Backing Away from the Briny Cesspool of Democratic Tyranny

From Ohio, a small legal victory. Supreme Court rules change to sex offender registration laws "required" by AWA -- the big bad Bush /Gonzo conspiracy to create a federal sex offender bureaucracy -- won't stand. Here is a link to Prof Berman's blog on it. The opinion of the Ohio Supreme Court is here.

Here is how it seems to work. Courts convict under legislated criminal law which provides for consequences of the conviction. The legislature then demands that it is within its power to take that conviction and provide for additional and other consequences without limitation. It then sits back and waits for a legal challenge by the affected citizens. The courts are then and only then compelled to decide whether the legislature has indeed exceeded its powers. Meanwhile, lives are ruined, families destroyed, costs mount, vigilantes and bigots, haters, hostile elements and ignoramuses lick their chops, and public safety suffers.

Can this be the America we have chosen to defend?

SMART is not so smart at making you safer

All RECENT studies taking up the question whether sex offender registries are effective at what they purport to achieve, reducing sex crimes and making us and our children safer, do not in fact accomplish this purpose. Don't take my word for it. Do the homework yourself, search my site or consult Professors Corey Young's Sex Crimes Blog, Doug Berman's Sentencing Law and Policy blogs for newsy and scholarly articles on topic. Also visit SOSEN's website, now posting news and primary sources of information every day. You may wish to conveniently locate them on my sidebar.

Nonetheless here is a press release from SMART announcing that Ohio and the Umatilla Tribe are the first two jurisdictions to implement the SORNA (sex offender registration act passed under Pres. Bush) under the Adam Walsh Act.

Good Reference Commentary

Letsgetreal has posted comments on my last post concerning the Adam Walsh Act and related concerns.

Don't want to come into contact with a registered sex offender?

Use the website to locate them more easily. But don't use the sidewalks, they don't wear the yellow stars, or the red A, just yet.

At the same time, more and more serious studies are showing that registration such as this is a waste of time and money, tax payer money, to be more precise.

I cannot help commenting on this post by Corey at SexCrimes. The new and improved federal sex offender website is getting a ton of hits every day, apparently. According to the press release, posted by Mr. Young on his blog, the purpose is now not the protection of our children, but to protect "communities from coming into contact with" the target population. Here's Assistant AG Sedgewick:

"NSOPW provides the public with information to protect themselves, their families and their communities from coming into contact with registered sex offenders," said Jeffrey L. Sedgwick, Assistant Attorney General for OJP.

AWA Cruel and Unusual Judge Rules

Doc Berman notes this decision, in his words:

Thanks to this post at Sex Crimes, I have learned of this recent federal district court opinion which concludes "that a 30-year mandatory minimum sentence for [the defendant], under the specific facts of his case, is so grossly disproportionate to his crime as to constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution." US v. Farley, NO. 1:07-CR-196-BBM, slip op. at 8 (N.D. GA. Sept. 2, 2008).

Federalism Run Amok

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

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.