Neither liberals nor Republicans have yet figured out President Obama. Each expected him to be the president each imagined he'd be, as defined by each, and he has turned out different. Both are rankled.
A Supreme Court filing from the Obama administration last month has set off alarm bells on the left. The filing was a friend-of-the-court brief, and it mostly dealt with an excruciatingly technical question about the attorney-client privilege. But its last five pages were about the state secrets privilege, which was not at issue in the case. That privilege, a favorite tool of the Bush administration, allows the government to shut down lawsuits by invoking national security.
The Obama administration’s brief argued, though no one had asked, that the state secrets privilege was rooted in the Constitution.
No socialist, as Republicans warned and continue to repeat, he is also turning out to be less liberal than the liberals expected.
On the campaign trail and in more recent statements, President Obama has indicated that he wants to limit the use of the state secrets privilege. In courtrooms, however, there has been little evidence of a new approach.
The Administration has been playing it very cautiously.
A federal judge in San Francisco, for instance, last year rejected a version of the constitutional argument in a case brought by Mr. Eisenberg’s client, Al-Haramain Islamic Foundation. The foundation said it had been subjected to illegal surveillance in the Bush years. Both the Bush and Obama administrations have argued that the charity’s suit must be dismissed under the state secrets privilege.
This is where the issue of the pedigree of the privilege really matters. If the privilege is an ordinary common-law rule of evidence, Congress is probably free to alter it. If it is required by the Constitution, things get more complicated.
The judge in San Francisco, Vaughn R. Walker, ruled that Congress had indeed overridden the state secrets privilege when it enacted the Foreign Intelligence Surveillance Act of 1978. The judge said that by setting up a secret court to consider requests for intelligence surveillance, and by setting up other domestic regulations of foreign intelligence surveillance, “Congress intended for the executive branch to relinquish its near-total control over whether the fact of unlawful surveillance could be protected as a secret.”
The government’s recent brief cited the leading Supreme Court decision on state secrets, United States v. Reynolds in 1953, but it said nothing about Judge Walker’s reading of it.
This last case is an interesting one: It concerned an Air Force accident report. The government refused to turn it over in an injury lawsuit, saying that disclosure of the report would endanger national security by revealing military secrets.
And?
When the report was finally released in 1996, it contained no secrets, but it did show that the deaths of nine men in the crash of a B-29 bomber had been caused by the Air Force’s negligence.
Nixon also claimed national security, often.
Thus, the first case in which the Supreme Court recognized the state secrets privilege illustrated how problematic it can be. By giving the executive branch close to unilateral power to have lawsuits dismissed on national security grounds, the privilege can become a way to conceal government misconduct.
The recent brief from the Obama administration cited just one decision directly invoking the Constitution as the basis for the state secrets privilege. Other courts have said the state secrets privilege is rooted in the common law.
Showing posts with label Justice. Show all posts
Showing posts with label Justice. Show all posts
Tuesday, August 4, 2009
Friday, July 24, 2009
Bush-Era Debate: Using G.I.’s in U.S.
Top Bush administration officials in 2002 debated testing the Constitution by sending American troops into the suburbs of Buffalo to arrest a group of men suspected of plotting with Al Qaeda, according to former administration officials.
Testing the Constitution?
Some of the advisers to President George W. Bush, including Vice President Dick Cheney, argued that a president had the power to use the military on domestic soil to sweep up the terrorism suspects, who came to be known as the Lackawanna Six, and declare them enemy combatants.
Cheney, of course; he seems to have believed anything he decided to do would be legal. Surely John Yoo could have written him a memo declaring the actions constitutional.
Mr. Bush ultimately decided against the proposal to use military force.
For whatever reason, he made the right decision.
A decision to dispatch troops into the streets to make arrests would be nearly unprecedented in American history, as both the Constitution and subsequent laws restrict the military from being used to conduct domestic raids and seize property.
The Fourth Amendment bans “unreasonable” searches and seizures without probable cause. And the Posse Comitatus Act of 1878 generally prohibits the military from acting in a law enforcement capacity.
In the discussions, Mr. Cheney and others cited an Oct. 23, 2001, memorandum from the Justice Department that, using a broad interpretation of presidential authority, argued that the domestic use of the military against Al Qaeda would be legal because it served a national security, rather than a law enforcement, purpose.
A broad interpretation? Isn't that akin to judicial activism?
Testing the Constitution?
Some of the advisers to President George W. Bush, including Vice President Dick Cheney, argued that a president had the power to use the military on domestic soil to sweep up the terrorism suspects, who came to be known as the Lackawanna Six, and declare them enemy combatants.
Cheney, of course; he seems to have believed anything he decided to do would be legal. Surely John Yoo could have written him a memo declaring the actions constitutional.
Mr. Bush ultimately decided against the proposal to use military force.
For whatever reason, he made the right decision.
A decision to dispatch troops into the streets to make arrests would be nearly unprecedented in American history, as both the Constitution and subsequent laws restrict the military from being used to conduct domestic raids and seize property.
The Fourth Amendment bans “unreasonable” searches and seizures without probable cause. And the Posse Comitatus Act of 1878 generally prohibits the military from acting in a law enforcement capacity.
In the discussions, Mr. Cheney and others cited an Oct. 23, 2001, memorandum from the Justice Department that, using a broad interpretation of presidential authority, argued that the domestic use of the military against Al Qaeda would be legal because it served a national security, rather than a law enforcement, purpose.
A broad interpretation? Isn't that akin to judicial activism?
Tuesday, June 30, 2009
Decision Reflects Court's Deep Division
Sonia Sotomayor, the New York appellate judge President Barack Obama has nominated to the Supreme Court, has credited her success in part to postwar America's efforts to correct centuries of racial discrimination.
If, as expected, her nomination is confirmed, the self-described "affirmative-action baby" will join a court divided on that very topic.
Chief Justice John Roberts came to the court with a deep-seated skepticism of race-conscious policies. In a number of cases his court has ruled, often 5-4, in favor of limiting the scope of civil-rights laws and practices devised to address racial discrimination.
"It is a sordid business, this divvying us up by race," Justice Roberts wrote in a 2006 concurring opinion rejecting a Voting Rights Act challenge to Texas' congressional redistricting.
No more sordid than racism.
"This is an area where there are sharply divergent intuitions about the role of race in American society, and sharply divergent views about what should be done about it," says Goodwin Liu, co-director of the Chief Justice Earl Warren Institute on Race, Ethnicity and Diversity at the University of California, Berkeley.
Will she, as expected and predicted by so many pundits, be predictably liberal?
It also is possible that she could seek to hammer out a middle ground. Still, sometimes justices' views change, if subtly, over time. The chief justice himself has displayed a more moderate streak this term. Earlier this month, he wrote an opinion joined by seven other justices that left alive a bedrock provision of the Voting Rights Act of 1965.
Roberts moderating? What an interesting comment.
The Supreme Court's decision Monday in the New Haven firefighters' case highlights the justices' split. The four liberals would have upheld the city's decision to toss out test results that it worried were discriminatory. Justice Kennedy wrote the opinion.
A concurring opinion from Justice Samuel Alito, joined by Justices Antonin Scalia and Clarence Thomas, effectively accused New Haven's leadership of pandering to a local black political leader in throwing out the test results. Notably, Chief Justice Roberts didn't join that toughly worded opinion.
Well, it is all relative.
If, as expected, her nomination is confirmed, the self-described "affirmative-action baby" will join a court divided on that very topic.
Chief Justice John Roberts came to the court with a deep-seated skepticism of race-conscious policies. In a number of cases his court has ruled, often 5-4, in favor of limiting the scope of civil-rights laws and practices devised to address racial discrimination.
"It is a sordid business, this divvying us up by race," Justice Roberts wrote in a 2006 concurring opinion rejecting a Voting Rights Act challenge to Texas' congressional redistricting.
No more sordid than racism.
"This is an area where there are sharply divergent intuitions about the role of race in American society, and sharply divergent views about what should be done about it," says Goodwin Liu, co-director of the Chief Justice Earl Warren Institute on Race, Ethnicity and Diversity at the University of California, Berkeley.
Will she, as expected and predicted by so many pundits, be predictably liberal?
It also is possible that she could seek to hammer out a middle ground. Still, sometimes justices' views change, if subtly, over time. The chief justice himself has displayed a more moderate streak this term. Earlier this month, he wrote an opinion joined by seven other justices that left alive a bedrock provision of the Voting Rights Act of 1965.
Roberts moderating? What an interesting comment.
The Supreme Court's decision Monday in the New Haven firefighters' case highlights the justices' split. The four liberals would have upheld the city's decision to toss out test results that it worried were discriminatory. Justice Kennedy wrote the opinion.
A concurring opinion from Justice Samuel Alito, joined by Justices Antonin Scalia and Clarence Thomas, effectively accused New Haven's leadership of pandering to a local black political leader in throwing out the test results. Notably, Chief Justice Roberts didn't join that toughly worded opinion.
Well, it is all relative.
Thursday, June 25, 2009
’98 Sotomayor hints on Death Penalty
Judge Sonia Sotomayor in 1998. That year she handled a death penalty matter, her only such case on the federal bench.
As a drug kingpin and his bodyguard, both black, faced the first death penalty trial in Manhattan since the days of the Rosenbergs, their lawyers argued that the practice of capital punishment was racist.
“We’re doing what the death penalty has always done historically, which is target minority people,” one of the lawyers said in 1998 as he asked a Federal District Court judge to declare the penalty unconstitutional.
That judge was Sonia Sotomayor — a Bronx-born woman of Puerto Rican descent who as a young lawyer had leveled much the same attack on capital punishment. And as she listened to the arguments that day, she acknowledged there were many unresolved “tensions” surrounding the death penalty. But she flatly told the lawyers she had no power to resolve them. “I don’t as a judge,” she said. “They are not up to me. Ultimately, they are up to Congress and the Supreme Court.”
And now Judge Sotomayor has been nominated for a seat on the Supreme Court.
As a drug kingpin and his bodyguard, both black, faced the first death penalty trial in Manhattan since the days of the Rosenbergs, their lawyers argued that the practice of capital punishment was racist.
“We’re doing what the death penalty has always done historically, which is target minority people,” one of the lawyers said in 1998 as he asked a Federal District Court judge to declare the penalty unconstitutional.
That judge was Sonia Sotomayor — a Bronx-born woman of Puerto Rican descent who as a young lawyer had leveled much the same attack on capital punishment. And as she listened to the arguments that day, she acknowledged there were many unresolved “tensions” surrounding the death penalty. But she flatly told the lawyers she had no power to resolve them. “I don’t as a judge,” she said. “They are not up to me. Ultimately, they are up to Congress and the Supreme Court.”
And now Judge Sotomayor has been nominated for a seat on the Supreme Court.
Friday, June 5, 2009
Tilt to Right of Souter
While Judge Sonia Sotomayor stands in the liberal mainstream on many issues, her record suggests that the Supreme Court nominee could sometimes rule with the top court's conservatives on questions of criminal justice.Maybe they are beginning to realize they rushed to judge her without knowing anything much about the Judge.
New York criminal-defense lawyers say she is surprisingly tough on crime for a Democratic-backed appointee -- a byproduct, they believe, of her tenure as a prosecutor.
Not every Democrat, not every Hispanic, not every woman is "soft" on crime, nor fits into the expected pigeonhole.
"The reputation of Sotomayor was that sentencing was not an easy ride," says Gerald Shargel, a criminal-defense attorney.
If Nest had bothered to review her record before spewing his nonsense ...
Following recent Supreme Court precedent, Judge Sotomayor tends to see relatively few grounds to overturn criminal convictions, says John Siffert, a New York attorney who taught an appellate advocacy class with the judge at New York University School of Law from 1996 to 2006. On the trial bench, he says, "she was not viewed as a pro-defense judge."
Still, there are reservations, aren't there?
To be sure, Judge Sotomayor has at times shown leniency toward criminal defendants. In 2001, after she had become an appellate-court judge, she agreed to preside over the drug-conspiracy trial of Sandra Carter. The jury convicted Ms. Carter, but Judge Sotomayor sentenced her to six months in prison, far below the term that she could have drawn under the sentencing guidelines, says Edward O'Callaghan, the prosecutor in the case.
Aha!
Judge Sotomayor, he says, took into account the fact that the defendant was a first-time offender who made far less money than other conspiracy participants.
Oh, geez: empathy.
Michael Bachner, a New York defense lawyer who has handled trials and appeals before Judge Sotomayor, senses a divide in her criminal jurisprudence. She can be "very tough" on white-collar defendants from privileged backgrounds, but is "more understanding of individuals who grew up in a tougher circumstance.
What would Newt say?
Jeffrey Fisher, a Stanford Law School professor who was on the losing side of the January Supreme Court decision, says Judge Sotomayor's ruling demonstrates a "willingness to give police the benefit of the doubt."
Tuesday, June 2, 2009
Look for Sotomayor to Add Heat
Interesting: that headline is also the one in the newspaper article, though on the front webpage the headline reads: With Sotomayor, Left May Get Vocal.
And, heat? How about dynamism? Intellectual curiosity?
Judge Sonia Sotomayor's elevation to the Supreme Court probably wouldn't bring a big change to the court's ideological balance, but in at least one area, she would likely make an immediate difference: oral arguments.
A New Yorker is not likely to be reticent abput expressing her opinions.
If confirmed, Judge Sotomayor would arrive on a high court where conservatives have tended to dominate oral arguments in recent years. The arguments are the only chance the public has to see the justices in action.
It's high time someone cut into Scalia's performances.
A lawyer says the atmosphere has changed since John Roberts became chief justice, succeeding the late William Rehnquist, and Justice Samuel Alito replaced Sandra Day O'Connor.
"The questioning from the right has become far more aggressive," says Mr. Goldstein. "The justices on the left tend to be more reticent and ask less pointed questions."
Temperament? That's a red herring, a strawman, a diversionary tactic, nonsense. Men are aggressive, women are pushy. Or brusque.
Reticence isn't Judge Sotomayor's style. "She's from the Bronx," says Vincent Briccetti, a White Plains, N.Y., defense lawyer who has argued before Judge Sotomayor. "Of course she's brusque."
Mr. Goldstein suggests that Judge Sotomayor could become a foil for Chief Justice Roberts. Both are 54 years old and share an Ivy League education. They diverge in their upbringing -- Chief Justice Roberts was the son of a steel executive, while Judge Sotomayor came from humble surroundings in New York's Bronx borough -- and in their approach to the law, with the chief justice strongly skeptical about affirmative action.
Of course he's skeptical: he never needed it. He earned his stripes, though never mind daddy's money.
Jon Schoenhorn, a Hartford, Conn., lawyer, encountered Judge Sotomayor most recently when he represented a high-school student who was barred from running for school office after calling certain administrators a derogatory name.
"She asked most of the questions," says Mr. Schoenhorn, and grilled both sides in a way that showed she "had mastered the facts." Mr. Schoenhorn thought from her tone in questioning that his client would win, but earlier this year, Judge Sotomayor joined in an opinion rejecting his appeal.
Mastered facts.
In the court's private conferences, Judge Sotomayor could first make an impact on the size of the court's docket, says Carter Phillips, managing partner of Sidley Austin LLP in Washington and a law clerk to late Chief Justice Warren Burger. Four votes are needed to accept a case for argument.
In previous decades, the court would decide more than 100 cases a year. In recent years, the number has fallen to about 70, frustrating attorneys who would like to see the court take up their cases.
Light workload. And Roberts doesn't seem to have made any charge therein.
"There's nothing on the record that suggests Justice [David] Souter was a large proponent of a larger docket," Mr. Phillips says. Replacing him means "another shot, from our perspective, someone who's coming to the issues fresh and might bring more curiosity to the issue" itself, rather than stepping in mainly to resolve conflicts between the lower courts.
Intellectual curiosity, not just umpiring.
"This remains a court dominated by Justice Kennedy," says Edward Lazarus*, a former Supreme Court clerk and author of a book about the court. Mr. Goldstein, who also runs the Scotusblog.com Web site, says the liberal wing could lose out with the retirement of Justice Souter.
"Persuasion on the court is based on relationships and trust. Kennedy is somebody who trusts Souter. They worked together for two decades," Mr. Goldstein says.
To reach Justice Kennedy, Judge Sotomayor would "have to be careful," says Mr. Phillips. "You don't want to push him too hard, but you want to push him hard enough. You have to hit the notes just right."
The Kennedy Court.
And, heat? How about dynamism? Intellectual curiosity?
Judge Sonia Sotomayor's elevation to the Supreme Court probably wouldn't bring a big change to the court's ideological balance, but in at least one area, she would likely make an immediate difference: oral arguments.
A New Yorker is not likely to be reticent abput expressing her opinions.
If confirmed, Judge Sotomayor would arrive on a high court where conservatives have tended to dominate oral arguments in recent years. The arguments are the only chance the public has to see the justices in action.
It's high time someone cut into Scalia's performances.
A lawyer says the atmosphere has changed since John Roberts became chief justice, succeeding the late William Rehnquist, and Justice Samuel Alito replaced Sandra Day O'Connor.
"The questioning from the right has become far more aggressive," says Mr. Goldstein. "The justices on the left tend to be more reticent and ask less pointed questions."
Temperament? That's a red herring, a strawman, a diversionary tactic, nonsense. Men are aggressive, women are pushy. Or brusque.
Reticence isn't Judge Sotomayor's style. "She's from the Bronx," says Vincent Briccetti, a White Plains, N.Y., defense lawyer who has argued before Judge Sotomayor. "Of course she's brusque."
Mr. Goldstein suggests that Judge Sotomayor could become a foil for Chief Justice Roberts. Both are 54 years old and share an Ivy League education. They diverge in their upbringing -- Chief Justice Roberts was the son of a steel executive, while Judge Sotomayor came from humble surroundings in New York's Bronx borough -- and in their approach to the law, with the chief justice strongly skeptical about affirmative action.
Of course he's skeptical: he never needed it. He earned his stripes, though never mind daddy's money.
Jon Schoenhorn, a Hartford, Conn., lawyer, encountered Judge Sotomayor most recently when he represented a high-school student who was barred from running for school office after calling certain administrators a derogatory name.
"She asked most of the questions," says Mr. Schoenhorn, and grilled both sides in a way that showed she "had mastered the facts." Mr. Schoenhorn thought from her tone in questioning that his client would win, but earlier this year, Judge Sotomayor joined in an opinion rejecting his appeal.
Mastered facts.
In the court's private conferences, Judge Sotomayor could first make an impact on the size of the court's docket, says Carter Phillips, managing partner of Sidley Austin LLP in Washington and a law clerk to late Chief Justice Warren Burger. Four votes are needed to accept a case for argument.
In previous decades, the court would decide more than 100 cases a year. In recent years, the number has fallen to about 70, frustrating attorneys who would like to see the court take up their cases.
Light workload. And Roberts doesn't seem to have made any charge therein.
"There's nothing on the record that suggests Justice [David] Souter was a large proponent of a larger docket," Mr. Phillips says. Replacing him means "another shot, from our perspective, someone who's coming to the issues fresh and might bring more curiosity to the issue" itself, rather than stepping in mainly to resolve conflicts between the lower courts.
Intellectual curiosity, not just umpiring.
"This remains a court dominated by Justice Kennedy," says Edward Lazarus*, a former Supreme Court clerk and author of a book about the court. Mr. Goldstein, who also runs the Scotusblog.com Web site, says the liberal wing could lose out with the retirement of Justice Souter.
"Persuasion on the court is based on relationships and trust. Kennedy is somebody who trusts Souter. They worked together for two decades," Mr. Goldstein says.
To reach Justice Kennedy, Judge Sotomayor would "have to be careful," says Mr. Phillips. "You don't want to push him too hard, but you want to push him hard enough. You have to hit the notes just right."
The Kennedy Court.
Thursday, May 21, 2009
Push in Spain to Limit Reach of the Courts
Judge Baltasar Garzón, left, has opened an inquiry into complaints of torture filed by four former Guantánamo detainees
Spain’s crusading judges could lose their power to investigate human rights violations that occur anywhere in the world after Spanish lawmakers called for restrictions of the judiciary’s reach.
Lawmakers approved a nonbinding proposal late Tuesday urging the Socialist government to change a law — currently the most far-reaching in Europe — that enables investigators to probe alleged human rights crimes regardless of where they are committed or where the defendants live.
It has long seemed out of bounds, to me, that a Spanish judge can reach into another nation's sovereign borders.
Spanish lawyers have gained a reputation for activism in recent years by using the principle of universal jurisdiction to pursue cases against suspected human rights violators overseas, most famously the former Chilean dictator Gen. Augusto Pinochet.
Of course I was glad to see Pinochet nabbed, but it still seemed absurd that a Spanish judge's power reached so far.
However, the Guantánamo case and one filed against Israeli officials this year created a diplomatic headache for the government of Prime Minister José Luis Rodríguez Zapatero and prompted calls for a change in the law.
That is not justice, but politics.
Israel complained in January after the National Court decided to investigate seven current or former Israeli officials over an air attack in Gaza that killed a top Hamas militant in 2002 but also 14 other people, including 9 children.
That seems was anti-Israeli more than anything else.
“The cases brought in Spain are a way of persuading or forcing the courts of others countries to deal with the crimes they are not dealing with at home,” Reed Brody, an international law specialist for Human Rights Watch in Brussels, said by telephone on Wednesday. “For instance, the cases brought in Spain against Americans may help persuade the Obama administration to try the cases where they belong. ”
That judgment assumes it is correct in saying there are cases, and not political convictions. And, more, it assumes, presumes, the speaker has the right to "persuade or force" others to conform to what he judges to be right.
Spain’s crusading judges could lose their power to investigate human rights violations that occur anywhere in the world after Spanish lawmakers called for restrictions of the judiciary’s reach.
Lawmakers approved a nonbinding proposal late Tuesday urging the Socialist government to change a law — currently the most far-reaching in Europe — that enables investigators to probe alleged human rights crimes regardless of where they are committed or where the defendants live.
It has long seemed out of bounds, to me, that a Spanish judge can reach into another nation's sovereign borders.
Spanish lawyers have gained a reputation for activism in recent years by using the principle of universal jurisdiction to pursue cases against suspected human rights violators overseas, most famously the former Chilean dictator Gen. Augusto Pinochet.
Of course I was glad to see Pinochet nabbed, but it still seemed absurd that a Spanish judge's power reached so far.
However, the Guantánamo case and one filed against Israeli officials this year created a diplomatic headache for the government of Prime Minister José Luis Rodríguez Zapatero and prompted calls for a change in the law.
That is not justice, but politics.
Israel complained in January after the National Court decided to investigate seven current or former Israeli officials over an air attack in Gaza that killed a top Hamas militant in 2002 but also 14 other people, including 9 children.
That seems was anti-Israeli more than anything else.
“The cases brought in Spain are a way of persuading or forcing the courts of others countries to deal with the crimes they are not dealing with at home,” Reed Brody, an international law specialist for Human Rights Watch in Brussels, said by telephone on Wednesday. “For instance, the cases brought in Spain against Americans may help persuade the Obama administration to try the cases where they belong. ”
That judgment assumes it is correct in saying there are cases, and not political convictions. And, more, it assumes, presumes, the speaker has the right to "persuade or force" others to conform to what he judges to be right.
Friday, March 27, 2009
Missouri System Treats Juvenile Offenders With Lighter Hand
Detainees in a game session at the Hogan Street center, which also provides health and wellness classes and group counseling.
Rules are posted at the Hogan Street Youth Center in St. Louis.
Graphic Fewer Youths in Custody
March 27, 2009
Missouri System Treats Juvenile Offenders With Lighter Hand
By SOLOMON MOORE
ST. LOUIS, Mo. — VonErrick celebrated his 14th birthday last year by committing a daylight carjacking, beating the driver to the ground. With a long record of truancy, assault, and breaking and entering, he was sent to a state group home — the same home that his two older brothers passed through after their own scrapes with the law.
Both of those brothers are out now. Tory, 16, has A grades and plans to attend college. Terry, 20, has a job and has had a clean record for four years. VonErrick was recently released and immediately started high school.
The brothers say they benefited from confinement in the Missouri juvenile system, which emphasizes rehabilitation in small groups, constant therapeutic interventions and minimal force.
Juvenile justice experts across the nation say that the approach, known as the Missouri Model, is one of several promising reform movements that strapped states are trying to reduce the costly confinement of youths. California, which spends more than $200,000 a year on each incarcerated juvenile, reallocated $93 million in prison expenses by reducing state confinement.
There is no barbed wire around facilities like Missouri Hills, on the outskirts of St. Louis. No more than 10 youths and 2 adults called facilitators live in cottage-style dormitories in a wooded setting, a far cry from the quasi penitentiaries in other states. When someone becomes unruly, the other youths are trained to talk him down. Perhaps most impressive, Missouri has one of the lowest recidivism rates in the country.
Other states, including Florida, Illinois and Louisiana, have moved in a similar direction, focusing on improving conditions at state facilities to keep young offenders from returning.
Some states have worked at the county level to avoid confinement altogether, keeping youths in their communities while they receive rehabilitative services, which advocates say is a cheaper alternative to residential care.
The two largest state systems, Texas and California, cut long-term youth confinement by requiring counties to house low-level offenders in detention halls. Texas cut its 5,000-youth population by half within two years, while California reduced its population to 2,500, from more than 10,000 in 1997. But critics say that city and county detention programs are uneven and point out that states often do a poor job of monitoring them.
Missouri and other states are using new approaches in the juvenile justice system to try to stem the flow of adults behind bars. Missouri managed to cut its adult population from 2005 through the first half of 2007 by applying techniques from the Missouri Model.
The reforms have begun to have a national impact, with a 12 percent decrease in juvenile offenders from 1997 to 2006, from 105,000 youths to 93,000.
Most of the decline during that period was in state confinements, although some of the decrease is attributed to a 28 percent decline in youth arrests, which reform advocates say proves that there is no detriment associated with fewer incarcerated juveniles.
The Anne E. Casey Foundation of Baltimore has been a leading advocate for ending the confinement of low-risk offenders and placing them in community programs. Since trying the foundation’s approach in 2003, five counties in New Jersey have reduced juvenile detention by 42 percent, to 288 youths from 499.
Three years ago in California, Scott MacDonald, who is in charge of probation in Santa Cruz County, began asking courts to use Casey Foundation methods. Instead of confining every gang member accused of a crime, or every juvenile who failed a drug test, judges now look at a youth’s record and risk to determine whether he should remain free. A youth who fails a drug test, for example, might be ordered to attend substance abuse classes.
“Even if a kid doesn’t follow all of the rules — particularly rules that have nothing to do with crime — we won’t necessarily detain him,” Mr. MacDonald said.
In the 1990s, the Santa Cruz juvenile hall averaged 50 to 60 youths. Now it averages about 20 detainees, most of them under community supervision. More than 90 percent of those in the community programs have not committed new crimes within three years, Mr. McDonald said.
“The question we’re always starting with is, How do we keep them home?” he said.
Isela Gutierrez, a juvenile justice expert with the Texas Criminal Justice Coalition, a nonprofit group, said one drawback to the Missouri state system was that too many low-level offenders there were being confined, while serious juvenile felons were being sent to adult prisons, where conditions are harsher.
Tim Decker, director of the Missouri Division of Youth Services, said judges preferred to send youths to state facilities — Missouri Hills or the Hogan Street Regional Youth Center, with dorms that have wooden beds, male health and wellness classes, group counseling and game rooms — rather than dismal county lockups or to backlogged community programs.
“Judges have more faith in us,” Mr. Decker said. “So far we’re O.K., but you can’t do what we do with 25 kids in a group.”
Missouri Hills is clean and homey, with plush couches, stuffed animals on the bunks, and a dog rescued from the pound. The violence that plagues many juvenile prisons is also absent.
In a typical juvenile corrections environment, Mr. Decker said, if a youth becomes aggressive “you would have guards drag him into isolation” for three days.
“But,” he added, “the problem is that a young person doesn’t learn how to avoid that aggressive behavior and it will get worse.”
In Missouri Hills, isolation rooms were used only about a dozen times last year, Mr. Decker said, and never for more than a few hours. Pepper spray is banned, and youths are taught to de-escalate fights or apply grappling holds, a form of restraint.
Victoria, 16, who stole her grandmother’s car, her second offense, explained how her housing unit does a “circle-up,” or ad hoc counseling session, several times a day, whenever there is a conflict, like cursing.
“There’s drama all the time,” she said. “It’s like having a bunch of sisters.”
The Missouri system provided triage for an imploding system in Washington, where the juvenile corrections agency was plagued by vermin-infested buildings, overcrowding and chronic violence.
“The kids were stuffing their shirts with paper before they went to sleep to keep the roaches and rats from biting them,” said Vincent Schiraldi, head of the city’s Division of Rehabilitative Services.
With advice from experts in Missouri, Mr. Schiraldi divided platoons of youths into small groups. By October, the number of juveniles reconvicted within a year of release dropped to 25 percent, from 31 percent four years earlier. However, as conditions improved, confinements have risen, even as juvenile crime has declined.
Mr. Decker said that upgrading facilities and training new staff cost more initially, but that the reforms would reduce recidivism, which would result in long-term savings.
VonErrick has been home for a few weeks, and his 18-year-old sister said he seemed calmer and less interested in running with the wrong crowd. Their mother, Rosie Williams, said all three of her sons seemed more focused, and she attributed the changes to the counselors at the state group home.
Ms. Williams, whose husband is in prison, occasionally attended family counseling sessions where she said she learned important lessons as a parent. “Instead of just hollering at them and trying to keep them out of trouble,” she said, “I try to do things with them one on one, to get to know what’s on their mind and what’s going on in their lives.”
Rules are posted at the Hogan Street Youth Center in St. Louis.
Graphic Fewer Youths in CustodyMarch 27, 2009
Missouri System Treats Juvenile Offenders With Lighter Hand
By SOLOMON MOORE
ST. LOUIS, Mo. — VonErrick celebrated his 14th birthday last year by committing a daylight carjacking, beating the driver to the ground. With a long record of truancy, assault, and breaking and entering, he was sent to a state group home — the same home that his two older brothers passed through after their own scrapes with the law.
Both of those brothers are out now. Tory, 16, has A grades and plans to attend college. Terry, 20, has a job and has had a clean record for four years. VonErrick was recently released and immediately started high school.
The brothers say they benefited from confinement in the Missouri juvenile system, which emphasizes rehabilitation in small groups, constant therapeutic interventions and minimal force.
Juvenile justice experts across the nation say that the approach, known as the Missouri Model, is one of several promising reform movements that strapped states are trying to reduce the costly confinement of youths. California, which spends more than $200,000 a year on each incarcerated juvenile, reallocated $93 million in prison expenses by reducing state confinement.
There is no barbed wire around facilities like Missouri Hills, on the outskirts of St. Louis. No more than 10 youths and 2 adults called facilitators live in cottage-style dormitories in a wooded setting, a far cry from the quasi penitentiaries in other states. When someone becomes unruly, the other youths are trained to talk him down. Perhaps most impressive, Missouri has one of the lowest recidivism rates in the country.
Other states, including Florida, Illinois and Louisiana, have moved in a similar direction, focusing on improving conditions at state facilities to keep young offenders from returning.
Some states have worked at the county level to avoid confinement altogether, keeping youths in their communities while they receive rehabilitative services, which advocates say is a cheaper alternative to residential care.
The two largest state systems, Texas and California, cut long-term youth confinement by requiring counties to house low-level offenders in detention halls. Texas cut its 5,000-youth population by half within two years, while California reduced its population to 2,500, from more than 10,000 in 1997. But critics say that city and county detention programs are uneven and point out that states often do a poor job of monitoring them.
Missouri and other states are using new approaches in the juvenile justice system to try to stem the flow of adults behind bars. Missouri managed to cut its adult population from 2005 through the first half of 2007 by applying techniques from the Missouri Model.
The reforms have begun to have a national impact, with a 12 percent decrease in juvenile offenders from 1997 to 2006, from 105,000 youths to 93,000.
Most of the decline during that period was in state confinements, although some of the decrease is attributed to a 28 percent decline in youth arrests, which reform advocates say proves that there is no detriment associated with fewer incarcerated juveniles.
The Anne E. Casey Foundation of Baltimore has been a leading advocate for ending the confinement of low-risk offenders and placing them in community programs. Since trying the foundation’s approach in 2003, five counties in New Jersey have reduced juvenile detention by 42 percent, to 288 youths from 499.
Three years ago in California, Scott MacDonald, who is in charge of probation in Santa Cruz County, began asking courts to use Casey Foundation methods. Instead of confining every gang member accused of a crime, or every juvenile who failed a drug test, judges now look at a youth’s record and risk to determine whether he should remain free. A youth who fails a drug test, for example, might be ordered to attend substance abuse classes.
“Even if a kid doesn’t follow all of the rules — particularly rules that have nothing to do with crime — we won’t necessarily detain him,” Mr. MacDonald said.
In the 1990s, the Santa Cruz juvenile hall averaged 50 to 60 youths. Now it averages about 20 detainees, most of them under community supervision. More than 90 percent of those in the community programs have not committed new crimes within three years, Mr. McDonald said.
“The question we’re always starting with is, How do we keep them home?” he said.
Isela Gutierrez, a juvenile justice expert with the Texas Criminal Justice Coalition, a nonprofit group, said one drawback to the Missouri state system was that too many low-level offenders there were being confined, while serious juvenile felons were being sent to adult prisons, where conditions are harsher.
Tim Decker, director of the Missouri Division of Youth Services, said judges preferred to send youths to state facilities — Missouri Hills or the Hogan Street Regional Youth Center, with dorms that have wooden beds, male health and wellness classes, group counseling and game rooms — rather than dismal county lockups or to backlogged community programs.
“Judges have more faith in us,” Mr. Decker said. “So far we’re O.K., but you can’t do what we do with 25 kids in a group.”
Missouri Hills is clean and homey, with plush couches, stuffed animals on the bunks, and a dog rescued from the pound. The violence that plagues many juvenile prisons is also absent.
In a typical juvenile corrections environment, Mr. Decker said, if a youth becomes aggressive “you would have guards drag him into isolation” for three days.
“But,” he added, “the problem is that a young person doesn’t learn how to avoid that aggressive behavior and it will get worse.”
In Missouri Hills, isolation rooms were used only about a dozen times last year, Mr. Decker said, and never for more than a few hours. Pepper spray is banned, and youths are taught to de-escalate fights or apply grappling holds, a form of restraint.
Victoria, 16, who stole her grandmother’s car, her second offense, explained how her housing unit does a “circle-up,” or ad hoc counseling session, several times a day, whenever there is a conflict, like cursing.
“There’s drama all the time,” she said. “It’s like having a bunch of sisters.”
The Missouri system provided triage for an imploding system in Washington, where the juvenile corrections agency was plagued by vermin-infested buildings, overcrowding and chronic violence.
“The kids were stuffing their shirts with paper before they went to sleep to keep the roaches and rats from biting them,” said Vincent Schiraldi, head of the city’s Division of Rehabilitative Services.
With advice from experts in Missouri, Mr. Schiraldi divided platoons of youths into small groups. By October, the number of juveniles reconvicted within a year of release dropped to 25 percent, from 31 percent four years earlier. However, as conditions improved, confinements have risen, even as juvenile crime has declined.
Mr. Decker said that upgrading facilities and training new staff cost more initially, but that the reforms would reduce recidivism, which would result in long-term savings.
VonErrick has been home for a few weeks, and his 18-year-old sister said he seemed calmer and less interested in running with the wrong crowd. Their mother, Rosie Williams, said all three of her sons seemed more focused, and she attributed the changes to the counselors at the state group home.
Ms. Williams, whose husband is in prison, occasionally attended family counseling sessions where she said she learned important lessons as a parent. “Instead of just hollering at them and trying to keep them out of trouble,” she said, “I try to do things with them one on one, to get to know what’s on their mind and what’s going on in their lives.”
Wednesday, March 18, 2009
Sign of the times
Last week, a juror in a big federal drug trial in Florida admitted to the judge that he had been doing research on the case on the Internet, directly violating the judge’s instructions and centuries of legal rules. But when the judge questioned the rest of the jury, he got an even bigger shock.
Eight other jurors had been doing the same thing. The federal judge, William J. Zloch, had no choice but to declare a mistrial, a waste of eight weeks of work by federal prosecutors and defense lawyers.
A new day clearly requires new rules. Can cellphones be excluded?
Jurors are not supposed to seek information outside of the courtroom. They are required to reach a verdict based on only the facts the judge has decided are admissible, and they are not supposed to see evidence that has been excluded as prejudicial. But now, using their cellphones, they can look up the name of a defendant on the Web or examine an intersection using Google Maps, violating the legal system’s complex rules of evidence. They can also tell their friends what is happening in the jury room, though they are supposed to keep their opinions and deliberations secret.
Supposed to; honor and integrity are key ingredients.
Judges have long amended their habitual warning about seeking outside information during trials to include Internet searches. But with the Internet now as close as a juror’s pocket, the risk has grown more immediate — and instinctual. Attorneys have begun to check the blogs and Web sites of prospective jurors.
Aside from the voir dire, blog searches.
But the rules of evidence, developed over hundreds of years of jurisprudence, are there to ensure that the facts that go before a jury have been subjected to scrutiny and challenge from both sides, said Olin Guy Wellborn III, a law professor at the University of Texas.
Great name: Olin Guy Wellborn III.
Some courts are beginning to restrict the use of cellphones by jurors within the courthouse, even confiscating them during the day, but a majority do not, Mr. Keene said. And computer use at home, of course, is not restricted unless a jury is sequestered.
Eight other jurors had been doing the same thing. The federal judge, William J. Zloch, had no choice but to declare a mistrial, a waste of eight weeks of work by federal prosecutors and defense lawyers.
A new day clearly requires new rules. Can cellphones be excluded?
Jurors are not supposed to seek information outside of the courtroom. They are required to reach a verdict based on only the facts the judge has decided are admissible, and they are not supposed to see evidence that has been excluded as prejudicial. But now, using their cellphones, they can look up the name of a defendant on the Web or examine an intersection using Google Maps, violating the legal system’s complex rules of evidence. They can also tell their friends what is happening in the jury room, though they are supposed to keep their opinions and deliberations secret.
Supposed to; honor and integrity are key ingredients.
Judges have long amended their habitual warning about seeking outside information during trials to include Internet searches. But with the Internet now as close as a juror’s pocket, the risk has grown more immediate — and instinctual. Attorneys have begun to check the blogs and Web sites of prospective jurors.
Aside from the voir dire, blog searches.
But the rules of evidence, developed over hundreds of years of jurisprudence, are there to ensure that the facts that go before a jury have been subjected to scrutiny and challenge from both sides, said Olin Guy Wellborn III, a law professor at the University of Texas.
Great name: Olin Guy Wellborn III.
Some courts are beginning to restrict the use of cellphones by jurors within the courthouse, even confiscating them during the day, but a majority do not, Mr. Keene said. And computer use at home, of course, is not restricted unless a jury is sequestered.
Thursday, February 26, 2009
Justice Dept. Nominee Avoids Confrontation at Hearing
Dawn Johnsen and David Kris, nominees to Justice Department posts, met with the Senate Judiciary Committee on Wednesday.
Senator Arlen Specter of Pennsylvania, the committee’s ranking Republican, brought up comments made 20 years ago in a brief Ms. Johnsen filed before the Supreme Court when she represented Naral, an abortion rights group.
Senator Arlen Specter of Pennsylvania, the committee’s ranking Republican, brought up comments made 20 years ago in a brief Ms. Johnsen filed before the Supreme Court when she represented Naral, an abortion rights group.
Monday, July 21, 2008
2 down, 1 to go
In the gallery of asshole war criminals, the score in Serbia is now 2 down, 1 to go: Milosevic is dead, Karazdic has been captured, and only Mledic remains hiding in some rat's hole. In due time, he too will face one form of justice, or another: a war-crimes tribunal, or death.
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