Free Scooter? Free Everybody? Land of the Free!

No, all Libby did was lie under oath about some details of a campaign to smear opponents of the Iraq war. To such media luminaries as Time's Joe Klein, the whole idea of imprisoning Libby is offensive: "Do we really want to spend our tax dollars keeping Scooter Libby behind bars?" Klein asks.

This question, again, is being asked in a nation that has nearly 2 1/2 million people behind bars - a large proportion of whom committed crimes that were less morally reprehensible, and almost infinitely less damaging to the nation, than Libby's lies.

But to Joe Klein, Libby just doesn't "look" like a criminal. Somebody - perhaps Paris Hilton - should remind Klein that looks aren't everything.

Source: HT Doc Berman

An "inspiring snippet":

In the Petitioner's case, the imposition of the mandatory minimum 10-year prison sentence without parole and sex offender registration for consensual oral sex between teenagers would be viewed by society as "cruel and unusual" in the constitutional sense of disproportionality, especially in light of Petitioner's having never been convicted of a prior crime....

If this Court, or any Court, cannot recognize the injustice of what has occurred here, then our court system has lost sight of the goal our judicial system has always strived to accomplish — Justice being served in a fair and equal manner.

The Atlanta Journal-Constitution now has this coverage of the state court ruling reducing the crime and sentence of Genarlow Wilson (basics here).

So then there is also this from the great Doc B:

I am, of course, excited that the Supreme Court has now taken up two new federal sentencing cases, Kimbrough from the Fourth Circuit and Gall from the Eighth Circuit, to deal with post-Booker sentencing issues (basics here). Based on a quick review (and helpful reader comments) and more from SCOTUSblog, it seems that that Gall is a partial replacement for the Claiborne case because it addresses a below-guideline sentence reversed by the Eighth Circuit. But unlike Claiborne, Gall is not a crack case, so Kimbrough was apparently taken to allow the Justices to address directly whether a district court may deviate from the guidelines based on a disaffinity for the harsh crack guidelines.

Perhaps the key and most significant fact in both Gall and Kimbrough is that the district court in both cases imposed a below-guideline sentence that a circuit court thereafter reversed as unreasonable. In sharp contrast, the Rita case still pending before SCOTUS (and still expected to be decided this term?) deals with a within-guideline sentence imposed by the district court and affirmed as presumptively reasonable by the Fourth Circuit. Also significant is that the Supreme Court apparently plans to hear Gall and Kimbrough under a normal schedule next Fall, but likely still will issue a ruling in Rita this month.

So, adding up these pieces, what does this likely mean for the future of federal sentencing law and post-Booker jurisprudence? I am still scratching my head, but let me venture a few ruminations:

Mental Illness Crisis in the System?

From Crime & Consequences, an interesting manipulation of the facts (but what is "clarion call"? Is that, like, a seagull? Obnoxious, or inspiring?)

As discussed here, there's a lot of problems with the clarion call of a mental illness crisis in our jails and prisons. That said, a new article in this month's issue of Psychiatric Services has a notable finding: 92% of jail inmates in the study with diagnosed severe mental illness were non-adherent with treatment before their arrest. Furthermore, of those 92%, 72% had a prior arrest for violent crime. This study adds to a growing body of research suggesting that a subgroup of people with mental illness are more violent when compared to the general population.

Booker Reasonableness Review Strikes Extreme Sentence

Observe for yourself here, how easy it is for even a judge to make unreasonable decisions in cases involving uncharged (sex) offenses. It seems, the very thought of a sex crime drives otherwise rational individuals to extremes of irrationality, if not unreasonableness.

Equally interesting is the interaction between uncharged and unrelated to the offense conduct and sentencing in these opinions and federal guidelines.

Libby's Politics

Here is John Dean, former Presidential counselor, taking exception to the slant Presidential wannabe Fred Thompson and the lineup of Republican heavies angling for a pardon at the "Libby Legal Defense Trust" have taken respecting the conviction and yes, the very prosecution itself. Mr. Dean suggests that far from being over, the truth will never be told because of Libby's efforts. And of course, who else but the VP would know that Libby is "the most capable and talented individual" he has ever known, as he stated here.

Apparently, this was one of those mysterious political prosecutions that never would have happened in any jurisdiction except here.

On June 5, U.S. District Judge Reggie B. Walton will sentence Vice President Cheney's former chief of staff, I. Lewis "Scooter" Libby, who has been convicted of obstruction of justice, making false statements, and perjury, as the result of the Special Counsel investigation arising from the revelation of Valerie Plame's identity as a CIA agent. I suspect that Judge Walton's actions will create a difficult and delicate problem for the White House.

HT: SL&P

Right On

Rep. George Miller (D-CA) released this statement: (HT Talkleft)

Rep. George Miller (D-CA), chairman of the House Education and Labor Committee, today said that the 5-4 Supreme Court decision in the Ledbetter v. Goodyear Tire and Rubber case, in which discriminated workers have only a narrow time-frame to file a complaint in the face of ongoing discrimination, was wrong and Congress should work to clarify the Civil Rights Act. “The Supreme Court’s ruling makes it more difficult for workers to stand up for their basic civil rights in the workplace. A worker undergoing sex, race, or other discrimination in pay is discriminated against with each and every discriminatory paycheck, not just when the company set the worker’s pay. Yet, according to the Supreme Court, if a worker does not file within 180 days of the employer’s decision to set her pay unlawfully, she has to live with that discrimination paycheck after paycheck. This ruling will force Congress to clarify the law’s intention that the ongoing effects of discriminatory decisions are just as unacceptable as the decisions themselves.”

Hyperbole, or One Big Hole: Empirical Reign Crumbling Already?

Here is how a recent review of U.S. foreign policy, appearing here, begins:

One of the few foreign policy achievements of the Bush administration has been the creation of a near consensus among those who study international affairs, a shared view that stretches, however improbably, from Noam Chomsky to Brent Scowcroft, from the antiwar protesters on the streets of San Francisco to the well-upholstered office of former secretary of state James Baker. This new consensus holds that the 2003 invasion of Iraq was a calamity, that the presidency of George W. Bush has reduced America's standing in the world and made the United States less, not more, secure, leaving its enemies emboldened and its friends alienated. Paid-up members of the nation's foreign policy establishment, those who have held some of the most senior offices in the land, speak in a language once confined to the T-shirts of placard-wielding demonstrators. They rail against deception and dishonesty, imperialism and corruption. The only dispute between them is over the size and depth of the hole into which Bush has led the country he pledged to serve.
***
Neither Ross, who served as Middle East envoy for both George H.W. Bush and Bill Clinton, nor Brzezinski, a conservative Democrat and cold war hawk, could be dismissed as Nation-reading, Howard Dean types. Yet in withering new books they both eviscerate the Bush record, writing in the tone of exasperated elders who handed over the family business to a new generation, only to see their successors drive the firm into bankruptcy. Both books offer rescue plans for a US foreign policy they consider to be in tatters.

Global Warming? Massachussetts v EPA

Personally, I treasure clean air, water, regardless of how hot it gets...it's the pollution, hon.

Here's another "Z" guy, Jonathan Z. Cannon writing in Virginia Law Review:

Last month, the Supreme Court handed down its decision in Massachusetts v. Environmental Protection Agency (“Mass. v. EPA”), its first case dealing with climate change. The decision was an enormous, if narrow, victory for environmentalists: it legitimized their concerns about global warming and their claims that the administration was not doing what it should to address it. Whether the decision was a great victory for the environment remains to be seen, but it will affect the policy debate for years to come. I should make clear that I had a dog in this fight. In 1998, as EPA General Counsel in the Clinton administration, I wrote a legal opinion on the question of EPA’s authority to regulate emissions of carbon dioxide (“CO2”) and other greenhouse gases under the Clean Air Act (“CAA” or “Act”), one of three issues decided in Mass. v. EPA.

Thanks to the guys at SCOTUSblog, who also have this regarding an important new development, if you are thinking about going to the federal courts for relief (what a gas! or should I say, more hot air only?):

Is Twombly the Death-Knell for Notice Pleading?

09:16 AM | Marty Lederman | Comments (1)

In its decision Monday in the antirtust case of Bell Atlantic v. Twombly, the Court expressly (and sua sponte) rejected the half-century-old nostrum from Conley v. Gibson that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id., at 45–46. The complaint in Twombly alleged a Sherman Act conspiracy (that the petitioners “agreed not to compete with one another”), but did not specifically allege any facts that would establish such an agreement -- and the Court therefore held that the complaint should be dismissed for failure to state a claim. (See Mark Botti's helpful summary here.)

The Twombly opinion not surprisingly has caused quite a stir in civil procedure circles. Does it signal the rejection of notice pleading and, if so, how can it be reconciled with the Court's decisions in Swierkiewicz (2002) and Leatherman (1993)? Can its holding somehow be limited to certain sorts of Sherman Act allegations, or does it have much broader implications for pleading practice?

It looks as though these questions will be hotly debated in the academy and lower courts in the near future. Michael Dorf has a very helpful initial take on the alternative readings of Twombly that are already framing that debate. See also Scott Dodson's reading here. By contrast, Einer Elhauge calls the case "quite insignificant," not to mention unhelpful for resolving longstadning questions with respect to antitrust complaints.

In general, keep your eyes on the Civil Procedure Prof Blog, where the issue is sure to continue to receive a lot of attention..

The Cave

Not.

Do not fund the troops for another single solitary day. It's for their own good, our good, and the good of America to bring them home with all deliberate speed. Congress, do not become complicit in this ill-fated war for even one more solitary day.

Fund their safe return, fund their R & R, fully.

Day by day, week by week, this disaster continues to fester, grow, stink, and spread.

Kill it now!

UPDATE: R & R = I'm talking about this--

Some of the "rest-and-recreation" facilities include the armed forces ski center at Garmisch in the Bavarian Alps, over two hundred military golf courses around the world, some seventy-one Learjets and other luxury aircraft to fly admirals and generals to such watering holes, and luxury hotels for our troops and their families in Tokyo, Seoul, on the Italian Riviera, at Florida's Disney World, and many other places.

Thanks, to this.

Impeach Gonzales (Speedily)

Here is Prof. Frank Bowman, in Slate:

Showing that Gonzales knew that the only real reasons for dismissing Iglesias were improper ones is critical to the case for impeaching the attorney general. Remarkably, Gonzales has effectively admitted as much. In his testimony, Gonzales provided three explanations for his decision to fire Iglesias: 1) Iglesias "lost the confidence of Senator Domenici," 2) Karl Rove and President Bush complained, and 3) "the consensus recommendation of the senior leadership."

It's time for him to go.

Oh, and I am wondering what the immunized, took-the-Fifth-Monica (Goodling) had to say...

The rest of Frank's piece is too good to pass, enjoy:

The last explanation is misleading. To the extent it suggests that the "senior leadership" of the Department of Justice initiated the idea of firing Mr. Iglesias, it appears to be false. All of the "senior leadership" to have testified so far—including Deputy Attorney General Paul McNulty, Acting Associate Attorney General William Mercer, and Sampson—deny proposing Iglesias for removal. What's more, the only complaints anyone in the Justice Department received about Iglesias were those voiced by Domenici and his fellow New Mexico Republicans, and echoed by Bush and Rove. And all those complaints concerned either voter fraud or public corruption. Thus, when Gonzales said to Congress, "I was not surprised that Mr. Iglesias was recommended to me, because I had heard about concerns about the performance of Mr. Iglesias," he was admitting, however grudgingly, that he knew Iglesias was being fired either for failing to bring voter fraud cases or failing to indict New Mexico Democrats before the 2006 election.

Yet Iglesias' prosecutorial judgment that there were no viable voter-fraud cases to bring has never been challenged by the White House, the attorney general, or any Justice Department official. Indeed, FBI Director Robert Mueller testified in April 2007 that he was not aware of any election-fraud case since 2001 that he thought should have resulted in an indictment, but did not.

Iglesias' firing, therefore, cannot be lumped with others characterized as dismissals for failure to carry out the priorities of the Bush administration. A U.S attorney may certainly be dismissed for failing to prosecute a class of cases the administration has made a priority, so long as there are meritorious cases in his district to prosecute. To knowingly prosecute cases that are without merit, however, would be personally unethical and a gross abuse of prosecutorial power. The punishment is disbarment. If a U.S. attorney, at the command of his political masters, prosecuted a case without merit to suppress voter participation, he would also commit the felony of voter intimidation, as laid out in these federal statutes.

***

Iglesias' sin was not a failure to conduct a successful investigation, but rather his refusal to rush the investigation to affect the outcome of an election. Gonzales' approval of his firing is inexcusable. It was for just such an extraordinary case that the Constitution's framers gave the legislature the power to remove civil officers. Congress should use it.

SCOTUS FOCUS

Yesterday, by a vote of six to three, the Supreme Court dismissed as improvidently granted the writ of certiorari in No. 06-313, Roper v. Weaver. The Court had granted certiorari to determine whether the Eighth Circuit had exceeded its authority under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) in setting aside William Weaver’s death sentence because the prosecutor’s penalty phase closing argument was “unfairly inflammatory.” The dismissal means that the Eighth Circuit’s grant of habeas relief to Weaver, a Missouri prisoner, stands.

Thanks to, guess, click here to see.

AWA and SORNA

The Department of Justice has released its Proposed Guidelines for the Sex Offender Registration and Notification Act (SORNA) of the Adam Walsh Act. The proposed guidelines will be published in the Federal Register and will be subject to public comment. You can find the webpage for the proposed guidelines here.

On the page are the Fact Sheet, FAQ, and proposed guidelines themselves.

Thanks, Sex Crimes

Z The Legal Monthly Newsletter

For your May issue, click here.

More from Sex Crimes (and that's all for today, folks)

Here are excerpts from Sex Crimes, which continues to do outstanding reporting on the topics:

The expansion of sex offender laws along with harsher sentences for sexual offenders DO contribute to the decline in child sexual abuse

Among explanations for the general decline in crime during the 1990s, the large increase in the incarceration of offenders has received the most extensive empirical support. Although detailed data are insufficient to conduct a careful analysis of the possible impact of incarceration on sexual abuse, the overall pattern is certainly consistent with the idea that increased incarceration played a part in a true decline. (Explanations for the decline in child sexual abuse cases)

However, there are also disastrous consequences. For instance:

• In California (and most other states), under pressure from politicians and victim advocacy groups, the mandatory child abuse reporting law, originally designed to protect children has been expanded to identifying offenders, making it virtually impossible for them to enter treatment without first suffering severe legal consequences. (How does this protect children?)

• The age of consent varies from state to state and is out of sync with normal sexual development in every state. Adolescents are being charged with felonies for many ordinary, consensual and developmentally normal behaviors.

• Disregarding scientific information about adolescent development, the Federal Government’s Sex Offender Registration and Notification Act will require lifetime registration as sex offenders for many of these adolescents.

• Young children are being ostracized for sexual behavior that is often normal or at worst, an annoying means of seeking attention.

• Under the guise of “protecting our communities,” without a shred of empirical support and in spite of significant empirical evidence to the contrary, sex offenders who served their sentences are being forced to leave their homes (and sometimes families) because they live too close to a school, playground or park.

• In many States authorities are often free to take alleged child victims into custody and subject them to internal forensic medical examinations without either the child’s or parent’s permission. (They need a court order to look for evidence of a crime in a person’s home but not a child’s vagina or rectum.)

• Adolescents are given conflicting and confusing messages about sexual behavior. They can generally consent to abortion and obtain birth control at age 12 but, depending on the state, cannot consent to sex until age 16 or eighteen. If they willingly engage in sex with adults before that age, adolescents are labeled (“compliant”) victims because they are considered incapable of meaningful consent. But if then engage in sex with a younger child they are considered capable of forming meaningful criminal intent by age 14 and can be (and often are) charged with felonies in adult courts.

In future posts I will expand on these and other issues and explore how they integrate with out cultural sexual obsession.

The Crow's Nest: Libby and One Federal Sentence

From SL & P: US News & World Report has this new piece discussing the preparation of Scooter Libby's presentence report. Here is how it starts:

Lewis "Scooter" Libby — the former top aide to Vice President Cheney who was convicted of obstruction of justice, perjury, and lying to the FBI in March — will be a step closer to learning his fate next week, when the presentencing report for his case is due to be completed.

Libby's lawyers and special prosecutor Patrick Fitzgerald will get their hands on the report May 15, but the document will not be publicly released–not before Libby's June 5 sentencing nor after. The report will include a probation officer's calculation of what sentence Libby should receive under federal guidelines and a judgment on whether the case merits a different sentence. Lawyers on both sides can contest parts of the report, and the judge ultimately can depart from its findings, but it will serve as a kind of first draft of the eventual sentence.

Some Libby sentencing posts:

• First-cut Libby guideline calculations?
• More Libby sentencing speculation
• Comparing Lewis Libby and Victor Rita
• Could Libby's decision not to testify now result in an obstruction-of-justice enhancement?
• Sentencing and pardon politics in the Libby case
• Will VP Cheney help Libby at sentencing?

SEPARATELY: The Boston Globe published a lengthy article questioning the wisdom of using residency restrictions as a means to decrease sex crimes against children.

FURTHER: (Also from Sex Crimes blog)

The Massachusetts Supreme Court has made a ruling in the odd area of law concerned sex by fraud. Here is a media account of the ruling:

A woman who had sex with her boyfriend's brother in her darkened room late one night claimed she was raped, saying the man tricked her into the act by impersonating her boyfriend.

But Massachusetts' Supreme Judicial Court disagreed Thursday, citing a half-century-old state law that says it is not rape when consent to sexual intercourse is obtained through fraud or deceit.

The high court said the state's rape law defines rape as sexual intercourse compelled "by force and against (the) will" of the victim. The court cited a 1959 ruling it made in another case in which it found that fraud cannot be allowed to replace the force required under the law.

The SJC noted that the state Legislature has had "ample opportunity" to change the rape statute to include fraud or deceit, but has not done so.

"Fraudulently obtaining consent to sexual intercourse does not constitute rape as defined in our statute," the court said.

Modus Operandi: Plutarch's Lives

But Aristides, who was the principal man of Greece, through extreme poverty reduced some of his to get their living by jugglers' tricks, others, for want, to hold out their hands for public alms; leaving none means to perform any noble action, or worthy his dignity.

Yet, why should this needs follow? since poverty is dishonourable not in itself, but when it is proof of laziness, intemperance, luxury, and carelessness; whereas in a person that is temperate, industrious, just, and valiant, and who uses all his virtues for the public good, it shows a great and lofty mind. For he has no time for great matters who concerns himself with petty ones; nor can he relieve many needs of others, who himself has many needs of his own. What most of all enables a man to serve the public is not wealth, but content and independence; which, requring no superfluity at home, distracts not the mind from the common good. God alone is entirely exempt from all want: of human virtues, that which needs least is the most absolute and most divine...

[Plutarch's Lives, The Comparison of Aristides with Marcus Cato]

Modus Operandi

Just one more case of Texas "justice" ...
click here, and thank you, Howard Bashman, for the link.

Major Question: Reach of Presidential Power

From SCOTUSblog we learn:

This morning, (that would be Monday, 4/30) the Supreme Court granted cert. in Medellin v. Texas, which raises a major question about the limits of executive power. Lyle Denniston has written extensively about the case of Jose Ernesto Medellin, a Mexican national convicted of murder and facing execution in Texas.

In September of 2005, Lyle had this post discussing the aftermath of the Supreme Court's May 2005 decision in Medellin v. Dretke. Last November, he reported here on the ruling of Texas' highest state criminal court that the President did not have the authority to direct the state courts to obey a World Court ruling on the rights of foreign nationals arrested and prosecuted in the U.S.

In January, Lyle had this report after Medellin's lawyers filed a new appeal to revisit the issue. He discussed the Goverment's amicus brief in this case here in March. And prior to the April 20 private Conference, Lyle provided additional background and context here.

Additionally, the April 16 edition of Conference Call in the Legal Times (column archive here; subscription req'd) features Medellin v. Texas.

All of the filings in this case, as well as in the earlier appeal to the Supreme Court, can be found at this link.

So Your'e Going To Jail?

What the ***? Upgrades?

The new wave...not for ladies only.

Compare this:

“I have never run into this,” said Ken Kerle, managing editor of the publication American Jail Association and author of two books on jails. “But the rest of the country doesn’t have Hollywood either. Most of the people who go to jail are economically disadvantaged, often mentally ill, with alcohol and drug problems and are functionally illiterate. They don’t have $80 a day for jail.”


New York Times ROCKS. Thanks to Jennifer Steinhauer.

Back to Basics: AEDPA and Clearly Established Law (?)

Here is my favorite comment from the barrel over at Orin Kerr's post on this week's dp cases:

All Penry relief is collateral. If there is not something in Penry that is "clearly established," Penry has no meaning at all, since it is not a claim that can be asserted on direct review. Indeed, whatever you might "think" about the clarity of the law, the court has decided several penry cases under 2254. There is established law there. Maybe you agree with the variety of Supreme Court decisions to the contrary, but then you just don't really care about precedent and there's not much to say.

I wouldn't get too sidetracked about this "congress has no business" argument. That's just not the issue, and it would be a disservice to the majority to act like that is the holding.

The law here is close - but it's close on the question of what is clearly established. Yes, it is "confused," but not in the traditional sense that it is confused on the straight-up merits question.

People like Kent S. would like to have everyone believe that just because it is not clear what is clearly established, that this is sufficient ambiguity to bar relief. This is, of course, ridiculous. There's no logical limit if you are going to stack "clearlies." Does the law have to be clearly established, or does it have to be clear what is clearly established. How about clear about what is clear about what is clearly established.

The "mess" was all about what law was clearly established, so you can't circularly cite confusion as to what was clearly established as a reason for holding nothing is clearly established at all, if 2254(d)(1) is ever to mean anything.

Also, the Texas Court of Criminal Appeals is simply off the reservation. For those unfamiliar with the way they do business, it's a real eye-opener. I think the Fifth Circuit sometimes gets a bad rap because they're applying deference to a state court that already delivers the most lazy, cryptic criminal opinions in the country. All righteous anger about federal interference in state adjudication sounds truly absurd if you have state adjudications that lack any indicia of reliability.

AND HERE are some persuasive reasons why the dissent(s) are discombobulational:

[OK Comments: C.F.W., I don't understand this comment. So in your view, the Supreme Court's job is to follow statutes if and only if the Justices believe that Congress "has business" in passing the law? I suppose I'm not surprised that Roberts missed that.]

Roberts wrote a dissent, and knew how the AEDPA came about - from Lundgren in CA trying to work around 9th Circuit cases. The idea was to put a thumb on the scales of justice - in favor of death. A good federal courts professor would have given a C to a student who did not at least mention what is wrong (or questionable, and possibly unconstitutional) about the structure of the law - making the circuits and district courts irrelevant as creators of precedent.

cfw: how was it the "key point" in this case that "Congress has no business freezing the law as it was decided by a particular date by the USSCT"? This was pretty much a straightforward AEDPA case, whether you agree with AEDPA or not. In fact, I'm sure the majority would have gladly just ignored AEDPA if it could have, but so long as AEDPA is on the books and not ruled unconstitutional (which was certainly not at issue here), the Court has to abide by it. And so long as it has to abide by it, the majority opinion is awfully implausible.

The dissent is not persuasive unless it at least touches on the idea that telling judges what they can and cannot cite as precedent is unconstitutional (blurring lines between Article III and other parts of the US Const.). The dissent is materially incomplete, and the CJ knows it (from his days as an advocate - or assistant to advocates - in a DP case).

This may be getting just a bit cynical, but why doesn't congress just pass a law saying that only the Tennessee courts, or just pick any state, are the only courts from which precedent can be drawn? Then, of course, we'll pack the TN courts with Supreme Court level justices and "away we go" (Johnny lives on, or was that Jackie?).

Adam Walsh (Act's)

Here's why this is such an ineffective waste of time, for Congress, for prosecutors, for police/enforcement generally. Doc Berman reports here, on the first sentence ever under the Act.