Technology

Technology allows me to post via mobile device. I joined the new revolution due only to fact my home computer is fubar.

Taking 3 years following my release Texas's innocence commision report fails to mention at least one reason for a wrongful conviction, environmental factors and outside influence including prosecutor misconduct.

One Parthenogenetically Reborn Business

American prisons make the inmates they are made for: the thesis of Prof. Sharon Dolovich and many works to whom she refers in her new SSRN piece (download here) to appear in Harvard Law and Policy Review symposium.

Mass incarceration has become a virgin birth industry. It keeps laying eggs and the eggs are us. From the view of an egg who both justice and society failed, and having collected a five year degree from the Texas Dept of Criminal Justice along with an M.A. in Government from Notre Dame, and J.D. from The American University, I could not agree more. Prof. Dolovich puts it all together.

Her title,

Incarceration American Style

Here is the RUNAWAY FREIGHT TRAIN which reproduces itself at great cost to the taxpayer:

"society never has to confront the fact that the perceived need to control an out-of-control population may stem from the conditions, both inside and outside the prison, to which the incarcerated have been subjected.

The absence of any meaningful re-integrative project is thus revealed as both cause and effect of the system’s reproductive success; without such a project, prisoners’ re-entry efforts will in many cases be doomed to fail, and one can expect no real social investment to reintegrate those regarded as (non)people unfit for society.

Here is an effective recipe for simultaneous social abandonment and continued carceral control, as those who have been incarcerated and subsequently deprived of any meaningful social or psychological support are sure to become ever more marginalized from the body politic, and the more marginalized they become, the more likely they are to wind up back in prison."

That troubles me. It could be you too, innocently convicted and trying to re-make your life. Do you know anybody like that?

There is hope here:

Emphasize "the humanity and individuality of the people we put behind bars. It is embodied in Taifa and Beane’s call for an evidencebased approach to tackling the risk factors for criminal conduct; in Judge Gertner’s endorsement of evidence-based sentencing practices and guided discretion; and even in Clear and Austin’s macro-level demand that policymakers reduce the prison population by eliminating mandatory sentencing.

The self-perpetuating character of the American carceral system will not be disrupted until society as a whole begins to see that it is fellow human beings we are incarcerating. Until this fact is recognized, the wise strategies for change proposed by these authors will not be widely or seriously considered. But once it is recognized, those same strategies will be irresistible.

Justice Center Chair Facing Removal in Texas CCA

I don't know how to describe this but, just the facts, sir. Judge Keller, Honorable Sharon Keller, Presiding Judge, Texas Court of Criminal Appeals (the supreme criminal court) is the Chairman of the Board of Directors of the Justice Center which is the umbrella organization controlling the Reentry Policy Council noted in my last post. I just happened to stumble upon this fact today while reviewing the website out of an abundance of curiosity.

Unfortunately, the Judge is now facing a removal proceeding and trial (estimated to cost $250,000 dollars of your taxpayer money) thanks to the State Commission on Judicial Proceedings. Just one more reason to stop electing judges is this article about the fee, in which her lawyer, Chip Babcock, says they'd defend her for a buck, but are prohibited by law for giving a discount on legal fees to a judge as it would amount to an illegal political contribution! The buck in question is the amount the lawyer hired by the Commission is set to receive for prosecuting the case against Keller.

Allegations state that Judge Keller refused to follow written procedures in the Richardson execution causing the lawyer's request for stay based upon the USSC grant in Baze to be rejected. It is alleged she knew the lawyers wanted to file the request but could not get it to Court by the five pm close and refused to allow papers to be filed late. I might have added, stupidly and callously refused, but that would just be my spin on it. We'll just have to see what kind of sanction, if any, is appropriate for this kind of behavior by our supreme court justices.

All major Texas newspapers, including Texas Monthly have decried Keller's hastening of the execution of Richardson. To a man, all have called for Keller's removal.

I wonder how will this affect the future of the reentry movement?

The Justice Center's Board provides guidance on the Center's priorities and is comprised of senior level state officials who shape criminal justice policy.

Grits has this post on it.

Texas Justice Redux

Here is some more recent "Texas Justice" from the Fifth Circuit. Read that together with this from UK judges remarking on efforts to install an federal style sentencing "grid" system across the pond. Wow, Professor Berman, good work. If you thought judges should curb excesses of the legislature that have proven to be very, very foolish you'd be wrong respecting the Fifth.

And then, updating the topic there is this from Grits, who is devoted to the topic, on something as mundane as a data entry error that caused SCOTUS to have to weigh in. That would be the Rothgery decision (the opinion is at the link) from the current Supreme Court term. Here is analysis from Grits:

What's the significance? In the past, a defendant was not entitled to counsel at their bail hearing unless they couldn't make bond or bail was denied. In that case they had counsel appointed fairly quickly. But in the case where a defendant makes bond but also requests a lawyer, Texas courts previously held the defendant could not get a court appointed lawyer until they were indicted, leaving indigent defendants for weeks in limbo with no legal adviser. Now SCOTUS has said courts must appoint counsel for indigent defendants at their bail hearing.

That's how most other states do it; Texas had just been skimping by not appointing counsel earlier. According to the opinion, "The Court is advised without contradiction that not only the Federal Government, including the District of Columbia, but 43 States take the first step toward appointing counsel before, at, or just after initial appearance. To the extent the remaining 7 States have been denying appointed counsel at that time, they are a distinct minority."

PREVIOUS POST ON TOPIC:
Here is my earlier verbose-but-important post on Rothgery.

Texas Justice

Here is more new evidence from Grits that Texas justice means lock 'em up, actually innocent, accused, and falsely convicted. Just don't become accused, and you're alright if in Texas. Got enemies? Tuff. Stay out of Texas.

UPDATE: More on Texas "yo yo" justice as applied to - well, matters of life and death, here.

More From Grits on the Texas Mormon Children

If you have been Walthered, I would like to know about it. Please contact me through comments on this site or email me.

If you want to know more about what this new verb, Walthered, means (and how it originated), link to Grits, Scott Henson's great Texas blog. The comments on his post are juicy, ripe for action, and will give you a spicy taste of attitudes prevailing in Texas-style justice and politics.

Grits's searing coverage, updated with every new develoment, is the best I've seen.

Good question: why did the lefties initially support the raid and "conservatives" not do so. I was aghast from the beginning, and consider myself a convert to the left after having flirted with the right in my youth. A recent series of Presidential blunders have turned me away from the right wing party in this country forevermore.

Independently of my political pieties, I was aghast because I know first hand what it is like to be separated both from your parents, and from your children. I've seen it from both ends, unfortunately. I'm not necessarily in favor of bigamy or underage marriage. I just had a hunch Texas CPS had bitten off a little more than could be chewed, comfortably. Now, we'll get to see how national attention could possibly have an effect upon this particular area of what they call family law in this state.

You gotta love Scott's new slogan for CPS: No Child Left With Mom (!!!)

PREVIOUS Z POST ON SUBJECT:
Grits on FLDS Children Takings

Modus Operandi

Just one more case of Texas "justice" ...
click here, and thank you, Howard Bashman, for the link.

Texas Wrongful Convictions

One, "Wretched's" take on Dallas and Texas wrongful convictions:

At least James Curtis Giles' name is going to be cleared. Dallas County's "good" name? Not so much. For those of you counting, that's thirteen exonerations in the last few years. More than anywhere else in the country. That's partially because the concept of justice has been a tad loosely applied in there here parts. It's also because Dallas, unlike many other jurisdictions, actually holds on to it's forensic evidence.

Justice is Coming to Dallas?

Now that's what I call MONEY, and I don't mean coinage, but changing direction the right way.

From Morning Edition, NPR (2/23) (Wade Goodwyn) Some clips for future reference:

"Dallas' new district attorney, Craig Watkins, says he will open his files to the Innocence Project and work with the group to examine hundreds of cases over the past 30 years. The goal is to see whether DNA tests might reveal wrongful convictions. *** Watkins was elected the first black district attorney in Texas.***

"It's a whole different world in the Dallas criminal justice system," says defense attorney Gary Udashen. "It is a world where if a client of ours is innocent, we feel like there's openness in the District Attorney's office to hear what we have say, to look at what we have to show them, where we don't anticipate resistance every step of the way."

Udashen's firm alone has had seven Dallas clients who were convicted, sent to prison, exhausted their appeals and then ultimately — with the pro bono help of Udashen and his colleagues — were found to be innocent. ***Udashen says that Watkins has decided that defending wrongful convictions is not going to be part of the job.***

So Watkins is opening his files to the Texas Innocence Project. North Texas law students supervised by seven veteran former prosecutors and criminal defense lawyers will begin deciding which cases merit further investigation.

"In a state that is a national hotspot, Dallas is the hottest of the hotspots in state right now," says Jeff Blackburn, the Innocence Project's Texas director. "What'd happened in Dallas is that a lot of samples, unlike other any other parts of the state, were preserved, and they're still there."***

It would be safe to say that right now Dallas is on the edge of opening up in a very revealing way what the system in Texas is really all about," Blackburn says.

A One Sided View of a SCT Argument

Reviewing Oral Argument in Abdul Kabir FKA (sic) Cole v Quarterman, and Brewer v. Quarterman. Robert C. Owen for Petitioners.

The death cases have instructional value for several reasons. We demonstrate how questions of life and death are treated for the world to see, (apart from what we are NOT accomplishing in Iraq).

The transparency of our system of justice is commendable and remarkable. Death is different. AEDPA and legalistic points aside, these, as do all cases brought before the SCT, spotlight how our system "works" and does not work.

Remember that almost fifty individual prisoners on TX death row will be affected by this decision (have cases pending raising the same issue re the pre-1991 jury instructions). That it takes over 15 years to resolve the matter says something too. I'll let that speak for itself. We can only wish that justice was as speedy as the recent Presidential decision to begin re-utilizing FISA authority for wiretaps.

Preliminary Box Score:
Edward L. Marshall for Texas makes an interesting point about the AEDPA inquiry under Teague and clearly established law (pp 35). He relies on and desperately wants the Court to look at Graham and Johnson, rather than Penry, Tennard (pp 40). But Johnson unfortunately may have been a very narrow fact-based decision, and Owen suggests in any event that the language favoring the state's case must be read in context of other language that does not help it.

Summarizing, the question was whether the jury instructions permitted "meaningful" consideration of mitigating evidence.

Argument:
O begins with: Would the reasonable juror find evidence of mistreatment as a youth as reasons to find defendant more dangerous rather than less dangerous, contrary to the lower courts' earlier findings on this? O noted that the Fifth Circuit in December's Nelson decision (split decision BTW) turned away from its prior position and followed the Court's guidance under Tennard and Smith. For that reason counsel had requested the Court vacate and return the case for reconsideration in light of Nelson.

But Nelson is likely to be challenged, said Ginsburg, resulting in delay.
Stevens thought that these cases are different and there was no reason to wait to decide them. So after about five or ten minutes O turned to the merits (pp7).

CJ Roberts first wanted to compare the evidence with that in Penry. This is precisely how law is made and he gets right to it. Is the case similar enough to follow or different enough to distinguish? He suggested these were "closer" cases. Owens, not conceding that calls them "different" but not closer, returning to the suggestion that the evidence made defendants out to be more not less dangerous (therefore, not mitigating). This is important because the question is whether the instructions permitted a reasonable juror to consider the evidence AS MITIGATING, apart from the question of future danger.

Justice Ginsburg next offers that the evidence even if not as strong as Penry's still really does fall into the category of MITIGATING (only if considered as such under the Tennard line of cases.)

Scalia notes Tennard post-dates the State court decisions in these cases. This is important because under AEDPA the question is whether the State court's decision was "unreasonable". It was Johnson and another case which the State court purported to be following at the time of its ruling. O points out that the Tennard dicta was made in the context of a COA qn. (misunderstanding the thrust of Scalia's remark -- the State decided Tennard in 1997).

When Scalia points out that Tennard did not overrule Johnson, O points out that in Johnson, the evidence in qn was limited to defendant's youth which is coextensive to dangerousness and mitigation, contrary to the cases at bar.

J Alito wants to know more about the similarities with Johnson, and Roberts goes to the specific evidence in Brewer's case, and thinks it is quite different than Penry.

O directs the justices back around to the question at hand, that evidence of mental impairment raises a probable inference of dangerousness in Tennard and Penry, as in the cases at bar.

Roberts makes the point that an absence of a "similar prosecutorial statement in the Cole case cuts against you" (getting very parsimonious in the differences--for Roberts, it is not just the evidence, its nature and character or the lack of it, but also how or if it was presented IN THE LOWER COURTS -- in this instance he felt that the absence of the prosecutor telling the jury about the "mitigating" evidence that O argues the reasonable juror would feel makes defendant more dangerous makes Cole different than Brewer's).

Is it reasonable to make such a fine distinction? How about: My lawyer was tongue-tied at trial, or the prosecutor mucked up and forgot to make a point or two. It is all in what you believe the proverbial "reasonable juror" could objectively believe. Are judges truly qualified to answer that as a matter of "science"? Regardless, these are the sorts of things judges do day-in and day-out. If not judges, do we need psychiatrists for that? I suppose the great thing about American justice is that common sense should prevail, so we appoint and elect judges and justices to define that for us. After all, that is why we call it "common" sense. What a system. Does it work? For whom does it work best? (IMO judges should be drawn from the commuity, receive expense pay only, and go back to their day jobs periodically to re-discover common sense and experience a little humanity and humility. I think I know more than a few lawyers who could benefit too).

Roberts wants very much to believe that a juror COULD, IF SHE WISHED TO, have considered the evidence mitigating. But this does not appear to follow the Court's precedent in Tennard, Penry, but to essentially re-litigate the question whether mental impairment and/or mistreatment creates an inference of dangerousness unless provided a way to be considered as categorically and specifically mitigating. Texas, recognizing the weakness, had reformed this shortcoming by changing the instruction set, in 1991, to allow for that.

Roberts then notes Penry did not establish an absolute rule and thinks maybe O is arguing for such. pp19

O responds that no, the Court need only enforce Penry for Brewer to prevail.
Scalia wants more about the deferential review and O responds that yes, the State court chose between applying the Penry line or the Graham, Johnson and chose wrong. Not only that, the choice was "objectively" unreasonable, he concluded, as necessarily he must.

That is what AEDPA has done for us.

NB. I'll let somebody else do Ed's argument. But if somebody wants it from me my standard hourly rate is $625/hr. That's a joke. [At that rate I'd pay off my student loans in no time, but I wonder why that's not happening].

The tranny is here. (and it is not a GM, Ford or Toyota model -- I prefer Mazda myself).

Crows Nest on a Tuesday that feels like Monday

Here is Scot Henson on TX Parole

TDCJ categorizes offenders who are eligible for parole into seven risk levels, and under the current guidelines, level 7 offenders (those identified as the least dangerous) should be approved for release between 76-100% of the time. But take a look at the approval rates for Level 7 offenders at Texas' six regional parole panels from the Sunset report (pdf, p. 31):

Parole Panel Approval Rate for Guideline 7

Amarillo 42.96%
Angleton 54.47
Gatesville 38.29
Huntsville 45.71
Palestine 57.88
San Antonio 53.14

Not one of these parole boards comes close to approving Level 7 parole candidates at even the lowest part of the guideline range. One member of the Sunset Commission pointed out, the parole board is actually more likely to follow its guidelines for the most violent, dangerous offenders than they are low-level nonviolent ones. That makes little sense.

And a little more on that from Norm Sirak's place:

Pretty Hot Letter on Parole to Texas State Senator makes points (Dec. 27)

According to December's Progress Report Texas's Motion to Oppose Class Cert is Due Jan. 17. There have been six motions to dismiss to date, unheard of.

This, from ADAM M. GERSHOWITZ , South Texas College of Law, is a very interesting proposal, politically speaking, concerning the Death Penalty.

As is this one, by WAYNE A. LOGAN , Florida State University College of Law. Thanks as always to Prof. Berman. This article is reviewed (previewed?) by Corey Young over at Sex Crimes blog.

UPDATE: My Newsletter has just been posted here.(10:12am)

Waking Up in Texas Will Still Take Some Doing

Grits for Breakfast displays some GREAT new thinking (editorializing) coming from a great big state of Texas. Are the brains (not hearts) going to win, finally? Hearts, in this case, might be at the root of the brains! Hard to believe, and so, believe this when you see it.

The guys don't want to build more prisons until they see who's in there and why.

Sen. John Whitmire of Houston, who is chairman of the Senate Criminal Justice Committee, put it mildly when he told Ward: "It appears we're probably wasting millions of dollars filling up beds with people who don't need to be there."

Death, Texas, and SCOTUS

More on Topic of Death Penalty (from Texas, via SCOTUSblog--many thanks!)

Robert C. Owen of the Capital Punishment Center at the University of Texas Law School, has told the Court of the Fifth Circuit's 9-7 en banc ruling on Dec. 11 in the case of Nelson v. Quarterman (Fifth Circuit docket 02-11096). Owen argued in his motions to vacate that "the en banc court in Nelson has decisively changed course, rejecting the prior, stunted Fifth Circuit reading [of the key Supreme Court precedent] in favor of this Court's own approach" in more recent precedents. The Circuit Court, the motion added, has repudiated the position that both Brewer and Abdu-Kabir have been challenging. "The need for this Court's intervention no longer exists," Owen contended. The tension between the Supreme Court and the Fifth Circuit, he said, "has been resolved." (Identical arguments were made in the two cases.)

The state, however, argued that the Nelson decision is flawed, failing to take account of the Supreme Court's more recent ruling on the controversy. And, the state contended, the Nelson ruling is limited to its facts, and involves a different kind of mitigating evidence. Moreover, the Nelson ruling itself is going to be challenged in a new petition to the Court by the state, according to its lawyer, Edward L. Marshall, deputy chief of the state's Postconviction Litigation Division in the state attorney general's office. Nothing would be gained by sending the Brewer and Abdul-Kabir cases back to the Fifth Circuit, Marshall said.

The Fifth Circuit Court of Appeals on Wednesday (Dec. 27) denied request for en banc consideration expressly to (try to) resolve the question of the Supreme Court's jurisdiction over the matter by making decision "final".

And, that's not all...for the rest of the controversy, link there. (How Appealing/Howard Bashman--thank you!)

This is big too (from Texas): (Thanks to Karl Keys--Capital Defense Weekly--link at right)

Although I have been repeatedly calling 2006 the “Year of the Needle” it may well be remembered as the year the Texas death penalty was saved. As I am prepping up the year end review in caselaw I am stunned at the developments out of the Lone Star state - standards for post-conviction counsel, the first full year of LWOP (and just 14 new death sentences), the reexamination of Penry in Nelson v. Quarterman, & finally the rough making of the the right to meaningful representation in postconviction found in Ex Parte Juan Jose Reynoso

Trends: Last Week Before Christmas

Wanna Grow the $$$$$$$????????? Big Cash Crop? Find what it is at Real Cost of Prisons (link also to right). So Money does grow on trees as well as in the devil's workshop, or sometimes bushy little stalks, with sticky little leaves. The next future POTUS, Barack Obama, HAS inhaled: even though inhaling does not always necessarily follow the sucking, that was the point. (oops, fixed that typo!)

Weighing in on Moral Tactics and International Military Law is Professor Amos N. Guiora writing in the Baltimore Sun about a ruling in the Israeli Supreme Court:
The ruling establishes a checklist of how the state is to proceed in these cases. Harming civilians who "take direct part in hostilities," as defined in the decision, "even if the result is death, is permitted, on the condition that there is no other means which harms them less, and on the condition that innocent civilians nearby are not harmed. Harm to the latter must be proportional. That proportionality is determined according to a values-based test, intended to balance between the military advantage and the civilian damage."

Recently, the United States Supreme Court, in Hamdan v. Rumsfeld, held that the military tribunals established by President Bush in the aftermath of 9/11 did not pass judicial muster. The presidential order of November 2001, creating the tribunals, was not subject to rigorous checks and balances. The U.S. Congress was largely somnolent, and then-Chief Justice William H. Rehnquist had previously written that in times of conflict, the court must be "reticent."

Counterterrorism consists of four "legs": the rule of law, morality, operational considerations, and intelligence gathering. Successful, aggressive counterterrorismoperations reflect a harmonious confluence of the four. Balancing the rights of the individual with the equally legitimate rights of the state is the essence of counterterrorism. It is also very difficult to develop, implement and articulate.

Amos N. Guiora is professor of law and director of the Institute for Global Security, Law and Policy at Case Western Reserve University School of Law. He served for 19 years in the Israel Defense Forces and held senior command positions including commander of the IDF School of Military Law. His e-mail is amos.guiora@case.edu.

Here is the SCOTUS Feb calendar (hat tip SCOTUSblog)

And here we'll find Habeas Corpus Restoration efforts (also from SCOTUS blog) S. 4081, titled "To restore habeas corpus for those detained by the United States." The text of the bill can be found here, and statements by the two senators when they jointly introduced the measure can be found here. Lyle Denniston reporting:

***The measure would appear to have a good chance of passage, at least in the Senate: when Specter attempted to head off the court-stripping wprovision in
the just-ended session, his move failed by a 51-48 vote. The Senate's membership, of course, has changed markedly after the November election.

President Bush would be strongly likely to veto any habeas restoration bill that reached his desk in the new Congress. And there almost certainly would
not be enough votes in Congress to override a veto, even with Democrats in control. Even so, the maneuvering indicates that the question of habeas rights is not likely to be resolved finally, any time soon.

In a comment, Don Robertson, "The American Philosopher" posted a note and excerpt from "The Road to Harpers Ferry" J.C. Furnas, 1959, (William Sloane Assciates, New York) which looks very interesting for abolition, civil war history buffs AND habeas corpus nuts.

CapitalDefenseWeekly has this encouraging post about yours truly, (recognition, at long last there is evidence of--no not water on Mars, which is there too--but that the writing has resulted in the reading).

This is Still Big News: from Howard Bashman at How Appealing (link at right); and Doug Berman at Sentencing Law and Policy (link at right) leads with a post of his own on this today. But this item from yesterday about Claiborne and Rita (pair of SCOTUS cases in sentencing to be decided soon) is the one I am really looking forward to sinking my teeth into:

Howard writes,

"Georgia Man Fights Conviction as Molester": The New York Times today contains an article that begins, "Genarlow Wilson, 20, is serving a prison sentence that shocked his jury, elicited charges of racism from critics of the justice system and that even prosecutors and the State Legislature acknowledge is unjust. He was sentenced to 10 years in prison without parole for having consensual oral sex with a 15-year-old girl at a New Year’s Eve party, an offense that constituted aggravated child molesting, even though Mr. Wilson himself was only 17."
And The Atlanta Journal-Constitution today contains an editorial entitled "Order justice under righted sex law."

My earlier coverage appears at this link. This matter was also discussed yesterday at "The Volokh Conspiracy" [link at right] and "Sentencing Law and Policy." HB.

AND maybe this is why (from StandDown Texas), as Grits (link to right) reports, Harris County (Houston) Texas wants to increase the already largest county jail in the country's capacity by fifty percent.

ALSO Sex Crimes had some good ones yesterday, making up for HIS weekend hiatus (link at right).

Habeas Corpus Takes the Weekend Cake

Wow, a 48 hour plus hiatus from blogging has done wonders for the soul.

Emily Bazelon weighed in on Habeas Corpus this weekend with a piece that ran in Slate and the Washington Post Outlook. This should be read with Fareed Zakaria's piece in the New York Times. He reviewed books by John Yoo and Bruce Ackerman on terrorism, Habeas Corpus (the great writ) and "the rule of law." Fareed is the editor of Newsweek International, the author of "The Future of Freedom" and the host of the PBS program "Foreign Exchange."

Here is an article from Salon (by Alex Koppelman) showing why Habeas Corpus and judicial review is still badly needed. The quote from Jonathan Turley refers to the inhuman "treatment" of terrorist suspect Padilla. Turley is professor of law at George Washington University and specializes in constitutional criminal procedure.

Turley says that is symptomatic of problems with the administration's strategy in prosecuting terror cases generally. He believes that by abandoning traditional methods, such as those used in the Crocker case, it has crippled its own efforts.

"In some ways, this president is the best friend of the criminal defense bar. His inclination to ignore legal standards serves to undermine even the strongest case," Turley says. And had they tried Padilla in the way terror suspects had been prosecuted for years, Turley says, he believes that "Jose Padilla probably could have been convicted by now."

Here is your comprehensive guide to "collateral consequences" of a conviction, said to be an invaluable resource for attorneys, policymakers, and citizens, (from Sentencing Project dot org) and, here at this link you'll find a "prison consultant" (Dr. Prison) claiming to, well, take a guess, is it survival or comfort we are looking for? I make no claims as to either of these products, but here is what Dr. Prison says:

If you don't know how to act in prison, you will have...
*
25-30% chance of getting killed during your prison sentence.
*
10-15% chance of getting raped during your prison sentence.
*
30-40% chance of getting stabbed during your prison sentence.
*
80-90% chance of getting beaten during your prison sentence.
- If you make trouble in prison, you could face...
*
23-hour solitary confinement, with 1 hour outside, all alone.
*
No visits or privileges of any kind.
*
A cell worse than this.

Other notes about prison:
*
Prison guards care very little if at all about you.
*
Prison riots last an hour on average.
*
Prisoner jobs throughout prison generally pay less than $200 a month.

I happen to know that Texas State prisoners get no pay whatsoever, and one three minute telephone call every 90 days, if they are lucky (and behave).

Here is a book that looks interesting:

The Tyranny of Good Intentions: How Prosecutors and Bureaucrats Are Trampling the Constitution in the Name of Justice (Hardcover)
by Paul Craig Roberts, Lawrence M. Stratton

AND, did you know there are 7 millions incarcerated in the United States? What
happens to these folks concerning employment when they come out? Learn about a program which will work to provide meaningful employment for those persons being released from prison, or those presently on probation. It may be too late to click the following link:

http://www.acbradio .org/pweb/ index.php? module=pagemaste r&PAGE_user_ op=view_p
age&PAGE_id= 8&MMN_position= 14:14

but there it is. Maybe there's a way to track it back.

Okay, enough for now. Thoughts, comments, feedback is appreciated. Blog on!

TGIF

TGIF Heading into another Weekend here is a newsy update. So we'll poison the well in order to save the water. That's right, send more troops says Sen. McCain. Of course the generals need a bigger standing army to do this. I respectfully disagree. Do not throw good money after bad.
Here's the plan: draw a perimeter, tell the Saudis to mind their own business and simmer down. We'll save money, lives (ours), and credibility. No matter who controls Iraq it will still be Muslim, anti-American and non-democratic. We need to go back to "self-determination". We lost before we even started. They can sort it out better than we can. Keep terrorism inside/contained AND away from our troops.

The sad story of the Botched execution(s) is here.

Baseball Fans: new import from Japan is the Type O Warrior (hat tip NYT)
In Japan, people with Type O are commonly referred to as warriors because they are said to be self-confident, outgoing, goal-oriented and passionate. According to Masahiko Nomi, a Japanese journalist who helped popularize blood typology with a best-selling book in 1971, people with Type O make the best bankers, politicians and — if you are not yet convinced — professional baseball players.

Poll Says the New Congress is Trusted: Americans trust Democratic lawmakers more than President Bush to handle the nation's toughest problems, including the Iraq war, and a quarter of Republicans are glad that Democrats have won control of Congress, a Washington Post-ABC News poll finds.


A good blurb on Terrorism and Security (by Tom Regan of Christian Science Monitor)

Here you will find a good roundup of the blog and media coverage of the Musladin Supreme Court decision. Hat tip Kent at Crime and Consequences.

Too Good to Pass: Mike at Crime and Federalism (link below at "Mike says")has this called "How Scalia Views the "Little People" -- juicy, for "populist conservatives" -- Here is how Justice Antonin Scalia views 99% of people:

"If you become a federal judge in the Southern District of New York (Manhattan), you can't raise a family on what the salary [$165,200] is," Scalia said during a speech to the Northern Virginia Technology Council.

Mike says: Ninety-nine percent of people make much less money than that. According to Justice Scalia, they must not be raising their families properly. Only the little people make less than 150K. I would love for someone to explain why someone who holds such viewpoints about Americans is considered a populist hero by lower-income conservatives.

Open Letter to Justice Scalia by Keith S. Hampton is here.

More on Hamdan (hat tip Kent at Crime and Consequences)
District Court has dismissed for lack of jurisdiction the habeas petition of Guantanamo detainee Salim Hamdan, whose case went to the Supreme Court in Hamdan v. Rumsfeld.

The opinion has three main points. First, the statute did repeal the court's habeas jurisdiction. The court brushed aside rather easily the shaky statutory interpretation argument that it did not.

Second, Congress has not validly suspended the writ of habeas corpus. The constitutional conditions for suspension, rebellion or invasion, are not present. "If and to the extent that the MCA operates to make the writ unavailable to a person who is constitutionally entitled to it, it must be unconstitutional."

Third, Hamdan is not constitutionally entitled to it. Here Judge Robertson has an analysis of the historical cases of habeas for aliens that is quite consistent with our brief in Hamdan and rejects the superficial citation of these cases by Justice Stevens in Rasul v. Bush, n. 11.

Hat tip also Crime and Consequences re the Duke rape case. David Scott of AP reports on a defense motion in the Duke Lacrosse team rape case alleging that a DNA test by the prosecution showed multiple males' DNA but none of the team members' and that the result was not disclosed to the defense. The story doesn't say what relief the motion is requesting. Given that they do have the information months before trial, there doesn't seem to be a Brady violation here.

RE Counsel, Medellin and Acker in CCA by Austin American Statesman, here (Nov. 20).

"This state's highest appeals court for criminal cases consistently ignores justice, even when the evidence of injustice is clear. True to its recent history, the court last week rejected two appeals from condemned inmates whose trials were travesties of justice."
"The most ardent death penalty advocate understands that a capital murder proceeding must guarantee a fair trial. One of the strongest arguments against capital punishment in Texas is that the judicial system is so broken that innocent defendants can be condemned and executed."

Cause and effect: The AP reported 12/12--that CCA set new rules to ensure better performance of lawyers for death row. Rules were adopted Monday, (12/11?).

Chilly, but Nice in Western Maryland

Just a little something to get you going on a chilly Tuesday morning in Western Maryland. Thank god it's not Vietnam and thank god its not Iraq.

1 Over at SCOTUSblog, Lyle Denniston is reporting that the Supreme Court has reversed the Ninth Circuit's decision in Carey v. Musladin. The short majority opinion is more about habeas standards than about button-wearing prejudice, though the three short concurrences get into the substantive issues a bit more. For some additional blogosphere commentary, check out Crime Consequences and Althouse (blogs). Hat Tip Doc Berman at Sentencing Law and Policy.

2 California's Prison Problems Spotlighted in NYT:

More on that in LA Times: "Punishing Prisoners at all Costs." As I note in my header (the blurb at the top, describing my blog), "there has to be a better way." (by Joe Domanick, author of "Cruel Justice: Three Strikes and the Politics of Crime in America's Golden State," -- Domanick is senior fellow in criminal justice at the USC Annenberg Institute for Justice and Journalism)

3 Texas Parole: This is of special interest to me so I'm going to do a bit more reading and post further on this. Meanwhile, read Doc Berman on the future of parole here.

4 Unintended Consequences: Iowa's residency restrictions creating more problems than they solve. Hat Tip Doc Berman.

5 Sentencing and SCOTUS:
Sentencing fans eagerly awaiting what the Court will say in the Cunningham case about Blakely's applicability to California's sentencing system will have to wait at least another month.

Some have speculated that, in light of the cert grants on Booker issues in Claiborne and Rita, the Court might not issue Cunningham until late Spring. Personally, I would be surprised if the Justices will sit on Cunningham until it deals with Claiborne and Rita (which won't be argued until late February), but who knows what we should expect from slow-poke SCOTUS these days.

Doc Berman's blog Sentencing Law and Policy has all this and more. My hat is permanently tipped in your direction Doug. Thanks!

Christmas Is Time For Giving: As it will soon be Christmas, or Holidays, or just time for gift giving and spending money, let's not forget that lots of people will be missing their loved ones who might be soldiers fighting overseas, or locked away in prison: there is no justice. Lots of prisoners are just plain innocent. Too many. That's why I started the Innocence Project and write this blog and newsletter. Please donate. Send your check to Innocence Project, PO Box 200, Jefferson, MD 21755.

It is an especially hard time of year if you are in prison. It's hard even if you're not. It is an especially good time to begin thinking of new resolutions and turning over a new leaf. If you have not done your good deed for the day, month or year just start today and give a little. It will make you a better person! There is always room for improvement, right?

Yesterday's News

Gitmo Justice A Joke, here at WaPo. Just imagine the state courts, where some of the people running DOJ have come from (could that be, Texas?)

More good stuff from Scott Henson at Grits for Breakfast on Texas Justice, permanent link to right.

A Critical Report on the Detainee Hearing Process is here.

And an article headlined "Blind Inmate's Medication Claim Revived” here reports on a ruling here issued yesterday under 42 U.S.C. 1983.

Odds and Ends

Stink of MS still lingers...

Hard to Ignore Case of Police Brutality: here

More Prisons Not the Answer, Makes Sense Now, but we did not know back then,

The Texas Board of Pardons and Paroles recently came under fierce attack for denying parole to scores of low-risk offenders. Talk about boosting parole rates worries Dianne Clements, of the Houston-based victim advocacy group, Justice for All. "These influential lawmakers seem to be leading us to where we were 15 years ago, when we had a prison population that was a revolving door because we didn't have enough prison beds and parole boards had no alternative but to release people," she said. But Marc Levin, director of the Texas Public Policy Foundation's Center for Effective Justice, a conservative think tank, said the winds were shifting in Texas. "There's an alliance on both the right and the left. There's a consensus we need to do something besides build more prisons," he said.

Innocence Stuff

Get Smart On Crime

Grits for Breakfast has this on getting smarter about crime from a Texas perspective, explaining why Texas jails are overcrowded. You'll also find an intriguing link to a piece about government surveillance by the ACLU.

From Corrections Sentencing there is this interesting review by Michael Connelly posted Saturday, November 11, 2006:

"Last month I posted a book review essay on The Ethical Brain and The Future of the Brain to recommend these studies of cognitive and neuro-research as first steps to understanding where the pharmaceutical and genetic aspects of technocorrections might take us. I've got a couple more to recommend now. The first is along the same line as the first two, Richard Restak's The Naked Brain: How the Emerging Neurosociety Is Changing How We Live, Work, and Love. Restak covers a lot of the same material as the others, the way the new technologies for imaging the workings of the brain are telling us so much about how it works and its relationship to our consciousness (which turns out to be a lot like a third party to our brain like the people we deal with every day are). The brain knows and does a hell of a lot more than "we" are privy to, and the imaging is giving us our first real clues to that, creating a "neurosociety" in which "brain science influences every aspect of daily life."As I mentioned before, this clearly includes corrections sentencing."

The other recommended read is, Primates and Philosophers: How Morality Evolved:

"The title should give the link to corrections sentencing away.In a way I felt sorry for de Waal in this book as he presented the decades of work he's done with other species that demonstrates conclusively to any non-human-obsessed mind that morality exists along a spectrum among species, not a sharp separation between us (really, we're still putting ourselves up as paragons of morality??) and the rest of the animal kingdom. *** If genetics and gene expression in given environments are involved in setting our own and our community's standards of right and wrong, then we will have to consider the arguments of those who argue specialness for their defendants and we will have to consider the possibilities that genes make us different from each other, not "equal under the law."We've based our law, our codes, our justifications for sanctions and mercies on views of humanity that are daily being shown to be as wrong as Locke, as wrong as Plato and Aristotle, Augustine and Luther, Rousseau and Marx. This is serious stuff, folks. And the guys doing the challenging are not under our tent and, in de Waal's case, suffer us not very gladly. They will be setting the new rules, the new paradigms, and we can embrace them and make sure our truly beneficial contributions are incorporated or we can play off in our corner and let people who don't have our experience and mistakes to learn from make the new policies. Or as a wise man once said, "we can allow irresponsible people to use this knowledge in ways that are not always to our advantage." The choice is ours. But time's a-wastin'."

Okay, so on to some Sunday football, America's real religion.