Howard Dean is surging in New Hampshire in the latest Marist poll. 39% for Dean, 23 for Kerry. Clark slips to 4%. Voters there think Dean has the best chance of all Democrats of beating Bush. But Gephardt is leading Dean in Iowa.

Dean has released his first ad attacking Dick Gephardt over Gephardt's support for Bush's war.

Using photos of Gephardt in the White House Rose Garden with Bush, Dean questions Gephardt's work with the Bush administration in drafting the congressional resolution authorizing the president to use force in Iraq, and Gephardt's support for the $87 billion for rebuilding Iraq and Afghanistan.

"October 2002, Dick Gephardt agrees to co-author the Iraq war resolution -- giving George Bush the authority to go to war," the ad says. "A week later, with Gephardt's support, it passes Congress. Then, last month, Dick Gephardt votes to spend $87 billion more on Iraq." "Howard Dean has a different view," the ad says. Dean then says, "I opposed the war in Iraq, and I'm against spending another $87 billion there."

Clark is going to spend almost $1 million a week on ads from now until January 27. Will that get him back in the race? As much as we like Clark, it seems doubtful.

Maryland's Republican Governor, Robert L. Erlich, Jr. is putting into action his long-held vision of putting rehabilitation over punishment.

The major part of Mr. Ehrlich's plan is allocating $2 million to hire 210 staffers to rehabilitate prisoners before their release. "It is giving people who are coming back to the community a choice not to re-offend." he said. "Basically, they [will] have a choice now."

Erlich is not alone. 25 states have replaced mandatory minimum sentences with programs that substitute treatment, rehabilitation or early-release over long prison sentences.

Kansas is one of these states:

Kansas legislators, for example, needed to build $15 million worth of prisons but instead passed a law that sends some nonviolent drug offenders to treatment instead of jail. John Vratil, a Republican and chairman of the state Senate Judiciary Committee, said the change could reduce Kansas' prison population by about 15 percent.

Alabama, Iowa, Missouri, Wisconsin and Washington also have passed similar legislation for first-time or nonviolent criminals.

Who's driving the shift away from long sentences? Believe it or not, it's the Republicans.

The shift away from "get tough" sentencing has been led mostly by Republican lawmakers who are faced with a state budget crisis and are unwilling to increase taxes to build more prisons.

We hope the Democratic congressional and presidential candidates across the country take notice and add this to their platforms.

Anthony Pellicano, the high-profile LA private investigator, entered prison today to begin serving a likely 27 to 33 month term for possession of illegal explosives. He also got married this weekend--for the fifth time.

Pellicano volunteered to begin serving his sentence today. He pleaded guilty in October to two felony counts of possessing hand grenades and C-4 explosives. He is not scheduled to be sentenced until January.

Meanwhile, the FBI probe continues into whether major Hollywood lawyers who retained Pellicano knew he was illegally wiretapping people on their behalf. Pellicano has refused to cooperate in the probe.

"My clients and the lawyers who hired me are completely innocent," Pellicano said in a telephone interview Sunday night — his first public comment on the investigation since its scope became known. Pellicano's attorney, Donald Re, took part in the interview.

"They did nothing wrong," Pellicano said, referring to his clients and employers. "The government should leave them alone. And me, I'm going to take this punishment like a man. I will not participate in any way, shape or form with this investigation."

Background on the story is here and here.

Showtime will air the controversial movie about Ronald Reagan that CBS pulled on November 30.

As Nathan Newman says, "If you need to order Showtime, click here."

Via Patriot Watch:

"The Senate Committee on the Judiciary will hold a hearing on Tuesday, November 18, 2003, at 9:30 a.m. in Room 226 of the Senate Dirksen Office Building on “America after 9/11: Freedom Preserved or Freedom Lost?”

The Republican strategy is to make this a hearing about and only about the ACLU and the PATRIOT Act. Republicans will attempt to limit the scope of the hearing to the PATRIOT Act and avoid other post 9-11 administration policies like the incommunicado detention of enemy combatants (including U.S. citizens) without charge, trial, or access to counsel, and the abuse of post 9-11 detainees.

The Center for American Progress in their Progress Report suggests the following questions for tomorrow's hearing:

The judges on the Second Circuit sounded skeptical of the validity of the Bush Administration's policies on "enemy combatants" and indefinite detentions.

Judge Rosemary Pooler, who presided over the two-hour, 15-minute hearing [said]

"As terrible as 9/11 was, it didn't repeal the Constitution."

The Government at one point argued that "the congressional resolution authorizing the use of military force to respond to the September 11 attacks extended to U.S. citizens on American soil to prevent further attacks or for intelligence gathering."

In response, Judge Barrington Parker said,

If the court upheld that argument, "We would be affecting a sea change in the constitutional life of this country."

Bottom line according to the CNN article:

A federal appeals court panel on Monday cast doubt over whether President Bush has the authority to designate an American citizen an "enemy combatant" and detain him indefinitely without criminal charges.

Newsday also says the Court put the Government on the defensive.

Update: Analysis by Daily MoJo and Philadelphia appellate attorney Peter Goldberger, in the comments section.

Terrific editorial by Newsday....

No American president should have the absolute power to imprison people at will, even when the nation is at war.

Read the whole thing.

Update: The comments on this thread are at 99, and due to bandwidth, 100 is our self-imposed limit. Thanks to all of you for weighing in. Comments are now closed.

Today's sneak Congressional attack--a little known provision has been inserted into a fast-moving bill that allows the FBI to collect juveniles' DNA. The bill has passed the house and is expected to pass the Senate early in 2004. Contact your Senators now and tell them you don't want the Government to have your child's genetic codes.

DNA testing should be reserved for those who have committed crimes.

The American Civil Liberties Union counters that DNA is different because it contains genetic information that should be kept private. Taking a person's DNA before he is even convicted, said ACLU Washington lobbyist Jesselyn McCurdy, "removes the presumption of innocence."

Advocates for juveniles say that giving teenagers what amounts to a "permanent criminal genetic record" defeats the purpose of the juvenile justice system by treating the youths as adults.

"It runs counter to the tenets of juvenile court, which is toward confidentiality and giving a child another opportunity to turn around," said Nancy Gannon of the Coalition for Juvenile Justice, which advises state governments on justice policy.

Ezra Klein of Not Geniuses is moving over to Jesse Taylor's Pandagon. We think it's a great move for both of them.

Update: Someone hacked into the "Blogs We Like" section on the right and substituted repetitive listings of something called "Laura's blog". We don't know Laura and we've deleted the blogroll until we can get it fixed. Hopefully by tonight. Has this happened to anyone else?

We're back from two days of ABA meetings in Washington on sentencing reform and anti-terror legislation. The Justice Department refused to participate in the Kennedy Commission hearings held at George Washington Law School for three days this past week, but it did send a representative to our meeting Sunday morning to speak up for its request for increased anti-terror legislation. We didn't agree with the Justice Department's arguments, and in fact, they made us even more resolute that Congress needs to pass the SAFE Act to roll back some of the Patriot Act's powers, but we did appreciate the fact that they participated in the discussion.

We have to be vigilant and make sure that the Executive Branch doesn't usurp the power of the Judiciary. The New York Times addresses this Monday in an editorial on the Guantanamo detainees, The Court and Guantánamo:

When the Supreme Court rules next year, it should vindicate two important legal principles. First of all, it must send a forceful message that the detainees have a right to challenge their confinement before a tribunal. Given the absolute control the United States exerts over the Guantánamo naval base, and the terms of the 1903 lease giving it that control, it is disingenuous for the government to argue that the detainees are outside its jurisdiction.

It is no less important that the court make clear to the administration that it is not above the law when it wages its war on terrorism. Rather than arguing that its detainee policies are lawful, the administration boldly asserted that the courts had no right to review them. The Supreme Court will undoubtedly be hearing similar arguments in the days ahead. Now is the time to say clearly that the court, not the president, has the final word on what the Constitution permits.

Unlike other crimes, when a sex offender has done his time, he doesn't always regain his liberty. 16 states now have laws that allow civil commitment of sex offenders after their prison sentences are up.

These laws have been upheld in the past--the states argue the men are too dangerous to be released--but new criticism is emerging because the laws often punish mentally ill offenders for their thoughts rather than their actions.

In yearly review hearings, the men are judged by their sexual tastes and fantasies — or what psychiatrists suppose to be their fantasies — as well as their performance on psychological tests, their attitudes toward authority and their willingness to acknowledge their crimes and disorders.

Many are rapists or child molesters — and the fear that they might commit more of the same crimes is grave. In 1998 New Jersey — like other states reacting to murders by sex offenders with previous convictions — authorized the commitment of anyone who has served time for a sex crime and is found to have a "mental abnormality or personality disorder" that makes him likely to commit another crime. These men are to be given treatment — chiefly group therapy — until they are judged no longer dangerous.

Five years later, only a handful have been released, and critics of the commitment process — psychiatrists, civil-liberties advocates and even some early supporters of the law — are concerned that it is merely an exercise rigged to keep sex offenders locked up for a lifetime.

Most of this long article focuses on New Jersey's Violent Sexual Predator Law, since New York Times reporters were granted access hearings there. Yet they report that much of the system is still shrouded in secrecy.

Critics say the hearings deny offenders both the legal protections of a criminal prosecution and the sound medical grounding of a regular civil commitment case. They say the diagnoses — framed by lawmakers rather than doctors — are so vague they could apply to millions of people. By rummaging through a patient's past and psyche, they say, the state can always find a reason to keep him confined.

Several people who have worked in the system told of prosecutors' shopping for psychiatric opinions and of exaggerated, even erroneous testimony and public defenders too overwhelmed to organize a proper defense.

We find the process by which these offenders are kept in indefinite custody very chilling--from the way they are notified they will be transferred to another facility for testing just days before their scheduled release, to the testing procedures and to the small percentage who ultimately gain release.

And in related news, a new Justice Department study shows that sex offenders are less likely to reoffend than other incarcerated offenders:

Louisiana has its first female Governor-- Kathleen Blanco--and she's a Democrat!