Z

The Legal Monthly

Vol. 2 No. 4 Read Z the Blog at http://zlegaltimes.blogspot.com/ April 2007

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

Contents

Supreme Court Prisoner Litigation

Habeas: Boumediene and Al Odah denial of certiorari

Criminal Causes: Fry v. Pliler oral argument; Roper v Weaver oral argument; Medellin v. Texas briefed and ready for review; Uttecht v. Brown brief filed

Civil Rights: Wilkie v. Robbins oral argument (1983 action)

Top News Update

Modus Operandi -- Conspiracies, Politics of Crime, & the Bushy (Hairy) United States Dept. of Justice (DOJ):

1. Obstructing Attorney General Gonzales: Monica Goodling, Deputy AG, resigns after taking the Fifth, another casualty of the political firings of the seven Deputy AGs (4/7); Successors to AG Gonzales already being sought. D. Kyle Sampson's departure from the Justice Department came quietly and swiftly. One day he was chief of staff, the next day he was gone. But the story of Monica Goodling's eventual resignation from the Justice Department last week was hardly as simple. The 33-year-old White House liaison and senior counselor to Attorney General Alberto Gonzales took a voluntary leave of absence last month but quickly made headlines declaring she would invoke her Fifth Amendment rights in the face of congressional pressure to testify about the U.S. attorney firings. Her dramatic posture raised more questions than it answered as reporters began piecing together how this Republican operative climbed so quickly to the highest echelons of DOJ. Now, they've lost all the emails. Curious, just when the Senate issued the subpoenas...

2. White House Aid Found Guilty: Will Scooter Libby get a guideline sentence?

Florida Felons: Florida Governor Charlie Crist persuaded the state’s clemency board to pass a measure that will allow most felons to easily regain their voting rights after finishing their prison terms. The change is a major shift in policy in a state that bans more people from the polls and has more disenfranchised ex-offenders than any other state. Now that ex-cons can go to the voting booth, what remains to be seen is if Florida will count all votes cast in elections.

Texas Wrongful Convictions It has taken nearly 25 years, but with the assistance of DNA testing, the men — all African American — are proving they are indeed innocent. Two were freed from prison. A third was cleared last month, years after serving his sentence. Today, Giles is expected to clear his name and become the 13th man from Dallas County to prove with genetic testing that he was wrongly imprisoned. The wrongful convictions of these four men are some of the most dramatic examples of prosecutions in the Lone Star State that have come under increasing scrutiny. Dallas County has had more people exonerated by DNA than all but three entire states. Texas, which leads the nation in convictions overturned by genetic testing, has had 27, Illinois, 26, and New York, 23. California has had nine exonerations. With countless current and former Texas prisoners clamoring for testing to clear their names — more than 430 in Dallas County — law enforcement officials predict that the number of overturned convictions will grow exponentially. Texas prosecutors have typically fought activists' attempts to revisit cases. But Dallas County Dist. Atty. Craig Watkins, the first African American elected to the office, has forged an unusual alliance with the Innocence Project, a New York-based group that uses DNA testing to challenge convictions. Los Angeles Times, April 9.

My question is this: What are we going to do about all of the wrongful convictions that can't be proven by DNA. You know they are out there.

Fix Texas Parole: Attorney Norm Sirak's March 23 update sounds hopeful that class certification will be forthcoming.

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Boumediene -- The Detainee Cases

April 2 the Court denied the cert. petitions in the Guantanamo detainee cases, to wait until the Pentagon's detention decisions have been reviewed by the U.S. Court of Appeals for the District of Columbia Circuit, as prescribed in the Detainee Treatment Act and Military Commissions Act. Marty Lederman at SCOTUSblog speculates Justice Kennedy holds the balance and did not tip his hand on the merits (If either block of four Justices had been confident of gaining his vote, they presumably would have voted to grant the petition.) Justice Stevens and Justice Kennedy have been the principal architects of the Court's detainee cases, and they wrote jointly with a stern warning to the government not to delay the proceedings below:

Despite the obvious importance of the issues raised in these cases, we are persuaded that traditional rules governing our decision of constitutional questions, see Ashwander v. TVA, 297 U. S. 288, 341 (1936) (Brandeis, J., concurring), and our practice of requiring the exhaustion of available remedies as a precondition to accepting jurisdiction over applications for the writ of habeas corpus, cf. Ex parte Hawk, 321 U. S. 114 (1944) (per curiam), make it appropriate to deny these petitions at this time. However, "[t]his Court has frequently recognized that the policy underlying the exhaustion-of-remedies doctrine does not require the exhaustion of inadequate remedies." Marino v. Ragen, 332 U. S. 561, 570, n. 12 (1947) (Rutledge, J., concurring). [NOTE Justice Stevens's continuing resurrection of the wisdom of Justice Rutledge's wartime decisions -- Marino was a case of which Justice Rutledge and his clerk, one John Stevens, were especially proud -- see Diane Amann's new article, 74 Fordham L. Rev. 1569, 1580-1582.] If petitioners later seek to establish that the Government has unreasonably delayed proceedings under the Detainee Treatment Act of 2005, Tit. X, 119 Stat. 2739, or some other and ongoing injury, alternative means exist for us to consider our jurisdiction over the allegations made by petitioners before the Court of Appeals. See 28 U. S. C. §§1651(a), 2241. Were the Government to take additional steps to prejudice the position of petitioners in seeking review in this Court, "courts of competent jurisdiction," including this Court, "should act promptly to ensure that the office and purposes of the writ of habeas corpus are not compromised." Padilla v. Hanft, 547 U. S. 1062, 1064 (2006) (Kennedy, J., concurring in denial of certiorari). And as always, denial of certiorari does not constitute an expression of any opinion on the merits. See Rasul v. Bush, 542 U. S. 466, 480-481 (2004) (majority opinion of Stevens, J.); id., at 487 (Kennedy, J., concurring in judgment).

Sidenote. Former U.S. attorney for the Western District of New York, Michael Battle, made news recently by leaving Justice and joining the firm of Fulbright and Jaworski. He made the calls to the U.S. Attorneys fired on December 7. Incidentally, he won guilty pleas from the terror cell known as the Lackawanna Six. Defense lawyers say the men were forced to plead guilty after the government threatened to declare them "enemy combatants" and strip them of legal rights. "We had to worry about the defendants being whisked out of the courtroom and declared enemy combatants if the case started going well for us," said attorney Patrick J. Brown, who defended one of the accused. "So we just ran up the white flag and folded. Most of us wish we'd never been associated with this case." Washington Post, July 29, 2003.

Arguments: Fry v. Pliler: On Tuesday (3/20) the Court heard argument in Fry v. Pliler (No. 06-5427), considering whether federal habeas proceedings should use the “harmless beyond a reasonable doubt” standard established by the Court in Chapman v. California or Brecht v. Abrahamson's “substantial and injurious effect” standard when there has been no harmless error analysis on direct review by state courts.

Roper v. Weaver

During oral argument yesterday (3/22) the Court appeared to be divided both on what standard of review it should apply and on the question on which it granted certiorari: whether a prosecutor overstepped the bounds of clearly established Supreme Court precedent when he made inflammatory closing statements during the penalty phase of a capital murder case. Respondent William Weaver sought federal habeas relief from his state death sentence on the ground that the prosecutor’s penalty phase closing statement had violated his due process rights. A divided Eighth Circuit granted Weaver relief without agreeing on a basis for that decision, and the Supreme Court granted certiorari to determine whether habeas relief was appropriate. In addition to the question presented in Roper, the Court also raised a threshold question that went largely undiscussed in the parties’ briefs – whether AEDPA’s deferential standard even applies to this case.

Medellin v. Texas

The Supreme Court will take up a new test of presidential authority at its private Conference on April 20. With the U.S. government joining lawyers for a Mexican national in urging the Justices to take on the case, the chances of review appear enhanced. The case was at the Court once before, but did not result in a ruling on the key issues now at stake. The case involves the attempt by President Bush to have Texas state courts abide by a ruling of the World Court that the United States, and some of its states, have violated the Vienna Convention on the right of foreign nationals arrested and prosecuted for crime in the U.S. to meet with a diplomat from their home country.

Filed

Uttecht v. Brown, brief filed on behalf of the National Association of Criminal Defense Attorneys (constitutional limitations on the dismissal for cause of jurors in capital cases based on their views about the death penalty—to be argued in an afternoon session on April 17). The practice of death qualification, excluding individuals from capital juries based on their beliefs about the death penalty, must be strictly circumscribed to ensure a fair trial for the accused and to preserve the jury's historic role as the community's representative in rendering the gravest decision the criminal justice system is ever called upon to make. The liberal dismissal of jurors who express reservations about capital punishment in general, or a reluctance to impose it except in restricted circumstances, skews capital juries toward death and undermines the representative nature of the jury and, thereby, public confidence in the capital sentencing process.

To balance these risks against the State's legitimate interest in removing jurors who are unwilling to follow the law, this Court established in Wainwright v. Witt, 469 U.S. 412 (1985), that a juror may not be excused for cause based on his views on capital punishment unless the prosecution demonstrates that those views prevent or substantially impair his ability to do his duty as a juror and follow his oath. In Washington, as in many states, that duty entails the exercise of substantial judgment and discretion about when death is appropriate or leniency warranted. In fact, by statute, a Washington jury is simply asked whether “sufficient mitigating circumstances merit leniency.” Wash. Rev. Code § 10.95.060(4). In making that determination, the jury may consider any fact in mitigation, including “[w]hether there is a likelihood that the defendant will pose a danger to others in the future.” Id. § 10.95.070(8). Only if a juror is incapable of exercising that broad discretion may he be dismissed for cause under Witt.

In this case, the trial court dismissed juror Richard Deal after the prosecution objected that Deal “never overcame [the] idea that [the defendant] must kill again . . . or be in a position to kill again” in order to warrant a death sentence. Pet. App. 241a-242a

Wilkie v. Robbins,

The question of whether a Bivens remedy is available for retaliation for the exercise of the Fifth Amendment right against government takings dominated the oral argument on Monday in Wilkie v. Robbins, No. 06-219. In Wilkie, respondent Harvey Frank Robbins had filed suit against officers of the Bureau of Land Management (BLM) for violations of the Fifth Amendment and the Racketeer Influenced and Corrupt Organizations Act (RICO). Robbins alleged that the BLM officers had harassed him over a number of years in retaliation for his refusal to give the BLM a right-of-way over his land. Although the Supreme Court certified three questions involving both the RICO and Bivens claims, on this interlocutory appeal from the denial of qualified immunity, the Justices focused on the Bivens claim during oral argument and contemplated how to balance remedies for misconduct by government officials with the efficient functioning of governmental agencies.

Pending Question:

The Supreme Court indicated on Tuesday (3/20) that at least some Justices are interested in claims by state prisoners that they should be able to get more retroactive benefit out of U.S. Supreme Court decisions that lay down new rules of criminal procedure. The Court's electronic docket shows an order asking the state of Minnesota to discuss that question. The case is Danforth v. Minnesota (06-8273): "Are state supreme courts required to use the standard announced in Teague v. Lane, 489 U.S. 288 (1989), to determine whether United States Supreme Court decisions apply retroactively to state-court criminal cases, or may a state court apply state-law or state-constitution-based retroactivity tests that afford application of Supreme Court decisions to a broader class of criminal defendants than the class defined by Teague?" A number of state courts have divided on that question. The state's response on the Teague point is due April 19. Danforth's lawyer will be able to file a reply.

New Certs:

Justices agreed to rule on the constitutionality of a 2003 law passed by Congress to criminalize distribution of child pornographic materials over the Internet and through the mails. The newly granted cases will be heard in the new Term starting in October. U.S. v. Williams (06-694; cert. petition, reply). It involves the validity of the 2003 "PROTECT Act" that Congress passed to try to shore up federal controls on child porn after the Supreme Court struck down a 1996 federal law on the subject in Ashcroft v. Free Speech Coalition (2002). The PROTECT Act is separate from the law struck down last week by a federal judge in Philadelphia, involving a federal law that solely targets Internet distribution of sexually explicit materials in order to protect children with access to computers and other online devices. (March 26.)

http://www.scotusblog.com/movabletype/archives/2007/03/court_to_hear_s_3.html

Other Stuff: Electioneering FEC v. Wisconsin Right to Life and McCain, et al., v. Wisconsin Right to Life

Wisconsin Right to Life -- asked the Court to reconsider one facet of the 2003 decision in McConnell v. Federal Election Commission -- the part that upheld, as written (but not necessarily as applied), the provision that bans so-called "electioneering communications." That ban operates in two campaign "blackout" periods -- 30 days before a federal primary election and 60 days before a general election. It applies to corporations or labor unions that pay for the broadcast ads out of their own treasuries if the ads name a candidate. The new brief was filed in the consolidated cases of FEC v. Wisconsin Right to Life (06-969) and McCain, et al., v. Wisconsin Right to Life (06-970). The Court will hold one hour of argument on those cases on April 25.

Environmental (Read Global Warming) Opinions: Rockwell International v. U.S. ex rel. Stone

The Supreme Court ruled on Tuesday, (March 27) by a vote of 6-2, that a person bringing a lawsuit to recover misspent federal funds must have direct and independent knowledge of the facts behind the claim in order to be eligible to sue. The facts for which that individual must be the original source, the Court declared, are the facts underlying the specific claims asserted, rather than being the source for information that came out in public through government action. Thus, if the facts change as the claim proceeds in court, the suing individual must still know personally of the facts underlying the changing claims.

The decision, written by Justice Antonin Scalia, clarified the meaning of the False Claims Act requirement that an individual bringing a so-called "qui tam" lawsuit must be able to show that he or she is the "original source" of the information about the false claim, and thus is not relying upon information previously disclosed to the public. The ruling, in Rockwell International v. U.S.ex rel. Stone, concluded that the suing individual must satisfy the "original source" requirement in all stages of the lawsuit, and not just in the original complaint.

Massachusetts v. EPA (4/2)

The practical result of today’s ruling in Massachusetts v. EPA, No. 05-1120, is that five justices, in a binding decision of the Supreme Court, have ordered EPA to review its decision to not regulate greenhouse gas emissions from new motor vehicles. The Court does not tell EPA what decision to reach, and EPA may very well reach the same result as before, just on different grounds that are more permissible to this Court.

What is remarkable about the decision is that the Chief Justice, in dissent, spent his entire argument reflecting on the gateway issue of standing, expressing grave concerns about the Court’s venture into issuing symbolic proclamations.

http://www.scotusblog.com/movabletype/archives/2007/04/discussion_boar_3.html#more

The upshot: Mass. v. EPA is more evidence that a majority on the Court deeply distrusts President Bush and views agency policies that bear his fingerprints with a jaundiced eye. If that’s right, then this case may offer more evidence for the thesis that the Bush administration’s tin-eared aggressiveness on the issue of the unitary executive has actually eroded the standing and power of the executive before the Court—not just on national security fronts but, quite possibly, across a far broader field of regulatory initiatives.

Environmental Defense v. Duke Energy Corp., No. 05-848, (4/2)

The Supreme Court’s decision today in Environmental Defense v. Duke Energy Corp., No. 05-848, decided both a great deal and very little in the battles over the legality and propriety of the Environmental Protection Agency’s (“EPA”) new source review (“NSR”) enforcement initiative. On one hand, the Supreme Court rejected the rationale adopted by the Fourth Circuit and at least one other district court and ruled in the government’s favor on a key legal issue—how to define an emission increase for purposes of the NSR program. On the other hand, the Supreme Court did not decide other key disputed issues regarding the NSR program, which have the potential to keep alive Duke Energy and the other lawsuits that are part of EPA’s NSR enforcement initiative. Moreover, the Court suggested that EPA has broad discretion to interpret key components of the NSR program, a key issue in considering the legality of the Bush Administration’s attempts and proposals to reform the NSR program. As a result, it remains to be seen whether Duke Energy will signal the end of the ongoing NSR saga or whether it will simply substitute one issue for another in the pending enforcement actions.

Leegin Creative Leather Products Inc. v. PSKS Inc.

The Supreme Court found itself drawn deeply on Monday into the economics of modern retailing, and confronted a complex yet very simply stated question: do consumers really benefit the most from low prices, or is something else more important for them -- like service or a selection of brands? And that translated into a legal question: should the Justices shape antitrust law to promote one or the other of those consumer preferences? The oral argument showed the Court more closely divided than might have seemed likely when the case was granted in December. The Court is being asked in the case to overrule the 1911 Dr. Miles decision, so as to allow manufacturers of consumer goods more legal leeway to bar discount prices when their products are sold at retail. Because the Court in modern times has swept away antitrust rules that are like the price-maintenance ban of the Dr. Miles decision, and because a chorus of economists insists that the consumer goods market is more dynamic now and needs more flexible legal rules, the rule of Dr. Miles might well have been judged to be in serious trouble.

Have we really made the streets safer, especially the streets of poor neighborhoods? Is prison a cause or a byproduct of the larger tragedy of poverty? Through mass incarceration "the poor are made poorer and have fewer prospects."

In marginalizing so many men, in the cause of stabilizing their community, the prison boom risks destroying the communities it aims to save. Mass imprisonment, "may be a self-defeating strategy for crime control."

Western gives the prison boom just 10 percent of the credit for the decreases in crime seen in the 1990s. Steven Levitt of the University of Chicago and William Spelman of the University of Texas have each done statistical analyses that give rising incarceration about a third of the credit for reduced crime.

Western is rewriting one of the era's major story lines. "This is the first recovery in three decades where everybody got better at the same time," President Clinton said just before leaving office. "I just think that's so important."

Punishment and Inequality in America shows that among one vital group of the poor, the opposite was true: as official unemployment hit record lows, joblessness among young black dropouts rose to record highs. The prison expansion reflected inequality. The prison expansion created inequality. The prison expansion hid inequality from view.

The problems that arise inside prisons go home "with prisoners after they are released and with corrections officers at the end of each day's shift." The most obvious example involves the 1.5 million people who are released from prisons and jails each year with an infectious disease—tuberculosis, hepatitis, HIV, and drug-resistant staph infections. Prisons are the modern mental wards. By the most conservative estimate, the mentally ill account for 16 percent of the prison population, or about 350,000 people on a given day; their true numbers may be twice as high.

If felons were allowed to vote, the United States would have a different president. Disproportionately poor and black, felons choose Democrats in overwhelming numbers —giving them between 70 percent and 85 percent of their votes in presidential elections. Had they been allowed to vote in 2000 Al Gore's margin in the popular vote would have doubled to a million. If Florida had allowed just ex-felons to vote—those who can claim to have paid their debt to society—Gore would have carried the state by 30,000 votes and with it the electoral college.

Manza and Uggen find that seven modern Republican senators owe their election to laws that keep felons from voting: John Warner of Virginia (1978), John Tower of Texas (1978), Mitch McConnell of Kentucky (1984), Connie Mack of Florida (1988), Paul Coverdell of Georgia (1992), Jim Bunning of Kentucky (1998), and Mel Martinez of Florida (1998). Four would have lost even if only the ex-felons in their states had voting rights.

Since the Senate has been so closely divided, a fuller enfranchisement might have shifted some years of partisan control to the Democrats. Consider just one result of Senate legislation—the upward distribution of wealth through the Bush-era tax cuts—and one sees anew how mass incarceration abets inequality.

Justice Kennedy, a Reagan appointee, chided the members of the American Bar Association for their failure to show more interest in prisoners' fates (speech at the annual meeting of the American Bar Association, August 9, 2003). He warned, “A decent and free society, founded in respect for the individual, ought not to run a system with a sign at the entrance for inmates saying, "Abandon Hope, All Ye Who Enter Here."

The Texas Public Policy Foundation recently called for an expansion of parole, which "recognizes that inmates may change." And the new Democratic Congress, with the support of federal judges to the left and right, is talking of hearings to reexamine mandatory sentencing laws.

The commission on prison safety report got a plug from a Washington newspaper—not from the Post but from the editorial page of the conservative tip sheet The Washington Times. Prisoners deserve punishment, it said. "But we shouldn't forget that a vast majority will also be returned to society, which has as much at stake in their rehabilitation as they do."^[10]

The American Prison Nightmare, Jason DeParle (NYRB April 12, 2007);

Punishment and Inequality in America,

Bruce Western (Russell Sage Foundation, 247 pp., $29.95); Confronting Confinement: A Report of the Commission on Safety and Abuse in America's Prisons, John J. Gibbons and Nicholas de B. Katzenbach, co-chairs (Vera Institute of Justice,122 pp.--available at www.prisoncommission.org); Locked Out: Felon Disenfranchisement and American Democracy, Jeff Manza and Christopher Uggen (Oxford University Press, 359 pp., $29.95)

http://www.nybooks.com/articles/20056

Texas Prisons: Texas prisons face an overincarceration crisis. The Legislative Budget Board estimates that at current trends the state will be 17,000 prison bed short by 2012. Read more: http://gritsforbreakfast.blogspot.com/

Maryland's prison population has tripled in the past 20 years, from 7,731 in 1980 to 24,186 in 2003. During the 1980s and 1990s, Maryland's per capita state spending on corrections grew by over 100%. By way of comparison, per capita state spending on corrections grew at four times the rate of increase in higher education spending. http://www.drugpolicy.org/statebystate/maryland/

Maryland has a higher proportion of people going to prison for drug offenses than all-but three other states, and the cycle of addiction, treatment failure and incarceration affects thousands of people each year. While African Americans represent a third of the states’ population, 9 out of 10 people in prison for drug offense are African American. The total cost of incarcerating people in Maryland for drug crimes runs into the hundreds of millions of dollars. http://justicepolicy.org/projects/maryland/maryland.htm

Race and Imprisonment in Texas http://justicepolicy.org/reports/report-a-ri.html

Policies that have led the United States to have the world’s largest jail and prison population

(2.1 million) and highest incarceration rate (714 per 100,000) have had a disproportionate

impact on African Americans, Latinos and other communities defined as non-White.

In 2003 African American, men across the nation were incarcerated seven times the rate of Whites while Latinos were incarcerated at 2.6 times the rate of Whites. African Americans and Latinos comprised 68% of all people in prison and jail in 2003, even

though African Americans and Latinos make up 25% of the US population. If incarceration rates continue at these levels, one in 17 White men (5.9%), one in six Latino men (17%), and one in three African American men (32%) born in 2001 will serve time in prison at some point in their lifetime. 5.6 million Americans are current or former prisoners; 39% of those are African Americans (2,203,000), even though African Americans comprise only 12% of the national population.

Justice Policy Institute reported that one out of eight White male dropouts, and half of all African American male dropouts had prison records by their early thirties, and that nearly twice as many African American men in their early 30s have prison records (22 %) as Bachelors degrees (12 %). Unfortunately, these racial and ethnic disparities hold true for Texas as well. Controversy has periodically flared up around the racial impact of law enforcement practices in Texas. In 1999, a drug sting operation in the small town of Tulia, Texas resulted in the arrest of 46 people, 40 of whom were black. The remaining six individuals were either Latinos or whites dating blacks. The arrests incarcerated almost 15% of the black population, and was denounced as a form of "racial profiling" by

the NAACP and the ACLU. These controversies have spurred on policy reforms which have been debated locally and in Austin on how to make the justice system fairer and more just: While cases were dismissed against many of those arrested in Tulia, in June, 2003, Republican Governor Rick

Perry signed a (bill unanimously approved by the Texas House of Representatives) allowing the 13 remaining inmates to be freed on bond. Since then, the Tulia defendants settled a civil suit against the officials they say were responsible for their wrongful convictions.

Prison related spending by the state has had a profound and damaging impact on state spending and on the economic vitality of Texas’s communities of color.

Maryland’s Election Crime Ads in Context

Background: The Justice Policy Institute, a non-partisan, non-profit research organization, offers the following background data and findings to put the recent television and web-based campaign advertisements by the candidates for governor of Maryland into context.

“While cities like New York have been able to get violent crime under control, O'Malley promised and failed.” Campaign to Re-Elect Robert Ehrlich

Violent crime in Baltimore, as in most major American cities, fell over the last decade. Violent crimes in Baltimore have decreased 48 percent over the last 10 years, which is comparable to other large cities, such as New York City (53 percent drop), Washington, D.C. (48 percent), Chicago (51 percent), and Los Angeles (55 percent).

Increased policing and use of incarceration can have a negative impact on public safety. While some Baltimore neighborhoods still experience high rates of crime and violence, investing in more prisons and police are not effective solutions. Research from the University of Maryland found that some Maryland neighborhoods with high rates of criminal justice involvement also saw an increase in lethal violence. Removing integral members of a neighborhood may only cause more problems for the community.

“And under his watch, prisons are out of control, with corrections officers being murdered and nearly 20 times more violent incidents involving weapons than the larger Pennsylvania prison system.” Campaign to Elect Martin O’Malley

If the state wants to improve safety in prisons, it should promote effective programming in prisons. Correctional education programs have been shown to reduce idleness, promote self-esteem, supply incentives for good behavior, and create positive role models among inmates. As a recent national commission on prison abuse found, “the majority of prisons and many jails hold more people than they can deal with safely and effectively, creating a degree of disorder and tension almost certain to erupt into violence. Similarly, few conditions compromise safety more than idleness. But because lawmakers have reduced funding for programming, prisoners today are largely inactive and unproductive.”A study from Psychology, Crime and Law found that highly structured programs that help prisoners understand the motivations underlying their actions, and the consequences of their behavior, can reduce misconduct. Investing in prison programming that meets people’s educational, vocational and treatment needs will reduce the level of violence in prisons, and prepare people to return to their communities.

“He cut State drug treatment funding in Baltimore by $3 million – from $52.2 million in FY 2003 to $49.2 million in FY 2005.” Campaign to Elect Martin O’Malley

“Governor Ehrlich launched “Project RESTART,” his bold new plan to provide nonviolent offenders substance abuse treatment and education to help them become responsible members of the community.” Campaign to Re-Elect Robert Ehrlich

While providing drug treatment to people involved in the criminal justice system can promote public safety, Baltimore, and the state as a whole, has made “slow progress” towards achieving the goal of treatment, not incarceration. Although both Maryland gubernatorial candidates have made efforts to increase the amount of drug treatment available to people in the criminal justice system, not nearly enough money has been made available to meet treatment needs in the community.

• For every dollar spent on drug prisoners, only 26 cents is spent on drug treatment. A recent report by the Justice Policy Institute found that for every dollar spent to imprison people convicted of nonviolent drug offenses, Maryland (and Baltimore City alone) spends an estimated 26 cents to provide drug treatment to patients referred by the criminal justice system.

• Statewide—Progress and challenges on treatment, not incarceration. Maryland witnessed a 28 percent increase in drug treatment admissions through the criminal justice system, and saw a 7 percent drop in drug prison admissions. Advocates and treatment experts recommend a $30 million increase in funding for drug treatment in order to expand this program and catch up with the increasing costs associated with these programs.

• Baltimore—Progress and challenges on treatment, not incarceration. Baltimore City invested $16 million in criminal justice drug treatment during Fiscal Year 2005. Between 2000 and 2004, the number of treatment admissions from the criminal justice system in Baltimore rose by 50 percent, and the number of people admitted to prison for a drug offense fell by 10 percent.

• The public safety benefits of drug treatment. Maryland jurisdictions that relied on drug treatment were more likely to achieve significant crime rate reductions than those that relied on drug imprisonment. Drug law reforms that make it easier to sentence defendants to treatment, rather than prison, could reduce annual corrections spending by $20 million.

End Parole for Violent Criminals: “The Ehrlich administration has significantly loosened standards for state prisoners who are released on parole and has continued to release violent felons. The Parole Commission has released more than 30% of prisoners for whom they have held hearings in every year since Bob Ehrlich took office. During Governor Glendening’s second term, the percentage was below 30% every year.” Campaign to Elect Martin O’Malley

The public safety impact of increasing the number of people released through parole is miniscule compared to the state’s real violent crime problems. The number of people released by the parole board has increased only marginally.

• In 2005, 32 percent (2,992) of parole eligible prisoners (9,271) were released on parole in Maryland. In FY 2002, only 29 percent were released (2,244 of 7,838), an increase of only 2 percentage points. In 2002, the percentage of parolees who returned to prison within one year of release was only 9.4 percent (or 209 parolees). In 2004, the percentage of parolees who returned to prison increased to 11.4 percent, an increase of only 19 parolees. To put this increase into context, Maryland reports almost 40,000 violent crimes per year; 19 additional crimes should not be a great cause for concern.

• Despite a small increase in the percentage of prisoners granted parole, violent crime rates have still dropped. Maryland citizens reported 39,369 violent crimes in 2005, which is down 6 percent from 2002 (42,015 violent crimes).

• Of greater concern than the slight increase in parolees is the 25 percent of non-paroled prisoners that return to prisons within 1 year of release. Providing drug treatment and vocational, academic and re-entry programs are proven methods of lowering this recidivism rate and promoting public safety in Maryland’s communities.

The Justice Policy Institute is a non-partisan Washington, D.C.-based think tank dedicated to ending society’s reliance on incarceration and promoting effective and just solutions to social problems.

Sources:

-The Campaign to Re-Elect Bob Ehrlich, http://www.bobehrlich.com/

-FBI Uniform Crime Reports, “Crime in the United States, 1995, 2005.” www.fbi.gov/ucr/ucr.htm

-Harries, Keith (2004). “Violence, Change, and Cohort Trajectories: Baltimore Neighborhoods, 1990-2000”. Urban Geography. Vol. 25, p. 14-30.

-Ziedenberg, Jason (2005). “Tipping Point: Maryland’s overuse of incarceration and the impact on public safety.” Washington, D.C.: Justice Policy Institute.

-The Campaign to Elect Martin O’Malley, http://www.martinomalley.com/

-Gibbons, John J. and Nicholas de B. Katzenbach (2006). “Confronting Confinement.” Commission on Safety and

\ Abuse in America’s Prison, p.14. www.prisoncommission.org/report.asp

-Ward and Eccleston (2004). “Risk, Responsibility, and the Treatment of Offenders: Introduction to the Special Issue.” Psychology, Crime and Law, 10(3).

-Pranis, Kevin. (2006). “Progress and Challenges: An analysis of drug treatment and imprisonment in Maryland from 2000 to 2005.” Washington, D.C.: Justice Policy Institute.

-Maryland State Budget Books, FY 2007.

-Maryland Parole Commission FY 2002 Annual Report, p.7

-Maryland State Budget Books, FY 2005, 2007.

Maryland State Budget Books, FY 2005, 2007.

Paper Call I have been asked to produce a written piece about what it's like to be in prison for publication in my law school's Criminal Law Brief publication. Please consider writing up a brief (or lengthy—but your submissions must be received by the end of May so I can meet the June deadline) narrative of your personal perspectives and experiences. I plan to collect these and incorporate them as a written “collage” together with my own. Again, anonymity if requested shall be ensured. I will not publish your name(s) unless you specifically tell me in writing that its okay.

As always your comments are important to me, are encouraged, and will be published in my discretion. Keep them coming! I welcome any and all special interest “scoops” and stories--confidentiality is assured. My pub is not “legal advice” -- it is strictly informative and, hopefully, entertaining. Your subscription dues are even more important to me (just kidding! But it's true). I need $$$ in order to keep reaching out, especially to the indigent guys who really can't even afford a stamp—and if I really start to rake in the cash I can actually start doing stuff that real innocence projects do, filing motions and requests in court, and investigating cases. The Innocence Project continues actively seeking funding and partnerships, volunteers, and individuals to serve on the Board of Directors -- IRS 501(c)(3) exemption registration are imminently in progress. Please send your contribution today.

Subscriptions and Donations: Habeas Corpus Institute, c/o Prison Innocence Project

928 E A Street, Brunswick MD 21716

A Gold Rope & Brass Ring Enterprise

Publisher and Editor: “Major” Mori Goodbar

Weblog, current, and back-issues of Z--The Legal Monthly at http://zlegaltimes.blogspot.com/

301-591-2490

Free to indigent prisoners (and free download) Subscriptions: Twelve dollars per year