Tag Archives: ABA Journal

The Land Of Lincoln Says No

Nitasha Tiku at New York Magazine:

Illinois governor Pat Quinn abolished the death penalty today. “It’s not possible to create a perfect, mistake-free death penalty system,” Quinn declared. More than a decade ago the state issued a moratorium on executions after wrongly condemning thirteen men. Quinn, who spent two months speaking with prosecutors, victims’ families, death penalty opponents, and religious leaders, also commuted the sentences of all fifteen state inmates on death row. They will now serve life in prison. Quinn called it the “most difficult decision” he has made as governor, saying, “I think if you abolish the death penalty in Illinois, we should abolish it for everyone.” Illinois is the fifteenth state to have abolished capital punishment. With Quinn’s decision, anti-death penalty advocates hope to create “a national wave” of opposition. But in New Mexico, which became the most recent state to abolish the death penalty, in 2009, Republican governor Governor Susana Martinez is trying to reinstate it.

Martha Neil at ABA Journal:

Three other states, New Jersey, New Mexico and New York, have already banned capital punishment, and it is rarely enforced in Western democracies.

“In Illinois, there is no question in my mind that abolishing the death penalty is the right thing,” defense attorney Ron Safer tells Reuters. “It is naive to think that we haven’t executed an innocent person. We stop looking after they’re executed.”

John McCormack at The Weekly Standard

Lynn Sweet at Chicago Sun-Times:

Quinn noted that he was lobbied to sign the ban during calls from death penalty foes Desmond Tutu, Martin Sheen, Sister Helen Prejean and pleas from those who wanted Illinois to keep the death penalty on the books, including the families of victims and state’s attorneys from around the state.

Quinn said whether to sign the bill was harder to decide than other legislative matters because “It is an emotional issue when you talk to family members. I’ve talked to families on both sides of the death penalty issue, some are for abolition, some are not. So you have to really have to have an opportuniuty of review and reflection.”

I asked Quinn if he was convinced Illinois–with its record of putting wrongly convicted people on Death Row, which led to the current moratorium—won’t make mistakes again.

“That is the ultimate decision I have to make within a short period of time, whether or not problems that have existed in Illinois death penalty statute, its implementation, are corrected.”

Julia Zebley at Jurist:

Illinois legislators have attempted to ban the death penalty since then-governor George Ryan put a moratorium on it 11 years ago. Although the new law will officially take effect [Chicago Tribune report] on July 1, Quinn commuted the current 15 death row inmates’ sentences to life without parole.The death penalty remains a controversial issue worldwide. According to an Amnesty International (AI) [advocacy website] report [text, PDF; JURIST report], the number of countries using the death penalty dropped in 2009, but more than 700 people were executed in 18 countries, with the most executions carried out in Iran, Iraq, Saudi Arabia and the US. Last August, US District Court for the Southern District of Georgia [official website] heard a habeas petition from Troy Davis, who was convicted and sentenced to death for murdering an off-duty Savannah, Georgia police officer. In a rare move, the federal court heard the habeas petition after Davis had exhausted his state remedies under the Antiterrorism and Effective Death Penalty Act [text], but the court sided against Davis saying that he failed to prove his innocence. Law Offices of the Southern Center for Human Rights [official website] Executive Director Sarah Totonchi argues [JURIST commentary] said that “Troy Davis’ case illustrates that US courts simply cannot provide the certainty necessary to impose an irreversible punishment; therefore the death penalty must be abolished.”

Scott Turow in the Chicago Tribune:

Gov. Pat Quinn’s decision to abolish the death penalty in Illinois is commonly viewed as a triumph for progressives. But some of the most persuasive arguments for doing away with capital punishment basically reflect conservative views. The last decade has seen many noted conservatives, including George Will, Richard Viguerie and L. Brent Bozell III, emerge as death penalty opponents. One reason that abolition became a political possibility here was not simply because it attracted Republican votes in the Illinois House and the Senate, but because many conservatives have grown more ambivalent about the issue and less fierce in their opposition.

Here are some of the leading conservative arguments for ending executions.

The death penalty is one more government program that’s failed.

This oft-quoted observation is an elaboration on comments and more than a clever turn of phrase by former Illinoisan George Will, perhaps the nation’s leading conservative columnist.

Illinois reinstituted capital punishment in 1977, after the U.S. Supreme Court struck down all prior statutory schemes as unconstitutionally arbitrary and capricious. We have now conducted a 33-year experiment in seeing whether death sentences can be meted out in a rational, proportionate fashion. That experiment has clearly failed.

I was a member of the 14-person Commission on Capital Punishment appointed by then-Gov. George Ryan in 2000 to study the death penalty. I started out ambivalent, because I knew there will always be certain murders and killers that cry out for this ultimate form of retribution. But after two years I came to realize that we will never construct a capital system that functions with anything resembling fairness.

Despite decades of legislation and litigation aimed at establishing procedural bulwarks, the imposition of the death penalty in Illinois remained haphazard. Studies authorized by the commission found that, in Illinois, defendants were five times more likely to be sentenced to death if they committed their crimes in rural areas, as opposed to cities; twice as likely to be sentenced to death if they killed a woman; and 21/2 times more likely to be capitally sentenced for the murder of a white person, as compared with an African-American.

Doug Mataconis:

False conviction issues aren’t just limited to Illinois. The Innocence Project has been involved in nearly 300 post-conviction exonerations based on DNA evidence, including nearly two dozen cases where a convict was sitting on death row at the time of his conviction.  Moreover, there’s at least one case on record where it now seems fairly apparent that the State of Texas executed a man for a crime that he didn’t commit.

There was a time when I was a supporter, albeit a reluctant one, of capital punishment, but that time has come to an end. For one thing,  I’ve come to the general conclusion that the state should not have the power to take anyone’s life, even when they’ve committed a violent and horrible crime. Additionally, ever since the advent of DNA evidence, we’ve seen far too many instances of innocent men imprisoned for crimes that they clearly did not commit to think that it hasn’t happened in a capital punishment case.  Finally, my own professional interaction with the criminal justice system on a regular basis made it clear to me fairly early on that the system was far too imperfect to trust it with the power of life and death, and this is especially true when a defendant facing a death sentence is forced to accept court-appointed counsel that lacks both the experience and the resources that a private-hired attorney would. The question of whether you live or die shouldn’t depend on whether or not you’re rich enough to hire a good lawyer, but, far too often, it does.

Illinois has taken the right step here. Let’s hope that more states follow their lead.

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Joshua Fit The Battle Of Jericho And The Walls Come Tumbling Down

Kevin Drum explains it:

When the fire chief of Jericho, Arkansas, finally got fed up and went to court a few days ago to challenge his second traffic ticket in as many days, the town’s entire 7-man police force showed up for the hearing.  And then shot him.

Seriously.  Apparently a scuffle broke out and one of the cops pulled out his gun and shot the guy in open court.  He’s OK, but the police department, which was already in deep trouble for its habit of ticketing everything on wheels that rolled through Jericho, has been disbanded and all outstanding tickets have been voided.  The town’s part-time judge has quit too.  And nobody knows what’s happened to all the ticket revenue.

Megan McArdle

Steve Verdon:

So lets do a quick recap.

  • The police shot an unarmed man from behind when in scuffle with 6 other police officers.
  • No charges will be brought against the police officer from the local prosecutor.
  • Nobody knows where the money from the various speeding tickets went.
  • The police were writing tickets outside their jurisdiction.
  • City Hall is shut down.

Anyone doubt that the cops saw this as their own private racket and were using the tickets to line their own pockets? And what is up with the police officers in Jericho? Are they all totally out of shape morons that couldn’t fight their way out of a paper bag? Six of them are scuffling with one man and they can’t subdue him and the seventh feels he has the justification to shoot the “perp”?

Joseph Lawler at AmSpec:

That’s right — the police chief straight-up disbanded his police force. Is there any precedent for that?

MadisonConservative at Hot Air

Debra Cassens Weiss at ABA Journal

Cory Doctorow at Boing Boing:

Matt sez, “This story has it all: a tiny, flyblown town rising up against their own draconian police force, a gang of cops shooting a fireman in front of a judge, it’s utterly unbelievable. I’ll never drive through Jericho, Arkansas, that’s for sure.”

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Law Clerk Darjeeling, With A Touch Of Sugar And Just A Splash Of Milk

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Mark Halperin sums it up:

Justice Stevens has hired fewer law clerks than usual, generating speculation he may retire next year.

WSJ Law Blog:

The old law-clerk-hiring-as-early-detection-system isn’t always foolproof, but it worked with Justice David Souter. His failure to hire clerks was the first signal that he was contemplating leaving the court. Shortly after that news broke, Souter made the announcement of his departure.

Justice Stevens, 89, joined the court in 1975 and is the second-oldest justice in the court’s history, after Oliver Wendell Holmes. He is the seventh-longest-serving justice, with more than 33 years and eight months on the court. He is also a member of the LB Bow Tie Club.

In response to a question from The Associated Press, Stevens confirmed through a court spokeswoman on Tuesday that he has hired only one clerk for the term that begins in October 2010. He is among several justices who typically have hired all four clerks for the following year by now.

Stevens did not say whether he plans to hire his full allotment of clerks or whether he will leave the court at the conclusion of the term that begins next month. Retired justices are allowed to hire one clerk.

Slate:

In the past, he has typically hired all clerks at once, usually by June or July. And retired justices are allowed to hire one clerk. Justice David Souter’s failure to hire clerks was seen as the first sign that he might retire, so now no one can resist trying to read the tea leaves to guess what the 89-year-old justice will do. Former clerks say it is odd, but, of course, they caution that they really have no idea. Retiring now might be appealing to the leader of the Court’s liberal faction since he could be assured that President Obama would appoint someone with a similar ideology.

Debra Cassens Weiss at the ABA Journal

Ed Morrissey:

A Stevens retirement would create a new round of the battle over nominees, but it would once again put Barack Obama on home turf.  Stevens has been a reliable liberal vote, perhaps only slightly less than Ruth Bader Ginsburg.  His retirement would give the possibility of a rebalancing of the court, and Obama will have to find someone as reliably liberal to prevent that outcome.  He doesn’t have much room to gain with a new nomination, and would have to be satisfied with the status quo.

He’ll have to do better than Sonia Sotomayor, the qualified but rather unexceptional choice to replace the rather unexceptional David Souter.  Stevens has been much more of a heavyweight on the court, and his absence will leave Stephen Breyer as the leading liberal intellect on the court.  Two non-entities might make for warm bodies to fill liberal seats, but it will reflect poorly on Obama in the long term, and perhaps even in the short term.  “Doing bette” may mean having to contend with more serious Republican opposition, especially after Obama’s polling has dropped through the floor in a very short span of weeks this summer.

Once again, though, the Republicans will have few options but to focus on the shortcomings of Obama’s nominee.  Obama made that easy with Sotomayor, who got reversed and scolded by the court she joined in a high-profile case just before her confirmation hearings.  Unless the White House vetting team remains comatose through the next nominee, the GOP won’t have that kind of softball to hit.  Unless Obama nominates a moderate to replace Stevens — and his left flank will not stand for that — the GOP needs to do what it did on Sotomayor.  Don’t get caught up in filibuster threats that they can’t deliver, but focus on the nominee’s record and show where it’s out of step with the American majority, if indeed it is.

But will Stevens retire, or is Mark Sherman of the AP getting ahead of himself?  I suspect that Stevens might have retired earlier this year but for the surprise announcement from Souter.  I’d expect him to make this his last term on the court.  At Stevens’ age, he either retires soon or leaves another way, and I think most people would prefer to leave on their own terms.

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Reuters Wins The Web By Default

The_associated_press_building_in_new_york_city

The AP has a new plan to deal with the internet and bloggers.

New York Times:

Taking a new hard line that news articles should not turn up on search engines and Web sites without permission, The Associated Press said Thursday that it would add software to each article that shows what limits apply to the rights to use it, and that notifies The A.P. about how the article is used.

Tom Curley, The A.P.’s president and chief executive, said the company’s position was that even minimal use of a news article online required a licensing agreement with the news organization that produced it. In an interview, he specifically cited references that include a headline and a link to an article, a standard practice of search engines like Google, Bing and Yahoo, news aggregators and blogs.

Asked if that stance went further than The A.P. had gone before, he said, “That’s right.”

Andrew Sullivan:

As the MSM struggles to make money, expect more and more of this. The golden era of blogging and linking and open discussion may be coming to an end. The suits are terrified of it. And their bottom line is not the dissemination of ideas or facts, but the making of money. If they have to lose readers but make money, they’re happy.

Ed Morrissey:

Let’s just call it the Fast Track to AP Irrelevance.  Without a doubt, the new policy will have a chilling effect on blogs and aggregators who normally link to their content.  Unfortunately for the AP, that won’t result in an increase of revenues, but in having the entire online world ignore the AP.  The Times itself discovered this dynamic when it put its columnists behind the $50 dollar Firewall of Sanity.  Not only did the world fail to beat down their door to regain access to Maureen Dowd, Frank Rich, and Bob Herbert, they also discovered that their columnists became all but invisible in the rapidly-growing and influential New Media.

Besides, the AP doesn’t get to determine what “fair use” means; Congress does.  It has been a long-accepted practice for commentators to use small excerpts from articles in order to both report the news and to comment on its delivery.  This goes back decades, when reviewers excerpted novels and media critics excerpted each other to deliver critiques.  Just because the AP doesn’t like copyright law doesn’t mean it doesn’t still applies to them.  However, the threat of legal action and the cost to people working on small revenue streams will mean that their threats will mostly be effective.

Joe Windish at the Moderate Voice:

I started out a defender of AP. This nonsense has turned me away. I rarely point to or quote from AP anymore. Reuters is my wire service of choice. Their Editor in Chief, David Schlesinger, said last month in a speech to the International Olympics Committee Press Commission titled Rethinking rights, accreditation, and journalism itself in the age of Twitter:

But the point, I hope, is clear.
The old means of control don’t work.
The old categories don’t work.
The old ways of thinking won’t work.
We all need to come to terms with that.

Fundamentally, the old media won’t control news dissemination in the future. And organisations can’t control access using old forms of accreditation any more.

Those statements mean what they say and not necessarily more.

I am not arguing that newspapers and magazines and news services will die.
No, just that they must change.

Read the whole speech.

AP is in a bad place. AP expects its revenue to fall this year and next, after seeing revenue rise 5% last year. They will be eliminating about 10% of payroll costs by the end of the year. But so long they think this kind of retrograde action is innovation, the death spiral will continue.

Jeff Jarvis on replacing the AP:

The AP would rather destroy the link economy. Oh, it probably won’t succeed, just because what it suggests is so impractical and illegal and ultimately undemocratic and unconstitutional. But like a bull in a knowledgeshop, it could do a lot of damage along the way, trying to rewrite the fair use that is the basis of the democratic conversation and rushing its members to even earlier graves by hiding their content from the readers it is meant to serve. Note well that most news organizations depend upon fair use every day when they quote somebody else’s story or comment on somebody else’s content. The AP is dangerous.

But that’s not the reason to replace it (it’s merely a bonus). No, the reason to replace the AP is because is that it is hopelessly, mortally outmoded for the digital age and its ownership structure – I blame its board of newspaper owners more than I blame its management – won’t let it be transformed for our new reality. We need a replacement that will better serve journalism and the public, not to mention the democracy.

Debra Cassens Weiss at ABA Journal

Erik Sherman at Bnet

Techdirt

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