On a Slow News Day ... Dominated by War, Health Care and Letterman's Sex Life

Purchasing a lawsuit by the good citizens of North Carolina is shown here (the comments on Prof Berman's blog are interesting). The law banning sex offender from church because it has a day care is being challenged, AP reports here (where experts Prof Jonathan Turley, G-town U., Sara Tofte, Human Rights Watch, and Sara Totonchi, Southern Center for Human Rights weigh in). Katherine Parker of ACLU is assisting in this case.

And thank you anonymous for your kind comment which you posted here. Actual innocence is alive and well in criminal justice reform.

A pair of state cases

I've been asked to comment on this case as I find time to review it:

http://www.in.gov/judiciary/opinions/pdf/04300901rdr.pdf

Initially, I see Indiana has expanded the Registry to include several more categories of crime in addition to sex offenses: these include Murder, Voluntary Manslaughter, under certain circumstances Kidnaping and Confinement (according to the opinion). If we must have a registry at all, which is a bad idea in my opinion for reasons which have been articulated elsewhere here on this blog and by other experts on the topic to whom I have referred and linked at various times, perhaps it should also include financial crimes.

In this age of transparency nothing is private, yet why should government be in the business of publishing lists of people who have done bad things, then punishing people again for failing to self-register? It already does so in Court records should anyone care to search them. The bad guys aren't going to register anyway, so I suppose it makes it easy to identify those; the ones on the registries are not the ones who are committing these crimes. If they are not keeping communities safer, as recent research indicates, get rid of them. They are a waste of valuable government resources at all state and federal levels.

Also, getting to the technical details, ex post facto provisions of the Constitution of Indiana are in play and the court concludes registration laws are punitive in effect if not in intent. That is a contrary conclusion to the US Supreme Court's conclusion in a similar case from Alaska, interpreting that state's laws, which the opinion explains is permissible because an independent view or review is justified and well within the boundaries of the court's powers of judicial review.

Just a case from Maryland that was brought to my attention today:

Doe v. Dept. of Public Safety and Corr. Svcs., CSA No. 22, Sept. Term 2008. Reported. Opinion by Wright, J. Filed May 12, 2009.se

Actual Innocence, DNA Testing, Sec. 1983, Osborne in the Supreme Court

At this link is the transcript of oral argument in the Supreme Court in the Osborne DNA case from Alaska in which the government argues that new evidence in the form of DNA testing should be denied, remain untouched, apparently in the interests of "finality", one, because 1983 civil claim is not the appropriate way to ask for it, and it is more of a discovery request, and prisoner does not have a federal constitutional right to his own DNA for testing, and because he refuses to swear unde penalty of perjury that he is actually innocent and has confessed twice, and remarkably, that there is no right to present new evidence that shows, or could show, your actual innocence (more to come) -- HuH?

I took some notes yesterday and stupidly kept thinking I'd return to post to the blog and didn't so it's lost, only to be retrieved from memory. Perhaps I'll not bother. Now to return to finish reading the transcript...,

For now, let's just say that this case tests whether or not there is a constitutional right to obtain evidence of actual innocence that is in the possession of the state.

Doc Berman's post on the case has the usual good commentary, here.

New Commerce Clause SORNA piece

Here is Cory Young, Associate Professor of Law at Marshall, posting in his Blog, Sex Crimes:

I've posted a draft of a shorter article of mine that will be out soon in the Federal Sentencing Reporter. The article builds upon the Commerce Clause discussion in my other forthcoming article, One of These Laws is not Like the Others: Why the Federal Sex Offender Registration and Notification Act Raises New Constitutional Questions. My article is titled: The Sex Offender Registration and Notification Act and the Commerce Clause. This is the abstract:

In 2006, the Sex Offender Registration and Notification Act ("SORNA") created a new federal crime of "failure to register" which is punishable by up to ten years imprisonment. Since that time, sex offenders across the country have been prosecuted even though the offenders had no prior connection to the federal criminal justice system. For almost all of the prosecutions under SORNA, the argued jurisdictional basis for federal prosecution has been that the sex offender travelled across state lines. Based upon this travel, which is an element of the crime of failure to register, the government has argued that the new registration crime is justified under Commerce Clause authority. An overwhelming majority of courts that have addressed Commerce Clause challenges have accepted the government's argument that interstate travel is a sufficient jurisdictional hook. However, a careful examination of existing Commerce Clause law demonstrates that these courts are mistaken. For the Commerce Clause to have any meaning and for the decisions in Lopez and Morrison to make sense, the alleged interstate travel must be connected to the underlying offense in fact and time. Despite the limitations of prior Supreme Court precedent, courts have enabled the government to prosecute sex offenders who crossed state lines years before SORNA was even enacted. Further, courts have not required any showing that the travel had any connection to the alleged offense of failing to register. While some have argued that the decision in Raich effectively ended the federalism revolution, SORNA expands federal jurisdiction into entirely new territory. As a result, this article concludes that courts should dismiss most indictments under SORNA based upon a lack of federal jurisdiction and/or Congress should amend SORNA to properly reflect the jurisdiction authorized under existing precedent.

If you are interested in reading the whole article, you can follow the link to SSRN. Unfortunately, SSRN has hidden its download link, but it is located in the upper middle of the abstract page (it's labelled "Download"). If you have any problems downloading or if you have any comments, feel free to email me.

Punitive, or Not Punitive to Register

A very unusual ruling, at the cusp of right to jury trial and constitutional issue of whether a requirement to register as a sex offender is or is not punitive, for a person not convicted of a misdemeanor sex offense but required to register is available at this link, made available by the one and only Doc Berman.

Effective Assistance of Counsel

Here at this link is an article one kind reader called attention to. Called Effective Assistance of Counsel and Consequences of Guilty Pleas (2002), it represents slow if steady progress in the study of criminal law in general, and one of the pillars thereof, the right to a lawyer for your defense, which often means nothing more than advice to take a plea if you don't want to go to jail for a much longer time, pay out your life savings for legal fees, and/or both.

What the World Could Look Like

Ronald Dworkin in NYRB, among others in the special election issue.

If McCain wins, however, Kennedy's vote would probably be irrelevant and his influence negligible because Mc-Cain's first appointment would probably create an unstoppable rock-solid conservative majority for a generation or more. (Stevens is eighty-eight, Souter sixty-nine, and Ginsburg, Kennedy, and Breyer in their seventies.) We cannot predict all the important constitutional issues that might arise in that long period. But it seems likely that a solid ultra-conservative majority would finally wipe away all constitutional protection for abortion, which Scalia and Thomas have repeatedly vowed to do. Such a majority would also allow a significantly greater role for religion in public schools and public displays and occasions; effectively end any form of affirmative action in employment or education; cut back on protections for accused criminals; and again broaden the scope of capital punishment.

Most frightening of all, it would likely embrace the Bush administration's most extravagant claims of presidential power: the so-called unitary executive doctrine Garry Wills describes below, which allows the president dictatorial powers over all executive functions, including the power to wage war, spy on citizens, and detain and torture prisoners, ignoring any congressional constraint.

Obama's promise is as great as McCain's threat. His race and background would refute the charges of American racial arrogance that have helped recruit many angry terrorists. His remarkable and apparently near-unanimous appeal abroad—an appeal the insular Republicans scorn—would immediately help redeem our soiled international reputation. He has a striking, deep intelligence, and a gift for combining clarity and strong feeling in his writing and speeches; and he uses these qualities to expose and explain complexity rather than bury it under slogans. It is said that he lacks experience. On the contrary, he alone among prominent politicians has the experience that counts most in a threatening and densely interdependent world: the crucial experience of empathy. He has lived, and been poor, in both domestic and foreign worlds that few national politicians can even imagine.

Against the Grain on Registries

Finally, this constitutional erosion seems to be gaining attention. Excerpt from ABAJ,

at least two courts this year have sided with the critics and invalidated some or all of the registry law. In both rulings, the courts referred back to a line of U.S. Supreme Court cases from the 1990s that limited the federal government’s reach into state law.

Meanwhile, a third federal court temporarily halted the new law until it had a chance to hear arguments on the issue.

More is at stake than just the sex offender registries, observers say. Americans have become accustomed to national crime registries, and courts could throw them into doubt.

“Not surprisingly, given our increasing sense of informational entitlement and disdain for criminal offenders, we are seeing registration and notification laws spread to other subgroups, such as domestic abusers,” says Florida State University law professor Wayne A. Logan, author of the forthcoming book Knowledge as Power: A History of Criminal Registration Laws in America.

Constitutional Crisis or Just Business as Usual?

Here is the big picture, from Prof. Bruce Ackerman of Yale, via Stirling Newberry at KOS. Link. On one side is the economy, politics on another and upon the third leg the constitution, the supposed "order" our Republic stands upon. The monetary/financial system is clearly being manipulated to serve the rich; the rich get richer, the system spends like no tomorrow to preserve and increase their own wealth. Tell me something new guys. But can Democrats fix it?

AWA Cruel and Unusual Judge Rules

Doc Berman notes this decision, in his words:

Thanks to this post at Sex Crimes, I have learned of this recent federal district court opinion which concludes "that a 30-year mandatory minimum sentence for [the defendant], under the specific facts of his case, is so grossly disproportionate to his crime as to constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution." US v. Farley, NO. 1:07-CR-196-BBM, slip op. at 8 (N.D. GA. Sept. 2, 2008).

Alice, the Judge and the Constitution

How do Lewis Carroll, Humpty Dumpty, and Alice relate to the law? Check this piece out, by a "rogue" juror who refused to take an oath selected by the trial judge. Excerpt:

The scene in the judge’s robing chambers that day reminded me of a passage in Lewis Carroll’s Through the Looking Glass, where Alice is talking with Humpty Dumpty, the latter having just taken words out of context. In other words, Humpty Dumpty was lying:

"When I use the word," Humpty Dumpty said, in a rather scornful tone, "it means just what I chose it to mean – neither more nor less."

"The question is," said Alice, " whether you can make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be the master – that’s all."

Judge Young’s court presumed a world without an objective reality, just like Humpty Dumpty’s worldview.

SORNA and the Constitution

Here, at SexCrimes blog by Prof. Corey Young, are an article draft and the first Circuit (8th) decision interpreting the new sex offender federal registration act (SORNA). Prof. Young notes serious commerce clause constitutionality questions with the law and the recent ruling as well.

And here, (at CJLF's Crime and Consequences) we find the following excerpt, describing an examplary incident that demonstrates precisely why the registration laws are nothing more than a feel good, politically correct, ineffective, (and unconstitutional if not un-American) pieces of paper containing worthless ink.

Convicted Sex Offender Strikes Again, Victim Only 16: Angel A. Perez Jr., a 32-year-old convicted sex offender, failed to register his new address with police. He also had several outstanding warrants for larceny, which would have qualified him for diversion programs for "nonviolent" offenders. Now, he's charged with raping a 16-year-old girl in a park near her home, an ordeal that lasted for around an hour, according to Brian Fraga's story for the Standard-Times. Repeat offenders are just that, and the only way to protect society from them is for them to be incarcerated for increasingly longer periods of time.

Habeas and Unconstitutional Deference

The Supreme Court granted petition re: the 28 USC 2254(d) deferential standard of review in the case of Bell v Kelly (SCOTUSwiki preview here). The practical issue is, how do you get to present "new" evidence that was lost previously through your lawyer's conduct or misconduct, (or the governments sleight of hand, or procedure) when the standard of review won't allow for a fresh look at all the circumstances, but only a "reasonableness" test brushing over what is already in the record below? Petitioner took issue that the state court proceedings did not afford a full and fair hearing, sufficient to consider the element of prejudice. Finding no prejudice, but affirmative deficient performance, the courts below had denied relief.

To noone's surprise, there is a split in the circuits. Technically, it might be phrased: (1) whether the deferential 28 U.S.C. § 2254(d) standard should apply to a claim resting on evidence that the state court did not consider and was thus introduced for the first time on federal habeas.

It occurred to me reviewing the briefs (available at SCOTUSblog wiki) that the adverse position makes a good practical case in point for why the statute is facially unconstitutional: following the dictates requires no substantive review, contrary to the traditional, constitutional role of higher court review.

Do we want our higher courts rubber stamping decisions in other areas as well? Not, hopefully.

An argument schedule for cases in Nov. follows:

Mon., Nov. 3

Wyeth v. Levine (06-1249) — federal preemption of state drug labeling law

Ysursa v. Pocatello Education Association (07-869) — state legislative control of county and city payroll policies

Carcieri v. Kempthorne (07-526) — federal power to set aside land for Indian tribes’ use

Tues., Nov. 4

FCC v. Fox Television Stations (07-582) — scope of federal law on use of single or fleeting use of “indecent” words on radio and TV

U.S. v. Eurodif (07-1059) and USEC v. Eurodif (07-1078) — federal power to impose “anti-dumping” fees on imports (cases consolidated for one hour of argument)

Jimenez v. Quarterman (07-6894) — clarification of one-year filing deadline for habeas petitions

Wed., Nov. 5

Negusie v. Mukasey (07-499) — availability of asylum in U.S. for individual who formerly was a prison guard abroad

Van de Kamp v. Goldstein (07-854) — legal immunity for supervisors of prosecutors at the trial level

Mon., Nov. 10

Chambers v. U.S. (06-11206) — failure to report to jail as “violent felony” under federal armed career criminal law

U.S. v. Hayes (07-608) — ban on gun possession after conviction for domestic violence

Melendez-Diaz v. Massachusetts (07-591) — right to confront at trial a forensic expert who prepared a crime lab report offered as evidence

Tues., Nov. 11 (legal holiday; no arguments)

Wed., Nov. 12

Pleasant Grove City v. Summum (07-665) — right to display religious monument on government property, including public park

Bell v. Kelly (07-1223) — scope of federal court duty in habeas to defer to state court findings

Bad Trail Poetry

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

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

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

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

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

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

Iglittarati

AND ON A LIGHTER NOTE:

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

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

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

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

AND ON HABEAS: (Thanks Howard)

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

And,

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

And,

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

On Theory

Here is a good NYT article on theory.

Quaint Thoughts About Criminal Procedure

A Very Interesting Telephone Conversation

nb. Here is an interesting item I just found, entitled, "Recidivism and Reform, Competing Views of the State's Role in Prison" (by Jordan Ballor)--you will also find this very interesting pdf, "The State of the Law, 2006: Legal Developments Affecting Government Partnerships with Faith-Based Organizations" (by Ira Lupu and Robert Tuttle, of George Washington University's School of Law)
The Acton Institute's article was so good that I have added them to my list of links to Foundations. It is the Power Blog that you might want to sniff around in.

Yesterday I spoke to a kind and generous guy who shall remain anonymous. This person is a fellow attorney and member of the local county bar association. When I told him that the primary “target” of my project was prisoners, he kindly informed me that this group is not his primary concern, and that he sought rather to be serving the unmet legal needs of people outside of prison, making a special point to mention that these are people who have not been convicted of a crime. I should add the term not “yet” been convicted.

It was curious, thinking back now, that he would point out the fact of the conviction rather than the incarceration. So wait, do all prisoners fall into the category of needing to be locked up? Alternatives may be just as effective in some cases. That’s point number one.

It is far too easy for us to think of prisoners as richly having deserved to be imprisoned. In many cases true desserts is justified. In more than a few cases it’s not. An example is drug crimes and morality crimes. But we stray. Focusing on the crime makes it far easier to justify the prisons, to justify building, maintaining and expanding them. But when the price is paid, the sentence is carried to its full conclusion, the prison doors are opened and the prisoners become “free” again.

The attitude on the other end of my anonymous conversation clearly indicates the general nature of the prejudice that all prisoners face as a class, seeking to return to society when they are freed, in hurdling the barrier to “normalcy,” whether or not they needed to be imprisoned. That means in most cases needing a living wage and job, gainful employment. They could just as well have been whipped or put in stocks and sent on their way, back to work, or whatever. Probation for first time offenders is like this. Mandatory minimum sentences changed all that. Has it made society any better, safer, more, well, improved?

Imprisonment is actually banishment. Try moving to a new place and remaking your life. That in itself is punitive. Then try doing this after having slept, like old Rip Van Winkle, for a hundred years (okay, I exaggerated), locked away. All but forgotten.

Not only that, my caller demonstrated the hurdle that we all face, you and me, when seeking not to be charged with a crime, initially, even at the investigative stages, and when seeking to defend against charges of crime after they have been brought against the individual. The prejudicial character of this slice of American life is very strong, and this slice of American life is not insignificant.

The preference to look away is perfectly understandable. At the same time I now find it surprising coming from someone who should have, but clearly has not considered the matter very carefully. I must confess that I was one of those who had failed in an earlier life to consider this matter more carefully, even as I embarked on a career that included a bit of indigent defense work.

It was distasteful, admittedly, (I can not quite say why--perhaps I was rightly or wrongly thinking of raising my family, for their safety, or just of what I could choose or not choose to expose them to as part of my own career, or of my own childhood--maybe these are just excuses--I really do not have the answer, except perhaps to blame it on prejudice) and I chose to try to get away from it. But I can not look the other way any more. I’ve had what some might call a conversion or epiphany. Now I understand the importance of this particular section of American life.

To make a long story short I suggested to my very generous anonymous lawyer, generous for letting me talk to him for so long, that he consider the fact that people in the prisons have at a minimum four (4) (parents, siblings, grandparents, and children) individual immediate family members (and on further thought, four classes of family members) who are more than likely feeling the immediate impact of their situation, that is, of knowing somebody actually locked away in prison.

It is the needs of this cohort or group of American citizens that the Innocence Project hopes to serve the most. At the same time these efforts benefit all of the individuals who have been charged, as well as those who will be charged in the future , because the rights to habeas corpus and other “quaint” matters of criminal and constitutional procedure have a way of directly affecting the way in which the fundamental rights to Criminal Trials, and Appeals are vindicated. I hesitate to say it, but there could well be consequences whether intended or not for related areas of (non-criminal) constitutional law and federal civil procedure. The very nature of all of all of our fundamental rights are at stake when we tinker with habeas corpus, criminal procedure, and the Constitution.

Whenever a fundamental right is at stake you had better believe that it affects you in ways that you might never understand, until one day you wake up and discover that it is gone. When you hear of people given to complaining about the fact that “new” constitutional rights are being “made up” by the “personal preferences” of “activist judges,” you should well consider who is behind these efforts to take away certain hard-won and well established constitutional rights that have been around for so long a time already. Then consider who is trying to save them. Then, after that, think about who benefits.

What Ails Republicans?

Sorry, I only made one entry yesterday; I usually strive for two, but it is getting a little busier right now (or am I just trying to do a little more other stuff?). Enjoy, and comments, guest blogging are always welcome. Heard on C-Span Radio this morning on my daily commute, "mean tough guys" in prisons should be given a chance to serve in the military and not waste their youth. There are, admittedly, a lot of ready, willing and able men (and women) who are probably not too far gone, dangerous, or feeble-minded to serve. There is a good solution to the Army's/Marine's recruiting problems. As we know, many of these guys just made one mistake, got caught doing what a lot of other people are doing or have done, and/or simply don't need to be locked up.

Also had an interesting discussion that went (sort of) like this.

Friend: if you want to make a difference in the area of habeas corpus you have to work for the prosecution--they are the only ones who have the power to do anything (about a wrongful conviction or faulty/illegal confession for instance).

I was not able to articulate the fact that in our adversarial system too many prosecutors will NOT go out of their way to fight for right, but find that to advance in their careers they must litigate every "nook and cranny" of the law, and look the other way when Brady evidence is obvious, or just when a case might smell bad from the beginning. That mean "not caving" even when you think the other guy is right, although justice might require that. That is why justice is so hard to come by in places. It is true, my friend's point, that in habeas prosecutors hold all the cards because so few defense lawyers do that kind of work and so few prisoners can pay a lawyer after they've spent their last dime fighting on trial, appeal, etc.. Only in death penalty cases is a lawyer required in habeas. In all other cases prisoners are not constitutionally entitled to a lawyer.

My experience in Virginia, a few years back, did however give me some faith that prosecutors tried to do the right thing most of the time but this does not hold true for all too many of the other jurisdictions, especially in the South, Old South, Deep South. Evidence of that is still, sadly, seen every day.

What ails the Republicans? Find out from Newsweek.

Look what I found:

One of the ill-concealed subtexts of my book Our Undemocratic Constitution is that my colleagues in the legal academy pay much too much attention to the rights-conferring parts of the Constitution (which are often exactly what Madison predicted they would be, "parchment barriers" that are all too permeable given the right degree of public panic and malleable judges) and too little attention to the "hard-wired" structural features that, I now believe, explain much more about the actualities of American politics than do the clauses that law professors fixate on...

Get the rest of piece here: (from The New Republic)

This is why I love the guys over at TNR:
Last week the Washington Times op-ed page, in the form of the
oleaginous (oily? not holy oil? greasy?) (more here)
Tony Blankley, voiced its concern that Hillary was going to rough up Barack Obama. Now it's the Wall Street Journal's turn. Here's John Fund ...

Also, found this

over there.

(what I really meant to say, here, was "one of the next future presidents...")

Veto of Banishment Law Upheld:

“As parents we need to be constantly vigilant of our children. Preventing sex offenders from living here does not prevent them from being here,” Mr. Ossing said. “This law is going to be another unenforceable feel-good law.” Finally, common sense seems to be taking hold. Read this here and more here.

In the Richmond Times Dispatch (in police beat somewhere, a new federal pd office opens in Western Virginia). Andrea Lantz Harris and Frederick T. Heblich are the first lawyers hired in a new defender's office serving the Charlottesville and Harrisonburg divisions of the U.S. District Court for the Western District of Virginia.

I am adding Richmond Times Dispatch and probably Baltimore Sun and Annapolis papers to the MSM links (at right).

"No New Prisons" Campaign starts up in Washington State.

More on the Drug War, Borden's blog.

Trends in Ohio Supreme Court

A friend called my attention to an interesting case involving those ever-ephemeral "newly created" constitutional rights we hear so much about, which always create reactions in the "originalist" camps. The Ohio Supreme Court has ruled 4-3 that polygraphs cannot be made a condition of probation for a juvenile sex offender. The Court made available this decision summary.

Policy Recommendations

Regarding changes in the law, and policy, my first question is, do we really need, "a long term, systematic, comprehensive, institutionalized counterterrorism policy for the United States" as Kenneth Anderson suggests here? If anything, my preference is to reduce bureacratization. The constitution adequately provides for practically anything, we already have a gigantic court system, including a counter-terrorism or FISA court, and our policy toward terrorists and terrorism is very clear already if not constantly evolving. An "institutionalized" policy sounds too much like a new cabinet level or deputy level position, sort of like "drug czar" and I'm not convinced that Anderson's reasons are good ones. The political argument seems to be that once Congress has acted courts must lay off, and that is simply not the way we work. Or is it?