Z

The Legal Monthly

Vol. 2 No. 8 Read Z the Blog at http://zlegaltimes.blogspot.com/ Oct/Nov. '07

The Uniquely Gregarious Source Of Legal News And “Divers” Contrary Information

Contents

The Costs of Justice

First Take TNR

JEC Rap Sheet

Dworkin: “The Supreme Court Phalanx”

Scotus Focus

A Prediction

A Cute, if Sardonic, Irony

Human Rights Watch Report

Sentencing

Retroactivity

Oral argument

Sex Offender Residency Restrictions

Mailbag

From Z Editor (and Mail) I can't blame it on the finances this time ... it's just that I have a lot going on. With a tween and teen and a new business going up I don't know where the time goes. September was crazy.

Country Mart's doughnuts — fried fresh daily in the store — sell for just 52 cents each. That is why the "shoplifters will be prosecuted" signs are displayed in aisle 4 with the pricey pain and allergy pills, and not in aisle 5 beside the glass doughnut case with its tiger tails, jelly-filleds and eclairs. Then one man's sweet tooth got the better of him. He stole a doughnut. A single dough-nut. Authorities called it strong-arm rob-bery. The "doughnut man," as the suspect is now known, faces five to 15 years in prison for his crime. And Farmington, a town of 14,000 people about 70 miles south of St. Louis, has been buzzing about it ever since. "That someone would take just a single doughnut, not something very expensive or extravagant, that's unique," supermarket assistant manager Gary Komar said, smiling. Scott A. Masters, 41, is accused of shop-lifting the pastry and pushing a store worker who tried to stop him. The worker was un-hurt. But with that shove, his shoplifting turned into a strong-arm robbery. Masters, who appeared in court Friday, is stunned. The prosecutor shows no signs of backing down. In fact, because Masters has a prior record, he could get a sentence of 30 years to life.

The Costs of Justice, American Style

JOINT ECONOMIC COMMITTEE TO EXAMINE ECONOMIC COSTS OF SURGE IN U.S. PRISON POPULATION AND POSSIBLE SOLUTIONS – U.S. Senator Jim Webb (D-VA) held a Joint Economic Committee (JEC) hearing to explore the economic consequences and causes of and solutions to the steep increase of the U.S. prison population.

The hearing entitled, “Mass Incarceration in the United States: At What Cost?” was Thursday, October 4, 2007 at 10:00am in Room 216 of the Hart Senate Office Building.

United States has 25 percent of the world’s prisoners,despite having only 5 percent of the world’s population. The JEC examined why the United States has such a disproportionate share of the world’s prison population, and ways to address this issue that responsibly balance public safety and the high social and economic costs of imprisonment.
Expert witnesses have been asked to discuss the costs of maintaining a large prison system; the long-term labor market and social con-sequences of mass incarceration; whether the increase in the prison population correlates with decreases in crime; and what alternative sentencing strategies and post-prison re-entry programs have been most successful at re-ducing incarceration rates in states and local communities. The witness list included:
• Dr. Glenn Loury, Economics and Social Sciences Professor, Brown University
• Dr. Bruce Western, Director Inequality and Social Policy Program, Harvard University
• Alphonso Albert, Executive Director, Second Chances
• Michael Jacobson, Executive Director, Vera Institute for Justice
The Joint Economic Committee, established under the Employment Act of 1946, was created by Congress to review economic conditions and to analyze the effectiveness of economic policy.

First Take on Hearing from TNR

It's eleven-thirty on a Thursday morning in the Senate Hart building, and the House-Senate Joint Economic Committee is doing something fairly unprecedented -- it's talking about prison reform. Not prison reform in the sense of why-we-need-to-build-more, but why-we-need-to-build-fewer.

Curious as to how this came about--as a rule, Congress only gets "tough" on crime, never "soft"-- I had asked a staffer, who explained that Chuck Schumer, the com-mittee chair, was letting each member hold his or her own hearing on whatever topic they so desired. Senator Jim Webb, who had reported on the Japanese prison system as a journalist in the 1980s, picked this critical issue. And so five experts put forward over-whelming evidence that the sprawling U.S. prison state--essentially a $200 billion per year social program that rivals the New Deal in size and scope--is devastating inner cities, deepening poverty, and making the crime problem worse, not better. But now it comes time for questions, and the congressional chairs are mostly empty. Only Webb and fellow freshman Bob Casey of Pennsylvania are still hanging around. Critical, indeed.

Back in 1958, sociologist Gresham Sykes prefaced his classic study of life inside a New Jersey maximum-security prison with a bitter note: "The 'prison problem' would seem to be a hardy perennial, unfortunately, for it has managed to survive every new storm of public indignation." Sykes was writing at a time when the U.S. prison system had only 200,000 inmates; his peers were mostly interested in what took place inside prisons. Today, after three decades of the war on drugs and harsh mandatory-minimum sentencing laws, that number has ballooned to 2.2 million, and social scientists are now focusing on how mass incarceration affects and shapes the outside world--how prisons become "engines of inequality," as Princeton sociologist Bruce Western puts it.

But will anyone listen? To be fair, Webb and Casey weren't the only members of Congress who showed up on Thursday. Four representatives exited early for a House vote--three liberal Dem-ocrats, Carolyn Maloney, Bobby Scott, and Maurice Hinchey, as well as Phil English, a Republican who has expressed interest in prisoner-rehabilitation legislation. Sam Brownback had also swung by earlier, to voice support for programs that help prisoners reenter society. That was it, though. And, watching Webb and Casey sit there, alone, one couldn't help but wonder if the "prison problem" won't weather this latest storm of public indignation just as easily.

At the heart of the case against the bloated U.S. prison system are statistics--lots of them. Staffers at the hearing inundate reporters with sheet after sheet filled with numbers and charts. A sample: The United States incarcerates 750 inmates per 100,000 persons, besting even Russia and China and dwarfing the world average of 166 per 100,000. Prison spending is now the fastest-growing item on most state budgets. Some 62 percent of black high-school dropouts born since the late 1960s have a prison record by the age of 34. Said prison record lowers one's lifetime earnings by 10 to 30 percent. So what are we getting for this staggeringly expensive social ex-periment? Not much: Criminologists mostly agree that the increased use of prison was, at best, responsible for only 20-25 percent of the crime decline in the 1990s. And, given that prisons themselves can serve as a breeding ground for criminals, while ripping apart families and perpetuating racial and income inequality, it's no stretch to say that excessive incarceration can actually increase crime in some cases.

A barrage of stats, though, is no match for personal experience, and perhaps the most compelling witness is Pat Nolan, a former Republican lawmaker in California who served 29 months in federal custody after getting caught accepting bribes in an FBI sting. Like Chuck Colson, the Watergate crook who now runs a prison ministry, Nolan had his come-to-Jesus moment behind bars. And, in the course of making his case for programs to help prisoners reenter polite society, he dips into the memory well, asking his audience to imagine a released offender who has just stepped off the bus: "Where will he live? Where will he find a meal? Where will he look for a job? How will he get a job interview?" He notes that most prisons don't even give inmates an identi-fication card upon release: "In Alabama, they give you a check for $50 but no I.D. How are you even supposed to cash the check?" Little wonder, he adds, that two-thirds of all prisoners are rearrested within three years of their release--a major reason why prisons keep swelling.

What can be changed? On the bright side, Congress is close to passing the Second Chance Act, a bill sponsored by politicians as diverse as Brownback and John Conyers that would provide $100 million to fund training and support programs for ex-prisoners. A Senate staffer told me that support for Brownback's bill on the Republi-can side is "nearly unanimous." In the past, Democrats have been wary that the GOP would try to fund faith-based prison programs with the bill, but this time around, it may well pass. Even if the bill itself is relatively modest, it does represent a break from three decades of increasingly strict sentencing laws, and an unerring faith that more prison is always the answer.

But what happens after that? During his testimony, Glenn Loury, an economist at Brown, takes a detour from discussing the social costs of mass imprisonment to broach drug laws. If prison reform has long been taboo in Congress, speaking out against the war on drugs is extra taboo. Loury goes ahead anyway and points to a graph showing that, even as drug arrests have skyrocketed, the price of heroin and cocaine has been plum-meting, while emergency room admissions for drug use continue to rise. Loury also notes, strikingly, that black men are four times as likely to be arrested for a drug offense as white men, despite the fact that drug usage is actually lower for blacks. Part of this, he explains, comes from the fact that, in urban areas, drugs tend to be sold in open-air markets, whereas suburban drug sales tend to take place indoors.

Webb is impressed by this point, but Casey raises a "devil's advocate" question: Why shouldn't the police lock up people selling drugs in public? Michael Jacobson, a former New York city corrections commissioner, chimes in to explain that "it's not appropriate to use jails for every behavior," arguing that putting a street-level dealer in prison for a few years won't solve anything--someone else will just step in to sell, and prison will only "harden" the person arrested. All of the experts agree with Loury that mandatory minimums for drug offenses do more harm than good, and other, less punitive measures would work better. But Casey, though appre-ciative, seems vaguely discomfited by where this is all heading, muttering, "I like the focus on reentry programs."

For his part, Webb doesn't seem to mind rolling up his sleeves and going beyond talk of chipping away at the recidivism rate. His questions are sharp, as when he asks whether lengthening prison sentences actually deters crime. Both Western and Jacobson agree that the length of a prison sentence is less impor-tant for deterrence than the swiftness of apprehension. "Right," Webb replies, almost as if leading a class discussion, "criminals mostly just worry about getting caught." Jacobson adds that the rise of unduly long prison terms--especially the explosion in life sentences handed out under "three-strikes" laws--keeps people in prison long past the age at which they tend to commit crimes. (Bruce Western quips that the United States is the only place where "prison geronto-logist" is a career.) To this, too, Webb seems receptive.

Reentry programs are one thing; talk of drastically reducing prison sentences, however, is still a radical notion for Con-gress. To his credit, Barack Obama recently vowed, in a speech at Howard University, that he would "review mandatory minimum drug sentencing" as president. That's about as far as any mainstream candidate can go, and Obama, perhaps wisely, kept the details vague. Webb, however, could be a convin-cing crusader here--after all, it's hard to accuse a man who once tried to bring a gun into the Senate of being a typical bleeding-heart liberal. Indeed, Webb emphasizes several times that he's not soft on crime, and, as if to prove it, reiterates his desire to "break the backs of gangs" and so forth. "But," he adds at the end, "I do hope my colleagues can better understand the impact of what we're doing here." By the time he says this, though, he's the only politician left in the room. By Bradford Plumer (an assistant editor at The New Republic).

JEC Rap Sheet

The United States has the highest reported incarceration rate in the world. While the United States currently incarcerates 750 inmates per 100,000 persons, the world average rate is 166 per 100,000 persons. Russia, the country with the second highest incarceration rate, imprisons 624 per 100,000 persons. Compared to its democratic, advanced market economy counterparts, the United States has more people in prison by several orders of magnitude. Although crime rates have decreased since 1990, the rate of imprisonment has continued to increase.
* Growth in the prison population is due to changing policy, not increased crime. Many criminal justice experts have found that the increase in the incarceration rate is the pro-duct of changes in penal policy and practice, not changes in crime rates. Changes in sen-tencing, both in terms of time served and the range of offenses meriting incarceration, underlie the growth in the prison population.
* Changes in drug policy have had the single greatest impact on criminal justice policy. The Anti-Drug Abuse Act of 1986 created mandatory minimum sentences for posses-sion of specific amounts of cocaine. The Act instituted a 100-to-1 differential in the treat-ment of powder and crack cocaine, treating possession of 5 grams of crack cocaine the same as possession of 500 grams of powder cocaine. Crack cocaine is typically con-sumed by the poor, while powder cocaine, a significantly more expensive drug, is con-sumed by wealthier users. Mandatory mini-mum sentences for low-level crack-cocaine users are comparable (and harsher in certain cases) to sentences for major drug dealers.
* The composition of prison admissions has also shifted toward less serious offenses, characterized by parole violations and drug offenses. In 2005, four out of five drug arrests were for possession and one out of five were for sales. The crime history for three-quarters of drug offenders in state prisons involved non-violent or drug offenses.
* The prison system has a disproportionate impact on minority communities. African Americans, who make-up 12.4 percent of the population, represent more than half of all prison inmates, compared to one-third twenty years ago. Although African Americans constitute 14 percent of regular drug users, they are 37 percent of those arrested for drug offenses, and 56 percent of persons in state prisons for drug crimes. African Americans serve nearly as much time in federal prisons for drug offenses as whites do for violent crimes.
* The U.S. prison system has enormous economic costs associated with prison construction and operation, productivity losses, and wage effects. In 2006, states spent an estimated $2 billion on prison construction, three times the amount they were spending fifteen years earlier. The combined expenditures of local govern-ments, state governments, and the federal government for law enforcement and cor-rections total over $200 billion annually. In addition to these costs, the incarceration rate has significant costs associated with the productivity of both prisoners and ex-offenders. The economic output of prisoners is mostly lost to society while they are impri-soned. Negative productivity effects con-tinue after release. This wage penalty grows with time, as previous imprisonment can reduce the wage growth of young men by some 30 percent.
* Prisons are housing many of the nation’s mentally ill. Prisons are absorbing the cost of housing the nation’s mentally ill. The number of mentally ill in prison is nearly five times the number in inpatient mental hospitals. Large numbers of mentally ill inmates, as well as inmates with HIV, tuber-culosis, and hepatitis also raise serious questions regarding the costs and distribution of health care resources.

* The United States faces enormous problems of offender reentry and recidivism. The number of ex-offenders reentering their communities has increased fourfold in the past two decades. On average, however, two out of every three released prisoners will be rear-rested and one in two will return to prison within three years of release.

Dworkin: “The Supreme Court Phalanx” Not last nor least, here's Ronald Dworkin (beating - not bleating) about the bleeding Supreme Court (appearing in New York Review of Books). So, from his analysis, forget about your chances for habeas relief. On the bright side there is always this: The Sixth Circuit in Stewart v. Erwin, No. 05-4635 (6th Cir. Oct. 8, 2007) grants habeas relief to a state prisoner because he was de-nied access to certain information used at his sentencing. Here are the highlights from the start of the opinion (from Doc Berman):

After exhausting his state remedies, Stewart filed a habeas petition in federal district court pursuant to 28 U.S.C. § 2254, alleging, inter alia, that he was denied due process of law because he was not given the opportunity to review, rebut, and explain the entire body of information that the sentencing court relied upon to justify its imposition of an eight-year prison term. The district court denied the habeas petition but, on the same day, granted Stewart’s motion to expand the habeas record and ordered the State of Ohio to file, under seal, the pre-sentence report and victim impact state-ments from Stewart’s case. The custodian of these documents has thus far refused to comply with the district court’s order, and these documents do not appear in the record on appeal. The district court also subse-quently granted a certificate of appealability as to Stewart’s due process challenge, and this is the sole claim presently before us.

As explained below, we agree with the district court that there is no clearly established federal constitutional right to full disclosure of all information used by a trial judge in determining a defendant’s sentence. Nonetheless, we recognize, as did the court below, that there is a clearly esta-blished federal due process protection against a trial court’s reliance on materially false information at sentencing. Unlike the district court, we find ourselves unable to ascertain whether this latter sort of due process violation might have occurred here, where a portion of the materials used in determining Stewart’s sentence has been withheld from federal court review, and where the limited record before us suggests a reasonable possibility that at least some of this sentencing information might have been erroneous. Consequently, we reverse the district court’s order denying Stewart’s petition for a writ of habeas corpus and remand for additional proceedings, with further instructions that the writ should be granted if the State fails to supplement the record as ordered by the district court within forty-five (45) days of the date of this opinion.

1. The revolution that many commentators predicted when President Bush appointed two ultra-right-wing Supreme Court justices is proceeding with breathtaking impatience, and it is a revolution Jacobin in its disdain for tradition and precedent. Bush's choices, Chief Justice John Roberts and Justice Samuel Alito, have joined the two previously most right-wing justices, Antonin Scalia and Clarence Thomas, in an unbreakable phalanx bent on remaking constitutional law by over-ruling, most often by stealth, the central constitutional doctrines that generations of past justices, conservative as well as liberal, had constructed.

These doctrines aimed at reducing racial isolation and division, recapturing demo-cracy from big money, establishing reason-able dimensions for freedom of conscience and speech, protecting a woman's right to abortion while recognizing social concerns about how that right is exercised, and esta-blishing a criminal process that is fair as well as effective. The rush of 5–4 decisions at the end of the Court's term undermined the prin-cipled base of much of this carefully estab-lished doctrine. As Justice Stephen Breyer declared, in a rare lament from the bench, "It is not often in the law that so few have so quickly changed so much."

It would be a mistake to suppose that this right-wing phalanx is guided in its zeal by some very conservative judicial or political ideology of principle. It seems guided by no judicial or political principle at all, but only by partisan, cultural, and perhaps religious allegiance. It urges judicial restraint and def-erence to legislatures when these bodies pass measures that political conservatives favor, like bans on particular medical techniques in abortion. But the right-wing coalition aban-dons restraint when it strikes down legis-lation that conservatives oppose, like reg-ulations on political advertising and modest school district programs to further racial integration in public education. It claims to celebrate free speech when it declares that Congress cannot prevent rich corporations and unions from evading restrictions on political contributions. But it subordinates free speech to other policies when it holds that schools can punish students for dis-playing ambiguous but not disruptive slogans at school events. Lawyers have long been fond of saying, quoting Mr. Dooley, that the Supreme Court follows the election returns.[1] These four justices seem to follow Fox News instead.

They need a fifth vote to win the day in particular cases, and they most often per-suade Justice Anthony Kennedy to join them. Kennedy has taken Sandra Day O'Connor's place as the swing vote on the Court. Twenty-four cases—a third of the Court's decisions—were decided by 5–4 votes last term, nineteen of them on a strict ideological division. Kennedy voted on the winning side in all twenty-four of them. He joined with the right-wing justices in thirteen of the ideological cases; he voted against them and with the four more liberal justices—John Paul Stevens, David Souter, Ruth Ginsburg, and Breyer— in the remaining six cases, including four death penalty appeals from Texas. He showed deplorable partisan-ship when he voted with the majority in the Court's intellectually disreputable 2000 decision to elect Bush president.[2] He wrote a poor and insensitive majority opinion this year in the Court's so-called partial-birth abortion case. (I discussed his opinion in these pages earlier this year.)[3] But in 1992 Kennedy joined O'Connor and Souter in the key opinion upholding abortion rights in principle and providing a firmer constitutional basis for them,[4] and in 2003 he wrote a strong opinion for a 6–3 majority, relying on that earlier abortion decision, ruling that states cannot make homosexual acts criminal.[5] He therefore offers hope—slim, but real—of some moderating influence on the Jacobins; lawyers who argue important cases before the Court in the next few years will presumably frame their arguments to convince him.

2. These are strong claims about the revolutionary character and poor legal quality of many of the Court's 5–4 decisions, and it is necessary to review these decisions with some care, in the remainder of this essay, to explain and defend those claims. The most important decision was the Court's 5–4 ruling striking down school student assignment plans adopted by Seattle and Louisville. . . . **** Ronald Dworkin (New York Review of Books)

Scotus Focus A 2006 law, passed by Congress and signed by Mr Bush prohibits Guantanamo Bay detainees from challenging their confinement in federal courts and states their cases can only be heard by military commissions, not civilian courts.

This term, Supreme Court justices will decide whether in doing so, the law has violated the constitutional requirement to provide habeas corpus - a procedure under which someone who holds a prisoner is required to show reason why to a court - to prisoners in the US.

The US Appeals Court for the District of Columbia Circuit ruled that habeas corpus does not apply to foreign nationals being held at Guantanamo Bay because it is not US soil. Professor AE Dick Howard, of the University of Virginia School of Law, said the Guantanamo cases would be "front and centre" of the new session. Laura Smith-Spark BBC News, Washington. Nb. If the detainees "win" is that a conserative or liberal outcome? Hint: is the Consti-tutional right to habeas corpus a conservative or liberal notion? Hint 2: Is supporting tyranny conservative or liberal?

Check these for more previews: Adler; and Wittes: "it made fools of those of us who believe in it as something more elevated: an institution that aspires to rule based on principle. It was depressing, and the most depressing part is that sinking feeling that the justices will do the same thing again beginning today."

A Prediction by Tom Goldstein of SCOTUSblog: “Because the public's interest in the Court is notoriously weak and its memory short, the relevant question in deciding whether the Court can be a mobilizing force in the 2008 election for ideological groups is therefore not "how were cases decided in OT2006" (the focus of commentary so far), but instead "how will OT2007's cases be decided?" And I think that the existing and anticipated docket strongly suggests that, during OT2007, the outcomes of the highest-profile cases will be perceived as quite liberal.

As a consequence, I think it is exceptionally unlikely that next Term will end as this one did, with front-page stories and reports leading the evening news describing the Court as profoundly con-servative, with laudatory commentary by the right and howls of protest from the left. Instead, we will see (mistaken) talk of the "surprising" tack by the Court back to the left and (among the legal glitterati) the "good Kennedy, bad Kennedy" phenomenon in which his ideological views seemingly oscillate dramatically from Term to Term. In fact, this commentary will be wrong: the Justices and their views will be exactly the same come June 2008; it is the cases that will be different.

Equally or more important when considering the potential elect-oral consequences of the Term, the leading cases will be ones in which the more liberal position is distinctly - even profoundly - unpopular with conservatives, creating the prospect that the Court will serve as a rallying cry to mobilize the electorate. Even if the left ultimately does not win all of the five most significant cases of this Supreme Court Term, that wing of the Court will carry the banner for accused terrorists, crack dealers, child pornographers, child rapists, and those who want to forbid gun possession. First, consider the existing docket. The most prominent decision, by far, will come in the cases brought by detainees held at Guantanamo Bay as accused terrorists. The conventional wisdom is that the detainees will win. I agree. ***
The next-highest-profile case involves the crack-powder disparity in sentencing (Kimbrough v. United States). This is something of a "throwback" case; crack is not as prominent an issue as it once was. Nonetheless, it is one with which the public is familiar. The parti-cular question presented is whether, in the wake of the holding of Booker v. United States that the Sentencing Guidelines are advisory rather than mandatory, district judges can refuse to follow the crack Sentencing Guideline (which imposes a 100:1 ratio to cocaine sen-tences by weight) on the ground that they disagree with the policy judgment underlying it. I think that the government is over-whelmingly likely to lose. ***

A third significant and publicly accessible case involves the constitutionality of a particular federal regulation of child porn-ography (United States v. Williams). The PROTECT Act makes it a crime to distribute something in a manner that shows you believe, or causes someone else to believe, it constitutes child pornography. The case is a successor to Ashcroft v. Free Speech Coalition, which invalidated as overbroad in violation of the First Amendment a prior statutory provision making it a crime to possess images that "appear to be" or "convey the impression" that they are child pornography. The new statute focused on the act of pandering the material, rather than its possession. A panel of the court of appeals held that the Supreme Court would not find the change significant enough to save the statute. I agree, though the question is difficult and likely to be close. The Free Speech Coalition majority was fairly sweeping on this point (the Court divided seven to two). In particular, Justice Kennedy's opinion for the five-Justice majority (himself and the left) indicated that this type of fix would be insufficient because it would still make unlawful the distribution of material that is not in fact pornographic.

So, in the three most significant cases of the Term granted thus far, the position of the Court's more liberal members will be (in the caricature that comes with much popular reporting on the Court) that accused terrorists deserve more rights, crack dealers deserve lighter sentences, and the First Amendment protects would-be distributors of child porn.

NB. But in Ditech's words "people are smart" -- I think we're beginning to see through the right-wing "conservative philosophy" yoyo bullshit, don't you? The argument is that people are stupid—too stupid to see through the spin and discern the shadow of fairness. I respectfully disagree.

A Cute, if Sardonic, Irony “RATS in robes”

sardonic: "Like sarcastic, but more in order to cause amusement than insult"

I know, relative to the other Supremes, Roberts is comparatively young, but at 52 years, "young man" seemed a stretch. But like everything else with the Supremes, it's all relative, right? Relative conservatives, relative liberals, relative moderates, relative reactionaries? Well, no -- the latter are pretty clear, the RATS of this court: Roberts, Alito, Thomas, and Scalia -- they're sure to surprise people, if only by how far they'll go to bat for a Republican president. I have no doubt that, should the Democrats actually win the White House in 2008, the RATS will work hard to oppose that new president; they know which party they represent. Rehnquist certainly set that mold for them, and Roberts will follow it. Their creed:

1 concentrated Republican executive power good,

2 unchecked corporate power good,

3 environmental law/regulation bad,

4 human rights bad,

5 property rights good,

6 free speech bad,

7 economic speech good (e.g., being able to pay for the privilege of said "free" speech, like campaign donors)

That's a pretty reliable barometer of their approach, and I doubt they'll stray from the script much, unless a Democrat wins in '08, then they might oppose concentrated, unchecked executive Democratic power. But we'll see; they might, in principle, maintain that in hopes that the GOP is able to seize power again.

-- comment by “Slackie Onassis” somewhere on the blog-a-sphere

Human Rights Watch Report on laws, registries and restrictions for sex offenders:

Laws aimed at people convicted of sex offenses may not protect children from sex crimes but do lead to harassment, ostracism and even violence against former offenders, Human Rights Watch said in a report released today. Human Rights Watch urges the reform of state and federal registration and community notification laws, and the elimination of residency restrictions, because they violate basic rights of former offenders. The 146-page report, “No Easy Answers: Sex Offender Laws in the United States,” is the first comprehensive study of US sex offender policies, their public safety impact, and the effect they have on former offenders and their families. During two years of investigation for this report, Human Rights Watch researchers conducted over 200 interviews with victims of sexual violence and their relatives, former offenders, law enforcement and government officials, treatment providers, researchers, and child safety advocates. (Source: Citybeat.com). Just as Ohio has toughened its sex offender registration system, evidence is building that registration causes more problems than it solves.

Retroactivity Danforth v. Minnesota (06-8273) -- a case examining state courts' authority to expand retroactivity of Supreme Court criminal procedure rulings, is scheduled for argument on October 31: the petitioner's brief is by the Minnesota Public Defender's office; Amicus briefs from the American Civil Liberties Union and the National Association of Criminal Defense Lawyers in support of the petitioner; an amicus brief from Alaska and ten other states in support of the respondent; and an amicus brief from Kansas in support of neither party. Curiouser and curiouser.

A Sidenote on National Security Policy The white shoes at SCOTUSBLOG have written about how the revelation of our program of kidnapping and torture presents a "grave risk of injury to national security" (quote from the government's brief in opposition for writ in the Supreme Court: El-Masri v. Tenet, 437 F.Supp.2d 530, 541 (E.D.Va.2006) and El-Masri v. U.S., 479 F.3d 296 (4th Cir., 2007)).

I should think so. If true, and even if not true, the allegation alone, rumor only perhaps but not likely, presents untold harm to the reputation and moral standing of the United States among the community of nations. Cover that up, and bring lots of dirt to do it with. That's mud, as in "dragging through the mud" -- as in the reputation of the former AG, whose worst day according to his own admission, was better than his own father's best day. I'm so glad I'm not his dad. Aren't you?

Oral argument in Watson v. United States (06-571) 10/9 Federal law makes it a crime to "use" a gun during a drug offense. But what if an unloaded gun is merely payment for the drugs? That's the question set for argument at the US Supreme Court next Tuesday in the case of a Louisiana man who traded 24 doses of the prescription drug OxyContin for a .50 caliber Desert Eagle pistol. At issue in Watson is how to define the word "use" in a statute that outlaws the "use" of a gun in a drug crime. Although the case sounds unique, it is becoming increasingly common in sting operations for undercover agents to introduce or suggest a gun as a form of payment in a drug deal. Under the law as written by Congress, the gun adds an automatic five years in prison – and sometimes much more – to any drug charges. "It is a very heavy stick," says Mark Stancil, a Washington, D.C., lawyer and adviser to the University of Virginia School of Law Supreme Court Litigation Clinic, which is assisting in the Watson case.

Sentencing -- the Fourth Cir. affirms over dissent by Judge Gregory the lower court's denial of motion to withdraw plea after having conditionally accepted same pending receipt of presentencing report, and challenge to the 120 month sentence for possession of firearm. United States v. Battle (Sep 5).

Sex Offender Residency Restrictions A federal judge in Akron has ruled in favor a sex offender in a residency case. Lane Mikaloff filed a lawsuit after he was ordered out of his home because he lives too close to a school.

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Z

The Legal Monthly

Vol. 2 No. 7 Read Z the Blog at http://zlegaltimes.blogspot.com/ Aug/Sep 2007

The Uniquely Gregarious Source Of Legal News And “Divers” Contrary Information

Contents

Toobin's Eulogy of Habeas Corpus -- the last word?

The Fall 2007 Short List - AUSA should avoid six things

Not Criminal, Yet Political of The Court

Scotus: Past as Prologue, Sharp Rights, U- Turns Ahead?

Sentencing: Bush Commutes Scooter's Time

In George W. Bush's U.S. Supreme Court

About "Apprendi's Domain"

International Law

GPS tracking

Results of habeas study

Are You Kidding: the Twenty-Three Year BJ

Registration causes more problems than it solves.

USA Patriot Improvement and Reauthorization Act

Hourly Rates: Top That

From My New Favorite Blog

An Easy Hundred Thou?

From Z Editor (and Mail) A financial crisis narrowly avoided caused Z delay to send this issue to the printer. The good news, however is (there's always that) this is a double issue! (That means it took twice as long to produce as usual. Haa--gotchya!) Whew, it's been a hot summer. I really feel for you guys in the fields. Many letters have been received, a new address or two added to the distribution list. Unfortu-nately, Z has not been able to personally call, write, or otherwise harass the PTB (powers-that-be) at this time. Patience, those of you soon-to-be-released, the long nightmare will soon be over. Keep those grievances going!

Toobin's December Eulogy of Habeas Corpus -- the last word?

“During the Presidency of George W. Bush, the executive branch, with the eager acquiescence of its Republican allies in Congress, has essentially dared the courts to defend the rights of the suspected Al Qaeda terrorists, who have been held at Guantánamo, some for as long as four years. The Supreme Court has twice taken up that challenge and forced the Administration to change tactics; the new law represented a final attempt to remove the detainees from the purview of the Court. Now, of course, Republicans no longer control Congress, but the change in the law of habeas corpus may be permanent.” Fast-backwards in time, facing rebellion of the Peace Democrats in Maryland, and a real chance that Washington would be surrounded and the White House captured, Lincoln arrested Baltimore’s mayor and chief of police, as well as several members of the Maryland legislature, so that they couldn’t vote to secede from the Union. Suspensions of Habeas have been rare in American history. The most recent occasion was in 1871, when President Ulysses S. Grant sent federal troops to South Carolina to stop attacks by the Ku Klux Klan against newly emancipated black citizens. This fall (2006) however, Congress passed, and President Bush signed, a new law banning the four hundred and thirty detainees held at the American naval base at Guantánamo Bay, and other enemy combatants, from filing writs of habeas corpus.

Was that really so novel? How does it compare with the AEDPA? Effective since 1996, that law knocked the teeth out of Habeas and allows states to ignore all but the most blatantly obvious miscarriages of justice involving US citizens (and subjects) in our state and federal prisons.

The Fall 2007 Short List - AUSA should scrupulously avoid these six things, at a minimum: 1.If you can't beat'em with a stick, shoot'em, (no, Mr. Prosecutor, you can't shoot first and ask questions later; 2.Pursuit of Gun Control, and other ambitious “Lefty” Advocacy; 3.Failure to prosecute Washington State Democrats following a close election; 4.Being targeted for a contract killing, and/or Sour Grapes; 5.Aggressive Investigation of a fellow AUSA's Murder; and 6.The Short List of Already-Fired Federal US Attorneys. Finally, did I mention this one: Don't commit an alleged suicide (See below, under topic of MISSING GLOCKS). Source: The New Yorker Magazine, “An Unsolved Killing: What does the firing of a U.S. Attorney have to do with a murder case?” by Jeffrey Toobin.

Not Criminal and Yet Transparently Political of The Court: House Democrats would reverse just one of the more eggregious, sexist and pro-business Supreme Court decisions of the 06-07 Term. Showing no compassion toward the discriminated-against (women) in the workforce the President threatens veto of any such law.

Scotus Focus: Past as Prologue, Sharp Rights, U Turns Ahead? It can be said that the law changes slowly -- except when it doesn't -- in which case it changes, well, suddenly. Of course there are consequences, as surely follow they must, just as night follows day. But will the consequences follow as suddenly as the changes in the law that were wrought? Also, what will be the unintended consequences of these changes in the law? Bright and thorough thinkers the justices (and their clerks) must be, things always pop up unexpectedly and not only because wholly unforeseeable. Such is life. For instance, it was not entirely unforeseeable that removing a dictator, Saddam, would cause a power vacuum, but it is pretty well assured that a future war against Iran is not a necessary consequence even if a probable one arising out of the invasion of Iraq and the decapitation of Saddam Hussein's regime. Incidentally, Condy Rice was recently named THE most powerful person in Washington and also designated the last great hope that the U.S. won't attack Iran before the current president leaves office. Due to very unfortunate, if unintended consequences and events “on the ground” it follows that drawing out the occupation of Iraq for yet another year or two will almost certainly require the institution of a draft to ensure that our armed forces can be viewed as an effective deterrent against possible hostile action by certain of our enemies and potential enemies. Also abundantly clear is that neither the size, nor strength nor quality of the present-day armed forces are sufficient or effective to deter terrorists and suicide bombers. Also, on topic of continuity or change, will the GOP-inspired Court continue to bash the little guy and evade the pursuit of freedom, equality, opportunity? Will it continue to grant favors to big oil, big insurance, big police and big corporations? They say that the Court's “ideological” direction follows the electoral returns, and the new “Roberts Court” seems to be doing just that. Both of the newly minted justices, (“CJ” and “Sammy”) appear to be very reliable votes for “conservative” “right wing” and “law and order” -- so let's see how, and what, they did. And speaking of big police and big corporations, there seems to be the small matter of EIGHT THOUSAND, some say that it is actually more like EIGHTY THOUSAND, MISSING GLOCK SIDEARMS in Iraq that have been traced back to original U.S. custody. Guess who has them now? Hint: it ain't the Iraqi military we are supposed to be training to defend Iraq so we can leave. Hint again: it's the BAD GUYS. Also mysteriously, an Army man is now dead, allegedly having committed suicide while investigating the disappearances of these firearms. So this is how our tax dollars are being spent: siphoned off in illegal, under-the-table arms deals brokered by “private contractors” dealing with the enemy. The pistols go for about $500 in the U.S. but fetch up to $3,500 over there, on the black market. That's a pretty nice mark-up. Yup.

The Supreme Court dedicated nearly a third of its docket to criminal cases (including habeas) during the recently completed term, ruling against defendants almost twice as often as in their favor. Unlike business cases, which produced relatively little dissent, the criminal docket highlighted the Court’s increasing ideological divide. More than 45% of criminal cases were decided 5-4 – all but one along ideological lines – versus 33% of the docket as a whole. The Chief Justice and Justice Alito compiled nearly identical voting records in their first full term together on the bench, aligning almost always with Justices Scalia and Thomas. We'll start calling them the Bushie twins. Meanwhile, the left-leaning Justices also recorded higher than normal rates of agreement.

-- In 2000, the old Court threw out a state ban on late-term abortions by a 5-4 vote. This year, the new Court upheld such a ban by 5-4.

-- In 2003, the old Court upheld the McCain-Feingold campaign finance law by 5-4. This year, in a 5-4 vote, the new Court struck down the section of that law restricting pre-election issue advertising.

-- In 2003, by 5-4, the old Court allowed the use of race as a criterion for admission to schools of higher education. This year, by 5-4, the new Court struck down the use of race as a criterion for placing students in public schools.

-- On the old Court, three reliably conservative justices—William Rehnquist, Antonin Scalia, and Clarence Thomas—were frequently joined by Anthony Kennedy, a moderate conservative. Four reliable liberals—Stephen Breyer, Ruth Bader Ginsburg, David Souter, and John Paul Stevens—were sometimes joined by Sandra Day O'Connor, a swing vote. On the new Court, Bush has replaced Rehnquist with John Roberts, an even more reliable conservative. He also replaced O'Connor with Samuel Alito, a reliable conservative. Alito's vote, along with that of Kennedy, shifted the Court's majority to the conservatives. The four liberal justices are now almost always in the minority on close votes.

-- Perhaps what is most notable about the civil rights subset of this term’s docket is that Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito found themselves in the majority in every case. When it came to civil rights this term, there is no question that the conservatives carried the day.

“Faux judicial restraint is paying off for Justice Scalia even if he would prefer to change the Constitution his way.” In the unusually few cases it decided in the last term — 68 — the court specifically reversed only three previous cases, including one that had stood as settled law since 1911. But it doesn't have to be specific to make a U-turn. Chief Justice Roberts' opinion in the McCain-Feingold case left room for Justice Kennedy to say, in his concurring opinion, that there are some cases in which the law still would hold. No one can identify any, nor are prosecutors likely to try to enforce the law after this term's decision. But the court never said it reversed its 2003 opinion upholding the law. Likewise, when the chief wrote that school districts may not consider race to integrate schools, he cited the 1954 school desegregation case as if it were the precedent he was upholding. That left room for Justice Kennedy to write that there are still cases when school districts can consider race. Again, nothing formally changed. It will be a miracle, though, if school districts can find one of Justice Kennedy's hypothetical exceptions to stay integrated after what Chief Justice Roberts wrote about the two districts that were integrated in a way the court had approved of for 50 years. AND,

In George Bush's U.S. Supreme Court, the big guys win, you lose -- unless, of course, you are one of the big guys, in which case, congratulations. If you are a customer, tough. Manufacturers may go back to barring retailers from underselling the price a manufacturer wants. If you are a mere taxpayer, tough again. You are barred from challenging government expenditures on faith-based programs as possible violations of church-state separation. If you are convicted of a crime and your lawyer files your appeal three days late, too bad -- even though the lawyer filed on the date the judge (mistakenly) directed. Justice David Souter, in dissent, put it plainly: "It is intolerable for the judicial system to treat people this way." If you suffer a troubled pregnancy, sorry. Lawmakers may bar you from the medically safest abortion. Women's health no longer governs abortion issues. Expect a festival of harassing legislation next year in the manner of the ban on "partial-birth abortion" -- a term made up for political purposes -- which the court endorsed in its recently completed session.

If you are a woman and discover that for years your employer has been paying men more for the same work you do, you're out of luck unless you filed a complaint within 180 days of the first time that happened. Sources: William Schneider/National Review; Adam Chandler/Scotusblog; Tom Blackburn/lufkindailynews.com; The Wichita Eagle/kansas.com.

Sentencing: Bush Commutes Scooter's Time Ya really are immune when ya work for the Pres. VERY curiously, I. Lewis "Scooter" Libby, will have to live with the criminal record and must report for probation/parole instead of prison. The special prosecutor in the CIA leak case and the White House's top staff lawyer agreed that the former vice presidential aide must serve a term of supervised release following his conviction for lying to federal investigators and a grand jury. Special Counsel Patrick J. Fitzgerald, the prosecutor, and White House Counsel Fred F. Fielding told a federal judge that President Bush's nullification of prison time for Libby did not affect the former aide's obligation to serve the part of his sentence that involves supervision by federal correction officials. Libby's personal attorneys said he accepted the White House view.

The goal of the sentencing guidelines was to rectify these sentencing disparities and treat "defendants with similar records who have been found guilty of similar criminal conduct" in like fashion. Last week, the president of the United States commuted I. Lewis "Scooter" Libby's 30-month prison sentence. His commutation statement noted that Libby's prison sentence, which fell within the sentencing guidelines, was "excessive." The president took this bold step less than two weeks after the Supreme Court ruled in Rita v. United States, at the urging of the Bush administration, that a similar sentence for a similarly situated defendant must be presumed "reasonable."

-- With one dramatic stroke of his executive pen, the president unwound more than two decades of effort to rationalize sentencing in federal courts.

-- Victor Rita was convicted of making false statements to a federal grand jury investigating whether the buyers of a gun parts kit could use the kit to make illegal machine guns. Rita, like Libby, had an exemplary background marked by service to his country. He served more than 25 years in the armed forces, during which he received 35 commendations, medals or awards. He had no relevant criminal history. Applying the federal sentencing guidelines, the judge sentenced Rita to 33 months in prison. Rita appealed his sentence on the ground that it was not reasonable in light of his sterling background. Arguing on behalf of the Bush administration, the solicitor general of the United States urged the Supreme Court to uphold Rita's prison sentence on the ground that it fell within the sentencing guidelines and therefore appellate courts must presume the sentence to be reasonable. The Supreme Court agreed and upheld Rita's 33-month prison sentence. Chief Justice John Roberts and Justice Samuel Alito, the president's reliably conservative appointees to the court, agreed with the administration's position and voted to uphold Rita's sentence. Libby was convicted after a jury trial of lying to the grand jury and federal law-enforcement officers conducting an investigation of the unauthorized disclosure of classified information concerning the employment of Valerie Plame by the CIA. High-ranking government officials compromised Plame's identity in retaliation for her husband's criticism of one of the president's justifications for the Iraq war.

Many former and current CIA officials publicly condemned the "outing" of Plame, noting that it exposed CIA operations and assets to significant risks. At the outset of the investigation, the president himself referred to it as "a very serious matter" and promised, "our administration takes it seriously."

Under the sentencing guidelines, Libby faced a range of 30 to 37 months in prison for his offenses. The judge chose 30 months, the lightest sentence in the range. Libby's 30-month prison sentence was within the guidelines, as was Rita's 33-month sentence. Yet, Libby's guidelines sentence was deemed by the president to be "excessive" while Rita's sentence was deemed by the lawyer representing the president's views to be "reasonable." So much, then, for avoiding sentencing disparity. Source: Robert S. Mahler,Special to The Seattle Times

About "Apprendi's Domain"

Jonathan Mitchell, a visiting professor at the University of Chicago Law School, has posted "Apprendi's Domain" on SSRN. Among other things, Professor Mitchell argues that in its Sixth Amendment jurisprudence, the Supreme Court has improperly tied the presentation of all facts that increase a sentence beyond a statutory maximum to proof beyond a reasonable doubt. Instead, he argues that such facts, whether mitigating or aggravating, should be presented to a jury, but that prosecutors should not be required to prove them beyond a reasonable doubt. With the Court's interest in Sixth Amendment issues seemingly not waning (e.g., Gall, Rita), Professor Mitchell advocates a provocative new approach to the Sixth Amendment. SCOTUSBLOG

International Law: Over the past few decades, international law scholars and advocates have widely supported the use of domestic United States courts to independently enforce and implement international tribunal judgments, even over the opposition of the President. The Supreme Court's decision in Sanchez-Llamas v. Oregon represents a potentially serious setback for this burgeoning movement. This contribution defends and elaborates the reasons for the Court's refusal in Sanchez-Llamas to give effect to judgments of an international tribunal absent a clear and explicit authorization by Congress or the Senate.

GPS tracking "technocorrections" is all the rage in the law enforcement and criminal justice arenas. But just like early adopters of computer gadgetry that quickly becomes anachronistic, some solutions like ubiquitous camera surveillance and GPS tracking of probationers haven't always delivered as advertised. According to today's London Telegraph:

The practice of electronically tagging criminals, suspects and alleged terrorists on control orders is being undermined every time the mobile phone system crashes, it was claimed yesterday.

***

Electronic tagging devices for people released from prison, as a "low risk," or suspects on bail, was introduced by the Government in 1999.

"The picture that emerges is one that includes regular equipment breakdowns, offenders breaching their curfew with little apparent consequence and of monitoring officers struggling to actually locate the people who they should be tagging," Panorama said.

That doesn't sound like a great track record, does it, for a program that's been in place eight years? I'm reminded that victim advocates at the Texas Association Against Sexual Assault (TAASA) more or less predicted such problems in legislative testimony critical of Texas' new Jessica's Law.

Results of habeas study released Aug 21, 2007 led by Nancy King, Lee S. and Charles A. Speir Professor of Law at Vanderbilt University, finds that fewer state convictions and sentences are being ruled unconstitutional by federal courts.

Are You Kidding Me: the Twenty-Three Year BJ The trial of 41-year-old mother-of-two, Phill Raije Rian, for sexual assault of a 16-year-old neighborhood boy concluded in August. Rian allegedly performed oral sex on the teen, who she knew because he mowed her lawn, on three occasions, each of which lasted between 15 and 30 minutes. Say, I want one. Is it illegal to receive? Rian was reportedly sentenced to 23 years in prison for these crimes. Will sanity never rule?

Registration causes more problems than it solves. Just as Ohio has toughened its sex offender registration system, evidence is building that registration causes more problems than it solves.

There is no empirical evidence that proves sex offender registries do what they're supposed to do -- keep children safe. The U.S. Justice Department is now commissioning and funding studies looking at the effectiveness of registries, Singleton says. But the evidence so far is troubling, according to Jill S. Levenson, southern regional coordinator for the Center for Offender Rehabilitation and Education and a board member of the Ohio Chapter of the Association for the Treatment of Sexual Abusers. "There is a growing body of research that documents what we call collateral consequences of registration and notification; in other words, the kind of unintended consequences of these laws that disrupt stability and interfere with the ability of these offenders to reintegrate and create law-abiding constructive lives for themselves," Levenson says. "Criminals who are placed back in the community need jobs, and they need a place to live. People aren't very sympathetic to that. But the reality is that we know that the factors that are ... associated with a good community adjustment and less recidivism in the future -- desistance from crime -- are stability in housing, social support and employment. These laws contradict what the research tells us about the environmental conditions that lead to the desistance of crime.

Also missing from the law is a mandate to educate the public -- practical information to help people avoid and survive any kind of attack or information to help eliminate myths and misconceptions about sex offenders.

"Sex offenses and sex offenders fall into a really broad range," Levenson says. "Everybody who is convicted of drunk driving is not an alcoholic. Everyone who is convicted of a sex offense is not a sexual predator." Ignorance can make the problem worse, and so can an ill-considered law. "It reinforces that myth of stranger danger," Levenson says. "These laws are passed in response after abductions and murders. They're terrible; all those cases are really frightening and troubling to all of us. It really shakes our sense of safety and security. But sex offender registration is likely to do very little to prevent those kinds of things because most children are sexually abused by people they know."

With up to 95 percent of all sex crimes committed by a person known to the victim, what does a sex offender registry actually accomplish? Nobody knows. Singleton says the one thing it does for sure is make it harder for people to rejoin society. "It drives people underground and destabilizes them," he says. "It stands in the way of a lot of offenders who aren't dangerous ever returning to their lives and getting back on their feet and being productive in our community -- which is what we should all want. "This is bad policy, and this is unfair. It's counterproductive. No one wants to hear that in this community. They want to know that they're safe. This isn't going to make them safe. It can actually be counterproductive -- it makes them more unsafe ... because it gives them a false sense of security." Citybeat.com

USA Patriot Improvement and Reauthorization Act Under a provision of the USA Patriot Improvement and Reauthorization Act, states may ask the attorney general to approve their programs for providing lawyers to death row inmates who appeal their convictions in federal courts. As the Los Angeles Times first reported last week, states whose programs are certified by the attorney general will then have the right to fast-track those appeals. After exhausting their appeals, inmates would have six months to file federal habeas corpus petitions; they now have one year, although that deadline is often ignored or extended. AG Gonzales resigned Monday, Aug. 27. Here's how the Washington Post put it the previous Wednesday -- ASKING Attorney General Alberto R. Gonzales to be the arbiter of the quality of legal representation for death row inmates is a little like asking the head coach of the Dallas Cowboys to pick the starting lineup for the Washington Redskins, just before the two teams are set to play.

Hourly Rates: Top That The hourly rates of the country's top lawyers are increasingly coming with something new -- a comma. Yet, many attorneys are still reluctant to charge $1,000 an hour. "There is a perception issue between $1,050 and $950," says Hugh Ray, a partner at Andrews Kurth LLP in Houston. "At some point, you look bad if you go too high." Mr. Boies says psychology in part has held him back from charging more than $880 per hour, noting, "When I started practicing law in 1966, my billing rate was considerably under $100." "Frankly, it's a little hard to think about anyone who doesn't save lives being worth this much money," says David Boies, one of the nation's best-known trial lawyers, at the Armonk, N.Y., office of Boies, Schiller & Flexner LLP.

Here's the rest of the story, as Paul Harvey would say: Law firms say the boosts aren't just about lining partners' pockets. They're partly a response to booming costs, which in recent years have included skyrocketing associate salaries -- first-year lawyers in many firms make $160,000 a year -- and expenses associated with geographic expansion.

For matters such as bet-the-company deals, intricate patent disputes, huge bankruptcies or complex antitrust litigation, firms often feel they can raise fees for name-brand partners without upsetting clients. Plaintiffs trial lawyers often bill on a contingency-fee basis, earning a share of a settlement or verdict -- an amount that can dwarf top rates. "It represents an opportunity cost when I am working by the hour," says Mr. Susman, Susman Godfrey LLP, who last year raised his hourly fee to $1,100. He did it in part, he says, "to discourage anyone hiring me on that basis."

From My New Favorite Blog: badcopnews.com/ --- ALBUQUERQUE, NEW MEXICO — A trucker has sued the Drug Enforcement Administration, seeking to get back nearly $24,000 seized by DEA agents earlier this month at a weigh station on U.S. 54 in New Mexico north of El Paso, Texas. Anastasio Prieto of El Paso gave a state police officer at the weigh station permission to search the truck to see if it contained “needles or cash in excess of $10,000,” according to the American Civil Liberties Union, which filed the federal lawsuit Thursday. Aug 25.

An Easy Hundred Thou? The government's terrorist screening database flagged Americans and foreigners as suspected terrorists almost 20,000 times last year. But only a small fraction of those questioned were arrested or denied entry into the United States, raising concerns among critics about privacy and the list's effectiveness. A range of state, local and federal agencies as well as U.S. embassies overseas rely on the database to pinpoint terrorism suspects, who can be identified at borders or even during routine traffic stops. The database consolidates a dozen government watch lists, as well as a growing amount of information from various sources, including airline passenger data. The government said it was planning to expand the data-sharing to private-sector groups with a "substantial bearing on homeland security," though officials would not be more specific.

Few specifics are known about how the system operates, how many people are detained or turned back from borders, or the criteria used to identify suspects. The government will not discuss cases, nor will it confirm whether an individual's name is on its list. Slightly more than half of the 20,000 encounters last year were logged by Customs and Border Protection officers, who turned back or handed over to authorities 550 people, most of them foreigners, Customs officials said. FBI and other officials said that they could not provide data on the number of people arrested or denied entry for the other half of the database hits. FBI officials indicated that the number of arrests was small. The government says the database is a powerful tool for identifying and tracking suspected terrorists and for sharing intelligence, and that its purpose is not necessarily to make arrests. But the new details about the numbers, disclosed in an FBI budget document and in interviews, raise questions about the database’s effectiveness and its impact on privacy, critics said. They argued that the number of hits relative to arrests was alarmingly high and indicated that the threshold for including someone on a watch list was too low, potentially violating thousands of Americans’ civil liberties when they are stopped.

David Sobel, senior counsel with the Electronic Frontier Foundation, a privacy organization, said the numbers “suggest a staggeringly high rate of false positives with respect to the identification of supposed terrorists.” He added that “this really confirms the long-standing fear that this list is inaccurate and ultimately ineffective as an anti-terrorism tool.” Francisco "Kiko" Martinez, a Colorado lawyer and civil-rights activist, said he was detained twice in recent years by police officers who pulled him over on traffic stops and held him in one case more than three hours, and in another, in handcuffs. Through legal proceedings, Martinez obtained police reports that revealed his watch-list status. "A driver's license check revealed [Martinez] as a possible individual having ties with terrorism," a state trooper wrote after a 2004 stop near Chicago, according to one report.

Last year, Martinez sued the federal government, claiming that he was unlawfully detained and that he was included on a watch list as a result of his political activities.

Last month, he won a $106,500 settlement from federal, state and tribal authorities. Though the settlement did not address any of the underlying constitutional claims, Martinez asserted that it "shows that I shouldn't have been on this terrorism watch list in the first place" and that "the government is misusing this so-called war against terrorism to target its domestic political opponents." Ellen Nakashima, Washington Post.

An Innovative Innocence Project -- Not everyone convicted of a crime claims to be innocent. Z will start collecting data for an online listing of all who swear upon penalty of perjury to their innocence. An application form will be sent to all subscribers for wider distribution. Thank you, reader, for the suggestion! A sampling:

Deliberate Fraud, Due Process and Civil Rights Violations;

The Entire Trial Was Rendered A Farce and Mockery;

The Police, FBI and State have Perpetrated a Conspiracy;

I Was Coerced into Pleading Guilty (e.g., Senator Larry Craig)

Grievances: The nurse saw me carrying my crutches and my typewriter to law library and took away my crutches. Damn, I now wish I'd kept that third hand growing out of my elbow!

• I got a serve all, moved to the buildings and out to the fields after 3 years in the soap factory with High Performance Evals and no disciplinaries. What gives?

Mailbag: A War on Spin,

When exactly did the U.S. Lose its majesty and begin slipping into the vortex of social decay it is now in? Sociologists have undoubtedly asked that question many times. There are incidents in the past one could point to, both external and internal, but I suggest it was caused by a far more sinister foe—spin.

Spin is a twist (or change) in the presentation of material designed to show the material in a desired fashion. One may put positive, negative, or no spin on a presentation, thus encouraging a favorable, unfavorable, or unbiased impression on one's audience respectfully. An example would be declaring war on an abstract (i.e. War on crime, war on terror, war on poverty, etc.). By using the owrd war, politicians are using spin to further their agendas on social issues. A famous exdample is “December 7, 1941. A date that will live in infamy” -- the actual speech read “live in history.” President Roosevelt changed (or 'put spin on') the words for greater emphasis.

So what's wrong with spin? On the surface, nothing appears wrong, however, let's look closer at what spin actually is. Spin is a relatively new term for a very old technique. It's twisting or changing the way something is presented tomake it appear better or worse than it actually is. It's been known by many different names in the business and legal professions, but it boils down to misrepresenting truth for impact. In a nutshell, spin is selling a lemon.

Therein lies our foe. There have been countless political figures in the past and present that have 'sold a lemon' to the American people. Ever notice how many politicians are either very successful busienss people, lawyers, or both? One may argue management skills or wisdom, but is it really? Or is it just a matter of who has the best spin to sell the lemon? We, as citizens of the U.S. And the world have a duty to declare “War on Spin” and start looking at the truth.

G.J.S. aka Schmitty

Cataracts A class action waiting to happen

CAJA, Citizens Against Judicial Abuse, about which more will soon be written, lord willing

Homicide - To Address the question about “criminal negligent homicide” from a reader. In the Maryland Criminal Code, a murder is in the first degree if it is a “deliberate, premeditated, and willful killing.” A murder that “is not in the first degree is in the second degree.”

In the Virginia Code, unintentional killings are further defined. So that one whom “unintentionally causes the death of another person, is guilty of involuntary manslaughter.” And, “If, in addition, the conduct of the defendant was so gross, wanton, and culpable as to show a reckless disregard for human life, he shall be guilty of aggravated involuntary manslaughter.”

NB. It's late but I hope it helped.

Abuse of Power: A Tall Texas Tale

One could simply write a story about being in prison without mentioning how one got there. But that would leave far too many questions unanswered. So, one should devote a few words to the preliminary how before going on to the what of having been there. Call me Ishmael, but don't call me late for dinner. My wife and I were threatened with jail, and I was actually wrongly convicted by a couple of big words called inducement and coercion, so that I was wrongly imprisoned -- that's right, wrongly imprisoned -- for five years. My story is fearfully more common than any of you would care to believe. At least, that is, if you are not from Siberia, or Mars. The American Gulag is only just now in the process of discovery: Guantanamo Bay, Cuba; the suspension of Habeas Corpus; policies permitting torture and renditions – and the invasions of privacy, proliferation of registries, of sex offenders living under bridges -- all mere symptoms of the end of empire. Th'ar she blows!

The events that resulted in this travesty and my personal miscarriage of justice follow.

I.

The nightmare began when my wife over-reacted one Friday night in October. Over-acted might have been closer to the truth. We had just moved to Houston, Texas, and nobody knew us from Adam, or so any ordinary proverbial “reasonable” man or woman would have thought. What I'm saying is this: how could anybody, no matter how evil, hold a grudge for over twenty, much less thirty years – oh yes, evil exists.

I ran into Harriet that Autumn and she seemed to know a little too much about me than a stranger should, by rights, but then she was no stranger—as it turns out, I just didn't know it. Our thread wanders already.

By setting out in a snit to take the children to a nearby hospital emergency room at the hour that she did, Faith, my wife, could not have realized the opening which that ill-fated act would present for certain unscrupulous and mean, lazy and truly crazy foster care people and the police. The other major players in this story are the prosecuting attorneys, and being the good lawyers that they are they did no more or less than any other lawyer, which is to say, whatever the politics of the situation demanded, as well as whatever the client or superior who paid the salary or retainer or completed the personnel evaluation -- as the case may be -- told them to do and not what a proper investigation, and the evidence, would have led any truly honorable person to do. Aside, did you know that they used to call the legal profession the honorable profession? Ah, the “village people,” Faith called them. That would be Rice Village, I suppose. Not to bring any dishonor upon that venerable institution of higher education, Rice University after which the Village is named. Oh, did you know the venerable AG Gonzalez went there? So anyway, it was 10:00 p.m. on a Friday night in October: too close to Halloween for comfort if you are superstitious or anything like that. I'm not. Back, back ... to our story.

Faith was extremely, and I do mean extremely, in a paranoid and psychotic kind of way, p o'd at me for having drank too much, and yes, I had imbibed a bit much but that was all. Well, I did have the stereo playing pretty loud. It was Beethoven. But after all, it WAS Friday night. And I had been alone. That's when it happened.

Faith and the girls came home around eight. Nancy and Kris and I were goofing around in the living room and the next thing I knew N came in and said, “Dad, did you touch K?”

“What are you talking about?” I said, puzzled.

She left for a moment and came back and said, “Dad ... I think you're in trouble.”

And Faith came into the room demanding to know WHAT HAPPENED, and accused me of something terrible, of something that I had not done. Something which I vigorously denied immediately. To no avail then. Or ever.

And so that's how they left the house that Friday night in October. Nancy had been in the room the whole time with K and me. She knew something was not right and protested vigorously about going to the hospital. More than me. Me, who probably said something stupid like, “fine, nothing happened, so go ahead.” Little did we know what evil fruit that innocent effort to ascertain WHAT HAPPENED was to bring to bear upon us. Or was that effort quite so innocent? Water under the bridge.

Alas, in any event then, when they got to the E.R. this whole thing just happened. The entire family, Mom (Faith), big sister (Nancy) and “victim” (Kristin) were literally forced, coerced, threatened and made to wait into the wee morning hours, and consequently became completely sleep-deprived before anybody even looked at them. Topping that, they were threatened and told not to leave or they would all be arrested. All of this, simply because Faith had been curious, or furious or both.

Which is to say, what had our five-year-old, Kristin, said? And had she been completely truthful in what she had told Faith. Faith, obviously, who was a grown woman, a mother by choice, and not sexually naïve. Not in contrast to Kristin certainly, who was just getting ready to turn six. Faith immediately thought the worst. The worst, of course, about which Kristin absolutely could not have had any clue. The worst, which alleged happening, if mom had given even an ounce of thought to it at the time, could not, objectively, have occurred given the contemporaneous and immediate readily observable, facts. Facts that a simple and common sense visual investigation among girls could have readily revealed. Period. Which fact, later, actually did become evident to Faith, but by then it was already too late.

I, on the other hand, despite my relatively pickled condition knew at once, because of my experience as a lawyer in a previous life, that what our precious little daughter had done then and there was to allege that a rather serious criminal infraction had occurred and that I committed it. Even a touching, no matter how slight, is a serious matter these days. The first year law student will learn that just a slightest touch might constitute “assault and battery” according to something called “common law.” They call it common because being unwritten and not “statutory” or legislated it is judge-made and simply handed down from the bench over time. Judges at one time had a lot of power. They still do.

To Be Continued ...

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