Lawyers in New York are paid $25 an hour for out of court time and $40 an hour for in court time to represent the poor. It shouldn't take a rocket scientist to figure out that this is less than a break even cost for most competent private counsel. In criminal cases with more than one defendant, the public defender (or legal aid counsel) can only represent one of them due to conflict of interest issues. Private counsel must be appointed to represent the others, as well as any client for whom the public defender would be disqualified.

For years, lawyers have tried to raise the fee levels. No success. Governor Pataki (another reason to vote for Cuomo) promised fee increases and later backed out due to what he termed "budget constraints."

So the lawyers sued. Trial started today.

The Sixth Amendment to the U.S. Constitution guarantees effective assistance of counsel to every person accused of crime. That simply isn't possible at the low rates New York is paying. (It is also way below the current federal rate for indigent defense lawyers --now $90 an hour for both in and out of court time--with recommendations on the table to raise it to $112 an hour.) These lawyers do not receive reimbursement for overhead expenses--rent, secretary, telephone, etc. Yet they remain supremely dedicated to their mission--representing those whom society deems the lowest among us--those who are poor, disenfranchised and charged with the most heinous of crimes.

We should be saluting these lawyers and financially compensating them for their work and their dedication. The criminal justice system would crumble without them.

In a series of articles, the New York Times found that "representation given to the poor in New York City routinely fell short of the minimum standards recommended by legal experts, in part because of a shortage of qualified private lawyers willing to work for the current rates."

Yesterday, two former judges and the director of the program providing legal representation for juveniles testified " that the lack of lawyers to represent the poor caused serious disruption to the most basic of legal proceedings."

We're rooting for the New York County Lawyers' Association to win the lawsuit. You should too.

"Is executing guilty murderers -- as opposed to incarcerating them without possibility of -- so vital a goal that we must accept the execution of the innocent from time to time in order to achieve it?"

That's the crux of the issue in Roger Parloff's article today "The New Abolitionism" in American Lawyer.

Parloff says that "anyone who is unwilling to answer yes to that terrible question should, as a matter of logic, be opposed to capital punishment."

Which reminds us of Al Gore. In February, 2000, he was interviewed in the San Francisco Bay Guardian. The article was called "15 Minutes of Al." When asked about his support of the death penalty in light of the rising number of innocents on death row, Gore said he is so strongly in support of the death penalty that he's willing to accept a few wrongful executions. Here's a portion of the interview.

"BG: What do you think about the Republican governor of Illinois calling a moratorium on the death penalty because there has been so much evidence that innocent people are on death row?

AG: Well, I support the death penalty.

BG: Well, so does he.

AG: I understand, and I also understand that the high-profile cases that have put a new spotlight on the error in capital convictions have put this issue in a new light. In Illinois, I don't want to make a judgment on what the circumstances are because I don't have the expertise. Nationally, I would not be in favor of a moratorium. The "Hurricane" notwithstanding.

BG: Are there people on death row elsewhere, or federal death row, who are innocent? Isn't that something we should be worried about?

AG: I would hope not. But I'll tell you this: I think that any honest and candid supporter of the death penalty has to acknowledge that that support comes in spite of the fact that there will inevitably be some mistakes. And that's a harsh concession to make, but I think it's the only honest concession to make, and it should spur us to have appreciation for habeas corpus, for the procedural safeguards for the accused, and for the fairness that's a part of the American judicial system and to resist efforts to take away the procedural safeguards. " (emphasis supplied by us)

We repeat this not to bash Gore, but in hope that someone reading this will bring it to his attention so that he can amend his remarks if his opinions have changed during the past two and a half years.

If his views are the same, then we will keep searching for the presidential candidate who comes out for a moratorium on the death penalty. And no, it isn't Nader either. He told us he opposed the death penalty, and we believe him, but at the end of his campaign we asked for and didn't receive his support for a federal moratorium on the death penalty like the one instituted in Illinois.

War is not something we talk about much here. But we do have our opinions on it and are grateful for those who do write about it. In some cases, the writings help us to form and frame our opinions--in other instances, they cement them.

The blogs we like today are Daily Kos on why we should not go to war with Iraq. "If the US attacks Iraq with no justification, it will become an obnoxious, dangerous, belligerant bully. "

We particularly like the comment added to his post by Eric M., "Actually the Democrats could probably slow down the war simply by replacing the euphemistic "military action" with "invasion."

We will adopt his suggestion. The same way years ago we stopped referring to the "Christian Right" and instead nailed them for who they are, the "Radical Right." The religious label is misleading and provides them with unwarranted legitimacy.

Also today, Eric Alterman posted reader comments to his blog from yesterday on the analogy between the Vietnam War and the proposed current invasion of Iraq. Here are the two that resonated most with us:

"Just remember war is a old man’s game where young men die." and

"My son will not go to fight in this... war. If I have to give up everything to protect him then I will do so."

Us too.

The Idaho Supreme Court today threw out a death sentence citing the recent Supreme Court ruling that juries must make the factual findings necessary to support it. Idaho juries have never had a say in determining the death penalty.

Also, in California Tuesday, a Senate committee approved a bill that would allow inmates to prove they are retarded to avoid the death penalty.

The Tuscon Citizen has some harsh words for Arizona's hastily passed quick-fix bill and calls for a moratorium on the death penalty until it can be figured out correctly.

The American Bar Association descends on Washington, D.C., on Thursday for six days, and with it come thousands of lawyers ready to debate and discuss. And according to the Associated Press, there will be strong criticism of President Bush and his terrorism policies.

September 11, civil liberties, military tribunals, treatment of detainees, enemy combatants and related issues will be front and center. There will be plenty on corporate fraud as well.

We'll be reporting live from the Criminal Justice Section meetings this weekend.

Terry Nichols is facing trial in Oklahoma for the civilian deaths caused by the bombing of the Oklahoma City Federal Building. If convicted, he faces the death penalty.

The federal trial was justly moved from Oklahoma to Denver as one hardly could expect to empanel a fair jury in Oklahoma. Nichols was tried for the killing of 8 federal workers and for the bombing. He had a separate trial from McVeigh. McVeigh proceeded to trial first. McVeigh received the death penalty. Nichols, whose lawyers successfully presented him as an aider and abettor, and who, like Moussaoui, was not present at the time of the bombing, ended up with a life sentence.

Not satisfied with the life sentence, the DA in Oklahoma City had Nichols indicted in state court in Oklahoma. He is charged with killing the non-federal workers and facing the death penalty. His case has been delayed many times.

Today the Judge was supposed to once again set a preliminary hearing. Instead, he imposed another delay.

Seems that the folks in Oklahoma want Nichols tried again, but they don't want to pay for it. His court-appointed lawyer has not been paid in over 11 months, hasn't made a house payment in four months, and his staff has deserted him.

The judge told lawyer Brian Hermanson to take it up with the Oklahoma Supreme Court and the county court fund, and then scheduled an Aug. 23 hearing at which he will decide whether to set a preliminary hearing or not.

Nichols is facing the death penalty in a state court. He is an American citizen. Why is Oklahoma refusing to pay for a lawyer for him?

To re-try Nichols after a federal jury has found him guilty and after he has been sentenced to life without, seems like vengence to us. What is the point? The man will come out of prison in a box either way. Under no scenario will he see freedom again, return to a normal life or be in a position to hurt someone.

Our criminal justice system is not about vengence. Or even retribution. The acceptable purposes in deciding on a sentence are: rehabilitation, punishment and deterrence. Life in prison is tough enough and certainly no picnic. It does not speak well of Oklahoma officials, or of Oklahomans themselves, to countenance such a revengeful re-trial.

Terry Nichols is indigent. He cannot afford a lawyer. If he is facing criminal charges, he must be provided one at the state's expense. If Oklahomans don't want to pay for a defense for Nichols, they have but one option: Stop the quest for revenge and dismiss the case so Nichols can continue serving his life sentence in the ultra-max security prison in Florence, CO. If they aren't willing to do that, then they should pay up--providing adequate lawyers' fees and fees for experts and whatever else Nichols' lawyers need to effectively present a defense.

The Government spent 82 million dollars investigating and prosecuting McVeigh and Nichols in federal court. The defense spent a small percentage of that amount.

Oklahoma will have a big black eye if they try to send this man to the death house without adequately compensating his lawyers. But then they already have one in our view for inisisting on a state re-trial out of a vengeful desire to see Nichols dead.

The Marijuana Policy Project's initiative campaign to legalize marijuana possession and use in Nevada has secured the endorsement of the Nevada Conference of Police and Sheriffs. With more than 3,000 members statewide, NCOPS is the largest police association in Nevada.

"As a former law-enforcement officer, I know that a simple marijuana arrest takes me off the street for half my shift," said NCOPS President Andy Anderson today as he announced his organization's ground-breaking endorsement. "Passage of Question 9 will ensure that more cops are on the streets to protect our citizens from violent crime and the threat of terrorism."

It's great when we can log onto a blogger's page and actually learn something and be moved by it at the same time. That happened to us today.

Eric Alterman reminds us that tomorrow, Aug. 7, is the 38th anniversary of the passage of the ”Gulf of Tonkin Resolution.” The resolution engendered our full-scale entry into the Vietnam War. Yet there is new information from the LBJ library tapes that the incident that sparked the resolution never happened.

Alterman has been writing a book on presidential lying, due out next year, and has extensively researched the resolution and the cost of the Vietnam War to our country in terms of dollars, lives, and societal divisiveness.

Eric's sobering remarks are particularly deserving of reflection now as Congress and the President appear on the brink of causing us to enter another war.

Thanks, Eric.

Yesterday we railed against New York's draconian Rockefeller drug laws. We are delighted to learn that New York gubernatorial candidate Andrew Cuomo yesterday urged their repeal and proposed a new sentencing plan for drug offenders.

Cuomo correctly branded the current laws as "probably the most personal, the most human manifestation" of Albany's failings."

Critics of the current laws charge that "first-time, nonviolent offenders' [are] serving 15 years or more in prison when many would be better served by drug treatment." And as with most mandatory minimum sentencing schemes, judicial discretion is removed and low-level offenders often get more time than kingpins.

Governor Pataki has paid lip service to the problem in his efforts to win the hispanic vote. His proposed plan fell far short of what is needed, and the democrats wisely wouldn't settle for it.

Blacks and Hispanics account for more than 90 percent of the 19,000 people in New York prisons for drug offenses.

We hope this brings it home for Cuomo.

First California blocked the media from interviewing inmates. Now, they want to keep out legal workers.

New rules have been promulgated that are detailed in Another brick in the wall in Monday's San Francisco Chronicle.

The Department of Correction's proposed rules can be read online here. The public has until 5 p.m. on Friday to comment on the proposed rules.

If you live in California, and have any connection to the prisoners there, get out your pens. As Author Braz aptly points out, "With the media and now legal workers increasingly barred from California's prisons, one has to wonder if there's anyone left to monitor what goes on inside. "

Three dozen more terrorist suspects were flown yesterday to Guantanamo Bay, filling the permanent cells there to near capacity, the Pentagon has said.

Coming from a variety of countries, the men are being held as "enemy combatants" so they can be interrogated about planned terrorist attacks.

Closer to home, as the New York Times opines today, it's time to end the secret detentions.

While the Government has released the names of those being held who are charged with federal crimes, it has yet to disclose the names of those being held on immigration charges or as material witnesses.

In ruling last week that the Government must disclose the names of detainees, Judge Kessler noted that secret arrests of this type are "odious to a democratic society."

We agree with the Times: "The Justice Department should comply with her order. If it appeals, her decision should be affirmed."

Instapundit today takes on the Washington Post for their editorial criticizing Ashcroft's reversal of DOJ policy on the Second Amendment.

Professor Reynolds correctly points out that "prosecution for illegally carrying guns doesn't violate the right to keep and bear arms anyway. Scholarship on the Second Amendment is almost completely in agreement on this point."

The Professor also correctly observes that state constitutional protections are greater than their federal counterpart.

As a bit of a refresher for those who have been concentrating on other issues lately, ourselves included,

The Second Amendment to the United States Constitution provides:

"A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear Arms shall not be infringed."

Compare that with article II, section 13 of the Colorado Constitution:

“The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.”

According to the Colorado Supreme Court (cite below)

The Colorado Constitution, like the constitution of many other states, expressly guarantees the right to bear arms for purposes of self-defense and the defense of property. Four states have right to bear arms provisions which are identical to Colorado's. (Mississippi, Missouri, Montana, Oklahoma). Miss. Const. art. III, § 12; Mo. Const. art. I, § 23; Mont. Const. art. III, § 12; and Okla. Const. art. II, § 26.

The constitutions of twenty other states expressly guarantee individuals the right to bear arms for purposes of self-defense: Ala. Const. art. I, § 26; Ariz. Const. art. II, § 26; Conn. Const. art. I, § 15; Del. Const. art. I, § 20; Fla. Const. art. I, § 8; Ind. Const. art. I, § 32; Ky. Const. § I, para. 7; Mich. Const. art. I, § 6; Neb. Const. art. I, § 1; N.H. Const. pt. 1, art. 2a; N.D. Const. art. I, § 1; Or. Const. art. I, § 27; Pa. Const. art. I, § 21; S.D. Const. art. VI, § 24; Tex. Const. art. I, § 23; Utah Const. art. I, § 6; Vt. Const. ch. 1, art. 16; Wash. Const. art I, § 24; W.Va. Const. art. III, § 22; and Wyo. Const. art. 1, § 24.

Constitutions of several other states have been construed merely to guarantee the collective or "state's right" to bear arms for the maintenance of the militia See, e.g., Alaska Const. art. I, § 19; Haw. Const. art. I, § 15; La. Const. art. I, § 8; N.C. Const. art. I, § 24; S.C. Const. art. I, § 26. See also Ark. Const. art. II, § 5 (right to bear arms for "common defense"); Mass. Const. pt. 1 art. XVII (same).

Iowa, Maryland, Minnesota, New Jersey, and Wisconsin have no constitutional provisions specifically guaranteeing the right to bear arms.

Source: Robertson v. City and County of Denver, 874 P.2d 325 at 328, fn. 6 (Colo. Supreme Court, 1994)

As to Tennessee, the Colorado Court placed Art. 1 Section 26 of its State Constitution in the "collective" list. But we've been informed by Instapundit that Tennessee has always treated the right as individual, and this year declared the right to be "fundamental" and as strong as the state constitutional privacy right that protects abortion choice in Tennessee to a greater degree than Roe. Professor Reynolds should know, he has written at least one law review article on it, "Symposium: "The Law of the Land": Tennessee Constitutional Law: the Right to Keep and Bear Arms under the Tennessee Constitution: a Case Study in Civic Republican Thought", 61 Tenn. L. Rev. 647.

Please let us know (you can use the comments feature) if the Colorado court has mischaracterized your state constitutional provisions on the issue, and we'll make note.