Forget It Roman, It's... Switzerland?

I thought the Swiss were the neutral ones...

After more than 30 years as a fugitive from U.S. justice, Roman Polanski, the director of legendary films including “Chinatown” and “Rosemary’s Baby,” was arrested in Switzerland on an international warrant as he arrived in Zurich for a film festival featuring a retrospective of his work, the Swiss authorities said Sunday.

Mr. Polanski was detained by the police Saturday upon his arrival at the Zurich airport, said Guido Balmer, a spokesman for the Swiss Federal Justice Department. The director was being held in provisional detention in preparation for a possible extradition to the United States based on an arrest warrant dating to 1978.

Mr. Polanski, 76, was convicted that year in a California court of unlawful sex with a 13-year-old girl whom he had lured to the home of Jack Nicholson and drugged. Faced with a prison term, he fled the United States just before his sentencing.

Samantha Geimer, the girl with whom Mr. Polanski had sex, has since publicly forgiven him.

Defense attorneys actually tried to get the Polanski case thrown out of court in Santa Monica this past year, but to no avail. And Polanski could still challenge the arrest warrant and potential extradition, in an appeals process that will last a while.

Laurie Essig has a real interesting story about this. I saw "Wanted and Desired," the movie about the Polanski case which led defense attorneys to try and nullify it, and there are certainly lots of shades of grey in there, including some prosecutors with an agenda and a headline-chasing judge who apparently backed out on a plea deal. Jeralyn Merritt calls the arrest outrageous.

I'm just stunned that the Swiss would involve themselves in this complicated issue, after letting Polanski in their country dozens of times over the past 30 years. They seemed so averse to controversy!

...the LA DA's office set up the arrest warrant. When a judge refused to throw out charges this year, he did so on the grounds that Polanski couldn't have them dropped while he was a fugitive from justice. It could be that Polanski gets extradited to the US, in a process that could take anywhere from a couple days to several months, only to appear before a judge who agrees to drop the charges.

Remember These Moments

True to the reality of a weak political media and an inattentive public, the chatter over the results of the July budget revision, despite major cuts to the social safety net, has completely subsided. No taxes got increased and nobody "important" got hurt, so it was just time to move on. Politicians just move on to the business of raising corporate money, special interests can move on to the business of writing laws that help their bottom line, and everybody in Sacramento can praise everybody else for "sacrificing" to get things done.

Only, for the people living under the consequences of these budgets, created through a choice not to properly pay for needed services, the budget battle is not forgotten. And it doesn't consist of a group of numbers in a column. It's entirely real and it hits them every single day. Here's just one example.

Six domestic violence shelters in California have been forced to close while dozens more are scaling back services after Gov. Arnold Schwarzenegger eliminated all state funding for the program that supports them.

Shelters in the Central Valley town of Madera, the Sierra foothill town of Grass Valley and in Ventura County in Southern California have closed. Others in the San Francisco Bay area, Los Angeles and Bakersfield are on the verge of closing.

Many centers are laying off staff and closing satellite offices that serve remote areas of the state as they cope with the budget cuts. A national domestic violence group describes California's as the deepest cuts to such programs nationwide, even as other states have reduced funding.

In Madera County, officials have turned away six domestic violence victims and eight children since the county's only shelter closed Aug. 7, said Tina Figueroa, the shelter's director. The Martha Diaz Shelter served about 100 victims a year, many of them low-income and with no place else to turn, she said.

So 100 victims of domestic violence in smallish Madera County now have truly nowhere to turn, and will either suffer under the boot of their abusive partners or, in many cases, be killed by them. The director of domestic violence policy in the LA City Attorney's office pretty clearly calls these programs "homicide prevention." It also saves money relative to what you spend prosecuting the eventual homicides. I've seen "tough on crime" conservatives over the years invoke the name of victims and stir up public support for laws in their name. They go curiously silent when hundreds of domestic violence victims are put at risk of death because they want to save rich people and corporations from having to pay for their fair share of the commons.

These closures are the direct result of line-item cuts by the Governor. So the blood is on his hands. Leland Yee has a bill that attempts to cover the domestic violence shelter budget with cash from a crime victims fund, but under 2/3 rules, it's not likely to pass this week.

Kudos to the AP for doing a story on this; but there need to be many more. There's a human face on the budget cuts that has completely been lost and forgotten. Those suffering are right to suspect that nobody in Sacramento cares about them.

Cheney's Attack On The Criminal Justice System

Yesterday a British court followed the rules of their country's legal system and convicted people for illegal acts. It's a novel idea, to be sure, and certainly more expensive than simply locking up anyone you suspect of a crime - just think of the court costs! - but hey, they're such cute kids in England, let them have their little idealist system.

After two trials and the largest counterterrorism investigation in Britain’s history, three men were found guilty on Monday of plotting to bomb at least seven trans-Atlantic airliners on a single day with liquid explosives smuggled aboard in soft-drink bottles and detonated by devices powered with AA batteries.

The convictions came three years after the global airline industry was thrown into chaos by the plot. The bombers’ plan to drain plastic soft-drink bottles with syringes and refill them with concentrated hydrogen peroxide, a bleaching agent also used as a propellant for rockets, led to new measures prohibiting passengers from carrying all but small quantities of liquids and creams onto flights.

With those measures still in force and causing backups at airport security checkpoints around the world, the police and intelligence agencies in Britain and the United States had waited anxiously for verdicts in the six-month trial at Woolwich Crown Court in London, where eight men were accused of conspiracy to stage the airliner bombings [...]

In Washington, the Obama administration praised the verdict on Monday.

“British authorities have worked diligently to investigate and prosecute those involved in the 2006 aviation plot,” Mike Hammer, a National Security Council spokesman, said via e-mail. “We congratulate them on those efforts and extend our thanks to the British government for seeing these efforts through to today’s conclusion.”

I also want to thank Dick Cheney for almost ruining the successful effort to bring these convicted terrorists to justice, because his political party needed a high-profile capture to help them in the 2006 midterm elections.

Dick Cheney, the former US Vice President, nearly destroyed Britain’s efforts to bring the airline bomb plotters to justice, police and intelligence experts said today.

By ordering the early arrest of Rashid Rauf, the bombers’ link man in Pakistan, Washington forced British police to detain the suspects in the UK before all the evidence had been gathered, it was claimed [...]

Although Britain was running the investigation, including a massive round-the-clock surveillance of 200 suspects, the UK was not warned that Rauf - the al-Qaeda facilitator who kept the English plotters in touch with bomb experts and terrorism trainers in Pakistan - was going to be arrested.

What the early arrest did was force an early arrest and trial, where a more deliberate course could have netted more people and broken up the entire cell.

Never let it be said that Dick Cheney doesn't hate the current criminal justice system. He obviously hates it so much that he overtly acted to thwart its success back in 2006.

The Slow Wheels Of Justice At Guantanamo

Mohammed Jawad was captured by US forces when he was 12 years old, and under torture, he confessed to charges of terrorism. His initial arrest was for throwing a grenade at US soldiers in Afghanistan. These are two different incidents; the latter may or may not be a crime, but the former is just a pretense to label Jawad an enemy combatant and detain him indefinitely. The Obama Justice Department has admitted that it has no evidence to justify the continued holding of Jawad as an enemy combatant, and judges have repeatedly considered his confession inadmissable in court. Today, the Justice Department will relent on that point, but ask to delay Jawad's release until they determine whether they can bring federal charges against him.

Avoiding a showdown with a federal judge, the Obama administration agreed Wednesday to release from Guantanamo Bay an Afghan prisoner who was captured as a teenager and held nearly seven years for allegedly throwing a grenade at U.S. soldiers.

The government said it would "promptly release" Mohammed Jawad, now 23, and send him to Afghanistan -- but only after it sent a required notification to Congress explaining whether his release would pose a risk to national security. That will take 22 days, the administration said [...]

The case could have led to a constitutional showdown, because no judge has forced the release of a Guantanamo prisoner over the objections of the government.

But in Wednesday's order, the administration agreed to release Jawad after informing Congress. Lawmakers adopted an appropriations measure this year that requires the administration to provide "an assessment of any risk to the national security" before freeing a Guantanamo prisoner.

Jonathan Hafetz, an ACLU lawyer for Jawad, said he was "cautiously optimistic" that his client would be released soon.

I cannot see how the DoJ can justify keeping Jawad beyond those 22 days. He's spend 1/3 of his life in US custody. The grenade attack, not confirmed, occurred in the midst of a war zone. The Attorney General of Afghanistan is asking that he be returned home. We need to consider this time served and let him go.

This, by the way, is how the justice system should work - a detainee gets a habeas hearing to question his imprisonment, and the government can then either charge or release.

Saying No To Tough On Crime, Yes To Sensible Prison Policy That Works

In between budget posts, I've lately been in a bit of a tiff with Chris Kelly, an Attorney General candidate and former Chief Privacy Officer at Facebook, over his stale, predictable fearmongering about potential early prison releases. There are a bunch of other estimable candidates in the Attorney General's race, one who did himself a ton of good yesterday by leading the fight against the offshore drilling proposal. So maybe I shouldn't take too much time on Kelly. But there's a short-term policy fight coming up next month to determine how to implement $1.2 billion in cuts to the corrections budget, and with some good activism and common sense we can stare down the Tough on Crime crowd and post a needed victory for sensible criminal justice policies. Therefore it's worth looking at Kelly's latest post:

The prison release plan is supposed to save $1.2 billion, but that’s just accounting trickery. In fact, a Federal Bureau of Justice Statistics study finds that nearly 70% of early-released inmates are rearrested within three years, 20% of them for violent crime. That will mean more than $3 billion in increased costs from crime while causing serious harm to hundreds of thousands of innocent victims.

I've spoken to police chiefs, law enforcement groups and civic associations throughout California about the issue, and they're deeply worried about the crime wave this scheme will unleash. It will be hard enough to make San Jose a safer community in tough economic times without the problems caused by early release.

Obviously, Kelly hasn't talked to the California Police Chiefs Association, which endorsed the plan as a smart step to begin to move away from the failed prison policies of the last thirty years. Foremost among these new ideas is the concept of targeting resources - instead of warehousing the terminally ill or blanket strict supervision on everyone released regardless of determining possibility of recidivism, we can put resources into programs that provide opportunity for prisoners to pay their debt to society and move on. This deal doesn't do all of that, but it does, for example, put ill and infirm prisoners under home detention or in a care facility, which doesn't impact public safety and saves money. It offers incentives for prisoners to complete rehabilitation plans. It reviews the cases of illegal immigrants in jails instead of just tossing them in the lap of the ICE to deal with, which would actually be the kind of misguided policy Kelly warns against. And most important, it includes an independent sentencing commission, outside of politics, which can look at our sentencing laws and make recommendations for the legislature to adopt on an up-or-down vote.

Using the buzzword of "early release" of "dangerous prisoners" is an old Tough on Crime ploy from way back, evoking memories of the Willie Horton ad in the 1988 Presidential race. It's irresponsible and not relevant to what is being discussed. We have the perfect Tough on Crime prison policy right now - and it's not working in every respect, to the extent that federal courts have stepped in to take control of it. Overcrowded prisons cannot fulfill their core mission of rehabilitating those jailed, and that's especially true where nonviolent offenders who need medical treatment for addiction and not incarceration are concerned. Brute force has not worked in making the state safer and has certainly caused our budget to skyrocket. And the truth is that more sensible policies can save money and create better prisons at the same time.

We need real reform in prison and parole policy, through concentrated resources, community corrections, and maintaining manageable prison capacity for those who really need to be there, and what will get decided in the legislature next month represents an important step. It can be easily derailed by fearmongering from the likes of Chris Kelly, trying to win an election on the backs of the poor and disenfranchised, on whom such brute-force policies typically rain down.

Over the next month I'll be looking far more closely at this issue, as it's the first big battle in regaining control of our state. And it's a winnable fight.

Chris Kelly: Tough On Crime FAIL

Far be it from me to agree so aggressively with my friend Steve Maviglio, but he's absolutely right that Chris Kelly is making a fool out of himself by holding to outdated and dangerous Tough on Crime rhetoric in his campaign for Attorney General. Kelly, the former Facebook chief privacy officer, has created a Cause called "Protect Our Communities." As Maviglio says, George Runner couldn't have done it better himself:

Do you think the early release of 20,000 convicted felons will solve California's budget crisis? I don't.

Please stand with me: Click here to join my new "Protect California Communities" cause on Facebook and help me build grassroots opposition to this phony budget plan!

Our state is already more than $26 billion in debt and issuing hundreds of millions more in IOUs every week.

We need innovative solutions to get out of this mess. But a plan by Governor Schwarzenegger and some in the Legislature to early release nearly 20,000 felons from state prison is not one of them.

I'm all for prison reform -- but this is surrender, not reform. Even if it would save us money -- which it won't -- putting thousands of dangerous criminals back on the streets is a risk that California should never take.

Please stand with me: Click here to join my new "Protect California Communities" cause on Facebook and help me build grassroots opposition to this phony budget plan!

"Dangerous criminals" back on the streets include the terminally ill, nonviolent drug offenders and people returned to prison for the crime of technical parole violations, which eats up about 2/3 of total incarcerations in California in any given year. This is the kind of absurd rhetoric that has our prisons full to bursting, that has created 1,000 sentencing laws passed by the Legislature in the past 30 years, ALL OF THEM increasing sentences, that has turned our parole policy and prison health care systems into a national joke and a federal crime, that has cost the state billions in overtime for prison guards and overall system costs, that has scared the public into passing really dangerous, pernicious laws like three strikes, that has nearly busted our Treasury, destroyed our corrections system and eliminated any possibility for rehabilitation.

The Attorney General position can be one of leadership in producing alternatives to our prison crisis. Kelly has forfeited any ability to call himself a leader by playing to the least common denominator. He can go back now to devising schemes to strip privacy on social networking sites.

Ending Prison Rape

Being sentenced to prison is supposed to be the punishment. People who commit crimes should not be subject to another crime, the crime of rape, as a consequence of their incarceration. It's brutal, cruel and wrong. Too often, corrections facilities look the other way at this practice, thinking wrongly that it maintains order among their populations. I'm heartened that a commission has offered concrete steps for corrections officials to reduce and eventually eliminate prison rape.

The number of rapes committed by detention staff members and other inmates remains a subject of intense scrutiny. A 2007 survey of state and federal prisoners estimated that 60,500 inmates had been abused the previous year. But experts say that the stigma of sexual assault often leads to underreporting of incidents and denial by many of the victims.

Too often, the report says, sexual abuse of prisoners is viewed as a source of jokes rather than a problem with destructive implications for public health, crime rates and successful reentry of prisoners into the community.

"If you have a zero-tolerance policy on prison rape and it is known from the highest ranks that this will not be tolerated and there will be consequences for it, that goes a long way in sending a message," said U.S District Judge Reggie B. Walton, the commission chairman. "Just because people have committed crimes and are in prison, that doesn't mean that part of their punishment is being sexually abused while in detention."

These recommendations from the panel go to the Attorney General, who has a year to create national standards. Our jails are a mess, and reducing the brutal crime of rape will start us down the road of rehabilitating them.

And I'm pleased to have an ally in Eli Lehrer of the National Review. There's no reason for prison rape to ever be a partisan issue.

The federal report’s conclusions — a zero-tolerance policy, more direct monitoring, and the like — almost are all common sense. State, local, and federal governments should take immediate legislative and administrative action to implement nearly everything in the report. (Most of the practices are already commonplace in the federal and better-run state systems.) Although giving trial lawyers more business rarely makes sense, Congress may also want to reconsider laws that make it very difficult for prisoners to sue prison authorities absent concrete evidence of physical harm. It’s quite possible that many legitimate prison-rape claims get thrown out of court under current laws. And prison rape needs to stop.

I can't believe I'm saying this, but what the guy from the Competitive Enterprise Institute said.

The Military Commissions Would Be The Problem

They've hinted at this for weeks, and obviously the civil liberties and human rights communities didn't offer enough pushback, so the President is going ahead with modified military commissions to try suspected terrorists, the same commissions he decried as a candidate.

The Obama administration will announce plans Friday to revive the Bush-era military commission system for prosecuting accused terrorists, current and former officials said, reversing a presidential campaign pledge to rely instead on federal courts and the traditional military justice system [...]

White House officials insisted that Obama was not overturning a campaign vow. The president "never promised to abolish" military commissions, an administration official said. However, during his campaign Obama repeatedly called for change.

"It's time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice," Obama said in one such statement on the subject last August.

The administration still intends to prosecute some Guantanamo Bay detainees in federal courts, as Obama had pledged. But officials have concluded that a small number of detainees can be tried only in the military commissions, said a U.S. official familiar with the changes, speaking on condition of anonymity in advance of Friday's announcement [...]

The administration contends its revisions would improve the system by banning the use of any evidence obtained through coercion and will restrict the use of hearsay evidence.

The rule changes will also give detainees more latitude in choosing lawyers to represent them, according to the U.S. official, who described them on condition of anonymity because of Friday's announcement.

But those changes are widely viewed as cosmetic by critics both in and out of government.

No military judge has allowed evidence obtained through coercion or torture anyway. And these few safeguards did not form the basis of objections from civil liberties groups, as Glennzilla notes today. The problem was taking these cases out of the standard criminal justice system or the Uniform Code of Military Justice and creating a new system outside standard law that during the Bush Administration was correctly seen as nothing but a kangaroo court. If you argue that we need military commissions, you basically argue that the legal system is somehow insufficient to try terror suspects, despite the fact that prosecutors have obtained dozens of convictions for those suspected of terrorism in the past. It creates an authoritarian system that the President can determine to direct at certain suspects but not others. It weakens our legal system overall, by suggesting that it cannot properly try certain sensitive cases. And it would call into question any convictions gained through the process because of their existence outside the normal legal channels, seemingly for arbitrary reasons. Therefore it is not the specifics of the commissions that constitute the problem, but the very fact of the commissions themselves.

If we can use a court-martial system, we should. The message to the Islamic world would be much more powerful if we use the same system to try suspects of terrorism that we use to try our own members of the military. Obama's own deputy Solicitor General, Neal Katyal, explains:

In stating that the rules governing courts martial do not apply to commissions, the administration has placed itself in stark contrast to other administrations. Even in the midst of the Vietnam war, with thousands of dead, President Nixon's Defense Department examined the commissions option and concluded that "the specific protections of the Bill of Rights, unless made inapplicable to military trials by the Constitution itself, have been held applicable to courts-martial. Both logic and precedent indicate that a lesser standard for military commissions would not be constitutionally permissible."

Sen. Kerry's views closely resemble those of President Nixon's Defense Department, whereas (as I have said elsewhere in Slate) President Bush's closely resemble those of King George III. . . .

The danger with these commissions comes not only in their threat to our Constitution, and our standing in the world as a beacon of fairness, but also in their challenge to the perception of military justice. Our nation—whomever the next president may turn out to be—should admit it made a mistake and return to using our powerful and fair system of courts martial—a system that would generate swifter convictions of terrorists. As our nation's great Chief Justice John Marshall put it in 1803, ours is a "government of laws, and not of men."

You either believe in American law or you don't. The President has made his decision.

Third Time's A Charm

The Miami group who couldn't even afford guns but who apparently were all set to blow up the Sears Tower got convicted after two mistrials yesterday, and I have to agree with Jonathan Turley on this:

Some legal scholars said the case would continue to be viewed as an example of the Bush administration’s overzealous approach to terrorism prosecutions.

“The past cases ending in hung juries showed that the Justice Department had trouble matching the evidence with their rhetoric,” said Jonathan Turley, a professor at George Washington Law School. Professor Turley added, “It goes to show that if you try it enough times, you’ll eventually find a jury that will convict on very little evidence.”

This is a bad day for the justice system. The Liberty City group had no weapons and no plans. An overzealous informant practically walked them through the entire plan and insisted that they take a pledge for Al Qaeda. They are a poor gang being treated like dangerous terrorists.

The President ought to consider commuting the sentences.

Judge Invalidates Part of Prop. 9 - Victory For Prison Reformers

Once again, a judge has invalidated parts of a "tough on crime" ballot initiative. Earlier it was Jessica's Law, Prop. 83, which was ruled partially unconstitutional. Now Prop. 9, passed last year, has been found to have illegal provisions.

A key part of a victims' rights measure voters approved in November was blocked Thursday by a federal judge, who ruled that the state cannot restrict parole violators' right to state-provided legal counsel when considering whether to send them back to prison.

Senior Judge Lawrence K. Karlton of the U.S. District Court in Sacramento ruled against Gov. Arnold Schwarzenegger and the state in issuing an injunction against part of Proposition 9, the measure known as the Victims' Bill of Rights Act of 2008: Marsy's Law.

The initiative dictates that the state provide legal counsel to parole violators only under certain circumstances, including when the case is unusually complex or when the parolee is indigent or has issues of mental competency.

The SacBee has more. I don't know how this could ever have even reached the ballot in the first place. And this is part of our insane parole policy, which even before this law was failing the state. 67% of all inmates sent to prison in 2007 were parole violators, often for technical violations. As I wrote then:

It is a financial and moral disaster that we are throwing men and women back in jail for parole violations at such an accelerated rate, far beyond any other state in the country. This is clearly a factor of the state's parole policy, which is too constrictive and too quick to return people to prison. It surely leads to the high recidivism rate for those who commit crimes multiple times - if they feel they can't escape the system once they're in it, they simply have no incentive to rehabilitate themselves [...]

We are diseased by the prison-industrial complex. Prison construction is good for the CCPOA and supposedly good for the economy but it's based on a flawed notion that all construction spending is valuable. In fact, prison construction, especially of the type so needless that bringing parole policy in line with the other 49 states in the union would practically eliminate the overcrowding crisis and rendering the need for more beds moot, crowds out other, more valuable building projects that have a tangible value to people's lives. We are violating the human rights of inmates and the Constitutional provision against cruel and unusual punishment, as well as stifling innovative public investment, because the parole officers have a powerful lobby and the Tough on Crime dementia has infested the minds of practically every legislator in the state for 30 years.

At the national level, we are finally seeing the seeds of a robust prison reform movement. Jim Webb and Arlen Specter have submitted a bill to completely overhaul the criminal justice system. The bill would commission a panel to review incarceration rates, sentencing policies, gang violence, prison administration and reintegration of offenders. This sounds like a small step, but considering that absolutely nothing has been done to stop the train of "tough on crime" insanity from rolling down the track in decades, it's significant. A copy of the legislation is here. Sen. Webb remarked:

"America's criminal justice system has deteriorated to the point that it is a national disgrace," said Senator Webb. "With five percent of the world's population, our country houses twenty-five percent of the world's prison population. Incarcerated drug offenders have soared 1200% since 1980. And four times as many mentally ill people are in prisons than in mental health hospitals. We should be devoting precious law enforcement capabilities toward making our communities safer. Our neighborhoods are at risk from gang violence, including transnational gang violence [...]

"We are not protecting our citizens from the increasing danger of criminals who perpetrate violence and intimidation as a way of life, and we are locking up too many people who do not belong in jail," concluded Webb. "I believe that American ingenuity can discover better ways to deal with the problems of drugs and nonviolent criminal behavior while still minimizing violent crime and large-scale gang activity.

The bill has 14 co-sponsors, neither or whom are named Boxer or Feinstein. Tell them they should know better, with the prison crisis consuming more and more of the state budget and destroying the lives of nonviolent offenders.

Good Obama Meets Bad Obama Mid-Answer

Barack Obama says all the right things in this riposte to Dick Cheney about Guantanamo, right up until the point where he makes a distinction between terrorist suspects and suspects of any other criminal stripe:

PRESIDENT OBAMA: I fundamentally disagree with Dick Cheney. Not surprisingly. You know, I think that-- Vice President Cheney has been-- at the head of a-- movement whose notion is somehow that we can't reconcile our core values, our Constitution, our belief that we don't torture, with our national security interests. I think he's drawing the l-- wrong lesson from history.

The facts don't bear him out. I think he is-- that attitude, that philosophy has done incredible damage-- to our image and position in the world. I mean, the fact of the matter is after all these years how many convictions actually came out of Guantanamo? How many-- how many terrorists have actually been brought to justice under the philosophy that is being promoted by Vice President Cheney? It hasn't made us safer. What it has been is a great advertisement for anti-American sentiment. Which means that there is constant effective recruitment of-- Arab fighters and Muslim fighters against U.S. interests all around the world.

STEVE KROFT: Some of it being organized by a few people who were released from Guantanamo.

PRESIDENT OBAMA: Well there is no doubt that-- we have not done a particularly effective job in sorting through who are truly dangerous individuals that we've got to-- make sure are not a threat to us, who are folks that we just swept up. The whole premise of Guantanamo promoted by Vice President Cheney was that somehow the American system of justice was not up to the task of dealing with these terrorists.

I fundamentally disagree with that. Now-- do these folks deserve Miranda rights? Do they deserve to be treated like a shoplifter-- down the block? Of course not.

STEVE KROFT: What do you do with those people?

PRESIDENT OBAMA: Well, I think we're going to have to figure out a mechanism to make sure that they not released and do us harm. But-- do so in a way that is consistent with both our traditions, sense of due process, international law. But this is-- this is the legacy that's been left behind. And, you know, I'm surprised that-- the Vice President is eager-- to defend-- a legacy that was unsustainable. Let's assume that we didn't change these practices. How-- how long are we going to go? Are we going to just keep on going until-- you know, the entire Muslim world and Arab world-- despises us? Do we think that's really going to make us safer? I-- I don't know-- a lot of thoughtful thinkers, liberal or conservative-- who think that that was the right approach.

If Obama could spend every day reacting to Dick Cheney quotes, I imagine it would please him and his staff greatly. But he could have ended with the fundamental disagreement that the American justice system is not up to the task of dealing with terrorists. But I guess politics intruded, or some knee-jerk reaction toward moderation, and Obama makes a truly puzzling hedge, that terrorist don't deserve to be treated like shoplifters. On the grounds of their post-conviction sentence, that makes perhaps some sense, and maybe on bail being set, but not at all on the grounds of anything else. You cannot set up parallel justice systems, that's the entire point of disagreeing that it's insufficient to deal with terrorists. A process of indefinite detention with good intentions remains a flawed process.

This is a troubling pattern. I mean, continued airstrikes against Al Qaeda suspects in Pakistan may be legally justifiable. They may be consistent with international norms. They may even be effective in the short term. But they inspire the exact same passions among the citizenry being bombed, especially when those bombs are errant and hit things like wedding parties and peaceful villages, that Obama condemned Dick Cheney for inspiring with his indefinite detention and torture process at Guantanamo. Since entering office Obama has stepped up the unmanned Predator drone attacks dramatically, in a continuum with the Bush Administration's practice after Pervez Musharraf left office. The strategic consequences are not only immense but PRECISELY AS OBAMA OUTLINED with respect to Guantanamo. Obama seems mindful of the long-term strategic impact of engaging the Muslim world and winning the battle of public opinion, and yet there are very legitimate consequences to airstrikes that can kill civilians, anger populations, and disrupt political dynamics in an unstable country. In fact, that's supposed to be WHY we're sending more troops to Afghanistan.

Colin Cookman writes:

While these strikes may bear some meaningful short- and medium-term successes, as a long-term strategy their value is less clear. Research from the RAND Corporation into the case histories of 648 terrorist organizations that carried out attacks between 1968 and 2006 found that only 7 percent were successfully eliminated through direct military force. This is in contrast to 43 percent who dropped their violent activities after some form of political accommodation and 40 percent who were broken up successfully through some combination of local policing, infiltration, and prosecution.

I imagine that the President has weighed the costs and benefits and decided that short-term disruptions in Al Qaeda leadership are worth the price. And there's the time-honored Democratic practice of "looking tough" in the White House. But the dissonance between the stated vision and reality is a little bit hard to swallow.

The Slow Winding Down Of The Drug War

When the Administration announced an end to medical marijuana raids by the DEA, they abruptly took back the statement a few hours later. There was a bit of confusion about the new policy. Eric Holder put an end to that.

Attorney General Eric Holder signaled a change on medical marijuana policy Wednesday, saying federal agents will target marijuana distributors only when they violate both federal and state law.

That would be a departure from the policy of the Bush administration, which targeted medical marijuana dispensaries in California even if they complied with that state's law.

"The policy is to go after those people who violate both federal and state law," Holder said in a question-and-answer session with reporters at the Justice Department.

Good. There is little justification to waste Justice Department resources harassing Californians and Americans in 12 other states engaging in perfectly legal activity. Holder must follow the law but he also has discretion in setting priorities, and it's good to see him recognize that arresting local businessmen and their patients makes no sense. There remain questions about outstanding medical marijuana federal court cases with over two dozen dispensaries, and hopefully the solution will be to drop the charges.

In a related story, Maxine Waters wants to end mandatory minimum sentencing for federal drug offenses, and the bill has 15 co-sponsors. The Bureau of Prisons budget has increased 25-fold since mandatory minimums were introduced. Small drug cases belong in state courts, where offenders could be given treatment instead of jail. Furthermore, these kind of drug cases disproportionately impact minority communities.

H.R. 1466, the Major Drug Trafficking Prosecution Act of 2009, seeks to repeal mandatory minimum sentences for drug offenders and to give courts the ability to determine sentences based on all the facts, not just drug weight. It would also refocus federal resources on major drug traffickers instead of low-level offenders. There is currently no companion bill in the Senate.

Sen. Boxer, your office phone is ringing.

Change Comes From Bill Richardson

Not only do I like Gov. Richardson's conclusion, I appreciate his deliberative thought process. A two-term governor has spent time with victim's families, no question. He has witnessed the grief and the anger and the frustration. But in the end, he went with his own moral precepts.

Gov. Bill Richardson signed legislation Wednesday to repeal New Mexico's death penalty, calling it the "most difficult decision in my political life."

The legislation replaces lethal injection with a sentence of life in prison without the possibility of parole.

"Faced with the reality that our system for imposing the death penalty can never be perfect, my conscience compels me to replace the death penalty with a solution that keeps society safe," the Democratic governor said at a news conference in the Capitol.

New Mexicans will be safer with the punishment of life in prison without parole because the worst criminals "will never get out of prison," he said.

The language of "safety" remains prevalent, but I admire the recognition that life in prison without the possibility of parole is a sufficient deterrent, rather than using the power of the state to roll the dice on killing a potentially innocent human being.

15 states now have no death penalty, but New Mexico is just the 2nd to ban the practice since the Supreme Court's reinstatement of capital punishment in 1976. New Jersey did the same in 2007, suggesting that the issue is somewhat less politically charged. It remains a very tough move, however, and nobody really knew what Richardson would do after the legislature voted to repeal. He sought guidance from the people who elected him, a novel idea:

In preparing for his decision, the governor solicited input over the weekend from state residents. According to his office, he got more than 9,000 responses by e-mail and in person.

"In a society which values individual life and liberty above all else, where justice and not vengeance is the singular guiding principle of our system of criminal law, the potential for wrongful conviction and, God forbid, execution of an innocent person stands as anathema to our very sensibilities as human beings," Richardson said in prepared remarks. "That is why I'm signing this bill into law."

As a practical matter, the consequences are relatively small: New Mexico has executed but one prisoner in the last 49 years. As a moral matter, inching this country closer to the international consensus that state-sponsored killing does not comply with modern civilization, speaks volumes.

And The Horse He Rode In On

What I want to know is, why did it take this long for a Bernie Madoff plea to come together, when the Feds had documentary evidence of his crimes and a confession? Especially since there's no plea agreement? The guy has been living under penthouse arrest in his multimillion-dollar apartment in Manhattan for months, able to send out jewelry (and probably cash) to friends and relatives. I guess the hurdle was whether he would agree to be prosecuted without a grand jury indictment, which would take longer, but shouldn't that have been put into motion months ago?

It seems to me that Madoff got an extended furlough from prison for no discernible reason. He will meet his fate soon enough, but something about that is irksome. I don't see low-level liquor store thieves getting to spend 3 months hanging out at their house before sentencing.

The Real Bush Legacy Project

For the last several weeks, and I'm sure until George Bush steps aside next week as well as in tonight's "farewell address," officials of the outgoing Administration are wearing themselves out selling an image of him as a wise, judicious, successful President with bold vision and unflappable will. 65-70% of the country think this is insane, nor do they believe it, and going on television to proudly announce that the death of 4,500 soldiers was well worth the foreign policy catastrophe created in Iraq, for example, isn't helping. The question of how history will judge these individuals can at this point only be altered by whether or not they are prosecuted for the crimes they willingly committed.

I'm wondering if they even need to bother with all this. The Bush regime will have a legacy, and not just the expansion of executive power or the model for future Presidents on how to break the law repeatedly, treat Congress with nothing but scorn, and get away with it. No, there's an even more tangible legacy than that, which will play out every day for the next couple decades at 1 First Street NE in Washington:

The Supreme Court ruled Wednesday that evidence obtained from an unlawful arrest based on careless record keeping by the police may be used against a criminal defendant.

The 5-to-4 decision revealed competing conceptions of the exclusionary rule, which requires the suppression of some evidence obtained through police misconduct, and suggested that the court’s commitment to the rule was fragile.

Chief Justice John G. Roberts Jr., writing for the majority, said that the exclusion of evidence should be a last resort and that judges should use a sliding scale in deciding whether particular misconduct by the police warranted suppressing the evidence they had found.

“To trigger the exclusionary rule,” Chief Justice Roberts wrote, “police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”

That price, the chief justice wrote, “is, of course, letting guilty and possibly dangerous defendants go free.”

The case itself is noteworthy. Bernie Herring had an adversarial history with a cop in his Alabama town. His truck was impounded and he went to the sheriff's office to pick it up. The cop ran a check for outstanding warrants and found what he thought to be one, he arrested Herring. The officers detained Herring, and found a gun and traces of methamphetamines on him. Minutes later, the officers discovered that the arrest warrant was faulty. Nevertheless, he was tried for drug possession and sentenced to 27 months(!).

And the Supreme Court now has ruled that the evidence, gained through what amounts to a warrantless search, is admissable.

The decision in the case, Herring v. United States, No. 07-513, may have broad consequences, said Craig M. Bradley, a law professor at Indiana University.

“It may well be,” Professor Bradley said, “that courts will take this as a green light to ignore police negligence all over the place.”

Chief Justice Roberts, who was joined by Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr., said the exclusionary rule was unlikely to deter isolated careless record keeping and should be reserved for “deliberate, reckless or grossly negligent conduct, or in some circumstances recurring systemic negligence.”

Of course, these 5 will decide what ought to be considered negligent conduct for the near future. And that line will get moved, and moved, and moved. Scott Lemieux has a lot more.

We'll be dealing with reactionaries on the Supreme Court for a long time, two of them placed there by this President. Civil liberties, women's rights, consumer protection, and a host of other issues will be at stake. Among the next up is the Voting Rights Act.

The Supreme Court agreed yesterday to examine whether a central component of landmark civil rights legislation enacted to protect minority voters is still needed in a nation that has elected an African American president.

The court will decide the constitutionality of a provision of the Voting Rights Act of 1965 that seeks to protect minority voting rights by requiring a broad set of states and jurisdictions where discrimination was once routine to receive federal approval before altering any of their voting procedures.

The Supreme Court has upheld the requirement in the past, saying the intrusion on state sovereignty is warranted to protect voting rights and eliminate discrimination against minorities. But challengers say it ignores the reality of modern America and "consigns broad swaths of the nation to apparently perpetual federal receivership based on 40-year-old evidence."

This comes conveniently before the 2010 Census and the next round of reapportionment and redistricting in the states.

That right-wing bloc on the Court is relatively young, incidentally. Weep not for George W. Bush. He's got a legacy. Not content just to screw us for eight years, the pain will be felt for decades.

But Think Of The Children!

Or, rather, think of the distortions we peddle to get you to think of the children!

The Internet may not be such a dangerous place for children after all.

A task force created by 49 state attorneys general to look into the problem of sexual solicitation of children online has concluded that there really is not a significant problem.

The findings ran counter to popular perceptions of online dangers as reinforced by depictions in the news media like NBC’s “To Catch a Predator” series.

Wait, you mean a sensationalized television show doesn't provide the whole story? You mean not everyone on the Internet is a pervert?

Well, blow me down.

“This shows that social networks are not these horribly bad neighborhoods on the Internet,” said John Cardillo, chief executive of Sentinel Tech Holding, which maintains a sex offender database and was part of the task force. “Social networks are very much like real-world communities that are comprised mostly of good people who are there for the right reasons.” [...]

The task force, led by the Berkman Center for Internet and Society at Harvard University, looked at scientific data on online sexual predators and found that children and teenagers were unlikely to be propositioned by adults online. In the cases that do exist, the report said, teenagers are typically willing participants and are already at risk because of poor home environments, substance abuse or other problems.

Can't wait until Joe Lieberman gets the news. Think of how great he'll feel to be able to stop endlessly moralizing!

The Internet is "dangerous" in the same respect that walking down the street is "dangerous." The meme was always pushed by over-sensitive figures on the theocratic right who wanted to use fear as a weapon to censor and stifle dissent. It happens to be untrue.

Bell Tolls For Three Strikes?

This is a major, if tentative, victory for criminal justice reform advocates.

California's three-strikes sentencing law suffered a blow Tuesday when a federal appeals court struck down as unconstitutional a 28-years-to-life sentence for a sex offender who failed to register with local police at the correct time of year.

The U.S. 9th Circuit Court of Appeals sent the case of Cecilio Gonzalez back to federal district court in Los Angeles for resentencing after finding his 2001 penalty constituted cruel and unusual punishment, which is prohibited by the 8th Amendment.

Gonzalez's harsh sentence was grossly disproportionate to his "entirely passive, harmless and technical violation of the registration law," the appeals court said.

This case represented the unintended consequence of three-strikes carried out to its most ridiculous extreme. 28 to life for registering, but not at the right time of year? Nuts. This isn't a crime in 11 states, and the maximum sentence allowed by customary law in California is three years.

In case the "tough on crime" absolutists start shieking about "activist liberal judges" overturning the will of the people, consider who wrote this opinion: Jay Bybee. Nominated by George W. Bush Jay Bybee. Writer of the fucking torture memo Jay Bybee. Even a guy who justified the torture of prisoners considers this cruel and unusual punishment. There is no indication whether or not Jerry Brown would carry this to an appeal, but considering the opinion of this very conservative jurist, I would imagine the US Supreme Court would at least potentially rule the same way, although they struck down a similar challenge to three strikes in 2003 on a 5-4 vote. Put it this way, I don't see Bybee as more conservative than Anthony Kennedy.

This does not invalidate three strikes entirely, but it certainly gives a ray of hope to those locked up for a minor third crime to challenge their sentencing. And it provides a framework to show how unjust and counter-productive these stringent mandatory sentences are. Three strikes is more of a symptom than the entire problem - the legislature has approved over 1,000 higher sentences in the past 30 years. But this is an important start, to end the tyranny of "tough on crime" absolutism that has contributed to busting the state budget and making this the worst state in the union when it comes to the corrections system.