Monday, November 29, 2004

More Hard Truth in Sentencing

Last week I mentioned a series from the Milwaukee Journal Sentinel about the effects of Wisconsin's "truth in sentencing" law. The excellent series concludes today with articles about restorative justice and the difficulty inmates have in making it back into the outside world.

Takin' a Hit With the Supremes

Today the Supreme Court heard oral arguments in a case that has been misleadingly reported as being about the fate of the medical marijuana laws in some states. While medical marijuana is the issue, the case does not deal with the issue that broadly. Instead, the issue is really narrow: whether the intrastate production and possession of a controlled substance (marijuana, in this case) can be regulated by the Federal government. The logical extension of the Court's recent federalism cases would seem to say "no." However, it's doubtful that the Court, even the true conservatives on the Court, will follow their own logic that far. It will be interesting to see exactly what tomorrow's reports from the arguments have to say. Meanwhile, Reason has an interesting article wondering if the Court will go as far down the "states rights" road as it could.

Pay Attention to the Ukraine

I'll be honest -- the most attention I ever pay to events in the Ukraine is tracking Dynamo Kiev's progress through the Champions League. But the recent events surrounding the presidential election there bear some scrutiny. As this article from the European version of Time discusses, the outcome it much more important that just who runs a borderline third-world ex-Communist state. There is a rift between those who favor a more Western economy and society and those who favor a more authoritarian setup and close ties with Russia. The who situation may impact our relations with Putin's Russian, which could have ripple effects for years to come.

Supreme Court Term Limits?

As the Supreme Court dives into the medical marijuana debate, a new poll shows that majority of Americans support doing away with life tenure for the justices. Specifically, 60% of those surveyed support a mandatory retirement age for justices. Of course, approximately the same number of people couldn’t identify Rehnquist’s job, so I’m not sure this was the most informed group of citizens to poll.

On a similar note, I’ve come across a recent law review article that discusses an alternative – staggered non-renewable 18-year terms that would allow for two appointments during every presidential term. That might not be such a bad idea. It would still keep the justices isolated from the political pressure to get reappointed, but would build in a natural turn over that would keep fresh ideas on the bench and, through their sheer number, probably lessen the partisan pitched battles over confirmations.

Friday, November 26, 2004

Another Check in the Bank (Part One)

I wasn't really planning on writing anything over the Thanksgiving break, but I couldn't pass this one up. Some of the kids who sang backup on Pink Floyd's "Another Brick in the Wall (Part Two)" from The Wall are suing the band for unpaid royalties. The band paid the school 1000 pounds and gave them a copy of the platinum record for the single, but the kids themsleves apparently saw none of that cash. I wonder if a big judgment/settlement will coax the current version of the band to hit the road again to raise some cash?

BTW, folks - you might wanna use a band picture with Roger Waters in it, since The Wall was basically his baby.

Wednesday, November 24, 2004

Landon Moves On

The worst-kept secret in this brief history of MLS was confirmed today: the league's posterboy, Landon Donovan, will return to German club Bayer Leverkusen. Leverkusen could definitely use his skill, as the team sits 11th (of 18) in the Bundesliga. There will be a lot of debate about whether Donovan should make the move or remain in the US and help grow MLS. To be honest, he's pretty much done it all in the States: he led San Jose to two MLS Cups, was a multi-time All-Star, and has become a major player for the US national team. Going to Germany can only improve his game and further elevate the status of MLS in Europe.

History Can Be Complicated

Today's New York Times has an interesting article about a new biography of Oskar Schindler that paints a decidedly more complex portrait of the man than Spielberg's film. Not that it makes the thrust of Schindler's List any less valid - in fact it seems to make his actions even more amazing. It's just a good example of how complicated historical figures can be and how even the best Hollywood treatment of them seldom gets beyond the surface.

The North Will Rise Again!

In the wake of Dubya's reelection, many despondent Dems have made noise about moving to the Great White North. Let's take it one step further -- how about secession? Amusingly enough, Findlaw's Michael Dorf uses that far-fetched possibility to examine the question of whether the Constitution actually allows states to secede from the Union, either unilaterally or with the agreement of the other states. The unilateral option was pretty well shot down (literally) by the Civil War and subsequent Supreme Court cases. The by consent plan might just work, however.

Tuesday, November 23, 2004

What Mandate?

Dubya's handlers were quick to pounce on his popular vote win as a "mandate" for his agenda in a second term. Dubya has even talked of spending the "political capital" he earned as a result. But a new CBS/New York Times poll shows that the country may not be as enamored of Dubya's ideas as he likes to think. Tax cuts? No thanks, say 2/3rds of Americans (including 51% of Republicans), we'd prefer reducing the deficit. More findings:

Across the board, the poll suggested that the outcome of the election reflected a determination by Americans that they trusted Mr. Bush more to protect them against future terrorist attacks - and that they liked him more than Mr. Kerry - rather than any kind of broad affirmation of his policies.
On the other hand, the poll seems to reinforce the "value voters" theory, as, for example, a vast majority of Kerry supporters a wary of the influence of religion in politics, while an equally large number of Bush supporters want more religious influence in politics. It's gonna be a long four years, I fear.

Interesting Trial Strategy

I have not been following the Scott Peterson trial very closely (sorry, I had real lawyering to do), so I missed the news that Peterson attorney Mark Garagos is alleged to have set up a display of the type of boat Peterson owned a few blocks from the courthouse. This was, supposedly, a ploy to influence the (sequestered) jury and prove that Peterson couldn't have tossed his dead wife overboard without tipping the tiny boat over. If true, that's an odd bit of trial strategy. Findlaw's Julie Hilden examines this puzzling issue in more detail today.

Fun With Democracy

Who says voting has to be a solemn occasion? Next time, why not write in a famous athlete or fictional character as your candidate for some elective office. As fun as it sounds, some officials in Wisconsin are not amused at the number of silly write-in votes cast in the presidential election:

Mickey Mouse and Donald Duck repeatedly rank among Wisconsin's favorite write-in candidates, but Brett Favre, Elvis and JFK also pulled in a few votes for a variety of offices on Nov. 2.
Those who count votes are forced to take note of every written in vote, which slows down the process considerably. They are seeking a change in state law to require write-in candidates to register prior to the election and only those who write in other folks would have their votes discarded.

Personally, I find the idea of Beavis as president somewhat appealing. Imagine President Beavis/Cornholio dealing with bin Laden: "Are you threatening me? You will feel the wrath of my bunghole!!"

Holy Cheese, Part III

A final (hopefully) update on the holy grilled cheese sandwich that was auctioned on eBay. It finally sold for $28,000 -- bought by an online casino, In a similar vein, I have a dust bunny that resembles Buddha -- the bidding starts at 10 grand.

Monday, November 22, 2004

Truth (In Sentencing) Hurts

One of the buzz-phrases of sentencing reform in past decades was "truth in sentencing." Quickly translated, advocates of truth in sentencing wanted to do away with seemingly long sentences that were cut short after the fact, largely by parole or good-time reductions. Judges would announce one sentence, then the defendant would only serve half (or less) of that time before being released. Truth in sentencing was a major motivator behind the 1984 Sentencing Reform Act that spawned the U.S. Sentencing Guidelines.

This week, the Milwaukee Journal Sentinel is examining the impact of Wisconsin's truth in sentencing reforms that took place in 1999. Wisconsin's version is one of the harshest in the country, doing away with both parole and good-time credits (the federal system maintains good-time, at least) and requiring long terms of post-release supervision. Not surprisingly, the state's corrections system was unprepared for the swelling of the prison population that followed passage of the 1999 law. In part one of the Journal Sentinel piece, they examine the general mess that exists now in the wake of the reforms. In part two, they deal with one specific issue that's becoming increasingly problematic - what to do with older inmates who are ill and/or dying. Parts three and four are due next week.

Over at Sentencing Law and Policy, Prof Berman has links to many other articles that are part of this special examination.

Lawyers for Jesus

Today's New York Times has an interesting article about the first group of students to go through Liberty School of Law, which is part of Jerry Falwell's Liberty University. Not surprisingly, the classes don't sound a lot like the godless ones I was subjected to at WVU. I wonder how far "faith" can get you on exams or in moot courts at a school that veers away from "extreme rationalism?" Thankfully, Liberty is not ABA accredited.

Isn't being "extremely rational" a good thing, especially for a lawyer?

Thursday, November 18, 2004

The Sentencing Commission (Finally) Notices Blakely

After many months of conspicuous near-silence, the U.S. Sentencing Commission spent two days this week in hearings about the future of the Guidelines in a post-Blakely world. It sounds like the Commission heard a bit of well-reasoned testimony and ideas for what might happen next. Hopefully, it will dance right past the flawed DOJ "topless" solution and make some fundamental changes in federal sentencing. One correction to that article, however - Judge Cassell's decision from Utah yesterday didn't deal with a Guideline sentence, but rather with what many people see as the worst-case scenario post-Blakely, mandatory minimums.

Revealing the Revealed Word?

One of my favorite head scratchers about fundamentalist Christians -- those who believe that the Bible is the actual word of God -- is how they come to that conclusion when the version they most often rely upon is an English translation of works originally written in Hebrew and Greek. As a prof of mine in college put it, they seem to think that King James wrote the Bible. So I'm always interested when people come out with new translations. One scholar has put together a new 1000+ page version of the Pentateuch (the first five books of the Bible) that he claims sticks more closely to the original Hebrew texts. It makes for some interesting changes.

Bidding Resumes for the Holy Cheese

The other day, I mentioned that eBay pulled the plug on an acution of a 10-year old grilled cheese sandwich that contains the visage of the Virgin Mary. Apparently, eBay relented and put the auction back on the site, after determining that it was not, in fact, a joke. The current owner "wanted to share it with the world" after she realized "how unique it is." It seems that "share" in her native tongue means to sell something for thousands of dollars. Interesting.

Wednesday, November 17, 2004

Judge Cassell Can’t Quite Do the Right Thing

In Utah yesterday, a federal judge handed down a sentence in a closely watched case that may portend bad things for post-Blakely federal sentencing. The defendant was convicted of several marijuana distributions, which would generally net him a sentence of about 6 and a half years. In addition, he was convicted of three “924(c)” charges for “carrying” a gun during some of those sales. In one instance, the Government’s buyer saw the gun in the defendant’s car. In another, the defendant showed the buyer the gun while it was in an ankle holster. The third conviction came from the fact that when police searched the defendant’s home they found a few more guns along with a stash of pot.

924(c) convictions carry minimum maximum penalties, which district courts have no discretion to ignore. A first conviction gets you 5 years, the second and third an additional 25 years each. The defendant’s three convictions in this case required the judge to impose a sentence of 55 years, above and beyond the time for the drugs. The result would leave the defendant in prison until at least his 70th birthday.

Judge Cassell was obviously bothered by this and requested briefing on whether he had any option other than impose such a draconian sentence. The defendant argued that he did, because 924(c) violates his due process rights and amounts to cruel and unusual punishment in his case. Cassell, in a lengthy opinion you can read here, pointed out how very irrational it was to impose a harsher sentence on this young man, who never used the gun in anyway, than he was allowed to impose on murders, rapists, and terrorists. This is particularly true when you consider that the only reason he committed the second and third offenses was that the Government didn’t arrest him after the first buy.

He then pretty convincingly set out that such a long sentence would, indeed, be cruel and unusual. Then, somewhat surprisingly, he decided he was bound by earlier Supreme Court precedent (which may or may not be good law any more) and bound to impose the 55 year term. To mitigate things somewhat, he gave the defendant only a 1 day sentence on the drug charges.

Having read the opinion, I am surprised that Cassell didn’t go ahead and find the 924(c) sentenced unconstitutional. He was one of the first district court judges to apply Blakely to the Sentencing Guidelines, rejecting the Government argument that prior Supreme Court precedent resolved the issue differently. So why get cold feet now? Might this impact the pending Supreme Court post-Blakely cases? Expansion of these kinds of mandatory minimums are the nightmare scenario some are preaching of the Court knocks the Guidelines down.

Snitches On Flame

The man who attempted (rather unsuccessfully, apparently) to set himself on fire outside the White House yesterday turns out to be an FBI snitch. The man was apparently “unhappy” with the way he had been treated by the FBI. A vast understatement, I would say.

Tuesday, November 16, 2004

Mmmm, 10-Year Old Holy Cheese

How much would you pay for a 10-year old grilled cheese sandwich? What if the sandwich contained an image of the Virgin Mary? Apparently, you’d need upwards of $20,000 on eBay. The decade-old delicacy was put on eBay by a Miami jewelry designer, who insisted that the whole thing was completely serious. It must be – said sandwich resided on her nightstand for 10 years! eBay said the item was removed due to its policy against allowing listings that are intended as jokes. On a related note, I once saw a version of The Last Supper done entirely on toast!

One Final Trip – On the Express

Those of you who have been to Morgantown, the home of my alma mater WVU, are familiar with the PRT system. The PRT is an unmanned monorail-type system that ties together the older downtown campus and the newer Evansdale campus. I could never quite figure why it completely bypassed the law school, though – ‘suppose they didn’t like us? Anyway, Samy E.G. Elias, who designed and oversaw the building of the system, passed away this weekend. While the PRT didn’t serve as the prototype that many people hoped it would, it is a very efficient means of mass transit for a small university town. Elias’s legacy will certainly live on.

Monday, November 15, 2004

Attention Charm City Music Lovers

A friend of mine has started his own chamber orchestra (how friggin' cool is that?) and is readying for its debut performance. If you're in the Baltimore area this weekend, check out the premiere of the Baltimore Sinfonietta, performing the works of Ives, Copland, and Barber. Show time is 3pm Saturday at St. Mark's Lutheran Church at 1900 St. Paul Street. Tix are $15, $12 for students.

Less Death Is a Good Thing

As I've written before (don't have time to find the link, sorry), it would be interesting if the death penalty simply fell into disuse as juries declined to impose it. It's a ways off, but a Justice Department report released yesterday shows that juries imposed the ultimate punishment less last year than any year since 1973. That's a welcome trend.

Mechanized Pitch Invasion

Fans have many ways of showing their anger over bad refereeing - screaming, throwing things, rioting, etc. But trying to run-over the ref while he's still on the field is a new one on me. To be fair, it wasn't a fan of Moldovan soccer club Roso Floreni who drove onto the pitch in pursuit of the offending ref, it was the team's chairman. After a controversial penalty was called against his team in the late stages of a 1-1 match, the chairman got in his car, drove onto the pitch, and chased the ref who, to his credit, managed to dodge the mechanical onslaught. Either he's the fittest ref in football or the chairman is the worst driver in Moldova.

Back On Top!

After many seasons in the wilderness, DC United regained its proper place on top of the MLS heap yesterday by defeating Kansas City 3-2 in MLS Cup 04. That's four total championships for United, if anybody needs refreshed, far and away the most in MLS's 9-year history. That's right - the dynasty is reborn!

Thursday, November 11, 2004

Dog Day Afternoon

Yesterday, the Supreme Court heard oral argument in a case about sniffing dogs. Specifically, the issue is whether a police officer with his drug sniffing dog can walk around a person's car snorting for drugs during a routine traffic stop. The defendant in yesterday's case was pulled over in Illinois for doing 71 in a 65 zone (ouch!). While the cop who pulled him over wrote a warning, another cop (after hearing about the pull-over on the radio) went to the scene with his drug dug, who alerted to the trunk. Sure enough, the guy was carrying pot (12 years worth, apparently). Dahlia Lithwick amusingly recounts the argument yesterday, pointing out the dog or cat personae of the participants. From what I've read of the briefs (I haven't made it to the Underdog, Scooby Doo, McGruff amicus brief yet - written by Harvey Birdman, presumably), the dogs will indeed have their day.

Wednesday, November 10, 2004

Roe Does Not Undermine Democracy

A column over at National Review Online opines that, in the wake of Arlen Spector's warning to Dubya about right wing judges on the federal bench, Roe v. Wade isn't really about abortion but is, instead, about democracy being undermined by Supreme Court justices. This is, of course, a favorite rallying cry of the right (as long as their not running to court to overturn a popular initiative Jesus wouldn't like), but is just not true, at least in Roe's case. While a compelling argument can be made that the Court simply got Roe (and its predecessors) wrong, that doesn't equate undermining the democratic process. The Court is called upon to interpret the Constitution, which constrains not only what the government can do but also what the people en masse can do. No amount of popular support can strip women of the right to vote or reestablish legal slavery in the United States, without amending the Constitution, of course. The fact that the document itself doesn't mention the word "abortion" is hardly dispositive, as well. The Fourth Amendment doesn't mention dogs or cars, yet the Court today heard oral arguments about whether a drug-dog sniff done during an otherwise routine traffic stop implicates the Fourth Amendment.

I would have some more respect for this argument if the right practiced what it preached about the courts and the will of the people. When Oregon legalized physician-assisted suicide and California (and other states) legalized medical marijuana, it was the right wingers (including the Ashcroft Justice Department) who turned to the courts to smack down the will of the people. What's good for the goose is good for the gander - live by the popular vote and die by it as well.

One more thing: as the weeks leading up to the election last Tuesday showed, this country is not a "democracy" in which the will of a majority translates directly into state action. The United States is a republic, with a complicated system designed to dull the will of the people before it does any serious damage. And it works, for the most part.

In Pursuit of Cheap Booze

Over at Slate, Dahlia Lithwick discusses an interesting case the Supreme Court heard yesterday that came out of the Fourth Circuit. The defendants in Pasquantino v. United States were convicted of wire fraud for using telephones to run a scheme to smuggle cheap booze into Canada. Apparently the tax rates on hooch in the Great White North are outrageous enough to make smuggling the stuff from the U.S. a profitable venture. A panel of the Fourth Circuit reversed their convictions because of the "common law revenue rule," which says that one nation's courts will not enforce the tax judgments or laws of another country. The idea is that tax laws are so bound up in nation-specific policy choices and are so complex that for a U.S. court to properly interpret or apply Canadian tax laws would be improper and impossible. Let the Canadians prosecute the smugglers.

Makes some sense, right? Well, the full Fourth Circuit reheard the case en banc and came to the opposite conclusion. The Government, in prosecuting the defendants, is not seeking to enforce Canadian tax laws, but only the use of wires in the United States to accomplish the smuggling scheme. So the revenue rule isn't implicated. According to Dahlia, the Supremes didn't seem to be buying that argument, particularly since the defendants' sentences were determined based on the amount of tax loss (to the Canadian government) caused by the scheme. Determining that amount would seem to require some application of Canadian tax law, no?

It will be interesting to see of the Supremes smack down the Fourth again (please please please) in this case. It's not a case likely to impact lots of everyday lives, but this is the kind of thing that legal wonks like me really get into.

Desmond and Molly Must Be Pissed

According to an online poll (as reported by the BBC), the worst song ever is "Ob-La-Di, Ob-La-Da" off The Beatles (aka "The White Album"). As we all know, the accuracy and credibility of online polls are beyond reproach, but I wonder how a Beatles tune topped a list that included such other musical luminaries as Vanilla Ice, Meat Loaf, and (for the love of the gods) ex-England midfielder Paul Gascoigne (who apparently recorded a version of "Fog on the Tyne" with quasi-proggers Lindisfarne). Just mining my CD collection, I can think of many worse tunes by otherwise good artists that make "Ob-La-Di" sound like the pinnacle of musical achievement. How about Rush's seminal "I Think I'm Going Bald" of Yes's "Love Will Find a Way" ("I eat at chez nous" - WTF is that, Trevor?)? Had I voted, my choice would be the entirety of Asgard's Gotterdamerung, which could be prosecuted as a crime against humanity.

Tuesday, November 09, 2004

I Am Not My Clients

Policy Review Online has an interesting (but dated) article by Lee Casey and David Rivkin, Jr. about how people use a lawyer's prior clients and arguments against him, particularly in the political arena. Should a lawyer suffer guilt by association because of his clients? I certainly hope not - I'm not a drug dealer, pedophile, or bank robber just because I represent them. But, as a PD, I think we get a sort of "pass" because everyone agrees that we provided a needed function. And, of course, other lawyers don't want to do the job. Private attorneys are a little different, however, as they can (theoretically, of course) walk away from clients who seek to achieve unjust or immoral goals. Should the attorney who takes big bucks to help a corporation shield as much of its assets from taxation as possible (completely legally) pay the piper later in life if he seeks public office? I'm not sure.

When TV Gets Lawyers Wrong

Today over at Findlaw, Julie Hilden writes about how television gets the law wrong. Most things, she concedes, fall away under the mantle of "dramatic license." But she goes on to note several things that cop/law TV shows get seriously wrong. Sort of. For instance, she argues that the shows make it look like people confess most of the time and that this is not the case. I respectfully disagree. A staggering number of people I see during an initial appearance (the first presentment before a judge after being arrested), if arrested based on a criminal complaint, have confessed to something. Or at least it says so in the complaint. I'm not sure of the exact numbers, but the fact is that lots of people talk against their own interest (or agree to incriminating searches), so I'm not sure TV gets that all that wrong. As for "scoffing at those who lawyer up," I think the general public feels that way, too. How many people think Scott Peterson is guilty only because he didn't testify during his trial?

Win Some, Lose Some

Last week, Dubya won a fairly decisive election to lock up four more years and some "political capital." Well, this week, his luck's not so good. A federal judge has entered a ruling that may halt all the "military tribunals" being conducted for prisoners at Guantanamo Bay. Basically, the judge ruled that the Geneva Conventions - the 1949 agreement between nations that set the ground rules for war - required that the Gitmo detainees be treated as prisoners of war with certain rights that have, up to this point, been denied. The Government will appeal. You can read the ruling for yourself here.

God v. Darwin, Round 2

As we near the 80th anniversary of the infamous Scopes Monkey Trial, the right wing continues to wage war on science, with the battleground being the minds of school kids everywhere. In some places it's pretty blunt - in Wisconsin (Wisconsin! holy hell . . .) a local school board has decided to teach creation "science" alongside evolution in biology classes. This flies in the face of not only the very definition of "science," but Supreme Court precedent which says teaching creationism violates the First Amendment separation of church and state. Meanwhile, in a more subtle version of the same debate, a Georgia (now, that's more like it) federal court is getting ready to decide if a local school board can include a disclaimer sticker on the front of its evolution-bearing textbooks. The disclaimer says that evolution is "theory, not fact," which is true as far as it goes, but I'm skeptical of the sticker-pushers' claim that they only want students to "keep an open mind."

Look, I'm all for teaching about different creation myths (and there are some doozies out there)in a comparative religion or sociology class, but the Bible has no place in a science classroom. Period.

This Post 100% Written by a Human Being (No Type-Syncing)

The whole Ashlee Simpson lip-sync scandal died down while I was AWOL (sorry about that - moved), but I can't help but comment on one part of it. One of Ashlee's defenses was, basically, everybody does it so it's not that big of a deal. I've even read defenders going so far as to say that no pop / rock musicians really play all their stuff anymore, so we shouldn't take out our wrath on poor Ashlee. Well, I call "bullshit" on that. There are loads of real musicians and singers who go out every night and play and sing their hearts out without the aid of backing tracks or taped vocals. If you think I'm lying, get your head out of MTV or VH1 and go find some more unknown talent that produce really great (if commercially unviable) music. Go see Mike Keneally while he's out on tour, or check out new DVDs from people like echolyn and Marillion. I can guarantee you that Steve Hogarth doesn't need no stinking backing tape to belt out the conclusion of "The Invisible Man."