Patterico's Pontifications


Supreme Court Rejects Life Without Parole for Some Juvenile Offenders

Filed under: Civil Liberties,Judiciary,Law — DRJ @ 3:00 pm

[Guest post by DRJ]

Via ScotusBlog, the Supreme Court today ruled that some juvenile offenders cannot be sentenced to life without parole:

“In Graham v. Florida (08-7412), the Court reverses and remands, in an opinion again by Justice Kennedy. The vote is 6-3, with Justice Thomas dissenting, joined by Justice Scalia and in part by Justice Alito. Justice Alito files a separate dissenting opinion for himself. Justice Stevens, joined by Justices Ginsburg and Sotomayor, concurs, even though all three join the majority opinion, and the Chief Justice concurs in the result alone.

* Holding: It is unconstitutional to sentence a juvenile offender to life in prison without parole when the crime does not involve murder, given the Eighth Amendment’s ban on “cruel and unusual” punishment.

The Court dismisses Sullivan v. Florida (08-7621) as improvidently granted, in this per curiam opinion.”

The Sullivan and Graham cases were considered by their advocates as companion cases because both:

“… ask the Court to address whether the differences between children and adults that led the Court to strike down the death penalty for children also make permanent imprisonment a constitutionally impermissible punishment for a child.”

In 2005 in Roper vs Simmons, the Supreme Court abolished the death penalty for offenders under 18. The Graham decision appears to continue the Court’s evolution in applying the “cruel and unusual punishment” standard to juvenile offenders.


US vs Comstock: Commitment of Sex Offenders

Filed under: Civil Liberties,Judiciary,Law — DRJ @ 3:00 pm

[Guest post by DRJ]

The Supreme Court issued several opinions today. One was U.S. vs Comstock summarized at ScotusBlog:

“In United States v. Comstock (08-1224), in an opinion by Justice Breyer, the Court reverses and remands the lower court’s decision. The vote is 7-2, with Justice Thomas dissenting, joined by Justice Scalia. Justice Kennedy concurs in the judgment only, joined by Justice Alito.

* Holding: The Court upholds the law passed by Congress to order the civil commitment of a mentally ill federal prisoner who is a sex offender with the commitment to continue beyond the date the inmate otherwise would be released.”

I haven’t had a chance to read the opinion, but the story that led to the civil commitment of sex offenders and the discussion at oral argument in this case provide interesting background:

“The police photograph is chilling. In grainy black and white tones, it shows 13-year-old Martin Andrews sitting in a makeshift box, his leg chained. The look in his eyes is one of fear, fatigue and disbelief. He had just been rescued from a nightmare.

“I was abducted by a sexually violent predator by the name of Richard Ausley, who had been twice convicted for sexually assaulting young boys, and he had taken me for eight days,” Andrews recalled of his ordeal 37 years ago. “I was left to die.”

As a survivor of a sex crime, Andrews is one face of an issue the Supreme Court revisits Tuesday: civil commitment, which allows the government to keep sex offenders in custody even after they have served their sentences. Twenty states have such laws, including Virginia, where Andrews was held captive and repeatedly assaulted.

During Tuesday’s arguments, the justices expressed some doubts about whether the state’s duty to protect the public from “sexually dangerous” individuals might trump due process.

“Why doesn’t the federal government’s authority to have custody because of the criminal justice system end when the criminal justice system is exhausted?” said Chief Justice Roberts. “In other words, when the sentence is done?”

“You are talking about endangering the health and safety of people, so the government has some responsibility, doesn’t it?” countered Justice Ruth Bader Ginsburg.

CNN normally doesn’t name victims of sex crimes, but Andrews, now a victims’ advocate, agreed to tell his story.

On the other side of the debate is the first sex offender released from Virginia’s civil commitment program, and one of just a handful nationwide.

“I served my time for what I did, and I didn’t feel like I should be incarcerated again,” said this man, who asked that his identity not be revealed for fear of retribution. “It was a scary thing to know that you could be committed to a mental institution for the rest of your life.”

The man said mandatory therapy helped him, but he thinks that could have been initiated while he was in prison.”



Holder Suggests Terrorism Exception to Miranda

Filed under: Civil Liberties,Crime,Terrorism — DRJ @ 6:16 pm

[Guest post by DRJ]

Attorney General Eric H. Holder, Jr., believes Congress should consider legislating a terrorism exception to Miranda:

“Attorney General Eric Holder said that Congress should “give serious consideration” to updating the Miranda warning which requires law enforcement officials to inform suspects of their rights – including the right to remain silent.

In an interview on “This Week,” Holder said that the U.S. needs to exam whether the current rules regarding Miranda warnings give law enforcement agents the “necessary flexibility” when dealing with terrorism cases.

“If we are going to have a system that is capable of dealing, in a public safety context, with this new threat,” Holder said, “I think we have to give serious consideration to at least modifying that public safety exception” of Miranda warnings, which allows law enforcement agents to ask suspects about impending threats before reading them their rights.”

Surprised? I’m not.



California Principal Regrets Decision

Filed under: Civil Liberties,Education — DRJ @ 2:29 pm

[Guest post by DRJ]

The Morgan Hill, California, principal whose assistant principal kicked out five high school students for wearing American flag T-shirts on Cinco de Mayo now says he is sorry for the action:

“Assistant Principal Miguel Rodriguez threw the students out for wearing what he called “incendiary” apparel on Cinco de Mayo.

Turns out, school officials just acted too “quickly.” Perhaps even without thinking.

Live Oak High School Principal Nick Boden accepted the blame while apologizing Friday, saying, “In this situation, I may have moved too quickly in drawing the line of when to take preventative action.”

Officials had cited concerns that fights between students could erupt because of the “incendiary” images of the U.S. flag on the holiday.

“This was never about whether students were allowed to wear patriotic clothing on our campuses. They can. It was about ensuring that our high school campus was orderly and safe,” Wesley Smith, superintendent for Morgan Hill Unified School District, said Friday at a press conference.”

The same Top of the Ticket link also includes Roger Ebert’s reaction, if you care.



Pennsylvania School District Used Student-Issued Laptops to Take Thousands of Photos

Filed under: Civil Liberties — DRJ @ 7:50 pm

[Guest post by DRJ]

Last February I posted on a Pennsylvania school district that acknowledged remotely activating school-issued laptops to locate those reported missing or stolen. It turns out the district surreptitiously took thousands of photos:

“Lower Merion School District employees activated the web cameras and tracking software on laptops they gave to high school students about 80 times in the past two school years, snapping nearly 56,000 images that included photos of students, pictures inside their homes and copies of the programs or files running on their screens, district investigators have concluded.

In most of the cases, technicians turned on the system after a student or staffer reported a laptop missing and turned it off when the machine was found, the investigators determined.

But in at least five instances, school employees let the Web cams keep clicking for days or weeks after students found their missing laptops, according to the review. Those computers – programmed to snap a photo and capture a screen shot every 15 minutes when the machine was on – fired nearly 13,000 images back to the school district servers.”

In one case, an attorney alleged the school district took 400 photos of one student who reportedly had not paid his $55 laptop insurance fee, “including shots of him when he was shirtless and while he slept in his bed.” However, preliminary reports indicate the bulk of the photos related to efforts to track down lost or stolen laptops:

“About 38,500 images – or almost two-thirds of the total number retrieved so far – came from six laptops that were reported missing from the Harriton High School gymnasium in September 2008. The tracking system continued to store images from those computers for nearly six months, until police recovered them and charged a suspect with theft in March 2009.

The next biggest chunk of images stem from the five or so laptops where employees failed or forgot to turn off the tracking software even after the student recovered the computer.

In a few other cases, [the school district’s attorney, Henry] Hockeimer said, the team has been unable to recover images or photos stored by the tracking system.

And in about 15 activations, investigators have been unable to identify exactly why a student’s laptop was being monitored.”

One student filed a civil rights lawsuit because his photos were used for more than retrieving lost laptops:

“About 10 employees at the district and its two high schools had the authority to request the computer administrators to activate the tracking system on a student’s laptop, Hockeimer said.

Only two employees – information systems coordinator Carol Cafiero and network technician Mike Perbix – have the ability to actually turn on and off the tracking. Hockeimer said the district investigators have no evidence to suggest either Perbix or Cafiero activated the system without being asked.

But the requests were loose and disorganized, he said, sometimes amounting to just an brief e-mail.

“The whole situation was riddled with the problem of not having any written policies and procedures in place,” Hockeimer said. “And that impacted so much of what happened here.”

[Sophomore Blake] Robbins has claimed that an assistant principal confronted him in November with a Web cam photo of him in his bedroom. Robbins said the photo shows him with a handful of Mike & Ike candies, but that the assistant principal thought they were drugs.

His attorney, Haltzman, greeted the release of the numbers skeptically.

“I wish the school district would have come clean earlier, as soon as they had this information and not waiting until something was filed in court revealing the extent of the spying,” he said.”

Technology presents novel problems.



Jihad Janes and the Privilege Against Self-Incrimination

Filed under: Civil Liberties,Terrorism — DRJ @ 3:04 pm

[Guest post by DRJ]

One of two American women accused of terror-related charges entered a silent plea to avoid the possibility of incriminating herself:

“With a shake of the head, a pregnant Colorado woman pleaded not guilty Wednesday to a charge of helping foreign terrorists who authorities say were plotting to kill a Swedish artist.

Jamie Paulin-Ramirez, 31, entered the silent plea to avoid giving prosecutors a sample of her voice. The government evidence includes hard drives and other computer files that may contain voice recordings, and her lawyer did not want to provide a sample for comparison.

“If there’s any voice recordings, I would not want to be creating evidence against her,” said lawyer Jeremy Ibrahim, who spent several years at the Justice Department.”

Authorities charge Paulin-Ramirez and a second woman, co-defendant Colleen LaRose, of planning a Muslim jihad to murder Danish artist Lars Vilks, “who angered Muslims with a drawing depicting the Prophet Muhammad with a dog’s body.” They apparently met on or via the internet:

“Acquaintances describe both women as isolated, troubled individuals who spent increasing amounts of time on the Internet, where LaRose allegedly used the online name “Jihad Jane.”

There is no evidence the women ever met before they moved to Ireland to join what LaRose hoped, according to the indictment, would be “a training camp as well as a home.”

I didn’t think the 5th Amendment privilege against self-incrimination prevented the government from obtaining blood, hair, fingerprint, DNA, handwriting or voice samples when a defendant is lawfully accused and detained. I could be wrong or maybe defense counsel just doesn’t want to waive a defense.


Obama Puts American on Terrorist Hit List

Filed under: Civil Liberties,Obama,Terrorism — DRJ @ 4:27 am

[Guest post by DRJ]

Barack Obama objected when the Bush Administration locked up suspected terrorists without due process. Now Obama is willing to kill a suspected American terrorist:

The Obama Administration has taken the unprecedented step of authorising the killing of a US citizen, the radical Muslim cleric Anwar al-Awlaki, linked to the plot to blow up a US airliner on Christmas Day.

The move to place Mr al-Awlaki, 38, on a hit list was taken after a White House review concluded this year that he had moved from inciting terrorist attacks to taking part in them.

The decision is extraordinary not only because Mr al-Awlaki is believed to be the first American whose killing has been approved by a US President, but also because the Obama Administration chose to make the move public.”

As Glenn Greenwald points out:

And what about all the progressives who screamed for years about the Bush administration’s tyrannical treatment of Jose Padilla? Bush merely imprisoned Padilla for years without a trial. If that’s a vicious, tyrannical assault on the Constitution — and it was — what should they be saying about the Nobel Peace Prize winner’s assassination of American citizens without any due process?”
UPDATE: When Obama was seeking the Democratic nomination, the Constitutional Law Scholar answered a questionnaire about executive power distributed by The Boston Globe’s Charlie Savage, and this was one of his answers:

5. Does the Constitution permit a president to detain US citizens without charges as unlawful enemy combatants?

[Obama]: No. I reject the Bush Administration’s claim that the President has plenary authority under the Constitution to detain U.S. citizens without charges as unlawful enemy combatants.

So back then, Obama said the President lacks the power merely to detain U.S. citizens without charges. Now, as President, he claims the power to assassinate them without charges. Could even his hardest-core loyalists try to reconcile that with a straight face? As Spencer Ackerman documents today, not even John Yoo claimed that the President possessed the power Obama is claiming here.”

Unlike Greenwald, I’m not condemning Obama’s decision … but I am pointing out Obama’s political double standard and weak character.



Court-Ordered Proms

Filed under: Civil Liberties,Education — DRJ @ 7:08 pm

[Guest post by DRJ]

MSNBC updates the story about a Alabama high school student who sued because of a ban on same-sex couples attending the prom:

“Constance McMillen, the Mississippi teen suing her high school over a ban on same-sex couples attending the prom, thought the worst might be over when the school agreed to a private dance to be held off school property. But when she and her date arrived at the Fulton Country Club on Friday night, they found only seven other students.

“She didn’t stay very long because of the sparse attendance,” Kristy Bennett, her legal counsel, told”

The ACLU is concerned it was a sham prom:

“We’ve heard there was another event out in the county,” said Bennett, legal director for the Mississippi branch of the American Civil Liberties Union.

“We’re still trying to get more information,” she said, citing a newspaper report last week in which one student was quoted as saying other parties were in the works.

The ACLU is representing McMillen in a lawsuit against the Itawamba County School District and Bennett said that at the very least the sparsely attended dance “will be brought to the court’s attention.”

In a statement, the ACLU said it was “looking further into whether it was a decoy or sham prom.

“It would be deeply troubling if that turns out to be the case since the fact that this prom was occurring was one reason the judge did not force the school district to reinstate its original event,” the ACLU added. “All Constance has ever wanted was to be treated with equality and dignity and to be able to be herself, and this latest event, if it is as it appears to be, is a sad and unfortunate insult added to too many previous injuries.”

If there were other parties (and there probably were), I’m not sure what the legal basis would be for a complaint if the parties are private, by invitation only, and weren’t school-sponsored. The court might be able to force the school district to host a prom but how can it force students to attend? A prom mandate?



FBI Issues Warnings About Anti-Government Groups

Filed under: Civil Liberties,Terrorism — DRJ @ 7:50 pm

[Guest post by DRJ]

An anti-government group has written letters to most and possibly all State Governors asking them to resign in three days. In response, the federal government is warning about the dangers of extremism, although there are no warnings about this group:

“This week, dozens of governors across the country received letters saying if they don’t leave office within three days they would be removed, according to federal documents obtained by The Associated Press. The FBI is warning local police that the anti-government group’s call to remove governors from office could provoke violence, although investigators said they do not see threats of violence in the group’s message.

The group on its Web site advertises a “Restore America Plan” that it says “is a bold achievable strategy for behind-the-scenes peaceful reconstruction of … government without controversy, violence or civil war.”

The FBI said it expects all 50 governors to eventually receive the group’s letters.”

Sometimes it feels like the only people who have First Amendment rights are abortion advocates, environmental crusaders, and anti-war activists. In fairness, though, Homeland Security should immediately issue a warning about Democrats since the recent arrest of Michigan militia members included at least one member who was a registered Democrat.



Merril Jessop Trial Begins in San Angelo

Filed under: Civil Liberties,Law — DRJ @ 10:19 pm

[Guest post by DRJ]

The FLDS trials continue in Texas with the commencement of the sexual assault trial of Merril Jessop. The courtroom was standing room only for jury selection:

“Attorneys in the trial of Merril Leroy Jessop, 35, who faces charges of sexual assault of a child, finished general questioning of potential jurors Monday and began the lengthier process of questioning them one by one to seat a jury.

Early Monday morning, Jessop, a member of the Fundamentalist Church of Jesus Christ of Latter Day Saints, stood in line outside the Tom Green County courthouse with people who will decide his fate as the jury selection process began.

Wearing a blue jacket, tan pants and boots and an American flag tie, he blended in with the crowd, which began assembling at 8 a.m. The last of them squeezed into the courtroom at about 9:45 a.m.

“They had us in there like sardines,” one said.

One court official said the room, filled also with law enforcement personnel and lawyers, was about 30 people over capacity. Members of the media were not allowed in when the jury pool arrived.

Others in the crowd included military service personnel, a candidate for the San Angelo City Council and a Tom Green County commissioner.

About a dozen people were excused from jury duty before noon.

Dozens had lined up inside the courtroom for more than an hour to give reasons they hoped might serve as exemptions.

One clergyman said he had a funeral to attend to that day, although he said he would not seek an exemption. He said this trial is one he is interested in serving on.

Potential jurors standing outside conversed about everything from getting a snack to debating whether punishments they had heard of relating to sexual abuse were too strict or too lenient.”

Jessop is represented by Lubbock attorney Dan Hurley and the State is represented by Eric Nichols of the Texas Attorney General’s office. The point of jury selection is to determine whether a potential juror can fairly hear and decide the case. As Nichols put it: “Standing here today, you haven’t heard a lick of evidence. Can you decide this case based strictly on the evidence?”

EDIT: This website posts what purport and appear to be the State’s Witness List and its Notice of Intent to introduce extraneous acts and offenses.


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