Justice Criticizes Lengthy Sentences:

Justice Anthony M. Kennedy of the Supreme Court said today that prison terms were too long and that he favored ending mandatory minimum sentences for some federal crimes.

"Our resources are misspent, our punishments too severe, our sentences too long," Justice Kennedy said in remarks prepared for delivery to the annual meeting of the American Bar Association. "I can accept neither the necessity nor the wisdom of federal mandatory minimum sentences," he said. "In too many cases, mandatory minimum sentences are unwise or unjust."

Justice Kennedy's criticism puts him at odds with Attorney General John Ashcroft, who wants prosecutors to monitor which judges impose more lenient sentences than federal guidelines recommend. Such oversight, critics say, could limit judicial independence.

We're off to the ABA Criminal Justice Section Council meeting --being held in conjunction with the annual ABA meeting--in San Francisco. We're especially looking forward to the presentation and debate Saturday morning on military tribunal rules. Stay tuned, as we'll report here on any significant developments. But posting may be lighter than usual throughout the weekend. As always, we recommend you visit the excellent blogs and news sources listed on the right.

Update: It's now 4pm and we're still at the Denver airport. The plane was delayed then cancelled due to a broken winshield. We won't leave now until 6pm...but we found some good company to compare justice notes with while we're waiting...CNN's legal analyst Jeff Toobin, freshly back from Eagle and on his way to the ABA meeting in San Francisco, is on the same flight.

Happy Second Blogiversary (ywctp) to Instapundit.com. From his latest post critical of Attorney General Ashcroft.

NICE TO SEE that the Justice Department has plenty of resources for the terror war and can even spare the time and money for, ahem, lower-priority cases like this one:

"Federal prosecutors said today they have charged a North Hollywood wholesaler of adult films with violating federal obscenity laws as the government steps up a campaign against the major distributors of adult entertainment."

"The U.S. Justice Department said that its 10-count indictment against Extreme Associates and the husband-and-wife team that owns it is part of a renewed enforcement of federal obscenity laws after more than a decade in which they were rarely imposed."

Obviously, there's no need for a budget increase this year. Coming soon: a crackdown on interstate parking-ticket scofflaws, and a multi-agent, years-long investigation into New Orleans bordellos. Oh, wait. . . .

Glenn finishes with this prediction which is music to our ears.....

Ashcroft is becoming a liability. I doubt he'll survive past this term....

The trend continues. The latest Pew Poll shows that Bush's approval rating continues to decline:

Bush's overall rating dropped from 58 percent last month to 53 percent while 37 percent of respondents said they disapproved of the way he was handling his job, according to a Pew Research Center survey of 2,528 Americans.

The disapproval percentage is the highest negative rating the president has received since taking office nearly three years ago, the poll organizers said.

A solid majority, 57% of those polled, say that the economy is the President's most pressing concern, not terrorism.

Greg Sargent of The New York Observer reports on the most recent brief filed on behalf of Jose Padilla in the Second Circuit Court of Appeals:

A bipartisan group of prominent New York lawyers, former federal judges and former government officials has launched a fierce attack on the Bush administration’s conduct in the war on terror, charging that the detention of suspected terrorist Jose Padilla is unconstitutional.

The group, which includes a number of former high-ranking officials in Republican and Democratic Presidential administrations, made the accusation in an amicus brief filed in federal court in New York on July 30. The brief concerns the legal plight of Mr. Padilla, whose case has attracted international attention since he was arrested in Chicago for his alleged role in an Al Qaeda plot to detonate a radioactive "dirty bomb" on U.S. soil.

This is an extraordinary case," Harold R. Tyler Jr., a former federal judge and longtime Republican who was brought in by President Gerald Ford to clean up the Justice Department after Watergate, told The Observer. "We have in this country something called habeas corpus, which guarantees that a person who is held incommunicado has to be produced in a court. The people in the government seem to have forgotten that. They should charge this man if they’ve got something against him. And they should give him right to counsel. These are all constitutional rights."

Mr. Tyler, who as deputy attorney general under Mr. Ford was also an important mentor to a young prosecutor named Rudolph Giuliani in the mid-1970’s, continued: "I have been a longtime Republican, but I’m a disenchanted Republican in this case."

The brief assails the Bush administration’s handling of the Padilla case in blunt terms, describing it as "one of the gravest threats to the rule of law, and to the liberty our Constitution enshrines, that this nation has ever faced." A copy of the brief, which was filed in the U.S. Court of Appeals for the Second Circuit, was obtained by The Observer.

The brief is unusual in that it includes many prominent Republicans among its authors:

Now that Arnold is in the race for California Governor, it's only natural that people want to know his positions on issues. The Washington Post says they are a mystery--we're not so sure. He's pro-choice. He's described as becoming less of a traditional Republican since marrying Maria Shriver. He said the GOP drive to impeach Clinton made him ashamed to be a Republican.

Last year, he led the campaign in California for Proposition 49, which calls for about a half-billion dollars in state spending on after-school programs.

....After riots here a decade ago, Schwarzenegger began pumping millions of dollars into a nonprofit organization called Inner-City Games, which offers recreational opportunities to disadvantaged youth. With his financial backing, the program has spread to 15 cities across the country.

Schwarzenegger also has been a major financial contributor to the Simon Wiesenthal Center, a prominent Jewish institution in Los Angeles.

Arnold is sounding pretty good to us. This isn't an endorsement, and we still oppose the recall. But we do like what we see so far.

Update: Here's a sobering thought though.... Bush campaigning for Arnold? That would definitely cost Arnold our good wishes.

Executions are becoming so common these days, most are not big news. Some are not even news. All of us opposed to the death penalty must continue to pay attention. Here's a portion of an excellent news account of the execution yesterday of Tommy Jerry Fortenberry in Alabama who spent the last 17 years of his life on Death Row. He was 20 years old at the time of the murders for which he was executed.

"No last words" Fortenberry said seconds before he was administered the first of three different drugs that comprised a lethal injection that took his life in the death chamber at Holman prison. Fortenberry, 39, was pronounced dead at 6:16 p.m.

As the execution began at 6 p.m., Fortenberry lay mostly still on a white gurney in the stark white execution chamber. He said nothing else, but motioned twice to his spiritual adviser, Ben Sherrod of Kairos Prison Ministry, and another witness, showing them the international hand sign for "I love you."

Fortenberry nodded several times to the witnesses, but mostly lay still as the color slowly drained from his face. After a few minutes, his eyes closed and his chin quivered several times. Finally, he was still. There were no sounds in the death chamber.

"Punishment is not in the dying. It's in the 19 years of hell he's lived through," Sherrod said quietly as the curtain on the window separating the witness room from the death chamber was pulled shut, indicating that Fortenberry was dead.

The Horse is back this week, with an expose of right-wing books that appear on best seller lists--check it out. If you doubt them, go to the New York Times list of best-selling Hardcover Nonfiction. Check out Book Number 4 this week. Catch the symbol (+) next at the end of the book's description. Then, scroll down to bottom where the symbol, referred to as a "dagger," is explained:

A dagger (+) indicates that some bookstores report receiving bulk orders.

So it's not Jane Q. Public buying up the books, one by one, hungry for the content. It's right-wing activist groups and speakers' bureaus buying en masse and then offering the books free to those who ask for it. Even Drudge on occasion has offered the book for free . Here's another such ad, from NewsMax. Here's one from Human Events.

Credit goes to Sidney Blumenthal for speaking out about this (scroll down,) and to the Times for making the distinction.

According to Mr. Blumenthal, evidence of the "vast right-wing conspiracy" once proclaimed by Hillary Clinton can be found on The New York Times Book Review's best-seller list. "What I think the key question is for AC and all these other right-wing writers is, why is there a dagger in the New York Times best-seller list next to their books?" Mr. Blumenthal said in reference to the small symbol that appears next to Treason, which rocketed to the top of the Times list. According to the fine print at the bottom of the Times list, the dagger denotes "that some bookstores report receiving bulk orders."

"That means that someone is buying their book in bulk to put them on the best-seller list. These are bogus best-sellers," Mr. Blumenthal told The Transom. "I want to know why [AC] won't come clean and explain which rich right-wing sugar daddies are putting her on the best-seller list."

So who's buying up all these books?

"I don't know. I don't even know if she knows, but I know she's benefiting, and I know that all the other right-wing authors whose books have no merit in any way, on substance or as fact, are simply being put on there through a well-organized campaign involving vast resources of money of wealthy Republicans," Mr. Blumenthal said. "AC is a phony best-seller."

You can read Ms. C's response at the links above--we don't intend to reprint it.

We've had Attorney General Ashcroft's new sentencing guidelines for prosecutors for over a week, and were wondering when they'd become news. The answer is now. Here's Ashcroft, issuing new rules to his his prosecutors directing them to report departures in sentencing decisions, and to oppose them in many instances. The title of the article is misleading in our opinion--Ashcroft isn't seeking uniformity, he's seeking control.

We would have put up a fuss in court last Friday if, based on Ashcroft's new directive, the prosecutor had opposed our motion for departure on grounds that our client's criminal history category over-represented the seriousness of his past misconduct. To the prosecutor's credit, he agreed with us and Probation that the departure was warranted. So did the Judge and our client got the reduction from Category II to Category I, saving him 6 months on the sentence.

Nonetheless, we have serious concerns that Ascroft's directives will further erode the independence of the Judiciary. Also, if prosecutors are directed to oppose reductions, how credible will they be on sentencing issues? After all, they have no choice now but to oppose departures in many instances.

Here's more from the Associated Press, which says more appeals of sentencing decisions likely will result from this directive.

Ryan King, research associate at The Sentencing Project, a nonprofit group favoring alternatives to incarceration, said the effect of the amendment and Ashcroft memo is to further concentrate power in the hands of prosecutors in the criminal justice system.

"It's telling judges from the get-go, 'if you want to depart ... that you will be put on a list and you will be watched,'" King said. "We're no longer judging a case on the merits."

Get ready, set, change the channel.....Attorney General Ashcroft is embarking on a tour to plug the Victory Act:

Attorney General John Ashcroft is hitting the road to rally support for the Victory Act, which would further expand his powers to go after Al Qaeda and narcoterrorists, the Daily News has learned. Ashcroft will starting pushing the Vital Interdiction of Criminal Terrorist Organizations Act later this month in a 10-day, 20-state Victory tour that includes a stop in New York.

The new bill would:

• Clamp down on Arab hawala transactions, where cash exchanged in an honor system has been funneled to terrorists.

• Get business records without a court order in terrorism probes and delay notification.

• Track wireless communications with a roving warrant.

• Increase sentences for drug kingpins to 40 years in prison and $4 million in fines.

The bill will be introduced by Sen. Orrin Hatch (R-UT).

[Thanks to Patriot Watch for the link and heads-up] We'll have plenty more to say about this over the coming weeks.

Atrios gets it right. The first thing to do is reject the recall. If the recall succeeds, the vote should go to Lt. Governor Cruz Bustamente who has announced he will join the race.

On Arnold, we like him. We give him an "A" for his delivery and demeanor during his press conference yesterday (we didn't see the Jay Leno show so we can't comment on that.) We also like his wife, Maria Shriver, and her politics. So we won't be upset if Arnold wins. But that doesn't change the basics, which is the recall is wrong, California's recall rules need to be changed--and Gray Davis should be retained as California Governor until the next election.

Update: Brian Fleming has withdrawn from the race.

This is the real news coming out of the Kobe Bryant hearing yesterday. The Pitkin County Sheriff's Office (which includes Aspen) will investigate alleged law enforcement leaks in the case. Bob Braudis, long-time sheriff of Pitkin county, is an honest and beloved sheriff. He's our favorite sheriff in America. Even our clients love Bob Braudis. He's honest and fair and runs a top-notch office. There won't be a whitewash here.

The DA's office, defense lawyers and the Judge all agreed on Braudis's office. That should tell you something about his reputation. Also, the Judge was a deputy sheriff in Pitkin before rising to the bench.

We think the Judge did an excellent job yesterday. He didn't insist on reading the charge aloud to Kobe. He allowed Kobe's lawyer to waive that formality, which meant Kobe was treated the same as everyone else. Had he done otherwise, the scene would have become the equivalent of the perp walk of the new century, played over and over again on television, until everyone's memory was indelibly inscribed with the image of Kobe and the charge of sexual assault. Charges are accusations only, not evidence, but who would remember that after seeing that segment of the hearing replayed hundreds of times.

Back to the leaking of case details, which the Judge addressed both during the hearing and in an interview after the hearing.