Tag Archives: Jurist

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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Apparently, The Kyrgyzstan Government Has Just Been Overthrown. So, How Has Your Afternoon Been?

Clifford Levy at NYT:

Large-scale protests appeared to overthrow the government of Kyrgyzstan on Wednesday and its president fled before an outbreak of mayhem and violence in the capital of Bishkek and elsewhere in the country, an important Amerian ally in Central Asia. Government officials said at least 41 people had been killed in fighting between riot police officers and demonstrators.

While the opposition declared that it was forming its own government, President Kurmanbek Bakiyev left Bishkek in the presidential plane, though it was not clear whether he was leaving the country or heading to another Kyrgyz city. Earlier in the day, the police used live ammunition, tear gas and stun grenades against a crowd of thousands that massed in front of the presidential office in Bishkek, according to witness accounts.

Dinara Saginbayeva, a Kyrgyz health official, said in a telephone interview that at least 41 people had been killed, “but it could end up being much more.” She said more than 350 people had been wounded in Bishkek alone, with scores of others wounded in protests around the country.

Opposition leaders said the toll could be as high as 100 people.

Laura Rozen at Politico

Jay Carmella at Jurist:

Anti-government protesters in Kyrgyzstan on Wednesday set fire to the prosecutor-general’s office amid violent demonstrations that have led to the death of the interior minister, the arrest of several opposition leaders, and the deaths of dozens of protesters. The protests against President Kurmanbek Bakiyev [BBC profile], which appear prompted [NYT report] in part by a drastic increase in utility costs, began late Tuesday night in the city Talas then spread throughout the country Wednesday. Interior Minister Moldomus Kongantiyev was killed [AFP report] during an attack by protesters in Talas. Former prime minister and presidential candidate Almazbek Atambayev and former parliament speaker Omurbek Tekebayev were among the many opposition leaders arrested [AFP report] as a result of the protests. Bakiyev has declared a state of emergency throughout the country, urging citizens to remain indoors. The protesters have also taken control [Reuters report] of the country’s television station, and approximately a thousand people surrounded the prosecutor-general’s office, reportedly setting it on fire. Reports vary as to the number of citizens that have been killed during the protests, with news organizations reporting as many as 50. Kyrgyz police used bullets and tear gas to protect the presidential office in Bishkek.

The protests come a week after UN Secretary-General Ban Ki-moon [official profile] called on Kyrgyzstan to protect all forms of human rights [JURIST report], including “free speech and freedom of the media.” The statements follow recent events [RIA Novosti report] in the country that include the shutdown of an opposition newspaper, a police raid on a local television station that resulted in the station being taken off the air, and the confiscation of computers from a video web portal based on allegations of pirated software use. Opposition members gathered in support [RFE/RL report] of Ban’s comments. Kyrgyzstan was once hailed as a model for democracy in the Central Asian countries that made up the former Soviet Union. It is believed that much of the media pressure [AP report] is the result of the election of Bakiyev following the Tulip revolution that removed Askar Akayev from power in 2005. Last year, the US State Department (DOS) [official website] criticized Kyrgyzstan over its treatment of journalists in its 2008 Country Reports on Human Rights Practices [DOS materials; JURIST report].

Joshua Keating at Foreign Policy:

Stores are being looted, the office of the state broadcaster has been raided and automatic weapons fire has been exchanged between rioters and security forces. There are reports of black smoke rising from the parliament building.

The whereabouts of President Kurmanbak Bakiyev are still unknown but rumors are flying:

The whereabouts of President Bakiyev as of the evening of April 7 could not be verified. Some rumors circulating in the city suggested that he had taken refuge at the US air base at Manas, outside of Bishkek. Other reports claimed that he had fled the country. Opposition leaders, including Omurbek Tekebayev and Almazbek Atambayev, were reportedly released after being taken into custody on April 6.

Earlier in the day, Bakiyev declared a state of emergency following initial clashes between police and protesters outside the government headquarters. During the afternoon, demonstrators drove two trucks into the White House gates. They caught fire as Ministry of Interior forces stationed within the compound shot at the vehicles with what appeared to be live ammunition, a EurasiaNet.org correspondent witnessed.

Bakiyev himself took power in the 2005 “Tulip Revolution,” overthrowing authoritarian President Askar Ayakev, but his tenure has been marked by increasing authoritarianism and corruption.

If Bakiyev were actually taking refuge at Manas, it would be ironic. The presidents numerous threats to shut down the facility have been a perpetual annoyance to the Pentagon, which relies on Manas to bring goods into Afghanistan.

James Joyner:

It’s no secret that Kyrgyzstan (or, as our State Department calls it, “the Kyrgyz Republic”) is a less-than-democratic society.  Bakiyev’s reelection was widely considered fraudulent.  But, more often than not, we’re forced to deal with the people who control the levers of power in a given state.

Daniel Larison:

The news out of Kyrgyzstan is awful, and the latest events there should serve as yet another reminder that the Bakiyev regime has been significantly worse for Kyrgyzstan than the government Western governments and media outlets were so happy to see overthrown in yet another “color” revolution. Of all the governments challenged by “people power” protests in the last decade, Akayev’s was probably the most inoffensive and Akayev himself was a fair sight better than some of the other Central Asian rulers Washington continues to embrace to this day. Akayev’s overthrow never had much to do with “people power” or “democracy vs. dictatorship,” but was simply a contest between the ruler and the country’s elites and the replacement of one family’s control of the government with that of another.


Bakiyev has since imitated Akayev’s authoritarian habits and became even worse than Akayev ever was. The dead protesters in Bishkek are proof of that. The good news in all of this is that Bakiyev seems to have fled, but not before his forces have killed at least 17 and perhaps as many as 100 people according to AP reporting of the opposition’s death toll claims. These are the fruits of yet another “color revolution” that far too many Westerners enthused about out of misguided idealism, weird anti-Russian hang-ups or ideological fantasies of a global democratic revolution. Perhaps the most absurd expression of the enthusiasm for the so-called “Tulip Revolution” was a Chicago Tribune op-ed celebrating Akayev’s downfall and lauding John Paul II (no, really) as being somehow ultimately responsible, but there was virtual unanimity in the Western press that one more bad authoritarian was succumbing to the inevitable, glorious triumph of democracy. As it turned out, Akayev may have been the best Kyrgyzstan was going to be able to get, and ever since he was deposed Kyrgyzstan has been less stable, governed less well, and now joins Georgia, Pakistan and Uzbekistan as a new scene of violent repression of civilian protesters by a U.S.-allied government. Might we begin to learn from this that foreign political clashes are not usually clearly-defined ideological contests between democrats and authoritarians, and that there not much reason to celebrate the destabilization, political upheaval and disorder that such things usually invole?

Jesse Walker at Reason

UPDATE: Evgeny Morozov at Foreign Policy

Eugene Huskey at Salon

UPDATE #2: More Larison


Filed under Foreign Affairs, Global Hot Spots

Accompanying Art Not Provided

Robert Barnes at Washington Post:

It was a hastily written ruling by Supreme Court standards, and it carried a dissent almost equal in length to the majority’s opinion. But the 5 to 4 decision the court issued late Wednesday blocking the broadcast of a federal trial about the constitutionality of same-sex marriage is being scoured by legal analysts and activists for deeper meaning.

Many are finding a hint of sympathy for those who oppose same-sex marriage. An unmistakable worry about how cameras could transform what the ruling called the “orderly, decorous, rational traditions” of the courts. Some even detect a whiff of Bush v. Gore.

“It is almost classic Freudian,” said Andrew Koppelman, a law professor at Northwestern University, “in that it is talking about one thing, but really seems to mean something else.”

Although the ruling went out of its way to emphasize its own limits — “Our review is confined to a narrow legal issue,” the majority said — the ideological split in voting drew speculation about what it portended for a court that is likely to decide the constitutionality of same-sex marriage.

“If there had been a mixture of ideologies on each side, this would have been less remarkable,” said Dale Carpenter, a civil rights and constitutional law professor at the University of Minnesota.

The court held that federal judges in California had violated their own rules by allowing video feeds from a San Francisco trial examining a challenge to California’s Proposition 8, which voters approved in 2008 to amend the state constitution to forbid same-sex marriages.

The majority said the presiding judge, Vaughn R. Walker, and the chief judge for the U.S. Circuit Court of Appeals for the 9th Circuit, Alex Kozinski, had pushed through “eleventh-hour” changes to the court’s rules to transmit the proceedings to five courthouses around the nation and, perhaps, to post video on the court’s Web site.


Although the main opinion was unsigned, the facts that the order divided the Court 5-4, and that the dissenters were identified, indicated that Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Anthony M. Kennedy, Antonin Scalia and Clarence Thomas made up the majority.  Justice Stephen G. Breyer, the only member of the Court to dissent from Monday’s order, wrote the dissenting opinion Wednesday, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and John Paul Stevens.   Thus, the ruling split the Court along the customary conservative-liberal divide.

The main opinion sought to portray the Court’s action as limited in scope.  Aside from saying that it was not taking any position “on the propriety of broadcasting court proceedings generally,” it said it was only blocking the streaming of video and audio of the trial proceedings to federal courthouses other than the one in San Francisco where the trial is being held.  Thus, it added, it was not ruling on plans — not yet finalized — to permit broadcast on the Internet, through YouTube or otherwise, since “this may be premature.”

The ruling touched off a basic dispute within the Court over its power to take the action that it did.  The majority opinion found the authority under its own Rules and under a more general “supervisory power” over lower courts.  The Court said that it “may use its supervisory authority to invalidate local rules that were promulgated in violation of an Act of Congress.”  The majority suggested that the trial judge had violated a law that requires public notice and a time to comment before federal court rules may be changed.

Prior to Wednesday’s decision, the only entity within the federal judiciary that had tried to stop the TV broadcasts of the trial was the U.S. Judicial Conference, through two of its officers, citing an anti-TV policy the Conference adopted years ago.  But the main opinion of the Court conceded that Judicial Conference policies “may not be binding in the lower courts.”  Even so, it added, those policies “are at the very least entitled to respectful consideration.”  On Wednesday, the Court used its “supervisory authority” to make the anti-TV policy binding at least in this one instance.

The dissenters on Wednesday directly questioned whether the Court had the authority to block the broadcasting plan.  Justice Breyer wrote that the new ruling was a move to “micromanage district court administrative procedures in the most detailed way.”  He added that “it is inappropriate as well as unnecessary for this Court to intervene,” and went on to argue that there were other entities within the U.S. judiciary that should be handling such matters, “not this Court.”

Contending that the move was without precedent, Breyer wrote: ”I have not been able to find any other case in which this Court has previously” intervened in such matters of local court administration.  He quoted a comment made in an earlier case by Justice Scalia, saying “I do not see any basis for any direct authority to supervise lower courts.”

The majority and dissent, of course, disagreed fundamentally on whether the Prop. 8 proponents had at this point made the case for even a temporary order to block the televised viewing outside the San Francisco federal courthouse.  The majority found strong support for the claim, and the dissenters found none.

The Blog Of Legal Times:

But the high court did accept the controversial claim by opponents of broadcasting the California trial that “irreparable harm” would result from wide broadcast of the trial, because of possible witness harassment and intimidation. Proponents of Proposition 8, who opposed the telecast, based their request for a stay on the potential harm to witnesses who they say have already been threatened for publicly opposing gay marriage. “It would be difficult — if not impossible — to reverse the harm from the broadcasts,” the Court wrote.

The Court noted that in 1996, the last time the Judicial Conference addressed the issue of cameras in the federal courts, it concluded that potential intimidation of witnesses and jurors was “cause for concern.”  While the conference’s policy against broadcast of trials is not binding on the lower courts, the Supreme Court said, it was at least entitled to “respectful consideration” before the district court changed its rules.

Because of these observations among others in the Court’s ruling, it would be hard to interpret it as anything other than a setback for advocates of broadcast access to federal courts — except for the fact that four justices dissented.

Justice Stephen Breyer dissented, joined by Justices John Paul Stevens, Ruth Bader Ginsburg, and Sonia Sotomayor. Breyer wrote that the district court had given ample notice of its proposed rules, and received more than 130,000 comments in recent weeks favoring the plan to televise the trial. Breyer said it was “inappropriate as well as unnecessary” to interfere with local judicial administration. He also dismissed the Court’s claim of irreparable harm to witnesses, noting that 42 states and two federal trial courts have allowed broadcast of trials without empirical evidence of substantial harm.

“The public interest weighs in favor of providing access to the courts,” wrote Breyer, asserting that the public is interested in “observing trial proceedings to learn about this case and about how courts work.”

Dahlia Lithwick at Slate:

To be sure, there have been claims that some of the witnesses defending Proposition 8 have been harassed and embarrassed. But some of them are paid experts, and some have appeared on television. All will be named and quoted in the newspaper, radio, live-blogging, and Twittering that has poured out of Walker’s courtroom. And the law provides that any witness who feels particularly vulnerable about television broadcast has recourse to judicial protections. But the Supreme Court’s wholesale acceptance of the argument that every last one of these witnesses is a victim-in-waiting is daft—as well as bristling with hostility toward the American public.

Putting aside the merits of the gay-marriage trial itself, in this new decision the Supreme Court has revealed something profound about its view of the American people. One cannot argue that the majority of California citizens wanted to ban gay marriage and should be respected while also claiming that supporters of such an initiative are a fragile, oppressed minority who must testify in dark sunglasses in dark rooms. Opponents of gay marriage can’t have it both ways. If they want to say that unelected federal judges cannot subvert the will of John Q. Voter, then they cannot also insist that John Q. Voter be banned from witnessing federal judges at work. In the campaign over this ballot initiative, both sides spent close to $74 million on competing ads to “educate” voters about gay marriage. In many ways, broadcast and the masses caused Proposition 8 itself. It’s awfully late now to claim that there’s no place for broadcast television in this fight.

Marjorie Cohn at Jurist:

In my opinion, it is no accident that the five majority justices are the conservatives who, in all likelihood, oppose same-sex marriage. Why don’t those who oppose same-sex marriage want people to see this trial?

Perhaps they are mindful of the sympathy engendered by televised images of another civil rights struggle. “It was hard for people watching at home not to take sides,” David Halberstam wrote about Little Rock in The Fifties. “There they were, sitting in their living rooms in front of their own television sets watching orderly black children behaving with great dignity, trying to obtain nothing more than a decent education, the most elemental of American birthrights, yet being assaulted by a vicious mob of poor whites.”

The conservative justices may think that televising this trial will have the same effect on the public. Witnesses are describing their love for each other in deeply emotional terms. Religious fundamentalists who oppose them will testify about their interpretation of scripture. Gay marriage is one of the hot button issues of our time. Passions run high on both sides. This is not a jury trial in which jurors might be affected by the camera or a criminal case where the life or liberty of the defendant is at stake.

In spite of what the conservative majority claims, the professional witnesses are not likely to be cowed by the camera. Modern broadcast technology would allow the telecast without affecting the proceedings in the courtroom.

There is overwhelming public interest in this case. It will affect the daily lives of millions of people. The decision denying limited broadcast coverage at this point effectively eliminates any possibility that it will be allowed before the trial is over. The conservative judges are using procedural excuses to push this critical issue back into the closet.

Ed Whelan at The Corner:

I’ll have more to say on the broader ramifications of this order on Bench Memos once I’ve reviewed it and the accompanying opinion.  For now, I’ll just observe that this is a significant, and well-deserved, victory for counsel for the sponsors of Proposition 8, led by Charles J. Cooper of Cooper & Kirk.

Update:  I’ve now read the excellent per curiam majority opinion.  The majority (the Chief Justice and Justices Scalia, Kennedy, Thomas, and Alito) rules that Judge Walker’s broadcast order should be stayed “because it appears the courts below did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting” and because irreparable harm would result from the denial of the stay.  I’m pleased to say that the Court’s analysis is very much along the lines that I’ve spelled out in my recent NRO essay—“Staging a Show Trial on Same-Sex Marriage”—and in my Bench Memos posts.  (Those lines were, of course, developed much more elaborately in the brief filed by counsel for the sponsors of Proposition 8.)

UPDATE: Orin Kerr

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Where It’s At: I Got Two VPs And A Veto

Anthony Shadid at WaPo:

Iraq’s vice president on Wednesday vetoed legislation to organize the country’s parliamentary elections in January, throwing the law back to a Parliament that had haggled for months before finally passing it last week.

The veto by Vice President Tariq al-Hashimi was the latest wrinkle in growing criticism over the law by the country’s biggest minorities, Sunni Arabs and Kurds. Both groups are effectively demanding the allocation of more seats to their blocs in the next parliament, which is almost assured of having a Shiite Muslim majority.

On Tuesday, Kurdish officials threatened to boycott the vote in the three provinces they control in northern Iraq unless they were granted a greater share of seats.

Hashimi, one of three members of the presidency council, Iraq’s executive branch, said Wednesday that he was forced to veto the law because it gave too little representation to the millions of Iraqis — predominantly Sunni Arabs — forced into exile since 2003. These Iraqis have sought refuge in Syria, Jordan and elsewhere.

The veto, Hashimi said, was a move “to deliver justice to Iraqis living abroad.”

Spencer Ackerman:

This is about sectarian proportionality in parliament, but it’s layered atop a simmering Kurdish acrimony, so the electoral commission chief says that the parliament is basically out of time to pass the law. Chaos! But not, apparently the sort of chaos that will interrupt Gen. Odierno’s troop reductions:

Gen. Ray Odierno, the commanding general of United States forces, said Wednesday that he was still hopeful elections would be held on time, but he added that the military could adapt if there was a delay.

“What I believe I have is flexibility,” he said, adding that significant reductions in troops were not scheduled until April or May.

April or May? Well, at least it’s not like we have a dearth of troops for another resource-intensive war or anything.

David Manes at Jurist:

The constitution also requires that the election law be approved by the Presidency Council within 60 days of the election, which was scheduled for January 18 of next year. After Hashemi’s announcement, the Independent High Election Commission [official website, in Arabic] suspended their preparations for the election. Further debate on the proposed law will likely delay the elections, which may affect the planned withdrawal of US military forces from Iraq. The elections may also include a referendum on the US-Iraq Status of Forces Agreement (SOFA) [text, PDF], which allows US troops to remain in the country until the end of 2011. A draft bill requiring the referendum was approved by the Iraqi cabinet [JURIST report] in August. If the SOFA were rejected by Iraqi voters, US troops would have only one year to withdraw, which would result in a January 2011 withdrawal – nearly a year ahead of schedule.


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Escape from Alcatraz, With 100% Less Clint Eastwood


A special panel of federal judges on Tuesday ordered [opinion, PDF; opinion summary, PDF] California to reduce its prison population by nearly 43,000 inmates, finding that the prisons are overcrowded. Two inmates had brought a challenge against the state’s prison system, alleging that the overcrowding had resulted in a failure to provide [Los Angeles Times report] adequate physical and mental health care, depriving them of their constitutional rights. The panel agreed

Eli Lehrer in National Review:

California brought its crime rate under control in the 1990s in large part by locking up a very large percentage of its criminal population. Today, the state is pretty safe. Shedding this many inmates — even though some will end up in county and city lockups — will inevitably let some bad criminals get back on the street, where they will commit more crimes. After all, very few people end up in prison without violent records — about 60 percent of “non-violent” offenders have violent offenses on their rap sheets.

Given its budget woes, however, California may want to use the judicial order and the crisis it will create as an opportunity to innovate. Rather than simply try to hang on to as many baddies as possible in county lockups or hastily constructed new prisons, the state should redouble efforts to improve and expand its parole system.

In Boston and in California’s own Orange County, strict, continuous monitoring of parolees and those on probation — through unannounced home visits, frequent random drug tests, mandates to work, curfews, and the like — has been pretty effective in reducing recidivism. But the programs haven’t spread or even been maintained where they are successful because they are quite expensive (although cheaper than prisons) and tend to blur the line between police and parole officers in a way that doesn’t make members of either profession comfortable.

Mark Kleiman:

It wouldn’t be hard to shrink prison populations drastically while reducing crime, by doing a better job of supervising prison releasees on parole using drug-testing and position monitoring with swift and certain, but mild, sanctions for each violation of the rules. But the current discussion is all about shortening parole and reducing the rate of revocations.

Eliminating parole revocations for technical violations (other than absconding) makes sense. But unless the threat of revocation is replaced by something else, parole conditions become meaningless. (The same is true of probation: one way to shrink the prison population would be to put more felons on probation, but for that to make sense probation has to mean something.)

Tight supervision can reduce the time parolees spend behind bars by preventing new crimes. That’s the big finding from Project HOPE in Hawaii.http://www.issues.org/24.4/kleiman.html So far, though, there’s no indication that the Governor or the Department of Corrections and Rehabilitation are thinking along those lines. Instead they’ll fight the case all the way up to the Supreme Court, and then blame the judges when their failure to do their jobs leads to a crime increase.

Kevin Drum:

A couple of weeks ago I described California as “a penal colony with a nice coastline.”  The coastline is still nice, but a three-judge panel has finally ordered the state to get off its ass and do something about our wretched and overflowing prison system:

California’s prisons are so overcrowded that the state is violating inmates’ constitutional rights, three federal judges ruled today in a decision imposing a cap on the prison population that will force the state to release nearly 43,000 prisoners over the next two years. The 185-page opinion also accused the state of fostering “criminogenic” conditions, compelling former prisoners to commit more crimes and feed a cycle of recidivism.

A combination of dumb drug laws, dysfunctional parole policies, “three strikes” laws passed by initiative, an endless procession of tougher-than-thou politicians, and a famously thuggish and politically powerful prison guards union has gotten California into this mess.

[…] So will the judges be able to make a dent in all this?  Hard to say.  Every attempt to date has failed, and the LA Times quotes a spokesman from the California Attorney General’s office saying, “This order doesn’t release anybody from prison, it just orders the state to come up with a plan. We have no immediate plans to appeal this particular order, but there would definitely be thought given to appeal any order that would ultimately order releases.”

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