The Denver Post earns high praise today. Three opinion pieces exploring our ever-increasing lust for vengence over rational and just crime policy.
In One Size Fits All Justice Doesn't Work Peter Chronis of the Post's Editorial Board and former long time crime reporter examines the evolution of murder statutes through interviews with judges, prosecutors and defense attorneys.
Mandatory Madness Grips Our System by Denver Post Deputy Editorial Board Editor Bob Ewegen takes on mandatory minimum sentences. "As Pete Chronis' thoughtful article on this page makes clear, Colorado lawmakers have painted themselves into a corner where a single sentence - life without possibility of parole - is applied to a bafflingly wide variety of criminal offenses."
Ewegen quotes Eric Sterling, president of the Criminal Justice Policy Foundation, a private non-profit educational organization promoting solutions to criminal justice problems, in a Frontline show on the topic, "There have been literally thousands of instances of injustice where minor co-conspirators in cases, the lowest-level participants, have been given the sentences that Congress intended for the highest kingpins. Families are wrecked, children are orphaned, the taxpayers are paying a fortune for excessive punishment."
Ewegen discusses the Lisl Auman case, one that our sister site CrimeLynx has been featuring for some time, and concludes, "The U.S. Congress and the Colorado legislature both need to replace the runaway system of mandatory minimum sentences with laws that once again give trial judges the discretion they need to make the punishment fit the crime."
Last but not least, in an editorial Bring Back Justice the Post opines: "Those who champion iron-fisted laws might consider that more than seven decades of autocratic rule failed utterly to eliminate crime in the former Soviet Union. Somewhere along the way, Americans seem to have forgotten that laws exist to foster justice - not to satisfy the blood lust of victims' kin."
Sunday, July 21, 2002
Friday, July 19, 2002
Postal Service Does About-Face on "Operation Snoops"
We cheered the Postal Service earlier this week when they announced their workers would not participate in Operation Tips.
Now, the about-face. Seems the Postal Service didn't really understand the program (or so they say) and they and union officials are going to meet with the Justice Department about the program before making up their mind.
By the way, TIPS stands for Terrorist Information and Prevention System.
Also from the CNN article linked above, "Members of civil liberties and privacy groups have joined conservative groups in their condemnation of the proposed program, dubbing it "Operation Snoops."
That's our name for it from now on.
Now, the about-face. Seems the Postal Service didn't really understand the program (or so they say) and they and union officials are going to meet with the Justice Department about the program before making up their mind.
By the way, TIPS stands for Terrorist Information and Prevention System.
Also from the CNN article linked above, "Members of civil liberties and privacy groups have joined conservative groups in their condemnation of the proposed program, dubbing it "Operation Snoops."
That's our name for it from now on.
Chandra Levy Forensic Dream Team Formed
Talk about forensic power--the country's three most famous forensic experts in homicides have joined forces to determine who killed Chandra Levy.
That's right, Henry Lee, Michael Baden and Cyril Wecht.
Billy Martin, Levy Family lawyer made the announcement today. The trio examined Levy's remains at the District of Columbia medical examiner's office, and went to Rock Creek Park where the remains were found May 22.
That's right, Henry Lee, Michael Baden and Cyril Wecht.
Billy Martin, Levy Family lawyer made the announcement today. The trio examined Levy's remains at the District of Columbia medical examiner's office, and went to Rock Creek Park where the remains were found May 22.
Ex-NY Police Commissioner Vies for LA Chief's Position
Former NY Police Commissioner Bill Bratton has joined the race for chief of LA's Police Force. We like Bratton a lot. Unlike Guluiani, he knows how to reduce crime without violating civil and constitutional rights. He did an unbelievable job when he had the job in Boston.
We would rather have seen him as Mayor of New York City, but that was not to be this past election.
If you want to know more about him and his theories on policing, look for his book on Amazon. We'll get it here over the weekend...
We would rather have seen him as Mayor of New York City, but that was not to be this past election.
If you want to know more about him and his theories on policing, look for his book on Amazon. We'll get it here over the weekend...
Members of Congress To Hold Press Conference In Support Of Medical Marijuana
Mark your calendars for this one....Congressional representatives, health professionals and patients will be holding a Capitol Hill press conference on Wednesday, July 24, urging Congress to debate and approve H.R. 2592, the "States' Rights to Medical Marijuana Act."
House Bill 2592, introduced by Reps. Barney Frank (D-MA) and Ron Paul (R-TX), would amend federal law so that states wishing to legalize and distribute medical marijuana could do so without running afoul of federal law. The bill has 36 bi-partisan co-sponsors, but has never received a hearing in Congress. For more info, visit this page on NORML's website.
House Bill 2592, introduced by Reps. Barney Frank (D-MA) and Ron Paul (R-TX), would amend federal law so that states wishing to legalize and distribute medical marijuana could do so without running afoul of federal law. The bill has 36 bi-partisan co-sponsors, but has never received a hearing in Congress. For more info, visit this page on NORML's website.
Blog Thanks and News
Thanks to Jason Rylander for his exceptionally nice compliment on our coverage of the Moussaoui attempted plea news yesterday, "Talk Left owns this story and is correcting lots of media mistakes on court process and pleas -- head over there for detailed news."
Over the weekend we will be making the transition from Blogger to Movable Type. We're not expecting down-time, especially since the incredibly web savvy Daily Kos volunteered to help us with it --but if we do, just know we'll be back up asap.
Over the weekend we will be making the transition from Blogger to Movable Type. We're not expecting down-time, especially since the incredibly web savvy Daily Kos volunteered to help us with it --but if we do, just know we'll be back up asap.
Thursday, July 18, 2002
As It Unfolded: Moussaoui Tries to Plead Guilty
5:00 If there was a news conference, we didn't see it. We did just see a taped report of NBC's Pete Williams on MSNBC, and he got it right as to the procedure. So did Dan Abrams on his show at 6pm ET. According to a law professor interviewed by Pete Williams in his piece, the death penalty is legally doubtful for Moussaoui if all he did was join the conspiracy but didn't actually kill or hurt anyone. Dan disagreed, pointing out that the jury was allowed to consider the death penalty for Terry Nichols even though he was not in Oklahoma City the day the federal building there was bombed. (The Nichols jury voted for life over death, which explains the State of Oklahoma's insistence on trying him in state court where he will once again be subject to the death penalty. )
Our view: Send in the lawyer from Texas that Moussaoui asked to have advise him weeks ago. It shouldn't matter that the lawyer isn't licensed in Virginia, he's not seeking to enter his appearance as Moussaoui's counsel, only to advise Moussaoui while he is representing himself. It's clear Moussaoui doesn't understand the consequences of pleading guilty if he thinks it is a guarantee of saving his life. And sending Moussaoui to face a death penalty jury without advice of counsel of choice is not a resolution Americans should be proud of--or stand for.
1:15 News conference hasn't started yet, but some misinformation is emerging on two cable networks that we've seen about what happens sentencing-wise if Moussaoui pleads guilty.
Here is the applicable federal death penalty statute.
First, contrary to what one analyst has said, Moussaoui does not need the Government's permission to plead guilty. There is no plea bargain here. Anyone can plead guilty at any time to all of the charges against them. They just can't plead guilty to lesser charges without an agreement. The sole issue as to whether Moussaoui can plead guilty to the offenses with which he is charged is whether he is legally competent to do so.
Second, the death penalty can be applied where a defendant pleads guilty. Moussaoui said today he wants to fight the death penalty. The procedure followed when someone pleads guilty in a case in which the Government has filed a notice to seek the death penalty is for the judge is to convene a 12 member jury to hear the evidence and make the life/death decision.(Section (b)(2)(a) of statute linked to above, 18 USC 3593).
However, the judge can make the decision without a jury if the defendant requests, and the government agrees. (Section (b)(3))
By pleading guilty to the crime, Moussaoui does not waive his right to seek life over death, and he certainly could get the death penalty if the jury or judge so determined after a hearing.
12:25 Moussaoui confesses to crimes in open court...According to Pete Williams now on MSNBC, Moussaoui was more combative in court today, mocking the Judge, talking when she talked, saying the Judge isn't being fair, her politeness is a sham, she is trying to get him executed.
At the end of hearing, which was supposed to be his re-arraignment on the new Indictment, the fireworks started when he refused to plead and the Judge said she would enter a not guilty plea for him. He then said he wanted to plead guilty because the Judge wouldn't allow him to run his defense the way he wanted to. He announced he was guilty, he was a member of Al Qaeda, and he knew who was responsible for the September 11 attacks.
The Judge gave him a week to think it over.
Moussaoui wants to plead guilty but fight for his life in the sentencing phase.
12:25 MT: news conference about to start, longer AP article
Coming across the AP wires now, " Zacarias Moussaoui, indicted in connection with Sept. 11 attacks, tries to plea guilty to federal charges; judge tells him to think it over "
Stay tuned....
Our view: Send in the lawyer from Texas that Moussaoui asked to have advise him weeks ago. It shouldn't matter that the lawyer isn't licensed in Virginia, he's not seeking to enter his appearance as Moussaoui's counsel, only to advise Moussaoui while he is representing himself. It's clear Moussaoui doesn't understand the consequences of pleading guilty if he thinks it is a guarantee of saving his life. And sending Moussaoui to face a death penalty jury without advice of counsel of choice is not a resolution Americans should be proud of--or stand for.
1:15 News conference hasn't started yet, but some misinformation is emerging on two cable networks that we've seen about what happens sentencing-wise if Moussaoui pleads guilty.
Here is the applicable federal death penalty statute.
First, contrary to what one analyst has said, Moussaoui does not need the Government's permission to plead guilty. There is no plea bargain here. Anyone can plead guilty at any time to all of the charges against them. They just can't plead guilty to lesser charges without an agreement. The sole issue as to whether Moussaoui can plead guilty to the offenses with which he is charged is whether he is legally competent to do so.
Second, the death penalty can be applied where a defendant pleads guilty. Moussaoui said today he wants to fight the death penalty. The procedure followed when someone pleads guilty in a case in which the Government has filed a notice to seek the death penalty is for the judge is to convene a 12 member jury to hear the evidence and make the life/death decision.(Section (b)(2)(a) of statute linked to above, 18 USC 3593).
However, the judge can make the decision without a jury if the defendant requests, and the government agrees. (Section (b)(3))
By pleading guilty to the crime, Moussaoui does not waive his right to seek life over death, and he certainly could get the death penalty if the jury or judge so determined after a hearing.
12:25 Moussaoui confesses to crimes in open court...According to Pete Williams now on MSNBC, Moussaoui was more combative in court today, mocking the Judge, talking when she talked, saying the Judge isn't being fair, her politeness is a sham, she is trying to get him executed.
At the end of hearing, which was supposed to be his re-arraignment on the new Indictment, the fireworks started when he refused to plead and the Judge said she would enter a not guilty plea for him. He then said he wanted to plead guilty because the Judge wouldn't allow him to run his defense the way he wanted to. He announced he was guilty, he was a member of Al Qaeda, and he knew who was responsible for the September 11 attacks.
The Judge gave him a week to think it over.
Moussaoui wants to plead guilty but fight for his life in the sentencing phase.
12:25 MT: news conference about to start, longer AP article
Coming across the AP wires now, " Zacarias Moussaoui, indicted in connection with Sept. 11 attacks, tries to plea guilty to federal charges; judge tells him to think it over "
Stay tuned....
Favorable Senate Action on Innocence Protection Act
Word reaches us within the past hour the Senate Judiciary Committee voted 12-7 to approve the Innocence Protection Act substitute amendment. Sens. Specter and Brownback were the 2 Republicans joining all 10 Democrats on the committee. Thanks to Kyle O'Dowd, Legislative Director of the National Association of Criminal Defense Lawyers for the update.
Focus now shifts to the House Judiciary Committee. For more info, check out our action alert from last week, which includes this link to Senator Leahy's statement on the compromise bill.
Focus now shifts to the House Judiciary Committee. For more info, check out our action alert from last week, which includes this link to Senator Leahy's statement on the compromise bill.
Detaining Witnesses Who Are Not Criminals
Witnesses and Criminals is an editorial in today's Washington Post about holding detainees under the material witness statute.
We agree with the second half of this editorial, but not the first. It seems to change course in midstream. In fact, had we followed our instincts to tune out after the first two paragraphs, we would not have read the last two paragraphs, which we think are all too true.
The subject is the differing rulings of two federal judges in New York on the material witness statute as pertains to post-September 11 detainees.
We disagree with the Post and think Judge Scheindlein's view is correct that the material witness statute applies to trial witnesses, not grand jury witnesses. The Post maintains that the statute allows the government to "hold witnesses who might otherwise flee in order to secure their testimony," and that this is the way it should be, citing Terry Nichols' arrest on a material witness warrant when they didn't have enough to charge him with the Oklahoma bombing but wanted to secure his testimony.
The Post then criticizes the practical application of the law, "because it can be abused and should not be used indirectly as a punitive measure." We're beginning to agree.
The Post really engages our attention when it continues with, "What's troubling about the government's behavior in these cases is not that material witnesses have been detained but the circumstances and duration of the detentions." The Post is justly critical of the Government for holding Osama Awadallah in isolated detention for months, during which he sustained bruises and had limited access to counsel.
The Post opines, "If this is true, then it is unacceptable. More generally, the material witness statute authorizes holding people only for "a reasonable period of time" so that their testimony can be obtained. It's hard to see how this law could justify holding someone for months or after that person's grand jury testimony has been taken."
What happens when the witness does not want to talk? Under federal law, a witness who refuses to testify before a grand jury can be held in contempt and kept in jail for the remaining life of the grand jury. Grand jury terms are eighteen months. Sometimes a grand jury has not finished investigating a case when its term is up and a new grand jury is empanelled and the case transferred. The recalcitrant witness can be held for the life of that grand jury as well. So the "reasonable period of time" that the Post assumes will cause someone to intervene to prevent overly lengthy detentions doesn't really exist. There is no definition of "reasonable period of time," and with the detainees, reasonable time seems to be equated with "as long as it takes to make him talk."
We know that the Judge can release the person doing contempt time for refusal to testify before a grand jury if the Judge becomes convinced that the person won't talk no matter how long he or she remains in jail. Again, this is an arbitrary decision--hardly a uniform measuring stick of "reasonable time."
In the case of the detainees, where are the contempt hearings? Where are the contempt charges? Due to secrecy rules, we can't learn the truth. But even the Government says these witnesses have not been charged. They are not criminals, yet they have lost their jobs, their family life and their ability to partake of the ordinary pleasures in life.
The Post concludes with, "Still, the material witness law has clearly been used as a means of locking up people who have information relevant to the investigation and who themselves may be dangerous, yet against whom no case can immediately be made. This is pushing a line: The material witness law is not a means of preventive detention and should not be used as one."
So doesn't Judge Scheindlein's ruling make more sense?
P.S. We think Mr. Awadallah's wife has been a gutsy, intelligent and passionate advocate on his behalf.
We agree with the second half of this editorial, but not the first. It seems to change course in midstream. In fact, had we followed our instincts to tune out after the first two paragraphs, we would not have read the last two paragraphs, which we think are all too true.
The subject is the differing rulings of two federal judges in New York on the material witness statute as pertains to post-September 11 detainees.
We disagree with the Post and think Judge Scheindlein's view is correct that the material witness statute applies to trial witnesses, not grand jury witnesses. The Post maintains that the statute allows the government to "hold witnesses who might otherwise flee in order to secure their testimony," and that this is the way it should be, citing Terry Nichols' arrest on a material witness warrant when they didn't have enough to charge him with the Oklahoma bombing but wanted to secure his testimony.
The Post then criticizes the practical application of the law, "because it can be abused and should not be used indirectly as a punitive measure." We're beginning to agree.
The Post really engages our attention when it continues with, "What's troubling about the government's behavior in these cases is not that material witnesses have been detained but the circumstances and duration of the detentions." The Post is justly critical of the Government for holding Osama Awadallah in isolated detention for months, during which he sustained bruises and had limited access to counsel.
The Post opines, "If this is true, then it is unacceptable. More generally, the material witness statute authorizes holding people only for "a reasonable period of time" so that their testimony can be obtained. It's hard to see how this law could justify holding someone for months or after that person's grand jury testimony has been taken."
What happens when the witness does not want to talk? Under federal law, a witness who refuses to testify before a grand jury can be held in contempt and kept in jail for the remaining life of the grand jury. Grand jury terms are eighteen months. Sometimes a grand jury has not finished investigating a case when its term is up and a new grand jury is empanelled and the case transferred. The recalcitrant witness can be held for the life of that grand jury as well. So the "reasonable period of time" that the Post assumes will cause someone to intervene to prevent overly lengthy detentions doesn't really exist. There is no definition of "reasonable period of time," and with the detainees, reasonable time seems to be equated with "as long as it takes to make him talk."
We know that the Judge can release the person doing contempt time for refusal to testify before a grand jury if the Judge becomes convinced that the person won't talk no matter how long he or she remains in jail. Again, this is an arbitrary decision--hardly a uniform measuring stick of "reasonable time."
In the case of the detainees, where are the contempt hearings? Where are the contempt charges? Due to secrecy rules, we can't learn the truth. But even the Government says these witnesses have not been charged. They are not criminals, yet they have lost their jobs, their family life and their ability to partake of the ordinary pleasures in life.
The Post concludes with, "Still, the material witness law has clearly been used as a means of locking up people who have information relevant to the investigation and who themselves may be dangerous, yet against whom no case can immediately be made. This is pushing a line: The material witness law is not a means of preventive detention and should not be used as one."
So doesn't Judge Scheindlein's ruling make more sense?
P.S. We think Mr. Awadallah's wife has been a gutsy, intelligent and passionate advocate on his behalf.
Ashcroft's About Face
Richard Cohen in today's Washington Post Spotlight John maintains that John Walker Lindh should have made the resignation of Ashcroft a condition of his plea bargain.
"Just about the only time Ashcroft chose to keep his mouth shut was when the plea bargain was announced. For once, the AG was not in makeup.For Ashcroft, this is beginning to look like a pattern. First comes the hype and then comes the disappearing act.
"Just about the only time Ashcroft chose to keep his mouth shut was when the plea bargain was announced. For once, the AG was not in makeup.For Ashcroft, this is beginning to look like a pattern. First comes the hype and then comes the disappearing act.
The Rockefeller Drug Laws Need Change
Bob Herbert again takes on New York's Rockefeller drug laws in today's New York Timees. The Ruinous Drug Laws
"How about a dose of sanity? After 29 futile and tragic years, it is time to bring the curtain down on the institutionalized cruelty of the Rockefeller drug laws. There is no way to justify sentencing nonviolent low-level drug offenders to prison terms that are longer than those served by some killers and rapists."
He's right of course. Can't anyone make the New York Legislature listen?
"How about a dose of sanity? After 29 futile and tragic years, it is time to bring the curtain down on the institutionalized cruelty of the Rockefeller drug laws. There is no way to justify sentencing nonviolent low-level drug offenders to prison terms that are longer than those served by some killers and rapists."
He's right of course. Can't anyone make the New York Legislature listen?
Wednesday, July 17, 2002
Jeb Bush's Daughter Jailed for Failing Drug Treatment
Florida Governor and Presidential brother Jeb Bush's 24 year old daughter got 3 days in jail for noncompliance with a drug treatment plan. With no way to spin it, he sent an email to the media to tell them. Among his comments, "Unfortunately, this happens to many individuals even as they continue their journey to full recovery."
Why is it that politicians only recognize truths such as relapse is common during drug treatment when it happens to someone in their families or small circle of friends? Otherwise, they seem quite content to brand drug offenders as criminals and jail them when they fail to live up to the terms of their probation or parole or drug treatment plan.
Hopefully, this will open some eyes and lead to more rational and humane treatment of drug users.
Why is it that politicians only recognize truths such as relapse is common during drug treatment when it happens to someone in their families or small circle of friends? Otherwise, they seem quite content to brand drug offenders as criminals and jail them when they fail to live up to the terms of their probation or parole or drug treatment plan.
Hopefully, this will open some eyes and lead to more rational and humane treatment of drug users.
More on Bush's "Operation Tips"
The Washington Post reports on "Operation Tips" today. Our first post on this may have gotten buried in all our Walker Lindh coverage, so here's a bump for Bush's "Operation Tips" and the threat it poses to the Constitution. It will turn a million Americans into volunteer snitches--and more.
"And check out the great Boston Globe editiorial today:
"Ashcroft's informant corps is a vile idea not merely because it violates civil liberties in a narrow legal sense or because it will sabotage genuine efforts to prevent terrorism by overloading law enforcement officials with irrelevant reports about Americans who have nothing to do with terrorists. Operation TIPS should be stopped because it is utterly anti-American. It would give Stalin and the KGB a delayed triumph in the Cold War - in the name of the Bush administration's war against terrorism."
"And check out the great Boston Globe editiorial today:
"Ashcroft's informant corps is a vile idea not merely because it violates civil liberties in a narrow legal sense or because it will sabotage genuine efforts to prevent terrorism by overloading law enforcement officials with irrelevant reports about Americans who have nothing to do with terrorists. Operation TIPS should be stopped because it is utterly anti-American. It would give Stalin and the KGB a delayed triumph in the Cold War - in the name of the Bush administration's war against terrorism."
Drug Companies and the Death Penalty
The National Coalition to Abolish the Death Penalty yesterday released a report entitled "Drug Companies and Their Role in Aiding Executions" and called upon the nation's manufacturers and distributors of lethal injection drugs to take steps to prevent their drugs from being used in executions conducted via lethal injection.
The report has two immediate goals: to convince pharmaceutical companies to speak out against the use of their drugs in executions and to take steps to prevent their products from falling into the hands of prison officials who oversee executions.
The report traces the history and present use of lethal injection drugs in executions, reports on what can go wrong during the lethal injection process and lists the companies that produce lethal injection drugs, their corporate officers and their contact information.
Already, one leading manufacturer, Abbott Laboratories, Inc., which manufactures sodium thiopental, has issued a statement requesting "that this product not be used in capital punishment procedures."
The seven publicly-held companies targeted by NCADP include Abbott Laboratories, Inc., based in Abbott Park, Ill.; American Pharmaceutical Partners, Inc., based in Los Angeles; AmerisourceBergen, based in Chesterbrook, Pa.; Baxter International Inc, based in Deerfield, Ill.; Cardinal Health, based in Dublin, Ohio; Wyeth Pharmaceuticals, based in St. Davids, Penn; and Gensia Sicor Pharmaceuticals, Inc., based in Irvine, Ca.
The report has two immediate goals: to convince pharmaceutical companies to speak out against the use of their drugs in executions and to take steps to prevent their products from falling into the hands of prison officials who oversee executions.
The report traces the history and present use of lethal injection drugs in executions, reports on what can go wrong during the lethal injection process and lists the companies that produce lethal injection drugs, their corporate officers and their contact information.
Already, one leading manufacturer, Abbott Laboratories, Inc., which manufactures sodium thiopental, has issued a statement requesting "that this product not be used in capital punishment procedures."
The seven publicly-held companies targeted by NCADP include Abbott Laboratories, Inc., based in Abbott Park, Ill.; American Pharmaceutical Partners, Inc., based in Los Angeles; AmerisourceBergen, based in Chesterbrook, Pa.; Baxter International Inc, based in Deerfield, Ill.; Cardinal Health, based in Dublin, Ohio; Wyeth Pharmaceuticals, based in St. Davids, Penn; and Gensia Sicor Pharmaceuticals, Inc., based in Irvine, Ca.
Update on LA Teen Beating Case and the Videographer
Chill Wind Over Witnesses is a good editorial in the Los Angeles Times on the inappropriate treatment of Mitchell Crooks, the tourist-videographer of the teen beaten by the LA Cops last week.
Quote: " From the way Steve Cooley's G-men treated him, you might think that Mitchell Crooks was a drug kingpin or Mafia don rather than an unemployed party disc jockey with some lapses in his past. The district attorney's decision last week to deploy a squad of agents--which cuffed him with TV news cameras rolling and carted him away on years-old warrants--looks too much like intimidation of future witnesses in police brutality cases."
Quote: " From the way Steve Cooley's G-men treated him, you might think that Mitchell Crooks was a drug kingpin or Mafia don rather than an unemployed party disc jockey with some lapses in his past. The district attorney's decision last week to deploy a squad of agents--which cuffed him with TV news cameras rolling and carted him away on years-old warrants--looks too much like intimidation of future witnesses in police brutality cases."
Tuesday, July 16, 2002
New Moussaoui Indictment
The Government wants to be extra-sure it gets the death penalty for Moussaoui. They went and got a Third Superseding Indictment, Here it is.
The new Indictment alleges that Moussaoui acted in "an especially heinous, cruel and depraved manner," with premeditation, to cause death and commit terrorism. Now they can say that the grand jury passed on the facts to support the charge, a matter seized upon by Moussaoui's court-appointed lawyers, the ones he doesn't want, in a motion to dismiss the death penalty charge. The Government wants to avoid any problems that may have been engendered by the Supreme Court's ruling in Ring v. Arizona, although that only directly applied to trial juries. For More.
The new Indictment alleges that Moussaoui acted in "an especially heinous, cruel and depraved manner," with premeditation, to cause death and commit terrorism. Now they can say that the grand jury passed on the facts to support the charge, a matter seized upon by Moussaoui's court-appointed lawyers, the ones he doesn't want, in a motion to dismiss the death penalty charge. The Government wants to avoid any problems that may have been engendered by the Supreme Court's ruling in Ring v. Arizona, although that only directly applied to trial juries. For More.
Link to Required Filing Report on Patriot Act Abuses
One of the requirements of the Patriot Act is that the Department of Justice file reports on abuses of the act.
Here is the report --in pdf (adobe acrobat)
Here is the report --in pdf (adobe acrobat)
Family Reunification Act - Action Alert
Received from the American Immigration Lawyers' Association
As many of you know, the chairman of the House Judiciary committee, Rep. James Sensenbrenner and Rep. Barney Frank have reached an agreement on the language of HR 1452, the Family Unification Act of 2002. This bipartisan bill is scheduled to be marked up by the full Judiciary Committee tomorrow (Wed., July 17) at 10:00.
WE NEED YOUR HELP ON THIS IMPORTANT BILL
In order to pass this out of committee, we are asking that each of you contact some of the Republican members of the Judiciary and urge them to support this compromise bill. The proposal is supported by Representatives James Sensenbrenner, former chair Henry Hyde (R-IL), and Chris Cannon (R-UT). Four other Republicans are co-sponsors of the bill - Lincoln Diaz-Balart (FL); Ileana Ros-Lehtinen (FL); Doug Ose (CA); and Chris Shays (CT)
Although this bill is far less than what we have been asking for, it's passage would be an IMPORTANT victory in our effort to restore some measure of fairness for long-term legal permanent residents. The modest reforms in this bill would simply allow legal permanent residents who have lived legally in the United States for at least five years, and who are facing deportation for an offense that resulted in a sentence of less than four years (or less than 2 years if the offense is classified as a "crime of violence"), to present the facts of their case to an immigration judge to determine whether or not they should be deported from their adopted country. The bill would send an important signal that our laws can be tough AND fair.
Please feel free to contact me if you have any questions. A list of Republicans on the Judiciary are as follows:
- Steve Chabot (R-OH): 202-225-2216
- Bob Barr (R-GA): 202-225-2931
- Mark Green (R-WI): 202-225-5665
- Melissa Hart (R-PA): 202-225-2565
- Darrel Issa (R-CA): 202-225-3906
- Jeff Flake (R-AZ): 202-225-2635
- Randy Forbes (R-VA): 202-225-6365
Thank you,
Ben Johnson
Associate Director of Advocacy
American Immigration Lawyers Assoc.
(202) 216-2437
As many of you know, the chairman of the House Judiciary committee, Rep. James Sensenbrenner and Rep. Barney Frank have reached an agreement on the language of HR 1452, the Family Unification Act of 2002. This bipartisan bill is scheduled to be marked up by the full Judiciary Committee tomorrow (Wed., July 17) at 10:00.
WE NEED YOUR HELP ON THIS IMPORTANT BILL
In order to pass this out of committee, we are asking that each of you contact some of the Republican members of the Judiciary and urge them to support this compromise bill. The proposal is supported by Representatives James Sensenbrenner, former chair Henry Hyde (R-IL), and Chris Cannon (R-UT). Four other Republicans are co-sponsors of the bill - Lincoln Diaz-Balart (FL); Ileana Ros-Lehtinen (FL); Doug Ose (CA); and Chris Shays (CT)
Although this bill is far less than what we have been asking for, it's passage would be an IMPORTANT victory in our effort to restore some measure of fairness for long-term legal permanent residents. The modest reforms in this bill would simply allow legal permanent residents who have lived legally in the United States for at least five years, and who are facing deportation for an offense that resulted in a sentence of less than four years (or less than 2 years if the offense is classified as a "crime of violence"), to present the facts of their case to an immigration judge to determine whether or not they should be deported from their adopted country. The bill would send an important signal that our laws can be tough AND fair.
Please feel free to contact me if you have any questions. A list of Republicans on the Judiciary are as follows:
- Steve Chabot (R-OH): 202-225-2216
- Bob Barr (R-GA): 202-225-2931
- Mark Green (R-WI): 202-225-5665
- Melissa Hart (R-PA): 202-225-2565
- Darrel Issa (R-CA): 202-225-3906
- Jeff Flake (R-AZ): 202-225-2635
- Randy Forbes (R-VA): 202-225-6365
Thank you,
Ben Johnson
Associate Director of Advocacy
American Immigration Lawyers Assoc.
(202) 216-2437
Lindh's Sentence: 20 Years or Up to 20 Years?
As we said yesterday, the key to understanding how much time Lindh will serve under his plea agreement is in the U.S. Sentencing Guidelines, which are set by the U.S. Sentencing Commission. The applicable U.S.Sentencing Guidelines are here.
For those unfamiliar with guidelines, which is probably 99 percent of the world, here is an excellent free primer by the Federal Public and Community Defenders.
The major points as we see them:
First, which version of the guidelines apply since guideline amendments take effect every November 1? The version in effect at the time of the sentencing unless the guidelines in effect at the time of the crime were more favorable (USSG 1B1.11)
Sentencing in Lindh is set for October 2002. Lindh's crimes occurred from May 2001 through the end of November 2001. The November 2001 edition will be used. The 2002 amendments, including those related to Patriot Act offenses, do not take effect until November 2002.
Second: Where there is no guideline designated for a specific offense, the guideline for the most analogous offense is used. On the supplying services to the Taliban count, the parties agreed that USSG 2M5.2 (Exportation of Arms, Munitions or Military Equipment or Services Without Required Validated Export License) is the most analogous offense. Should the Judge disagree, the Judge is free to use another guideline. As a practical matter, the Probation Department does a guideline analysis and the Judge heavily relies on that. In a case this big, you can bet that Probation was already consulted and calculated the guidelines the same as the defense and prosecution.
Third: What happens if the Judge disagrees and finds another offense guideline is more analogous? Does Lindh get to withdraw from the deal? No, because the plea agreement is under Rule 11(e)(1)(B) instead of Rule (11)(e)(1)(C) which would so allow.
Fourth: The added felony count to which Lindh pleaded, carrying explosives in commission of a felony, is a sentencing enhancement crime. It is the equivalent of carrying a weapon in furtherance of a drug offense, although in that case the term would only be five years. Guidelines are not "calculated" for this offense but instead simply provide that the sentence imposed will be the term specified in the statute. Here that means a flat ten year sentence is added onto the sentence for the underlying crime of providing services to the Taliban.
Fifth: Because John Walker Lindh has no prior record, he would normally have a criminal history category of Level I. But another terrorism guideline, 3A1.4, says that if the offense involved or was intended to promote a federal crime of terrorism, the criminal history category is bumped to level VI, the highest level. In addition, the offense level gets bumped by twelve. So here, where Lindh would have been a level 26 and category I under the analogous guideline for providing his services, he is now a level 38 and category VI.
Sixth: Lindh does receive three points off for accepting responsibility, bringing him to a level 35 and a Category VI. Guideline range: 292-365 months. But, the maximum allowed by statute for the offense to which he plead is ten years. Thus, the ten year sentence on the count of providing services to the Taliban is a virtual certainty and is also the most he can receive on that count.
Seventh: The mandated consecutive ten year sentence for the enhancement crime of carrying an explosive is tacked onto the ten year sentence for the supplying services offense, bringing Lindh to a 20 year sentence.
Eighth: He has waived his right to appeal the sentence so long as it does not exceed 20 years which would be a legally impermissible sentence.
Other notes: He did not plead to supplying material aid to a terrorist organization. He pleaded guilty only to providing services to the Taliban. He did not plead to the count charging carrying a firearm or explosive during the commission of a violent crime. His guilty plea was to a lesser crime of carrying an explosive during the commission of any felony. He gets credit for time served from the day of his seizure by the military in Afganistan (Dec. 1, 2001). Neither side will argue for more or less than 20 years.
Our conclusion: Lindh gets 240 months or 20 years. (Federal sentences are imposed in months, not years). He does 85% or 204 months. His sentence will be reduced further by the time he has spent in confinement from December 1, 2001 until the sentencing date of Oct, 2002, approximately ten months.
For those unfamiliar with guidelines, which is probably 99 percent of the world, here is an excellent free primer by the Federal Public and Community Defenders.
The major points as we see them:
First, which version of the guidelines apply since guideline amendments take effect every November 1? The version in effect at the time of the sentencing unless the guidelines in effect at the time of the crime were more favorable (USSG 1B1.11)
Sentencing in Lindh is set for October 2002. Lindh's crimes occurred from May 2001 through the end of November 2001. The November 2001 edition will be used. The 2002 amendments, including those related to Patriot Act offenses, do not take effect until November 2002.
Second: Where there is no guideline designated for a specific offense, the guideline for the most analogous offense is used. On the supplying services to the Taliban count, the parties agreed that USSG 2M5.2 (Exportation of Arms, Munitions or Military Equipment or Services Without Required Validated Export License) is the most analogous offense. Should the Judge disagree, the Judge is free to use another guideline. As a practical matter, the Probation Department does a guideline analysis and the Judge heavily relies on that. In a case this big, you can bet that Probation was already consulted and calculated the guidelines the same as the defense and prosecution.
Third: What happens if the Judge disagrees and finds another offense guideline is more analogous? Does Lindh get to withdraw from the deal? No, because the plea agreement is under Rule 11(e)(1)(B) instead of Rule (11)(e)(1)(C) which would so allow.
Fourth: The added felony count to which Lindh pleaded, carrying explosives in commission of a felony, is a sentencing enhancement crime. It is the equivalent of carrying a weapon in furtherance of a drug offense, although in that case the term would only be five years. Guidelines are not "calculated" for this offense but instead simply provide that the sentence imposed will be the term specified in the statute. Here that means a flat ten year sentence is added onto the sentence for the underlying crime of providing services to the Taliban.
Fifth: Because John Walker Lindh has no prior record, he would normally have a criminal history category of Level I. But another terrorism guideline, 3A1.4, says that if the offense involved or was intended to promote a federal crime of terrorism, the criminal history category is bumped to level VI, the highest level. In addition, the offense level gets bumped by twelve. So here, where Lindh would have been a level 26 and category I under the analogous guideline for providing his services, he is now a level 38 and category VI.
Sixth: Lindh does receive three points off for accepting responsibility, bringing him to a level 35 and a Category VI. Guideline range: 292-365 months. But, the maximum allowed by statute for the offense to which he plead is ten years. Thus, the ten year sentence on the count of providing services to the Taliban is a virtual certainty and is also the most he can receive on that count.
Seventh: The mandated consecutive ten year sentence for the enhancement crime of carrying an explosive is tacked onto the ten year sentence for the supplying services offense, bringing Lindh to a 20 year sentence.
Eighth: He has waived his right to appeal the sentence so long as it does not exceed 20 years which would be a legally impermissible sentence.
Other notes: He did not plead to supplying material aid to a terrorist organization. He pleaded guilty only to providing services to the Taliban. He did not plead to the count charging carrying a firearm or explosive during the commission of a violent crime. His guilty plea was to a lesser crime of carrying an explosive during the commission of any felony. He gets credit for time served from the day of his seizure by the military in Afganistan (Dec. 1, 2001). Neither side will argue for more or less than 20 years.
Our conclusion: Lindh gets 240 months or 20 years. (Federal sentences are imposed in months, not years). He does 85% or 204 months. His sentence will be reduced further by the time he has spent in confinement from December 1, 2001 until the sentencing date of Oct, 2002, approximately ten months.
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