Tag: law

Aug 07

Mainly Maine: Too Clever By Half

Cross posted from The Stars Hollow Gazette

The cocksure Tea Party governor of Maine, Paul Lepage, decided he would play games with what he thought were his veto powers under Maine’s constitution by using a pocket veto of 65 bills.

On Thursday, LePage delivered vetoes of 65 of those bills (the rest he returned unsigned) and urged the Legislature to consider his vetoes. Both House Speaker Mark Eves, D-North Berwick, and Senate President Michael Thibodeau, R-Winterport, said they would not let the vetoes hit the floors of their respective chambers.

LePage argued that because lawmakers left Augusta on June 30, he had been prevented from returning the vetoes before the 10 days had expired. The Maine Constitution states that if a Legislature adjourns, the governor may hold bills until three days after they return.

The House and Senate passed a temporary adjournment order on June 30 to give LePage time to act on the bills. Top lawmakers and Attorney General Janet Mills, a Democrat elected by the Legislature, said that temporary recess was not adjournment, and thus did not give LePage more time to act.

Gov. LePage’s problem was that he was using his interpretation of the constitution, not what it really said. So off to the Maine Supreme Court he went. Briefs from both sides were submitted and oral arguments were heard last Friday

Today that court disagreed with the governor and those 65 bills are now law:

Gov. Paul LePage erred in his end-of-session veto gambit, and in so doing lost the ability to veto 65 bills that he opposed.

In an advisory opinion released by the Maine Supreme Judicial Court on Thursday (pdf), the justices said that the bills in question became law without the governor’s signature, and that the Legislature should not be required to consider his attempted vetoes. [..]

In making its decision, the court relied in part on decades of precedent in which Maine governors had returned vetoes to the Legislature while it was in recess.

“History demonstrates that Maine governors, for nearly forty years, have routinely returned bills with their vetoes during temporary absences of the Legislature that came at the end of the session – after an “adjournment” but before the Legislature adjourned sine die,” the court wrote.

“These examples demonstrate that temporary adjournments of the Legislature near the end of a legislative session-whether until a date certain or until the call of the leadership, and whether beyond a ten-day period-have not prevented governors from returning bills with their objections to their Houses of origin within the constitutionally-required ten-day timeframe.”

LePage on Thursday thanked the court for its ruling.

Indeed, too clever by half.

Aug 05

Mainly Maine

Cross posted from The Stars Hollow Gazette

When you think of the state of Maine, you usually think of woods, camping, vacations, rocky beaches, sailing and, maybe, the Bush crime family or where Tom Clancy hid a stolen Russian submarine in his novel, “Hunt for the Red October.” You don’t think of it as one of the crazy states like Kansas, Texas or Oklahoma but since Republican Governor Paul LePage was reelected in November, Maine is now up there at the top of the crazy list.

The Tea Party Republican governor has been in a veto war with the state’s two house legislature over taxes, spending, health care, the state budget just to name a few. The Republicans, who are mostly moderates, hold the majority in the Senate and the House majority is Democratic. They work fairly well together and have been successful in overriding the governor’s vetoes that would have crippled the state. The dispute came to a head in July when the Gov. LePage tried to use a the parliamentary procedure known as the pocket veto on 19 bills. But the clerk of the Maine House says that the vetoes were not valid under the state’s constitution. Talking Points Memo has been following this wish relish

By not signing the bills and “pocketing” them, LePage could under some circumstances have effectively vetoed them. In theory, that would have allowed the proposals to die without legislators having a chance to override his veto. But the pocket veto only works if the legislature has adjourned after the end of the second regular session. And there is the rub.

The clerk of the Maine House told TPM Wednesday morning that the legislature, which is nearing the end of the first regular session, has not adjourned. By not vetoing the bills within the required 10-day period, LePage allowed the bills he opposed — some ferociously — to become law.

But LePage’s office is now claiming the legislature did adjourn. [..]

Here’s what Article IV, Section 2 of the Maine Constitution says on the subject:

   If the bill or resolution shall not be returned by the Governor within 10 days (Sundays excepted) after it shall have been presented to the Governor, it shall have the same force and effect as if the Governor had signed it unless the Legislature by their adjournment prevent its return, in which case it shall have such force and effect, unless returned within 3 days after the next meeting of the same Legislature which enacted the bill or resolution; if there is no such next meeting of the Legislature which enacted the bill or resolution, the bill or resolution shall not be a law.

Both Hunt and Suzanne Gresser, the reviser of statutes, are acting as if the usual 10-day period for the governor to veto the bills has passed and are now on their way to becoming law.

Things went downhill from there. The governor then threw a temper tantrum, refused to concede to the bipartisan interpretation of the constitution and put a hold on another 51 bills

LePage’s office is saying that he will sit on another 51 bills passed by the state legislature. Those are in addition to the 19 bills he previously failed to act on. He plans to send them all back to the legislature with a veto when lawmakers return to Augusta July 16, the Bangor Daily News reported.

Democratic lawmakers and the clerk of the state House contend — and history and custom tend to support their view — that LePage missed the 10-day deadline he had to veto those 19 bills. Under Maine’s constitution, the bills automatically become law if the governor doesn’t act within that 10-day window.

LePage contends that the legislature adjourned June 30, which triggers another section of the state constitution that gives him additional time to act. But lawmakers claim they never took the kind of “adjournment” required by the constitution to allow LePage to wait to act on the bills, and they become law when he didn’t return them in the 10-day period.

Needless to say the Democrats and the Republicans refused to accept his vetoes, stating the governor had missed the 10 day deadline. Gov. LePage then took the disagreement to the Maine Supreme Court asking them to decide if he botched the vetoes. To add insult to injury, the Democratic House and Republican Senate leadership refused House Minority Leader Ken Fredette’s request to use public money to underwrite the associated legal costs.

The court fast-tracked the request, briefs were filed last Friday and oral arguments began today

The discussion revolved around thorny, complex issues of procedural mechanics and constitutional balance of power between the executive and legislative branches. Over the course of about 45 minutes, LePage’s counsel Cynthia Montgomery and the attorney representing Maine’s House and Senate each had 15 minutes each for their opposing arguments, with Montgomery given the opportunity for rebuttal at the end. Additionally, an attorney representing a few House Republicans as well as counsel for the attorney general each had a few minutes to make their cases, with the former favoring LePage’s view and the latter challenging it.

The justices were clearly seeking to streamline the arguments being presented in front of them, perhaps knowing both the short-term impact of their decision on dozens of pieces of legislation, as well as the long-term precedent they could set in navigating what has become a constitutional crisis. Their questions touched on both broad understanding of the executive branch’s veto powers and LePage’s specific motivations in waiting to submit his vetoes. They were mostly patient to weed through the convoluted specifics of the case, but at times were willing to call out what appeared to be suspicious reasoning.

To make matters worse for Gov. LePage, he being now sued for abuse of power. Steve Brennan, at MSNBC’s Maddowblog, reported this yesterday:

Maine Gov. Paul LePage (R) is caught up in a doozy of a controversy. As regular readers know, a Maine charter school recently hired state House Speaker Mark Eves (D), but LePage, a fierce opponent of Democratic legislators, threatened the school – either fire Eves or the governor would cut off the school’s state funding. In effect, LePage played the role of a mobster saying, “It’s a nice school you have there; it’d be a shame if something happened to it.”

The school, left with no options, reluctantly acquiesced. The problem, of course, is that governors are not supposed to use state resources to punish people they don’t like. By most measures, it’s an impeachable offense.

As of today, as the Portland Press Herald [reported http://www.pressherald.com/201… it’s also the basis for a civil suit.

   Democratic House Speaker Mark Eves will file a civil lawsuit Thursday against Gov. Paul LePage, alleging that the governor used taxpayer money and the power of his office to prevent his hiring at a private school in Fairfield.

   The lawsuit, to be filed in U.S. District Court in Portland, has been anticipated ever since the board of directors at Good Will-Hinckley voted to rescind its offer to pay Eves $150,000 a year to become the organization’s next president. Eves said that the board told him before his contract was terminated that LePage threatened to eliminate $530,000 in annual state funding for the school unless it removed him from the job.

“Acting out of personal rage, vindictiveness and partisan malice, Gov. Paul LePage blackmailed a private school that serves at-risk children into firing its president, the Speaker of Maine’s House of Representatives,” the complaint reads.

The governor hasn’t denied the allegations and is now facing possible impeachment

Even Politico has called LePage “America’s Craziest Governor” and questioned if he is “playing with a full deck.”

Maine may be be this Summer’s best entertainment. Get the popcorn.

Jul 29

Is Congressional Push to Reduce Mandatory Prison Sentences Enough?

Cross posted from The Stars Hollow Gazette

Recently President Barack Obama commuted the sentences of 46 non-violent drug offenders which was the largest clemency granted since 1960. This was a drop in the bucket considering nearly half of the 207,000 men and women in the federal prison system are serving sentences for drug crimes. Mandatory minimum sentencing arouse in the 70’s and 80’s during the height of the drug epidemic in this country that saw a dramatic increase in crime.

Congress is now considering two bipartisan bills to scale back mandatory sentences.

As senators work to meld several proposals into one bill, one important change would be to expand the so-called safety-valve provisions that give judges discretion to sentence low-level drug offenders to less time in prison than the required mandatory minimum term if they meet certain requirements.

Another would allow lower-risk prisoners to participate in recidivism programs to earn up to a 25 percent reduction of their sentence. Lawmakers would also like to create more alternatives for low-level drug offenders.

While theses bills are commendable they fall far short of addressing the whole problem, John Oliver, host of HBO’s “Last Week Tonight,” points out in this week’s segment:

“Ridiculously long sentences are not a great deterrent to crime,” Oliver said. “Prison sentences are a lot like penises: If they’re used correctly, even a short one can do the trick – is a rumor I have heard.” [..]

There should be a lot more pardons and commutations. But if we really want to address this problem permanently, we need states and the federal government, not just to repeal mandatory minimums going forward, but to also pass laws so that existing prisoners can apply for retroactively reduced sentences.

Because almost everyone has agreed that mandatory minimum laws were a mistake. And we cannot have a system where people are continuing to pay for that mistake  – and where perhaps their best chance of getting out of a prison that they should no longer be in is somehow finding a turkey costume and hanging around the fucking White House at Thanksgiving.

VOX‘s German Lopes has an excellent background article as a follow-up to John Oliver’s segment.  

Jul 27

Another Shooting By Another White Extremist

Cross posted from The Stars Hollow Gazette

Last night a 59 year old white man with a criminal record and history of mental illness entered a movie theater in Lafayette, Louisiana, killed two people wounded nine others before turning the gun on himself.

In the search for a motive, what police are now being found out about this man are quite disturbing. It put into question gun control and the lack of focus by law enforcement on America’s white supremacists.

Houser has allegedly posted messages to numerous online forums, suggesting that he held extreme right-wing views and sympathized with white supremacists. It cannot be independently confirmed that these online postings were made by Houser himself before the shooting. The postings on politicalforums.com seem to match based on his age and location. There is less to connect Houser to the postings on Twitter and Golden Dawn that are cited below by the Southern Poverty Law Center.

An individual who went by “John Russell Houser” created a profile on politicalforums.com, on which he included the phrases “believe media/gov’t censoring” and “believe US will be MAD MAX < 5 years.” Under the “Family” category, Houser wrote that “no family safe in US environment.” The profile identified the user as a 59-year-old male residing in Phenix City. [..]

An individual who used the username “Rusty Houser” also posted comments on a forum for Golden Dawn, a neo-Nazi political party in Greece, as the Southern Poverty Law Center noted.

“Do not mistake yourselves for one minute, the enemy sees all posted on this website. I do not want to discourage the last hope for the best, but you must realize the power of the lone wolf, is the power that can come forth in ALL situations.Look within yourselves,” he wrote in one comment.

He also made racist comments in comments on the Golden Dawn forum. [..]

An individual who went by the name Rusty Houser posted on usmessageboard.com that, “Hitler accomplished far more than any other,” according to the Southern Poverty Law Center.

And a Twitter handle for “john russell houser” published messages about the Westboro Baptist Church and censorship. [..]

Houser also served as the guest host on the “Rise and Shine” show on the Columbus, Ga. television station WLTZ, where he “invited political controversy on every one of them, and loved every minute of it,” according to LinkedIn. A former host for the station confirmed to the Associated Press that Houser appeared on his show, where he allegedly advocated for people to commit violence against those involved in abortion.

Houser has a criminal record — he was arrested for arson and selling alcohol to minors, but he had not had any run-ins with law enforcement in the past few years, according to police.

CNN reported that Houser was denied a conceal carry permit in 2006 and was treated for mental health issues in 2008 and 2009. The suspect’s wife sought a restraining order against Houser in 2008 because he “exhibited extreme erratic behavior and has made ominous as well as disturbing statements,” according to the Associated Press.

So, how and where did he get a gun? Why wasn’t this man targeted by law enforcement as a possible threat? Was it because he wasn’t Muslim?

The news that keep getting ignored by the media, law enforcement and our elected officials is that people are more likely to be killed or injured  by angry white man than they are by a Muslim jihadist.

In the 14 years since Al Qaeda carried out attacks on New York and the Pentagon, extremists have regularly executed smaller lethal assaults in the United States, explaining their motives in online manifestoes or social media rants.

But the breakdown of extremist ideologies behind those attacks may come as a surprise. Since Sept. 11, 2001, nearly twice as many people have been killed by white supremacists, antigovernment fanatics and other non-Muslim extremists than by radical Muslims: 48 have been killed by extremists who are not Muslim, including the recent mass killing in Charleston, S.C., compared with 26 by self-proclaimed jihadists, according to a count by New America, a Washington research center.

The slaying of nine African-Americans in a Charleston church last week, with an avowed white supremacist charged with their murders, was a particularly savage case.

But it is only the latest in a string of lethal attacks by people espousing racial hatred, hostility to government and theories such as those of the “sovereign citizen” movement, which denies the legitimacy of most statutory law. The assaults have taken the lives of police officers, members of racial or religious minorities and random civilians.

It’s time this is put in their proper perspectives and start keeping America safe from its homegrown terrorists.

Jul 24

The Slaughter of Nine African Americans an Act of Terrorism

Cross Posted from The Stars Hollow Gazette

Attorney General Loretta Lynch announced a 33 count indictment against Dylann Roof on federal hate-crime charges for the June 17 killing of nine African American worshipers in Charleston, South Carolina This leaves a bigger question that was asked by Jenna McLaughlin at “The Intercept,” why wasn’t Roof charged with terrorism?

Some media outlets, lawyers, public figures and activists have called for Roof to be charged not just with a hate crime, an illegal act “motivated in whole or in part by an offender’s bias,” but with the separate label of domestic terrorism. Critics contend that the label of terrorism is too often only applied to Islamic extremists, and not white supremacists or anti-government anarchists. Many were outraged after FBI Director James Comey balked at the term during a June 20 press conference, telling reporters he didn’t see the murders “as a political act,” a requirement he designated as necessary for terrorism.

Roof’s crime certainly seems to fit the federal description of domestic terrorism, which the FBI defines as “activities … [that] involve acts dangerous to human life that violate federal or state law … appear intended to (i) intimidate or coerce a civilian population, (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping.” [..]

It turns out there was one major obstacle in charging Roof with domestic terrorism: The crime does not exist. [..]

Even when the USA Patriot Act, post 9/11, redefined terrorism to include domestic crimes, the provision simply allowed the government to investigate more broadly what it called “terrorism.” Actually charging someone with domestic terrorism remains a separate matter. Even criminals who use bombs or send money to ISIS – or Boston Marathon bomber Dzhokhar Tsarnaev – are not charged with the crime of terrorism. [..]

But shootings, regardless of motivation, intention or number of deaths, likely don’t count. “It doesn’t seem like a shooting would fit,” says Faiza Patel, co-director of the Brennan Center’s Liberty and National Security Program. “Or else a lot of crime would get caught up” in the terrorism net, she tells me.

There are, however, “aggravating factors” to be considered during sentencing, which prosecutors usually list on a formal indictment, and which can be used to determine whether the death penalty is justified, and those include “substantial planning and premeditation,” to”cause the death of a person” or “commit an act of terrorism.”

In Roof’s case, the DOJ did not mention terrorism as an aggravating factor, but did reference (pdf) “substantial planning and premeditation to cause the death of a person” for several of his charges.[..]

Lynch did not explain why “terrorism” was not listed as an aggravating factor in Roof’s indictment, though she did emphasize that the DOJ views hate crimes as “the original domestic terrorism.” She noted that Roof’s case, including his “discriminatory views towards African Americans” and his decision to target “parishioners at worship,” made his crime a clear-cut case of a federal hate crime. [..]

Lynch was asked whether or not there should be a federal domestic terrorism penalty to help bridge the gap between crimes like the shooting of five military personnel in Chatanooga, Tennessee – which was immediately branded as terrorism, by law enforcement and media alike – and Roof’s case, which was not. Lynch acknowledged the argument that leaving out the word terrorism may cause people to feel like the government “doesn’t consider those crimes as serious.”

Ms. McLaughlin is incorrect in her statement that “domestic terrorism” does not exist in the law. This FBI’s definition of 18 U.S.C. § 2331 which defines “international terrorism” and “domestic terrorism” for purposes of Chapter 113B of the Code, entitled “Terrorism”:

“International terrorism” means activities with the following three characteristics:

   Involve violent acts or acts dangerous to human life that violate federal or state law;

   Appear to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and

   Occur primarily outside the territorial jurisdiction of the U.S., or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum.*

“Domestic terrorism” means activities with the following three characteristics:

   Involve acts dangerous to human life that violate federal or state law;

   Appear intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination. or kidnapping; and

   Occur primarily within the territorial jurisdiction of the U.S.

18 U.S.C. § 2332b defines the term “federal crime of terrorism” as an offense that:

   Is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct; and

   Is a violation of one of several listed statutes, including § 930(c) (relating to killing or attempted killing during an attack on a federal facility with a dangerous weapon); and § 1114 (relating to killing or attempted killing of officers and employees of the U.S.)

Emphasis mine

And just as a note, to those in this piece who don’t think that guns are not “dangerous weapons,” well, they are

By his own statement and the fact that Rev. Clementa Pinckney was an elected state official, Dylann Roof’s acts, under this definition, is clearly an act of terrorism.

The argument against the charge of terrorism by a young white man who was clearly influenced by the politics of racial hatred is specious. It is clearly indicative of the Obama administration and its Justice Department think that black lives do not matter as much as instilling the fear in US citizens of attacks by those who have been influenced by Islamic extremism. Racism is political and it is an extremist view and it is endemic in this country. it is long past time that the law is brought down to bear on the greater threat that racism is to Americans and our democracy.  

Jul 23

The Ugly Truth About the US Criminal Justice System

Cross posted from The Stars Hollow Gazette

With the latest incident in Waller County, Texas that ended in the suspicious death of Chicago civil rights activist Sandra Bland three days after she was arrested for a minor traffic infraction, the discussion of racism and brutality by officers in police departments across the United States has again been raised. The account of Ms. Bland’s arrest and death are being questioned by the family, civil rights groups and the media.

Footage has emerged of police allegedly slamming the head of a woman to the ground as she was arrested just days before she committed suicide in jail.

Sandra Bland, a Chicago civil rights activist, was found dead in her cell at Waller County Jail in Texas.

She had been booked three days earlier on grounds of assaulting a public servant after the fraught arrest by the side of a highway, during which she angrily accused officers of harming her.

An autopsy performed a day later classified her death as suicide by hanging – though friends and family have said there is no way Bland would have killed herself.

Bland was part of the ‪#‎BlackLiveMatter movement and posted videos about civil rights and racism on social media.

In an effort to quell the public outcries for more thorough investigation, Texas authorities released the police car dash-cam video. However, this raised even more questions since the video not only contradicts arresting officer Brian Encina’s written account of the traffic stop and the events that led up to Ms. Bland’s arrest, the video also appears to have been edited which the Texas Department of Public Safety is denying.

In the video, which is more than 52 minutes long, there are several spots in which cars and people disappear and reappear. When it released the video, the Public Safety Department did not mention any editing. The audio ends more than a minute before the video images do.

One of the more conspicuous anomalies comes 25 minutes and five seconds into the video, when a man walks from a truck off screen and then reappears suddenly at the spot where he began walking. The image flutters for a moment before resuming.

There are no breaks in the audio during this time. People are heard talking through the video gaps.

In another spot at 32 minutes and 37 seconds, a white car appears on the right side of the screen and then disappears. A moment later, what appears to be the same car comes back into the frame and turns left. During this time, Encinia is talking about what occurred during the arrest. There are no breaks in his speech.

What look like the same cars keep appearing in the same locations, following their same paths, beginning at 33 minutes and 4 seconds.

Again, the audio continues uninterrupted.

The glitches in the video sparked a wave of skepticism and questions in social media, with many critics arguing that the evidence had been edited.

Ed. Note: The original video in the article was disabled by the user, presumably the Texas Department of Public Safety, who said that a new video would be posted later. This a full, unedited copy of the one that was originally posted.

One of those critics is “Selma” director Ava DuVernay who said in a tweet

Racism and brutality are ingrained and systemic in many police departments. Worst of all it is condoned and covered-up by those who are charged with oversight of these departments. The host of MSNBC’s “All In” Chris Hayes discussed the problems encountered by former Chicago Independent Police Review Authority Investigator Lorenzo Davis, who was fired from his job for refusing orders to reverse his findings of unjustified shootings by Chicago police officers.

After being confronted on stage at NetRoots Nation in Phoenix, Arizona by “BlackLivesMatters protestors, Democratic presidential candidate Senator Bernie Sanders (I-VT) called for major police reforms after he watched the dash-cam video. While much racism is rooted in economic issues, it is also systemic in our society and the heritage of white supremacy. The battle for equality for blacks and other oppressed minorities is far from over in this country. “BlackLivesMatter. Let’s start making it matter to the criminal justice system and hold these officers of the law accountable for the laws they break.

Jun 30

SCOTUS Puts Hold on Closing Texas Abortion Clinics

In a late announcement Monday afternoon, the Supreme Court stayed a decision by the United States Court of Appeals for the Fifth Circuit, which imposed limits on a woman’s right to choose. In a 5 -4 decision, the court allows Texas abortion clinics to remain open.

The Supreme Court issued a brief, two paragraph order (pdf) on Monday permitting Texas abortion clinics that are endangered by state law requiring them to comply with onerous regulations or else shut down to remain open. The order stays a decision by the United States Court of Appeals for the Fifth Circuit, which imposed broad limits on the women’s right to choose an abortion within that circuit.

The Court’s order is temporary and offers no direct insight into how the Court will decide this case on the merits. It provides that the clinics’ application for a stay of the Fifth Circuit’s decision is granted “pending the timely filing and disposition of a petition” asking the Court to review the case on the merits. The Court adds that, should this petition be denied, the stay will automatically terminate. Otherwise, the stay “shall terminate upon the issuance of the judgment of this Court.”

Justce Anthony Kennedy joined the liberal judges to grant the clinics a reprieve. The court has yet to decide if they will hear arguments in the case in the fall.

Jun 29

Scotus: The Final Three New Rules

Today is the last day of this years Supreme Court session. After yesterday’s momentous ruling in favor of marriage equality for all (yes, gays should have the same right to be miserably married as heterosexuals), the court handed down rulings in three cases, two which have even a wider impact than the Affordable Care Act ruling.

In another five – four ruling Justice Anthony Kennedy sided with the conservatives approving Oklahoma’s use of the controversial sedative midazolam in Oklahoma’s execution protocols which opened the door for the state to carry out the first executions since January.

The ruling ends a hold on most executions outside Texas and Missouri. Several states had delayed executions while they awaited the ruling in Glossip v Gross, in which the court was asked to decide whether Oklahoma’s use of midazolam fell within the boundaries of the US constitution.

Though the ruling fell into the familiar 5 to 4 conservative to liberal split within the supreme court, it marked the first time in seven years that the nation’s highest judicial panel considered directly the constitutional basis of modern executions by lethal injection. It also gave the progressive-leaning justices an opportunity to vent their opinions on the ultimate punishment, with Stephen Breyer backed by Ruth Bader Ginsburg, using a dissenting opinion to openly denounce the death penalty as a violation of the eighth amendment ban on cruel and unusual punishment.

In the case against the Environmental Protection Agency, the court struck down the agency’s efforts to set limits on the amount of mercury, arsenic and other toxins coal-fired power plants can spew into the air, lakes and rivers.

The 5-4 decision was a major setback to the Environmental Protection Agency (EPA), and could leave the agency more vulnerable to legal challenges from industry and Republican-led states to its new carbon pollution rules.

It was also a blow to years of local efforts to clean up dangerous air pollution.

The supreme court has now sent the case back to the Washington DC circuit court of appeals, which will then ask the EPA to reconsider its rule-making. Activists are now urging the EPA to act definitively and quickly to issue revised regulation.

In its final ruling, the curt upheld Arizona’s independent redistricting that was passed in a 2000 ballot referendum, striking a blow to gerrymandering.

The court’s decision affirms the constitutionality of an Arizona state ballot measure approved by voters in 2000 that allowed an independent commissioner to determine congressional districts in the state.

State legislatures determine congressional district boundaries after each census, as dictated by the constitution, but the Arizona measure sought to undo this model, which is widely understood as a tool for partisan lawmakers to divvy up districts to favor the political party in power – also known as gerrymandering.

The supreme court ruled 5-4 that the elections clause of the US constitution does not disallow such commissions from being created.

Jun 26

SCOTUS : New Rules

It’s been a busy court calendar for the Supremes this year. They had to add extra days for the release of their rulings. One of the biggies came today when the court rejected the lawsuit that would have ended the health care subsidies of the Affordable Care Act.

The stakes of the case, King v. Burwell, were enormous. Had the plaintiffs prevailed, millions of people who depend upon the Affordable Care Act for insurance would have lost financial assistance from the federal government. Without that money, most of them would have had to give up coverage altogether. And the loss of so many customers would have forced insurers to raise premiums, seriously disrupting state insurance markets.

But two of the court’s conservatives, Chief Justice John Roberts and Justice Anthony Kennedy, joined the court’s four liberals in rejecting the lawsuit in a 6-3 decision. Roberts delivered the opinion (pdf) for the majority. And the decision was a concise, stinging rebuke of the plaintiffs, who contended that Congress intended to write a law that would leave so many people without coverage, and cause such disarray.

“Congress passed the Affordable Care Act to improve health insurance markets, not destroy them,” Roberts wrote.

In the other ruling released today, in a 5 – 4 decision the justices backed a broad interpretation of the 1968 Fair Housing Act a crucial tool in the fight against housing discrimination.

The question in the case was whether plaintiffs suing under the housing law must prove intentional discrimination or merely that the challenged practice had produced a “disparate impact.” Drawing on decisions concerning other kinds of discrimination, Justice Kennedy said the housing law allowed suits relying on both kinds of evidence.

The first kind of proof can be hard to come by, as agencies and businesses seldom announce that they are engaging in purposeful discrimination. “Disparate impact,” on the other hand, can be proved using statistics.

Justice Kennedy wrote that the history of the law and of the civil rights movement supported the broader interpretation.

On Monday they handed down four rulings

Supreme Court rules on patents, property

By Jaelynn Grisso, Scripts Howard Foundation Wire

Patent holders cannot be paid after the patent expires

The Supreme Court ruled that patent holders cannot keep getting paid for their inventions after the patent expires, upholding a previous Supreme Court decision.

Marvel agreed to pay Stephen Kimble royalties for a Spider-Man glove that shot out fake spider webs. He held a patent on the glove, but the contract did not specify how long payments would last. When the patent on the toy expired after the typical 20 years, Marvel stopped paying Kimble. The district court and the 9th U.S. Court of Appeals sided with Marvel based on the Supreme Court case Brulotte v. Thys, which also ruled patent holders were not entitled to royalties after the patent expired.

The court reaffirmed these decisions in a 6-3 vote, determining Kimble’s reasons for overturning Brulotte were not substantial enough. [..]

Crops, like raisins, are protected property

In Horne v. Department of Agriculture, the Supreme Court ruled that the government cannot make raisin growers forfeit a portion of their crops because they are protected property under the Fifth Amendment.

Marvin and Laura Horne refused to give the USDA a portion of their raisin crop, violating a law passed in 1937, which allows the government to require growers to reserve a portion of their crops for government management. The law said the government could take the crops for free to help control market prices. It would pay farmers only if it made profit on the produce.

The court’s ruling reversed the 9th Circuit’s decision on an 8-1 vote, with Sotomayor dissenting. The ruling upheld that personal property – such as cars, computers or raisins – is protected under the Fifth Amendment as is real property, such as houses. [..]

Excessive force needs to be determined objectively

The Supreme Court ruled that county jails need to set objective standards for use of force against prisoners who have not yet been convicted. The court reversed a ruling from the 7th Circuit Court and sent the case back for a rehearing.

Michael Kingsley sued officers in a Wisconsin county jail after they used force to remove him from his cell after he refused to comply with their instructions. Kingsley had not been convicted of a crime and was being held until his trial.

After a jury trial found in favor of the officers, Kingsley appealed. He claimed the instructions to the jury did not require that jurors consider whether the guards had intentionally violated Kingsley’s rights or had use force with complete disregard for his rights.

The 7th Circuit disagreed, saying that subjective standards about the officers’ intentions – whether or not they meant to violate or disregard his rights – should be used. The Supreme Court reversed this decision on a 5-4 vote, with Breyer, Kennedy, Ginsburg, Sotomayor and Kagan agreeing. Scalia, Roberts, Thomas and Alito dissented.

Officers cannot conduct a search without judicial review

In a case involving the city of Los Angeles and a group of hotel operators, the Supreme Court decided city ordinances allowing officers to search hotel records was unreasonable under the Fourth Amendment. The 5-4 vote upheld the decision of the 9th Circuit.

Los Angeles requires hotel operators to keep records about their guests, and the hotel operators can be charged with a criminal misdemeanor if the records are not maintained correctly. The district court sided with the city because it said hotel operators did not have an expectation of privacy for the records. But the 9th Circuit reversed this decision because the ordinance did not allow for a neutral party, such as a judge, to review the records for compliance before a search.

The city will now need to get a subpoena before getting hotel records if the hotel operator declines to give up the records voluntarily. The city wanted access to records because it said maintaining the records is a deterrent to criminal activity like prostitution and housing undocumented immigrants.

The court also previously released these rulings:

Race and Redistricting

In two Alabama cases, the court found that the State Legislature had relied too heavily on race in its 2012 state redistricting by maintaining high concentrations of black voters in some districts.

Religious Freedom in Prison

In Holt v. Hobbs, the court found that Arkansas corrections officials had violated the religious liberty rights of Muslim inmates by forbidding them to grow beards over security concerns.

Pregnancy Discrimination

In Young v. United Parcel Service, the court found that the lower courts had used the wrong standard to determine whether UPS had discriminated against one of its drivers, Peggy Young, who was pregnant.

Judicial Elections and Free Speech

In Williams-Yulee v. Florida Bar, the court ruled that states may prohibit judicial candidates from personally asking their supporters for money.

Employment Discrimination

The court decided in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores that Samantha Elauf was not required to make a specific request for a religious accommodation to wear a hijab when applying for a position at a children’s clothing store owned by the company.

Social Media and Free Speech

The court decided in Elonis v. United States that prosecutors did not do enough to prove Anthony Elonis’s intent when he published threatening rap lyrics on Facebook directed at his wife.

Separation of Powers in Foreign Affairs

The court decided in Zivotofsky v. Kerry that Congress was not entitled to order the State Department to “record the place of birth as Israel” in the passports of American children born in Jerusalem if their parents requested.

The Confederate Flag and Free Speech

The court decided in Walker v. Texas Division, Sons of Confederate Veterans that Texas had not discriminated against the view of the group that “the Confederate flag is a symbol of sacrifice, independence and Southern heritage” when refusing to allow its license plate bearing the Confederate flag.

Religious Signs and Free Speech

The court decided in Reed v. Town of Gilbert, Ariz., that a town ordinance that places different limits on political, ideological and directional signs violates the First Amendment.

There are four more rulings coming down the pike for tomorrow and Monday:

1. Obergefell v. Hodges (Same Sex marriage)

2. Glossip v. Gross (Lethal Injection)

3. Arizona State Legislature v. Arizona Independent Redistricting Commission (Congressional Redistricting)

4. Utility Air Regulatory Group v. EPA et. al. ( EPA Emissions Regulations)

5. Johnson v. U.S. (Gun Laws and Criminals)

So far, the Supremes haven’t upset the apple cart too much

May 22

Guilty As Charged But Nobody Goes to Jail

Cross posted from The Stars Hollow Gazette

The new Attorney General Loretta Lynch proves why she should not have been confirmed, as she rubber stamps the same weak polices of her predecessor Eric Holder regarding the prosecution of the “Too Big to Jail” bankers.

5 Banks to Pay Billions and Plead Guilty in Currency and Interest Rate Cases

By Ben Protess and Ben Corkery, The New York Times

Adding another entry to Wall Street’s growing rap sheet, five big banks have agreed to pay about $5.6 billion and plead guilty to multiple crimes related to manipulating foreign currencies and interest rates, federal and state authorities announced on Wednesday.

The Justice Department forced four of the banks – Citigroup, JPMorgan Chase, Barclays and the Royal Bank of Scotland – to plead guilty to antitrust violations in the foreign exchange market as part of a scheme that padded the banks’ profits and enriched the traders who carried out the plot. The traders were supposed to be competitors, but much like companies that rigged the price of vitamins and automotive parts, they colluded to manipulate the largest and yet least regulated market in the financial world, where some $5 trillion changes hands every day, prosecutors said. [..]

A fifth bank, UBS, will also plead guilty on Wednesday to manipulating the London Interbank Offered Rate, or Libor, a benchmark rate that underpins the cost of trillions of dollars in credit cards and other loans. Federal prosecutors had previously agreed not to prosecute the Swiss bank over the Libor scheme. But in a rare stand against corporate recidivism, the Justice Department voided that non-prosecution agreement after learning that UBS was also taking part in the effort to manipulate currency prices.

The guilty pleas, which the banks are expected to enter in federal court in Connecticut on Wednesday, represent a first in a financial industry that has been dogged by numerous scandals and investigations since the 2008 financial crisis. Until now, banks have either had their biggest banking units or small subsidiaries plead guilty. But with the four banks charged with currency violations, the guilty pleas will come from their parent companies. [..]

For the banks, though, life as a felon is likely to carry more symbolic shame than practical problems. Although they could be technically barred by American regulators from managing mutual funds or corporate pension plans or perform certain other securities activities, the banks have obtained waivers from the Securities and Exchange Commission that will allow them to conduct business as usual. In fact, the cases were not announced until after the S.E.C. had time to act.

Senator Elizabeth Warren (D-MA) and Wall Street watchdog group Better Markets weighed in on the lack of any criminal prosecutions:

Better Markets called it a “slap on the wrist” and Sen. Elizabeth Warren (D-Mass.) said in an e-mail: “That’s not accountability for Wall Street. It’s business as usual, and it stinks.” [..]

Dennis Kelleher, president of Better Markets, a non-profit group, said that the Justice Department had not done enough, saying “it talks tough, but winks at Wall Street’s too-big-to-fail banks’ criminal conduct, structuring sweetheart deals to minimize the impact on the criminals.”

Kelleher said the fines alone wouldn’t deter future criminal acts and that the Justice Department should punish bank executives and their supervisors for bad behavior. “Banks don’t commit crimes, bankers do,” he said.

Warren said “the big banks have been caught red-handed conspiring to manipulate financial markets, and several have even admitted in court that they’re felons – but not a single trader is being held individually accountable, and regulators are stumbling over themselves to exempt the banks from the legally required consequences of their criminal behavior.”

At Esquire Politics, Charles Pierce is not impressed by Ms. Lynch:

What a fake. What a fraud. What an insult to any stick-up kid doing five-to-fifteen for robbing a bodega. The banks don’t even have to look between the cushions on the sofa for the loose change they’ll use to pay the fines. They get to use their stockholders’ money to pay the fine. [..]

This is altogether remarkable. Here we have a staggering series of crimes that did very real damage to thousands of people all over the world. Here we have a staggering series of crimes, but not a single identifiable criminal. Who rigged the markets? The bank buildings? A shadowy cabal of ledgers? Motorcycle gangs made up of quarterly reports? This is the only area of criminal justice where law-enforcement actively avoids identifying anyone as a criminal.

Let us face facts. Within these institutions, there have to be hundreds of people who were involved in some way with a scam this large. There were people who supervised those hundreds of people, and people who supervised them. Somewhere, in that mass of criminal activity, I’m willing to bet something substantial that a human being committed an actual crime.

But, no. “The banks” get fined. This is just too freaking hilarious.

After all this evidence and investigation, not one person has been arrested. Sure some were fired at insistence of some regulators, but never criminally charged. So, the crooks are still getting away with breaking the law. Fines are a joke. Most of these banks will recoup those fines in less than a day and, at the end of the year, deduct them as business losses, so the tax payer once again foots the bill. I would hardly call that a victory. It’s a joke.

Apr 24

Framing the Innocent and Vulnerable

Cross posted from The Stars hollow Gazette

The Federal Bureaus of Investigation has been in the news lately for a couple of reasons and none of it very good. The FBI sting operations, which on a whole dubious since it most often involves entrapment, have not actually infiltrated criminal enterprises or terrorist plots. In other words, the vast majority of the victims of FBI stings are the vulnerable who are disenfranchised or mentally unstable who have neither the means or mental capability to even hatch a plot or be a real threat.

The FBI Informant Who Mounted a Sting Operation Against the FBI

By Trevor Aaronson, The Intercept

When you’re introduced to Saeed Torres in the new documentary (T)ERROR, you hear him bickering with the filmmaker, Lyric Cabral. The screen is black. [..]

The blackness lifts. Torres is dressed in a chef’s apron and a white headscarf, making hot dogs at an amateur basketball game, as if he were an all-American guy. [..]

Torres isn’t an all-American guy. He’s an FBI informant, one of more than 15,000 domestic spies who make up the largest surveillance network ever created in the United States. During J. Edgar Hoover’s COINTELPRO operations, the bureau had just 1,500 informants. The drug war brought that number up to about 6,000. After 9/11, the bureau recruited so many new informants – many of them crooks and convicts, desperate for money or leniency on previous crimes – that the government had to develop software to help agents track their spies. [..]

Informants represent the manpower behind the FBI’s controversial stings, which are intended to find would-be terrorists before they attack. In the decade after 9/11, 158 defendants were prosecuted following these undercover operations, which are usually led by an informant and provide the means and opportunity for someone to attempt to commit an act of terrorism. A Human Rights Watch report in 2014 criticized the FBI for targeting “particularly vulnerable people, including those with intellectual and mental disabilities and the indigent.” Late last week, for example, the FBI arrested a mentally troubled 20-year-old in Topeka, Kansas, after he allegedly attempted to bomb Fort Riley with the help of two undercover FBI informants.

While there are more than 15,000 FBI informants, most are low-level operatives who provide scraps of information or tips about people in their community. Only a few of them at any time are high-level operators like Torres – professional liars who travel the country as agents provocateur in elaborate stings. [..]

There’s no shortage of embarrassing moments for the FBI in its dozens of counterterrorism stings since 9/11. In Boston, an FBI informant who was working a counterterrorism case was caught on an FBI camera purchasing heroin, which wasn’t part of his assignment. In case after case, the FBI experiences so-called “recorder malfunctions” – usually at the most unfortunate time for the defendant, such as at the very beginning of the sting or, as in an operation involving a Baltimore teenager, when the target was attempting to back out of the plot. More recently, FBI agents accidentally recorded themselves calling the subject of their undercover investigation a “retarded fool” whose terrorist ambitions were “wishy-washy.”

Democracy Now!‘s Amy Goodman interviews the independent documentary filmmakers, Lyric R. Cabral and David Felix Sutcliffe, who co-directed the documentary film (T)Error. Along with Steve Downs, executive director of the National Coalition to Protect Civil Freedoms, Khalifah al-Akili, a Muslim-American victim of an FBI sting from Pittsburgh, and Marlene, mother of Tarik Shah, who was arrested in 2005 after a joint FBI-NYPD sting operation, they discuss these oprations.

FBI Informant Exposes Sting Operation Targeting Innocent Americans in New “(T)ERROR” Documentary



Transcript can be read here.

Apr 14

Civilian Contractors Sentenced for Iraq Massacre

After years of investigations, set backs, a 10 week trial, 28 days of deliberations and the four men convicted, the sentencing for the Blackwater guards who slaughtered 17 people in Nisour Square, Baghdad on Sept. 16, 2007, took place in a courtroom in Washington, DC.

One former Blackwater security contractor received a life sentence on Monday and three others received 30-year sentences for killing unarmed Iraqi civilians in Baghdad’s Nisour Square in 2007. [..]

Nicholas A. Slatten, a former Army sniper from Tennessee, was convicted of murder for firing the first fatal shots. Three others – Dustin L. Heard, also of Tennessee; Evan S. Liberty of New Hampshire; and Paul A. Slough of Texas – were convicted of manslaughter, attempted manslaughter and the use of a machine gun in a violent crime. The last charge carried a mandatory 30-year prison sentence under a law passed during the crack cocaine epidemic.

Mr. Slatten was sentenced to life in prison, and Mr. Heard, Mr. Liberty and Mr. Slough to 30 years. The men are all in their 30s.

Now where is the justice for all the other civilians who have been killed and, or, tortured by American soldiers, drone pilots and contractors? Where are the prosecutions of those who ordered it and wrote the memos that justified the violations of US and International law? Where and when will the United States do the honorable thing for them?

Today justice was served but it should just be the beginning. This is not enough.

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