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  Tuesday, June 25, 2002

FBI in Your Library

ALA Posts "FBI in Your Library" Web Page.  . . . This new compilation features links to news articles, materials on the USA Patriot Act, Privacy: An Interpretation of the Library Bill of Rights, and other resources. [The Virtual Acquisition Shelf & News Desk]

There have been several articles in the past few days discussing the provisions (Section 215) in the new USA PATRIOT Act that permit the FBI to request patron information without a normal search warrant.  Related provisions prohibit librarians from telling anyone that the FBI has visited. This new web page from the ALA contains news articles and links to other sources about these provisions. Good reference page.

3:47:05 PM comment []   

Even a "Bad Man" Has Rights

Prof. Gary Solis, a retired Marine who teaches the law of war at Georgetown, has written an excellent op-ed in yesterday's Washington Post concerning Jose Padilla, a k a Abdullah al Muhajir, and Yasser Esam Hamdi, the American citizens, being held as "enemy combatants." I've read a lot about the issues involved with these two; this column is one of the clearest in explaining what's wrong with declaring them enemy combatants.  Furthermore, Prof. Solis explains the impact that holding them in military confinement may have on the public's perception of military justice, usually low already. He also questions whether their confinement violates the Posse Comitatus Act, 18 U.S.C. §. 1385, a criminal statute prohibiting the use of the military in civilian law enforcement. [Thanks again to Howard Bashman at How Appealing.]

11:38:10 AM comment []   

Good analysis of Ring v. Arizona, from Howard Bashman at How Appealing:

What's an extra two years when compared to death? In a decision that should have caught few by surprise, the Court today ruled (6-1)-2 that defendants facing the death penalty are entitled to have juries determine beyond a reasonable doubt the existence of all facts necessary to the imposition of a death sentence. See Ring v. Arizona, No. 01-488 (U.S. June 24, 2002). Justice Ruth Bader Ginsburg wrote the majority opinion, in which Justices Stevens, Scalia, Kennedy, Souter and Thomas joined. As the final paragraph of Justice Ginsburg's well-written opinion explains (okay, I admit it's redundant to say that a Justice Ginsburg opinion is well-written): "The right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the factfinding necessary to increase a defendant's sentence by two years, but not the factfinding necessary to put him to death."

Justice Breyer concurred in the judgment, explaining that while he still thinks that Apprendi was wrongly decided, "death is different," and so juries should be required to decide facts necessary to impose the death penalty. Justice Breyer's opinion concurring in the judgment can be read to say that, personally, he's no big fan of the death penalty. Justice Kennedy, who dissented from the ruling in Apprendi, joined the majority opinion and wrote a short concurrence in which he said that he is willing to accept Apprendi as the law of the land. . . . Justice Scalia also wrote a short concurring opinion, in which Justice Thomas joined, to resume the needling of Justice Breyer that Justice Scalia began in his concurring opinion in Apprendi. Today Justice Scalia at the close of his concurrence urged Justice Breyer to "buy a ticket to Apprendi-land." . . . Finally, Justice O'Connor wrote a dissenting opinion in which the Chief Justice joined. Although Justice O'Connor predicted today's result when she dissented from the Apprendi ruling (which perhaps made her a bit more honest than the Apprendi majority about the consequences of its ruling), she remains unwilling to accept Apprendi as a lawful result and thus refuses to sign-on to today's Apprendi-driven consequences.

So, the Court declares the manner of capital sentencing in five states unconstitutional and casts serious doubt on the capital sentencing schemes in use in four other states. Nearly 700 inmates are on death row in these states, presumably thanks to procedures that are now unconstitutional. The press today had a field day with this information, suggesting that within weeks the death rows in these nine states would be empty except for the sagebrush blowing on through. But, as Justice O'Connor's dissenting opinion correctly observed, most of these prisoners will have no realistic chance at obtaining a shot at a resentencing by a jury:

I believe many of these challenges will ultimately be unsuccessful, either because the prisoners will be unable to satisfy the standards of harmless error or plain error review, or because, having completed their direct appeals, they will be barred from taking advantage of today's holding on federal collateral review.

Certainly the courts will now become even more clogged with suits by death row inmates seeking to grasp onto Ring, but I think that Justice O'Connor has correctly predicted the outcome of those actions, as the Court's ruling last month in Cotton exemplifies.

Janet Napolitano, Arizona's Attorney General (and likely Democratic candidate for Governor), has announced that she believes only 29 of the people on Arizona's death row will be entitled to new hearings. She's also sent a letter to Governor Hull requesting a special session and is working on recommendations for legislation to deal with capital sentencing.  Defense attorneys obviously think that allowing new sentencing hearings for some defendants and not others based on where they are in the appellate process is unfair and plan on litigating that issue.  Today's article from the Arizona Daily Star covers the local impact of the decision here in Tucson.  I'll post updates as things happen.

9:05:26 AM comment []   

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