Passed and Pending: Sex Offender Bills -- Passed: Virginia and Board of Correctional Education

Passed in Virginia: A bill, HB 2628,
Summary as introduced:
Board of Correctional Education; composition. Requires the Governor to endeavor to select qualified appointees for the Board of Correctional Education. Modifies the ex officio membership of the Board by removing the chairman of the Virginia Parole Board and adding the assistant superintendent for Special Education and Student Services in the Department of Education and the Chancellor of the Virginia Community College System. Also, the bill allows ex officio members to designate someone to serve in their place.

While I have not read or studied the full text this one looks like it might contain enlightening reform(s). Thanks due to Keith from Advocare ("KeithDeBlasio@aol.com" KeithDeBlasio@aol.com advocareinc2001)

This is pretty amazing
Here is the list of the 38 SO bills pending in VA.. Thank you Zman! (not related to Z the Legal Blog). There are some interesting questions being presented to the legislators, whether the restrictions actually make us safer or not. Iowa prosecutors cannot get them repealed fast enough! Is the Virginia Assembly listening? They really could benefit by reading this (thanks to my good friend Linda for her timely action on it at SOSEN), "Failure to Protect: America's Sexual Predator Laws and the Rise of the Preventive State" by Eric Janus of William Mitchell College of Law (2006) (click to download from SSRN here).

First, this view from Maryland's Assembly: (available here and here) (Key: Republicans want the tuff stuff which has been proven to fail in Iowa)

Although the Maryland version of Jessica's Law that passed last year requires GPS tracking for each released sexual offender, it “was watered down significantly from the bill that I introduced,” O'Donnell claims. “Mandatory sentences went from 25 years down to 5 years. Parole was not available at first, but the Democrats forced it in. A lot of work needs to be done to toughen it up.” A version in the Senate that would have increased supervision and broadened community notification died on the last day of the 2006 session. “We did not sufficiently address this issue last year,” Stoltzfus argues. “There needs to be stronger mandatory sentencing.” Kasemeyer doesn't see that happening. “This issue won't come back in a significant way, at least in the short term.”

And Virginia:
HB-415 - Nursing homes; notification to residents, etc. of sex offenders residing in facility.
HB-1336 - Law-enforcement officers; training related to sexual assault cases
HB-1557 - Sex offenders; prohibits certain employment or volunteer activity, penalty
HB-1625 - Forfeiture of office; person convicted & requires reg. on Sex Offender & Crimes Against Minors Reg.
HB-1790 - Freedom of Information Act; access by persons civilly committed under Sexually Violent Predators.
HB-1792 - Sexually violent predators; conviction for bestiality qualifies person for civil commitment.
HB-1793 - Sexually abnormal offense; who may conduct mental evaluation of person convicted thereof.
HB-1923 - Sex offender registry; not guilty by reason of insanity.
HB-1966 - Sexual offenses; evidence of defendant's commission of another offense is admissible.
HB-2068 - Children; adds sexual abuse to prohibited acts that constitute indecent liberties.
HB-2107 - Sex offender registry; requires persons convicted of certain crimes to register.
HB-2175 - Children; broadens list of sex offenses prohibiting proximity thereto.
HB-2185 - Sex Offenses and Crimes Against Minors Registry Act; registrants to submit email address.
HB-2279 - Sexual offenses; creates number of new crimes labeled indecent liberties against child, etc.
HB-2344 - Sexual offenses; prohibiting entry of those convicted onto school property, penalty.
HB-2345 - Nursing homes, etc; required to register with State Police for sex offender notification.
HB-2346 - Sex offender registry; notification in nursing homes and assisted living facilities.
HB-2404 - Sexual offenses; if convicted of offense, prohibited to reside in proximity to children.
HB-2535 - Sexual battery; manner by which is committed.
HB-2571 - Sex Offender Registry;revocation of probation/parole if person is convicted of failure to register.
HB-2591 - Sexual offenses; enhanced punishment for second and subsequent offenses.
HB-2592 - Sexual offenses; enhanced punishment for second or subsequent such offense against victims under 13.
HB-2671 - Sexually violent predators; civil commitment.
HB-2672 - Sexually violent predators; if convicted of sex offense referred to Commitment Review Committee.
HB-2749 - Sex offender registration; offender to include any electronic mail address, etc. that he will use.
HB-2755 - Sex Offender Registry; adds to list of those offenses requiring registration.
HB-2776 - Sex offender counseling offices; prohibited adjacent to residential areas.
HB-2970 - Sex Offender Registry; clarifies that reregistration periods for those on registry are inflexible.
HB-2979 - Sexual offenses; raises penalty for use of communications systems when involving children.
HB-2980 - Child pornography; seizure and forfeiture of equipment.
SENATE ***** **********
SB-679 - Sexually violent predator; alternative to indeterminate civil commitment
SB-814 - Electronic mail; failure to warn that contains sexually explicit visual material.
SB-927 - Sexual offenses; prohibiting entry of those convicted onto school property, penalty.
SB-1065 - Sex Offender Registry; clarifies person convicted of registerable offense must register.
SB-1071 - Sex offender registration; offender to include any electronic mail address, etc. that he will use.
SB-1203 - Sexually violent predators; court may as an alternative that prisoner undergo physical castration.
SB-1228 - Sex offender registry; notification in nursing homes and assisted living facilities.
SB-1229 - Sex offender registry; nursing homes, etc. register with State Police to get notification thereof
Thanks: Zmans wiki http://sexoffenderi nfo.pbwiki. com/

A Capital Week on Death Row

You have got to look at this one, from SL and P (Doug B). Maryland and South Dakota have introduced laws to ban capital punishment, and Martin O'Malley, the new governer of MD captured some attention -- Ohio Death Penalty Information:

• AP reports here on a bill about to be introduced in the Maryland legislature to replace the death penalty with a maximum sentence of life without parole.

Excerpt:
...Governor Martin O'Malley says he'd sign the measure into law -- if it passes the House and Senate. O'Malley says he believes the state wastes a lot of money pursuing a policy that "doesn't work to reduce crime or save lives."

Doug B's begins,

For anyone categorically opposed to the death penalty, the past week has to be a cause for celebration. As DPIC is now spotlighting on its home page, "seven executions in three states were stayed for various reasons between January 19 and the 25th."

Prison Litigation Reform: Jones v Bock, 549 U.S. ___ (2007)

Does saying the court has gone too far ... in the minority circuits on this issue portend generally the end of broadly "anti-prisoner" reading(s) of PLRA and possibly also AEDPA constricting judicial review (review used in generic sense) of prisoner litigation, including habeas, undertaken in the lower courts at the purported direction of these Congressional acts?

My earlier post and update here, on these consolidated prisoner's appeals of dismissal of 42 U.S.C. 1983 actions against prison officials.

But Look Here: Iraq

I am posting this from a thoughfully written piece by Christian Caryl in the NYRB because it is all too easy to forget what it is that we are fighting for, have in the past fought for, and what the "good life" means to us. Hint: this does not describe a country that professes to want to spread "democracy" (aka the good life). This describes an utter failure of that country to fulfill the mission: (sorry, I hate to be piling on like this but this is probably the defining issue of our times and is difficult to ignore--when the vets from this war retire, will they be proud or angry for having been there? While an A for effort should be given to the troops could the same be said for those responsible for the planning?)

Small wonder, then, that the American discourse about the war usually ends up saying far more about American domestic politics than Iraq itself. Within the United States, politicians and commentators are fervently debating the issue of whether what is happening there now constitutes a "civil war." In Iraq there is no equivalent discussion that I am aware of. Such a discussion, one presumes, would be bizarrely misplaced when more than one hundred Iraqis (in a country of 29 million people) are dying each day from internecine violence. In a country of America's population, the equivalent losses would be a little more than 1,000 per day—or roughly two September 11 massacres per week. Similarly, New York Times journalist Sabrina Tavernise, who has spent much of the past three years in Iraq tracking down the views and daily experiences of ordinary Iraqis, wrote shortly after the US midterm elections that many members of Baghdad's present-day political class, though well aware of the elections, regarded them as irrelevant to the fate of their country.

Not Fun

Innocence Projects and Exonerations (Sometimes, there just is not anything fun to talk about...)

"These are appalling mistakes, and in the case of Dallas County, there have been so many," said Democratic state Sen. Rodney Ellis of Houston, who is sponsoring a bill to create a Texas Innocence Commission to scrutinize the state's criminal justice system. Ellis is chairman of the board of directors for the Innocence Project. ***
Since the nation's first DNA exoneration in 1989, 26 defendants have been cleared in Illinois, including 11 in Chicago's Cook County, according to the Innocence Project. There have been 21 exonerations each in Texas and New York, nine in California and six in Florida.
In Dallas County, about 400 prisoners who filed wrongful-conviction claims have received DNA testing, leading to the 12 exonerations, said Trista Allen, a spokeswoman for the district attorney's office. New District Attorney Craig Watkins, who took office two weeks ago, is determined to look into the underlying causes, she said.
Barry Scheck, co-director of the Innocence Project, said the number of exonerations in Dallas County "demands a closer look and statewide action." He said "many of the cases have to do with eyewitness identification. " AP (sometime Saturday)

Big Fourth Amendment Deal: Cert was Granted in Brendlin (IFP) v California,
People v. Brendlin, 38 Cal. 4th 1107, 45 Cal. Rptr. 3d 50, 136 P.3d 845 (June 29, 2006)
Here is the Orin Kerr/Volokh scoop.

Crow's Nest

Crow's Nest looks in the rear view and sees that he hasn't blogged in a day or two, for shame for shame. He has been a tad under the weather and taking care of some necessary business and has not had the time or the spirit. Before he say or reads anything else he will post the following old stuff from earlier in the week just to get it off the scratch pad and onto a more useful place.

He was looking forward to going to the Supreme Court Fellows Program tomorrow, titled "Judicial Independence: Drawing Lessons From History" but unhappily that does not look possible at this time (not due to ill health, thank goodness) (link here for info). He'll try to get some prepared remarks if they are available.

Now about the State of the Union, the best line was this one, from Sen. James Webb's designated Democratic response, paraphrasing, "if the President cannot be convinced to chart a new path in Iraq, we will show him the way." Amen!

SCOTUS decided Jones v Bock, Williams v Overton (consolidated PLRA /1983 cases from the 6th Circuit), important prisoner rights decisions, that with Monday's Cunningham decision leans in favor of prisoners rights, and against the grain of the "tuff on crime and criminals" trend. One supposes that either of these cases could easily have been decided the other way. There is more from SCT that I need to catch up on too. The syllabus is here. And the opinion here.

UPDATE: The opinion was unanimous, so maybe I spoke too soon and was being too cynical about the Court's inclination to be politicized, or results-oriented (so it could not have been decided any other way? How could the Sixth Circuit be so wrong on this? State's attorneys in the Fifth Circuit like to try to get the courts to ignore Leatherman and the simplified pleading rule in 1983 cases as well.). As Doug B suggests, maybe prison and criminal justice reform is morphing into the leading edge of civil rights issues of our time. I just hope, as I try to stay abreast of developments in the sex offender registration/restriction arena, that reform does not mean a continuation of the trend toward indifference and (stupidity is not too strong a word here) witchhunting that we have been seeing.

There seems to be an interesting Campaign Finance entry here at Electionlawblog (which might need to go over with my Poliblog); and

Also from SCT is U.S. v Atlantic Research Corp (link here for the SCOTUSblog entry) involving Superfund section 107(a) and PRPs "contribution" rights, which really needs to go over to my Brunswick/conservation place.

And once again, I can say with confidence that the reports of my early demise have been largely exaggerated. Whew! Grim Reaper, you need to be looking somewhere else, baby.

Early Commentary on Cunningham

Thanks to this SCOTUSblog post, you can find the opinion of the Court in California v. Cunningham here (syllabus here). The dissent, written by Justice Kennedy and joined by Justice Breyer, is here. Justice Alito's dissent, joined by Kennedy and Breyer, is here.

From Doug Berman's Sentencing Law and Policy, (link at right). He's already posted 3 times and the comments are hermeneutically expository.

A One Sided View of a SCT Argument

Reviewing Oral Argument in Abdul Kabir FKA (sic) Cole v Quarterman, and Brewer v. Quarterman. Robert C. Owen for Petitioners.

The death cases have instructional value for several reasons. We demonstrate how questions of life and death are treated for the world to see, (apart from what we are NOT accomplishing in Iraq).

The transparency of our system of justice is commendable and remarkable. Death is different. AEDPA and legalistic points aside, these, as do all cases brought before the SCT, spotlight how our system "works" and does not work.

Remember that almost fifty individual prisoners on TX death row will be affected by this decision (have cases pending raising the same issue re the pre-1991 jury instructions). That it takes over 15 years to resolve the matter says something too. I'll let that speak for itself. We can only wish that justice was as speedy as the recent Presidential decision to begin re-utilizing FISA authority for wiretaps.

Preliminary Box Score:
Edward L. Marshall for Texas makes an interesting point about the AEDPA inquiry under Teague and clearly established law (pp 35). He relies on and desperately wants the Court to look at Graham and Johnson, rather than Penry, Tennard (pp 40). But Johnson unfortunately may have been a very narrow fact-based decision, and Owen suggests in any event that the language favoring the state's case must be read in context of other language that does not help it.

Summarizing, the question was whether the jury instructions permitted "meaningful" consideration of mitigating evidence.

Argument:
O begins with: Would the reasonable juror find evidence of mistreatment as a youth as reasons to find defendant more dangerous rather than less dangerous, contrary to the lower courts' earlier findings on this? O noted that the Fifth Circuit in December's Nelson decision (split decision BTW) turned away from its prior position and followed the Court's guidance under Tennard and Smith. For that reason counsel had requested the Court vacate and return the case for reconsideration in light of Nelson.

But Nelson is likely to be challenged, said Ginsburg, resulting in delay.
Stevens thought that these cases are different and there was no reason to wait to decide them. So after about five or ten minutes O turned to the merits (pp7).

CJ Roberts first wanted to compare the evidence with that in Penry. This is precisely how law is made and he gets right to it. Is the case similar enough to follow or different enough to distinguish? He suggested these were "closer" cases. Owens, not conceding that calls them "different" but not closer, returning to the suggestion that the evidence made defendants out to be more not less dangerous (therefore, not mitigating). This is important because the question is whether the instructions permitted a reasonable juror to consider the evidence AS MITIGATING, apart from the question of future danger.

Justice Ginsburg next offers that the evidence even if not as strong as Penry's still really does fall into the category of MITIGATING (only if considered as such under the Tennard line of cases.)

Scalia notes Tennard post-dates the State court decisions in these cases. This is important because under AEDPA the question is whether the State court's decision was "unreasonable". It was Johnson and another case which the State court purported to be following at the time of its ruling. O points out that the Tennard dicta was made in the context of a COA qn. (misunderstanding the thrust of Scalia's remark -- the State decided Tennard in 1997).

When Scalia points out that Tennard did not overrule Johnson, O points out that in Johnson, the evidence in qn was limited to defendant's youth which is coextensive to dangerousness and mitigation, contrary to the cases at bar.

J Alito wants to know more about the similarities with Johnson, and Roberts goes to the specific evidence in Brewer's case, and thinks it is quite different than Penry.

O directs the justices back around to the question at hand, that evidence of mental impairment raises a probable inference of dangerousness in Tennard and Penry, as in the cases at bar.

Roberts makes the point that an absence of a "similar prosecutorial statement in the Cole case cuts against you" (getting very parsimonious in the differences--for Roberts, it is not just the evidence, its nature and character or the lack of it, but also how or if it was presented IN THE LOWER COURTS -- in this instance he felt that the absence of the prosecutor telling the jury about the "mitigating" evidence that O argues the reasonable juror would feel makes defendant more dangerous makes Cole different than Brewer's).

Is it reasonable to make such a fine distinction? How about: My lawyer was tongue-tied at trial, or the prosecutor mucked up and forgot to make a point or two. It is all in what you believe the proverbial "reasonable juror" could objectively believe. Are judges truly qualified to answer that as a matter of "science"? Regardless, these are the sorts of things judges do day-in and day-out. If not judges, do we need psychiatrists for that? I suppose the great thing about American justice is that common sense should prevail, so we appoint and elect judges and justices to define that for us. After all, that is why we call it "common" sense. What a system. Does it work? For whom does it work best? (IMO judges should be drawn from the commuity, receive expense pay only, and go back to their day jobs periodically to re-discover common sense and experience a little humanity and humility. I think I know more than a few lawyers who could benefit too).

Roberts wants very much to believe that a juror COULD, IF SHE WISHED TO, have considered the evidence mitigating. But this does not appear to follow the Court's precedent in Tennard, Penry, but to essentially re-litigate the question whether mental impairment and/or mistreatment creates an inference of dangerousness unless provided a way to be considered as categorically and specifically mitigating. Texas, recognizing the weakness, had reformed this shortcoming by changing the instruction set, in 1991, to allow for that.

Roberts then notes Penry did not establish an absolute rule and thinks maybe O is arguing for such. pp19

O responds that no, the Court need only enforce Penry for Brewer to prevail.
Scalia wants more about the deferential review and O responds that yes, the State court chose between applying the Penry line or the Graham, Johnson and chose wrong. Not only that, the choice was "objectively" unreasonable, he concluded, as necessarily he must.

That is what AEDPA has done for us.

NB. I'll let somebody else do Ed's argument. But if somebody wants it from me my standard hourly rate is $625/hr. That's a joke. [At that rate I'd pay off my student loans in no time, but I wonder why that's not happening].

The tranny is here. (and it is not a GM, Ford or Toyota model -- I prefer Mazda myself).

Reviewing the Criminal Week in SCT

Check out the Motions to vacate in the Brewer and Abdul-Kabir/Cole cases, about which I plan to briefly review the oral arguments from Wednesday:

The Brewer motion to vacate is here. The state's response is here. And the Brewer reply is here.

The Abdul-Kabir motion to vacate is here. The state's response is here. And the Abdul-Kabir reply is here.

The state's letter to the Court regarding both cases is here.

The Questions Presented are here:
(QP in 11284, QP in 11287)
(QP)

The cert. petitions, briefs in opposition, and reply briefs in these cases can now be found here at Supreme Court Times (thanks to Ross Runkel for sending along the information).

Abdul-Kabir v . Quarterman (05-11284, denial of rehearing, panel opinion) and Brewer v. Quarterman (05-11287, denial of rehearing, panel opinion).

[involves another test of whether Texas juries have an adequate opportunity, in capital cases, to consider mitigating factors when deciding whether to impose a death sentence... lawyers say the Fifth Circuit Court has consistently failed to follow Supreme Court precedent on the mitigation issue.]

Hat tip to Lyle over at SCOTUSblog.

Duenas Alvarez, 549 U.S. ___ (2007) (syllabus) was Wednesday's SCT opinion. (HT SCOTUSblog)

Here is my earlier post on Smith:

Fish for Dinner, the B vitamins kicking in now

A Review of the Smith v. Texas Transcript (took much too long):

From the Crows Nest

Today is Attorney General day as the Post has one, two and three (not blind mice) items and NYT one on this topic.

Yesterday just listening to some commentatary on the Devlin kidnapping case from Missouri, I heard something to the effect that many people are looking for an early plea arrangement in order to avoid the trauma to the kids of testifying at a trial (so it is not as traumatic to just talk about it in private to the REALLY NICE prosecutors, who are VERY interested also in getting that plea).

So, in that view, a trial imposes trauma, and that's a good enough reason to enter a conviction on a plea. Do we no longer CARE whether the man is guilty? Sure, the facts of this case appear open and shut, but it isn't always like that.

Meanwhile, back at the ranch:

This from the Post Thursday on Smith and the Supreme Court death penalty cases is good:

It was death penalty day yesterday at the Supreme Court, coincidentally 30 years to the day since Gary Gilmore became the first person to be executed under the country's modern capital punishment laws.

The court heard three death penalty cases from Texas even as executions are on hold in an increasing number of states, from Maryland to California, and as the number of new death sentences continues to fall.

The work of the court so far this term shows that the complicated legal process that attends executing a murderer -- the balance of state laws and federal constitutional guarantees -- can take decades to unspool. Even a trip to the Supreme Court is sometimes not enough to settle the issue.

The cases of at least nine death row inmates nationwide -- who are not proclaiming innocence but are protesting their sentences -- are on the court's docket in this term. Just as the justices scrutinized Virginia's system for carrying out the death penalty several years ago, they are examining four cases from Texas this year, including the three heard yesterday.

The number of capital cases is not unusual for the court, those who follow the issue say. But because the justices so far this year have taken a smaller number of cases overall, the death penalty accounts for "a larger fraction of their work," said Richard Dieter, executive director of the Death Penalty Information Center. Douglas A. Berman, a law professor at Ohio State University, said: "It's probably the normal number, but I always think they take too many. Especially at a moment when the docket is so light." The justices have taken a decreasing number of cases in recent years, and this term, which will end this summer, is likely to continue that trend.

Sometimes the court's decisions are dramatic, such as 2005's Roper v. Simmons, which forbade the execution of those who were younger than 18 at the time of their crimes. But Berman, who writes regularly for and runs the Sentencing Law and Policy blog, said the court's decisions in most death penalty cases affect only a handful of people in the states from which the cases arise. He would like to see the court spend time on other sentencing disparities "that affect thousands of people every day."

More on Politicized AGs: (from Howard at How Appealing)

"Surging and Purging": Today in The New York Times, columnist Paul Krugman has an op-ed (TimesSelect temporary pass-through link) that begins, "There's something happening here, and what it is seems completely clear: the Bush administration is trying to protect itself by purging independent-minded prosecutors."

In related news coverage, The Washington Post today contains an article headlined "Prosecutor Firings Not Political, Gonzales Says; Attorney General Acknowledges, Defends Actions."

And in The San Francisco Chronicle, Bob Egelko reports that "U.S. attorney was forced out, Feinstein says."

Here is a link to one of the first opinions disposing of a challenge to the Adam Walsh Act.

This one is of local interest-- a challenge to an "anti-solicitation" Herndon, Virginia law targeting day laborers: (Washington Post)

Although town officials cited traffic safety as their chief concern, the law was passed in the midst of a debate over the impact of immigrant day laborers, who congregated in the parking lot on Elden Street in the mornings to seek work.

Thomas's attorneys, Rodney G. Leffler and Alexa K. Moseley of Fairfax, asked that the case be dismissed on First Amendment grounds, saying that solicitation has long been protected by the courts as free speech. Specifically, they said Herndon's law is flawed because it focuses only on solicitation for employment, while leaving other forms of solicitation -- such as charitable contributions or the sale of goods -- unrestricted.

Fairfax District Judge Lorraine Nordlund has scheduled a hearing for Feb. 14 but indicated that she could rule earlier based on written arguments. The lawsuit was filed last week.

Herndon Town Attorney Richard B. Kaufman declined to comment. "The Town of Herndon does not comment on ongoing criminal prosecutions," he said.

Vice Mayor Dennis D. Husch said the Town Council can rewrite the ordinance, if necessary.

From the Crows Nest

$$$ Award Against Police (from the V Conspiracy)

Rajwani (3x above-guideline sentence returned) (5th Cir. Jan 16, 2007)

Elizondo (5th Cir. Jan. 15, 2007) (remanded for sentencing) (HT Doc Berman)

Duenas Alvarez, 549 U.S. ___ (2007) (syllabus) was yesterday's SCT opinion. (HT SCOTUSblog)

Administion caves on warrantless wiretaps.

UPDATE: From How Appealing on the Wal-Mart case in Maryland

"Md. Wal-Mart law dealt second defeat; U.S. appeals court upholds earlier ruling; Assembly seeks new health care solutions":

This article appears today in The Baltimore Sun.

The New York Times reports today that "Appeals Court Rules for Wal-Mart in Maryland Health Care Case."

And The Washington Times reports that "Court upholds killing of 'Wal-Mart bill.'"

His earlier coverage appears at this link.

Maryland HB 2

Just in case you were wondering about the 2006 Emergency Maryland legislative session, sex offender registration laws, and collected criminal, public safety, corrections, probation and parole stuff, here is what the legislature accomplished in the emergency 2006 session (HB 2).

You can also read what the legislature proposed and did not pass, which is lined out, in the Unofficial Copy of the enrolled bill (at the link above).

Here you can read my earlier post on problems unique to registrants and the registry.

If you check out the following tags from the list available on the sidebar, you can pick up some additional info: Banishment, sex offenses.

(You may have to hunt a little within the postings that come up under the tag, because I have lumped brief references and newsy shorts into those posts that I now refer to as the Crows Nest, contrasted with more substantive comments that I try more or less to maintain as beefier individual entries.)

Corey Young at Sex Crimes and Doug Berman at Sentencing Law and Policy (See Best Prison and Crime Law at the right) also have up to the minute info on these and related topics.

Fish for Dinner, the B vitamins kicking in now

A Review of the Smith v. Texas Transcript (took much too long):

Jordan Steiker, Esq., batting for Petitioner Smith: harmless error analysis under state law, "when it's predicated on a misunderstanding of Federal constitutional law, is not an independent basis for decision." It's "clearly wrapped up in the Federal claim," pp8.

Issues:
1. Court can/not find error was harmful.
2. There was/not significant mitigating evidence in the case.

Some of the Argument and background: The Supreme Court had ruled earlier that the jury could not fully consider the mitigating evidence under the nullification jury instruction set. On remand the CCA erred and said otherwise, and Petitioner appealed again. Now, up before the Court a second time, Texas argued that its error was conceded (which was a point of contention in the argument). That contrasted with the alternative possible view that CCA ruled Petitioner had been procedurally barred by not entering a proper and timely objection to the nullification instruction (a view held by 4 of the CCA justices and not contradicted by the majority), in which event the merits had not been decided and the Court could now rule de novo; a ruling by the lower court on the merits would require the Supreme Court to give deference to the lower court's findings of fact and conclusions of law. By arguing that the error was harmless under the state standard, Texas sought to paint that determination of harmlessness, and the error, as an independent and adequate state ground and thus untouchable on federal review.

Discussion: Did Petitioner allege a federal constitutional violation? If he did so then regardless of whether the State's curve ball came in high and wide and independent state grounds existed for the State's decision to the contrary, the constitution has been violated. Ball one. Constitutional violations are not necessarily excused by contrary or independent state court rulings. Ball two. The nub is thus whether Smith's allegations on the record supports his claim. Ball three. The claim? That the nullification instruction set violates the constitution and is/was not cured, in that it cannot allow the jury to give full effect to mitigating evidence. Ball Four and walked. As much as some on the Court would like to let States to employ independent and adequate state grounds reviews I do not see how the Court could reverse itself and not grant Petitioner's claim this time as well. Bases loaded.

Hat tip to SCOTUSblog for the link to the tranny and to Aaron Streett of Baker Botts, whose recent post on Gonzales v. Duenas-Alvarez, 05-1629 is here, (on Prawfblawg) for the inspiration.
Dahlia Lithwick here on Day to Day at NPR on the Smith case. (HT Howard Bashman).
My earlier post on the case here.

Effective or Not, Here We Come!

Professor Berman has this interesting post, which refers as well to this one by Corey Young, who says:

supplementing residency restrictions with work restrictions, as is the case in Ohio, is the worst of both worlds since it just reinforces the banishment effect and further undermines the ability of sex offenders to reintegrate into society. And while I think work restrictions alone are better than residency restrictions alone, that is hardly a ringing endorsement.

NB. We are approaching this from the wrong perspective. The real issue: not all sex offenders present the same danger to the community.

If an offender has been released it is because society has deemed the price paid AND the offender no longer a danger to society. An offender who cannot be released under these conditions should not be released. This means that attention is required "in the CAN" and in the PRE-release phase. This is so that we stop placing the cart before the donkey once we recognize the donkey won't move the cart. It is beginning to be shown that this conclusion is the only reasonable one. Treating the issue of dangerousness Post-Release is not the answer. UPDATE ADDED: At the same time, respecting sentencing, the length of incarceration necessary should be tied to a real assessment of the immediate risk. I assume that only the dangerous need to be locked up. All others should receive appropriate punishments short of incarceration.

Post-release banishment performs nothing more than ongoing punishment in effect, if not in name AND is only counterproductive. Safety is not the true or objective purpose of registration laws (which are starting to take on all the characteristics of banishment). Safety cannot possibly be the real concern because these laws leave risk undefined and unaccounted for in the registration scheme.

A case by case approach is necessary to deal with each individual (sex offender or not) who might present a risk upon release (or indictment). An approach that treats every sex offender as if he were the "the worst of the worst" is very, very flawed. (A law and economics approach to this might be rather interesting to contemplate.) The laws only make it possible to shift the blame (political risk), allowing unscrupulous legislators to say "we tried," when "the worst of the worst" strike again. Recidivism is extremely rare in any event but gets all the attention when it does occur.

It is important to get this right in advance of painting the entire community of offenders as dangerous, registering and banishing and taking away earning power, as further punishment for what was in many, many cases a youthful indiscretion, mistake, or tryst.

Also, in more cases than we care to admit sex offenders have been convicted on the basis of false accusations by abusive prosecutors who hold (and withhold) evidence. Sometimes they get caught, as we can see from the Duke rape case, which if you missed it, was featured on CNN by Paula Zahn last night. I wonder whether these cases would not already have garnered pleas if the defendants were not rich, or if they were black and/or if the victim was white.

It is so much harder to throw the illegitimately caught fish back into the river when you are so blind (or greedy). In the deep and deeper South, race and being a Yankee also enter, writ large.

Crows Nest on a Tuesday that feels like Monday

Here is Scot Henson on TX Parole

TDCJ categorizes offenders who are eligible for parole into seven risk levels, and under the current guidelines, level 7 offenders (those identified as the least dangerous) should be approved for release between 76-100% of the time. But take a look at the approval rates for Level 7 offenders at Texas' six regional parole panels from the Sunset report (pdf, p. 31):

Parole Panel Approval Rate for Guideline 7

Amarillo 42.96%
Angleton 54.47
Gatesville 38.29
Huntsville 45.71
Palestine 57.88
San Antonio 53.14

Not one of these parole boards comes close to approving Level 7 parole candidates at even the lowest part of the guideline range. One member of the Sunset Commission pointed out, the parole board is actually more likely to follow its guidelines for the most violent, dangerous offenders than they are low-level nonviolent ones. That makes little sense.

And a little more on that from Norm Sirak's place:

Pretty Hot Letter on Parole to Texas State Senator makes points (Dec. 27)

According to December's Progress Report Texas's Motion to Oppose Class Cert is Due Jan. 17. There have been six motions to dismiss to date, unheard of.

This, from ADAM M. GERSHOWITZ , South Texas College of Law, is a very interesting proposal, politically speaking, concerning the Death Penalty.

As is this one, by WAYNE A. LOGAN , Florida State University College of Law. Thanks as always to Prof. Berman. This article is reviewed (previewed?) by Corey Young over at Sex Crimes blog.

UPDATE: My Newsletter has just been posted here.(10:12am)

The Crow's Nest

UT Clinic, Students and Profs re: Wednesday's 3 Texas Death Penalty Arguments in SCOTUS: (from here)

(Doug Berman's question, "what happened to summary reversals" is especially appropriate, given the transparency of the lower court's error and need to "conserve" the high Court's judicial resources. OTH the transparency of an error is not always "immediately or intuitively obvious." It can and often does require a great deal of thought, homework, and clear thinking in order to reach the legal conclusion, especially because the opinion under review has already reached a different conclusion AND rationalized it with an equal if not greater degree of effort). (Does this start to explain why the lawyers who hate lawyers do so with a passion reserved only for lawyers?).

""It does teach them, I think, that law in the courts is really different from the law in the lawbooks. It's essential for people to figure out, if they want to be litigators, that much of what you need to know is not written down anywhere. You can only learn it by going to court," Owen said. "It's not always reassuring."

Also:

My argument is the Court of Criminal Appeals didn't comply to the holding of the Supreme Court decision," said Jordan Steiker, Smith's lawyer.

"It's not unheard of, but not common either," Erwin Chemerinsky, a Duke University law professor who urged the justices to take Smith's case a second time. "Usually when it happens, the Supreme Court does not take well to what they regard as disobedience by a lower court." ***
"The United States Supreme Court said this is constitutionally inadequate and the Court of Criminal Appeals and Texas say that's wrong," Victoria Palacios, a Southern Methodist University law professor who teaches capital punishment matters, said. "But you can't disagree with the Supreme Court when the Supreme Court is interpreting the federal Constitution."
Steiker, a University of Texas law professor, appealed again to the high court.
"The Texas Court of Criminal Appeals invented a ground to try to thwart the Supreme Court's ruling," said Chemerinsky, whose brief urging the Supreme Court review Smith's case a second time was filed on behalf of four retired federal judges.

And:

A decision could affect as many as 47 of the state's 390 death row inmates and clarify a murky corner of capital punishment law. *** In 2004, the high court ordered the Texas Court of Criminal Appeals to fix the sentencing problem.

The state court demurred, ruling instead that Smith did not deserve a new sentencing hearing because the constitutional problem was "harmless" and didn't strongly influence jurors.
Only one judge dissented.

"Our judicial power does not include the power to . . . ignore orders from the Supreme Court," Judge Charles Holcomb wrote. "Reversed means reversed."
The 8-1 ruling shocked legal scholars. The Supreme Court had delivered its message to Texas in a "per curiam" opinion — an unsigned order reserved for issues that the court deems unambiguous.

"It's one way of saying the resolution of this issue is pretty darn obvious," said Allan Ides, professor of constitutional law at Loyola Law School in Los Angeles.
The Texas ruling smacked of hostility toward the Supreme Court, Ides said.

"To me, it seems as if the (Texas) court is simply saying, 'We're going to do what we want, and we're going to find some clever way to write around it' — and it wasn't that clever."
It is rare for a case to make it to the Supreme Court, which has accepted only 64 of about 8,000 appeals so far this term, continuing a downward trend from the 1980s. It is even rarer for a case to make a second appearance, perhaps signaling that the high court has lost patience with its Texas counterpart, Ides said.

Ted Cruz, the state solicitor general who will argue the Smith case on the Texas court's behalf, said the judges faithfully tried to adhere to a rapidly changing, sometimes contradictory, line of Supreme Court reasoning.

The Texas judges "are serious, principled jurists who have strived over the past two decades to faithfully apply the Supreme Court's rapidly evolving capital punishment jurisprudence," Cruz said.

NB. Is the ability (perhaps it is a condition?) of thinking it wrong to seek the death of another human being a unique, if not the unique quality that makes us human? Where does this come from?

Dahlia at Slate Argues well, On What I Would Call "Bush Wars":

The object is a larger one, and the original overarching goal of this administration: expanding executive power, for its own sake.***claims about Padilla's dirty bomb, known to be false, were a means of advancing their larger claims about executive power. And when confronted with the possibility of losing on those claims, they yanked him back to the criminal courts as a way to avoid losing powers they'd already won.***The endgame in the war on terror isn't holding the line against terrorists. It's holding the line on hard-fought claims to absolutely limitless presidential authority.

Enter these signing statements. The most recent of the all-but-meaningless postscripts Bush tacks onto legislation gives him the power to "authorize a search of mail in an emergency" to ''protect human life and safety" and "for foreign intelligence collection." There is some debate about whether the president has that power already, but it misses the point. The purpose of these signing statements is simply to plant a flag on the moon—one more way for the president to stake out the furthest corners in his field of constitutional dreams.
Nb. She backs up her conclusions with facts.

The Fundamental Nature of Our Legal System, One Govt Official and Detainees' Counsel;

Is This A Dirty Trick? (The V Conspiracy)

More on Your Mail, (Post)

Dems and the War Prisons from Boston Globe,

And in Prisons on this side of the Pond: (NYT Op by Bernard E. Harcourt, a professor of law and criminology at the University of Chicago, is the author of “Against Prediction: Profiling, Policing and Punishing in an Actuarial Age". Ends like this--

However, prisons are not the only institutions that seem to have this effect. In a recent study, I demonstrated that the rate of institutionalization — including mental hospitals — was a far better predictor of serious violent crime from 1926 to 2000 than just prison populations. The data reveal a robust negative relationship between overall institutionalization (prisons and asylums) and homicide. Preliminary findings based on state-level panel data confirm these results.

The effect on crime may not depend on whether the institution is a mental hospital or a prison. Even from a crime-fighting perspective, then, it is time to rethink our prison and mental health policies. A lot more work must be done before proposing answers to those troubling questions. But the first step is to realize that we have been wildly erratic in our approach to deviance, mental health and the prison.

Sure is curious: Fifth, Hiding Reversals? (Decision of the Day/Robert Loblaw) U.S. v Martinez (Jan.12, 2007)(6th Am., Confrontation Cl., harmless error)

Check The Volokh Conspiracy, Robert Loblaw, Doug Berman, Howard Bashman, Corey Young, for interesting and groundbreaking stuff this weekend.

Update on Groundbreaking Stuff, (and this is not all or least, but is last--for now):

DNA Collection Challenges from Doug Berman

Happy MLK Day (preview from the Crow's Nest)

Today's Crows Nest posting is on the way, but first I wanted to mention a new link I added just now, that looked good enough to make the cut after about thirty seconds: Law of Criminal Defense. I wonder if he'll notice (by John Wesley Hall, Jr.-- a site not technically a blog, "supporting Professional Responsibility in Criminal Defense Practice" that posts frequently, with caveat that there is a book involved).

Apparently we are both interested in the Joseph v Coyle case I mentioned here.

UPDATE: There is some great-looking stuff from NYT Week in Review (as well as the Post, of course).

There is some groundbreaking work discussed here, this morning (when I noticed it). I'll be over at the Ceresville Mansion with Martin O'Malley, the Governer-elect, pre-inaugural breakfast a bit later politicking on the politics of crime, or just saying hello and whatever.

Last evening I saw the Guv-elect (can I call you Martin?) on Ch. 3 (WWPB) briefly responding to some questions, among them:

-what about the death penalty in Maryland?
-raising taxes (that's not a priority--candidly mentioning that the spending driving taxation requires some analysis)?

I'm sorry but that is all I saw before somebody changed the channel (I did not possess the control --"run"-- the TV Friday night). I'm usually out-voted anyway and so I try to get them out the door at every opportunity. Bah.

New Blog and Crows Nest Lite

I will probably be adding this one to the Poliblog. It looks to be regularly irregular.

You gotta love how Doc B rings up another one...kashing!

Almost forgot, Howard and Lyle (most recent post here) should be interested in my most recent efforts by way of deferential review under AEDPA (my last post). Howard first noticed the Irons case, and Lyle wrote it up last year in May and followed that up with some more good stuff.

Deference is Hot

These are interesting because "deferential review" is one hot potato:

A. The petition for cert (pending, earlier post) in Varner v. Thomas (3d Circuit) presented these questions:

1. Where counsel’s action at trial is objectively reasonable, may the conviction nonetheless be reversed on the ground that counsel’s subjective thought process is found deficient?
(Answered in the affirmative by the United States Court of Appeals for the Third Circuit, in conflict with other circuits.)

2. Where a state court has clearly adjudicated the merits of an ineffective assistance of counsel claim, may a federal court avoid AEDPA deference and invoke de novo review as to any aspect of the claim that, in the federal court’s view, has not adequately been addressed in the state court’s legal analysis?

(Answered in the affirmative by the United States Court of Appeals for the Third Circuit.)

REASONS FOR GRANTING THE WRIT (verbatim)

I. The Circuits have split in constructing “objective” and “subjective” elements of the Strickland test. This Court should grant certiorari to make clear that an attorney’s subjective thought processes cannot trump an objectively reasonable rationale for his conduct.

II. This Court’s decisions in Weeks v. Angelone and Wiggins v. Smith have led to confusion concerning the nature of “deference” on habeas review. The Court should grant certiorari to make clear that review under § 2254(d) of the habeas act is of the state court’s ruling, not its reasoning.

The number of cases affected by this circuit conflict is unusually high, because ineffective assistance is perhaps the most frequently litigated issue in the field of criminal law. The impact is especially significant in federal habeas review of state convictions, where the subjective/ objective distinction affects application of all the special rules that have been created to accommodate federalism concerns: deference, evidentiary hearings, procedural default, and exhaustion. Even aside from such procedural matters, the difference between a subjective and an objective analysis of ineffectiveness claims is often outcome-determinative.

B. Eddleman v. McKee, No. 05-1493 (6th Cir. 12/14/2006) (6th Cir., 2006)
presents the question of what type of deference is owed on collateral review to a state court's harmless-error determination. David Eddleman was convicted of second-degree murder and a firearm offense in a Michigan state court. On direct review, the Michigan Court of Appeals affirmed his conviction, concluding that the trial court erred in admitting his coerced confession but that the error was harmless. Eddleman petitioned for a writ of habeas corpus in federal court. The district court granted the writ, and warden Ken McKee appealed.

Affirmed: holding "that, when a state court has found an error to be harmless, we should ask on collateral review whether the state court's harmless-error decision was contrary to, or an unreasonable application of, the clearly established federal rule that a trial error is harmless only if it is harmless beyond a reasonable doubt. Applying this standard of review to the case at hand, we hold that the Michigan Court of Appeals's harmless-error determination was an unreasonable application of the Supreme Court's decisions Chapman v. California, 386 U.S. 18 (1967), and Arizona v. Fulminante, 499 U.S. 279 (1991). "

C. Frantz v. Hazey, No. 05-16024 (9th Cir. 1/5/2007) (9th Cir., 2007)
Ordered that parties brief the following issues:
(1) (a) When a state court utilizes a legal test contrary to that endorsed by the Supreme Court, may we affirm the denial of federal habeas relief if the ultimate decision of the state court (but not its reasoning) is consistent with precedent of the Supreme Court? See Cooper-Smith v. Palmateer, 397 F.3d 1236 (9th Cir. 2005) (affirming denial of federal habeas relief where de novo review of an ineffective assistance of counsel claim showed that the conduct did not rise to the level of a constitutional violation); Williams v. Taylor, 529 U.S. 362, 406 (2000) ("A state-court decision will also be contrary to this Court's clearly established precedent if the state court . . . arrives at a result different from our precedent."); Hernandez v. Small, 282 F.3d 1132, 1140 (9th Cir. 2002) ("[T]he intricacies of the state court's analysis need not concern us; what matters is whether the decision the court reached was contrary to controlling federal law.").
(b) Or, is our review under the "contrary to" prong of 28 U.S.C. § 2254(d)(1) confined to the reasoning employed by the state court, necessitating a grant of federal habeas relief when the state court utilized reasoning contrary to precedent of the Supreme Court? See Van Lynn v. Farmon, 347 F.3d 735, 741 (9th Cir. 2003) ("[A] federal court may not avoid granting habeas relief by positing an alternative reason for the state court's decision that might have enabled the state court to reach the same result, where the record reveals that the state court did not base its decision on that alternative reason."); Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (noting that a state court need not even be aware of the Supreme Court's cases "so long as neither the reasoning nor the result of the state-court decision contradicts them").
(2) Does petitioner's claim amount to structural error under McKaskle v. Wiggins, 465 U.S. 168 (1984)? END

These also looked interesting:

Brewer v. Quarterman, No. 05-70056 (5th. Cir. 12/29/2006) (COA issues, IAC)

Wright v. Vaughn, No. 04-3457 (3rd Cir. 12/26/2006) (IAC fail to call witness)

Anderson v. Benik, No. 05-2323 (7th Cir. 12/20/2006)(exhaustion and proc default)

If not mistaken the Fifth Circuit has not been issuing many published decisions recently. I guess Nelson kept them pretty busy.

Ready to Rumble?

Here, is the headline of the day (Discourse dot net on tip from Progressive Law Blog aka Prolawblogs). A Demonstration, Miami for Peace is sponsoring this action with Global Exchange, CODEPINK Women for Peace, United for Peace and Justice, the Bill of Rights Defense Committee, Veterans for Peace South Florida, Miami Chapter of Amnesty International and many others.

This is a close second, S. 223. A bill to require Senate candidates to file designations, statements, and reports in electronic form; to the Committee on Rules and Administration (from Votelaw, which I will be adding to the "roll" here or on the Poliblog).

Additional Curiosities Related to "Criminal Politics":

"Sexual politics" means a lot of things in Washington, even how men and women relate to each other, defining notions about femininity and masculinity. For better or for worse, as in the marriage vows. In Washington "sexual politics" is usually more about power than sex. The Republicans are the Daddy Party, the Democrats the Mommy Party. But the stereotypes are changing right before our eyes, and smart pols will take due notice now because public expectations and psychological perceptions will shape their future. Suzanne Fields/
WashingtonTimes

Not Ship-Shape at State, Sherlock (WPost)

Lefty v Righty Churches: Do Donors Affect or Reflect the Flock's Thinking? (WPost)

UPDATE: I have been struggling for a label for these trendy, newsy, dailies that I post, having previously tried "currents" "trends" and variations thereof. NOW I HAVE IT. Henceforth, these will be THE CROW'S NEST. Apologies but I could not resist a reference here to "running point" which is something I've been asked to do and Army (and football) guys should appreciate. Contrast this with "on point" which the big legal guns know all about.

Bush's War

Maybe not criminal, but close, to send a number of troops into Iraq that by most accounts is not enough to make a difference.

Sen. Edwards is right, the Administration has it exactly backwards: the political solution is the only way. The military "solution" is to recognize that American troops in Iraq are the problem and can't fix it.

To say that there is a "democracy" in Iraq is a complete fantasy. Who wrote that speech?

Today in SCOTUS

The opinion of the Court in MedImmune v. Genentech can now be found here. The syllabus is here. Justice Thomas's dissent is here.

The decision in U.S. v. Resendiz-Ponce can be found here. The syllabus is here. Justice Scalia's dissent is here.

The Court's ruling in Burton v. Stewart can be found here. (hat tip SCOTUSblog). And here, is Prof. Berman's reaction and some interesting comments concerning DIG's. Scot Henson at Grits for Breakfast (blog) might call this another "bench slap".

Here is my humble analysis of Burton, 549 U.S. ___ (2007) (dismissed for lack of jurisdiction, on which issue the state had lost challenges below).

The Procedural Bar is a Bleeping (no laughing matter): The Court sua sponte reviews a question of jurisdiction:

In a nutshell, Burton’s petition raised a question that was not properly "exhausted," and was not "excused" from the requirement (because it was presumably known to him that he might have a legitimate challenge after his sentence became final). As such it was not authorized explicitly as a “second or successive“ petition as required. But requiring authorization to proceed with a second petition presumes that one knows of the status as such.

The problem is that in 1998 when B proceeded with the first petition Apprendi had not been decided so he could not have known of the grounds under which he might challenge his sentence. Only after Apprendi (2000) was decided did he raise the challenge (in the 2002 petition) alleging violation of Apprendi. Is it so clear and obvious that a challenge the basis of which has not yet been “created” should have been foreseen, and therefore could not be excused for not having been foreseen?

The following language from Burton might seem dispositive at first glance (however, the 1998 petition was not a “mixed petition” because unexhausted grounds were not stated and the option to withdraw was not available or sensible; B proceeded with the claims he had at the time. Only after Apprendi “intervened” was he able to raise the sentencing claim under that ruling, and Blakely, posed in the 2002 petition):

That court’s ruling that Burton had a “legitimate excuse,” however, is inconsistent with the precise practice we have explained governs in circumstances such as Burton’s.
The plurality opinion in Rose v. Lundy, 455 U. S. 509, 520.522 (1982), stated that district courts should dismiss “mixed petitions“ --those with exhausted and unexhausted claims--and that petitioners with such petitions have two options. They may withdraw a mixed petition, exhaust the remaining claims, and return to district court with a fully exhausted petition. We have held that in such circumstances the later filed petition would not be “second or successive.” Slack v. McDaniel, 529 U. S. 473, 485.486 (2000). Alternatively, prisoners filing mixed petitions may proceed with only the exhausted claims, but doing so risks subjecting later petitions that raise new claims to rigorous procedural obstacles.

UPDATE: Given that a 28 U.S.C. 2244(b)(3) order was not sought (click for stat.) the Court's decision seems justified, if formalistic. This brings me back around to the question, what if you didn't think you were filing a "second or successive"? I know, this is weak, but only if you are a lawyer.

There just seems something wacky about having to ask for a pre-determination in order to file under a new rule in order to invoke that new rule for relief. Isn't it usually clear from the face of a petition that you are invoking a new rule? So what is the point of erecting these "rigorous procedural obstacles"? Surely this is not "justice" but injustice particularly to those who are not lawyers. Thanks Kent, for your response over at SL and P

Telephone Injustice III

NEW YORK---Over 50 individuals, 38 organizations and 15 elected officials have moved for permission to file "friend of the court" briefs with the Court of Appeals in support of the pending appeal by the friends, family members, and attorneys of New York State Prisoners. CCR also filed the reply brief in the case, Walton v. New York State Department of Correctional Services, completing the parties' briefing schedule before the high court.

The Center for Constitutional Rights is representing the plaintiffs."This brings us one step closer to ending the unlawful kickback contract between MCI/Verizon and the Department of Correctional Services", CCR attorney Rachel Meerpol said. "The amicus briefs filed show that support for ending the contract and creating just rates for prison families is broad and deep: we hope that the court will take notice, but also that the new Governor will do the right thing and put a stop to this unlegislated, backdoor tax as one of his first priorities."

The lawsuit seeks an order prohibiting the State and MCI/Verizon from charging exorbitant rates to the family members of prisoners to finance a 57.5% kick back to the State. MCI is currently charging these family members a 630% markup over regular long distance consumer rates to receive a collect call from their loved ones, the only method of calling from a DOCS institution.Judge George Ceresia of the Supreme Court of New York, Albany County , dismissed the suit last fall, citing issues of timeliness, and the Appellate Division affirmed the decision. In July 2006, the Court of Appeals agreed to hear the case. Oral argument is scheduled for Jan. 9.

Betsy Gotbaum, Public Advocate for the City of New York has filed a proposed brief on behalf of herself and 14 members of the New York City Council, including Gale Brewer, Yvette D. Clarke, Bill De Blasio, James Gennaro, Robert Jackson, Letitia James, G. Oliver Koppell, Miguel Martinez, Hiram Monserrate, Annabel Palma, Diana Reyna, Larry B. Seabrook, Helen Sears and Kendall Stewart supporting the appeal in light of the disproportionate impact the State's policy has on New York City residents. The brief focuses on the importance of prisoners maintaining contact with their loved ones to advance the rights of children growing up in New York with an incarcerated parent and to increase safety and decrease crime in New York City neighborhoods.

The Innocence Project has moved to file a friend of the court brief on behalf of itself and the Incarcerated Mothers Program documenting the compelling situation of individuals falsely convicted of crimes, and the importance that phone calls to their loved ones played, and continues to play, in their ability to reconnect to their community upon their exoneration. The brief also analyzes the myriad constitutional deficiencies of the current system. --The Law firm of Kramer Levin Naftalis & Frankel has written a proposed brief on behalf of The Sentencing Project, the NAACP Legal Defense and Educational Fund, the National Association of Criminal Defense Lawyers, the New York State Association of Criminal Defense Lawyers, the Women's Prison Association, the Legal Action Center, the Fortune Society, the Center for Community Alternatives, Citizens United for Rehabilitation of Errants, the Justice Policy Institute, the Southern Tier Advocacy & Mitigation Project, Equal Justice Initiative of Alabama, the Parolee Human Rights Project of the New York City AIDS Housing Network, AdvoCare, Inc., Voice of the Ex-Offender, the Community HIV/AIDS Mobilization Project, and the Real Cost of Prisons Project. The brief traces established social science research completed in the last century unequivocally establishing the critical role family and community ties plays in the rehabilitation and re-entry of former prisoners.-- Legal Aid Society has requested leave to submit a brief on behalf of itself, The Center for Law and Social Justice and the Bronx Defenders, all organizations that are forced to pay the high rates of calls from New York State Prisoners in the course of their representation of advocacy efforts. Legal Aid's brief discusses the adverse impact the high rates has on provision of legal services and urges the Court to correct this continuing injustice.--Legal Services for Prisoners with Children, has requested leave to submit a brief on behalf of 16 organizations devoted to providing services and support for the family members of prisoners and prisoners themselves, including Bridge Street Prison Ministry Outreach, Bronx HIV Care Network, Citizens for Restorative Justice, Coalition of Families of New York State Lifers, Coalition for Parole Restoration, Ebenezer House of Deliverance Prison Ministry Outreach, Justice Now, Hour Children, New York Inmate Families, NewYorkPrisoners.com, Parents in Action, Prison Action Network, Prison Families Community Forum, Prison Families of New York, Inc., and Take Higher Ground, Inc. Over 50 family members, friends, and ministers of prisoners have also signed on. The brief includes accounts of the impact of the high cost of telephone rates on the loved ones of prisoners.

The full text of each brief is available on CCR's website at www.ccr-ny.org

Source: North Country Gazette, December 28, 2006 and
lauren melodia center for constitutional rights 666 broadway 7th floor ny ny 10012 212.614.6481

Politics of Crime

This qualifies for politics of crime (even if it's not habeas stuff which is the more keenly honed edge on this blog), as does the following item from Prof. Berman.
The President can do no wrong, except if his name was Nixon, in which case he gets pardoned, or if his name was Clinton, in which case he gets impeached. The real question:

does the issuance of the signing statement for this technical amendment simply signal the Bush Administration's unusual overreliance on signing statements — so much that they would make a statement to restate existing law even when the paragraph is just moved from one place to another — or does it hint at a previously unknown Administration's practice?*** It may be that this signing statement is nothing, and it just reveals the Administration's willingness to issue signing statements about everything. On the other hand, it may be that it hints at a program allowing the government to open postal mail under the claimed authority of the AUMF.

More by Orin Kerr here.

Prof. Berman lays this one out in the flats (not the ones out west, near where those Casinos are):

The over/under on tonight's big game right now is set at 46. Were I a betting man, I would take the over. But if 46 was set as an over/under for the number of executions in the United States in 2007, I probably would take the under. *** But, as spotlighted by ODPI in posts here and here, the death penalty landscape is probably more impacted by evolving political realities than legal issues. If elected officials (including state judges) discover they can disrupt marches to death chambers without serious political fall-out, there could be amazingly few executions (except perhaps in Texas) throughout 2007.

Who can take this one in for the TD?

Nothing good can come of this, then too I could be wrong. Scot Henson just reminded me of this one (the Texas Panetti SCOTUS cert), from Prof. Berman. Here Scot spotlights another innocence issue:

Whitley quotes Vanessa Potkin, chief counsel of The Innocence Project at Cardozo Law School, who points out that "no other county in the country beats Dallas. It’s a county that beats out most states in the country. It’s an indication of a system that needs reform.""So why is Dallas having such staggering numbers of the innocent put in prison?," queries Whitley. "One clue: Potkin says that almost all of those exonerated were convicted with eyewitness testimony that proved to be wrong. 'And these cases are recent, not from the ’80s,' she says."

No wonder so many innocent people are sitting in Texas prisons. The eyewitnesses are "wrong"? That sounds more than just a little "feeshy to mee." Scot assumes that the "eyewitnesses" are not subject to coercion (there are some things that best practices cannot cure) whereas IMO coercion is precisely where, and how, Texas is going wrong in obtaining its convictions.

Lot more goodies here on alternatives to prison, from Scot,

and here, victim advocates oppose "tuffer" penalties (truly amazing, if it did not make so much sense). My earlier post about hearts and heads here.

Playing Catch (up)

One of my picks from the SCOTUSblog list of Petitions to watch: (IAC/Deference)
Varner v. Thomas (3d Circuit) is here (pdf).

Certs Granted list from Friday here, (again, from SCOTUSblog and Lyle Denniston)

January Hearings List is here (guess from where?)

PS. I started a few new blogs that you can easily link to at top right, and will be moving some of the cool links that are more appropriately placed elsewhere to these new places, soon!

Poliblog is for Politics and Politicking.

The Brunswick is for Entertaining Local Stuff and Conservation (and the great American past-time, the big show, a.k.a. that other religion, "ball").

Tax Advisor is ... (your wild guess).

Themes and Currents

Quickly, before this gets too old:

This Should Be Interesting, on Grandparents' rights.

"First Amendment Limits on Regulating Judicial Campaigns" is here, (pretty technical, but important), and

Here is Ed Whelan on the Ford Funeral and Justice ("got-no-religion") Stevens. (Hat tip: Howard Bashman).

A quote I liked:

Before embarking on any escalation, the President should seek the assent of Congress and the American people. If he will not, the American people should understand that Congress has the power to stop him.

by Neil Kinkopf [Associate Professor of Law at Georgia State University]. Kinkopf served as a constitutional advisor to the Clinton Administration from 1993-1997 in the Department of Justice’s Office of Legal Counsel. (thanks to ACS blog).

"There Goes the Neighborhood? Estimates of Impact of Crime Risk on Property values from Megan's Laws." This one should be interesting.

So CJ Rehnquist was a "druggie" (is anybody really surprised?). Tony Mauro/Lawdotcom

Strictly Sentencing

A good summary of Booker, Rita, Claiborne: (Martin Magnuson/American Constitution Society for Law and Policy (ACS) Blog)

In its Booker opinion, the Supreme Court held that the Guidelines are unconstitutional, but are nonetheless “advisory.” It further held that sentences given by federal judges would be reviewed for unreasonableness.

In the two years since Booker was handed down, the federal sentencing scheme is largely as it was before; judges routinely sentence within the Guidelines, despite their non-binding nature. Since Booker, several Circuit Courts have even held that a sentence with the Guidelines is presumptively reasonable.

This raises the question of whether a presumption of reasonableness for sentences within the Guidelines range is consistent with Booker. The Supreme Court will explore that issue on February 20, when it hears oral arguments in Rita and Claiborne. In Rita, the question presented is whether a sentence within the Guidelines range is presumptively reasonable. In Claiborne, the Supreme Court will address whether a sentence below the Guidelines range is presumptively unreasonable.

These two cases may be among the most closely-watched criminal cases the Supreme Court will hear this term, particularly in light of recent changes in its composition. Of the five justices who held that the Guidelines are advisory, Justice O’Connor and Chief Justice Rehnquist are no longer on the Court.

Court briefs in the Rita and Claiborne cases are available through the New York Council of Defense Lawyers. Prof. Doug Berman has written extensively on Rita and Claiborne and his blog contains a wealth of information on the issue.

Interesting Contrasts and Currents

Saddam Hussein, “The Butcher of Baghdad,” was executed just before dawn 12/30/06 local, at 10 pm EST (that is 12/29 EST). We can depose a foreign tyrant but cannot keep him from being executed. So sadly so much power is so wasted. I have no doubt that no-one ever deserved to be executed more. However, to my mind, life without parole is the much greater deterrent, is the greater punishment, and teaches the greater moral lesson.

A New Jersey commission has voted 12-1 to abolish the death penalty in that state. Just as I thought, Prof. Berman has this excellent "first cut" take. Karl Keys at Capital Defense Weekly has still more on that, a little piqued, or at least disputatious, re Doug's use of the term "sophomoric" or something like that, (college student quality of the report--maybe the students are REALLY VERY HIGH QUALITY -- even though he is "underwhelmed") here. And Scott Henson does his usual excellent job here reviewing Texas developments in 2006.

Now, NPR is reporting that the executioners taunted on the gallows?! Apparently, despite the searching by American troops to prevent this, one of the five executioners already present (according to the report) must have taped this on a cellphone.

President Ford's state funeral began with much fanfare. America buries a great President. Ford taped an interview that was only to be released upon his death in which he described how big a mistake he thought it was to precipitously invade Iraq (paraphrasing): we must not use force unnecessarily, even to further spread democracy, unless our own national interests are clearly hinging on the immediate use of that force. Tuesday, January 2 was designated a national day of mourning.

Whoops! Did he really mean to inhale at that particular point in time? Nah. Must'a been just an accident, breathing in like that. (Thanks Jeralyn). For more on this SCOOP see here, Talk Left.

And the PD Awards are almost over now. I really like how Greg has that "feedroll" (with me in there heading up the "Z"s, and Arbitrary doing the "A"s). Only four blogs linking to me (so far) but all quality, I'm telling you.