on the board of the National Book Critics Circle.

Immanuel Kant (a liberal) said the three questions facing philosophy were “What can I know?” “What ought I to do?” and “What can I hope for?” Politics is philosophy continued by other means, so these puzzlers still apply.

Well, we know, from the polling data, that the right wing’s claim to speak for the majority of American opinion is untrue. But Alterman never really addresses what liberals (or progressives, or whatever) ought to do. Nor, subtitle notwithstanding, does he ever address what one might reasonably hope for in the post-Bush world.

Back on topic, quoting Rosen, "exactly how successful has the Chamber of Commerce been at the Supreme Court? Although the court is currently accepting less than 2 percent of the 10,000 petitions it receives each year, the Chamber of Commerce’s petitions between 2004 and 2007 were granted at a rate of 26 percent, according to Scotusblog. And persuading the Supreme Court to hear a case is more than half the battle: Richard Lazarus, a law professor at Georgetown who also represents environmental clients before the court, recently ran the numbers and found that the court reverses the lower court in 65 percent of the cases it agrees to hear; and when the petitioner is represented by the elite Supreme Court advocates routinely hired by the chamber, the success rate rises to 75 percent."

Talking public safety, businesses will surely be encouraged to keep unsafe products on the shelf longer, and be slower to make improvements. 'By and large, the Supreme Court defers to agencies that refuse to regulate public health and safety. “The industry has a lot of money, and they can routinely hire the biggest names in the biggest firms, while we’re doing it on our own,” Zieve, of Public Citizen, says. “We don’t charge anything — we’re free. It didn’t cost $250,000 to get us to write the brief.”'

Jeffrey Rosen, NYT Magazine

Comments?

Prison Nation: A Response

NYT Published: March 16, 2008 (more letters at link)

Editorial: Prison Nation (March 10, 2008)

Re “Prison Nation” (editorial, March 10):

The United States prison population is out of control. Minimalist efforts such as alternatives to incarceration and parole reform may be politically palatable, but they will have no significant effect.

The real magnitude of this issue can best be grasped through comparison with incarceration rates in Western Europe. The United States incarceration rate is five times that of Britain or Spain. If we reduced our prison population in half, then in half again, and finally in half again, we would have fewer than 300,000 men, women and children in our prisons and jails, rather than 2.3 million, yet our incarceration rate would still be greater than that of Germany and France.

The only way to meaningfully reduce our prison population is to decriminalize drug use and provide drug substitution and treatment to those in need. A national program of harm reduction is the only way to reverse what you have aptly described as a “Prison Nation.”

Robert L. Cohen
New York, March 11, 2008

The writer, a former medical director of the Montefiore Rikers Island Health Services, was appointed by the federal courts in Michigan, Connecticut and New York to monitor the medical care of prisoners.

Public Not Pissed Off Yet?

Link here to an update of the Second Chance Act over at Doc Bermans. Here also, for the first post on it. Wall Street is always interested in the costs, but not always for the right reasons. In this case the costs of the over-incarceration, and now the costs of the remedy. Sounds about right. Charge the public to create a problem, charge again to fix it. If I did that in my business I'd have a lot of pissed off customers.

I will say that we seem to be trying to get this ship moving in the right direction.

Follow the Money: (Not the Spitzer Affair)

Uh-oh.

Sex Offenders, The Constitution, and Your Tax Dollars

Very interesting display of a waste of your tax dollars here and here.
Both, from the New York Times, picked up by Doc Berman, show how the federal government can take the lead. Only in these instances, the wrong direction being taken. Backwards is not forward.

I sure hope we get real soon. Perhaps asking too much there.

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.

Barack Not Black Enough

Shelby Steele's thesis (A Bound Man) published January 2008 is already outdated.
The part where he says Barack can't win, I mean.

The book is exceptionally well written and as a hyphenated American myself (Japanese-) I welcomed the perspective. I just think it's counter productive. I had to be taught that I was different before I knew I was. I'm just human, my blood is red, and I bleed, too.

Climbing Incarcerations

It's almost time to write up the next Newsletter. And don't wait to join the Baseball action.

Meanwhile, the Prison System is a prime example of runaway, ratchet-up spending. Speaking of Convicting the Innocent on my blog a few days ago, I have to repeat: the more we spend to convict and imprison them, the more we'll convict and imprison. Make sense? Spend more convict more. Spend less convict less. Sounds scary. Then consider how much safer we are with more ex-convicts among us than with less. How much safer are we now than ten, twenty, thirty years ago?

The recent Pew Center Press release on Numbers held in US prisons, begins:

Washington, DC - 02/28/2008 - For the first time in history more than one in every 100 adults in America are in jail or prison—a fact that significantly impacts state budgets without delivering a clear return on public safety. According to a new report released today by the Pew Center on the States’ Public Safety Performance Project, at the start of 2008, 2,319,258 adults were held in American prisons or jails, or one in every 99.1 men and women, according to the study. During 2007, the prison population rose by more than 25,000 inmates. In addition to detailing state and regional prison growth rates, Pew’s report, One in 100: Behind Bars in America 2008, identifies how corrections spending compares to other state investments, why it has increased, and what some states are doing to limit growth in both prison populations and costs while maintaining public safety.

Blawgers' Baseball

It's Back! It's Spring (well, almost)! It's Bacon. Wait, no. It's Baseball!

To join in the fun check out this awesome link!

Convicting the Innocent

Nobody cares about false confessions because convicts occupy the lowest rung in the social caste system. Once convicted, wrongfully or not, you are just toast. You are just another convict with zero credibility. You don't have enough credibility to overturn your wrongful conviction. Thus chicken begat egg.

I am about to shine a spotlight on that with a forthcoming book. It will be entertaining, on the order of Who Moved My Cheese. Still, nobody will care.

Videotaping a false confession, as Simple Justice (in blue below) argues, will simply preserve the confession and do nothing to prevent the coercion and trickery overcoming free will which caused that false confession to begin with. Confessions have always been recorded in some fashion. They have to be in order to be useful in court. The videotape will only make it seem more credible; and the contrary defense, the coercion defense, will seem only more incredible and absurd in light of the airtight video confession. The confession is developed strategically, in a very personal way unique to the particular defendant. When the moment is right it is sprung and recorded on paper or on audio, and soon now, video. Often, as in my case, the defense lawyer's and court's complicity is utilized. Nothing more will change, except perhaps the bureacracy and budget required to track, oversee, and insure the video process. What a mess.

In my case simple mental torture was used, by kidnapping my minor children and threatening to keep them indefinitely in foster care until I saw the light; isolation was also applied by requiring my wife to divorce me and have no contact, until I saw the light. Yes, I too was threatened with 2 years in county jail with no lawyer just to await the appointment of a lawyer and trial. Check the commentator on Grits' post below for similar story. It happens all the time. Standard operating procedure in Texas, and where else? Who knows. Maybe Professor Richard Leo does.

Thus my alleged victim, my second daughter, and my wife, who were the only three witnesses able to attest to my innocence, to essentially second or confirm my innocence had they been free to do so, were cut off from contact with me, and forced NOT to testify on my behalf under threat of never seeing the others again. The threat to destroy my family was carried out in this manner.

I gladly agreed to plead guilty in order to release my children from foster care and have them returned to my wife, their mother. It did not help that my lawyer promised I'd get probation and CPS was saying there would be "family reunification" if only I'd admit to abusing my own daughter. Of course at first I refused to admit because I didn't engage in any abuse whatsoever. I gladly paid the price of my conviction to save my family. That's what family means to me.

I'm innocent, I'm a convict, and the state justifies it by arguing that my false confession was given voluntarily. Nobody cares if it's false. The key here seems only that it be voluntary. No, this is not a Kafka story.

It happens all the time. This is your America.

What a shame, as I could have saved my children all that unnecessary pain and suffering they had to endure in foster care by making a false admission immediately, but I didn't see it that way. Not right away at least. My wife could have saved the Twenty Thou she spent on her lawyer getting the kids back, and she could have been saved a lot of heartache too. Oh well. You just live and learn. I just didn't "confess" soon enough.

Here are several recent posts on this, in no particular order,

Grits
Deliberations
a public defender
Simple Justice
In the News

discussing a new book, Police Interrogation and American Justice.

The title is actually wrong.

It should read " ... Injustice" and for forty-five dollars I'll bet it is more like a "how to" manual than a piece of prose.

The only way to preserve innocence and freedom in America is to massively cut police funding and the power which goes with it. It is way too easily abused.

In its other two certiorari grants, the Court agreed to examine law enforcement’s ability to conduct a warrantless search of the automobile’s passenger compartment incident to the arrest (Arizona v. Gant, No. 07-542) and when erroneous jury instructions can lead to habeas corpus relief (Chrones v. Pulido, No. 07-544). DC Dicta

Request for Cert here in Bell v Cone, earlier Supreme Court decisions here and here. The petition challenges the application of a technique used widely by the states' attorneys to dispose of state habeas actions: the ignored federal claim. By ignoring federal claims under guise of state rules of procedure, or simply for no reason whatsoever, states have been able to argue that vague elements of the "procedural default" doctrine apply. I'm glad to see that this form of legal abuse is getting the attention it deserves. I'm sorry to see that it takes a capital case and a big rich law firm to bring it up with any force.

Reviewing Wallace v Kato

The Short Skinny on Wallace v. Kato from Scotusblog and a longer piece by Kent (Crime and Consequences), here:

Justice Antonin Scalia wrote for the majority. There were two Justices in partial dissent. The case was Wallace v. Kato (05-1240, download here). In that case, the statute of limitations for filing a civil rights claim was two years, under Illinois law.

The false arrest claim in the civil rights lawsuit by Andre Wallace of Chicago had its origin, the Court ruled, when he appeared before a magistrate after his arrest and was bound over for trial. More than two years elapsed between that date and the day he filed his lawsuit, and thus, the Court decided, the lawsuit was too late.

The Scalia opinion was supported by Chief Justice John G. Roberts, Jr., and by Justices Samuel A. Alito, Jr., Anthony M. Kennedy, and Clarence Thomas. Justice John Paul Stevens joined in the result only, along with Justice David H. Souter. Justice Stephen G. Breyer dissented, joined by Justice Ruth Bader Ginsburg.

The Supreme Court (Danforth opinion), Ohio and Missouri make news this week in the Habeas and Residency Restriction arenas. Get your update from here of course, thanks to Doc Berman.

On Danforth, the headliner here says it all (THANKS SCOTUSBLOG). Was that supposed to be a good thing I wonder, Wanda? To expand the "criminal rights" -- I'm sure it is a magnanimous thing for the Court to allow the States to do that. But read on, and we find we are actually talking about something akin to the retrospective application, or as some say, the "retroactive benefit" of Supreme Court rulings. Chief Justice Roberts dissented, in which Justice Kennedy joined.

Is it only coincidence that retrospective application of laws is also in the spotlight in those Residency challenges? Don't let the big words fool you. What this involves is determining whether the rules of the game can/will be changed in the middle of the fourth quarter, sort of like counting the Florida and Michigan delegates after the DNC said they wouldn't before the vote (or non-vote), because the state's delegations broke, (transgressed?) the Party rules.

That depends, of course, on what the word Justice means to you. The Framers'? I heard something about "restoring habeas" (Obama) in last night's debate with Hilary. Was he speaking only about Guantanomo detainees? Barrack also mentioned the phrase "wrongful convictions." This is clearly something to be redressed through a pardon or a more muscular Habeas process. There must be consequences for those who would callously engage in behavior designed to produce wrongful conviction of innocent individuals.

Here is an interesting, if tangential discussion arising out of Danforth on Scotusblog's site.

“…while on your website you claim this is relevant to constitutional habeas.”

If by “constitutional habeas” you mean habeas as required by the Suspension Clause, the only point in today’s decision relevant to that question is the Court’s acknowledgment that common law habeas (and therefore the Suspension Clause) was limited to jurisdictional questions. That was once a furious historical debate, but it’s largely over, and the Fay v. Noia revisionism lies in ruins.

The primary debate over § 2254(d)– the one in the two law review articles I cited in the beginning and the one before the Ninth Circuit in Irons v. Carey — is all about the statutory writ and whether Congress can, consistently with Article III, require “deference” (actually a limited form of res judicata) to state court judgments in a class of cases where Congress could repeal the jurisdiction entirely if it chose. Today’s holding on the nature of the Teague rule is highly relevant to that debate, as I explained in comment 7, above.

And here's this one concerning Theory: "Blinking on the Bench -- How Judges Decide Cases"

Bad Trail Poetry

I'm shocked at the primary sweep Obama has managed to obtain.
Am I still living in the US of A?

They say that Hillary's back is against the wall, that she needs a political hat trick.
No question the big MO is going that way, even though some were afraid to say it sooner.

The question is, will there be backlash?
The tail of the dragon in defeat is still unpredictably dangerous.

The Asian, Latino, Black vote seems to have been, caricatured.
The white male's, the white woman's too is broad brush, certain.
But talk is cheap. In which direction will the vote actually be cast?
As Maine? Or New Hampshire? By a margin of . . . damn it's going to be close.
The superbowl wasn't this hard on the fingernails.

Michigan and Florida? Outta there. Who voted anyway?
Romney, out but could be back in 'twelve.

No question D turnout has never been higher.
So if super delegates don't go with the popular vote, what happens next?

Iglittarati

AND ON A LIGHTER NOTE:

The administration immediately condemned the House action, noting that no White House official has ever been cited for contempt. "This action is unprecedented, and it is outrageous. It is also an incredible waste of time -- time the House should spend doing the American people's legislative business," White House press secretary Dana Perino said in a statement.

Yes, the legislative business of, say, impeaching the President, investigating wrongdoing emanating from the West Wing, which has, you don't say, been politicizing law enforcement, trashing Justice, US Attorneys?

Oh, but that's exactly what the congress was doing. They're just finding more balls now. Read the WP on it here. Even if they will be pardoned anyway, don't we just want to know if anybody did anything wrong? Don't the ones who are under scrutiny want to enlighten us? Don't we care? This theoretical fight over Executive Privilege carries only so much water when at stake we find fragile notions of trust, integrity of Justice, etc.

December 7 is a date which will live on, in infamy to infinity ad infinitum. Bad, very bad. The point is not to throw anybody in jail but to promote the ability of Congress to investigate the executive, if and when necessary. It has never been more necessary.

AND ON HABEAS: (Thanks Howard)

Of Beethoven, of vodka, or of the Bill of Rights containing the first ten amendments to the U.S. Constitution? The U.S. Supreme Court has ruled that if a criminal suspect indicates in any manner during custodial questioning that he wishes to remain silent, interrogation must cease. Today, a fifteen-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit resolves whether a criminal defendant's statement, during an interrogation, that "I plead the fifth" is sufficient to invoke the right to remain silent. Complicating this question, the appeal arises in the habeas context challenging a state court conviction and is governed by the federal law whose acronym is AEDPA. The majority, in a decision that you can access here, overturns the federal district court's denial of habeas relief. Back on November 6, 2006, a three-judge Ninth Circuit panel voted 2-1 to affirm the district court's denial of habeas relief. Now-Chief Judge Alex Kozinski joined in the original panel's majority opinion, which a federal district judge sitting by designation wrote. The judge who dissented from the panel opinion wrote the en banc majority opinion on behalf of a sizable majority. Because this case was reargued en banc before Kozinski became the Ninth Circuit's chief judge, he was not guaranteed a seat on the en banc panel, and he was not randomly selected to serve on the en banc panel. Thus, we can only imagine what he might have said in response to today's ruling.

And,

By a vote of 8-5, en banc Sixth Circuit holds that the federal constitutional right to the appointment of counsel for indigent defendants seeking first-tier review of plea-based convictions in Michigan state court does not apply retroactively on habeas review: You can access today's ruling at this link. The U.S. Supreme Court specifically recognized this right to counsel in Halbert v. Michigan, a ruling that issued in June of 2005.

And,

By entering into a plea that required at least a 27-year prison sentence on one count of child exploitation, defendant waived any Eighth Amendment challenge to what that the federal district judge described as "the most unjust sentence that I have ever imposed": The U.S. Court of Appeals for the Eighth Circuit issued this ruling today (2/14).

Fantasy

Not to be missed: Blawgers Baseball is back. Coming soon.

Labels and Such: Liberal, Frontrunner

Confucius says--A preview on future, by take poll here:

Question--What's the best outcome as Clinton and Obama battle for delegates?

Obama wins quickly and builds a transpartisan movement.
(1530) 52%

Clinton wins quickly and turns her energy on the GOP.
(225) 7%

Clinton and Obama duke it out until the brokered convention in August.
(366) 12%

They team up quickly to create an unbeatable dream ticket.
(779) 26%

Is America ready for being called liberal? What does this mean, anyway. Is progressive any different? President Kennedy has a few words below. I'm really looking forward to comparing some choice quotes from the current administration in the history books, if I live that long. I'll be willing to bet that wimpy, week-kneed, defeatist will be among them. Our foreign policy has been a disaster, as has our prisons'. You'd think our slogan has been Every Foreigner a Terrorist or Prisoner, or Low Wage Worker (read Slave).

Any thoughts on this? I'd call myself fiscally conservative and socially liberal, but I'm ready to fight the world and occupy it too, just like a hawk. Just because I'm ready does not mean that I would. The question is, what's best for America. A long slow occupation of Iraq and Iran, military buildup vis a vis China? Or economic development and diplomatic cooperation lifting up the weak and poor.

Here's Eric:

The label will be forced on Democrats regardless of their preference, and weaseling out of it will only make them look wimpish, as it did Kerry. Rather than shying away from the L-word, Democrats should embrace it proudly, while ensuring that their definition is the one that carries the day.

But this is the part I like:

Speaking to New York's Liberal Party in September 1960, Kennedy proclaimed, "What do our opponents mean when they apply to us the label 'liberal'? If by 'liberal' they mean, as they want people to believe, someone who is soft in his policies abroad, who is against local government and who is unconcerned with the taxpayer's dollar, then...we are not that kind of 'liberal.' But if by a 'liberal' they mean someone who looks ahead and not behind, someone who welcomes new ideas without rigid reactions, someone who cares about the welfare of the people--their health, their housing, their schools, their jobs, their civil rights and their civil liberties--someone who believes we can break through the stalemate and suspicions that grip us in our policies abroad, if that is what they mean by a 'liberal' then I'm proud to say I'm a 'liberal.'"

Washington Business As Usual

What more could America expect from our President? A lot! As this terrific short by Dahlia notes:

water-boarding has morphed from torture that unquestionably violates both federal and international law to an indispensable tool in the fight against terror.

Charting that progression is almost not worth doing anymore, so familiar are the various feints and steps. First, the administration breaks the law in secret. Then it denies breaking the law. Then it admits to the conduct but asserts that settled law is not in fact settled anymore because some lawyer was willing to unsettle it. Then the administration insists that the basis for unsettling the law is secret but that there are now two equally valid sides to the question. And then the administration gets Congress to rewrite the old law by insisting it prevents the president from thwarting terror attacks and warning that terrorists will strike tomorrow unless Congress ratifies the new law. Then it immunizes the law breakers from prosecution.

That's how Americans have come to reconcile themselves to illegal warrantless eavesdropping and to prisoner abuse at Guantanamo Bay. It's why we're no longer bothered in the least by the abuse of national-security letters or extraordinary rendition or by presidential signing statements. Deny, admit, codify, then immunize. The law as quickstep.

Comment on AWA

Thanks to a kind reader, whose site can be found here, (and which I've added to my blogroll under the appropriate heading, Sex Offenders, Public Education and Civil Rights, the following comment on a Topix piece from Hampton Roads: "States can protect children without the problematic Adam Walsh Act"

It is so refreshing to see writers print facts and not just follow the politician's methods of preying on a mostly uneducated public's fears.

People need to wake up to this mess that is being created by politicians. Ted Strickland & Marc Dann should stand up & be LEADERS and admit they have made a wrong decision. Thank God some other states are thinking this modern day witch hunt through & are concerrned about financial and social ramifications. This law does NOT make us any safer.

I feel terrible for what happened to Mr. Walsh's son but it does seem to me now that this entire thing has BECOME a business and money making venture for him.

I want the to know who PREDATORS are. The mess in OHIO has created so many Tier 3 offenders it has watered the entire registry down and makes it useless. PLUS, how in the world is Ohio going to pay for this???? Strickland is now making budget cuts because we can't afford our current system.

People may think this law does not apply to them or anyone they know. When we are complacent and allow politics to start strippping constitutional rights away it is a VERY slippery slope. YOU ARE AFFECTED WHETHER YOU REALIZE IT OR NOT.

Then, there was this one demonstrating how the registries can, and have been used:

Sex offenders should be castrated with a plastic spoon dipped in vinegar. The governments should do what ever it takes to keep these POSs out of society.

The first comment is right on. Check out this NYT piece today, about a slice of history we'd all rather forget, but can't, called How Democracy Produced a Monster. As for the second comment. This is the best argument why the registries are going to go, or should go, the way of the Edsel, known as the "most monumental failure in the Twentieth Century" . . . according to Failure Magazine, which suggests that its legacy could also be the most instructive. The Most Instructive could be a bit of a stretch but I'll not take that argument too vociferously. I can think of bigger ones, but it'll take time, time. Tick tock, waste not want not, said our most famous Richard.

On Theory

Here is a good NYT article on theory.

The Great Writ Debunked

An ineffecive piece of parchment as slick as the Constitution is solid. This, from Judging Crimes, promises to be a great read. HT Crime and Consequences

And here, read the most recent Ninth Circuit opinion(s) on whether the habeas law's standard of review violates the Constitution, Crater v Galaza

Here's a footnote from the opinion explaining how AEDPA, the current version of the habeas writ, got it's misleading nomenclature (translation: name).

1The statute’s imposing title is somewhat of a misnomer. The provision held constitutional by the panel—section 2254(d)(1), the centerpiece of the statute’s modification of federal habeas practice—has nothing to do with antiterrorism and little to do with the death penalty. Rather, § 2254(d)(1) restricts the rights of all habeas petitioners detained in state custody, including those, as in this case, who have neither been sentenced to death nor convicted of an act of terrorism. The title was, however, politically appealing in the wake of the bombing of the Oklahoma federal building, on which event President Clinton relied as justification for the bill of which § 2254(d)(1) was a part. President Clinton’s Statement on Antiterrorism Bill Signing, 1996 WL 203049, *1 (Apr. 26, 1996).

I LOVED Barack's comment --"we need to be as careful about getting out as we were careless going in" The media really loves him, but are afraid to piss off Hillary. Very afraid.

How many people were afraid not to vote for Bush, and look at what they got for their fears:
A failed Republican Party doing its best to run away from a well deserved reputation for re- distributing wealth from poor to the rich.

They've redefined the term compassionate conservative. Now it means starve'em and slaughter 'em.

Here, at America's most revered, The Nation, is the infamous Katrina Vanden Heuval on this very topic. It starts like this:

"We must ensure that all life is treated with the dignity it deserves," President Bush declared during his final State of the Union address. He then segued into a call to ban human cloning. He didn't talk about dignity in terms of ravaged pensions, working longer hours for lower wages, and the loss of healthcare and other benefits. He didn't talk about dignity in terms of the rise in poverty – 37 million Americans, one in eight citizens now living below the poverty line in the wealthiest nation in the world. And he certainly didn't talk about dignity when it comes to migrant workers in Immokalee, Florida . . .

Know what? Living under bridges doesn't sound half bad compared to how the tomato growers are being treated right under Florida's nose. Compassion kimchee!

More Larnin' If You Please

I saw this today from Sex Offender Research about banning sex offenders from emergency shelters. It prompted me to create a new section on my blogroll which I'm calling Sex Offenders, Public Education and Civil Rights.

This will help you stay up to date on all the new developments in this cutting edge arena of American Civil Rights.

Perhaps to be more aptly designated "How America Got Screwed"

Now, if I'm going to get serious about blogging I'll have to start adding labels for my posts, and add them retroactively. A rainy day project indeed if I might be presumpuous enough to think that anybody cares.

Criminal Defense (Offense) in Texas?

I had to add this guy (Mr. Warren L. Clarke aka Hack Lawyer) to my blogroll when I saw the following re Texas CCA. In my years following the CCA I've never seen so many remands in a year, let alone a day. What's going on? Bringing justice to Texas was never very easy -- go on vacation, leave on probation.

The Court of Criminal Appeals handed down no published opinions today. However, it remanded four applications for writ of habeas corpus to the trial court for further fact-finding. They caught my eye because each dealt with allegations of ineffective assistance of counsel and are worth looking at.

In the first application, the defendant claimed ineffective assistance because her trial counsel failed to present evidence of her mental condition at the time of the offense. She further claimed that there was ample evidence available to establish that she was taking medication for schizopohrenia and bipolar disorder. The Court, finding that the records existed and clearly would have been relevant to support her credibility and undermine the State’s theory which portrayed her as a calm, calculating, clear-headed murderer, held that the claim alleged facts sufficient to provide her with relief. The Court also noted that trial counsel’s affidavit did in fact concede that he did not present any mental health evidence but failed to explain why he did not present any of this evidence after the defendant testified in her own behalf. The Court made clear that trial counsel be provided with another opportunity to explain his failure to present the evidence.

Numbers Guy and Recidivism Update

Here's Corey over at Sex Crimes

I wish the Numbers Guy had looked at the DOJ study which had the odd result of showing that non-sex-offenders actually had a higher rate of committing sex crimes upon release than did sex offenders. That seemingly anomalous result sometimes adds needed context to discussions of sex offender recidivism. It would also be nice to see a greater attention paid to breaking down sex offender sub-populations to assess those recidivism rates in context. Overall, though, I'm happy to see this issue getting a little more coverage. It's always nice to have the possibility that facts, not fear, will inform policy.

Facts, what are those?

OHHH NOOOO ! --- not global warming?

So Right, grasshopper: we must blame it on somebody else. "We"'re never responsible.
But papa, do bears shit in the woods?
Does the Wall Street Journal like taking candy from a baby?

One More Arrow in the DP Abolition Quiver

A few choice excerpts:

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

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

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

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

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

Toobin

Ohio and AWA

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

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

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

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

ADDITIONAL RELATED POSTS:
More Ohio News
Law Struck Down
Sex Offender Sentencing
Re Thinking Age of Consent

March Supreme Court Calendar

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