The New York Times today has this portrait of one federal judge's frustration and struggle with an unjust mandatory minimum sentence in a particular case. The Judge did not speak to the press--the reporter put the story together from pleadings and transcripts. It aptly describes what Congress has done to our federal sentencing system: it has removed sentencing decisions from experienced judges appointed by the president and turned them over to prosecutors.

The defendant's crime was grave: Using the screen name BigThing, he sent thousands of images of child pornography to people who answered his advertisement in an Internet chat room. And a federal judge responded with a heavy sentence, 10 years in prison. But even as he handed down the penalty, Judge Gerard E. Lynch angrily denounced his own decision.

"This is without question the worst case of my judicial career," he said. The "unjust and harmful" sentence, he added, "has the potential to do disastrous damage to someone who himself is not much more than a child."

A word about Judge Gerard Lynch. He is hardly a left-wing jurist-- he served as Chief of the Criminal Division in the Southern District of New York and, we are told, is probably as respected as anyone in the New York legal community for his intelligence and judgment. He tried to talk some sense into the prosecutors, they wouldn't listen. He ruled that the jury would be instructed that the teen would receive a mandatory ten year sentence if convicted. The prosecution appealed the ruling before trial and won. The case went to trial. The teen was convicted and Judge Lynch, as required, sentenced him to ten years. Judge Lynch also noted that had the teen's crime been having sex with a 12 year old, as opposed to swapping downloaded child porn images, he would only have faced a five year sentence.

We received this by email, we don't know the source, but it made us laugh, so we're reprinting it:

At New York's Kennedy airport today, an individual later discovered to be a public school teacher was arrested trying to board a flight while in possession of a ruler, protractor, setsquare, sliderule, and calculator.

At a morning press conference, Attorney general John Ashcroft said he believes the man is a member of the notorious al-gebra movement. He is being charged by the FBI with carrying weapons of math instruction.

"Al-gebra is a fearsome cult," Ashcroft said. "They desire average solutions by means and extremes, and sometimes go off on tangents in a search of absolute value. They use secret code names like "x" and "y" and refer to themselves as "unknowns", but we have determined they belong to a common denominator of the axis of medieval with coordinates in every country."

"As the Greek philanderer Isosceles used to say, there are 3 sides to every triangle," Ashcroft declared. When asked to comment on the arrest, President Bush said, "If God had wanted us to have better weapons of math instruction, He would have given us more fingers and toes."

There is an excellent column in the Chicago Sun Times today addressing the injustice of sentences handed out to small time drug offenders in comparison to sentences meted out to Enron-type offenders . Where's the justice?

...criminals in the Enron case won't spend a fraction of the time behind bars that judges order most drug offenders to spend. Some people would argue there are actually two justice systems: one for them and one for us. Certainly, white collar criminals are dealt with less harshly compared to non-violent drug offenders.

Look at the prison time most drug offenders face. Some of them have been sentenced to life terms, even though they haven't committed a heinous crime or murdered anyone.

'60 Minutes' last week featured a segment on mandatory minimum sentences in drug cases.

What passes for a drug king in 99 percent of the cases is nothing more than a young man who can't even afford a lawyer when he's hauled into court," Judge Patrick Murphy told correspondent Ed Bradley. "I've seen very few drug kings."

We've been on the road again today, this time to Canon City to visit a client at the state penitentiary. A two and a half hour drive each way with great mountain views and no traffic. The prison staff couldn't have been more accomodating and the bathrooms were spotless. With cloudless skies and daytime temperatures in 40's to 50's since the weekend when we left in the opposite direction for Vail and Eagle, we are once again reminded that it's a privilege to live in Colorado.

We've missed blogging at our usual pace the past few days, but we'll be catching up quickly.

Rush Limbaugh's medical records will stay sealed pending further review by the Court. The ACLU will be allowed to join the case.

An appeals court on Tuesday ordered prosecutors to turn Rush Limbaugh's medical records over to the courts and keep them sealed until further review. The court also ruled that the American Civil Liberties Union can join the conservative talk show host in fighting to keep the documents private, creating an unlikely alliance in the case.

Limbaugh's attorneys argue that the seizure violated Limbaugh's privacy and that the investigation was politically motivated. No criminal charges have been filed against Limbaugh. The ACLU joined the case Monday in support of the claim that Limbaugh's constitutional right to privacy has been violated.

Differences have been worked out and both Andrew and Lea Fastow are expected to plead guilty Wednesday in Enron cases. Mrs. Fastow's original deal called for a five month prison sentence, followed by five months of house arrest, but the Judge said he would not agree to be bound by that amount of time without first reviewing a pre-sentence report.

It appears Lea Fastow has now agreed to go ahead and submit to the pre-sentence report and hope Hittner decides to sentence her as the government and her attorneys agreed. Lawyers in the case have indicated the likely range of punishment for her one tax offense would be 10 months to 16 months in prison. Andrew Fastow's deal is for a 10-year prison term.

In another blow to personal freedom the high court held today (6-3 opinion by Beyer) that the police may use random roadblocks to seek information regarding recent specific crimes. The case is Illiniois v. Lidster, the opinion is here. Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg dissented.

The police had set up a highway checkpoint (roadblock) to try and obtain information about a hit and run resulting in a death a week earlier. The checkpoint was in the same location and at about the same time as the earlier incident. Police stopped each approaching vehicle, asked if the occupants knew anything about the hit and run and passed out a flyer with contact information. Lister swerved while approaching and the officer smelled alcohol. Following filed sobriety tests Lister was arrested for driving under the influence.

In Indianapolis v. Edmond, the Supreme Court held that absent special circumstances, the Fourth Amendment prohibits police from stopping people at a checkpoint set up primarily for general “crime control” purposes unless they have individualized suspicion of wrongdoing. The Court distinguished that opinion today, holding that

Specifically, the checkpoint in Edmond was designed to ferret out drug crimes committed by the motorists themselves. Here, the stop’s primary law enforcement purpose was not to determine whether a vehicle’s occupants were committing a crime, but to ask the occupants, as members of the public, for help in providing information about a crime in all likelihood committed by others.

Perhaps of most concern is the “reasonableness factor” the court uses. The Court said:

Update: Our apologies to all. We forgot to include the link to the article quoted from below. We were offline all day and just received an email telling us about it. The article is in today's Miami Business Review and it's called Not Taken On Faith.

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original post

Are you thinking of applying to become a judge in Florida? Get ready for questions like these:

• "Will you be able to balance your duties as a single mother of twins with your duties as a Broward judge?"

Applicants have also been asked:

• Whether they are active in their church.

• Whether the candidate is a "God-fearing person."

• How they feel about the U.S. Supreme Court's 2003 ruling striking down a Texas law criminalizing homosexual activity.

• How they would feel about having the Ten Commandments posted in their courtroom.

All of the members of the Judicial Nominating Commission were appointed by Jeb Bush.

In an online chat Monday with the Washington Post, Jay Stanley of the ACLU explains why CAPPS II, the Government plan to track airline passengers, is unwise and unfair:

We oppose the so-called CAPPS II program for several reasons. It will be a tremendous invasion of our privacy. It will put the government in the unprecedented position of rating every American who flies on whether they are "trusted" or not. And it will not make us safer.

....Experience has shown that trying to catch wrongdoers by investigating everyone is a poor way to stop them. The US should focus on improving its intelligence on the ground, and improving physical security. Most of the additional security that we've gained since 9/11 is probably due to improved security at the gate, to locking cockpit doors, to air marshals, and to the fact that in the next hijacking, no one on the plane is going to sit back and wait to land in Cuba. The marginal improvement in security brought by this vast, unwieldy, intrusive system will not be worth it.

Here's a name to remember: Acxiom

Say hello to the new group political blog The American Street, brainchild of Kevin Hayden of Reach M High Cowboy. Guest bloggers include David Neiwert of Orcinus, skippy the bush kangaroo, Dave Johnson of Seeing the Forest, Luis Toro of Colorado Luis, Mary Ratcliff of Pacific Views, the left coaster and others. We'll be an occasional contributor, our first post is here--in which we agree with those who say the burden of proof in a death penalty case should be raised to beyond all doubt.

Also say hello to left i on the news and angry bear.

The ACLU is is siding with Rush Limbaugh:

The American Civil Liberties Union took sides with Rush Limbaugh on Monday by complaining that Florida investigators violated the conservative radio host's rights when they seized his medical records. The odd coupling of the civil liberties group and the broadcaster beloved for bashing came in a criminal probe of Limbaugh's admitted use of prescription painkillers, in which authorities in Palm Beach County used a search warrant to seize files from his doctors.

In a friend-of-the-court petition to Florida's Fourth District Court of Appeal, the ACLU said investigators violated Limbaugh's constitutional right to privacy when they took the records in a raid rather than notifying Limbaugh and using a subpoena, which would have given Limbaugh the right to object before the seizure.

The ACLU and Rush are right on this one. Here is the ACLU's press release.

The Supreme Court has refused to consider a case involving the Bush Administration's secrecy of more than 700 cases in which Arabs or Muslims were picked up after 9/11--none of whom were charged with a terrorist crime.

Most were eventually deported for immigration violations. The government refused to disclose whom it held and why. The court's action, taken without comment, was a victory for the Bush administration. Civil liberties and media organizations had sought access to the names and other basic information about the detainees.

The case is Center for National Security Studies v. Justice Department, 03-472.