Atrios is posting from his undisclosed location in Europe today, go read.

Bad Attitudes speaks our mind on Ashcroft's push for more death penalty prosecutions.

Don't miss The Dark Side of Innocence in Sunday's New York Times Magazine.

The Bush Administration is pressing the Supreme Court to accept review in an important alien detention case.

The Sixth Circuit, following Supreme Court precedent in Zadvydas v. Davis, ruled that the Government cannot indefinitely detain excludable or deportable aliens whose countries do not want them back.

The current case is Snyder v. Rosales-Garcia. The Government argues that the ruling in Zadvydas does not apply to aliens already in this country, as opposed to aliens trying to enter the U.S.

The Sixth Circuit, en banc, disagreed,

...finding that "excludable aliens -- like all aliens -- are clearly protected by the due process clauses of the Fifth and Fourteenth Amendments."

Judge Karen Nelson Moore, writing for a 6-3 majority, added, "If excludable aliens were not protected by even the substantive component of constitutional due process, as the government appears to argue, we do not see why the United States could not torture or summarily execute them."

We agree with the Sixth Circuit. We have always appreciated the Court's ruling in Zadvydas that:

... the Due Process Clause applies to all "persons" within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.

The Supreme Court will decide Thursday whether to accept review of the case.

Welcome to the autocracy in Congress. This is infuriating. Read how the Republicans under the leadership of Chair David Dreier (R-CA) are using the House Rules Committee to block Democrats from having their legislation come to a vote:

Dreier now rules the House Rules Committee with an iron fist and routinely prevents Democrats from getting votes on their more liberal ideas.

On many high-profile issues, Dreier, whose committee decides the rules for each debate, has refused to allow Democrats an opportunity to offer a substitute amendment on the House floor. He has infuriated Democrats by denying them votes on their plans for everything from unemployment insurance to tax cuts.

This may sound like inside baseball, but it has a huge impact on what bills pass the House and become laws....By preventing Democrats from offering amendments, Republicans virtually eliminate the possibility of the House passing legislation not endorsed or written by GOP leaders.

Rep. Steny H. Hoyer (D-Md.) said the GOP's "autocratic" rule is thwarting the will of the estimated 140 million people represented by the 206 Democrats in Congress.

Vermont Senator Patrick Leahy has made a proposal to President Bush: consult democratic leaders before nominating a replacement for any retiring Supreme Court Justice. The President would be wise to agree--otherwise, as Leahy warns, there will be a political war.

"Though the landscape ahead is sown with the potential for controversy and contention over vacancies that may arise on the court, contention is avoidable, and consensus should be our goal," Mr. Leahy wrote on Wednesday. "I would hope your objective will not be to send the Senate nominees so polarizing that their confirmations are eked out in narrow margins."

Consultation with the minority party in the Senate would not be a first.

Mr. Leahy and Mr. Schumer noted that the chairman of the committee, Senator Orrin G. Hatch, Republican of Utah, had taken some credit for advising President Bill Clinton in his selection of Ruth Bader Ginsburg and Stephen G. Breyer for the Supreme Court.

Bush has not responded. Nor is he likely to. We hope his arrogance results in all Democrats getting so angry they demand their senators filibuster all his candidates, not just the most objectionable ones. This is a democracy, not a dictatorship, and we should not allow Bush unlimited rein to pack our courts with right wing ideologues.

Supreme Court Justices serve for decades. Anyone Bush appoints will be shaping the law not just for our lifetimes, but for those of our children. Make yourself heard on this issue. It's really that important. Demand Bush respond to Leahy's reasonable request for consultation with Democratic leaders and consensus-building prior to committing to a Supreme Court replacement Justice.

Call your senators --bookmark the number--1-800-839-5276

Free at last....what a travesty that they were in jail at all. The 13 remaining Tulia, Texas defendants are being released on bail Monday. Their ordeal is not over. They still need either to have their convictions overturned or receive pardons.

While everyone else is applauding the three branches of Texas Government for working together to release the 13 on bail, we'd like to take a moment to applaud their several dedicated, pro bono defense counsel that worked years to see their clients released, particularly Jeff Blackburn:

In the last two years, Jeff Blackburn, a solo practitioner in Amarillo, Texas, has been working with the National Association for the Advancement of Colored People Legal Defense Fund and a handful of other lawyers to get some of the accused off and others, already convicted, out of jail. It's taken more than 2,000 hours and about $39,000 of his own money.

Senior Reason editor Jacob Sullum writes in Sunday's San Francisco Chronicle about drug users who are productive, functional members of society . Sullum is also the author of the new book Saying Yes: In Defense of Drug Use ," which he describes as being about "people who lead responsible, productive, fulfilling lives despite their politically incorrect choice of intoxicants."

Retired Nato chief Wesley Clark is considering a presidential run. Here are some of his positions:

He has objected to the use of truth serum on the Guantanamo Bay detainees:

William Webster, a former CIA and FBI director, said he would support the use of "truth" drugs like sodium pentothol to get information from detainees at Guantanamo Bay, Cuba, although retired U.S. Army Gen. Wesley Clark said the idea was "highly objectionable" and warned along with other officials that it would result in other countries acting similarly toward captured U.S. soldiers....."We've spent the last 60 years building up international law according to what Harry Truman said, that right makes might, not might makes right," Clark said.(The St. Petersburg Times, April 26, 2002)

From a Salon interview with Clark, Wesley Clark Unplugged (3/23/03):

One of the things about the war on terror that I am disturbed about is that we've essentially suspended habeas corpus. Which is something that's only been done once in American history and then only for a very brief period.

When I go back and think about the atmosphere in which the PATRIOT Act was passed, it begs for a reconsideration and review. And it should be done. Law enforcement agencies will always chafe at any restriction whatsoever when they're in the business of trying to get their job done. But in practice we've always balanced the need for law enforcement with our own protection of our constitutional rights and that's a balance that will need to be reviewed.

Daily Kos: "He's solid on national security, well-spoken, presidential, pro-choice, pro-gun, pro-affirmative action, anti-PATRIOT Act, and believes strongly that the government should provide for the less fortunate amongst us."

Here's Clark's Washington Monthly article, An Army of One?

Here's a slice of Clark's background:

A West Point graduate and former Rhodes Scholar, Clark saw combat in the Vietnam War as commander of a mechanized infantry company. He won the Silver Star, the Bronze Star (twice), the Purple Heart and other decorations for his heroism in combat. Clark served as Commander-in-Chief of US Southern Command ("SOUTHCOM") in 1996-97 and NATO Supreme Allied Commander in 1997-2000 (during the NATO bombing campaign against Serbia). He retired from the Army in 2000 and subsequently wrote a book on military-foreign policy entitled Waging Modern War (2001). Clark currently resides in DC, but considers Arkansas to be his home.

For more on Clark, visit the DraftClark website.

Don't count him out, particularly for the VP slot.

After we wrote our post this morning about the article in the Times-Argus asserting that Howard Dean had expanded his support for the death penalty and was aligned with Bush on the issue, his campaign clarified his position on his weblog, Blog for America. You can read his response here. Highlights include:

Governor Dean opposes the death penalty except in very limited circumstances involving extreme and heinous crimes.

...When he became governor in 1991, Howard Dean opposed the death penalty in all cases.

...In 1997, after a number of brutal crimes involving the murder of children, including the abduction, rape and murder of 12-year old Polly Klass in California, Dean spoke publicly about his reconsideration of his position on the death penalty.... After careful deliberation, Dean concluded that the death penalty may be an appropriate punishment in limited circumstances such as the murder of a child or a police officer.

...Finally, as a result of the mass murder that took place on September 11, 2001, he concluded that the death penalty should also be available in cases of terrorists who take human life.

...A Dean administration would administer the death penalty carefully and sparingly, unlike the Bush/Ashcroft Justice Department. Dean would instruct his Attorney General on day one to evaluate the federal death penalty system to ensure that it is applied fairly and reliably. He would also sign into law pending legislation, authored by Senator Leahy, that will strengthen protections against unjust imposition of the death penalty. (emphasis supplied)

Ok, that's a baby step, but a good start. We want to to see the Innocence Protection Act passed badly enough that we'll take it and put Gov. Dean back in our plus column. We do hope Governor Dean remains open to considering a moratorium, pending the outcome of the fairness evaluation he promises to have his Attorney General commence immediately upon taking office. As a society, we should not tolerate even one innocent person being put to death, when a moratorium an option.

[comments now closed]

Count us among those who have been skeptical that Howard Dean is really a liberal. We've always been concerned about his support for the death penalty. Now, according to the Times-Argus, Dean is expanding his support for the death penalty and aligning himself closer to Bush on the issue.

In his 11 years as Vermont’s governor, his position on capital punishment “evolved” from staunch opposition to limited support, Dean acknowledges. Now, on the stump for the Democratic nomination for president, Dean has extended his endorsement of a death sentence for those who kill children or police officers to include those who commit terrorist acts.

“As governor, I came to believe that the death penalty would be a just punishment for certain, especially heinous crimes, such as the murder of a child or the murder of a police officer. The events of September 11 convinced me that terrorists also deserve the ultimate punishment,” Dean said in a statement released by his campaign last week.

Compare that to his stance when he first became Governor of Vermont:

In the infancy of his governorship, Dean was an outspoken opponent of the death penalty.

“I don’t support the death penalty for two reasons. One, you might have the wrong guy, and two, the state is like a parent. Parents who smoke cigarettes can’t really tell their children not to smoke and be taken seriously. If a state tells you not to murder people, a state shouldn’t be in the business of taking people’s lives,” he said in 1992.

His weakening began in 1997.

In defending his switch, Dean attributed some of the impetus to a weak judicial system that allowed murderers to go free, and in some cases kill again. “Until life without parole means life without parole, the public is not safe without a death penalty,” Dean said in 1997. “Until we have a judicial system that can adequately protect us, the only thing that will is the death penalty.”

Ron Weich, whom we admire tremendously, is Dean's policy advisor but is utterly unconvincing in his attempt to spin the change of heart by attributing it to the difference in cases facing a Governor and a President--and in this comment:

“But (Dean) would not apply the death penalty in the kind of wanton and reckless manner Attorney General Ashcroft has used.”

What does that mean? That Dean would still seek the death penalty for say, the juvenile sniper suspect, he just wouldn't forum shop for the venue most likely to return the death verdict? Or that Dean would only have sought the death penalty for the older sniper suspect?

Dean needs to be questioned in much more depth on this issue. While we don't hold out much hope that any of the major presidential candidates will oppose the death penalty, we at least want one that will consider a moratorium until reforms are instituted that would reduce the possibility of sending an innocent person to death and eliminate the arbitrariness and racial disparity inherent in the current system.

Dean is no liberal in our book if he can't jump on board. Ron, have another talk with him.

Update: On January 19, 2003, The New York Times reported:

Four of the seven Democrats who have already joined the presidential race or are likely to do so have longstanding views supporting the death penalty and have not changed their positions because of the circumstances in Illinois. Along with Mr. Lieberman, the group includes Senator John Edwards of North Carolina, Senator Bob Graham of Florida and Representative Richard A. Gephardt of Missouri. Of the seven, only the Rev. Al Sharpton opposes the death penalty, as he has done for years. Senator John Kerry of Massachusetts supports it in the case of convicted terrorists, and Howard Dean, the former governor of Vermont, supports it for murderers of children or police officers.

Update: Governor Dean denies the newspaper's charge that he is aligned with Bush on the death penalty. At the suggestion of Patrick of Electrolite, we edited the title of this post. Fair is fair.

With broad death penalty reform legislation having passed both houses of the Illinois state legislature and virtually no opposition from law enforcment, Governor Rod Blagojevich is likely to sign the reform bill into law. Once passed in Illiniois, it is expected to be a model for similar legislation introduced in other states.

The legislation seeks to reshape every aspect of the legal process, from police lineups to reviews of death penalty cases by the Illinois Supreme Court. It also is viewed as a model for other states seeking to reform their capital punishment systems.

Lineups, both in person and photo arrays, would be ''blind'' and no longer be conducted in groups. Beginning with a pilot project, the cops conducting the lineups would not know who the suspect is, and they would have to tell the witness that the real suspect may not be in the lineup. Also, instead of a group of potential suspects being paraded into a lineup, reviews would be conducted individually, giving a witness time to to study each person.

Another provision would require a hearing on jailhouse informers to verify their credibility at special hearings before they are allowed to testify at trial. And a jailhouse informer could no longer be the only witness in a capital case.
Police would be required to turn over their field notes, allowing defense attorneys an oppportunity to check whether evidence discovered early in the investigation may point toward a suspect's innocence.

There would be greater access to DNA testing, an IQ of 75 would be set for establishing who is mentally retarded and thus ineligible for the death penalty, and the number of crimes subject to the death penalty would be limited.

Also, the state's Supreme Court would no longer be required to find fundamental errors in a case to overturn a death sentence, and police found to have lied at trial would face decertification, a move opposed by police unions.

After a pilot project, police and prosecutors would have two years to put in place the necessary equipment and safeguards to videotape or audiotape virtually every murder confession.

The legislation is a start and does not include all necessary reforms, but those included are most welcome and long overdue. But for former Illinois Governor George Ryan taking the bull by the horns and declaring a moratorium on the death penalty while a Commission he created studied the state's broken death penalty system, ultimately concluding that 85 reforms were necessary, this legislation would not have become a reality this soon.

A big thanks are due to former Governor Ryan and the Illinois Commission of Capital Punishment --you can access their report here.

[comments now closed]

A new study shows juries reject the death penalty in most federal cases.

Legal experts say the trend might have a number of explanations, like overreaching by prosecutors and some jurors' growing unease with the death penalty.

Update: We just notice two quotes in the article worth repeating as they come from former federal prosecutors. Jamie Orenstein was one of the prosecutors in the McVeigh and Nichols trials:

Alan Vinegrad, a former United States attorney in Brooklyn, said the recent statistics represented something larger. "It reflects that the tide is turning in this country with regard to attitudes about the death penalty," Mr. Vinegrad said. "There has been so much publicity about wrongfully convicted defendants on death row that people sitting on juries are reluctant to impose the ultimate sanction."

Mr. Orenstein, the former Justice Department official, said federal prosecutors should be more cautious. "It's a dangerous game the Department of Justice is playing here," he said, adding that the failed capital prosecutions were a poor use of resources and damaged prosecutors' credibility.

"We've got to assume," he said, "that if some juries are balking at death in overcharged cases, others are balking at conviction."

Welcome back to Mad Kane's Dubya's Dayly Diary , and her new song, 'Democrats' Anthem: Election 2004':

(to be sung to "Blowin' In The Wind")

How many wars must a President start
Without any reason at all?
How much ill will must a President cause
Until he at last takes the fall?
How many wars must a President launch
Because he is greedy for oil?
The answer my friend is dump Republicans.
The answer is dump Republicans.

Here's the rest. Mad Kane's blog is here.