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Tuesday, July 6. 2010
The Death Penalty News ("DPN") blog -- which sadly is over-riddled with cookies, popups and a mousetrap, so I do not post its automatic link here, but instead spell it out as deathpenaltynews[dot]blogspot[dot]com -- has a great list of quotes about the death penalty, running from Sister Helen Prejean's spot-on quote below, to Justice Scalia's chilling quote that follows it. Sidetracking the quotes, though -- as addressed further below -- is whether the quotes are misquotes, even if they capture the essence of the speaker's words. I met Sister Prejean at an NACDL-sponsored gathering at the Capitol around 1994. When I went to speak with Sister Prejean after her talk -- asking how to reconcile her message against government-sponsored killing with killing through warfare -- she drew me fully into her sphere both with her spirit and with her taking me by the forearm. She said that we should not let that sidetrack the abolitionist message. Her answer did not satisfy me, but I was still taken by her riveting self. As to Justice Scalia, see my account of my 1988 encounter with Justice Scalia at my law school. DPN quotes Sister Prejean as saying: "The death penalty is a poor persons issue. Always remember that: after all the rhetoric that goes on in the legislative assemblies, in the end, when the deck is cast out, it is the poor who are selected to die in this country." PBS's website quotes the phrases as having been placed in a different order. DPN quotes Justice Scalia as saying: "This is an execution, not surgery. Where does that come from, that you must find the method of execution that causes the least pain?" A Google search reveals that he said the first sentence separately from the second sentence, several paragraphs down during oral argument in Baze v. Rees. Accuracy is critical when advancing a position. At least I can credit DPN for providing a starting point for seeking correct important quotes on the legalized murder that needs to be stopped right now. By Jon Katz, a criminal defense and DWI defense lawyer practicing in Fairfax County, Virginia, Montgomery County, Maryland and beyond. 301-495-7755. http://katzjustice.com.
Wednesday, June 23. 2010
Dear Chief Justice Roberts, and Justices Stevens, Scalia, Kennedy, Thomas and Alito: My office is just a few miles up the street from yours. Before you issue such a First Amendment-shredding opinion as Holder, et al. v. Humanitarian Law Project, et al., 561 U.S. __ (June 21, 2010), please give me a ring for my free input before wreaking such devastating damage to the First Amendment. Under Humanitarian Law Project, the State Department gets nearly unfettered free reign in classifying which organizations are terrorist ones (as if it were as easy to define an organization as terrorist versus an individual person as one, which it is not) and thereby to make it a criminal act even for me or anyone else to teach some of its members how to teach others how to assert such basic rights as to seek redress for grievances before the United Nations, or for me to teach them how to change a lightbulb. Dear Justices Breyer, Ginsburg, and Sotomayor: You all rock and roll for your dissent in Humanitarian Law Project. I am sending you all good karma to continue on a similar path with every decision you make on cert. petitions, stay applications, and cases orally argued before the Court. By Jon Katz, a criminal defense and DWI defense lawyer practicing in Fairfax County, Virginia, Montgomery County, Maryland and beyond. 301-495-7755. http://katzjustice.com.
Tuesday, May 18. 2010
Supreme Court spiral staircase. Yesterday the Supreme Court issued two critical opinions whose importance extend well beyond the specific case facts.
Graham v. Florida, __ U.S. _ (May 17, 2010) , provides further discussion about the application of the Eight Amendment’s prohibition against cruel and unusual punishment, and reverses non-parolable life imprisonment on a non-homicide crime committed while the defendant was a juvenile. Don’t miss Justice Stevens’s brief concurring opinion that asserts: “While [dissenting] JUSTICE THOMAS would apparently not rule out a death sentence for a $50 theft by a 7-year-old … the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.”
U.S. v. Comstock, __ U.S. _ (May 17, 2010) , chillingly reminds us that civil liberties threats do not only come from the Supreme Court’s right wing. In Comstock, the Court’s so-called leftwing of Justices Breyer, Ginsburg, Stevens, and Sotomayor –- joined by Chief Justice Roberts -– reversed the Fourth Circuit (one of the most “law and order” circuits) and upheld a federal law giving the government broad authority to continue to cage prisoners after the expiration of their criminal sentences.
Kudos to Justice Thomas, joined by Justice Scalia (neither of whom I have wanted on the Court, nonetheless) by dissenting and insisting on more brakes on Congressional authority under the Constitution’s Necessary and Proper Clause.
Thanks to concurring Justice Alito (whom I also do not want on the Court), for recognizing that:
The Necessary and Proper Clause does not give Congress carte blanche. Although the term “necessary” does not mean “absolutely necessary” or indispensable, the term requires an “appropriate” link between a power conferred by the Constitution and the law enacted by Congress. See McCulloch v. Maryland, 4 Wheat. 316, 415 (1819). And it is an obligation of this Court to enforce compliance with that limitation. Id., at 423.
In any event, the importance of Comstock goes beyond this particular case to defining the boundaries, or lack thereof, on Congress’s power. Congress by now has immense power –- ripe for terrible abuse -- that has been affirmed by the federal courts under the Constitution’s Necessary and Proper Clause and Commerce Clause -- ironically and significantly resulting from earlier federal civil rights litigation victories (which confirms that good goals do not always get won without resulting harm). Jon Katz
Wednesday, April 28. 2010
Bill of Rights (From public domain.) Merely because the Supreme Court's right wing votes in the majority, I do not automatically oppose the opinion or the result. I sided with the rightwingers who gave some teeth to the Second Amendment in Heller, and expect I will agree with the majority outcome by the rightwingers in Citizens United v. FEC once I get around to reading the whole opinion. Let us also remember that one of the justices, Scalia, whom I have wished off the bench since the 1980's still brought us the marvelous Melendez-Diaz opinion which followed his marvelous Crawford opinion. Today we have the rightwingers plus Justice Kennedy, by now a swing vote on so many civil liberties issues, striking down the Ninth Circuit's injunction against the federal government's cynical swap of federal park land to the Veterans of Foreign Wars, to try to say that their decades-old cross honoring World War I-dead is on private property and thus exempt from the First Amendment's Establishment Clause. Salazar v. Buono, __ U.S. _ (April 28, 2010). The composition of the Supreme Court's voters cannot determine whether I agree with an opinion from the Court. I will read the opinion first, not only for its First Amendment discussion -- including tensions between the Establishment Clause and the First Amendment's free speech clause -- but also for its discussion about circumstances that permit courts to revisit whether to keep permanent injunctions permanent, and about standing to sue the government for alleged civil liberties violations that are not targeted specifically at the suing party.
Tuesday, April 20. 2010
 Today, Underdog is four years old. We launched on 4-20-06.with this tribute to 420. Reprinted below is our 4-20-08 anniversary blog entry: Since our 2006 launching, Underdog has blogged every business day, except for few vacation days and t'ai chi days (sometimes I blog a few articles in advance of vacation days, and pre-program the articles to upload each day I am away). Our first anniversary blog entry is here. Why do I blog? Through blogging, I keep a valuable diary that helps keep my written and oral pen sharpened, my self-awareness deepened, and my bully pulpit strong. Also, it can be more important to touch one person in the audience in a valuable way than for thousands to receive the message in a much less profound way. My motivation for blogging goes far beyond having a web presence for our law firm, to a thirst to express critical and undiluted messages about justice, and to increase the number of people who will assert their rights with the police so as never to need our criminal defense services in the first place.. So many civil liberties need to be won and re-won worldwide. One of the most effective ways for a non-full-time writer or television/radio personality to get out the pro-civil liberties message is through blogging. Imagine, just two decades ago, before Gorbachev took over in the Soviet Union followed by the fall of the Berlin Wall, samizdat dissenting publications in the Soviet Union often got distributed by recipients (risking prosecution) retyping and distributing the publications, when printing presses and photocopiers were scarce, and strictly controlled by the iron-fisted government. Today, except in such places as North Korea, which even bans cellphones, dissenting writings can travel to a much wider audience with lightning speed over the Internet from nearly any country. Consider the high price that such literary greats as Pramoedya Ananta Toer and Vaclav Havel paid for writing and distributing their writings under severely oppressive regimes. When I first visited Indonesia in 1988, the brutal government apparently only kept Pramoedya Ananta Toer -- probably the nation's most famous writer and its greatest potential engine to advance the national and still rather newborn Bahasa Indonesia language to unite a nation that never had been much united before independence -- out of prison (after being in and out of prisons many times before, under the Suharto and Sukarno regimes and by colonial occupiers before that) and away from government executioners and assassins in order to prevent a foreign aid and trade stoppage had Indonesia done otherwise. His books were banned in Indonesia at the time, although some booksellers clandestinely sold them under risk of imprisonment. Speaking on tour when I met him in 1999, Pramoedya was deeply emotional when he said that the Indonesian government's efforts to ban his books was like trying to cut off his life. By that time, and to this day, Pramoedya's writings were much more freely available in Indonesia than when I first visited. Pramoedya went to great lengths to keep his written and oral voice going. For instance, he started his Buru tetralogy orally through a chain of his fellow Buru island prisoners, at the times he was denied pen and paper, only to complete the multi-level mosaic story in book form years later. Sometimes he was able to smuggle out notes "'written under adverse conditions". Subsequent to the Prague Spring, before Gorbachev, Vaclav Havel was repeatedly hounded and oppressed for his writings. Index on Censorship once ran an article on Havel showing him smiling and carrying a sack of beer ingredients weighing down his body -- but not his spirit -- at the brewery where he worked. Pramoedya and Havel paid high prices to keep their writing voices heard. I pay a small price if any. Perhaps the only price I pay is to alienate potential clients and others both by my plain messages and often very direct words, but sometimes people come around towards some of my ways of thinking, even if years later, and even if my words only have a small influence on the turnabout. While I understand the benefit of speaking in a diplomatic manner to open listeners' ears, I do that enough in court, and tend to be more direct and unvarnished in Underdog, but not as unvarnished as my brother lawyer Marc Randazza. Just as musicians benefit from playing before live audiences and from their feedback, I benefit from blogging before our Underdog audience and from receiving feedback online and on the street. Please keep your comments and emails coming. Jon Katz. ADDENDUM I - HAPPY 420 Here is our first blog entry: April 20, 2006 Supporting marijuana legalization on 4/20 and every day. In celebration of the annual 4/20 marijuana legalization events, partner Jon Katz appeared on WOCM 98.1 FM (Ocean City, Maryland) to promote the legalization of marijuana for medical, personal, and industrial use. The same evening, Jon spoke on the criminal defense of drug cases at the invitation of the University of Maryland chapter of the National Organization for the Reform of Marijuana Laws, after the screening of Busted. ADDENDUM II - HAPPY BIRTHDAY, JUSTICE STEVENS Today, outgoing Supreme Court Justice John Paul Stevens turns 90 years old. Justice Stevens is often, but certainly not always, one of the more reliable justices for giving some real offset to at least five of the justices who are more dangerous to civil liberties, those five being Chief Justice Roberts and Justices Scalia, Thomas, Alito and Kennedy.
Thursday, February 4. 2010
On a recent criminal defense lawyers' listserv thread, a colleague recommended James Shellow's Cross Examination of the Analyst in Drug
Prosecutions (Lexis-Nexis). My colleague who posted on Shellow's above-listed treatise points out that he was a chemist before going to law school. Interestingly, Justice Scalia references Shellow, as follows, in his majority opinion in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009): "While we still do not know the precise tests used by the analysts, we are told that the laboratories use 'methodology recommended by the Scientific Working Group for the Analysis of Seized Drugs,' App. to Brief for Petitioner 1a–2a. At least some of that methodology requires the exercise of judgment and presents a risk of error that might be explored on cross-examination. See 2 P. Giannelli & E. Imwinkelried, Scientific Evidence §23.03[c], pp. 532–533, ch. 23A, p. 607 (4th ed. 2007) (identifying four 'critical errors' that analysts may commit in interpreting the results of the commonly used gas chromatography/mass spectrometry analysis); Shellow, The Application of Daubert to the Identification of Drugs, 2 Shepard’s Expert& Scientific Evidence Quarterly 593, 600 (1995) (noting that while spectrometers may be equipped with computerized matching systems, 'forensic analysts in crime laboratories typically do not utilize this feature of the instrument, but rely exclusively on their subjective judgment')." As an aside, I have briefly met Jim Shellow, when he was on faculty for a couple of days at the Trial Lawyers College in 1995. He comes across as a very respectful man with no big ego. From having listened to his in-depth talk there about challenging chemical analyses of alleged drugs, it would appear that he is very thorough with his cross-examinations of chemists. Jon Katz
Monday, January 25. 2010
The Internet is abuzz about Citizens United v. FEC. For the First Amendment defense side of my law practice -- and as a concerned person -- Citizens United is a critical opinion for me to read and digest, all 183 pages of the case, which covers Chief Justice Roberts's opinion, two concurring opinions (by Justices Scalia and Thomas), and Justice Stevens's opinion (joined by Justices Ginsburg, Breyer, and Sotomayor) that partially concurs and objects. As an advocate for erring on the side of providing too much free expression protection than too little, I expect I will be on the side of the Supreme Court's majority that is in opposition to Justice Stevens's opinion. Even if the opinion will favor Republican candidates and more "mainstream"-sounding candidates, the First Amendment means little if it is not given full protection. As to those who wish to give less First Amendment protetion to corporations than to individuals, I see no such limitations in the language of the First Amendment. Moreover, when corporate First Amendment rights are watered down, damage to individuals' First Amendment rights will be simultaneous and consecutive to such damage to corporations' free expression rights.
Wednesday, December 23. 2009
For trials of charges of being a felon in possession of a firearm, prosecutors would love nothing more than for the jury to hear all the details about the prior felony conviction. The best way for the defense to avoid prejudicing the jury over the prior felony conviction is to hold severed trials of the firearm possession charge and the charge of being a felon in possession of a firearm. If such a motion is denied, the defense should consider reaching a stipulation or admission that the Defendant was convicted of a qualifying felony prior to the alleged possession of the firearm and should seek the most favorable jury instructions to minimize the collateral damage of the jury's knowing about a prior conviction. The Supreme Court provides guidance on reducing such prejudice in Old Chief v. United States, 519 U.S. 172 (1997), which is a 5-4 decision, with two of the dissenters still on the Court (Justices Scalia and Thomas), and two off (Rehnquist and O'Connor, JJ). Shortly before Old Chief was decided, the D.C. Court of appeals dealt with the issue in Goodall v. United States, 686 A.2d 178 (D.C. 1996). Jon Katz ADDENDUM. Thanks to a fellow listserv member for addressing both of the above-listed cases. Old Chief is a captivating name for the above-discussed Supreme Court case. Consider how such criminal defendants as Gideon (a prophetic name) and Miranda (whose competing namesake entertained along with Bob Hope and Bing Crosby) get their names immortalized in landmark Supreme Court cases. What if Ernesto Miranda's last name had been MoxiePhish? That might have brought out suppression motion questions about whether the officer had MoxiePhished the defendant, rather than if s/he had Mirandized the defendant.
Friday, June 26. 2009
Bill of Rights (From public domain.) Five years ago, the U.S. Supreme Court decided Crawford v. Washington, 541 U.S. 36 (2004). For testimonial evidence, Crawford scrapped the rule of Ohio v. Roberts, 448 U.S. 56 (1980), that the Sixth Amendment right to confront one's accusers does not preclude unavailable witnesses' hearsay so long as said hearsay bears adequate indicia of reliability. Crawford applies to testimonial evidence, and has generated substantial litigation over determining what evidence does and does not qualify as testimonial. The twenty-four-year period between 1980's abysmal Ohio v. Roberts and 2004's wonderful Crawford v. Washington saw repeated erosion of Fourth Amendment rights that had been better protected under the Warren Court, before Richard Nixon nominated Warren Burger as chief justice and added Justice William Rehnquist to the court, followed by Reagan's adding Justice Scalia, Bush I's adding Justice Thomas, and Bush II's adding Justice Alito and Chief Justice Roberts. Even in the darkness of four justices who repeatedly pen and join opinions that take dangerously crabbed views of the Constitution's guarantees of individual liberties -- Chief Justice Roberts, and Justices Scalia, Thomas and Alito -- even those four sometimes get it right, but not always as a unified team. Justice Scalia penned Crawford. Yesterday, Justice Scalia penned the opinion that confirms Crawford is alive and well, requires that Crawford be followed full strength by trial and appellate judges, and prohibits chemists' written analyses from coming into evidence at trial when the chemist is absent and the defense objects, because such analyses are testimonial hearsay. Melendez-Diaz v. Massachusetts, __ U.S. _ (June 25, 2009). Websites and attorney listservs are all abuzz about Melendez. Here are some of the main benefits of Melendez to my clients: - Melendez is not met merely by giving the defense the opportunity to summons drug chemists, in part because the defense might be in a pickle if the chemist simply does not honor the subpoena or tries to avoid the subpoena by successfully asking permission from the court to do so (e.g., so as to appear at another court for trial, to be in training, or to be on vacation). Melendez, slip op. at 18-19. - Chain of custody logs and all other chain of custody hearsay for drug cases and all other criminal cases are inadmissible at trial without the testimony of the people in the chain, unless the defense consents otherwise. Melendez, slip op. at 5, n.1. - For such jurisdictions as Virginia that until yesterday treated breathalyzer test results as non-testimonial, clearly they are. Now, I no longer need to subpoena breath test technicians to trial in Virginia; that burden has shifted to the prosecution in order for the prosecutor to try to get the breath test results admitted into evidence. Melendez says that Crawford already shows that drug certificates of analysis are testimonial evidence. If so, why did so many judges refuse to treat such certificates of analysis as testimonial evidence? Is it because they sided more with Melendez's four-justice dissent? Is it because they thought the Supreme Court might make an exception for certificates of analysis when realizing how costly it would be to bar the admission of certificates of analysis without live evidence? Is it because some lower court judges knew exactly what Crawford said, but decided to see if the Supreme Court would call them on it? Now, any time trial or appellate judges hem and haw that the Supreme Court could not have meant this or that in a Supreme court opinion that confirms sweeping rights for criminal defendants, a great response is to whip out Melendez and say: "Melendez tells judges not to make the Supreme Court remind them more than once of their obligations to obey Supreme Court rulings." Jon Katz.
Monday, April 20. 2009
Today, Underdog is three years old. We launched on 4-20-06.with this tribute to 420. Reprinted below is our 4-20-08 anniversary blog entry: Since our 2006 launching, Underdog has blogged every weekday, except for holidays and a few vacation days (sometimes I blog a few articles in advance of vacation days, and pre-program the articles to upload each day I am away). Our first anniversary blog entry is here. Why do I blog? Through blogging, I keep a valuable diary that helps keep my written and oral pen sharpened, my self-awareness deepened, and my bully pulpit strong. Also, it can be more important to touch one person in the audience in a valuable way than for thousands to receive the message in a much less profound way. My motivation for blogging goes far beyond having a web presence for our law firm, to a thirst to express critical and undiluted messages about justice, and to increase the number of people who will assert their rights with the police so as never to need our criminal defense services in the first place.. So many civil liberties need to be won and re-won worldwide. One of the most effective ways for a non-full-time writer or television/radio personality to get out the pro-civil liberties message is through blogging. Imagine, just two decades ago, before Gorbachev took over in the Soviet Union followed by the fall of the Berlin Wall, samizdat dissenting publications in the Soviet Union often got distributed by recipients (risking prosecution) retyping and distributing the publications, when printing presses and photocopiers were scarce, and strictly controlled by the iron-fisted government. Today, except in such places as North Korea, which even bans cellphones, dissenting writings can travel to a much wider audience with lightning speed over the Internet from nearly any country. Consider the high price that such literary greats as Pramoedya Ananta Toer and Vaclav Havel paid for writing and distributing their writings under severely oppressive regimes. When I first visited Indonesia in 1988, the brutal government apparently only kept Pramoedya Ananta Toer -- probably the nation's most famous writer and its greatest potential engine to advance the national and still rather newborn Bahasa Indonesia language to unite a nation that never had been much united before independence -- out of prison (after being in and out of prisons many times before, under the Suharto and Sukarno regimes and by colonial occupiers before that) and away from government executioners and assassins in order to prevent a foreign aid and trade stoppage had Indonesia done otherwise. His books were banned in Indonesia at the time, although some booksellers clandestinely sold them under risk of imprisonment. Speaking on tour when I met him in 1999, Pramoedya was deeply emotional when he said that the Indonesian government's efforts to ban his books was like trying to cut off his life. By that time, and to this day, Pramoedya's writings were much more freely available in Indonesia than when I first visited. Pramoedya went to great lengths to keep his written and oral voice going. For instance, he started his Buru tetralogy orally through a chain of his fellow Buru island prisoners, at the times he was denied pen and paper, only to complete the multi-level mosaic story in book form years later. Sometimes he was able to smuggle out notes "'written under adverse conditions". Subsequent to the Prague Spring, before Gorbachev, Vaclav Havel was repeatedly hounded and oppressed for his writings. Index on Censorship once ran an article on Havel showing him smiling and carrying a sack of beer ingredients weighing down his body -- but not his spirit -- at the brewery where he worked. Pramoedya and Havel paid high prices to keep their writing voices heard. I pay a small price if any. Perhaps the only price I pay is to alienate potential clients and others both by my plain messages and often very direct words, but sometimes people come around towards some of my ways of thinking, even if years later, and even if my words only have a small influence on the turnabout. While I understand the benefit of speaking in a diplomatic manner to open listeners' ears, I do that enough in court, and tend to be more direct and unvarnished in Underdog, but not as unvarnished as my brother lawyer Marc Randazza. Just as musicians benefit from playing before live audiences and from their feedback, I benefit from blogging before our Underdog audience and from receiving feedback online and on the street. Please keep your comments and emails coming. Jon Katz. ADDENDUM I - HAPPY 420 Here is our first blog entry: April 20, 2006 Supporting marijuana legalization on 4/20 and every day. In celebration of the annual 4/20 marijuana legalization events, partner Jon Katz appeared on WOCM 98.1 FM (Ocean City, Maryland) to promote the legalization of marijuana for medical, personal, and industrial use. The same evening, Jon spoke on the criminal defense of drug cases at the invitation of the University of Maryland chapter of the National Organization for the Reform of Marijuana Laws, after the screening of Busted. ADDENDUM II - HAPPY BIRTHDAY, JUSTICE STEVENS Today, Supreme Court Justice John Paul Stevens turns 89 years old. Justice Stevens is often, but certainly not always, one of the more reliable justices for giving some real offset to at least five of the justices who are more dangerous to civil liberties, those five being Chief Justice Roberts and Justices Scalia, Thomas, Alito and Kennedy.
Wednesday, January 21. 2009
Bill of Rights. (From the public domain.) Even I felt some giddiness hearing Obama start his inaugural address yesterday. The nightmare of Bush and Cheney was behind us, and hopefully Obama would not repeat any of that nightmare; hope springs eternal. A day after celebrating Martin Luther King, Jr.'s birthday, we got a big birthday gift of realizing King's dream more than ever. For at least four years, we will see no judicial nominations at the horrific levels of Justice Scalia, Justice Thomas, Justice Alito, and Chief Justice Roberts (whose nomination Obama voted against). Whether more by intention or omission, while fighting for critical aspects of social justice, Obama will perpetuate substantial injuries in other areas of social justice, including criminal defendants' rights. I have heard Obama say nothing to show that he will help make the criminal justice system more just. His appointment of Eric Holder as attorney general puts in place an establishment past prosecutor and judge who was Bill Clinton's number two at the Justice Department; that does not suggest any change between the Obama and Clinton administrations on criminal justice issues. From a realpolitik perspective, civil libertarians and social justice activists may not get better White House occupants than Obama and Clinton for at least a good while. At least Clinton's administration appointed so many ACLU and Amnesty International types that this made it easier for social justice activists to be truly heard and understood by his administration; I wait to see if Obama will do the same. From the local ACLU affiliate board on which I sat when Clinton took office, four then-current and recent board members were appointed, as the head of the Justice Department's Environmental division (Lois Schiffer), Education Department general counsel (Judith Winston), post-Mapplethorpegate general counsel to the National Endowment for the Arts (Karen Christensen), and FCC Director of the Office of Legislative and Intergovernmental Affairs (Judith L. Harris, who is married to Norman J. Ornstein of the American Enterprise Institute). From Amnesty International, Clinton brought John Shattuck to be deputy secretary of state for human rights. To the Supreme Court, Clinton nominated Ruth Bader Ginsburg, a co-founder of the ACLU's Women's Rights Project in 1972. (As an aside, the ACLU's webpage recounts: "One of only nine women at Harvard Law School in 1956, Ginsburg and her female classmates were asked by the dean why they were occupying seats that would otherwise be filled by men." Let that dean eat his words topped with bird droppings.) Not long after Jimmy Carter took office -- and people can debate whether this helped further undo Carter's image along with the scandals surrounding his brother Billy and others around him more than helping social justice -- marijuana legalization activists even got what then probably was their closest shot with the White House to getting marijuana closer to legalization. Based on Patrick Anderson's writings in High in America, on the one hand, Keith Stroup (whom I know and like very much) of the National Organization for the Reform of Marijuana laws was able to put together a party in late 1977 attended by Carter's top drug advisor Peter Bourne and other influential government people. However, those prospects became less bright after news leaked of Bourne's having snorted cocaine at the party. It can be interesting to challenge politicians and political candidates on legalizing marijuana, heavily decriminalizing all other drugs, and eliminating mandatory minimum sentencing. In the early nineties, a fellow civil libertarian once decried the police state in Washington, D.C. to one of the more social justice-minded city council members, who suggested a ride-on with the police to see why the council member had more watered-down views than this civil libertarian's complaint. One 1990 weekend afternoon, former D.C. police chief Maurice T. Turner stood at a streetcorner in Cleveland Park, asking for my vote. I told him of my issues with the criminal justice system, and he responded: "You do the crime, you do the time." But what about innocents, those violating laws that should not be on the books (marijuana, for instance) or should be heavily decriminalized (all other drugs, for instance) in the first place, and all others who are harassed, searched and arrested; police actions that focus harassment, stops and searches on racial minorities and disenfranchised people; and race-based and socio-economic-based decisions by police, prosecutors, jurors, judges, jailers, parole officials, and probation agents on whom to arrest, what crimes to charge, what bonds and pre-release conditions to impose, what verdict to render, what sentences to seek (including the death penalty), what sentence to impose, how to handle alleged probation and parole violations, who to parole and when, which prisons to make available, and what conditions to impose at the prison? I told former chief Turner that he would not get my vote if his best response was the overly-simplistic and flawed "If you do the crime, you do the time." Not long after meeting Maurice Turner, I attended a meet and greet at a National Lawyers Guild member's (or member type's) home, with then U.S. Congressmember and now-Senator Bernie Sanders -- Burlington, Vermont's previous socialist mayor -- still wondering whether I would ever meet a politician for whom I would want to campaign or donate. I am still wondering. Bernie's answer to my question about marijuana legalization makes me wonder whether Obama is of a similar bent. Sanders first told me that the marijuana legalization issue was not important enough to focus attention on when such weightier issues as health care, the economy and education demand attention. I would not let go of my question, so I asked: "Mr. Sanders, if marijuana legalization comes up for a vote on the House floor tomorrow, how will you vote?" I give him credit for answering honestly, but not for his answer, which was that considering that there are people selling marijuana to children, he will not support its legalization. (Well, Bernie, I suppose you want to return to alcohol prohibition, too, then?). In any event, does Obama feel that many of my darling criminal justice issues are too much of a luxury (they are not) to focus on while he works to fix the economy, close Guantanamo and withdraw from Iraq? As I have said again and again, governments and taxpayers will be in a much smaller financial pickle and tax-revenue pickle by shrinking the criminal justice system through legalizing marijuana, prostitution and gambling; heavily decriminalizing all other drugs; eliminating mandatory minimum sentencing; and abolishing the death penalty. I do give Obama's crew credit for at least letting people air their grievances on the transition team's webpages (and notice how quickly the White House website transitioned to Obama's presidency yesterday, which webpage I hope will continue to let people air their grievances to that page's visitors), including: - Posting the concerns about racism in the criminal justice and prison system, from the National Association of Blacks in Criminal Justice. - Posting the concerns of the UCFW against workplace immigration enforcement raids. - Having a citizens briefing book allowing people to air their opinions and grievances and to invite voting in agreement or disagreement with those postings, including this posting favoring marijuana legalization. In sum, as you applaud Obama's arrival and Bush's departure, it is essential to keep as vigilant and active as ever for social justice. Jon Katz
Wednesday, November 5. 2008
Bill of Rights (From public domain.) Why listen to government/FCC-censored broadcast radio and television when we have the choice to listen to satellite and online radio and to watch cable television? Why listen to broadcast radio and television when the FCC might still get upheld in court for heavily fining a station for broadcasting Allen Ginsberg's Howl masterpiece during prime time, or even a fleeting expletive by a winner at an awards ceremony or a successful player in a sporting event? Yesterday's Supreme Court oral argument in the F.C.C. v. Fox Television broadcast indecency case gives insight into such justices as Chief Justice Roberts and Justice Scalia, who seem to have no problem with heavy F.C.C. fines for the use of the words f_ck and sh_t during primetime on broadcast television. Justice Ginsburg showed skepticism about permitting the F.C.C. to skewer the use of such words in such a blanket fashion, and Justice Stevens underlined how silly it is to be punishing mere words so harshly. Of course, you need not wait for the Supreme Court to decide this case. You always can insist that your U.S. Congressmembers insert First Amendment teeth to replace the F.C.C.'s constant urination on First Amendment rights by looking for sh_t and f_ck words all over the place on the taxpayers' backs. Will you make such a move? Jon Katz.
Monday, November 3. 2008
As I rise early on October 4, 2008, to get to the polls on the way to court, I will still be kicking myself for my own role, through inaction, in our having a two-party-dominated underdemocratic/barely democratic Tweedledum-Tweedledee political system. The tealeaves do not show that Obama will be any better a president than Bill Clinton was, and I was not overly fond of Bill, who maintained a government that was overly militaristic, overly-prosecutorial, and insufficiently protective of civil liberties. I voted for Bill Clinton, as I now vote for Barack Obama, as a less scary alternative to the other major party's opponent. Just as with George Bush, II, a president McCain will feel an obligation to pay further homage to the party's morally conservative (an oxymoron) right wing, beyond his blunder of naming the woefully inexperienced, incapable Sarah Palin, who will be less of a friend to civil liberties than will John McCain. The most lasting damage of a McCain presidency will be his lifetime appointments to the Supreme Court, and his dozens more annual lifetime judicial appointments to the lower appellate and federal trial courts. The next president will likely fill one to three vacancies for the Supreme Court. Justice John Paul Stevens -- Ford-appointed but today comparatively one of the Court's strongest friends of civil liberties -- is eighty-eight, and will be nearly ninety-three when the next president leaves office; it is very doubtful that Stevens will stay on the bench as long as that. Justice Ruth Bader Ginsburg is seventy-five and will be seventy-nine when the next president leaves office. Justice David Souter on the one hand is only sixty-nine, but on the other hand is reportedly antsy to return to New Hampshire. If you are not scared yet, consider this for post-Halloween terror: The three youngest justices are three of the four most rightwing on civil liberties issues, those being Justice Clarence Thomas, 60, Justice Samuel Alito, 58, and Chief Justice John Roberts, 53. That is no typo; Chief Justice Roberts is rightwing, 53, and will be at the Supreme Court's helm a few more decades. The final member of the Supreme Court's rightwing quartet is Justice Antonin Scalia, who is only 72, loves his job, and shows no signs of going anywhere for at least two more presidencies. Even though Chief Justice Roberts may be a mensch off the bench, and has even been known personally to pass out Halloween candy to trick-or-treaters, that does not change the severe damage that he and the other Supreme Court rightwingers inflict on the Constitution each month. A president McCain likely will nominate someone no less conservative than the Supreme Court's current right-wingers. If you think we currently have too many abysmal Supreme Court opinions, just wait and see what will happen if a president McCain names Justice Stevens's replacement after eight years of Bush, II, nominations to the federal courts. Election Day is your opportunity to mobilize against further right-wing lifetime federal judicial nominations, not only to the Supreme Court, but to the lower federal appellate courts and trial courts, too, which apparently number in at least the dozens each year. Sooner rather than later, of course, we need to break free from the two-party dominated system that overtakes the nation's psyche to the point that one wonders whether schoolchildren realize that the nation's political system is not limited to two parties. As Nader's running mate Matt Gonzalez asks, "What do they [the Republicans and Democrats] have to do to lose your vote?" Had Ralph Nader not run for president in 2000, Al Gore would have beaten George Bush, II. Nader knew he would not win the presidency, but also had a powerful message that most Democratic and Republican candidates and officeholders are more fundamentally alike than they are different, maintaining most of the status quo of the government-military-industrial complex. The only way to break out of the woefully underdemocratic two-party system is to risk electoral victories by the worst major candidates on the road to a truly multi-party system. Jon Katz.
Tuesday, September 9. 2008
Image from Bureau of Engraving and Printing's website. The closest I ever came to being a cop was my year before law school as a financial auditor at a large Wall Street commercial bank. Early on, among our duties, we were taught to monitor for violations of the money laundering laws, by verifying that IRS Form 8300 had been properly filed for cash transactions over $10,000, and that multiple deposits by the same customer were not being used to circumvent the money laundering laws. Later on, one of my department's vice presidents, a very colorful man, did a training presentation on money laundering, and spoke of the law's focus on drugs, which I felt was a waste of time and resources for the criminal law to focus on. In any event, I found no evidence of money laundering during the two instances when I handled audits involving customer cash transactions. It was 1985, in the midst of Nancy Reagan's oversimplified "Just Say No to Drugs" campaign (easier for many to say about cocaine and heroin, but how about valuum and percodan?). Today, money laundering is a significant part of many federal prosecutions for such cases as drug felonies. Worth reading for the limitations on the reach of the money laundering laws are the following Supreme Court cases from the last term. In Cuellar v. U.S., __ U.S. _, 128 S. Ct. 1994 (2008), the Supreme Court limited the circumstances under which a person can be inferred to know that a plan to transport funds to outside the United States "was designed at least in part to 'conceal or disguise the nature, the location, the source, the ownership, or the control' of the funds. 18 U. S. C. §1956(a)(2)(B)(i)." Cuellar (Alito, J., concurring). In U.S. v. Santos, __ U.S. _ 128 S. Ct. 2020, (2008), Justice Scalia -- writing for a four-justice plurality and construing the meaning of that case when adding Justice Stevens's concurring opinion -- concluded that: "The money-laundering charges brought against Santos were based on his payments to the lottery winners and his employees, and the money-laundering charge brought against Diaz was based on his receipt of payments as an employee. Neither type of transaction can fairly be characterized as involving the lottery’s profits. Indeed, the Government did not try to prove, and respondents have not admitted, that they laundered criminal profits. We accordingly affirm [the lower court's dismissal of the convictions]." Jon Katz
Tuesday, July 22. 2008
Bill of Rights. (From the public domain.) Welcome to the land of bland: A land where television is dumbed down to a child's level, where broadcasters furiously self-censor, and where most Americans keep returning for more and more and more. It is the land of broadcast television, where so-called oral and visual "indecency" is forbidden from 6:00 a.m. to 10:00 p.m. When courts first permitted indecency bans on broadcast (versus cable and Internet) television and radio, the theory behind it apparently included reliance on the limited number of available space for broadcasters, who are required by law to include service to the so-called "public interest." That basis by now is archaic, when cable stations and satellite radio abound. Americans ultimately have themselves to thank for this state of affairs, not only because the anti-censors have not spoken out enough and effectively enough (do too many of them fear television content that they do not like if they speak up against broadcast censorship?), but also because tens of millions of viewers daily return for more of such broadcast pablum. Enter Janet Jackson and Justin Timberlake at the 2004 Super Bowl, challenging the land of bland during the halftime show, with Timberlake singing "gonna have you naked by the end of this song,” while, unscripted, ripping off part of Jackson's costume to reveal her right breast for nine-sixteenths of a second until CBS cut the image. Were this Europe, the reaction would have been no different than to the thousands of barebreasted women sunning themselves on beaches in France and Italy, exercising their right not to cover up any more than men are required. This not being Europe, though, countless Americans fear bared breasts. Fortunately, women have won the right to breastfeed in public in most places, and in some locales publicly bared breasts are permitted, whether by legislative intention or oversight. For whatever reason, bared breasts are more eroticized overall in American society than the many places where it is commonplace for women to be barebreasted all the time in public, causing little more notice than if they were covered up. No sooner does Janet Jackson get removed from the halftime stage than the complaints of her bared breast come flooding into the Federal Communications Commission. Ultimately, finding Ms. Jackson's and Mr. Timberlake's bared breastcapade "indecent" -- how on earth can a bared breast be indecent? -- the FCC hit CBS with a $550,000 fine, which I decried in an interview with the USA Today McNewspaper. Mind you, a $550,000 fine in and of itself is a drop in the bucket for CBS, which likely paid its lawyers more than that amount to litigate against the fine through the appellate level, but repeated indecency fines can add up and can lead to more self censorship. CBS's investment in legal counsel paid off yesterday with the Third Circuit's reversal of the entire half million dollar fine. CBS v. FCC, __ F.3d _ (3rd Cir. July 21, 2008). Kudos to fellow First Amendment Lawyers Association member Robert Corn-Revere for successfully arguing the case. Shame on the FCC for having levied any fine, and shame even more for having imposed such a huge fine as to chill smaller broadcasters with much shallower financial pockets. The Third Circuit -- in a 2-1 opinion, with the concurring-dissenting judge as spiritedly in agreement with the result and with most of the reasoning therefor -- reversed the FCC's fine on CBS on two grounds. First, the court found that the FCC's fine amounted to an arbitrary and capricious retroactive application of a new policy banning fleeting indecent images (the change was spurred by Golden Globe award-accepting Bono's exclamation that “this is really, really f--king brilliant”, where if I were the awardee, I might have opted for the pithier "F--king 'A'") where previously the FCC had at least allowed indecent fleeting words. Second, the Third Circuit found that CBS -- which the FCC conceded had no foreknowledge of the then-impending bared breast -- was not liable (with willfulness being the liability standard) for the breast-baring actions of independent contractors Jackson and Timberlake no matter how one slices it, whether, for instance, on a theory of employer liability or vicarious liability, or on a theory of a responsibility to have time-delay technology for presenting visual images, which technology CBS only had implemented for sound transmissions. As the Third Circuit recounts, in the FCC's upholding the half million dollar fine on CBS, "the FCC relied on a contextual analysis to find the broadcast of Jackson’s exposed breast was: (1) graphic and explicit, (2) shocking and pandering, and (3) fleeting... It further concluded that the brevity of the image was outweighed by the other two factors... The standard applied by the Commission is derived from its 2001 policy statement setting forth a two-part test for indecency: (1) 'the material must describe or depict sexual or excretory organs or activities,' and (2) it must be 'patently offensive as measured by contemporary community standards for the broadcast medium.'” CBS v. FCC, __ F.3d _. CBS v. FCC, explains that, unlike obscenity, indecency still gets First Amendment protection on the airwaves, which led the FCC to "confine[] enforcement of indecency restrictions to the hours 'between 6:00 a.m. and 10:00 p.m.' See 47 C.F.R. § 73.3999," which are the hours when youngsters are more likely to be watching and listening to broadcasts. CBS v. FCC, __ F.3d _. Will the FCC seek review of this case in the Supreme Court? The agency probably has at least four good friends if cert. is granted: certainly Justices Thomas and Scalia, and likely Chief Justice Roberts and Justice Alito. From considering his concurrence in Los Angeles v. Alameda Books, 535 U.S. 425 (2002) -- which left open the door to challenging the multitude of tired and disingenuous negative secondary effects "studies" that are repeatedly recycled by municipalities to try to zone out adult video stores and strip clubs --
Justice Kennedy might be a wild card if the FCC is permitted a Supreme Court appeal. Considering their joining the dissenting camp in Alameda Books and their overall records, it seems a good bet that CBS will find a friend in Justices Stevens, Souter, Ginsburg and Breyer. In the meantime, congratulations CBS, Janet Jackson, and Justin Timberlake, and thanks to the Third Circuit for keeping life breathed into the First Amendment. Jon Katz. ADDENDUM: See my First Amendment defense brother Marc Randazza's views on this CBS v. FCC case.
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