Bad Trail Poetry

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

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

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

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

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

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

Iglittarati

AND ON A LIGHTER NOTE:

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

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

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

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

AND ON HABEAS: (Thanks Howard)

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

And,

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

And,

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

Fantasy

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

Labels and Such: Liberal, Frontrunner

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

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

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

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

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

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

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

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

Here's Eric:

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

But this is the part I like:

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

Washington Business As Usual

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

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

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

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

Comment on AWA

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

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

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

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

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

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

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

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

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

On Theory

Here is a good NYT article on theory.

The Great Writ Debunked

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

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

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

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

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

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

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

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

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

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

More Larnin' If You Please

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

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

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

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

Criminal Defense (Offense) in Texas?

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

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

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

Numbers Guy and Recidivism Update

Here's Corey over at Sex Crimes

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

Facts, what are those?

OHHH NOOOO ! --- not global warming?

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

One More Arrow in the DP Abolition Quiver

A few choice excerpts:

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

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

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

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

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

Toobin

Ohio and AWA

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

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

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

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

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

March Supreme Court Calendar

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

Campaign Trail 2008

UPDATE: Literally, this is about buying elections. We all know that the media influences people. This is not about free speech. All we want to know is WHOM is purchasing the votes influenced by these movies, nothing more nothing less. Don't waste my Court's time with this crap.

Here is the way the appeal describes the Clinton movie: “It includes interviews with numerous individuals and many scenes of Senator Clinton at public appearances. It is about 90 minutes in length. It does not expressly advocate Senate Clinton’s election or defeat, but it discusses her Senate record, her White House record during President Bill Clinton’s presidency, and her presidential bid.”

So it is a electioneering communication prohibited during primaries and general elections? Or not? It does/does not advocate for or against a particular candidate? Coming soon: Obama The Movie.

What if they just made something called Democrats The Movie? HT: Scotusblog.

Here is an additional campaign related post: HTM

This too I like. It is class. Even with the almost detectable political bias it makes sense. From the Doc:

Obama could (and should) talk not about "Libby justice," but rather about "Rich justice," which could and should be a sly reference to Bill Clinton's ugly pardon of Marc Rich. Obama could (and should) highlight that upper-middle-class drug dealers are treated as heroes in TV shows, while poor drug dealers are often subject to harsh mandatory minimum sentences. Obama could (and should) highlight that college graduates are far less likely to commit crimes than high-school dropouts and thus investing resources in education for the disadvantaged is likely the most cost-effective way to fight crime. Obama could (and should) highlight that much of the money society need for broader health care coverage is now being spent incarcerating low-level non-violent offenders. Obama could (and should) highlight that our criminal justice system generally protects individuals with lots of money (and even perhaps mention OJ Simpson in this discussion), but generally fails to protect those who a less economically advantaged. Obama could (and should) highlight that California's budget crisis is so severe (and will require cuts in important services to the law abiding) in part because it has perhaps the most dysfunctional criminal justice system in the nation.

More Sosen News from Ohio

Doc Berman is on top of the Sosen related news. Here is how the recent post begins, with links to additional reference sources. Surprisingly, or not so surprisingly the costs are beginning to escalate and AWA is not looking so good after all. You would think the legislatures have better things to do, and taxpayers would want better laws. Similar to the national ID program imposed on the states, this one isn't worth the candle.

I always thought AWA was just another way to kick felons after they are already down. Wouldn't employers just love to have another source of cheap unemployable "cash" labor? And we could build bigger bridges for housing the homeless ones too.

But could we at least add kitchens and toilets this time?

Both Sex Crimes and Sex Offender Issues have posts spotlighting what a mess the new federal Adam Walsh Child Protection and Safety Act is starting to make in the states. This strong article from Stateline.org, headlined "Will states say 'no' to Adam Walsh Act?" provides this essential background:

Facing a 2009 deadline to comply with a controversial federal law intended to crack down on sex offenders, states are nearing a crossroads. They either must fall in line with the statute or ignore it and absorb the penalty — a 10-percent cut to their share of funds in a congressional grant program used to fight crime.

Sosen Related Blog

Here's a new blog that promises to be of interest to ConLaw specialists, psychologists, legislators and others, called "There is Life After Sexual Abuse"


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

A Progressive Digression

A kindly old demogogue is what popped to mind hearing Sen. McCain telling us on CNN that Iraq is the "number one battleground in the war against Al Qaeda". No fire and brimstone, just smooth talk. Not quite Hitlerian, but worse.

And then I thought about the fact that we could have rebuilt the entire nation's infrastructure with the money we have thrown into Iraq, which I have viewed as a disasterous distraction in the international efforts to counter, ward off, contain, destroy, etc., Bin Laden and terrorism. Bring those boys home and figure out a better way. We can rebuild our country and keep it safe as well without playing in the sandbox in this destructive fashion.

UPDATE: Just expanding on the rebuilding idea, that means lots of money spent right here, putting contractors to work all across the country. Timely, considering the tanking economy and structural issue we seem to be avoiding (loss of jobs overseas). This "war" has been draining the economy, and America, not keeping it safe and strong.

We should also increase domestic energy initiatives, etc. etc. and find ways to earn/spend at home, not be quite so quick to spending our dollars overseas IN A WAY THAT UNDERCUTS AMERICAN JOBS. I don't mind imports, but make the field level, don't allow American workers to sink to the levels in Bangladesh or China.

Secure our borders by hurting those who hire the illegal worker. If hiring stops the influx will end. Place the responsibility right where it counts.

Law Struck Down for Disparate Treatment

Here, Padilla sentence is discussed by AP.

Doc Berman straight and unadulterated: (here is the comment to Doc's post, which I found interesting) Thanks to this post at DotD, I see that divided panel of the Third Circuit in Doe v. Pennsylvania Board of Probation, No. 05-4200 (3d Cir. Jan. 23, 2008) (available here), has struck down part of Pennsylvania's sex offender notification statute because its "disparate treatment of out-of-state offenders violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution."

A brief scan of the opinions in Doe suggests that Con Law folks ought to be interested in this ruling. For example, consider this final footnote from the majority's opinion:

An undercurrent to our dissenting colleague’s argument is that under rational basis review, the government always wins. That, quite simply, cannot be so. In fact, were that the case, our review of issues under this standard would be equivalent to no review at all. A necessary corollary to and implication of rationality as a test is that there will be situations where proffered reasons are not rational. That precise situation is graphically presented here. Put simply, every reason proffered by the Commonwealth for its disparate treatment of Doe in this case is meritless, and hence irrational. No reason the Commonwealth offers for disparate treatment can be considered “rational” because each is contrary to the promises it made to the other signatories when it signed-on to the Compact. Indeed, in the several instances, the stated purposes of the Interstate Compact itself contradict what the Commonwealth claims are its reasons for the disparate treatment it gives to in-state and out-of-state offenders.

HTM

I'm still not sure where the connection to the criminal side of my blog is with this, but clearly we have a political connection to this ad for a new election year movie. Transparency is always a positive good worth paying for.

UPDATE: (this changes everything, I'm not out to promote the movie; I would never say anything bad about my friend Hilary) HT: The Hill

A U.S. District Court joined the Federal Election Commission (FEC) in a ruling Tuesday, finding that Citizens United, the group behind the productions of “Hillary: The Movie,” must disclose its donors.

Citizens United planned to promote the movie, which paints an unflattering portrait of presidential candidate Sen. Hillary Rodham Clinton (D-N.Y.), with paid advertising, which both the court and the FEC said violated the Bipartisan Campaign Reform Act of 2002.

The FEC said in a release Wednesday that Citizens United had pushed the court “to block the FEC from enforcing disclosure and other provisions of campaign finance law related to the film ‘Hillary: the Movie’ and advertising intended to promote it.”

The FEC found the movie to be “electioneering communications,” which falls under the BCRA language requiring donor disclosure.

“Hillary: The Movie” features commentary from a number of pundits and politicians including Ann Coulter, former Speaker of the House Newt Gingrich and Dick Morris, a former Clinton adviser and currently a columnist for The Hill.

Court to Brave Certain and Uncertain Unenumerated (Penumbrated) Rights

here:

I. Issues that Can Be Avoided

One issue that the Court will be able to duck, because it isn’t present here, involves the incorporation of the Second Amendment into the Fourteenth. Because the District of Columbia is not a state, but part of the federal government, no incorporation issue appears. Of course, that also means that, regardless of the decision in Heller, the incorporation question will remain for future cases.

In addition, the often-discussed question of what sort of weapons fall within Second Amendment protection should be easy for the Court to avoid should it choose to do so. The Heller plaintiffs are not asking for the right to possess machine guns, bazookas, or nuclear weapons, but ordinary firearms whose inclusion within any individual-rights view of the Second Amendment is unlikely to raise difficult questions.

The Heller case may also allow the Court to avoid, for the moment, any line drawing regarding the extent to which state or federal laws involving licensing or registration of firearms, or requiring licenses for public carrying of firearms, are permissible under an individual-rights view of the Second Amendment. The District of Columbia gun ban under question is so draco­nian that it can plausibly stand only if the Court finds no individual right to arms at all.

II. Issues that Cannot (Easily) Be Avoided

Other issues will require a decision. The most significant is the question whether the Second Amendment protects some sort of individual right to own guns, or merely a “collective right” of states to arm militias. That question is squarely presented in Heller, as is recognized by the Court’s own statement of the issue:

Whether the following provisions — D.C. Code secs. 7‑2502.02(a)(4), 22‑4504(a), and 7‑2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state‑regulated militia, but who wish to keep handguns and other firearms for private use in their homes.

Some observers read the Court’s statement of the issue to presuppose the existence of some sort of individual right,[4] but that seems less clear to us. But the Court can hardly avoid answering this question in deciding the case—or, at least, it cannot do so without contortions that would have made it more politic to simply deny the petition for certiorari.

Even if the Court concludes that the Second Amendment protects an individual right, it must then articulate a standard of review to, in Richard Fallon’s usage, “implement” the Amendment[5] by articulating “decision rules” to guide it and lower courts in future cases.[6] The Court could thus rec­ognize an individual right while prescribing a deferential standard of review that permits anything short of outright prohibition[7]—think Kelo’s review of “public use.”[8] Even if the Court were to announce a more rigorous standard, there is always the possibility that it will be applied in a relaxed fashion. Pace Gerry Gunther, “strict in theory” is not necessarily “fatal in fact.”[9]

Another HT to How Appealing

Politics and the Court

Will populist sounding winds of change steamroll the Conservative Court or will the Court steamroll the Populist? The thesis is explored here: (HT, How Appealing)

In keeping with the general rule that political change at the Court comes slowly indeed, the current rightward tilt of the Court is likely to last for the foreseeable future. Even if a Democrat wins election in 2008, it is unlikely that he or she will get to replace any of the conservative justices, thus tipping the Court in a more liberal direction. The two justices most likely to retire in the next four years are Stevens and Ginsburg, both members of the Court's more liberal wing. Thus, if a liberal appoints their successor, it will only preserve the status quo.

At the same time, however, the country's politics may well be on the verge of a sea-change. On the Democratic side, both Barack Obama and John Edwards are running on platforms centrally focused on the idea of bringing dramatic reform to our political system and to greater accountability for both government and business. Although perhaps less committed to these issues, Hillary Clinton, too, is likely to adopt these themes if she becomes the Democratic nominee.

All told, it would not be surprising if 2008 saw the election of a Democratic president ushered in on a somewhat populist reform platform, who will also enter office with substantial Democratic majorities in both houses of Congress. And if this happens, then the resulting reform coalition will run smack into an increasingly conservative Supreme Court whose decisions already betray deep hostility to the very kinds of reform such a reform coalition would favor.

The current Supreme Court, for example, is extremely hostile to campaign finance reform and has made it much tougher to hold businesses accountable for their wrongdoing in court. Yet campaign finance reform and greater regulation of business (including through lawsuits) are high on the reform agenda.

It is too soon, of course, to make any predictions about a titanic clash between the Court and the elected branches. But a few years ago, such a clash seemed unimaginable. It is not so now.

AND ALSO HERE WHERE WE SEE THIS SHARP REBUTTAL:

During arguments last week on the nation's strictest voter ID law, liberal-leaning Justice David Souter abandoned his usual Yankee reticence and became downright angry when more conservative justices suggested they might choke off a whole class of voter lawsuits. The question is whether groups � here the Indiana Democratic Party and American Civil Liberties Union � can broadly attack an allegedly discriminatory law before it takes effect, without waiting until individuals have been affected.

If the majority adopts such a restriction, Souter declared, "there can never be a (broad-based) challenge to a registration requirement, a voter ID requirement."

"The horse is going to be out of the barn," Justice Ruth Bader Ginsburg added. "They will have the election, and … the result will be skewed in favor of the opposite party."

AND REMEMBER how the previous term ended:

The heated rhetoric on the bench last term carried over to opinions at the end of the 2006-07 session when the conservative majority dominated and the liberals were relegated to angry dissents. The court curtailed abortion rights, limited schools' racial integration plans and carved out another exception for student speech rights.

"It is not often in the law that so few have so quickly changed so much," Breyer said, delivering a dissenting opinion.

BUT this is what may be coming around the curve:

After arguments in December in that case, a majority including Kennedy appeared ready to rule that the detainees can protest their confinement in U.S. courts.

In other recent oral arguments, Kennedy appeared more likely to go to the right. In the voter ID dispute, he characterized the law's burden on potential voters as "a minor inconvenience."

"This case demonstrated again how deeply divided the court is," says Steven Shapiro, the ACLU's legal director, after attending arguments in the Indiana case. "The court was obviously quite aggressive in its questioning."

When justices accepted the voting rights and lethal-injection cases for review, it looked like a positive development for civil rights groups and death penalty foes. In the former, the justices agreed to review Indiana's law requiring people to present a government-issue photo ID before voting. Challengers said the law particularly hurts poor and minority voters. In the latter case, when the justices took appeals from two Kentucky death row prisoners, they prompted a temporary halt on executions.

The oral arguments in the cases, however, indicated that eventual rulings might be more to conservatives' liking. A majority did not seem ready to re-evaluate lethal injections. Instead, some justices seemed poised to reject the claim that the lethal-injection mix is "cruel and unusual punishment," and some seemed eager to end the moratorium on executions.

"I'm very reluctant to send (the case) back to the trial court so we can have a nationwide cessation of all executions," Scalia said.

In an Internet child pornography case heard in October, the justices appeared amenable to upholding an Internet anti-porn law for the first time in a decade.

And then, of course, there is this:

the initial wave of reaction to the suit treated Padilla not as the little guy, but as the strong-arming giant. Or if not Padilla himself, then the human rights clinic at Yale Law School—which filed suit on his behalf. Law professor and blogger Jonathan Turley called the filing "highly questionable." Law professor and blogger Orin Kerr, finding Yale's involvement in the suit "particularly interesting" and noting that Yoo is a Yale alumnus, wrote, "I don't think Yale Law School ends up looking very good on either side of this one." And then the Wall Street Journal really piled on, calling the suit a "political stunt," "nasty business," and snidely speculating that Yale Law School Dean Harold Koh must be "proud of suing an alumnus [Yoo] on behalf of a terrorist."

Update: And this on same topic:

The past week has included a lot of blog action about the lawsuit Jose Padilla (and his mother) filed against John Yoo – for example here and here and here and here and here and here.

And this:

Jan. 18 (Bloomberg) -- The U.S. Supreme Court gave us more evidence earlier this week of what people in the stock market already knew: This is no time to be an investor.

People who buy shares in companies that defraud them can't sue those who may have helped in an illegal deed, the court said. Money lost because Smith Co. and Jones Co. lent a hand while Acme Co. cooked the books? The court says tough luck unless Smith and Jones somehow led you to buy Acme's stock.

This judicial gift came via the Jan. 15 decision in Stoneridge Investment Partners LLC versus Scientific-Atlanta Inc. and Motorola Inc. Stoneridge, a Malvern, Pennsylvania, money manager, alleged that the two cable-television box-makers helped pull off an accounting fraud that let Charter Communications Inc. show more revenue than it really had. The court ruled on whether Stoneridge could sue so-called abettors, not on whether the allegations were true.

Thanks Howard, for collecting these articles in one place.

Tidbits

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

Categorically Not a Person? Sounds Like Texas!

Here, in full, is the text of the Second Amendment: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." The meaning and application of this provision comes before the Supreme Court this year in the Heller case, and I think the case may result in a number of surprising outcomes. One such outcome that surprises me comes from the US government's brief filed late last week.

As detailed in this SCOTUSblog post, through the filing of this amicus brief, the "Bush Administration urged the Supreme Court Friday night to rule that the Second Amendment protects an individual right to have a gun for private use." Though this amicus brief is full of interesting points, I was taken aback by this assertion: "the Second Amendment, properly construed, ... does not provide any protections to certain individuals, such as convicted felons, who have never been understood to be within the Amendment’s coverage." In other words, it seems that the US government is arguing that "the people" referenced in the Second Amendment's text does not include any of the millions of Americans with a felony conviction.

Notably, the Bill of Rights uses the phrase "the people" in four other Amendments (the First, Fourth, Ninth and Tenth). I have never before heard a claim that all convicted felons are categorically denied the individual rights protected by all these Amendments. The Fourth Amendment, notably, speaks of the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Supreme Court has never suggested that individuals, once convicted of a felony, thereafter cannot assert Fourth Amendment rights. (The Supreme Court has held that searches of prisoners and paroles can be reasonable even without any individualized suspicion; but such rulings are a far cry from suggesting that all convicted felons are no longer among "the people" who have rights under the Fourth Amendment.)

I find notable and telling the US government's need to take such a blunderbuss approach (pun intended) when seeking to limit the reach of Second Amendment rights. The government's brief confirms my instinct that, if an individual-right genie emerges from Heller, it may prove quite hard to get Second Amendment rights back into the regulatory bottle.

From Doug, HT SCOTUSBLOG

Sex Offender Sentencing

Good recidivism methodology analysis as well in US v. McIlrath, No. 07-1266 (7th Cir. Jan. 10, 2008) (available here), which has been described as a must-read.

A Case of Bad Law But Good Decision?

I, for one, would have favored letting the suit proceed, contrary to the majority of the federal judges in this case. They do know best on which side their bread is buttered unlike others, who have no clue, or don't care, where the dough comes from.

Oh, you didn't know? It grows on trees. By this standard we will soon have many more of the environmentally conscious on the benches but hopefully not in the sense of bench warmers.

Opinion (7-2; Jan. 8) in John R. Sand & Gravel v. United States (06-1164) is now available here. HT SCOTUSBLOG.

Criminal Matters Upcoming

Thanks to SCOTUSBLOG here are the certs granted from January 4:

Three of the six are criminal matters. How interesting!

Docket: 06-7517
Case name: Irizarry v. United States
Issue: Whether a judge must give both sides notice in advance of imposing a criminal sentence that departs from the Sentencing Guidelines.

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

__________________

Docket: 07-210
Case name: John Bridge v. Phoenix Bond & Indemnity Co., et al.
Issue: Whether plaintiffs who did not rely on but were nonetheless harmed by false statements made to third parties can establish proximate cause in a civil RICO action.

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

__________________

Docket: 07-330
Case name: Greenlaw v. United States
Issue: Whether a federal circuit court may sua sponte increase a defendant’s sentence in the absence of a cross-appeal by the government.

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

__________________

Docket: 07-343
Case name: Kennedy v. Louisiana
Issue: Whether the Eighth Amendment bar on cruel and unusual punishment prohibits capital punishment for the crime of child rape.

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

__________________

Docket: 07-411
Case name: Plains Commerce Bank v. Long Family Land & Cattle
Issue: Whether Indian tribes’ courts have authority to decide a civil lawsuit that involves business dealings between a company owned by a member of the tribe and a bank that owns land on a reservation, but itself is not owned by a tribal member.

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

__________________

Docket: 07-552
Case name: Sprint Communications Company, et al. v. APCC Services
Issue: Whether a plaintiff assigned the right to pursue a legal claim, but which stands to gain no proceeds from the outcome of the litigation, has established standing under Article III. (Disclosure: Akin Gump represents the petitioner.)

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

Not Quite Business As Usual

Via How Appealing: Yesterday's edition of The Times and Democrat of Orangeburg, South Carolina contained an article that begins, "The South Carolina Appellate Court has handed down a decision that upheld a circuit court judge's 2005 contempt ruling after a St. Matthews woman instructed the judge to kiss her derriere. Judith Law will serve extra time in jail after losing an appeal on a 2005 contempt-of-court charge for offering the written instruction to a circuit court judge." You can access last month's unpublished ruling of the South Carolina Court of Appeals at this link.

OBE and Newsletter

I have been recently OBE (namely Thanksgiving, Christmas, New Years revelry), nonetheless the December/January newsletter is up at the link to your right.

SCOTUS on Gall and Kimbrough

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

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

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

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

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

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

Crack Cocaine Sentencing

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

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

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

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

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

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

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

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

Moratorium Continues

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

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

Growth is Not Good

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

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

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

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

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

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

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

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

Retroactivity and Crack, Jack

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

Iraq, America and Future Insanity

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

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

New York Times (Herbert)

A Bit of History

Here, we have the foreblawgers. HT: How Appealing

Why The Confession? Come to Papa

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

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

DNA Releases Another Innocent Prisoner

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

Ball's Blue?

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

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

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

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

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

And this, also reported widely already:

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

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

That's Grits

From Grits,

Sign Our Judicial Complaint Against Judge Sharon Keller

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

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

SCOTUS FOCUS

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

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

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

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

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

Wild Guesses -- Riding Bareback

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

Who wrote this?

Where was it published?

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

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

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

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

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

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

and finally,

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

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

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

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

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

More on Moratorium on DP

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

Re: Thinking Age of Consent

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

UPDATED

And here, about how the laws are ineffective.

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

"quis custodiet ipsos custodes?"

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

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

Criminal Justice Reform Could Go All The Way

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

Catching Up to Child Porn in Scotus

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

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

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

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

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

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

By Joan Biskupic

USA TODAY

Baze: Is Three Drug Cocktail Unconstitutional?

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

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

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

Crow's Nest

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