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Via Sentencing Law and Policy: U.S. District Court Jed Rakoff gave a speech at Harvard Law School last Friday about mass incarceration in the U.S. and the responsibilities of lawyers and judges. He says judges need to be more outspoken in their criticism. Bloomberg BNA has reprinted it in its entirety. For those who want the short version, here is a portion of the last paragraph.
In many respects, the people of the United States can be proud of the progress we have made over the past half-century in promoting racial equality. More haltingly, we have also made some progress in our treatment of the poor and disadvantaged. But the big, glaring exception to both these improvements is how we treat those guilty of crimes. Basically, we treat them like dirt. And while this treatment is mandated by the legislature, it is we judges who mete it out. Unless we judges make more effort to speak out against this inhumanity, how can we call ourselves instruments of justice?
Judge Rakoff is not suggesting the strides we have made towards racial equality extend to the criminal justice system. To the contrary, he writes [More...]
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There is no public option in the Affordable Care Act. On its own merits, as Wendell Potter explains, that's a shame. But there is another reason why no public option in ACA is a bad thing - if ACA included a public option, the challenge to tax credits and subsidies on the exchange, now before the the Supreme Court in King v. Burwell, would never have existed.
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The Denver Post today has a detailed profile of Senior District Court Judge John Kane, who is well-known for challenging authority.
As a boy growing up in Depression-era Denver,John Kane learned to identify with those on the fringes of society, the powerless, those who were forced to sit in the balcony at movie theaters. He also learned to challenge authority — a skill he embraces with gusto as a federal judge.
Judge Kane was our first public defender in 1964. He served as a Deputy Director in the Peace Corps. He was appointed to the federal bench by President Carter in 1977. He's been an outspoken critic of the war on drugs for decades and of the draconian child p*rn sentencing guidelines. Most recently, he's been in the news for his decisive and much heralded rulings in inmate Jamal Hunter's abuse lawsuit against Denver sheriffs at the Denver County Jail. [More...]
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The opinion holds that Michigan voters had the right to amend their constitution to prohibit public universities from considering race in admissions decisions.
Justices Sotomayor wrote the 58 page dissent, joined in by Justice Ginsburg. The Chicago Tribune discusses the dissent here. [More...]
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Via Marty Lederman, the government's opening brief (PDF) in Hobby Lobby and the plaintiff's opening brief (PDF) in Conestoga. The government is the petitioner in Hobby Lobby and the Conestoga plaintiffs are the petitioners in their case.
Bone up as we will be discussing these issues during the week.
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Nebraska senior Federal Judge Richard Kopf, whose excellent blog Hercules and the Umpire I've written about a few times here and here, has decided to pack up his keyboard and quit blogging. I'm really sorry to see him go. His blog was immensely readable, sometimes serious, sometimes humorous. He has not been pressured to give up the blog, he's doing it voluntarily.
I'm sure many blogs would be willing to host him if he felt like writing a post or two, TalkLeft among them. I wouldn't care that he's not a "leftist," as he says.
Judge Kopf isn't taking the blog down, he's just not writing any more. If you haven't read him yet, go over and take a look. I think the judiciary would be much more transparent if more judges blogged. We, the public, tend to think of federal judges as being isolated in their ivory towers. It's nice to see a few that show their personality off the bench, and provide us with valuable legal insights while doing so.
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The Federal Judicial Conference issued a press release today supporting the Justice Safety Valve Act of 2013 which would give federal judges discretion not to impose a mandatory minimum sentence.
Acting on the recommendation of its Criminal Law Committee, the Conference agreed to seek legislation, such as the Justice Safety Valve Act of 2013 (S. 619), which is designed to restore judges’ sentencing discretion and avoid the costs associated with mandatory minimum sentences.
The judges are also seeking legislation that would early termination of supervision for inmates who have been granted compassionate release.
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Via Hercules and the Umpire, the blog of Nebraska Senior District Court Judge Richard Kopf, 87 of the nation's 94 Chief U.S. District Court Judges have written a joint letter to Congress warning of the impending disaster to befall our Judiciary as the result of flat funding followed by sequester cuts.
Judge Kopf reprints the letter (you can read the original here), and adds this comment:
As a former Chief District Judge, I know that you can almost never get 87 Chief District Judges to agree about when the sun comes up. The fact that 87 of them wrote the foregoing letter to Congress ought to make clear that the federal district courts are inches away from disaster. Congress is on the brink of intentionally wrecking the federal trial courts. Will sanity prevail?
Thank you Judge Kopf.
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"The judiciary is confronting an unprecedented financial crisis that could seriously compromise the Constitutional mission of the United States courts," the letter states. "We believe our supplemental request meets the threshold for receiving an emergency designation."
Interesting inclusion on the cost of defending Dzokhar Tsarnaev and other threat cases in New York: [More....]
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The Supreme Court today ruled in Missouri v. McNeely (opinion here) that the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.
The majority opinion was written by Justice Sotomayor. There were two concurring and one dissenting opinions.
While the court didn't say a warrant was needed, it made clear officers shouldn't assume one is not needed. Scotus Blog explains: [More...]
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The Supreme Court has taken a step to keep the 4th Amendment from going to the dogs. It ruled today that police may not use the fruits of a warrantless dog search at the front door to a residence as probable cause for a search warrant. The case is Jardines v. Florida and the opinion, written by Justice Scalia, is here.
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Andrew Cohen at The Atlantic has an excellent article on the impact of the sequester on the federal judiciary. Already there are layoffs and furloughs at federal defenders' offices and courts are reducing staff. Law enforcement is also taking a hit.
The Federal Times reports 21,000 court employees could be affected.
U.S. marshals, who furnish courthouse security, and federal prosecutors face furloughs of up to 14 days by the end of September.
There are some exemptions: "Like members of Congress, judges cannot be furloughed. Also exempted are law clerks and other “chambers” staff employees."
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The Supreme Court, in a 5-4 decision written by Justice Alito, today ruled civil rights groups and lawyers representing Guantanamo detainees lacked standing to challenge the 1998 FISA Amendment that allowed their overseas conversations and e-mails to be intercepted. The case is Clapper v. Amnesty International, the opinion is here.
Split 5-4 on ideological lines, with conservatives backing the government and the liberal wing in the minority, the country's highest court said none of the three categories, including human rights groups Amnesty International and Human Rights Watch have legal standing to sue because they could not show they had suffered any injury.
The ACLU, which filed the lawsuit, says: [More...]
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Justice Elena Kagan said the Florida court had gone too far, and suggested that proper training and certification of the dog — rather than how it has performed in the field — might be enough for law enforcement’s purposes.
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Will the Supreme Court keep the 4th Amendment from going to the dogs?
The Supreme Court held two hours of oral argument today on the constitutionality of using drug-sniffing dogs at private homes, and the reliability of the dogs. Background here and at Scotus Blog here. Wired reports here, and the LA Times here.[More...]
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