Who would have thought? Conservative, Bush appointee Paul Cassell, who is now a federal judge in Utah, has found the U.S. sentencing guidelines to be unconstitutional in their application.

Law Professor Douglas Berman, who writes the new law blog, Sentencing Law and Policy, says Cassell is the first federal judge to officially declare the federal sentencing guidelines unconstitutional after Blakely. Here is a link to Judge Cassell's opinion in US v. Croxford.

A Utah judge on Tuesday declared federal sentencing guidelines cannot be constitutionally applied in a child pornography case, taking the lead in a national debate sparked last week by the U.S. Supreme Court. "I take no pleasure in striking down the guidelines today . . . but the court's fundamental obligation is to uphold the Constitution," U.S. District Judge Paul Cassell said in declining to follow the guidelines implemented by Congress more than 15 years ago.

Though he was careful to say his decision applied only to the case at hand, Cassell later noted in a 39-page order the "potentially cataclysmic implications of such a holding." In his written order, Cassell announced he intends to continue issuing sentences without regard for the guidelines "until the constitutionality . . . has been definitely resolved by the Supreme Court." However, he said he will also issue a "fallback sentence" to avoid resentencing each defendant if the guidelines are ultimately found to be constitutional.

by TChris

If you are a lawyer or judge concerned about the insanity of the drug war, take a moment to visit the Voluntary Committee of Lawyers. Co-founded by former Attorney General Elliott Richardson, "the VCL seeks to promote, within and by the legal profession, informed discussion about the objectives of the drug war and its costs to our cherished institutions of liberty and justice."

Lawyers and judges can electronically sign an open letter calling for a public debate about the best way to implement "better drug laws in which fear, prejudice, and punitive prohibitions yield to common sense, science, public health and human rights."

by TChris

As TalkLeft reported last year, the Justice Dept. was unenthusiastic about the ABA's Kennedy Commission, created in response to Justice Kennedy's criticism of the excessive reliance on incarceration as a solution to society's problems. The Justice Dept. is just as likely to spurn the Commission's recent conclusions and recommendations.

The primary conclusion should be obvious, although John Ashcroft is sure to disagree with it: "America's criminal justice systems rely too heavily on incarceration and need to consider more effective alternatives." The recommendations (summarized here - pdf) include:

• Restoring proportionality by reserving lengthy sentences for people who do serious harm; repealing mandatory minimum sentences; giving judges the power to tailor sentences to the individual circumstances of the offender and the offense; permitting appellate review of excessive sentences; and developing effective alternatives to incarceration.

• Requiring courts and law enforcement authorities to make greater efforts to eliminate racial disparities in arrests, prosecutions and sentences.

• Expanding opportunities for sentence reductions and for relief from the collateral consequences of a conviction after a sentence ends (such as the restoration of legal rights).

• Assuring that prisons are safe and professionally managed, and eliminating barriers to a prisoner's successful reentry to society.

The full report is available on the Commission's website.

Civil liberties expert Elaine Cassel reports that this week's three Supreme Court detainee decisions may not be a victory for civil liberties after all. In fact, she calls the score "Bush 3, Civil liberties 0"--or "game, set, match - to George Bush."

Arthur at Light of Reason feels the same way. As TChris reported here, law prof Jonathan Turley expresses a similar pessimistic view, writing that the decisions show how imperiled our constitutional system has become.

And from Yale law professor Jack Balkin:

In essence, the Court has said in these cases: don't tell us that we are irrelevant. The flip side of that demand is that if the Administration now goes through the motions of justifying its decisions before a court, courts are much more likely to let it do what it likes. In that sense, the decisions in Hamdi and Rasul cannot be understood to be complete victories for civil liberties. But they are better than the alternatives.

Balkin also summarizes here:

Putting together Justice Thomas' opinion in Hamdi with his vote in ACLU v. Ashcroft, we may infer that the President can throw any citizen in a military prison indefinitely, but that the citizen has the right to view pornography while there.

One of the most high profile cases in the 1980's was that of New York lawyer Joel Steinberg, convicted of manslaughter for the beating death of his 6 year old adopted daughter, Lisa. His long time lover, Hedda Nussbaum, was also charged initially, but later, when she agreed to testify against Joel, charges were dropped against her. She was one of the most publicized battered women of that decade.

Steinberg has served 16 years of a maximum 25 year sentence and will be freed from jail today. Last year, he made headlines when it became known that he might have a job as host of a cable tv show. There was a huge uproar.

A spokesman for the show told Newsday that Mr. Steinberg will start as an intern working off the air and will earn $250 a week.

If you're not familiar with the case, all the gruesome details are here. Joel Steinberg was represented by New York defense lawyer Ira London, and Hedda was represented by Barry Scheck. The trial lasted three-months, and after eight days of deliberations, Steinberg was acquitted of second degree murder and convicted of the lesser charge of manslaughter. Hedda went into treatment.

Update: Joel Steinberg's first day as a free man was a frenzy.

by TChris

For the crime of videotaping a public building, Purna Raj Bajracharya spent three months in solitary confinement before being deported to Katmandu.

What's that? It's not a crime to videotape something that's plainly visible to the public? Tell it to the FBI.

Bajracharya was planning to return to Nepal. He'd overstayed his tourist visa, working odd jobs and enjoying the freedom and wonders to be found in the United States. He taped some street scenes to show to his friends and family, including some buildings in Queens (where Bajracharya had worked for a pizzeria). One of the buildings happened to house an office of the FBI. And so, of course, he was arrested.

Except for the videotape — "a tourist kind of thing," in [FBI agent] Wynne's estimation — no shred of suspicion attached to the man .... His one offense — staying to work on a long-expired tourist visa — was an immigration violation punishable by deportation, not jail.

Bajracharya "was swallowed up in the government's new maximum security system of secret detention and secret hearings." Fortunately, one of the FBI agents who arrested him called Legal Aid on his behalf -- but only after the agent tried unsuccessfully to obtain his release using the "byzantine" process of clearing him as a security threat, a process that "required signatures from top antiterrorism officials in Washington."

Read the linked article for the rest of the story.

Now, for the first time, the F.B.I. agent and the Legal Aid lawyer, Olivia Cassin, have agreed to talk about the case and their unlikely alliance. Their documented accounts offer a rare, first-hand window into the workings of a secret world.

by TChris

Even as the Pentagon claims to have been "caught off guard" by the Supreme Court's reminder that the executive branch of government does not possess limitless, unchecked power, Prof. Jonathan Turley points out that "we dodged this bullet by a hair's breadth — and the system seemed to triumph only by default."

The notion that the President and those he commands can do anything they please to anyone they label an "enemy" should seem alien to those who believe in the values embodied in the Constitution. Most Americans didn't think Kafka was writing about the United States when he imagined a faceless state that provided men with no opportunity to answer the unstated charges against them. Turley sounds a warning: we have "a system at risk," evidenced by the administration's attempt to defend the indefinite detention of persons without charges or access to courts, and by the failure of Congress to act as a check against that abuse of authority.

This left the Supreme Court. Although the court ruled against the president, it may have proved to be the most dysfunctional of all the branches in its reasoning and results.

Find out why.

by TChris

Transcripts of a closed hearing in Kobe Bryant's case may soon enter the realm of public information. After a court reporter mistakenly emailed the transcripts to seven media organizations, District Judge Terry Ruckriegle ordered the organizations to destroy the transcripts without publishing their contents.

Now the Colorado Supreme Court is reminding Judge Ruckriegle that the First Amendment generally bars courts from imposing a prior restraint upon the press. Since Judge Ruckriegle's order not to publish the transcripts plainly constitutes a restraint against publication, the state supreme court wants him to justify the order. No explanation is likely to overcome the media's First Amendment right to report the news, even if a court meant to keep it behind closed doors.

Whether or not the transcripts are newsworthy, they certainly contain the kind of subject matter that sells newspapers.

The transcripts deal with attempts by Bryant's attorneys to introduce information about the accuser's sex life and about money she has received under the state Crime Victims Compensation program.

The supreme court will consider the legality of Judge Ruckriegle's order after July 7, the deadline for the media to reply to the judge's explanation.

by TChris

Saddam Hussein is heading back to Iraq, and it looks like he's facing a speedy trial.

Already there are pretrial negotiations over permitting Saddam's foreign legal team to work in Iraq, whether to televise the proceedings and whether to reinstate the harshest penalty in Iraq's legal code: hanging by the neck until dead.

Hussein will make his first appearance before the war crimes tribunal Thursday, when he and eleven of his lieutenants will be informed of the charges against them. Iraq will take physical custody of the prisoners on Wednesday.

Upon their arraignment, the dozen U.S. military detainees will be given the status of Iraqi criminal suspects, which gives them the right to attorneys or appointed counsel, Chalabi said.

The linked article deems Saddam the Iraqi O.J. Simpson. Don't expect the same trial result. Here's one barrier to assembling a dream team:

"How can the defense team go to a country where it doesn't enjoy any protection? They will kill us there," said an angry al-Khasawneh [one of Saddam's would-be defense attorneys].

by TChris

Mark Faljean, an 18-year veteran of the NYPD, "faces possible disciplinary action by the Police Department" after being convicted of "fondling, sexually abusing and harassing a 27-year-old woman."

During the trial, Faljean denied ever touching the woman, opening the door for prosecutors to question him about more than a dozen past misconduct cases and multiple corruption cases that have been lodged against him.

Possible disciplinary action? They need to think about it?

by TChris

Just four hours before he was scheduled to die, the Supreme Court stayed the execution of Texas prisoner Mauro Barraza. Next term, the Court is expected to decide whether the government can execute persons who were minors when their crimes were committed. Barraza had just turned 17 when he committed the murder that resulted in his death sentence.

This is good news. The Supreme Court wrapped up its term today and none of the Justices announced retirement plans. That makes it more likely it will be the next President who gets to appoint a new Supreme Court Justice. There is a huge difference between Bush and Kerry when it comes to judicial appointments. Defeating Bush in November will stop cold the right wing's attempt to install its own ideologues and activists on the bench. For that reason alone, it is imperative that Kerry wins in November.

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