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August 2, 2010

Are we ready for decades of "Roberts v. Kagan"?

The question in the title of this post is inspired by this interesting commentary from Dahlia Lithwick at Slate, which asks "Will there be friction between the chief justice and Elena Kagan on the Supreme Court?". Here is how the piece starts and ends:

Anyone who watched Elena Kagan's performance before the Senate judiciary committee last month saw that under the bright lights of public scrutiny, she is quick-witted, conversational, and rarely cowed.  She's funny and charming, but she's not real big on deference.  And so one question that lingers, as the former solicitor general prepares to join the highest court in the land: Will those qualities help or hurt Elena Kagan in the darkened marble halls of the Supreme Court?

Kagan already has some history at the court. And it didn't go unremarked by court watchers last term that Kagan's six outings before the Roberts Court as President Obama's solicitor general were sometimes uneasy. Some of us suggested that Kagan — who'd never argued a case until she argued the blockbuster Citizens United campaign finance case last September — was still just finding her footing at the court.  Others observed that many of the justices, most notably Chief Justice John Roberts, appeared perpetually exasperated by her....

Even if the slings and arrows of oral argument are readily put behind them come October, Kagan and Roberts will still be worth watching in the coming years precisely because they make up two sides of the same coin: They are savvy, ambitious, and brilliant, as well as charming, outgoing, and persuasive.  Each of them swanned his or her way through the confirmation hearings with smiles and jokes.  Each masks strongly held views under a casual, easygoing demeanor.  As Kagan proved at her confirmation hearings, she isn't one to defer to authority; she'd rather push back and win or lose it on the merits. Roberts is precisely the same.  That may have been a recipe for disaster when Kagan and Roberts were on opposite sides of the same bench.  But it becomes an even more fascinating pairing once they're both on it.

As the title of my post spotlights, what makes this forthcoming battle(?) so interesting is the likelihood that it will be waged for decades.  Barring illnesses or surprisingly early retirements, we can and should expect Chief Justice Roberts and Elena Kagan to be serving together on the Supreme Court for 25 years and probably longer.  How they interact and each seek to shape constitutional jurisprudence is going to be a very long-running (and I hope very interesting) legal story.

Relatedly, I think we have already seen a bit of Alito v. Sotomayor, as SCOTUSblog charts show a high level of disagreement between the two newest Justices during their first year together.  Because both Justices are products of Princeton University, Yale Law School, prosecutor offices and long circuit service, their different judicial philosophies despite similar professional backgrounds is also worthy of examination and reflection.

Most broadly, it is so interesting that the quartet of CJ Roberts and Justices Alito, Kagan, and Sotomayor are likely to be key shapers of constitutional jurisprudence for the first half of the 21st Century.  Given just how constitutional jurisprudence dramatically changed from 1950 to 2000, it is fun to speculate whether and how this quartet will be able or eager to shape constitutional jurisprudence in the half-century from 2000 to 2050.

August 2, 2010 in Who Sentences? | Permalink | Comments (4) | TrackBack

Interesting commentaries on pot politics and practices

There are a couple interesting new commentaries today on how the politics and practicalities of pot prohibition:

August 2, 2010 in Drug Offense Sentencing, Elections and sentencing issues in political debates | Permalink | Comments (0) | TrackBack

"Lindsay Lohan Leaves Jail, Enters Rehab"

The title of this post is the headline of this new ABC News report on the latest LiLo news.  Here are the basics:

After 13 days in jail, Lindsay Lohan is taking her next steps; 12, to be precise. The actress was released from Los Angeles' Lynwood Correctional Facility today at 1:35 a.m. PT after serving 13 days of a 90-day sentence for violating her 2007 probation. Lohan was taken straight into a rehabilitation program, according to the L.A. County Sheriff's Department.

She will be treated for bipolar disorder and an addiction to amphetamines during her court ordered 90 days in rehab, according to TMZ.com. Lohan's rehab center of choice is a facility operated by the University of California at Los Angeles Hospital System in West Los Angeles, TMZ and Radaronline.com reported.

For Lohan, rehab facilities have almost served as a second home. She first admitted herself to the Wonderland Center in January 2007 and spent 30 days there. After racking up a DUI arrest in May of that year, she checked into the celebrity-friendly Promises Treatment Center for 45 days.

A second DUI arrest in 2007 sent Lohan to Utah's Cirque Lodge Treatment Center, where she famously staged a photo shoot with OK! magazine, which distributed pictures of her practicing yoga on the lawn and riding horseback, presumably sober.

This time around, Lohan was hoping to catch up with her family before locking down in rehab, according to her lawyer. "I'm hoping she will have time to spend with her family before she goes to rehab," Shawn Chapman Holley told reporters Sunday. "She is trying to comply with the court's orders, but she should be able to have 24 hours at home."

Time free was not to be for the 24-year-old starlet [apparently, the judge refused a day of free time before the start of rehab].

UPDATE:  I just saw that MTV here poses the question of the day for LiLo fans, "Lindsay Lohan's Rehab Care Package: What Would You Put Inside?"

August 2, 2010 in Celebrity sentencings, Criminal Sentences Alternatives | Permalink | Comments (3) | TrackBack

Investigative report indicates California's prisoner rights poorly regarded

7W1PRISONS.xlgraphic.prod_affiliate.4 A helpful reader altered me to this lengthy article from the Sacremento Bee, headlined "The Public Eye: California prisoners' rights often trampled," that reports on how guards have abused prisoners through disciplinary hearings.  The piece, which ran on Sunday's front page, also included the graphic (reprinted here) with lots of interesting data on charges against prisoners in five of the larger states in the nation.  Here is how the Sacremento Bee report gets started:

The prison official assured his warden in an e-mail that everything was set: A group of 77 inmates accused of interfering with officers would be found guilty, no matter what. Disciplinary hearings – required proceedings where inmates can defend themselves with witnesses and evidence – had not yet taken place at North Kern State Prison.

Yet, in the April e-mail obtained by The Bee, acting Associate Warden Steven Ojeda promised to provide the hearing officers –- lieutenants he supervised –- "with direction prior to the hearings and ensure they understand to hold all of these inmates accountable."

Leaving nothing to chance, Ojeda prescribed punishments, too: loss of good-behavior credit and visiting privileges, threat of a term in one of the prison system's security housing units – called "the hole" by prisoners – and other serious penalties.

By acting as judge and jury, Ojeda fit a pattern, a Bee investigation has found, that suggests widespread suppression of inmates' rights to contest allegations by guards or pursue claims of mistreatment.

Current and retired officers, prisoners and parolees allege that correctional officers and their superiors routinely file bogus or misleading reports, destroy or falsify documentation of abuses, and intimidate colleagues or inmates who push back.

Sources with firsthand knowledge called the problem pervasive, offering dozens of examples. Even if the allegations are valid for a fraction of cases, thousands of prison terms could have been extended improperly at vast cost to taxpayers.

August 2, 2010 in Prisons and prisoners, Who Sentences? | Permalink | Comments (7) | TrackBack

August 1, 2010

"Prosecutor looks back on 3 decades of battling drugs"

The title of this post is the headline of this interesting local article from Pennsylvania.  Here are some excerpts:

Assistant U.S. Attorney John McCann has given half his life to prosecuting criminals, and for most of them he's focused on illegal drug crime. The veteran prosecutor has been assigned to the U.S. Middle District Court here since 1992, but as July came to an end, so did his career.

McCann's retirement leaves hundreds of drug dealers still behind bars, serving prison sentences and not out preying on society.  McCann didn't keep count over their numbers, but conservatively he estimates the number of his successful prosecutions at somewhere around 500 cases -- most of them ending with guilty pleas rather than jury verdicts....

Prosecuting drug cases is unpleasant work and the drug problem remains a big problem for society.  McCann believes that when he puts dealers out of business, even temporarily, it increases the odds someone out there who is tempted to try drugs for the first time won't able to make their first buy and may not destroy their life....

"Almost all (his cases have involved) multi-defendants (involved with) drug organizations," he said, admitting that no matter how many dealers get sent away, the drug trade goes on because of the public's appetite for illegal substances.

The drugs in vogue change with the times.  In the early 1980s, powder cocaine was popular, but by the late 1980s crack cocaine became the rage and brought with it first ultra-violent Jamaican gangs known as "posses" and then home-grown gangs such as the Bloods.

The one constant is that, no matter who is supplying them, drug dealers remain and bring with them violence and contempt for authority.  Hard core dealers hate the police and prosecutors.  "Once they go to jail, they hate (and blame) their lawyers ... even though the evidence against them is overwhelming," McCann said.

The most dangerous and deadly drug is heroin, according to McCann, especially now that it's available in purer form.  Current-day heroin is at times more dangerous than the heroin sold three decades ago, he said, and it's everywhere from cities to small towns and even rural areas.

The veteran prosecutor believes it is "the biggest threat" and its usage has been "epidemic" for more than a decade. McCann said he wishes the media and lawmakers would pick up on the dangers of heroin.  "Heroin is the most addictive drug out there," he said, and is even more addictive and deadly, the younger the individual is who uses it....

"The penalties for heroin need to be hyped up.  The guidelines are too low."  One packet of heroin which is about 200th of a gram can kill someone if they use it all and have never done the drug before, he said   However, prosecutors need to link at least 5,000 packets to a defendant under today's sentencing guidelines to get a mandatory minimum sentence of five years.  By comparison, 50 grams of crack cocaine can get a dealer a 10-year mandatory minimum.

When he began taking drug cases, McCann said he believed he and the law enforcement professionals he worked with could have an impact, but as time passed he had to accept the fact that their impact could be only one person at a time. All they can really do is put away as many dealers as possible, he said....

"Law enforcement has done its job in keeping the community from being overrun," he said. "Without them, drug use would be much more widespread."  "It will never be eliminated," he added, "until somebody comes up with a way to stop the insatiable desire this country has for illegal drugs."

August 1, 2010 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Interesting reads at the NY Times Opinionator blog

There are these two new lengthy pieces over at the New York Times' Opinionator blog that criminal justice fans will surely want to check out:

The second piece is by Linda Greenhouse, and it spotlights that it has now been "nearly three months since the [Supreme Court] “invited” — that is to say, ordered — Solicitor General Elena Kagan to 'express the views of the United States' on whether laws that take away the right to vote from people in prison or on parole can be challenged under the Voting Rights Act as racially discriminatory."  She also concludes an effective discussion of this potent issue with these important insights:

But while the justices have handed the administration a burden, they have also provided an opportunity, as the court’s agenda-setting process occasionally does by prompting other government institutions to confront issues that might more easily go unaddressed.  It is an opportunity for public education, for engagement with a painful issue, for leadership.

Given what we have seen from the Obama administration on the very toughest and most politically fraught criminal justice issues, I am not holding my breath for leadership on the issue of felon disenfranchisement.  Nevertheless, Linda Greenhouse's astute commentary reminds us all of an issue worth watching closely as the fall SCOTUS season draws slowly nearer.  (I believe the Justices start Two-A-Days in a few weeks after they all get back from Europe, and I suspect that Justice Sotomayor is already looking forward to having a new rookie in SCOTUS training camp to carry the pads and helmets of all the veterans after practices.)

August 1, 2010 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (16) | TrackBack