Z

The Legal Monthly

Vol. 2 No. 5 Read Z the Blog at http://zlegaltimes.blogspot.com/ May 2007

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

Contents

Story of a Moray: Aristides according to Plutarch

New USSC Cocaine Report

Supreme Court Prisoner Litigation

Habeas: Back to Basics: AEDPA and Clearly Established Law (?)

Abdul-Kabir v. Quarterman and Brewer v. Quarterman

Meddling Thru Presidential Powers: Medellin

The Military Prisoner cases: Boumediene and Al Odah

Criminal Causes: James and "Violent Felony"

Civil Rights: Adam Walsh

Top News Update

McNulty, Number Two Man at Justice, Resigns

AG Gonzalez and White House strong-armed former AG Ashcroft

Report on Prisoner Reentry Issues

Modus Operandi: More Texas "justice" ...
Prison Upgrades: Will Texas Get With the Program?

A Story of a Moray: But Aristides, who was the principal man of Greece, through extreme poverty reduced some of his to get their living by jugglers' tricks, others, for want, to hold out their hands for public alms; leaving none means to perform any noble action, or worthy his dignity. Yet, why should this needs follow? since poverty is dishonourable not in itself, but when it is proof of laziness, intemperance, luxury, and carelessness; whereas in a person that is temperate, industrious, just, and valiant, and who uses all his virtues for the public good, it shows a great and lofty mind. For he has no time for great matters who concerns himself with petty ones; nor can he relieve many needs of others, who himself has many needs of his own. What most of all enables a man to serve the public is not wealth, but content and independence; which, requring no superfluity at home, distracts not the mind from the common good. God alone is entirely exempt from all want: of human virtues, that which needs least is the most absolute and most divine... [Plutarch's Lives, The Comparison of Aristides with Marcus Cato]

The Newest QA: SL&P May 15--

The new USSC cocaine report provides so much to discuss (basics here), I am not sure where to start. In the hope generating a lawyerly debate, I'll start with these provocative questions:

1. Should the Justices now just simply remand the Claiborne case — which concerns the reasonableness of a below-the-old-crack-guideline sentence — to the Eighth Circuit for reconsideration in light of the new USSC report and amendments?

2. Should the Justices request letter briefs on this issue from the parties and/or should Claiborne's lawyer or the Solicitor General request a remand?

One Very Interesting Criminal day in SCOTUS--Wednesday, April 25, 2007, the Court released opinions in three criminal cases, Smith v. Texas, Abdul-Kabir v. Quaterman, and Brewer v. Quarterman.
Major Question: Reach of Presidential Power: Monday, April 30, the Supreme Court granted cert. in Medellin v. Texas, which raises a major question about the limits of executive power. Last November, Texas' highest state criminal court ruled that the President did not have the authority to direct the state courts to obey a World Court ruling on the rights of foreign nationals arrested and prosecuted in the U.S. In January, Medellin's lawyers filed a new appeal to revisit the issue.

Back to Basics: AEDPA and Clearly Established Law (?)

Here is “Righty” Kent Scheidegger on Landrigan: (Crime & Consequences, May 14):

Today's decision in Schriro v. Landrigan notes, correctly in my view, that the habeas reforms of the Antiterrorism and Effective Death Penalty Act of 1996 must be interpreted bearing in mind the purpose of Congress to shorten the very lengthy reviews of capital cases (Oh, yeah, let's just execute them all, quickly and quietly—in fact, we don't need to have trials for this, much less fair ones). One of the most important issues to decide in the early stages of federal habeas review is whether a redetermination of facts is required. If the state court has already found the facts (oh, yeah, and the lawyer was fast asleep, btw, AND, he was the biggest fuck-up in Texas too, to boot, if that's possible) and the federal court need only decide if the application of law to those facts is "reasonable," the proceeding can be considerably streamlined (yeah, that's really reasonable). Today's decision says, "Because the deferential standards prescribed by §2254 control whether to grant habeas relief, a federal court must take into account those standards in deciding whether an evidentiary hearing is appropriate." (A what? Do they have those in Texas? In the continental U.S and/or its possessions and territories, inclusive of Iraq? Look out Venezueala, you're next, and everybody is watching Iran? Ha!!)
If the case was decided on the merits (on what? That word is not in the vocabulary grasp of most state court and lower court judges) by the state court and neither the factual findings nor the application of the law to those facts was unreasonable or contrary to Supreme Court precedent, the federal case is over. See 28 U.S.C. §2254(d). So, what should a district court do when the state court has made a factual finding (AND not the finding that the lawyer was sleeping, unscrupulous, a thief, or anything like that) that absolutely negates the petitioner's claim? "It follows that if the record refutes the applicant’s factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing." Proceeding with a hearing in such a case would defeat the purpose of the reform.

This principle accords with AEDPA’s acknowledged purpose of “reduc[ing] delays in the execution of state and federal criminal sentences.” [Citations] If district courts were required to allow federal habeas applicants to develop even the most insubstantial factual allegations in evidentiary hearings, district courts would be forced to reopen factual disputes that were conclusively resolved in the state courts. With these standards in mind, we turn to the facts of this case.

The finding by the state habeas judge (who was the original trial judge) that Landrigan waived all mitigating evidence was a stone-cold claim killer (Really, a gem). "If Landrigan issued such an instruction [not to offer any mitigating evidence], counsel’s failure to investigate further could not have been prejudicial under Strickland." The Ninth Circuit brushed this aside with the astonishing claim that the judge had taken out of context the colloquy she had personally conducted.
If the finding of fact in this case does not preclude relitigation on federal habeas, it is hard to imagine one that would. Limiting relitigation is what AEDPA was all about. (No, let's cut to the chase here—why bother with any sort of appellate review at all, then, when lower courts are always correct in their factual findings? Law and procedure matter nought. Ahh, but that's exactly how they used to string 'em up, by the neck, you know, bulging veins and all).
It is disappointing that the dissent got four votes in this case. Apparently, four Justices were actually impressed with Landrigan's far-fetched psychological argument. There are enough psychologists and psychiatrists in America who are viscerally opposed to the death penalty that it is likely every inmate on death row can find one who will swear he has some kind of serious mental problem (naturally, this is the kind of bullshit the righties love to use—of course their own experts are always on the up and up ethically speaking and never grind their axes). If that were enough to brush aside all the limits Congress has placed on relitigation, then it would never be possible to have an effective death penalty. That is, of course, exactly what the opponents want. (Naturally, then we could get to all of the other cases of travesties of justice not involving capital punishment—no we've gotta have the dp to suck up all the judicial resources possible for as long as possible—there is no way around it). All their other arguments having failed with the American people, they seek to convince the people that reform is hopeless, and that capital punishment will forever be bogged down in endless appeals. The New Jersey Legislature might actually buy this argument. Hopefully, reforms will bear fruit in enough states to disprove the claim before any other state legislatures do.

Justice is Just One Vote Away, Just a Vote Away...

Here is my favorite comment from the barrel at Orin Kerr's post on the week's (April 25) death penalty cases:
All Penry relief is collateral. If there is not something in Penry that is "clearly established," Penry has no meaning at all, since it is not a claim that can be asserted on direct review. Indeed, whatever you might "think" about the clarity of the law, the court has decided several penry cases under 2254. There is established law there. Maybe you agree with the variety of Supreme Court decisions to the contrary, but then you just don't really care about precedent and there's not much to say.
I wouldn't get too sidetracked about this "congress has no business" argument. That's just not the issue, and it would be a disservice to the majority to act like that is the holding.
The law here is close - but it's close on the question of what is clearly established. Yes, it is "confused," but not in the traditional sense that it is confused on the straight-up merits question.
People like Kent S. would like to have everyone believe that just because it is not clear what is clearly established, that this is sufficient ambiguity to bar relief. This is, of course, ridiculous. There's no logical limit if you are going to stack "clearlies." Does the law have to be clearly established, or does it have to be clear what is clearly established. How about clear about what is clear about what is clearly established.
The "mess" was all about what law was clearly established, so you can't circularly cite confusion as to what was clearly established as a reason for holding nothing is clearly established at all, if 2254(d)(1) is ever to mean anything.
Also, the Texas Court of Criminal Appeals is simply off the reservation. For those unfamiliar with the way they do business, it's a real eye-opener. I think the Fifth Circuit sometimes gets a bad rap because they're applying deference to a state court that already delivers the most lazy, cryptic criminal opinions in the country. All righteous anger about federal interference in state adjudication sounds truly absurd if you have state adjudications that lack any indicia of reliability.

AND HERE are persuasive reasons why the dissent(s) are discombobulational (my word! Still working on getting supercalifrag...in proper context--Chief Justice Roberts wrote a vigorous consolidated dissent in the two cases-Abdul-Kabir v. Quarterman and Brewer v. Quarterman, that accused the majority of being "revisionist" in light of AEDPA's deferential standard. According to Roberts, the majority was fudging the AEPDA standard to provide relief)

[OK Comments: C.F.W., I don't understand this comment. So in your view, the Supreme Court's job is to follow statutes if and only if the Justices believe that Congress "has business" in passing the law? I suppose I'm not surprised that Roberts missed that.]

Roberts wrote a dissent, and knew how the AEDPA came about - from Lundgren in CA trying to work around 9th Circuit cases. The idea was to put a thumb on the scales of justice - in favor of death. A good federal courts professor would have given a C to a student who did not at least mention what is wrong (or questionable, and possibly unconstitutional) about the structure of the law - making the circuits and district courts irrelevant as creators of precedent.

cfw: how was it the "key point" in this case that "Congress has no business freezing the law as it was decided by a particular date by the USSCT"? This was pretty much a straightforward AEDPA case, whether you agree with AEDPA or not. In fact, I'm sure the majority would have gladly just ignored AEDPA if it could have, but so long as AEDPA is on the books and not ruled unconstitutional (which was certainly not at issue here), the Court has to abide by it. And so long as it has to abide by it, the majority opinion is awfully implausible.

The dissent is not persuasive unless it at least touches on the idea that telling judges what they can and cannot cite as precedent is unconstitutional (blurring lines between Article III and other parts of the US Const.). The dissent is materially incomplete, and the CJ knows it (from his days as an advocate - or assistant to advocates - in a DP case).

This may be getting just a bit cynical, but why doesn't congress just pass a law saying that only the Tennessee courts, or just pick any state, are the only courts from which precedent can be drawn? Then, of course, we'll pack the TN courts with Supreme Court level justices and "away we go" (Johnny lives on, or was that Jackie?).

"Violent Felony" gets 15 yr mandatory minimum sentence --

(the dissents are always the most interesting and informative--so much for "consensus" -- the five-to-four splits are always the most controversial too). Says Doc Berman:

Though the rest legal world will sure obsess endlessly about the 5-4 Supreme Court ruling today upholding a federal ban on partial birth abortions, I plan to obsess (endlessly?) about the 5-4 Supreme Court ruling today upholding an application of a criminal history sentencing enhancement in James. Here is the basic early report from SCOTUSblog on James:

In another 5-4 decision, the Court ruled that an individual convicted of attempted burglary under state law has committed a "violent felony" for purposes of a mandatory 15-year sentence under federal law dealing with armed criminals. The ruling came in James v. U.S. (05-9264). Justice Samuel A. Alito, Jr., wrote for the majority. The voted produced an unusual array: with Alito in the majority were Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer, Kennedy and David H. Souter.

UPDATE: The James opinion runs 44 pages total (including the syllabus). Here is the dissenting line-up: "SCALIA, J., filed a dissenting opinion, in which STEVENS and GINSBURG, JJ., joined. THOMAS, J., filed a dissenting opinion." Why can't my printer go faster!!

Doc Berman (the GREAT): Thursday, April 19, 2007

Other Stuff of Interest: (from How Appealing and Howard Bashman--again--he's the goto news guy on the blawger-sphere!) "Microsoft Settles Iowa Lawsuit": AP reports, "Microsoft Corp. agreed Wednesday to pay Iowans up to $180 million to settle a class-action lawsuit that claimed the company had a monopoly that cost the state's citizens millions of dollars extra for software products."

and

Gonzalez v. Carhart, (“partial birth” abortion ban upheld) April 18, Justice Anthony M. Kennedy delivered the opinion of the Court, in which the Chief Justice and Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito, Jr. joined. Justice Thomas also filed a concurring opinion in which Justice Scalia joined. Justice Ruth Bader Ginsburg wrote a dissenting opinion, in which Justices John Paul Stevens, David H. Souter, and Stephen G. Breyer joined.

Although the cases were argued separately (access the oral argument transcripts here and here), the Court disposed of the cases by means of a single opinion.

In his concurrence, Justice Thomas states: "I write separately to reiterate my view that the Court's abortion jurisprudence, including Casey and Roe v. Wade, 410 U. S. 113 (1973), has no basis in the Constitution." It is worth noting that the Court's two newest Justices -- the Chief Justice and Justice Alito -- did not join in Justice Thomas's concurring opinion.

Following the Court's Stenberg v. Carhart, 530 U. S. 914, decision that Nebraska’s “partial birth abortion” statute violated the Federal Constitution, as interpreted in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, and Roe v. Wade, 410 U. S. 113, Congress passed the Partial-Birth Abortion Ban Act of 2003 (Act) to proscribe a particular method of ending fetal life in the later stages of pregnancy.

Very curiously, Congress responded to Stenberg in two ways. First, it found that unlike this Court in Stenberg, it was not required to accept the District Court’s factual findings. What is so very curious is that the congress which passed AEDPA was so certain that lower court factual findings are nearly always correct as to give them great, if not the greatest, unlimited deference. Of course, with one we are dealing with convicted felons, albeit ones who are claiming to be wrongly convicted, and on the other hand we are dealing with...abortion. Is the fetus worth more than the life of a grownup, possibly wrongly convicted felon? WTF?

Adam Walsh—The first federal sentence for sex offender failing to register: Here's why such laws are such an ineffective waste of time and money (time is money) for Congress, for prosecutors, for police and law enforcement generally. Doc Berman and Corey Yung of Sex Crimes blog report on the first sentence ever under the Act. This case is likely to continue to make headlines (Orlando Sentinel):

With no precedent to rely on, an Orlando federal judge on Wednesday declined to send a New York sex offender to prison under a tough new law that punishes those who fail to register when they move across state lines. Following through on comments he made at Wilfredo Madera's plea hearing three months ago, Senior U.S. District Judge G. Kendall Sharp sentenced him to four years of probation and fined him $500.

At a Jan. 11 hearing before Madera pleaded guilty as part of a deal with prosecutors, Sharp said he was inclined to dismiss the case or give Madera no prison time. Sharp, at the time, criticized the government's case and told Madera he would throw out the case if the felon registered the next day. But an exasperated prosecutor reminded Sharp that he had "no legal standing" to do that and the judge reversed himself, acknowledging his error. He then called the law "constitutional" as written and denied a defense request to dismiss the case.

Madera, who was arrested in October as part of a nationwide crackdown on sex offenders by the U.S. Marshals Service, was the first person in the nation to be convicted under the Adam Walsh Child Protection Act. On Wednesday, he became the first to be sentenced under that law.

Assistant U.S. Attorney Cynthia Hawkins immediately protested Sharp's sentence and said her office will likely take the case to the 11th Circuit Court of Appeals in Atlanta. "The government will object to the sentence imposed as being unreasonable and not taking into account the seriousness of the offense and specifically the defendant's past criminal history," Hawkins told Sharp. Hawkins said a pre-sentence report prepared by the federal probation office showed Madera could have received 24 to 30 months in prison.

Doc Berman reports here, on the first sentence ever under the Act.

Top News Update

More Texas "justice" ... A baffling Texas Supreme Court ruling could make juries irrelevant

by Anthony Zurcher (Texas Observer, May 4, 2007)

The soft drink business in East Texas was a relatively friendly affair when Jerry Dudley started out 40 years ago. Family-owned companies bottled colas and fruit drinks, and sold them to local grocers or mom-and-pop convenience stores. There was competition, but it wasn’t cutthroat. There weren’t international conglomerates trying to muscle you out of the market, and maybe drive you out of business.

But in the early 1990s, that all began to change. Dudley, president and general manager of Harmar Bottling Co. in Paris, Texas, began seeing his soft drinks nudged from prime shelf space—even out of stores entirely—to make way for a competitor’s products. He watched local bottlers disappear one by one, losing the struggle to stay in business.

It got so bad that Harmar and some of his fellow independent bottlers banded together and sued the heavyweights of carbonated beverages—Coca-Cola Enterprises Inc. and Coca-Cola Inc., Pepsico Inc. and Pepsi’s bottler, Delta Beverage Group—claiming that in their zeal to dominate the region’s soft drink market, the corporate titans had broken Texas law by engaging in predatory, anticompetitive business practices.

Pepsi settled before trial. Coke—with its never-say-die litigation strategy—fought the suit. In 2000, after a six-week trial, a jury in Daingerfield, Texas, found Coca-Cola Enterprises—a bottling company 40 percent-owned by Coca-Cola—guilty of breaking state antitrust laws. Although a far cry from the $100 million they were hoping for, Harmar and the other regional bottlers won a $15.6 million judgment. Almost seven years later, they have yet to see a dime.

In late 2006, after sitting on the case for nearly two years, the Texas Supreme Court finally ruled on Coke’s appeal of the suit. By a 5-4 vote, the state’s highest civil court threw out the verdict.

Reversing a multimillion dollar judgment is not out of character for a court packed with conservative judges, six of them appointed by Gov. Rick Perry before winning pro forma elections. But the legal reasoning that the slim majority used to justify its ruling was so alarming—and sets such an unappetizing precedent—that it has spawned incredulity in Texas legal circles.

In effect, the court reviewed the evidence and decided the jury was wrong. It was a remarkable reach beyond the court’s usual exercise of power.

Ordinarily, appeals courts give great deference to a jury’s conclusions. Jurors, after all, are the ones who hear the witnesses, review evidence, and deliberate the case. A court usually has a compelling reason when it decides to disregard the jury’s conclusions.

What that reason might be is not clear in this case. More than a few scholars argue that the state Supreme Court doesn’t have a sound legal principle with which to justify its decision. Worse, they fear it opens the door for other Texas courts to begin arbitrarily tossing aside jury verdicts with which they disagree. If the high court continues on this course, they say, the constitutional right to a civil jury trial could be in jeopardy.

Dudley and the bottlers have asked the court to reconsider its decision, because they’d still like to get their money. Law professors from across the state have joined that request, arguing there is now much more at stake then who sells the most diet sodas in East Texas.

“It’s elitism versus egalitarianism,” says Nelson Roach, who represented Harmar Bottling during trial. “It’s whether or not you believe that ordinary people have the capability to collectively judge the facts of the case. There is a movement that has been very hostile to the rights of juries to make decisions, and this case is part and parcel of it.”

The “Major” can smell the streets of Houston now...the sweet smell of hot asphalt in the morning.

SL&P, April 19. John Pfaff has a fascinating new article that examines the theories and the empirical literature on the forces driving prison growth in the US over the past three decades. The paper is entitled "The Growth of Prisons: Toward a Second Generation Approach" -- Here is the abstract:

Over the past three decades, the US prison population has soared from 300,000 inmates to 1.5 million. In recent years, many scholars have devised rigorous empirical models to try to determine what forces have been most responsible for this impressive growth. This article reviews these studies and finds that all suffer from important shortcomings that limit the extent to which they accurately identify causal mechanisms. The problems are both technical and conceptual. Technically, most studies either fail to control for several significant empirical defects ― such as endogeneity, omitted variable bias, and colinearity ― or so do unconvincingly. Conceptually there are several issues. In some instances, for example, it is unclear whether the variable chosen to test a particular causal theory is an effective or accurate proxy; in others, the theory itself does not appear to be formulated correctly. This article sets forth the problems with the current studies and suggests technical and conceptual improvements for future work.

Let the “Major” just add one thing here, and entirely appropriately, this is precisely why the professors get the big $$$$$$$$$$!!!!!!!!!!

Prison Upgrades Available: Will Texas Get With the Program? So Your'e Going To Jail? What the ***? Upgrades?
The new wave...not for ladies only. Compare this:
“I have never run into this,” said Ken Kerle, managing editor of the publication American Jail Association and author of two books on jails. “But the rest of the country doesn’t have Hollywood either. Most of the people who go to jail are economically disadvantaged, often mentally ill, with alcohol and drug problems and are functionally illiterate. They don’t have $80 a day for jail.”
New York Times ROCKS. Thanks to Jennifer Steinhauer.

Club Fed No More ?

The American has this fascinating piece discussing the imprisonment experience of white-collar offenders entitled "Enter a 'Hellish Place,'" and has this teaser: "Tougher rules and longer sentences mean that prison for white-collar inmates is no longer Club Fed. Prisoner No. 20532-050 tells his eyewitness story to Luke Mullins."

Report on Prisoner Reentry Issues--An awesome new report from the Urban Institute is now available on reentry, thanks to a knowledgeable source who shall remain anonymous (for now. A brief description:
Returning Home is a longitudinal study of prisoner reentry in Maryland, Illinois, Ohio, and Texas based on personal interviews with prisoners before and after their release from prison. Previous reports from the Ohio project examined prisoners' expectations for life after prison and their experiences in the first few months after release. This final report—"One Year Out: Experiences of Prisoners Returning to Cleveland"—describes the lives of nearly 300 former prisoners at least 12 months after release, including their ability to find stable housing and reunite with family, and identifies factors associated with getting a job, and avoiding substance use and return to prison (recidivism).

Kill Death in Texas? SL&P April 15. Though I doubt this development will matter much politically, it still is noteworthy that today the Dallas Morning News has this editorial entitled "Death no more: It's time to end capital punishment." Emphasizing innocence concerns, here is a portion of the pitch:

And that uncomfortable truth [about an executed man's possible innocence] has led this editorial board to re-examine its century-old stance on the death penalty. This board has lost confidence that the state of Texas can guarantee that every inmate it executes is truly guilty of murder. We do not believe that any legal system devised by inherently flawed human beings can determine with moral certainty the guilt of every defendant convicted of murder. That is why we believe the state of Texas should abandon the death penalty ― because we cannot reconcile the fact that it is both imperfect and irreversible.

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

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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.

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

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.

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