Recently in General Category

Recently I discussed the revelation that DOJ has brought on board seven lawyers who previously represented accused members of al Qaeda. 

I was in error.  It wasn't seven.  It was eight.  The eighth has a really nice office, in that he is the Attorney General.

It has now come out that Eric Holder worked on an amicus brief in the Padilla case.  As Powerline reports,

The Justice Department has admitted that Eric Holder failed to tell Congress during his confirmation process that he had contributed to a legal brief which argued that the President lacks authority to hold Jose Padilla, a U.S citizen declared an "enemy combatant," indefinitely without charge. The Justice Department has also acknowledged what is obvious -- that "the brief should have been disclosed as part of the confirmation process."

DOJ contends that the failure to disclose was not intentional. It says that "In preparing thousands of pages for submission, it was unfortunately and inadvertently missed."

Hello??

 

Kent's piece, "Shoddy and Dangerous," introduces us to a controversy swirling around two enormously important questions:  Who should serve in the Department of Justice, and to what extent can lawyers properly be held to account for positions they took in a representative capacity in their prior, private practice.

These questions were first raised by the organizaion Keep America Safe, which asked the Justice Department to identify lawyers it has employed who previously represented persons accused of supporting al Qaeda terrorism.  Initially, it is my understanding, the Department refused, but since has provided seven names.  Keep America Safe now designates these as "the al Qaeda Seven."  For the reasons that follow, I think that designation is unfair on the present record  --  but that doesn't mean raising the issue was unfair.

The Supreme Judicial Court of Massachusetts upheld the state's gun locking requirement today in Commonwealth v. Runyan, SJC-10480, distinguishing D.C. v. Heller on two grounds.

First, the Massachusetts court holds that the Second Amendment does not apply to the states. That issue is presently before the Supreme Court in McDonald v. Chicago.

Second, the court distinguishes the Massachusetts law from the more restrictive D.C. law.

The latter holding would make a simple "vacate and remand" inappropriate in the event the Supreme Court decides in favor of incorporation in McDonald.

Denise LaVoie has this story for AP.

Former AG Mukasey is getting pretty close to being a regular columnist at the WSJ. Maybe he should be. In today's piece, he notes parallels between the attacks on John Yoo and Jay Bybee and the attacks on current DoJ lawyers who represented Guantanamo detainees. "This is all of a piece, and what it is a piece of is something both shoddy and dangerous."

Stories of prosecutorial misconduct most often focus on the non-disclosure (or outright concealment) of exculpatory evidence.  Every now and again, as with Mike Nifong in the Duke rape hoax, they concern the decision to prosecute persons the authorities know or should have known are innocent.

Less widely reported, but far more prevalent, is what any serious person would also have to consider misconduct:  Doing nothing when events cry out for action.  The reasons this sort of prosecutorial misconduct gets a pass are manifold:  The defense bar is not about to complain; the press and the academy have an ideological stake in pretending prosecutors are never anything but "overzealous;" and there is no lobby to speak for future victims of criminals not brought to book.

Enter the case of Professor Amy Bishop, who last week gunned down three of her colleagues, ostensibly (so it is reported) because she was denied tenure.  The rub is that this was not Ms. Bishop's first killing.  Years before, she offed her brother in circumstances that were barely investigated then and are now subject to widely varying accounts.  What is not disputed is that the DA at the time, Robert Delahunt (now a member of Congress), did not so much as present the case to a grand jury.  Now there are allegations of a cover-up by the authorities. 

James Taranto of the Wall Street Journal takes a look at the troubling story: 

Since retiring from the Supreme Court, Justice O'Connor has been advocating the elimination of elections for judges. I agree with her up to a point. The point of disagreement is that she advocates the adoption of so-called "merit selection" systems instead. Today, in Arizona, Howard Fischer reports for Capitol Media Services,

On a 4-3 party-line vote, the Senate Judiciary Committee approved a measure that would scrap the "merit selection" process now used to choose the judges for the state Supreme Court, the Court of Appeals and the superior courts in Pima and Maricopa counties.* Instead it would mirror the federal system, with the governor getting to name who she or he wants, subject only to Senate confirmation.

"Merit selection" sounds great, but the devil is in the details, as it so often is. Who decides merit? In most states having a system with that label, the governor is constrained to choose from a short list prepared by a commission. Also, in most states, the state bar dominates the commission. So instead of replacing politics with merit, so-called "merit selection" just replaces general politics with bar politics. Given that choice, general politics is the better of the two.

To illustrate why, let us do a little "thought experiment." Let us go back to 1981. Justice Potter Stewart has announced his retirement. Now let us suppose that President Reagan is constitutionally constrained to appoint from a list of 3 names prepared by the American Bar Association. Who is on the list? Rose Bird, Laurence Tribe, and Alan Dershowitz, perhaps. Who would not have had a snowball's chance in hell of being on that list? An intermediate state appellate court judge from "flyover country."

The main page of the blog has been expanded from the 10 most recent posts to 30. Posting volume had increased to the point that posts were sometimes scrolling off the main page the same day they were posted. The expanded page may take a bit longer to load, though.

Lynne Marek reports on NLJ, "The American Bar Association announced this week that it's cutting the cost of dues for solo practitioners, government lawyers, judges and attorneys working for nonprofits as part of an effort to respond to lawyers' differing financial circumstances and the effects of the economic downturn."

Personally, I quit the ABA after I read their brief in Sawyer v. Smith, 497 U.S. 227 (1990), a case in which I also wrote a brief. Theirs was a straight defense-side brief with no semblance of consideration for the other side. The briefs I have seen them file in criminal cases in the twenty years since have been similarly tilted.

So I'll pass, despite the reduced dues. I will rejoin the ABA when it becomes evenhanded on criminal law or when hell freezes over, whichever comes first.

Achieving the proper balance in commenting is a challenge for a blog. We would like to have good discussion in the comments. However, we want to avoid (1) spam, which requires no explanation, and (2) food fights that detract from the quality of the blog. Each blogmeister must decide how to strike this balance. Some don't allow comments at all. Some take a laissez faire policy. We tried to take a middle-ground approach by allowing comments but requiring commenters to authenticate.

I have received a lot of feedback that the two authentication methods provided to date, OpenID and TypeKey/TypePad, are too difficult. I am particularly disappointed that the Movable Type folks merged their TypeKey authentication service into their TypePad hosting service, producing a very confusing tangle.

Today I have opened up a third alternative, which is to register/authenticate on the blog itself. When you click on the "sign in to comment" link, you should go to a screen which provides three alternatives, the first of which is "Movable Type" with a wrench icon. At the lower right corner of the box is a link that says "Not a member?  Sign Up!" Click on that link, enter a user name and password, go to your email program, get the "Movable Type Account Confirmation" email, and click on the link in the email. Then you should be registered and able to comment with just a sign-in from that point on. If your browser can remember sign-ins for you, you won't even need that. (If it can't, you need a new browser.)

We'll try this for a while. If it causes problems, we'll have to revert.

UVa Prof. Gerard Alexander has this op-ed in the WaPo. He does not address the debate over crime specifically, but the overall problem he addresses is quite consistent with what I have experienced debating crime issues over the years:

Every political community includes some members who insist that their side has all the answers and that their adversaries are idiots. But American liberals, to a degree far surpassing conservatives, appear committed to the proposition that their views are correct, self-evident, and based on fact and reason, while conservative positions are not just wrong but illegitimate, ideological and unworthy of serious consideration.

*                           *                         *

This condescension is part of a liberal tradition that for generations has impoverished American debates over the economy, society and the functions of government -- and threatens to do so again today, when dialogue would be more valuable than ever.

Federal officials are considering charging Scott Roeder with violating the federal Freedom of Access to Clinic Entrances Act (FACE), reports Judy Thomas for the Kansas City Star. This is despite the fact that Roeder has already been convicted of murder in state court for killing abortion doctor George Tiller.

Constitutionally, the "dual sovereignty" doctrine permits the federal government to prosecute after a conviction or acquittal in state court for the same crime. As a matter of policy, though, it is rarely done. It is justified, in my opinion, when an acquittal or a grossly inadequate sentence is the result of some major malfunction of the state court system. That occurred in cases of violence against civil rights workers in the early 60s, for example. I see no reason for it here. Roeder was convicted of the highest degree of offense available under Kansas law, first-degree murder. (The crime is not capital under either Kansas or federal law.)  A 51-year-old man who is ineligible for parole for 50 years is not going to see the outside of the prison wall again.

The other justification given in the article is to investigate whether others were involved in a conspiracy. I think other tools are more appropriate for that.

Generally speaking, crimes by one person against another should be matters of state criminal law. Federal law enforcement should be used for inherently federal issues such as national security, smuggling, or counterfeiting, large organized crimes rings that cross state lines and are beyond the capacity of any one state to prosecute, and malfunctions of the state system itself.

A couple of days ago, I took note of the unchecked spending our new federal budget provides for the continued explosive growth of the welfare state.  Today I want to spell out, very briefly, the fundamental connection between the welfare state and a dysfunctional criminal law.  It might already be obvious; to readers of this blog it probably is.  But it's worth repeating because it is the central divide in domestic policy in our country.

 

Either we view citizens as responsible for their own lives and behavior or not.  If we do, we don't need and shouldn't have a welfare state of anything approaching its current gargantuan reach.  And we can embrace a criminal law grounded in the moral confidence of independent adults  --  the confidence, for example, to execute dangerous and malevolent killers, and do so without apologizing to the chattering class in the academy or the press.  It is likewise the confidence to imprison criminals for their punishment and our safety.  It enables us to reject calls to spurn accountability in favor of a phony and corrosive "compassion."  We can reserve authentic compassion for the victims of crime, and we won't confuse victims with victimizers.

 

The alternative theory views a citizen not as a responsible actor but as a vessel of forces beyond his control.  There is little or no genuine free will or choice.  There is only the overwhelming affliction of racism, militarism, childhood trauma, brain lesions and so on.  So viewed, citizens are not responsible.  The state is responsible.  It is thus up to the state to put food on the dining room table and excuses on the courtroom table.  Criminals are the real victims; those more traditionally thought of as victims of crime are mere inconvenient collateral damage of the capitalist behemoth, and will be treated as such.

 

For most of its history, our country has looked upon its citizens as responsible actors.  Taking that view, it has prospered like no other civilization in history  --  prosperity marked by respect for individual autonomy, the rights and dignity of minorities, private property and the rule of law.  But that view has been under attack for quite some time, and is under attack today as seldom before.  It is under attack by a government that assumes we cannot provide for ourselves and have neither the moral authority nor the wit to treat criminals for what they are or, for that matter, war criminals for what they are.  Indeed it's a government so lacking in moral clarity that it can't tell the one from the other.

 

The new budget is a literally gigantic reminder of the ideas we need to, and are going to, fight.   

 

UPDATE:  Some commenters have objected that this entry is off topic and shows that C&C has turned into a soapbox for conservative causes generally.  That is incorrect.

 

The entry is relevant to criminal  law and sentencing in  two ways.  Directly and  immediately, the open-the-prison-gates movement is gaining traction by arguing that the cost of imprisonment (not to mention the death penalty) is unsustainable in light of the deficits state governments, and particularly the federal government, are facing.  But the real cause of these deficits is the explosion of entitlement spending.   To fail to point this out is to give a free ride to the anti-imprisonment movement  --  in essence, to allow it to make incarceration the culprit when assuredly it is not.  If we are to contain deficit spending, neither prisons nor the law enforcement system is the place to look.  Entitlement spending is.

 

Second, over the long term, but at least equally important, public support for sober sentencing will not survive the underlying ethos of the welfare state.  That ethos  is that individuals cannot really be held  responsible for their own lives and behavior (or even for paying their own  bills with earned income).  The ethos of unapologetic criminal punishment is, contrariwise, that individuals are really responsible for their own lives and behavior (if they weren't, the morality of punishing  them would be  open to serious question).   To the extent the government indulges more and  more entitlement spending and the assumptions about human nature that underlie it, the very foundations of just punishment are undermined.  Thus entitlement spending is very much relevant to the core subjects here.

 

In how many states do the number of people who identify themselves as "liberal" outnumber those who identify themselves as "conservative"?

Stephanie Reitz reports for AP, "Rip Torn was so intoxicated when he broke into a Connecticut bank carrying a loaded gun that he thought he was home, taking off his hat and boots and leaving them by the door, according to court records."

Here is some breaking news from New Orleans, by AP:

The top federal prosecutor for New Orleans has asked to be taken off the case of four conservative activists arrested while trying to capture hidden camera footage in a senator's office.

The Department of Justice said in a news release Monday that Jim Letten, U.S. Attorney for the Eastern District of Louisiana, has recused himself from the case involving the men arrested in Democrat Sen. Mary Landrieu's New Orleans office.

Assistant U.S. attorney Jan Mann is taking over the case.

The news release didn't say why Letten asked to be taken off, and a spokeswoman for Letten said she couldn't comment.

One of the men arrested, James O'Keefe, has said the group wanted to investigate complaints that constituents calling Landrieu's office couldn't get through.