Punishment, Democracy, and Victims

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There is an on-going debate about "victim's rights" and a possible "victim's bill of rights" Amendment to the U.S. Constitution found at the http://caliber.ucpress.net/toc/fsr/19/1">Federal Sentencing Reporter.

For a summary of the Reporter's articles, see: http://caliber.ucpress.net/doi/pdf/10.1525/fsr.2006.19.1.01">Punishment, Democracy, and Victims

For some thoughts on the subject overall, see the excellent http://sentencing.typepad.com/sentencing_law_and_policy/2006/11/extensive_fsr_c.html">Sentencing Law and Policy.

I know it was conservatives who were behind the California constitutional amendment, but do not know who is behind this one, could be bipartisan.

Some will undoubtedly want to be informed on this issue and others will find it interesting, no matter where you stand on constitutional amendments.

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1. For background on Kenna

Kenna v. US District Court, No. 05-73467 (1-20-06)

This is an important case regarding sentencing and a victim's right to allocute. This comes up on mandamus, and involves the right of a victim to be reasonably heard at a sentencing under the Crime Victims' Right Act (CVA). Somewhat surprisingly, there has been no other appellate decision on the extent of a victim's right to be heard. In this case, which involved a multi-million dollar swindle and fraud, victims were heard at the codefendant's (the father's) sentencing three months earlier than the present defendant's. At this present defendant's (Zvi Leichner) sentencing, the court stated that it had heard all it needed to hear from the victims, that he understood the loss and devastation, and took it into account.

more: http://circuit9.blogspot.com/2006/01/kenna-v.html

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2. Corporate & other elite interests will certainly oppose this. Why? Simple.

Allowing victims' testimony might influence jurors to come down harder on defendants than judges usually do. In the recent Enron sentencings, Fastow got less than six years and that's about the average, except for Skilling, who seems to have been the fall guy, punishment-wise. A very lenient judge gave very light sentences to some of the most crooked people ever to appear in a courtroom. Many people believe the reason is simply because the defendants are rich, white-collar criminals. Michael Kopper, who worked side by side with Fastow, is gay, and his partner will be in charge of the MORE THAN $9 MILLION in illegal gains that the Koppers are being allowed to keep.

Allowing too much input from victims would only serve to highlight the coddling judges give to rich criminals.

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3. You got that WRONG...

It's a covert attack on the Bill of Rights and the U.S. Constitution by many on the Right.

http://writ.news.findlaw.com/dean/20060705.html">Senators Kyl and Graham's Hamdan v. Rumsfeld Scam: The Deceptive Amicus Brief They Filed in the Guantanamo Detainee Case

By JOHN W. DEAN
----
Wednesday, Jul. 05, 2006

Last week, the Supreme Court issued its historic decision in Hamdan v. Rumsfeld. There, it dealt a substantial blow to the Bush/Cheney Administration's plans for the treatment of detainees at Guantanamo and, potentially, elsewhere as well - ruling out, for instance, the option of using military commissions without due process to try detainees.

The decision itself has been widely discussed. Less widely discussed, however, has been its backstory.

The Bush/Cheney Administration has been doing everything possible to keep its treatment of purported terrorist detainees out of the federal courts, particularly the Supreme Court. To assist the Administration, Republican Senators Lindsey Graham of South Carolina and Jon Kyl of Arizona engaged in a blatant scam that was revealed during the briefing of Hamdan.

Senators Graham and Kyl not only misled their Senate colleagues, but also shamed their high offices by trying to deliberately mislead the U.S. Supreme Court. Their effort failed. I have not seen so blatant a ploy, or abuse of power, since Nixon's reign.

The Administration’s deceit on this eavesdropping issue began shortly after it started eavesdropping in violation of FISA. At the July, 2002 Senate Intelligence Committee hearings to debate the FISA amendments introduced by Senators Kyl, Schumer and DeWine, the Justice Department’s James A. Baker -- also under oath -- falsely assured the Committee that the Senate could liberalize FISA without worrying about incursions into civil liberties:

So you would be, you know, connecting electronic surveillance and potentially physical search of those targets and that raises all the same kinds of civil liberties questions that FISA does to begin with. But nevertheless, you would have had--before you get to that point, you would have had a finding by a neutral and detached magistrate, and indeed in this case a sitting federal judge, district court judge, that all of the requirements of the statute are met and that there's probable cause to believe that this individual is engaged in international terrorism activities, or activities in preparation therefor.

A statement more starkly false is difficult to imagine. What Baker swore was true to the Committee (and, by implication, to all of us) -- namely, that no eavesdropping occurs without a federal judge first finding that all of the requirements of FISA were met -– was completely false. Unbeknownst even to the Senate Intelligence Committee, eavesdropping without warrants had been ordered by the President many months earlier.

http://glenngreenwald.blogspot.com/2006_01_01_glenngreenwald_archive.html

Limiting Endless Death Penalty Delays
By Jon Kyl

Last week the Senate Judiciary Committee held a hearing on a bill I introduced to reduce the backlog of federal court appeals in major criminal cases and help bring closure to the victims of violent crime. Entitled the Streamlined Procedures Act, it is an update of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which was passed in the wake of the Oklahoma City bombing.

The AEDPA was designed to limit endless death penalty appeals in state convictions, imposing a limit for all appeals relating to the right to writ of habeas corpus in capital cases, and reducing the length of the appeals process by limiting the role of federal courts. (Habeas corpus is the legal procedure by which persons accused of crimes seek to be released from custody - it is frequently used by death row inmates.) When the AEDPA was enacted, then-President Clinton remarked that “it should not take eight or nine years and three trips to the Supreme Court to finalize whether a person in fact was properly convicted or not.”

Ten years later, unfortunately, things have gotten worse, not better. The backlog of “habeas” claims has actually increased, and so has the workload of prosecutors, which is why Kent Cattani, chief counsel for the capitol litigation section of the Arizona Attorney General’s office, appeared before the committee to testify in strong support of my bill.

http://kyl.senate.gov/record.cfm?id=240769

Thirty-two states have already made provisions for victims' rights, either through state legislation or amendments to their state constitutions. But supporters insist a national amendment is still necessary. "It hasn't produced the kind of transformation that is needed," says professor Paul Cassells of the University of Utah, a leading legal voice for a Victims' Rights Amendment. "When you are trying to change the process on a day-to-day level down on Main Street, you need a very potent weapon and the Victims' Rights Amendment is it." Cassells has also crusaded against Miranda rights for years, and will soon argue for their abolition before the Supreme Court.

But uniting against this measure is a bevy of lawyers who might ordinarily scowl at each other from opposite sides of the courtroom, including criminal defense attorneys, a prosecutor in the Oklahoma bombing case, the American Civil Liberties Union, a Reagan administration lawyer, battered women, 450 law professors, and the Chief Justice of the Supreme Court.

These detractors urge that enshrining victims' rights in the Constitution will damage the justice system, bend constitutional rights in an unhealthy way, and do little to help victims. It arrives at the public doorstep, they say, only because politicians are afraid to appear heartless toward victims. Many also say they are troubled by practical problems the amendment raises, beginning with the basic and seemingly obvious questions: Who is the victim? And is the person arrested really guilty?

http://www.vote.com/magazine/editorials/editorial1709598.phtml

Just this short search found limits on Mirarnda rights, habeas corpus (again) and privacy. They are all connected by either Steve Twist or Sen. Kyl. It could be Feinstein is getting played, not sure yet. But it is obvious the only way to defeat, or at least limit, the Bill of Rights is to have an opposing, better, Victim's Bill of Rights to keep traditional rights in check. A Victim's Bill of Rights is fine, but as we found in California, that was not the real goal. Victim's got used and are still getting used.

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4. S. 1088, The Streamlined Procedures Act of 2005

As Amended by Chairman Specter

August 1, 2005

Legislation: The Senate Judiciary Committee is expected to continue its mark-up of S. 1088, The Streamlined Procedures Act of 2005, when Congress returns from summer recess in September. The bill, introduced by Senator Kyl (R-AZ) and amended by the committee, attempts to streamline the law and habeas corpus procedures so that those convicted of murder will not be able to (unreasonably) delay their executions. The U.S. Conference of Catholic Bishops is very concerned because the proposed bill would dramatically diminish the federal courts’ ability to consider habeas corpus petitions in death penalty cases, even in cases of actual innocence.

What the Streamlined Procedures Act Will Do: the bill would severely limit the circumstances under which a death row inmate can obtain federal habeas corpus review of his or her conviction or sentence. For example, the federal court review of meritorious claims would be allowed only if such claims were not adequately presented to the state courts and only if they can show their innocence by clear and convincing evidence standards. This is an unrealistic standard since evidence of innocence often emerges only after years of litigation. Moreover, the new bill significantly limits access to DNA testing. Under theses proposed limits, many individuals would have been denied access to the very DNA testing that established their innocence in recent appeals.

http://72.14.253.104/search?q=cache:WHrm0tUb0fYJ:www.voiceofthepoor.org/USCCB%25208-3-05%2520Sept%2520Habeas%2520Alert.doc

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5. The Federalist Society weighs in...

The commission’s report is addressed to reforms to be made at the state level. Indeed,
much of the report is simply cheerleading for reforms that have already been made.
The question arises, as a matter of federalism, what changes the Congress should make in state
criminal law and procedure, and whether it has the constitutional authority to make them.
Certainly any attempt by Congress to dictate the eligibility criteria for state capital punishment
laws would raise serious constitutional doubts.

This suggests an incentive arrangement for states to enact whatever reforms Congress
decides are necessary to further improve the accuracy of the guilt determination. Consistent with
the new focus on actual innocence, I suggest that the incentive be reduced litigation on issues
which have nothing whatever to do with that accuracy. In 1995, Senator Kyl proposed a limit on
Federal habeas review along the lines of that in effect in the District of Columbia. The Senate
decided not to adopt that limit for habeas generally, but a similar limit on claims affecting solely
the penalty phase and not the guilt determination should be considered. In states which adopt the
guilt-phase reforms that Congress decides are necessary and which provide a full and fair review
of claims affecting only the penalty phase, the latter issues would not be second-guessed on
federal habeas. Given our experience with federal court obstruction of the incentive arrangement
in the Antiterrorism and Effective Death Penalty Act of 1996,

I also suggest that the authority to decide whether a state qualifies for the incentive be vested in the United States Attorney General, and not in the courts.


http://72.14.253.104/search?q=cache:O_Dbydz4GecJ:www.cjlf.org/pdf/KSSTestimony.pdf

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6. Center for Human Rights and Constitutional Law

In 1948, Congress codified the habeas jurisdictional provisions at 28 U.S.C. §§ 2241(c)(3) and 2254(a), providing federal courts jurisdiction to entertain petitions on behalf of state prisoners "in custody in violation of the Constitution." The 1996 amendments did not modify Sections 2241(c)(3) or 2254(a). Today, as in 1867, a district court "shall entertain" an application and "forthwith" award the writ if the applicant shows that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §§ 2241(c)(3), 2243, 2254(a) (1996). These jurisdictional provisions were unchanged by the Antiterrorism and Effective Death Penalty Act.

In 1966, Congress adopted the original Section 2254(d), which required federal courts to give certain kinds of deference to state determinations of fact. <6> If there had been a "full and fair" state fact-finding to which deference was owed, see 28 U.S.C. § 2254(d)(2) (1966), the federal judge "presumed to be correct" unless "the applicant [] establish by convincing evidence that was erroneous." Id. The 1966 version of Section 2254(d) thus required federal courts to give two kinds of deference to state court decisions of fact. First, was an important kind of procedural deference. The federal court was bound to (1) treat the state court determination as the focal point of its review, and (2) review the state determination to see if it was "correct" or "erroneous," and treat it as dispositive if correct. Second, was substantive deference. Section 2254(d) told federal courts to "presume[]" state fact determinations "to be correct" unless the petitioner could "establish by convincing evidence." Id. The 1966 version of Section 2254(d), however, required neither kind of deference to state legal determinations. See H.R. 1384, 88th Cong. 2d Sess. 23-24 (1964).

Congress addressed habeas corpus again in 1995 and 1996. Only the Senate conducted extended floor debate. But, before the new Section 2254(d) was proposed, the Senate defeated a proposal by Senator Kyl to repeal altogether the basic habeas jurisdiction in Sections 2241(c)(3) and 2254(a). <7> Senator Hatch, Chairman of the Senate Judiciary Committee, voted against the Kyl proposal, expressing the majority's sense that it was "not [] advocat abolition of Federal habeas corpus." 141 Cong. Rec. S7826, S7836 (June 7, 1995). Accordingly, Senator Hatch wrote the proposal that became new Section 2254(d), to "correct" flaws in the system "while still preserving and protecting the constitutional rights of those who are accused." Id., at S7479 (May 25, 1995).

Please, wake up everyone and read this http://www.refuseandresist.org/mumia/2000/060700amicus.html">AMICUS CURIAE BRIEF IN SUPPORT OF PETITION FOR WRIT OF Habeas Corpus.

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7. CRIME, TERROR, & WAR: NOVEMBER 1998

CRIME, TERROR, & WAR:
NATIONAL SECURITY &
PUBLIC SAFETY IN THE
INFORMATION AGE

SENATOR JON KYL, CHAIRMAN

For guardians of the nation’s security, and defenders of the Constitution, I believe there is an important dividing line that we need to ponder: Where does national security leave off, and domestic security begin? What are the threats to our safety and security, and how can would-be aggressors be deterred? How can we defend against new adversaries who would exploit the weapons of the information age? What is the right national security strategy to protect America today? And what are the policies, plans, and programs needed to carry out that strategy? These questions are affecting the responsibilities we assign defense agencies, the intelligence community, and law enforcement agencies, and the relationships among them.

In hearings on U.S. counter-terrorism strategy, national preparedness to deal with potential acts of terrorism, and the protection of the nation’s critical information infrastructure, the Subcommittee on Technology, Terrorism, and Government Information has explored these issues in the 105th Congress, in an effort to help develop insights and broaden understanding for meeting the national security and public safety needs of the 21st century. This is a report of our findings.

http://www.jya.com/ctw.htm

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9. A direct rebuttal

Listen to the highlights of Professor Cassell's résumé: He graduated from Stanford Law School, where he was president of the Stanford Law Review and a member of the Order of the Coif--the highest honors you can have in law school. He served as a law clerk to then-Judge Antonin Scalia on the U.S. Court of Appeals for the D.C. Circuit, and to Chief Justice Warren E. Burger of the U.S. Supreme Court. He then went to the Justice Department, where he served as an Associate Deputy Attorney General, handling a variety of complex legal issues--including the efforts to defend the constitutionality of the United States Sentencing Guidelines, passed by Congress to regulate unwarranted sentencing disparity. Next, he worked as an assistant U.S. attorney in the Eastern District of Virginia. In that position, Cassell tried more than a dozen jury trials in felony criminal cases, obtaining guilty verdicts in every case that reached the jury.

I would like to highlight a couple of cases he tried there. Cassell successfully prosecuted the CEO of a failed savings and loan for theft of $500,000; two investors and a real estate agent who had defrauded a HUD program; a drug dealer who was smuggling guns and a federally licensed firearms dealer who had aided him in this effort; and the notorious ``yellow glove'' bank robber, who had perpetrated a string of armed robberies in Virginia and Maryland. He also successfully prosecuted the largest seizure of crack cocaine in the history of National Airport at that time. For his efforts in cases such as these, Cassell was recognized by the Attorney General with a Special Achievement Award.

http://thomas.loc.gov/cgi-bin/query/C?r107:./temp/~r107X76ph5

They will throw any CEOs to the wolves if they are stupid enough to get caught.

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8. Terrific habeas debate over at Debate Club this week (August 1, 2005)

This week over at Legal Affairs' Debate Club, the question is "How Important is Habeas?" The Debate Club is always interesting, and I especially enjoyed my own debate last year with Professor Stephanos Bibas on the question "Can the Court clean up its Blakely mess?" and the debate a few months ago between Professors Richard Bierschbach and Michael O'Hear addressing "Will An Apology Save you From Jail?" The habeas debate should be fascinating, in part because the participants are Ted Frank, Resident Fellow and Director of the American Enterprise Institute Liability Project, and David Bruck, Clinical Professor of Law and Director of the Virginia Capital Case Clearinghouse at Washington and Lee University.

This week's important and timely debate topic is set up at Legal Affairs with this introduction:

Habeas corpus, through which a prisoner can challenge the authority of a prison to hold him, has long been considered a crucial tool for prisoners trying to have their sentences overturned. But since the 1996 Antiterrorism and Effective Death Penalty Act — a series of laws designed to "deter terrorism" and "provide for an effective death penalty" passed in response to the Oklahoma City bombing — attempts to limit habeas have become more and more common as, according to Arizona Senator Jon Kyl, habeas petitions have continued to increase.

Next month, the Senate will consider a bill designed to limit what Kyl calls "endless death penalty appeals" under habeas provisions. Critics argue that the new bill would gut constitutional protection for criminals and sanction the execution of the falsely convicted.

Should Congress limit habeas appeals?

Ted Frank has kick the debate off in provocative ways, though his remarks focus on death penalty litigation even though the status and future of habeas concerns a lot more than just capital cases.

http://sentencing.typepad.com/sentencing_law_and_policy/sentences_reconsidered/index.html

See, some of you may think I'm obsessively crazy, but this "limit habeas corpus in the name of terrorism" is not new. Is it any wonder BushCo thought he could get away with it? We more or less approved of it right here in the States and BushCo must be flabbergasted that we could care more about "terrorists" from abroad.

There probably were a lot of frivolous and vengeful habeas suits, but why? And there are a lot habeas suits brought by some inmates who are not guilty or who have legitimate grievances such as guard brutality.