Z

The Legal Rag

Vol. 3 No. 2 Read Z the Blog at http://zlegaltimes.blogspot.com/ Nov '08

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

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Editor's Cut

October Baseball

Let Them Eat Cars

Supreme Court

Obama Campaign as Poetry in Motion

Good businesses for 2008-09

From Z Editor Year Three, Issue Two: the rag has been going for Sixteen numbers. Thanks to all who wrote for motivating me to keep it on. Notice I've dropped “monthly” from the title, and replaced it with, well, you have eyes. Monthly was no longer accurate, a minor detail easily corrected.

We've “fallen back” and added an hour of sleep to our drinking schedules; many apologies for missing the Summer issues; the days were too long, the weather too good, the time scarce to sit down at my computer for any length of time. What else, not even a vacation this year, as we were busy visiting colleges and universities, writing the admissions applications and getting ready for a big high school senior year. Daughter Regina is a big Kahuna now, co-captain of the varsity soccer team that won last year's State Cup, and getting ready for engineering school next Fall. So far, Pitt (Swanson School of Engineering), Drexel, SUNY Maritime have delivered acceptances. WOW.

October 2008 also means the Phillys beat the Rays in the World Series after the first ever rain-suspension in World Series history, becoming champs again after about ninety years (I just love those trivial baseball stats); update your own football schedule, pardon me, but Skins play Steelers on the first Monday night in November.

I was playing too much fantasy baseball in July and August. A curious addiction it was. I moved from last or next to last, made playoffs this year, and finished fourth. What did I learn? This is a game of beauty, timing, nerves, skill, patience and strength, mind over matter, and managerial wit, most of which I already knew from having played a little in my day. There is no substitute for the crack of a wooden bat making contact, no similar trajectory of the pill leaving the park in a parabolic arc, of waiting for the call on a close play at home.

Playing baseball, and watching the game being played is one thing: reviewing and utilizing statistical results is another matter entirely. The game can be captured only in part as a game of stats, with a dash of unpre-dictability thrown in; you have to be a little lucky, keep the team healthy, and not be too quick to give the ax early in the season to a veteran player who might be having a slow start. You never know when those old warhorses are going to fail, and by the same token, when they might get hot with the bat. I hated losing OF Ryan Church to a concussion in mid-season. He was on a streak, and I hope he's okay. I was forced to play rookies and youngsters toward the end and found that unfortunately, they were predictably a little unpredictable. You live and learn. For one, OF Crawford got hurt and didn't play well for me in September. Same goes for SS Hanley Ramirez, who finished the season with a top five ranking overall but didn't produce the numbers I needed in the playoffs. Maybe he was making too much $$$ already, and had insufficient incentives to win! The Rays had the second smallest payroll. By comparison the Yankees with one of the highest if not the highest bankrolls in the game didn't make a contest of it in the end. It was the hungry factor: who was hungrier. Too bad the Rays lineup just couldn't get it done, yet I'm glad Philadelphia won.

I had an awesome early relief/closer and starting pitching crew, e.g., Cole Hamels and a few others, but they didn't all come through in September because not all were on contender teams, strong down the stretch, except Cole. We made it a close finish for second, lost that and played for third in the second round of the playoffs, but in the end we pooped out and finished up fourth.

With big money come big responsibilities (and long hours). I dream of owning or just managing my own real, live, baseball club some day, even if it's in the minor leagues. There might just be money in it. Actor Jim Belushi owns a couple of small franchises. Maybe I can get him, or Gretski, MJ, or another one of those rich, yet humble, guys to put up a stake for one. With the coming deflation, we'll soon see even better investment returns in sports and entertainment, and gambling and liquor sales. Or let's make a movie! We'll base it on the best-seller screenplay I'm working on called “America's funniest prison stories”.

For now, Let them eat cars: buy cars, sell cars, wreck cars and buy and sell and trade and fix up and repair more cars, especially high end interiors, which is the business Z operates when not writing this rag. It's the perfect cover for, ... our Superhero, ... Major BATMAN!

Of course, the Supreme Court has returned to session and there's been cause to review the legal blogosphere and news. I apologize I've been failing to keep up with the Circuit cases, but as always if there's a question just ask, and I'm on it.

The federal benches have been filling up (to here) with people from the “right” (not the antonym for the word: wrong); thank god he, Bush, didn't get to put another justice on SCOTUS; which all goes to show the law has been evidencing signs of change in the more radically conservative direction. I didn't think it could get any worse, but I was wrong. What this means for the most part, is, “anti-”: anti- Roe v Wade; anti- criminal defendant and defense bar; anti- immigrant; anti-fair trade; anti-gay; anti-gun control; anti- labor; anti- social security, anti- medicare and unemployment insurance; anti-worker, and can you think of any more? I'll take your comments to heart – you can take mine with a grain.

Poetry in Motion: The Obama Campaign When Conservatives begin to advocate expending Your common resources and wealth, aka Our tax dollars, on protecting and preserving their own hides (and nest eggs) more than on growing the overall wealth, and health of the common-weal, and rather than sharing the proceeds of improved labor productivity fairly with those essential to it, those whom make it possible, I'm speaking of the workers that make economic growth, wealth and health possible; then, and only then, economic conditions will be ripe for revolt, repression, and political change. We seem to be getting close to that place at the present time.

You can't have missed the fact that Obama kicked McCain's butt; or perhaps it was the inevitably tanking economy which did the dirty work. But tell me this, would you vote for a ticket with a gal who can't give a straight answer to the question: what magazines do you read? If she is the future of the Republican party, the Republican party has no future for the foreseeable, vacuous, and infinite, tomorrow. None whatsoever. Period. Nada. Notta. Nyetsky. No. Hell, No. Get me the foreign language dictionaries ... please.

Clearly all she was reading were propaganda talking points prepared by the politicos that ran Bush's presidency in cahoots with the good but misguided and fast-talking Karen Hughes from that lovely ol' place we call Texas. Give it up already, guys; we have your number. And ol' John Mac might have a lot of energy left in that seventy year old frame, but he can't always remember to speak the words he means to speak (most recent case in point is where he blurts the not-soon-to-be-VP Palin is “Senator” – she is actually a governor; sir, you were the senator in this race).

With respect, McCain clearly forgot to review the meaning of the phrase: mean what you say. The Straight Talk Express lost it's wheels and it has been one ugly thing to see.

The other thing that lost wheels, perhaps due to the excessive application of certain lubricants, were the Wall Street banks. That, and Your Four O One K's. I have a little one, and it got even littler. I hope you weren't planning to retire this year because you just lost half your assets.

Good businesses to be in right now: Oil, oil and gas, petroleum, petro- engineering, oil rigging, oil construction, oil engineering, oil futures, oil derivatives, oil options, short selling oil, oil delivery, oil storage, oil drilling, oil exploration, oil geology, oil geography, oil and climate change research, oil and loss of glaciers and polar ice sheets, oil sales, oil trading, oil with OPEC, Venezuelan oil, Russian oil, Kazakhi oil, Gulf oil, Middle Eastern oil, oil pipelines, oil motherfucking oil, and other foreign and domestic intercourse with, over, under and through oil, oil and gas;

That, and other energy of all kinds, wind, solar, bio-fuels, batteries, coal, hydro-electric; if you were smart you bought oil. It is now ripe time to sell. Check that, last month was the time. It's gone back down under 60 dollars per barrel. Gas around here is just under two bucks, but they are expecting it to go up next year. Curious. Curious also how the market value of homes all across the country did the same thing that oil did. Is this more than just coincidence? Guess who got fucked?

All that stuff re: Hillary and Bill is over and done with, OMG, and things appear to be getting back to normalcy within the Democratic camps. I am so glad to see that everybody seems to have regained their senses. A historic victory, but do not measure the drapes just quite yet, should do wonders for Dems, wanderers of the political wilderness. Let's hope it does the same for the economy, and soon.

Last issue, I noted AWA seemed just another way to kick felons after they are already down. Here's a quote from my April 08 issue: “Wouldn't the greedy and mean of heart just love to have another source of cheap unemployable cash labor? And we could build bigger bridges for housing the homeless ones too.”

Well, it appears that the powers-that-be have responded to the call by tanking the economy and spinning off ever more jobs, either forever or just by sending them overseas. Do you see a conspiracy to create more cheap labor here at home? Too bad it won't work, because all the pink slips are resulting in spending like molasses, both inflation and deflation, and a downward spiral into poverty for all but the very few, very filthy rich. President Elect Barack Obama promises to update our infrastructure, which should produce a much needed, if somewhat small, construction boom regardless of home sales. We'll need to build very big bridges as part of that program to house all of the homeless from the 2008-09 rounds of recession, depression and foreclosures.

Don't get me wrong. A few new bridges are certainly going to be better than old, decrepit ones, or even no bridge at all, or a bridge to nowhere, and bridges in Iraq and everywhere else except here at home, which is what we've been getting and probably will continue to get from conservative Republican, states' rights, YOYO policies; that and newer, bigger prisons to employ more prison guards converted from ranks of the jobless. Guess what bigger prisons means? Bigger prison populations. You don't think they're going let brand, spanking new prison beds go empty, do you? Get the picture? A lot of us have, and that is why I am glad Obama will be our next President.

I, for one, do not believe in corporate welfare. A corporation should not require public assistance beyond the protections and laws available to all. By definition a corporation is designed to produce goods and or services, and to add value in the marketplace for and on behalf of the owners, the shareholders. When one fails, it is not the place of John Q. Public to provide artificial respiration. We already have a body of bankruptcy law and corporate liquidation processes for that. When a corporation fails we should account for the failures and hold the individual managers responsible. That's what they are highly paid for. They are not supposed to play golf, or fiddle, when the company is folding.

Similarly, ones whom have done well should reap rewards. Ones who have had the misfortune to bear the brunt of somebody else's shortcomings should be assisted as much as possible. There should be incentives to engage in proper, non-risky investments and business activities, and conversely, penalties for engaging in the risky.

We should assist hapless homeowners who are making efforts to stay in their homes, for they've done nothing wrong, assuming they followed the rules in obtaining their RISKY mortgages. It was not their fault the mortgages were risky. It was the bank's: banks took that risk. We'll all be better off if we can immediately begin conserving the costs of the foreclosures, which are only heaping additional distress and other transaction costs onto the pile of crap evidenced by declining prices in certain regional markets for homes at this time. It seems they've figured this out already. Now, what about that Auto Industry? I buy that one more than giving Wall Street Banks all that money. I think that was a lot like the last loot and booty of the Bushy people. Such Shrubs.

Z

The Legal Monthly

Vol. 3 No. 1 Read Z the Blog at http://zlegaltimes.blogspot.com/ Feb-April '08

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

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Editor's Note: Bad Campaign Poetry

HABEAS

NOT QUITE BUSINESS AS USUAL

SCOTUS

WRONGFUL CONVICTIONS/SENTENCES

CALENDAR

SOSEN: Law Struck Down for Disparate Treatment

Terrorism Cases

From Z Editor I can hardly believe this rag has been going for Fifteen numbers. Now, to start our Spring issue I offer:

BAD CAMPAIGN POETRY

I'm shocked at the primary sweep Obama has managed to obtain.

Am I still living in the US of A?
They say that Hillary's back is against the wall, that she needs a political hat trick.
No question the big MO is going that way, even though some were afraid to say it sooner.

The question is, will there be backlash?
The tail of the dragon in defeat is still unpredictably dangerous.
The Asian, Latino, Black vote seems to have been, caricatured.
The white male's, the white woman's too is broad brush, certain. Examine thy nipple ring closely, TSA.

Talk is cheap. In which direction will the vote actually be cast? Wait Texas, wait, Ohio, -- On Pennsylvania, Dancer, and (oops, wrong rhyme)...
As Maine? Or New Hampshire? By a margin of . . . damn it's going to be close.
The superbowl wasn't this hard on the fingernails.

Michigan and Florida? Outta there. Who voted anyway?
Romney, out but could be back in 'twelve.
No question D turnout has never been higher.

So if super-delegates don't go with the popular vote, what happens next?

Implosion, fracture: President McCain?
By Iglittarati

AND ON A LIGHTER NOTE:

The House escalated a constitutional showdown with President Bush, approving the first-ever contempt of Congress citations against West Wing aides and reigniting last year's battle over the scope of executive privilege in February. On a 223 to 32 vote, the House approved contempt citations against White House Chief of Staff Joshua B. Bolten and former White House counsel Harriet E. Miers over their refusal to cooperate with an investigation into the mass firings of U.S. attorneys and allegations that administration officials sought to politicize the Justice Department.

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

The legislative business of, say, impeaching the President, investigating wrongdoing emanating from the West Wing, which has, you don't say, politicized law enforcement, trashed Justice, just not to mention US Attorneys?

Oh, but that's exactly what the congress was doing. They're just finding more balls now. Read the WP on it. Even if a pardon is in the works, don't we just want to know if anybody did anything wrong? Don't the ones who are under scrutiny want to enlighten us? Don't we care? This theoretical fight over Executive Privilege carries only so much water when at stake we find fragile notions of trust, integrity of Justice, etc. December 7 (date the US attorneys were fired) will live on, in infamy to infinity, ad infinitum. Bad, very bad. The point is not to throw anybody in jail but to promote the ability of Congress to investigate the executive, if, and when necessary. It has never been more necessary.

HABEAS: (Thanks Howard) “Of Beethoven, of vodka, or of the Bill of Rights containing the first ten amendments to the U.S. Constitution?” The U.S. Supreme Court has ruled that if a criminal suspect indicates in any manner during custodial questioning that he wishes to remain silent, interrogation must cease. A fifteen-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit resolved in Anderson v Terhune (Feb. 15) whether a criminal defendant's statement, during an interrogation, that "I plead the fifth" is sufficient to invoke the right to remain silent.

Complicating this question, the appeal arises in the habeas context challenging a state court conviction and is governed by the federal law whose acronym is AEDPA. The majority, in a decision (access here), overturned the federal district court's denial of habeas relief. Back on November 6, 2006, a three-judge Ninth Circuit panel voted 2-1 to affirm the district court's denial of habeas relief. Now-Chief Judge Alex Kozinski joined in the original panel's majority opinion, which a federal district judge sitting by designation wrote. The judge who dissented from the panel opinion wrote the en banc majority opinion on behalf of a sizable majority. Because this case was reargued en banc before Kozinski became the Ninth Circuit's chief judge, he was not guaranteed a seat on the en banc panel, and he was not randomly selected to serve on the en banc panel. Thus, we can only imagine what he might have said in response to today's ruling.

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

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

Not Quite Business As Usual

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

SCOTUS It's the Seventh Inning Stretch at the Court, and baseball is back on track. Spring has struck. I almost made it to the Nats opening game, but only got as far as Champions on that particular occasion. The company was better there, the servers good to look at and the beer cold, the seat warm. The Supreme Court (Danforth opinion), Ohio and Missouri make news in the Habeas and Residency Restriction arenas. Update here, of course, thanks to Doc Berman. On Danforth, the headline by Scotusblog, Courts Allowed to Expand Criminal Rights, here, says it all. That was not supposed to be a good thing, do you wonder, Wanda? To expand the "criminal rights" -- It is a magnanimous thing for the Court to allow States to do that. But read on, and we find we are actually talking about something akin to the retrospective application, or as some say, the "retroactive benefit" of Supreme Court rulings. Chief Justice Roberts dissented, in which Justice Kennedy joined.

Is it only coincidence that retrospective application of laws is also in the spotlight in Residency challenges? Don't let the big words fool you. What this involves is determining whether the rules of the game can/will be changed in the middle of the fourth quarter, sort of like counting the Florida and Michigan delegates after the DNC said they wouldn't before the vote (or non-vote), because the state's delegations broke, (transgressed?) the Party rules. It all depends, of course, on what the word Justice means to you: Or is it the Framers'?

Wrongful Convictions/Sentences

I heard something about "restoring habeas" from Obama recently. Was he speaking only of habeas for Guantanamo detainees? Barack also mentioned the phrase "wrongful convictions." This is clearly something to be redressed through a pardon, quite possibly a more muscular Habeas process. There have to be consequences for those who would callously engage in behavior designed to produce the wrongful conviction of innocent individuals. Here, we see that some in the legal community are waking up to the fact that there are numerous instances of wrongful convictions and wrongful sentencing. They say it's impossible to document, but one in seven is said to be a good guess. Curious, isn't it. This is a systemic problem that deserves much further study.

Here is an interesting, if tangential discussion arising out of Danforth on Scotusblog's site.

“…while on your website you claim this is relevant to constitutional habeas.” ... If by “constitutional habeas” you mean habeas as required by the Suspension Clause, the only point in today’s decision relevant to that question is the Court’s acknowledgment that common law habeas (and therefore the Suspension Clause) was limited to jurisdictional questions. That was once a furious historical debate, but it’s largely over, and the Fay v. Noia revisionism lies in ruins... The primary debate over § 2254(d)– the one in the two law review articles I cited in the beginning and the one before the Ninth Circuit in Irons v. Carey — is all about the statutory writ and whether Congress can, consistently with Article III, require “deference” (actually a limited form of res judicata) to state court judgments in a class of cases where Congress could repeal the jurisdiction entirely if it chose. Today’s holding on the nature of the Teague rule is highly relevant to that debate, as I explained in comment 7, above.

The Short Skinny on Wallace v. Kato from Scotusblog and a longer piece by Kent (Crime and Consequences), here: Justice Antonin Scalia wrote for the majority. There were two Justices in partial dissent. Wallace v. Kato (05-1240, download here). In that case, the statute of limitations for filing a civil rights claim was two years, under Illinois law.

The false arrest claim in the civil rights lawsuit by Andre Wallace of Chicago had its origin, the Court ruled, when he appeared before a magistrate after his arrest and was bound over for trial. More than two years elapsed between that date and the day he filed his lawsuit, and thus, the Court decided, the lawsuit was too late.

The Scalia opinion was supported by Chief Justice John G. Roberts, Jr., and by Justices Samuel A. Alito, Jr., Anthony M. Kennedy, and Clarence Thomas. Justice John Paul Stevens joined in the result only, along with Justice David H. Souter. Justice Stephen G. Breyer dissented, joined by Justice Ruth Bader Ginsburg.

The Court agreed to examine law enforcement’s ability to conduct a warrantless search of the automobile’s passenger compartment incident to the arrest (Arizona v. Gant, No. 07-542) and the question of when erroneous jury instructions can lead to habeas corpus relief (Chrones v. Pulido, No. 07-544). Thanks, DC Dicta.

Request for Cert in Bell v Cone; petition challenges a widespread practice by states' attorneys to dispose of state habeas actions: the ignored federal claim. By ignoring federal claims under guise of state rules of procedure, or simply for no reason whatsoever, states have been able to argue that vague elements of the federal "procedural default" doctrine apply. I'm glad to see that this form of legal abuse is getting the attention it deserves. I'm sorry to see that it takes a capital case and a big rich law firm to bring it up with any force. But we in the Big Sky know all about it.

March Supreme Court Calendar

The March cases argued (Five of twelve are criminal matters).

No. 07-440, Rothgery v. Gillespie County - on whether criminal defendants brought before a magistrate have a Sixth Amendment right to counsel.

No. 07-290, District of Columbia v. Heller - on the constitutionality of the District’s firearms laws.

No. 06-11429, Burgess v. United States - on enhanced federal sentences based on prior state convictions for possession of cocaine.

Nos. 06-1666, Munaf v. Geren, and 07-394, Geren v. Omar - on whether courts have jurisdiction to hear habeas petitions filed by U.S. citizens held by the U.S.-led coalition in Iraq.

No. 07-455, United States v. Ressam - on whether federal sentencing law requires explosives to be carried in relation to the underlying felony.

No. 07-208, Indiana v. Edwards - on whether the Sixth Amendment grants a defendant found competent to stand trial the right to represent himself in a criminal proceeding.

Criminal Matters Upcoming

Certs granted from January 4:

Three of the six are criminal matters. How interesting!

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

Stanford student Erica Ross wrote the following preview of the second case to be argued on Tuesday, Irizarry v. US. Read her entire entry here, on SCOTUSwiki.

In Irizarry v. United States, No. 06-7517, the Court will consider whether a district court must provide the parties with notice that it is contemplating a departure from the applicable Sentencing Guidelines range on a ground not identified for departure in the presentence report or in a party’s prehearing submission. Petitioner Richard Irizarry argues that the district court violated Federal Rule of Criminal Procedure 32 when it failed to provide such notice. The United States agrees that Rule 32 requires a district court to provide notice, but argues that the failure to do so in this case was harmless error. A court-appointed amicus argues that Rule 32 does not require notice in these circumstances.

__________________

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

__________________

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

__________________

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

• Opinion below (Supreme Court of Louisiana)

• Petition for certiorari

• Brief in opposition

• Petitioner’s reply

• Amicus brief of Louisiana Public Defender Offices in Parishes Impacted by Hurricanes Katrina and Rita (in support of the petitioner)

• Amicus brief of the National Association of Social Workers, et al. (in support of the petitioner)

• Amicus brief of the National Association of Criminal Defense Lawyers (in support of the petitioner)

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

__________________

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

New Petition: Tom Goldstein of Akin Gump, and crew, filed this petition for certiorari (and appendix) in Kay v. United States. They did the petition with the Stanford Supreme Court Litigation Clinic, along with co-counsel at Steptoe & Johnson (which represents one of the defendants). The Stanford team members were Rachel Lee, Erica Ross, and Patrick Nemeroff. The petition presents two issues. First, is the omission of an element of an offense structural error or instead subject to harmless error review? The Court granted certiorari to decide that question in United States v. Resendiz-Ponce, 127 S. Ct. 782 (2007), but did not reach it. Second, what degree of statutory ambiguity triggers the rule of lenity, and when will legislative history suffice to avoid application of lenity? Here, the court of appeals concluded that the statute remained ambiguous after considering the text, structure, title, statutory history, and legislative history. But it held that lenity was inapplicable because the ambiguity was not so extreme that it had to “guess” at Congress’s intent. The Court has before it significant briefing relating to lenity in Burgess v. United States (in which the Clinic represents the petitioner), but it is unclear to what extent the eventual opinion in that case will address the issue. Tom said, “I found this case particularly interesting because the court of appeals’ construction of the Foreign Corrupt Practices Act is the most strained that I think I’ve ever seen in the context of criminal statutes.” I am sitting up and taking notice, Scotusblog.

SOSEN: Law Struck Down for Disparate Treatment

Doc Berman's blog, Sentencing Law & Policy, and the comments – this time by “George” are usually of interest. Here it is: “Call me picky, but there is more than a little irony in all this rational basis talk when the ultimate premise is false:

"For certain, residents of local communities may have limited — if any — information about an out-of-state sexual offender. However, the same is likely to be true about in-state offenders. This lack of general information is one of the principal reasons Megan’s Law was enacted in the first place. Indeed, the crime that inspired the first Megan’s Law was committed by a twice-convicted, in-state sexual predator, a fact unknown to his new neighbors. See Paul P. v. Farmer, 27 F.3d 98, 99 (3d Cir. 2000) (citing E.B. v. Verniero, 119 F.3d 1077, 1097 (3d Cir. 1997)."

While it may be true the Kankas did not know, most neighbors did know:

"There is, however, considerable controversy regarding the question of whether the Kanka family may indeed have known that a sex offender (not necessarily Timmendequas, however) lived in the house across the street. Although the Kankas vigorously deny any such knowledge, evidence suggests that the criminal past of at least one of the residents of the house where Timmendequas lived was common knowledge in the neighborhood.

"Timmendequas lived in a house with two other convicted sex offenders with whom he had served time at the Adult Diagnostic & Treatment Center, the state's treatment-oriented correctional facility for sex offenders. One of the other offenders, Joseph Cifelli (who had been convicted of sexually abusing a 5-year-old girl), had lived in the same house as a child, and his past was well known in the community. According to a neighbor who lived on the same block:

"'When I read that in the papers [that neighbors had no knowledge that three sex offenders were living on the block], I was pissed. They all knew what Joey Cifelli did. It was common knowledge. How could those neighbors go to bed at night and sleep and say that they didn’t know that he was a pervert? [1] p. 37'

"Other neighbors also stated that they knew about the three men's pasts, including one neighbor who trimmed back tree branches so she could keep an eye on her granddaughter when she was playing by the men's house. Megan's father, Richard Kanka, also admitted to having heard "vague stories" about the men, but insists that he knew nothing of their pasts. Maureen Kanka has stated she knew nothing of the men's past, but has also asserted that people shouldn't have to rely on "gossip" and "rumors" about possible sex offenders living in the neighborhood, suggesting at least the possibility that she too had heard rumors about at least one of the men's pasts.[2]" (footnotes at the link).

Call me picky, but there is more than a little irony in all this rational basis talk when the ultimate premise is false

Yes, George, all neighbors always know when a sex offender moves into their neighborhood. Sometimes it's through Google, sometimes gossip, but sometimes it's just through a magical telepathic sex offender information transmission service. It's hard to imagine how judges and legislators could be so stupid as to think otherwise. It's a pity you're not in charge.

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

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

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

To me, not requiring all felons to wear a bright yellow, orange and red armband branded with the crime of conviction is the travesty. You'd make so many friends that way. Just like walking your dog, it's a real conversation starter. The women are gonna luv it, too! Z hereby declares war on the dumb laws and the dumber politicians who pass them.

Ohio and AWA

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

More Sosen News from Ohio

Doc Berman is on top of the Sosen related news. Here is how a recent post begins, with links to additional references: Surprisingly, or not so surprisingly, costs are escalating and AWA is not looking so good after all. You would think the legislatures have better things to do, and taxpayers would want better laws. Similar to the national “ID Act” program provoking rebellion in the states, this one isn't worth the candle.

AWA is just another way to kick felons after they are already down. Wouldn't the greedy and mean of heart just love to have another source of cheap unemployable "cash" labor? And we could build bigger bridges for housing the homeless ones too.

Terrorism: Skepticism on detention

The first civilian court review of the military’s four-year-old system seeking to justify detention of terrorism suspects produced a skeptical response to three of the government’s key legal defenses of that system. In a hearing on April 4 that ran considerably beyond the scheduled 40 minutes, the D.C. Circuit Court appeared to be harboring significant doubts about basic elements of the Justice Department arguments. The transcript of that hearing has just become available; it can be downloaded here. (NOTE: The transcript does not always identify the judges by name, and this version represents only the public session held on April 4. The judges later held a closed-door session to consider information treated by the Pentagon as classified.)In summary, the judges on the three-member Circuit Court panel reacted negatively to the government’s sweeping interpretation of the so-called 9/11 Resolution (the Authorization for Use of Military Force) that is one foundation of the Pentagon’s terrorism detention scheme. The judges also voiced concern that the government was trying to narrow the Circuit Court’s power to review that scheme. And they suggested that the government might be saying one thing to the Circuit Court and something quite different to the Supreme Court on what remedy a detainee could obtain with a successful challenge to a Pentagon detention ruling.

Those were among the signficant developments when the panel last week heard Parhat v. Gates (Circuit dockekt 06-1397). As matters have turned out, the case of Huzaifa Parhat became the first to be heard of more than 130 pending detainee appeals in the Circuit Court. Those appeals challenge detention rulings by Combatant Status Review Tribunals, set up by the Pentagon in 2004 after the Supreme Court ruled that some military system for examining captures had to be set up. The first line of civilian court review, in the D.C. Circuit, was set up in 2005 by the Detainee Treatment Act — the DTA — passed by Congress. Scotusblog. Read the rest of this entry »

“Yoo memo” goes to court

Lawyers for the only detainee still being held by the military inside the U.S. have asked the Fourth Circuit Court to consider the controversial March 2003 Justice Department advisory memo on terrorism law as part of that court’s coming ruling on the legality of this detention. In this filing on Monday in the Circuit Court, attorneys for Ali Saleh Kahlah Al-Marri enclosed the memo signed by former Justice Department legal counselor John Yoo, a document that the Justice Department declassified and released just last month. The lengthy text of the Yoo memo is available in two parts; the first can be found here, and the second here. (Thanks to Marty Lederman of Georgetown Law School and this blog for the links to the memo. Thanks to the Brennan Center for Justice for a copy of Monday’s filing.) Al-Marri is a Qatari national who was arrested in December 2001 at his home in Peoria, Ill., where he was attending Bradley University. He has since been declared an “enemy combatant,” and continues to be imprisoned in a Navy brig in Charleston, S.C. The Circuit Court, sitting en banc, held a hearing Oct. 31 on his challenge to his designation as an enemy. A decision is still being awaited. An earlier post discussing the case can be found here. In Monday’s filing, Al-Marri’s counsel argued that the Yoo memo “further demonstrates that al-Marri’s detention lacks legal basis.” It notes that the memo has been “repudiated by the Justice Department.” The filing also points out that the government has indicated that President Bush relied in part on the memo in deciding to name Al-Marri as an “enemy combatant.” “In sum,” the filing argues, “the President designated al-Marri an ‘enemy combatant’ based upon an erroneous legal analysis, and to uphold his detention is to endorse the result of an analysis that even the Justice Department has repudiated.”

In Theory: Here's this one concerning Theory: "Blinking on the Bench -- How Judges Decide Cases"

Z

The Legal Monthly

Vol. 2 No. 9 Read Z the Blog at http://zlegaltimes.blogspot.com/ Dec/Jan '08

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

***************************************

Editor's Note

Reflections

Enron: Skilling's Appeal

Re-Entry and Sentencing

Want More, Give More?

From California

Scotus Focus

From Grits

From Z Editor I can hardly believe this rag has been going for Fourteen issues. One or two new subscribers express an interest with each fresh vituperative slam. It feels like progress, even though bimonthly or quarterly instead of monthly has become the norm. Nonetheless, I hope you are enjoying the highlights of all the news and spin that's fit to font. It is distressing to fall behind with each new development, and so I've been resigned to skimming the highs and lows of what I think is “the big” news. I'm sorry I've been unable to keep up with all the circuit cases in advance as I tried once to do. And as always, a very warm welcome to all newbies. Merry Christmas and Happy Holidays and Happy New Year to all. May 2008 be long and prosperous. Or short, if you are up for release.

The Supreme Court is in the mid-term recess, and finally issued its first opinions of the term in December. Also, there have been some curious developments in the criminal sentencing, sex offender commitment and residency challenges areas. GPS monitoring has been in the spotlight as well. And, as always, more DNA exonerations and freeing of innocents jailed.

I was able to read “The Innocent Man” by John Grisham over a short Christmas break. I'm glad I did, even though I once thought it hit too close to home and avoided it. The main theme about the end of the presumption of innocence is sad but true: rotten apples in law enforcement have done untold harm in this arena. Overall, the book has my highest recommendation.

The Supreme Court affirmed the moratorium on lethal injection executions until Baze can be decided, and Boumedienne put habeas in the spotlight Wednesday (12/5). There was an interesting debate at the Federalist Society website on this. Tim Lynch (CATO Institute) asserted that the DTA/MCA (Detainee Treatment/Military Commissions Acts) is an unlawful suspension of the constitutional writ of habeas corpus. Marty Lederman joined in questioning the efficacy of the government's arguments. The voices from the “right” come from ex-government prosecutors and Bushies who cannot assume quickly enough that anyone arrested anywhere -- by feds, CIA, SpOp, Army, Marine or whomever -- must be, you guessed it, bad guys. What's so Kafkaesque is that when you ask for the evidence they just tell you its “classified” or “we can't tell you.”

Oh well. Just trust 'em. I, for one, will not trust one Republican politician with one more dollar ever again, not after what's happened in the past eight years of Republican rule. Carefully note the qualification as discrimination is not on party affiliation alone: Republican is okay by me, but don't be both, a politician too, because that's not kosher. They say Republicans don't handle power well, and isn't it curious that's what they're saying about Candidate Rudy Giuliani? Well okay, maybe I've been looking for just the right excuse not to pay my taxes this year.

In the words of one big-time attorney for the defendants, military commission hearings are “a joke”. If the commission finds that there isn't enough evidence to hold the guy they simply schedule another hearing until the guy loses. That is not some wacko talking but a lawyer, in some instances a former JAG officer. The inside scoop sends a very clear message about command pressure. It speaks ugly volumes about the guys responsible for running the place, and I don't just mean Gitmo. It speaks volumes about us generally, about America, and what we've become. A nation of laws, or a nation of flawed laws? A nation in need of fixing.

Speaking of scoop, apparently one tuff grandma (from Texas) has a son, a former White House Spokesman who claims he was mislead into making false statements to the public and thereby actually becoming the mouthpiece for the communication of lies to the public by, of all people, the President, Vice President and their closest aids. This seems another one of those, “if anybody should know ...” cases. But wait, try this one on for size, “if you can't trust the government whom can you trust?”

Speaking of trust, guess whom a congressional committee voted to hold in contempt of Congress: Gonzo Attorney General Gonzales, and gonzo top WH official and nominee to Supreme Court, Harriet -- I'm-so-good-at-writing thank-you-notes-to-my-boss-the-President -- Meiers.

Where the Gitmo guys could go upon being released is a really good question. One (facetious) response is that they'd come aboard and apply for political asylum. After six years of Gitmo they're really in need of some R and R, and maybe that should be someplace near an Iranian nuclear facility. I'll bet we could arrange that. How about this: a convoy of cruise missiles with Gitmo guys strapped on? It's not like we've treated them honorably the way we'd treat real POWs. What's that story about killing two birds with one rocket? Convenience. Buy now, pay later.

How pissed off would you be if, just if, you really were innocently swept up in Afghanistan, or in the current case, Algerians found in Bosnia after the Supreme Court there found insufficient evidence and ordered your release? We've picked up Canadians and German residents as well and rendered them. Say, I've got a really great idea. Take all the “illegal” immigrants we can find and do them like that. Very target rich environment exists right here at home. And we won't really have to worry except perhaps housekeepers and nannies and ag and meatpacking workers will have to be replaced, along with the good cheap construction labor. That's the bad news. The good news, and there is always good news along with the bad, is that due to the recent ailment of the biggest “subprime” mortgage lenders, we won't need much homebuilding labor for a time. We won't need manufacturing labor either because that's all being done in China and parts East.

Apparently we threatened Bosnia with termination of diplomatic relations if they refused to cooperate in the “arrest” of these guys after the Bosnian Supreme Court ordered their release. WOW. I wonder what the real evidence is against them.

Now, I'm starting to get worried about getting calls from overseas because it might just provide the excuse for feds to start scanning all my mail, email and cellphone calls. Recently some a--hole from Nigeria, get this, he's pretending to be a Japanese pharmaceutical executive (the company supposedly sells meds for upset stomach, aches and pains!) appoints me “agent” then calls me and says they want my bank account information so they can wire me money. That's a good one! Do I look like a complete and total imbecile? Don't answer that question. Sorry, but after I started talking to the guy in Japanese I had to tell him I was calling the FBI on him it made me so mad. Lucky for me I know the language. So anyway, at that point he really started to sound a lot more like a Nigerian guy than an oriental. Orientals have that distinctive accent. You can't miss it. But those Nigerians, they're sharp. They've got oil too. I wondered then if these guys actually knew I'd been in Japan and was actually part Japanese. Naturally, I'm getting pretty good at detecting Nigerian accents. It's definitely an essential skill for making it on the outside. And Remember Bruce singing “Born in the USA” a few years back. You can't always take that stuff personally if you are Nigerian or Japanese, or an immigrant or something. Say, wasn't Pele from Nigeria? Bruce, Bruce came to a frat house in college one winter and blasted us out. Awesome. Black Sabbath came one year too. They played in the auditorium. Now, music is on electronic jukeboxes in all your neighborhood dives. Push the buttons on screen and music menus magically appear.

In fact, I actually expect to be rendered any day now. See y'all. The black helicopters are starting to swarm the neighborhood again.

There was a rally at the Ohio State House against repressive legislation that in effect if not by intent is designed to create a new class of homeless, jobless Americans. We are talking about the so-called “residency restrictions.” As if it wasn't idiotic enough to require “registration” and publish your personal information, predictably inviting vigilantes and witch-hunting, murder, mayhem and mutilation.

What has become of America?

Citing “fiscal responsibility” the President keeps vetoing children's health care bills (SCHIP) while asking for increases in the trillions for military authorizations in Iraq. In defense of what? Wholesale violations of privacy, usurious credit card and mortgage companies, killer toy importers, foreign oil barons. It is undisputed that during the six years of the Bush II imperium, imperium not in the sense of superpower which is fine by me (I like living in superpower-dom), but in the resemblance of martial law and arbitrary military rule, not to mention repressive economic policies that have been opening a Grand Canyon, okay, Texas-size income gap. Sadder and wiser should be the people. But what have we learned?

How to vote against our own self interests, that's what. Can Obama be the ticket to save America from a Bush/Clinton/Bush/Clinton reign of Yaley friends and family: Skull and Bones? It's all good if you went to one of those elite universities. The top Fortune 500 companies boasts only one minority CEO, and he recently got ousted (Parsons). That sounds like a “good ol' boy club” to me. White, black, yellow, red ... doesn't matter to me, but I do recognize the signs of dictatorial rule. Curiously, Chavez of Venezuela (the state owner of Citgo, the national oil company there) sought to pass a law to appoint himself president-for-life. The vote failed -- good for the people. Again, some people don't handle power well. Of course, Venezuela's Citizen's Oil, as it's called, offers to provide heating fuel to Americans who've fallen on hard times and can't afford to buy it. At least that's what their TV ad says.

Reflections Just a few final reflections for the year. My last letter went out late in October and seven or eight short weeks have passed. It is called overcome by events. First, Thanksgiving. Now Christmas. And New Years of course.

As I have been thinking about the Holidays, events of the past year, what's happened and has not happened, where I've been and have not been, I think we all do this reflectivity “subconsciously,” whether or not we take the opportunity to express it outwardly in some fashion. For some, it might simply be a “Happy Holidays” or “Merry Christmas”. Here goes my list for 2007:

We have not gotten into another war.

We have come close to an economic recession: In fact we may be heading into one.

The rich have gotten a lot richer.

The Presidential candidates have been spending money like drunken sailors.

The Democrats seem to be having a good year in terms of raising money, for candidates and in polls.

The nation is still divided almost fifty/fifty between Red and Blue.

The Political Independent movement seems to be a growth phenomenon.

New electronic gadgets are racing to market faster than anybody can buy them (or figure out how to use them).

We are still guzzling gasoline at record rates. So is China, but even faster than us.

Global Warming seems to have become an accepted reality: Unfortunately nobody knows what to do about it.\

Tragically, Pakistan's democratic contender, Benazir Bhutto, was assasinated in the final week of 2007.

Reggie's team (my junior in high school) won the State 3A soccer title. It was only because of all the hooting and hollering I did personally, from the sidelines.

We took a vacation to Maine in July.

Life on the outside has gotten both simpler and more complicated, for me. As I become committed to “working” as some people call it -- making money, a living, whatever -- I have less time for other more interesting pursuits, like writing this newsletter.

I wish I could describe the scenery around here better, but here's a stab: Brunswick is a railroad town on the Potomac just below the Shenandoah River's confluence, where Harper's Ferry sits. Sharpsburg, Shepardstown, Antietam, Gettysburg are within striking distance. The C&O Canal runs from D.C. through Brunswick up to Cumberland and, presumably, all the way to the Ohio River. Lots of history here. Maryland Heights, which housed naval batteries overlooking Harpers Ferry and the Canal is one of my favorite short hikes. The view is awesome from the overlook. At the top, a good three hour round trip, is the remains of an old stone fort. Pres. Lincoln is said to have climbed up to a point and exclaimed the path was nearly vertical in places. It is. One can only imagine how many men it took to haul big guns up these paths. War sure is a labor intensive business.

That said, here is Prof. Berman's top ten for 2007. “By any measure, 2007 has been an amazing sentencing year, and I am not sure how to rank the significance of all these events:

-New USSC reduced crack guidelines

-USSC decision to to make its new guidelines retroactive Supreme Court's post-Booker decisions in Rita and then Gall and Kimbrough

-The "celebrity" sentencings of Conrad Black, Paris Hilton, Lewis Libby and Michael Vick

-Commutation of Lewis Libby's sentence by President Bush

-Hub-bub and eventually striking down of Genarlow Wilson's mandatory sentence

-Continued hub-bub over the former border agent's mandatory sentences

-California and other states' on-going struggles with its prison over-crowding problems

-Sex offender GPS tracking become more common and thus more costly

-Georgia state supreme court striking down state's sex offender residency restriction

-Heightened debate over child rape as a death-eligible offense

-Abolition of the death penalty in New Jersey

-De facto moratorium on executions as a result of Baze case before the Supreme Court”

Enron: Skilling's Appeal Marches On Thanks to White Collar Crime Prof Blog, the 162-page reply brief(!) filed by Jeff Skilling's legal team in his Fifth Circuit appeal is accessible online. The sentencing arguments begin on page 143, and these disparity arguments are developed starting at page 152. Recall that Andy Fastow got six after plea agreement to ten.

Re-Entry and Sentencing: The next issue of Federal Sentencing Reporter is focused on re-entry issues. The introductory essay for this issue (FSR Volume 20, No. 2) available at SSRN is entitled "The Second Chance Act and the Future of the Reentry Movement." From the abstract: Recently passed by the House of Representatives with strong bipartisan support and currently awaiting action in the Senate, the Second Chance Act of 2007 (H.R. 1593) would authorize about $340 million in new spending on programs that support the reintegration of returning prisoners to their communities. If enacted, the SCA would represent a new milestone in the growing influence of the prisoner reentry movement, which has focused public attention on the daunting obstacles facing returning prisoners who seek to rebuild their lives as productive citizens. This essay critiques aspects of the SCA, considers the implications of the reentry movement for sentencing, and argues that reentry-based reforms should not be conceptualized primarily as recidivism reduction measures, but as opportunities to fulfill ethical obligations to some of the most marginalized and disadvantaged members of society.

Although decreased crime rates are certainly a plausible and desirable consequence of devoting more attention and resources to offenders during their transition from prison, conceptualizing the reentry “problem” as a law enforcement issue misses many of the most important social welfare and social justice concerns implicated in the treatment of returning prisoners, and threatens to reinforce, rather then supplant, the legalist mindset that fuels mass incarceration.

I wonder where that money is going to end up? And who is going to get a slice of the pie?? Guesses, anybody? My money is on “the government” -- state gov't programs, federal gov't programs; Churches and community action agencies; employment agencies, education and training. Prisoners released from prisons: zero. So here it is:

I. The Second Chance Act

As passed by the House, the SCA authorizes about $340 million in reentry-related

spending over two years, most of which would be distributed in the form of grants to state, local, and tribal authorities. In itself, this would represent a significant new infusion of resources into reentry programs, for instance, more than doubling the annual funding provided under the SVORI. Additionally, because the grants require substantial matching contributions by the recipients, the SCA may also induce significant increases in reentry-related spending at the state and local level. On the other hand, when assessed against the number and needs of the 1.3 million or so prisoners who will be released over the two-year period (or, for that matter, the nation’s nearly $50 billion in annual spending on corrections10), the SCA’s commitment of funds can hardly be regarded as dramatic. The SCA’s single largest authorization ($55 million per year) is intended for adult and juvenile offender demonstration projects. The program’s requirements exemplify the SCA’s general approach to reentry. Grant recipients (state, local, or tribal agencies) must develop a reentry strategic plan containing measurable performance outcomes, one of which must be a 50 percent reduction in recidivism rates over five years.11 Other required performance measures include increased employment, education, and housing opportunities for offenders released back into the community.12 Grant recipients must collaborate with corrections, health, housing, child welfare, education, substance abuse, victims services, employment services, and law enforcement agencies, and convene reentry tasks forces comprised of diverse agencies and community organizations.13 Priority must be given to applicants who provide prerelease reentry planning and continuity in the provision of services.14

In another notable provision, discussed by Eric Miller in his contribution to this issue,15

the SCA also authorizes $20 million in grants for state and local reentry courts.16 Such courts, modeled on the specialized drug treatment courts that have been implemented in many jurisdictions over the past 15 years, would give judges a pivotal role not only in monitoring returning offenders, but also in ensuring that returnees are provided with “coordinated and comprehensive reentry services,” including substance abuse treatment, housing assistance, education, employment training, and the like.17 To that end, courts receiving grants are specifically required to consult and coordinate with law enforcement, social service, and community agencies. Throughout, the SCA emphasizes recidivism reduction as a primary legislative purpose, but recognizes that this objective is not just a matter for the courts and law enforcement agencies. Rather, the bill contemplates that assistance for returning prisoners in such areas as housing, employment, education, and substance abuse treatment will also contribute to crime prevention goals. Moreover, in promoting the delivery of such services, the SCA also recognizes the importance of planning (at both a global level and an individual prisoner level), multiagency collaboration, and continuity through pre- and post-release stages. In short, the SCA repudiates

the notion that recidivism reduction is best achieved through deterrent threats alone and calls for the delivery of services to former prisoners, not in a minimal or grudging way, but in a systematic, proactive fashion.

II. Reentry and Sentencing

As exemplified by the SCA, a core (perhaps the core) principle of the reentry movement

is that successful reintegration of an offender often requires the thoughtful collaboration of

diverse actors over an extended period of time. The movement’s logic, as Michael Pinard suggests in his contribution to this issue, must inevitably direct attention to the actors who dominate the front end of the process, including the lawyers and judges who control sentencing decisions.18 And, indeed, as Ryan King indicates in his contribution, one of the most provocative recent developments in state-level sentencing law has been the adoption of legislation in New York and Oregon that requires consideration of reentry needs at the time of

sentencing.19 The remainder of this Part discusses four ways that a reentry focus might affect sentencing.

A. Punishment Culture and Overall Severity A reentry focus may contribute to a fundamental shift in the culture of punishment. Elsewhere, I have argued that American criminal justice policy has been dominated in recent decades by a legalist mindset.20 Legalists draw sharp moral distinctions between legal and illegal conduct, heap moral condemnation on lawbreakers, and emphasize consistent, severe penal responses to deter crime and reinforce law-based moral norms. Legalism is premised on the assumptions that criminals freely choose to break the law, that a choice to break the law constitutes a basic rejection of the entire system of shared responsibilities that holds society together, and that the criminal thereby surrenders any strong claim that he or she might otherwise have to the respect or support of others in his or her community. This legalist approach to

criminal justice might be contrasted with a harm-reduction approach. Harm-reductionists eschew unrestrained moral condemnation, recognize that criminal acts may sometimes represent a failing of society as much as a failing of the criminal, and emphasize constructive social responses to crime that are intended to minimize future harm (including the harm suffered by the criminal as a result of the conviction and sentence).

The reentry movement adheres more to the harm-reduction than to the legalist paradigm.

Indeed, the whole notion of delivering services to offenders is, at some basic level, inconsistent with legalism. Establishing an affirmative role for others, in addition to the offender himself or herself, in addressing recidivism risks dilutes the legalist message that avoiding crime is a simple matter of making good choices between clear right and wrong. Moreover, systematic efforts to plan for an offender’s reentry—particularly at the early stages in the process, such as sentencing or plea bargaining, before the offender has had much opportunity to demonstrate remorse and a genuine commitment to do better in the future—implies that the offender is entitled to return and resume membership in the community, thereby undercutting the legalist project of moral condemnation and harsh deterrence. Finally, the reentry movement’s call for individualized planning and treatment of offenders is in tension with legalism’s emphasis on consistency in punishment and its assumption that all similar offense conduct has the same moral significance,

regardless of the offender’s personal history and characteristics. In short, the reentry movement has the potential to join other growing movements in the criminal justice system with a harm reductionist flavor (e.g., therapeutic jurisprudence, restorative justice, problem-solving courts, and, to some extent, victims’ rights) in weakening legalism’s hold over penal law and policy (which is best exemplified by truth in sentencing, mandatory minimums, and the federal sentencing guidelines).21 THE SECOND CHANCE ACT AND THE FUTURE OF THE REENTRY MOVEMENT, Michael M. O’Hear, pp 3-5.

Z's NB. The biggest bang for the buck would be to “legalize” drugs, esp. marijuana and probably also cocaine, which was at one time freely available in Coca Cola, which would immediately and automatically eliminate half or more of all crimes and the opportunity for crime. Regulate, don't criminalize: Amsterdam and Vancouver, B.C. provide the examples. Only then could we get down to the real business of fighting crime, terrorism, etc. Opportunities in the illegal international drug trade are just too vast and inviting. We should simply let the foreign drug cartel(s) do business legally, but with the US government, which controls the intra- national drug trade. Whom could possibly be opposed to this reform? Possibly, just possibly, only those who benefit from the current system: organized crime groups and the law enforcement agent(s/ies) who make a career of purportedly enforcing those obsolete and ineffective drug laws.

Want More, Give More? RIO DE JANEIRO, Brazil (AP) -- Arrested on a charge of theft, a teenage girl was locked up in an Amazon jail for weeks with 21 men who would only let her eat in return for sex. Feminist Law Professors post.

From California, (AP article) an "advisory panel created by Gov. Arnold Schwarzenegger considered Thursday how to fix the sex-offender law passed last year because it fails to say who is responsible for tracking offenders' whereabouts once they complete parole." Here are more details: The initiative, known as Jessica's Law, was approved by 70 percent of voters in 2006. It stiffens penalties for sex offenders, prohibits released offenders from living within 2,000 feet of a school or park and requires that they wear satellite tracking devices for the rest of their lives. But the law doesn't specify whether the state, counties or local police departments should have jurisdiction over offenders once they are off parole. It also does not include money to pay for lifetime GPS monitoring and has no penalty for ex-parolees who simply remove the ankle bracelets.... Representatives of county sheriff's and local police departments said they do not have enough money or staff to take over the monitoring program. The corrections department estimates it could cost about $7 per day to monitor each offender with a minimal GPS monitoring system. The state's more extensive GPS system costs about $33 per offender per day, but that includes the cost of the parole agents. "We don't know what it's going to cost, and the conservative estimates are hundreds of millions of dollars" as more offenders complete parole, said Nancy O'Malley, chief assistant district attorney in Alameda County. There are so many interesting and telling dimensions to this story: the public's broad support for GPS tracking without concern for the costly particulars; the inevitability of techno-corrections being impeded by cost concerns; the willingness of Gov. Schwarzenegger to create a commission to study this issue while he opposed the creation of a much-needed sentencing commission for his state.

SCOTUS Focus In the January Calendar, (here thanks to SCOTUS blog) seven of the twelve cases so far scheduled are clearly criminal, including the lethal injection case. The Supreme Court will open with constitutional issues surrounding the lethal injection method of execution Jan. 7, Baze v. Rees (07-5439), the Kentucky case raising three issues about the three-drug protocol for execution, now used in 36 states. Two combined cases from Indiana on requiring photo IDs to vote will be heard in the first hour on Wednesday, Jan. 9.

Monday, Jan. 7 Baze v. Rees (07-5439) — constitutionality of lethal injection protocol. Dada v. Mukasey (06-1181) –postponement of agreement for alien to voluntarily leave U.S.

Tuesday, Jan. 8 Gonzalez v. U.S. (06-11612) — waiver of right to Article III judge to preside over jury selection when counsel agreed to have a U.S. magistrate instead

Boulware v. U.S. (06-1509) — taxation on diversion of corporate funds to shareholder of a firm that has no profits

Wednesday, Jan. 9 Crawford v. Marion County Election Board (07-21) and Indiana Democratic Party v. Rokita (07-25) — constitutionality of requiring voters to show a photo ID before they may vote (Cases consolidated for one hour of argument)

Kentucky Retirement Systems v. EEOC (06-1037) — scope of age bias in disability benefits packages

Monday, Jan. 14 Virginia v. Moore (06-1082) — lawfulness of search following an arrest that violates state law Preston v. Ferrer (06-1463) — federal preemption of arbitration agreement on talent agent’s fees

Tuesday, Jan. 15 U.S. v. Rodriquez (06-1646) — crimes that qualify for enhanced sentence under armed career criminal law; specific issue involves state drug crime conviction Begay v. U.S. (06-11543)– whether felony drunk-driving is a violent felony for purposes of enhanced sentencing under armed career criminal law

Wednesday, Jan. 16 Quanta Computer v. LG Electronics (06-937) — definition of exhaustion of patent rights when licensee sells products containing the patent Meadwestvaco Corp. v. Illinois Department of Revenue (06-1413) — validity of state tax on sale of investment in LexisNexis

I looked briefly at (a link) the Fourth Amendment case and the Virginia Supreme Court was right on this one. If states refuse to provide a remedy for violation of state law, law that is "within the scope or reach" of a (intentionally) similar provision of the Bill of Rights, they should be held to the federal remedy. The states should not be invited to re-write the Bill of Rights and fail to enforce the revision.
The Gitmo Detainee Cases march on: here is link to reply briefs.
The fallout from Carey v Musladin is beginning to hit the ground, as seen here, in a brief in opposition to certiorari, involving defendant's habeas relief under either Cronic or Strickland. The brief does an exceptional job of clarifying the notion of "clearly established law"... as well as the distinctions among Hill, Cronic, Strickland lines of ineffectiveness of assistance of counsel claims.

SCOTUSblog details "petitions to watch" at the Justices' private conference scheduled for January 4, 2008:

Docket: 07-61 Case name: Mathias v. United States-Issue: Whether an escape conviction following a failure to return to a work release program is a violent felony for purposes of the Armed Career Criminal Act. (Note: similar issues are presented in No. 06-10751, Golden v. United States, and No. 06-11206, Chambers v. United States.)

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

Docket: 07-452 Case name: Schriro v. Lambright-Issue: Whether, under Tennard v. Dretke (2001), a court may consider the lack of any causal connection between potential mitigating evidence and the crime in determining whether the failure to introduce the evidence prejudiced the defendant.

Docket: 07-478 Case name: Hartmann v. Burris-Issue: Whether seeking discretionary state court review of a criminal conviction tolls the one year filing requirement under AEDPA.

From Grits: Sign Our Judicial Complaint Against Judge Sharon Keller. If you are as shocked as we were by Judge Sharon Keller saying "We close at 5" and refusing to accept an appeal 20 minutes after 5 PM by lawyers representing a man about to be executed, then sign on to this complaint. We will submit this complaint to the State Commission on Judicial Conduct on November 16, 2007, which is also the day we will have a protest at the Texas Court of Criminal Appeals at 4:45pm. Anyone can sign the complaint. In order for your name to count on the complaint for the submission, you must provide all the requested contact information, including your phone number and occupation. If you would like to download a copy of the complaint for your records, click here. If you would like to help us with a donation, please click the button to the left or send a check made out to Texas Moratorium Network to 3616 Far West Blvd, Suite 117, Box 251, Austin, Texas 78731. Donations are not tax-deductible. If you have questions, please call 512-302-6715.

"quis custodiet ipsos custodes?"

- "Who will guard the guards?" wrote the Roman poet Juvenal. Citing numerous instances of CEO robbing the public coffers with huge payoffs to self after losing billions of shareholder $$$, so also asks William Lerach, Plaintiff's lawyer and shareholder advocate, here, as he prepares to go to jail to serve a one year sentence for boldly stepping over the line in his advocacy, as he put it: “in my zeal to stand up against this kind of corporate greed over the years, I stepped over the line.” It turns out that the legal system is a lot tougher on shareholder lawyers than it appears to be on Wall Street executives.

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