The Second Circuit has decided that prisoners have no right to privacy in their prison cells.

"Finding that a "convict has no expectation of privacy in his prison cell," despite the fact that the search is unrelated to the legitimate needs of institutional security, the 2nd Circuit upheld the dismissal of a civil rights action brought by George Willis in Willis v. Artuz, 00-176. "

The leading Supreme Court case on the issue is Hudson v. Palmer, 468 U.S. 517 (1984) which ruled "society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell ... "

Yet, after that, the Second Circuit ruled for a prisoner in United States v. Cohen, 796 F. 2d 20 (2d Cir. 1986).

So how did the Second Circuit distinguish the Willis case to rule against him? On the grounds that Cohen was a pre-trial detainee and Willis had already been convicted. So, the ruling is a pre-trial detainee still has a right of privacy in his prison cell while a convicted prisoner does not.

Sure, we know all about the legal differences between those who are convicted and those merely charged with a crime. But in this context, we think it is splitting hairs and a distinction without a difference.

Lawyers for James Ujaama, being held on a material witness warrant in Virginia in connection with the Sept. 11 attacks fear the feds are misusing the process to obtain an indictment against him.

"I have a very grave concern," his attorney in Denver, Daniel Sears said. "I question whether they really want his testimony and whether this is just a vehicle to detain him, pending a determination whether they're going to return criminal charges against him."

"Ujaama is due in a federal courtroom in Alexandria today, where a federal magistrate judge is scheduled to review his detention status. Ujaama appeared before a U.S. magistrate in Denver three times before he was moved in the first week of August to Virginia. "

The outcome of the hearing in Denver was secret. However, the article today states that Sears agreed to allow Ujaama to be moved to Virginia.

"Sears regrets that he let authorities relocate his client.

"We had assurances that the return on the material witness warrant would have been accomplished over two weeks ago," said Sears, referring to Ujaama's anticipated testimony.

"I can tell you that if I knew then what I know now, with respect to what has happened to James, we would not have been so ready to accede to the Eastern District of Virginia. The environment for his release was much better, here."

The mother of a slain teen, used by the police as a police informant will receive a $ 1 million settlement. Chad MacDonald, 17, was beaten and killed by drug dealers in 1998 after working as a police informer in Orange County.

"City officials in Brea agreed on Monday to the settlement, the largest by a police department in Orange County history, about a month after a state appeals court reinstated a lawsuit by the family. The killing led to a law limiting the use of teenage informers."

So often a defendant who is convicted of a serious, high profile crime is made out to be a monster in the press. Many times they are quite different. We think Michael Skakel, who will be sentenced today for the killing of Martha Moxley 27 years ago when they were both 15, is such a case.

In letters filed with the Court, Skakel's family and friends described his life and gave him their support.

According to the letters:

Rushton Skakel, Michael's father and the brother of Ethel Kennedy, "beat him so often that he often slept in his closet. Once his father fired a rifle at him while hunting."

A recovering alcholic himself for the past 17 years, Skakel worked in a homeless shelter in the Bronx after meeting Mother Teresa. "He also has spoken to youths about substance abuse and formed a nonprofit group with the former manager of the band Aerosmith that traveled to Russia to educate and promote Alcoholics Anonymous."

"While working for AmeriCares, Skakel visited the Dominican Republican after a devastating hurricane helping deliver emergency medical supplies."

"A friend who is a teacher in New York described an incident in which Skakel quietly fixed the roof of a poor woman's house."

His cousin Bobby Kennedy, Jr. wrote among other things, "...Skakel attends Mass daily, carries a rosary and is one of the most spiritual people he has ever met"

He is a model father whose three year old son adores him.

Skakel was 15 at the time Martha Moxley was murdered. He underwent drug treatment, sobered up, and has had no criminal history as an adult. What's the point of throwing away his life and his son's life now? How has punishment come to be synonomous with revenge and retribution? The former is a legitimate sentencing goal in our criminal justice system, the latter two are not.

Had Michael Skakel been charged in 1977 when the murder occurred, he would have been tried in juvenile court and if convicted, received a sentence of no more than two years. That's how juveniles were treated back then in Connecticut.

Had Skakel not been related to the Kennedys, he probably never would have been charged and we doubt he would have been convicted. Be that as it may, he was charged and convicted and today will be sentenced.

We suspect the Judge will max Skakel out with 25 to life, instead of sentencing him to the lesser 10 to 15 year term his lawyers are asking for. If he does, he'll be wrong. That will be revenge, not justice.

The Justice Policy Institute has released a new study that finds a dramatic rise in black male inmates since 1980.

"The number of black men in jail or prison has grown fivefold in the past 20 years, to the point where more black men are behind bars than are enrolled in colleges or universities..."

"The increase in the black male prison population coincides with the prison construction boom that began 1980. At that time, three times more black men were enrolled in institutions of higher learning than behind bars, the study said. "

A new Justice Department proposal would bar convicted immigrants' from returning to the U.S.

Immigration rights advocates are outraged:

"I think it's another example of the attorney general trying to disregard Supreme Court decisions with which he disagrees, and he promised in his confirmation hearing to follow the law of the Supreme Court," said Lucas Guttentag, American Civil Liberties Union's immigration rights project director. "

See our in-depth discussion of the rule last week.

The regulations are open for public comment through mid-October. After that, the Justice Department can chage them and decide whether to make them permanent.

Even more information is available at AILA (American Immigration Lawyers' Ass'n.)

Police arrested nine current and former McIntosh College students on drug charges Tuesday after a raid on a college dormitory that the police chief called "an open-air drug market like we've never seen in the city."

The investigation focused on McIntosh's culinary school. Police want the U.S. Attorney to try and close the dormitory down using the federal "crack house statute."

"Some students said police used excessive force Tuesday. Reporters and news photographers were present before the raid started and students were thrown to the ground and arrested, they said."

And the best comment of the day on the bust?

"Why do you need M-14s to arrest kids with weed?" asked 18-year-old Cecilia Self."

Texas is about to execute another juvenile offender.

We complained about this yesterday but we're giving it a bump because it tells you just how bad Texas is and why we shouldn't be executing juvenile offenders.

The Criminal Justice Policy Foundation (CJPF) today published the nation's first compilation of state-by-state and federal information on executive clemency for prisoners at its Web site .

From their press release:

"There are about 1.3 million incarcerated persons now serving state sentences and 120,000 sentenced federal prisoners. Tens of thousands of persons are serving a sentence longer than is just, because of mandatory minimum sentencing or other injustices.

These problems have been dramatized by Bob Herbert of The New York Times this summer in six columns describing unjust drug prosecutions in Tulia, Texas, and the inordinately long sentences that resulted. Many plead guilty to avoid decades-long sentences. Those who plead guilty are almost never able to appeal their sentences -- even if they are, in fact, innocent. Receiving an excessively long sentence is not a basis for an appeal. For such prisoners, often the only remedy is executive clemency.

CJPF provides information on the procedure to obtain clemency and commutation of sentence in the 50 states, the District of Columbia, Puerto Rico, as well as the federal procedure. It gives prisoners, their attorneys and their families the information they need to apply for an early release from a state or federal prison sentence. Sample application forms are provided for some states and the federal government."

Sounds to us like a great resource.

There is a new article by Center for Constitutional Rights attorney and Georgetown University Law Center professor David Cole, entitled "Enemy Aliens." It is available for download free from the SSRN Electronic Paper Collection:

"Enemy Aliens"
Stanford Law Review, Vol. 54, P. 953, 2002

BY: DAVID D. COLE, Georgetown University Law Center

Here is the Abstract:

"In the wake of September 11, many have argued that the new sense of vulnerability that we all feel calls for a recalibration of the balance between liberty and security. In fact, however, much of what our government has done in the war on terrorism has not asked American citizens to make the difficult choice of deciding which of their liberties they are willing to sacrifice for increased security. Instead, the government has taken the politically easier route of selectively sacrificing the rights of aliens, and especially Arab and Muslim aliens, in the name of furthering national security. This is an easy way to avoid the difficult trade-offs because it allows the citizenry to have their rights and their security, too.

This article chronicles the government's response to September 11 to make the case that we have relied upon such a double standard. The article then argues that the double standard we have employed is wrong as a constitutional and normative matter, counterproductive in terms of increasing security, and likely to pave the way for future incursions on citizens' rights. As a normative matter, I contend that while it is not irrational to focus our investigation on certain Arabs and Muslims, given the makeup of Al Qaeda, it is not legitimate to deny to foreign citizens the constitutional rights of due process and political freedoms, as these rights do not turn on citizenship, but on personhood. As a security matter, I argue that the double standards we have relied upon undermine the legitimacy of the war on terrorism, and decrease the likelihood that we will get meaningful cooperation from the targeted communities as we search for potential threats.

Finally, as a historical matter, I show that what we do to immigrants today often creates precedents that can be extended to citizens tomorrow. The example alluded to in the article's title is the Enemy Alien Act of 1798, which authorizes the jailing of any citizen of a country with which we are at war, based solely on their nationality, and irrespective of their loyalty or conduct. Iin World War II, the underlying rationale for this law was extended to U.S. citizens of Japanese descent, through the prism of race, and ultimately 70,000 of the 110,000 detainees were U.S. citizens. Thus, I maintain that in assessing whether and to what extent liberty should be sacrificed in the name of security, we should avoid the easy way out of targeting vulnerable minorities, and should adopt only those measures that we would tolerate if applied equally to all. "

We've noticed some bloggers recently who write that they are looking for work. So, as a public service announcement, we're posting the following job opening notice received via e-mail today from the National Association of Criminal Defense Lawyers:

RECRUITMENT NOTICE

Executive Director
Office of Public Defense Services
Salem, Oregon

GENERAL INFORMATION

The Public Defense Services Commission (PDSC) is seeking an executive with demonstrated leadership and management skills to serve as the Executive Director of the Office of Public Defense Services (OPDS). The Executive Director is appointed by, reports to, and serves at the pleasure of the PDSC. The annual salary range for this position is $69,156 - $101,844, plus benefits.

DUTIES AND RESPONSIBILITIES

The Executive Director serves as the Chief Executive and Financial Officer of the statewide public defense program. The Executive Director ensures the provision of competent and cost-effective legal representation in state court proceedings where mandated by the federal and state constitutions and state law for persons who are financially eligible for such representation.

The application deadline is September 23, 2002. The complete position description and application materials may be found at www.opd.state.or.us

Does the attorney-client privilege survive the death of the client? We think it does. But a public defender in Ohio was recently ordered jailed for taking that position.

Now the case is before an appellate court in Ohio.

"Three state appeals court judges peppered a defense attorney and a prosecutor Monday about a Montgomery County judge’s order to send a federal public defender to jail for refusing to reveal what her client, now dead, may have told her in confidence about what happened to 9-year-old Erica Baker."

The trial court order to jail the defender has been stayed pending a final decision by the appeals court. Both sides have indicated they would appeal to the Ohio Supreme Court if the appeals court rules against them.