The Continued Defense Of The Indefensible

Timm Herdt was on a conference call yesterday with a top official from the Department of Corrections, and that official acknowledged that the plan due to federal judges by midnight today on prison reduction will not meet the goal:

Gov. Arnold Schwarzenegger on Friday will submit to a panel of three federal judges a plan that would reduce the inmate population at California’s overcrowded prisons by substantially less than what the court has ordered, a move that a top prison administrator acknowledged will place state officials at risk of being held in contempt.

Although the final plan will not be submitted until late Friday, administration officials have briefed other parties involved in the court proceedings on its major elements. They said exact projections of how much the prison population will be reduced have not yet been calculated, but the reduction would not lower the population to the court’s standard of 137.5 percent of the prison system’s design capacity.

“This plan will not meet the court’s requirements,” said Lee Seale, deputy chief of staff of the Department of Corrections and Rehabilitation, in a conference call Wednesday with legislative staff members. “I certainly don’t think this panel will be thrilled by this plan. I think we recognize we may be held in contempt.”

Under the plan the state will submit, they will get to around 27,000 prisoner reduction. The judges want something close to 44,000.

The question is how the three-judge panel will react. They may mandate a release of enough prisoners to get to that number, at which point the state will challenge the ruling and throw it to the US Supreme Court. This is precisely was Tough on Crime member emeritus George Runner wants.

Sen. George Runner, R-Lancaster, who has intervened in the court case in the hope of preventing a judicial mandate to lower the prison population, believes the administration is taking exactly the right approach.

“I would like to see the state plan be as easily rejected as possible,” Runner said.

If the administration submitted a plan that came close to meeting the court’s order, Runner said, that could lead to a negotiated compromise. This way, he said, the court will be forced to propose its own plan — one that would set up a showdown before the U.S. Supreme Court.

Where Runner would pitch the "I'm right because I say so" defense. And with this Supreme Court, who knows, that may work.

We don't know when the appeal would come in the process. The Governor's office seem to think that they can appeal the initial ruling as soon as they offer their alternative plan, while others believe that they'd have to wait for the three-judge panel to issue a final order with the full reductions. At some point, everyone agrees, an appeal is allowable. Kevin Yamamura has more.

I don't want to put this entirely on the Governor, though he's clearly dragging his feet. The Assembly forced the weak proposal you'll see from the Governor today by scaling back the reform plan that would have come closer to the judge's goal of reducing the population by 44,000 prisoners. But the Governor didn't actually have to follow the Assembly in submitting their plan. They could have come up with one of their own making, putting pressure on the Legislature to conform it. They chose not to stand behind their own plan and do so. So while there's plenty of blame to go around, I think the Governor needs to own this one, although he and everyone else want to take the blame off themselves.

By the end of the week, it will be apparent what all the posturing accomplished: nothing. That may suit lawmakers just fine -- they can blame the coming prison reforms on the federal courts rather than taking heat from voters for being insufficiently hard on criminals. But the episode is further evidence that if California's prison system is a national disgrace, its Legislature is a national laughingstock.

Perhaps it's not surprising that, in this environment, Schwarzenegger seems to be taking on the characteristics of a dictator. On Tuesday, he rejected the Legislature's plan to promote renewable energy and said he'd impose his own by executive fiat. He's on surer legal ground when it comes to the prisons because his actions will be backed by the federal court. But it's dismaying to watch the state's democratic procedures break down so thoroughly.

As long as he now appears to be king of California, we humbly beseech our lord and Terminator to finally do the right thing by the prisons. His proposal to the court should be modeled on the one approved by the Senate and include a commission to review the unsustainable determinate sentencing system. Meanwhile, it's time to drop the appeal to the U.S. Supreme Court of the federal court order so we can get on with the business of fixing the prisons and out of the habit of defending the indefensible.

But that's not going to happen. Seeing the Department of Corrections reduce the very rehabilitation programs by $250 million, that even the Assembly plan used as a means to let inmates out for completing them, show how the mission of corrections has been completely lost in this. What the state is fighting by appealing the judge's order is their privilege to let people die in jail needlessly in violation of the Constitution. Today, they will continue to assert that privilege.

No Right To Keep A Job You Don't Want To Perform

A federal appeals court ruled that pharmacists cannot refuse to dispense the Plan B "morning after pill" regardless of their religious beliefs:

Family-owned Ralph's Thriftway and two pharmacists employed elsewhere sued Washington state officials over the requirement. The plaintiffs asserted that their Christian beliefs prevented them from dispensing the pills, which can prevent implantation of a recently fertilized egg. They said that the new regulations would force them to choose between keeping their jobs and heeding their religious objections to a medication they regard as a form of abortion.

Ralph's owners, Stormans Inc., and pharmacists Rhonda Mesler and Margo Thelen sought protection under the 1st Amendment right to free exercise of religion and won a temporary injunction from the U.S. District Court in Seattle pending trial on the constitutionality of the regulations. That order prevented state officials from penalizing pharmacists who refused to dispense Plan B as long as they referred consumers to a nearby pharmacy where it was available.

On Wednesday, a three-judge panel of the U.S. 9th Circuit Court of Appeals lifted the injunction, saying the district court was wrong in issuing it based on an erroneous finding that the rules violated the free exercise of religion clause of the U.S. Constitution.

My freedom ends when I violate yours, essentially. If pharmacists don't want to distribute legal drugs to their patients, and cannot provide them with any recourse to obtain those drugs, they can find other work. I think the cost of denying legal medical treatment to women supersedes pharmacists' discomfort.

Two Bush 43-appointed conservatives and one Clinton appointee made this ruling, by the way.

"Done" Sounds Like A Good Idea

Joe Friedberg, the attorney for Norm Coleman in his battle to keep the 59th Democratic seat out of the US Senate admits defeat:

Q. Joe, are you done?

A. Yes, I'm done.

Q. Let me ask you in a different way. Is Norm done?

A. Well, I think that we have been trying this case with the appeal record in mind, and that's where we're going, and it's going to be a very quick appeal, and then I will know whether or not it worked.

Q. Well, when you say quick appeal, are you confident that you are going to lose the case in front of the three-judge panel? By losing the case, I mean Norm ends up with less votes.

A. I think that's probably correct that Franken will still be ahead and probably by a little bit more. But our whole argument was that it was a constitutional argument, and it's an argument suitable for the Minnesota Supreme Court, not for the trial court. So we will see whether we were right or not.

Actually their whole argument was not an argument, but a way to obstruct Al Franken's seating for as long as possible. Our deliberative judicial process allows such obstruction, but let's not kid ourselves about arguments being suitable for one court and not another. Slowly working through the process was the whole point.

So, months after the election, and several weeks after the Supreme Court trial, Coleman's own lawyer admits that his client will wind up in worse shape than before, and that he was arguing to the wrong court this whole time to intentionally set up an appeal. Since the loser pays in Minnesota courts, at least Coleman will get his money's worth on Al Franken's lawyer. Of course, while Friedberg failed in court, he did his actual job well - it's almost April and Minnesota continues to have one US Senator.

Siegelman Convictions Upheld

An appeals court in Atlanta upheld most of the charges against Alabama Governor Don Siegelman, throwing out only two.

A three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta struck down two of the seven charges that Siegelman was convicted of and ordered a new sentencing hearing. That means Siegelman's seven-year sentence could be reduced.

He won't get off entirely: The court upheld key bribery, conspiracy and obstruction counts against him in what prosecutors described as a scheme that put Scrushy on a state hospital regulatory board when he was at the helm of HealthSouth. The court upheld all six counts against (Richard) Scrushy and his sentence of almost seven years.

Siegelman, 63, and Scrushy, 56, were convicted in 2006 by a federal court jury in Montgomery, where Siegelman was a prominent Democrat with a political career dating back three decades.

Siegelman has claimed his prosecution was pushed by Republicans, including former White House adviser Karl Rove, a claim career federal prosecutors who handled the case have emphatically denied. Rove, a Texas strategist, was once heavily involved in Alabama politics.

It's important to recognize the context, the way Scott Horton, who maybe knows more about this case than any living human, does. The three-judge panel were all Republicans, two of whom had an "active record of political engagement in G.O.P. causes." They delivered the opinion “per curiam," without putting their name on it. And much of the evidence that would exonerate Siegelman was outside the purview of the judges in this appeal.

Nearly all the disclosures that undermined confidence in the fairness of the Siegelman trial occurred after the trial record was closed–and none of these disclosures were examined by the Court of Appeals. Even though the appeals court looked into jury misconduct, it did not have before it the much more powerful evidence of misconduct that a whistleblowing member of the prosecution team subsequently disclosed to the Justice Department—because the Bush Justice Department, in violation of its plain ethical duties, chose to keep all of that secret. So although an appeal has been taken and resolved, not one of the truly significant issues with the Siegelman case was ever briefed or argued. That remains for the future.

Siegelman has responded to the verdict by saying that the fight will continue. As for Karl Rove, his big sit-down with the House Judiciary Committee, which can include questions about his involvement in the Siegelman case, will now not happen for several weeks, according to his lawyers.

The FBI, Torture, and The Court Opinion That Wasn't

This story is just starting to get some blogospheric attention. Long story short: the FBI forced an Egyptian named Abdallah Higazy to confess to aiding in the 9/11 attacks. The evidence they had was a radio found in his NYC hotel room on 9/11 that is used to talk with airline pilots. They coerced the confession out by threatening the deportation of his family to Egypt, where they were likely to be tortured. It turns out Higazy was completely innocent of the charges. This resulted in a series of lawsuits where Higazy sought punitive damages. What came out at trial was that the entire thing was a Three's Company-like misunderstanding.

So Higazy "confesses" and he's processed by the criminal justice system. His future is quite bleak. Meanwhile, an airline pilot later shows up at the hotel and asks for his radio back. This is like something out of the movies. The radio belonged to the pilot, not Higazy, and Higazy was free to go, the victim of horrible timing. Higazi was innocent! He next sued the hotel and the FBI agent for coercing his confession. The bottom line in the Court of Appeals: Higazy has a case and may recover damages for this injustice.

That Appeals Court opinion, from the Second Circuit, was released late last week.

As I read the opinion I realized it was a 44 page epic, too long for me to print out. I blogged about the opinion while I read it online and then posted the blog as I ate lunch. Then something strange happened: a few minutes after I posted the blog, the opinion vanished from the Court of Appeals website! I had never seen this before, and what made all the more strange was that it involved a coerced confession over 9/11. What the hell was going on?

The problem was that the Second Circuit Court opinion wasn't redacted, so they pulled it back. When it reappeared, all the information about how the FBI extracted the false confession from Higazy was removed. In its place was this: "This opinion has been redacted because portions of the record are under seal. For the purposes of the summary judgment motion, Templeton did not contest that Higazy's statements were coerced."

The unredacted opinion, released the day before and mirrored by the legal blog How Appealing, is here (PDF). They actually CALLED the blogger asking him to remove the opinion, and he refused; good for him, because through his efforts we know a little more about how our government operates. The FBI is using Mafia tactics here, folks, threatening the family of suspects to get false confessions. And saying that they'll deport a family to a country that tortures is little different from doing the torturing here; it's merely a question of outsourcing. That familiar Bush phrase "we do not torture" should be appended with the phrase "on U.S. soil"; anywhere else is fine.

Higazy alleges that during the polygraph, Templeton told him that he should cooperate, and explained that if Higazy did not cooperate, the FBI would make his brother “live in scrutiny” and would “make sure that Egyptian security gives [his] family hell.” Templeton later admitted that he knew how the Egyptian security forces operated: “that they had a security service, that their laws are different than ours, that they are probably allowed to do things in that country where they don’t advise people of their rights, they don’t – yeah, probably about torture, sure.”

Higazy later said, "I knew that I couldn't prove my innocence, and I knew that my family was in danger." He explained that "[t]he only thing that went through my head was oh, my God, I am screwed and my family's in danger. If I say this device is mine, I'm screwed and my family is going to be safe. If I say this device is not mine, I’m screwed and my family’s in danger. And Agent Templeton made it quite clear that cooperate had to mean saying something else other than this device is not mine.”

Jim Henley, Matt Yglesias, and believe it or not, Patterico have more. This should get a lot more attention.