In Why Innocent People Confess , Michael Kinsley explores a connection between plea bargaining and false confessions.

"The emphasis on capital crimes is misleading in a couple of ways, though. Crimes such as murder and rape are amenable to reversal by DNA testing, but there is no reason to assume that wrongful convictions are more common in DNA-friendly crimes than in others. In fact, there is good reason to assume the opposite."

"Murder and rape convictions, especially those with a prospect of capital punishment, generally follow a full-dress trial with all its elaborate rights and protections for the defendant. A false confession under these circumstances is highly unusual and highly suggestive that something improper went on at the police station."

Kinsley says that "for every one criminal conviction that comes after a trial, 19 other cases are settled by plea bargain.... If you're the suspect, sometimes this means agreeing with the prosecutor that you will confess to jaywalking when you're really guilty of armed robbery. Sometimes, though, it means confessing to armed robbery when you're not guilty of anything at all."

Kinsley explains the history of plea bargaining:

"As our official system of justice became larded with more and more protections for the accused, actually going through the process of catching, prosecuting and convicting a criminal the official way became impossibly burdensome. So the government offered the accused a deal: You get a lighter sentence if you save us the trouble of a trial. Or, to put it in a more sinister way: You get a heavier sentence if you insist on asserting your constitutional rights to a trial, to confront your accusers, to privacy from searches without probable cause, to avoid incriminating yourself, etc."

Kinsley compares plea bargaining to an insurance policy: "Plea bargaining is a way of trading the risk of 20 years to life for the certainty of five to seven. But by creating this choice, and ratcheting up the odds to make it nearly irresistible, American justice virtually guarantees that innocent people are being punished."

Kinsley concludes with a look at the Central Park Jogger case and says that unofficial offers of lighter sentences convinced the five youths to confess to the rape which they didn't commit. The catch-22 was that when they went before the board, they got extra time for not confessing to the crime which they didn't commit.

"Constitutional protections like the right against self-incrimination don't apply to hearings, either. You don't have to confess, but extra years of prison are the price if you don't."

Update: The bottom line on plea bargains:

"Everybody knows that the dice are loaded
Everybody rolls with their fingers crossed"

From Leonard Cohen's "Everybody Knows" , also recorded by Don Henley on his Actual Miles album.

Remember Abdallah Higazy? He was the Egyptian student who was falsely accused of possessing an aviation radio in a hotel room overlooking the World Trade Center on Sept. 11. We wrote about Higazy here and here.

Yesterday, Hagazy filed a $20 million lawsuit against an FBI polygraph examiner charging that the FBI agent coerced him into making a false confession by threatening to have the U.S. government contact the Egyptian security services and make his family's life in Egypt a "living hell."

"Higazy, initially detained as a material witness in the terror investigation on Dec. 17, 2001, spent 31 days in solitary confinement. He was freed only after a security guard at the Millennium Hilton Hotel admitted he had lied when he told FBI agents he had found the radio in a locked safe in Higazy's hotel room on the 51st floor. "

"The lie was uncovered when another guest who had been evacuated from the hotel on Sept. 11, an airline pilot, returned to claim his possessions and demanded his radio back. "

Higazy is seeking $10 million in compensatory damages, $10 million in punitive damages, and a public apology.

Canada is moving to decriminalize small amounts of pot. It won't be legal to possess marijuana, but the consequence will be a fine rather than jail. Colorado and many other states have done this for years--e.g., possession of up to an ounce here is a petty offense punishable by a $100 fine.

As Daily Kos points out, the U.S. is miffed.

There is no leniency for hashish or other cannabis-based products in the Canadian proposal. It simply says that for small amounts of pot - including plants cultivated at home - ''fines would be paid without a court appearance and enforcement would not result in a criminal conviction.''

Marijuana is not the gateway drug that anti-drug crusaders have portrayed it to be since the 1930's (Remember the film "Reefer Madness"?) Check out this letter to the editor of the Canadian National Post that states the case for why smoking marijuana should not be a crime. It concludes with:

"Pot decriminalization has long been seen as a liberal cause: Left-wingers have traditionally opposed government efforts to outlaw good times. But conservatives should get on the bandwagon as well. Our marijuana laws represent an entirely unjustified government intrusion into citizens' lives. About 20,000 people are arrested annually on marijuana-related charges. The investigation, arrest, trial and punishment of this small army represents a massive, unjustifiable waste of our tax dollars."

Between the cost of the electronic surveillance the government has foisted upon us with the Patriot Act, the cost of investigating, prosecuting and incarcerating non-violent drug offenders and the expense of initiating an invasion of Iraq, is it any wonder the economy stinks, stocks are down and state and local governments are cutting vital services and programs to balance their budgets?

Let's forego the privacy-instrusions, unhire all those new prosecutors (at $100k plus, per year) who were going to prosecute those caught on tape for routine crimes and all the new FBI agents who were going to spend thousands of hours including overtime listening to our private conversations. Let's stop enforcing our draconian drug laws (we're not naive enough to think changing them is going to happen any time soon, although we'll keep working on it.) Let's skip the preventive assault on the citizens of Iraq. Let's go back to taxing those who can afford to pay. While we're at it, how about the money we're paying to keep detainees who haven't committed a crime in jails under Special Administrative Measures? How much does it cost per prisoner per day for SAM? (It's about $22,000. per year per inmate in jails under normal conditions).

We're no economist, but we are getting alarmed over where the money is going to come from that the Bush Administration is spending on its own agenda in the name of fighting terrorism and homeland security and patriotism. Will we end up like Argentina did last year, broke and defaulting on our obligations? Laugh now, but how can you be sure?

Update: Back to Canada and marijuana, this came in tonight from NORML (National Organization for the Reform of Marijuana Laws):

"[Therefore,] the Committee recommends that [Parliament] establish a comprehensive strategy for decriminalizing the possession and cultivation of not more than 30 grams of cannabis for personal use."

"Under the Committee's decriminalization scheme, persons found with small amounts of pot would be issued a ticket, and ordered to pay a small fine. Marijuana offenders would no longer be subject to arrest or a criminal record under the plan, and fines could be paid without appearing in court."

"NORML Executive Director Keith Stroup endorsed the Committee's recommendation, noting that 12 U.S. states have enacted similar policies. Seventy-two percent of Americans say they would support a similar national decriminalization policy in the United States, according to a recent CNN/Time Magazine poll."

"The American public recognizes that adults who smoke marijuana responsibly are not criminals and they do not want to spend our nation's limited police resources arresting and jailing them," Stroup said. "Canada's impending decision to decriminalize pot is one our federal government will not be able to ignore."

"In an unusual move that keeps a capital murder case on hold, the Texas Court of Criminal Appeals on Wednesday announced it will review whether a camera should be allowed to record jury deliberations in a Harris County death penalty case."

"The step means some legal ruling may be warranted in an unprecedented move by state District Judge Ted Poe to allow PBS' Frontline to record all aspects of 17-year-old Cedric Harrison's capital murder trial in Houston, from jury selection to deliberations."

"Usually the state's court of last resort in criminal cases does not intervene in a trial. The court typically reserves its rulings for appeals after a verdict has been rendered. "

The taping would be for a Frontline show. See our prior post with background on this case and our feelings on cameras in the deliberation room.

Ted Barlow traces Pat Buchanan's holocaust denial roots and wonders how he can be a celebrity journalist.

Is it too simplistic to say that if we spread the word, people will change the channel when he appears on their tv screen, his ratings will plummet and the networks will cease to showcase him, based on economics rather than principles? Or will there always be enough viewers cheering him on, in which case we are stuck with him?

Law Professor Glenn Reynolds ( Instapundit) tackles the issue of the constitutionality of state sodomy laws today in his Fox News Column. He quotes Supreme Court Justice Joseph Story from the 19th century treatise Commentaries on the Constitution and concludes:

"... where laws infringe on important rights like property or "personal liberty," the very "nature of republican and free governments" may offer some restraint, even in the absence of specific constitutional language barring such laws. And this is not because of some fancy new right, but because of longstanding principles that the government should not regulate conduct that causes no harm to others."

The professor also quotes from a Kentucky case that struck down sodomy laws using as an analogy an older case that said the state can't regulate a person's consumption of alchohol:

"The theory of our government is to allow the largest liberty to the individual commensurate with the public safety, or as it has been otherwise expressed, that government is best which governs least. Under our institutions there is no room for that inquisitorial and protective spirit which seeks to regulate the conduct of men in matters in themselves indifferent, and to make them conform to a standard, not of their own choosing, but the choosing of the lawgiver."

"... legislating penal sanctions solely to maintain widely held concepts of morality and aesthetics is a costly enterprise. It sacrifices personal liberty, not because the actor's conduct results in harm to another citizen but only because it is inconsistent with the majoritarian notion of acceptable behavior."

A Georgia court, in striking down a law prohibiting consensual heterosexual sodomy, stated:

"Since, as determined earlier, the only possible purpose for the statute is to regulate the private conduct of consenting adults, the public gains no benefit, and the individual is unduly oppressed by the invasion of the right to privacy. Consequently, we must conclude that the legislation exceeds the permissible bound of the police power."

Based on these and some other cases mentioned by Prof. Reynolds, he posits that the easiest (or most palatable) way for the Supreme Court to reason its way to striking down the sodomy law currently at issue before the Court is not to carve out a new right of privacy, but to rely on the time-tested and well-accepted theory that "limited government power is an American tradition."

The Professor makes a good argument. The Constitution is a living and breathing document that has served us well for over 200 years. Why complicate things by stretching it too far when a ready answer is so close to its core?

Does anyone see a downside to the Professor's argument? Our motto over here at TalkLeft has always been, "Let's not treat the Constitution as a rough draft" --meaning let's not amend it, let's find ways to allow it stretch within its existing parameters. So we think his argument is well-taken.

The ACLU is offering free legal advice to booksellers on how to protect customers' privacy if served with a subpoena or search warrant. Under the 2001 Patriot Act, "the Government can obtain records of a person’s book purchases as part of an intelligence investigation, without evidence that the buyer is suspected of committing a crime."

In a letter to booksellers, the ACLU quoted Supreme Court Justice William O. Douglas during the McCarthy era: "If a customer ‘can be required to disclose what she read yesterday and what she will read tomorrow, fear will take the place of freedom in the libraries, bookstores, and homes of the land.’"

Among the tips contained in the letter:

"Bookstores may consult with ACLU attorneys without charge, and if we decide to represent a bookstore in litigation, there would also be no charge. Please note that although some warrants or subpoenas may contain language that prohibits the bookstore from notifying other persons about the search, these provisions do not prevent a bookstore from consulting with an attorney about how to respond to a subpoena."

"Probably the strongest method of protecting customer privacy is simply not to retain unnecessary records. A subpoena or search warrant cannot force anyone to disclose records that do not exist. For some booksellers, it may be useful to develop systems to delete personal or unnecessary information about customers. Indeed, such a practice might be a selling point for customers who care about their privacy."

For more on this, see the New York Times article, "Librarians Receive Advice on Law and Reader Privacy":

"Concerned about how federal access to their records would undermine readers' privacy, thousands of librarians gathered today around the country to hear televised advice about how to respond to government requests under last year's antiterrorism law."

"Although some of the librarians calling in from among the 250 sites in a national teleconference suggested defiance of the 2001 USA Patriot Act, all the speakers said proper federal requests for data should be dutifully complied with, but only when a proper court order was served and not just because an F.B.I. agent asked for information. "

According to the Justice Department, which finally released some numbers after a request of the Associated Press, of the 765 people detained by the Government after September 11, only six remain in custody.

What's in the numbers?

"Almost 500 of the foreign nationals arrested on immigration charges during the FBI's Sept. 11 probe have been deported to their home countries, officials said. An additional 281 were released in the United States and are free or are awaiting determination of their immigration status, authorities said."

"In addition to the 765 people detained on immigration charges, 134 others were arrested on criminal charges and 99 were convicted, according to the new figures. A separate group of more than 300 were taken into custody in the early months of the campaign by state and local law enforcement agencies, the department said."

What's not in the numbers?

The Justice Department won't say how many people have been held or are still being held on material witness warrants. These arrestees are those the Government says it can detain indefinitely while investigating them for terrorism activity without charging them with a crime. Like Jose Padilla and Yaser Hamdi, and who knows how many others.

"Federal officials, citing grand jury secrecy rules, have refused for 15 months to say how many material witnesses have been taken into custody, or to reveal their names or which courts are supervising the cases."

"A review of such cases by The Washington Post last month found that federal authorities had arrested and jailed at least 44 people as material witnesses in connection with the Sept. 11 probe. "

From the Scotus Quote Box: Comments made Wednesday during oral argument before the Supreme Court in the case about the constitutionality of a Virginia anti-cross burning law.

Is Death Different?

"An en banc 9th U.S. Circuit Court of Appeals was faced Tuesday with deciding whether a recent U.S. Supreme Court case could help potentially hundreds of death row inmates get new sentencing hearings. The 9th Circuit struggled with whether the high court's Ring v. Arizona decision -- which held that juries, and not judges, must decide the aggravating factors leading to a sentence of death -- is a structural or procedural change."

If the change announced in Ring is structural, the defendant will likely get a new hearing. But if the appeals court determines that the ruling is procedural only, he and the death row inmates in other states within the 9th Circuit (Montana, Idaho and Arizona) will likely be denied relief.

As Judge Stephen Reinhardt asked during the argument, "It's not a structural error not to have a jury when you're supposed to?" What would be a structural error if not having a jury is not a structural error? The only other thing I can think of is not having a lawyer or not having a judge."

"...Judge Kim Wardlaw, asked if the fact that this was a case involving life or death made it different from others, where the change might be seen as merely procedural."

Add those questions to the Supreme Court's previous holdings that death is different, and we think the Circuit should decide the change is structural and order new sentencing hearings.

The 9th Circuit is the first to consider this issue since the Supreme Court's ruling in the Ring case. The case is Summerlin v. Stewart, 98-99002.

Friends of Al Gore say he won't run again for President.

"In a notable shift of sentiment, several associates of former Vice President Al Gore said today that they were becoming increasingly convinced that he would not run for president in 2004 and would instead announce in early January that he was stepping aside to allow a new face to challenge President Bush."

And, consider this:

"Further, while Mr. Gore has never been much of a traditional political player, he has, by every account, not made the kind of preparatory telephone calls a candidate for president might typically place in anticipation of an announcement. For example, Donna Brazile, his campaign manager in 2000, said she had not offered him any advice on what he might do, because she had not heard from him in months.

"I haven't reached out to talk to him, because my number is listed," Ms. Brazile said. "I haven't heard from him. I've been talking to Gephardt. I've been talking to Lieberman."

Lisa English over at RuminateThis has a list of the major anti-war protests scheduled for this weekend, and tells us to go over to the activist site United for Peace for details of even more planned events.