Don't mess with Texas

If there's one thing that Texas is good at, it's high school football killing people who commit crimes as quickly as they can. Sometimes, however, in their quest for what they deem is justice, they tend to flip the switch as quickly as possible, sometimes overexpediting the process.

In strikingly similar cases Texas executed two people (Jose Medellin - from Mexico - on Tuesday night and Heliberto Chi - from Honduras - tonight) who were foreign nationals and were convicted (both were guilty, Medellin confessed, and multiple eyewitnesses identified Chi at his crime) of murder.

So, the thing is that in Medellin's case, the Supreme Court decided that without specific Congressional order of how to do it, there was no way for the government to force Texas to abide by the decision. Furthermore, The International World Court asked Texas not to let Medellin go, and not even not to execute him, but merely to take time doing due diligence to make sure that his rights under the Vienna Convention (allowing him to counsel from his home country) were not denied. Texas was having none of that, and that was best summed up in Texas Governor Rick Perry's comment: "The World Court doesn't have jurisdiction in Texas."

I'm not wholly against the death penalty - though every argument I have for it is emotional - but I am for due diligence to make sure that the accused had every single one of their rights before they were executed.

Heliberto Chi argued similarly, and he also pointed to a treaty that the US had with Honduras to make sure that their citizens were treated fairly, but overall, it's disappointing that Texas decided not to wait. If you want to finish them off, that's fine, but allow them to exhaust all of their rights beforehand.

Sure, they can proceed, but who will listen?

In a 93-page opinion by Judge John D. Bates (a Bush-43 appointee), the US District Court ruled that White House aides could be subpoenaed, and that the "asserted absolute immunity claim [was] entirely unsupported by existing case law."

The wide-ranging opinion cited both Marbury v. Madison (5 U.S. 137 at line 177) and Boumediene v. Bush (558 U.S. ___ at line 128), two cases decided 205 years apart - and of course, no decision dealing with the limits on the power of the Executive is complete without a shout-out to United States v. Nixon (418 U.S. 683 at line 705)! Basically, it is the job of the Judicial Branch to legislate disputes between the other two co-equal branches, and as such, this civil action is well within the rights of the US District Court to hear, which is something that the Bush Administration has lately been trying to subvert (as in the legal no man's land that they have attempted to create in Guantanamo). It's completely and totally fucked up that in order to get any oversight on the Executive Branch, the Legislative Branch has to take them to court, but that's the environment in which we find ourselves today, and the only thing that might offer a modicum of hope is that there is no way for George Bush to remain in office after January 20, 2009.

Sadly, House Republicans are fine with the ruling, as if they drag their feet while the Bush Administration appeals this decision, the subpoenas are no longer in effect at the end of this Congress, and that's actually the strategy stated by Minority Leader John Boehner. However, unless the GOP takes over the House and has power over the Committee Assignments to the point that voting down party lines results in no subpoenaing, the Judiciary Committee will reissue the subpoenas, and they will have effect until 2011.

However, the greatest irony is that should anything come of this, any recommendations or actions need to be given to the Justice Department in order for the Executive Branch (the one that upholds and enforces the laws as created by the Legislative Branch and interpreted by the Judicial Branch) to carry out any sort of actual punishment. So, yet again, Bush is betting on McCain, because an Obama Administration would probably be happy to pursue this matter further, and just as in the manner of a Whitewater investigation leading solely to President Clinton getting his dick sucked, it wouldn't be surprising for a similar investigation of illegal and political attorney firings and discriminatory hiring practices to lead to abuses at Guantanamo, abuses of prewar intelligence on Iraq, and other damning discoveries.

I hope that there's a Department of Justice willing to "fight against corruption... to keep our own houses clean" - that's a John Ashcroft quote there - instead of one that participates in the discriminatory hiring practices that it is actually supposed to investigate and eradicate. The politicization of Justice is unacceptable, and it hurts us all. Furthermore, the courts have consistently ruled that the three branches of government are co-equal, and there's no way that the constitutional land grab power trip that the Executive has been on as of late is acceptable, nor will it stand up to the strict scrutiny that the federal courts are starting to apply to it. I can only reiterate my hope that soon (read: Jan 20, 2009) there's a Department of Justice willing to investigate this matter fully in pursuit of justice, and that we don't have to worry about the DOJ covering their own asses in pursuit of avoiding embarrassment.

This post was cross-posted at BrownView.

The Politicization of Justice, continued

So, in my first post on this blog, I talked about how the possible politicization of the Justice Department under Alberto Gonzales was a horrendous thing, and apparently, a new report finds that there were blatant violations in hiring practices.

As I said before, we cannot politicize those positions where the people are supposed to be the guardians of equality and fairness, even though that happens all the time with US Court of Appeals and US Supreme Court, but just because certain parts of the deck are stacked doesn't mean all parts must be.

Lawyers shouldn't be described as "pro-God in life" or "pro-marriage, anti-civil union" when hiring for government jobs, nor should they be Googled based on key phrases in order to find out their political leanings.

Justice must be kept blind and fair, instead of politicized in order to take down Democrats or to make political prosecutions (persecutions?). With liberty and justice for all is the most important part of the Pledge of Allegiance, not Under God.

This post was cross posted at BrownView.

A Court Divided Cannot Stand

Subtitled: How Justice Kennedy decides the majority of Americans' rights as per the 'constitution'...

Michael Schwartz, of counsel to Wachtell, Lipton, Rosen and Katz, wrote an excellent article about the need for the court to move more towards unanimity - which was actually a stated desire that Chief Justice Roberts espoused when he took the mantle of being the Chief Justice - and he explained it pretty well.

I want to explore this more, as there is value both in per curiam decisions that are actually for the court (instead of nine justices writing nine different opinions), and there is also value in cognitive dissonance, as long as it has a legal basis and does not solely represent the personal biases of the justice writing the dissent.

First of all, dissent is natural: nobody will agree on everything, and even more importantly, the same argument may sway different people to different degrees. As such, Frankfurter and Brandeis might be swayed, whereas Taft would take a little more to be moved (have you seen how large he was?). This is completely understandable, and there is little sense to decreeing unanimity to court decisions, as some of the earlier dissents may help to shed light on future decisions, whether the legal basis follows the reasoning of the dissent or not. Today's Plessy is overtaken by tomorrow's Brown, and who knows what decisions are going to be re-interpreted or even overturned by the court in the future?

However, even the most famous dissenters like Brandeis and Frankfurter did their best to dissent as little as possible for two reasons: first, because dissenting was rare, scathing dissents were taken more seriously and were indicative of substantial legal issues instead of petty ideological issues (nearly three years ago, I took Justice Stevens to task - even though I agree with his ideology - for stating his ideology, for a Supreme Court Justice does not have the liberty of having public ideology). Today, the court's opinions are already written, and depending on whether Justice Kennedy had conservative Wheaties or liberal Frosted Flakes that morning, the pre-written opinions are already there, waiting to be announced either as "scathing dissents" or as "the so ordered opinion of the court." As I stated in my analysis of the decision in DC v. Heller, Justice Stevens' meandering opinion seemed to have been written long before the case was decided, and that is entirely unacceptable. The issues faced by the court are vast, numerous, and exceedingly important, and they cannot be up to the whim of the personal views of the Justices. This isn't Brandeis talking about the "right to privacy" - which may or may not exist - this is Stevens saying what he believes, or Roberts or Thomas or Scalia or Ginsburg or whomever feels the need to get on their constitutional high horse, and the fact that Justices today spend more time writing dissents than Justices of the past spent writing majority or per curiam opinions is extremely distressing, as well as the fact that the court grants certiorari to far fewer cases than in the past (easily only a third of what the court used to).

At the end of the day, if every major case is being decided on Justice Kennedy's whims, and the Court is hearing far fewer cases than it has in its history, it is time to redress this issue and, while it won't happen overnight, the Court has to do its damnedest to spend time deciding cases instead of arguing amongst itself. While some people see 5-4 decisions as binding, most see them as "wait and see if it changes soon enough," and that is not what we need the Supreme Court to be treated as.

Honestly, what is FISA?

There has been a lot of debate lately on the Foreign Intelligence Surveillance Act (FISA), but other than that it is either the one thing that has stopped the most terrorist attacks ever or the way that Big Brother is listening into you (depending on whether you're a righty or a lefty, respectively).

FISA was originally passed in 1978 and has continued to evolve as our country's intelligence needs have evolved, most notably and recently being amended in 2001, 2006, 2007, and a 2008 amendment has currently passed the house and is being debated in the Senate at the moment. At its basest, it is - codified in Title 50 of the US Code, Chapter 36 - a method by which there is a way to provide for ways in which "Foreign Powers" or "Agents of a Foreign Power" - which can include US Citizens - can have intelligence gathered in a constitutional manner within the United States.

There are five sub-chapters to the law and they deal with (in order) electronic surveillance, physical searches, pen registers and trap and trace devices (aka wire-tapping as defined in Title 18 of the US Code), access to certain business records for foreign intelligence purposes, and the biennial reporting requirement of the Attorney General.

First of all, there are two ways for there to be legal electronic surveillance: with a court order or without one. I know that many of you might be up in arms about there being situations where the Executive Branch can legally use electronic surveillance without any oversight, but there are caveats to this, as is enumerated in §1802: The Attorney General must certify under oath that all interactions will be between foreign powers and any information gathered is solely that owned by foreign powers. Furthermore, the Attorney General must put into place "minimization procedures" so that there is "no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." The only way for any intelligence to be gathered without a court order is if the intelligence gathering operation is targeted at foreign powers, and the only way that §1802 (a) (4) - the section on how and when the Attorney General can specify a carrier to furnish information (§1802 (a) (4) (A) ) or to maintain records for surveillance (§1802 (a) (4) (B) ).

However, if there is a large enough scope that any US Citizens might have their records peeked at, the administration must have a court order (§1804) from any of the 11 judges (at least three of whom are within 20 miles of D.C. in case a speedy warrant is required) who are designated by the Chief Justice of the Supreme Court. If an application is requested, it is typically heard immediately and can be done at any hour of the day or night. If the application is denied, it is automatically sent to a three-judge Court of Appeals - also designated by the Chief Justice - who, if they deem the denial unwarranted, fast tracks the writ of certiorari and sends the case to the Supreme Court for a speedy overturn (§1803). Only that never happens, since for the nearly 23,000 applications to the court under the law from 1979-2006, only five were denied. The proceedings are secret, known only to the judge present, the government attorney present, and the Attorney General. Even under the accountability of his semi-annual report, he needn't name all names when transmitting his report to the House and Senate Committees on Intelligence and on the Judiciary. These reports are still classified, and the only information that can be transmitted to the public as to the court proceedings are the number of requests by the AG's office and the number of denials (§1807). The only names that the AG must give in his semi-annual report (and only to the Intelligence Committee) are the names of defendants either for whom intelligence gathered was transmitted to any State or Federal Law Enforcement entities or for whom intelligence gathered was used in a trial (§1808).

§1809 and §1810 deal with Criminal and Civil Liabilities of those who break the law, and the penalties are stiff, which is probably why the telecom companies are shitting bricks at the thought of not having §1810 modified or repealed. The criminal penalties are up to five years imprisonment and/or a $10,000 fine for breaking the law - either engaging in warrantless electronic surveillance or disclosing any classified intelligence gathered from legal surveillance - and even more heavily, the civil liability is a combination of actual damages - $100 per day at a minimum of $1000 - from any and all involved parties and punitive damages plus reasonable attorney's fees (read: $$$$$). §1811 says that in times of war (the war must be declared by Congress), the president may engage in unlimited warrantless and court orderless surveillance for a maximum of fifteen days, and that's Sub-chapter I of V.

Sub-chapter II is pretty similarly structured, except it deals with physical searches instead of electronic surveillance, and it starts with the necessity of court orders in any case that may uncover anything about a US Citizen being treated as an agent of a foreign power, though if there is no substantial likelihood at uncovering information on a US Citizen and the search is solely directed at foreign powers or their agents, the Attorney General may proceed without a court order (§1822). §1823 deals with applications to the court, which must be given to a FISC judge by a Federal Officer under the approval of the Attorney General. §1824 deals with the court's rulings and assuming the court grants the warrant (as it usually does, though any declined warrants can get fast-tracked to the Supreme Court again), §1825 talks about how the information can be used in a court of law, and, actually, if the AG really needs to get into a place, he can order a search and apply for a retroactive search warrant within 72 hours (but if that warrant is denied, any evidence gathered from the search is moot and inadmissible in court - §1824/§1825), and §1825 also gives guidelines of how the search needs to be disclosed and notice given, though if it is in the interests of national security, the notice may be classified. Again, the AG's sole accountability is to report the number of searches requested and granted/modified/denied, and the number of searches that were of US persons and how often the AG used the 72 hour provision (§1826). §1827/§1828/§1829 are criminal penalties/civil penalties/presidential authorization during times of war, and they are exactly the same as for sub-chapter I, which means that, instead of telecoms being scared, landlords allowing illegal searches need to be scared of liability and hope for immunity, as again, does the Justice Department.

Sub-chapter III - if you're still awake - is about wire-tapping, and wire-tapping as well as recording of said wiretaps, dumping of phone lines, and recording all that information is pursuant to court order (surprise, surprise!). Honestly, it seems like Congress got lazy with this, and basically put everything in §1842, which lays out how to apply for authorization and approval (the AG asks the secret court or any Magistrate the Chief Justice has deemed to have the power to hear such applications), how approval is given (the judge says yes in ex parte fashion, if he says no, it's on fast track to be appealed all the way to the Supreme Court), how there is a 90 day time limit on the tap, how results are furnished, and how there is immunity for those who provide the actual wiretapping services. §1843 gives the AG a 48 hour window (like the 72 hours above) to order a wiretap if the need is immediate, and then in that timeframe, the court can grant retroactive permission, though any evidence gathered under an emergency wiretap that is later deemed to be unnecessary cannot be used as evidence in any trial or investigation. §1844 gives the president a 15 day exemption if there is a Congressionally declared war, and §1845 talks about how only legally applied for and approved wiretaps may be used and collected as evidence in any criminal proceeding or investigation. §1846 merely states that the AG's "accountability" is to report semi-annually the number of applications requested, and the number that were granted/modified/denied. And that's Sub-chapter III, far less involved than either I or II.

But if you thought III was lazy and uninvolved, wait for IV and V. In sub-chapter IV, there is but two sections (three if you count the repealed §1863), and §1861 is like a super-duper version of the §1842 above, where it states that, should business records be necessary, the FBI Director or a designee who is ranked no lower than Assistant Special Agent in Charge needs to petition a FISC judge or a Chief Justice-empowered magistrate, and it shall be approved in an ex parte manner (if denied, the appeal will be fast-tracked to the Supreme Court), but said records cannot be used in anything other than furthering investigations, as there are no provisions to use these in any trials. §1862 is the provisions of the accountability in this sub-chapter, and the only thing the AG has to report again is the number of applications, and the number of those granted/modified/denied - and that's all she wrote for sub-chapter IV; I told you they were getting tired of writing laws!

But that pales in comparison to sub-chapter V, which solely deals with the semi-annual AG reports, which are composed of all the shit I wrote above (§1871).

And that is FISA, which is a perfectly well-written law, and I don't see why the Bush Administration feels that they cannot operate within the bounds of the law, considering that there are provisions for the court to operate at all hours, and there are also provisions to grant permission retroactively if there is an emergency - which is broadly defined as up to the discretion of the Attorney General. I personally believe there is no reason to amend the law at all, though I still am scared of a court that said yes 22,985 times out of 22,990 from the years 1979 to 2006, and first said no in 2002, 23 years after the start of the program, but at least there is some oversight. The fact that they want there to be no oversight, as well as to eliminate the penalties, scares me. If there is no civil penalty for following an unlawful order, then there is no reason for companies to be scared of the consequences of their actions, nor is there any reason for them to question anything or to attempt to stand up for the public. Giving them immunity is a bad idea, unless Barack Obama is planning on criminally prosecuting the companies, which would be an interesting gambit that deserves consideration in a different post.

Overall, FISA is a complicated law that does its best to balance national security with personal liberty, and it does its best to fight terrorism and foreign subversion without denying people constitutional rights. Why do we need to change it?

Louisiana Senate Bill 144 - The Sex Offender Chemical Castration Bill

I know this bill was signed into law one week ago, but I am but one man, and I felt that the Supreme Court cases needed to be commented upon first. Here is the press release from the office of Governor Piyush "Bobby" Jindal trumpeting his pride at signing into law the Sex Offender Chemical Castration Bill on the same day that he decried the horrible decision of Kennedy v. Louisiana - Kennedy five, Louisiana four - you see, it can be done! (That's a tribute to the recently deceased Harvey Korman, in case you didn't catch it.) Governor Jindal's statement, obviously pandering to his base and trying to shore up his resume for the number 2 spot on John McCain's ticket, was "The Sex Offender Chemical Castration Bill is a good bill, and I am especially glad to sign it into Louisiana law today, on the same day the Supreme Court has made an atrocious ruling against our state’s ability to sentence those who sexually assault our children to the fullest extent. Those who prey on our children are among the very worst criminals imaginable."

The first thing that Bobby forgot to mention is that the bill does not protect just children, though we will get to that, too. There are actually six laws that, if broken, could end in medroxyprogesterone acetate treatment, which is basically (but not completely) high weekly doses of Depo Provera, and those six laws are as follows: R.S. 14:42 (aggravated rape), R.S. 14:42.1 (forcible rape), R.S. 14:43.2 (second degree sexual battery), R.S. 14:78.1 (aggravated incest), R.S. 14:81.2 (E) (molestation of a minor under 13 years of age), and R.S. 14:89.1 (aggravated crime against nature - I believe that it means forced/non-consensual oral or anal sex, but I'm not sure, since the statute itself refers to the recently changed law, but who knows what a crime against nature is anyway?). In reading through the Louisiana Criminal Law Statutes, I now realize how truly backwards that state is, and I'm scared to investigate the similar laws of other states to see what else is still on the books; and on another note, crime against nature won't be charged in Louisiana if the crime falls under any of the previously mentioned statutes, because they all carry stiffer penalties.

At least in my mind, there are at least six separate questions here, though some follow from others: whether the chemical castration for the first-time offense of all except R.S. 14:81.2 (E) is cruel and unusual punishment, and if not, whether the treatment is warranted for a repeat offender of any of those five statutes, and, third, does chemically castrating someone after he has completed his sentence constitute a violation of either due process/double jeopardy or cruel and unusual punishment? Those are the first three questions, and the next three are the exact same, except that they focus solely on violations of R.S. 14:81.2 (E) and whether chemical castration is warranted and is constitutional for first-time and repeat offenders, as well as whether hormonally treating someone after his prison sentence for that crime violates any constitutional rights, and I am going to treat them as two separate arguments. As an aside, if any defendant wishes to forego the process of chemical castration, he can request physical castration as an alternative.

I start by quoting from Coker v. Georgia (433 U.S. 584), authored by Justice Byron White: "The Eighth Amendment bars not only those punishments that are "barbaric" but also those that are 'excessive' in relation to the crime committed, and a punishment is 'excessive' and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime." In dissenting from that opinion, Chief Justice Burger first said "In my view, the Eighth Amendment does not prevent the State from taking an individual's 'well-demonstrated propensity for life-endangering behavior' into account in devising punitive measures which will prevent inflicting further harm upon innocent victims," and then he even quoted Justice White from Roberts v. Louisiana (428 U.S. 325) saying "death finally forecloses the possibility that a prisoner will commit further crimes, whereas life imprisonment does not." In this case, chemical castration is equated with the death penalty, as it in theory would foreclose the possibility of the released prisoner espousing recidivist or felonious thoughts. So, the first question posed is, is it excessive to continue to punish or to finalize the fate of a prisoner after the first-time offense of rape, sexual assault/battery, aggravated incest, or aggravated crime against nature? It is surely excessive for a first-time offense.

Now, for question two, is it excessive to continue to punish a prisoner or to finalize the fate of a prisoner after his second-time offense? First of all, I don't prescribe to any numerical theory other than this: there is committing zero offenses, there is committing an offense once, and there is committing it repeatedly. Twice comes under repeated offenses, and now, Chief Justice Burger's comments about "well-demonstrated propensity for life-endangering behavior" actually come into play, as does Justice White's statement about "[foreclosing] the possibility that a prisoner will commit further crimes" since a repeat offender has shown both a disregard for the law and an inability to have been rehabilitated after the first punishment. So, now, the question is, do the constitutional rights of the repeat offender pale in comparison to the public interest of ensuring the criminal does not violate that statute ever again and does not endanger the public? The accused has multiply broken the law, and in order to make sure that he doesn't break it again, he must undergo life-altering therapy that can make him sterile, has not had its long-term effects verified, and could constitute continuing punishment even after he has paid his debt to society; so, one must weigh the fact that the recidivism rate for sexual crimes is high with the fact that the prisoner has already completed his debt to society. I think that, while society needs to be protected, there are better ways to protect them then by limiting the freedom of the sex offender. If recidivism is a problem, the felon needs to be remanded for life, and there's no reason ever to let him go, let alone to subject him to such punishment as hormonal alteration. It would be less cruel and unusual to remand a defendant for a life sentence than to allow him false freedom back on the street. I feel that last declaration takes care of both questions two and three.

The people and laws have said that crimes against minors - especially young ones - are more heinous and deserve to be more harshly punished than those against adults, and the Supreme Court did agree merely by granting certiorari to Kennedy and by allowing the assertion that child rape might have the possibility of being punished more harshly or differently than the same act committed against an adult victim to be entertained. As such, the questions above need to be applied to those criminals who violate R.S. 14:81.2 (E) and molest a minor under the age of 13.

Yet again, we must consider the recidivism rate of child molesters (actually higher than those of adult rapists) in asking whether it's allowable to deny the rights of the offender based on the public welfare as well as based on a statistical and psychological argument even though nobody but the offender knows what he will do. Indeed, instead of allowing a half-life for a prisoner who is released, if people feel he is still a danger to society, he should never be released. If the penalty for child molestation were life with parole, and the offender had to prove that he was rehabilitated, there would be no need for chemical castration, and indeed, such a cruel punishment is worse than life in prison. The next two questions are moot, and as such, while I'm sure that Governor Jindal is getting a boost from having signed this law, it's more barbaric of the state to enforce it than it would be for the state to enforce penalties that seem stiffer on first inspection.

Conclusion: Don't castrate sexual offenders, whether chemically or physically. Let the fuckers rot in jail to think about what they did.

This post was cross posted at BrownView.

Exxon Shipping Co v. Baker.

In a grand step forward for corporate malfeasance and a monumental step back for the environment, the average citizen, and any other generic little guy you can find, the Supreme Court ruled to save Justice Alito's six-figure stock purchase in Exxon instead of holding the company responsible. Yet again, in trying to peg the ruling to this one case, Exxon v. Baker, the Supreme Court forgot that its decisions are not on a case-by-case basis, and when they grant certiorari to a petitioner, they are not only deciding this one case, but they are creating precedent throughout federal (and sometimes state) law, and when they say that "a 1:1 ratio [of punitive to compensatory awards] is a fair upper limit in such maritime cases," they are opening the door for any big business to come in and say that their punitive damages should be limited. Let me give you a definition:

punitive: adj. Inflicting or aiming to inflict punishment; punishing.

The point of punitive damages is to punish the company. Exxon made $40.6 billion (in profit) last year, and if they can get a judgment of $1,000,000,000 (which is what they made in about 9 days) total, there's no reason for them to change their injurious business practices. The point of compensatory damages is to compensate (there's that whole definition thing again) those who were injured based on the money they lost. Those who were hurt - fisheries were destroyed, and the ecosystem still hasn't recovered - in 1989 - just learned that nearly twenty years later, they are getting a non-inflation-adjusted number that pales in comparison to the debt they were put into, whereas Exxon forgoes 9 days of profit, instead of the one month they were originally given. Split across the over 32,000 litigants in this case, the compensatory and punitive awards amount to around $31000 per person, a pittance of what the monetary costs of losing a job would be.

Obviously, since he holds over $100,000 in Exxon stock, Justice Alito took no part in the consideration of this case, and Justices Breyer, Ginsburg, and Stevens did all they could to oppose parts IV and V, which actually reduced the award, whereas parts I, II, III of the holding affirmed the rights of Baker et al. to hold Exxon civilly liable even after they had paid fines and damages for criminal liability. Also, in a stunning act of "judicial activism," the conservative wing of the court made new law in which they basically decided that punitive damages should be pegged to compensatory damages at a 1:1 ratio for "maritime" considerations, but which could surely and easily be expanded to all considerations soon enough. The Justices Three decided that it wasn't the place of the court to participate in making new law, and each state, as well as the federal government, should legislate their own laws in a way where they decide how exactly to limit punitive damages. It's rather interesting that "judicial activism" is charged only when the bench rulings are counter to a certain party's ideology, but when an actual new law is created out of whole cloth for big business, nobody decries anything, because it's helpful to the bottom line, and who cares about Alaska anyway?

Then again, I probably shouldn't complain too much, because after some research, I'm sure that my 401(k) contains quite a bit of a mutual fund which has its largest piece of the pie in ExxonMobil. Sorry, it's my retirement, and I don't care much about your livelihood, Baker et al. I just hope that I never have to sue a company, wait twenty years for a judgment, and get paid an average of $1650 per year for having had my life ruined.

Davis v. FEC

In Davis v. FEC, the Supreme Court was asked to decide whether the millionaire's amendment to McCain-Feingold Finance Reform was constitutional. The amendment had been challenged earlier in McConnell v. FEC, but at that time, the court stated that the challengers did not have merit to bring suit against this portion of the law (and it's a good thing they did, since McConnell v. FEC is one of the more complex court opinions out there - read the full text of McConnell v. FEC at your own risk). Before we move into the decision, I would like to say that it is fitting that bipartisan campaign finance reform has been attacked both from the red and from the blue: Jack Davis is a Democrat who is worth millions and wants to be able to personally finance his campaign(s), and Mitch McConnell is just your garden variety Senate Minority Leader.

The conservative wing of the court and Justice "swing vote" Kennedy, with an opinion written by Justice Alito, confirmed that the "millionaire's amendment" to the Bipartisan Campaign Reform Act (BCRA) is unconstitutional, holding that Section 319 (a) which sets a $350,000 personal donation limit before requiring reporting and also adding the ability of the opponent to up his donors limits and to receive more public matching funds and Section 319 (b) which sets reporting requirements based on how much personal money and how often personal money over $350,000 is spent on a campaign. (If you want the gory details of what exactly the law says, go to page 20 of the opinion.)

I don't find this to be a bad decision, but I do find that there are views on both sides that disturb me. First of all, I don't think that an opponent should get more public matching funds when running against a millionaire. I have no problem with the law upping the personal contribution limit of donors to a candidate if he or she is in danger of being outspent by a rich opponent, but I don't see why the public should finance that subsidy. I also think that, as long as a candidate says "I'm going to spend a shit-ton of my own money on this campaign," the actual amount of shit-tonnage shouldn't really matter, so long as the opponent is allowed to up the ante on campaign contributions from single donors, but that's not quite within the scope of the Judiciary to do.

The liberal dissenters' opinion was voiced by Justice Stevens, relying mostly on the per curiam decision of Buckley v. Valeo, and he states:

At least in the context of elections, the notion that rules limiting the quantity of speech are just as offensive to the First Amendment as rules limiting the content of speech is plainly incorrect.
If, as I have come to believe, Congress could attempt to reduce the millionaire candidate’s advantage by imposing reasonable limits on all candidates’ expenditures, it follows a fortiori that the eminently reasonable scheme before us today survives constitutional scrutiny.

There is a good argument there, and we want to do our best to make sure that everyone is allowed an equal opportunity at civil service, instead of allowing the Ned Lamont, Jack Davis, or Steve Forbes type of candidate unlimited self-financing, but the argument dies when you realize that Ned Lamont, Jack Davis, and Steve Forbes, despite their vast fortunes, have all failed in their (sometimes multiple) ventures at securing civil servitude positions. Sure, plenty of millionaires have succeeded, like John Edwards or George Bush (either one), but it seems that we've been just as much not voting for millionaires as we've been voting for them. Overall, if you have money, you should be allowed to spend it on anything you want, and if you're outspending your candidate, he should try to get more money from his donors and he should try to expand his donor base. Why should he get free public money?

I don't begrudge the Supreme Court's decision on this one, nor would I have minded of Justice Kennedy had decided that it was constitutional; this one is totally the fault of the Congress, and it really isn't the job of the Supreme Court to legislate from the bench or to participate in "judicial activism," but instead to decide whether the laws fit within the framework of the Constitution. All in all, I think that Campaign Finance is broken, but it's not up to the courts to fix it, it's up to the people who were elected through this dirty system to fix it - and what are the chances of that happening?

Parhat v. Gates

After the Supreme Court's ruling in Boumediene v. Bush (my take here), where they ruled that Guantanamo detainees do have the right to have their day in court, and the US Court of Appeals can hear writs of habeas corpus challenging their detentions.

One such detainee, Hozaifa Parhat, challenged his detention in Parhat v. Gates, and a three Judge panel of DC Court of Appeals decided that the Department of Defense needed either to "release or transfer Parhat, or to expeditiously hold a new tribunal." The full ruling is not public as it contains classified information, but the most important part is that they said that his current circumstances were unacceptable.

When informed of the ruling, Mr. Parhat said... nothing. One would think that elation, relief, or some other extreme happiness would be expressed at the ruling, but, when Sabin Willett, one of his lawyers was asked how his client reacted to the ruling, he replied, "Boy what a great question that is because my client doesn't know about this ruling because I'm not allowed to tell him." Mr. Willett went on to say that since Mr. Parhat was in solitary confinement, he was unable to be told that he was ordered to be released, to be transfered, or to be given a new tribunal/trial.

This is an unconscionable usurping of the Fifth and Sixth Amendment rights of a person whose very detention has been judged as very suspect, if not completely bogus. Due process is being turned on its head, as well as the right to a speedy trial, and finally the right to counsel - all those Constitutional rights are being outright denied, not to mention his right to habeas corpus. After having successfully challenged his detention, he is not allowed to know that it was successfully challenged, nor is he being released. It's great to know that despite losing in the courts in their largest grabs at expanding the power of the Executive branch of government, the Department of Defense still keeps on trucking, even after the Supreme Court has obliterated the legal no-man's-land that they wanted to be Guantanamo, and the Federal Appeals Court has ruled a specific detention unwarranted.

To quote Jason Linkins, "Need I remind you that President George W. Bush is of the belief that he is allowed to declare anyone to be an enemy combatant? Even you?" Do you still think that Constitutional Rights are abstract and Boumediene v. Bush only affects the terrorists? Good luck being heard from Guantanamo, even though the courts are trying to be on our side...

This post was cross-posted at BrownView.

Kennedy v. Louisiana

Louisiana, Montana, South Carolina, Oklahoma and Texas had their laws allowing the death penalty for rape of a minor overturned in the Kennedy v. Louisiana ruling, and I don't disagree with the ruling making it so that rape of a minor is not a capital offense, and I definitely disagree with the law that Governor Jindal signed in the day after this Supreme Court decision, but more on that in a later post.

Fittingly, Justice 'Swing Vote' Kennedy wrote for the majority and said:

These concerns overlook the meaning and full substance of the established proposition that the Eighth Amendment is defined by “the evolving standards of decency that mark the progress of a maturing society.” Trop, 356 U. S., at 101 (plurality opinion). Confirmed by repeated, consistent rulings of this Court, this principle requires that use of the death penalty be restrained. The rule of evolving standards of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application. In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense.

First of all, while that case does provide precedent about the interpretation of the Eighth Amendment, it's quite disingenuous to use a ruling finding that stripping a dishonorably discharged member from the military of his US Citizenship was "Cruel and Unusual Punishment"
as the foundation of deciding what composes Cruel and Unusual Punishment when it comes to the punishment for the sickening crime of shattering a child's innocence, and in fact, Coker v. Georgia, Enmund v. Florida, Furman v. Georgia, or Walton v. Arizona could all be better applied, but sure, we'll go with Trop v. Dulles. Other than that, I don't really disagree with the ruling, and I feel that this ruling is better than the bevy of crimes that could possibly have their punishments be changed - or the fact that this could be used to undo Coker. Dissenting sharply, Justice Alito wrote for the conservative wing when he said,

The Court today holds that the Eighth Amendment categorically prohibits the imposition of the death penalty for the crime of raping a child. This is so, according to the Court, no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be.

Damn, that's true, but you need to watch the slippery slope that goes with Supreme Court decisions. When the Justices grant certiorari for a petition, they have to know that the ramifications will resonate far beyond this one case, and sometimes, it's safer to err on the side of caution, even if some heinous crimes will only be punished by life imprisonment. As the majority wrote (and I already quoted above), "Confirmed by repeated, consistent rulings of this Court, this principle [evolving standards of decency] requires that use of the death penalty be restrained." The conservative wing of the court wants to broaden the applicability of the death penalty, but at what cost?

DC v. Heller

Though - in my opinion - there were four important Supreme Court decisions released this week, one has received the most media coverage: DC v. Heller. First of all, those in the majority were the four conservatives + Justice Kennedy, and those in the minority were the four liberals. Justice Scalia authored the case for the majority, and Justice Stevens wrote a snoozeful dissent that the others signed onto, whereas Justice Breyer wrote an (in my opinion) more relevant dissent, citing William Blackstone a grand total of zero times, as compared with the at least two dozen times Justice Stevens invoked the name of a man who died fully seventeen years before the US Constitution was even written (though many of his ideas did affect both the Founding Fathers and the drafts of the Constitution).

I disagree with the law in question, but by granting certiorari, the Supreme Court made it seem (whether rightly or wrongly) that this case had larger implications than just the Firearms Control Regulations Act of 1975 (FCRA). Even though Justice Scalia made it clear that:

Like most rights, the Second Amendment is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

What Justice Scalia (and the majority) are saying right there is "I live in DC, and I want to own a handgun, so I am going to strike this law down. However, I don't want crazy people to have this right, nor do I want someone who is pissed about this to gun me down with an AK-47. As such, this holding is limited to striking down this specific law. Thanks a bunch and have a great day." The last time this long a scope limiting clause was written in a case, it was in Bush v. Gore, when they gave the ruling being explicitly for that case and for nothing else. It seems like Scalia knows that this is another bullshit ruling that he wants never to be used again, and because of that, he's solely protecting himself, and beyond that, he's being really selfish about it. The thing about both Scalia's (and the court's) and Steven's opinions is that they both seem like they were written five years ago and they were just waiting for a case... and to find out which side Anthony Kennedy was on to see if the opinion needed to be written with righteous anger or with victory. I really think that those opinions have been written for a while, which is why the footnotes were so long, as well as the rife references to Blackstone and other old case law. All I can say is that Scalia had good reasoning... but I still don't like the limiting scope of the ruling - it's as if the Court knows that their current ruling is wrong and that it shouldn't be applied ever, except for the current case ruling.

Justice Breyer wrote a much better dissent than Justice Stevens, and I can't put it better than he did:

Far more important are the unfortunate consequences that today’s decision is likely to spawn. Not least of these, as I have said, is the fact that the decision threatens to throw into doubt the constitutionality of gun laws throughout the United States. I can find no sound legal basis for launching the courts on so formidable and potentially dangerous a mission. In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas.

At this moment, it feels like Justice Stevens is hoping for a Barack Obama victory so he can retire and let someone else be the most liberal voice on the court, but Justice Souter is ready for the long haul. I'm ready for firearms laws, both federal and state, to be challenged all over, and I hope Scalia is happy with that.

The Politicization of Justice

I know that this isn't on any specific legal finding or case to be decided, but it is definitely a legal issue, considering that a department that's supposed to be apolitical and non-partisan was, instead, so polarized that the Justice Department that senior officials complained that new hiring for the Honors program (targeted to recent graduates possessing law degrees) and the summer internship programs had been taken over by the administration, and self-identified Democrats were far less likely to be hired than self-identified Republicans.

First of all, Justitia is supposed to be blind, and she's neither right- nor left-handed. Justice is supposed to be impartial, as the law should shine unequally on no one, whether Democrat or Republican. This, coupled with the US Attorney firings due to refusal to prosecute Democratic politicians without enough evidence, is somewhat troubling. We need laws to be prosecuted fairly across the political spectrum, instead of having people in the administration use the Justice Department for themselves and for political gain. We can politicize nearly anything in this world, but let's not politicize those who are supposed to be the guardians of equality and fairness.

This link was cross-posted at BrownView.

Introduction

As both a curious person and a soon-to-be Law Student, I have decided to bring my analysis from the BrownView to a forum here that is solely devoted to legal issues, analysis, and quandaries. Depending on the specific issues, these things may be cross-posted at, or enhanced by further analysis in one or more places, including BrownView if it also deals with politics or the media, Adjusting the Cup if it deals with sports (possibly antitrust) law, and possibly BrownLife if it deals with something in life in general that I feel deserves further positing or posturing than just a solely legal analysis.

I hope you enjoy your time here, and I hope you enjoy my other blogs as well!

PS - I will get better at legal citation when I learn how to do it. =)