MIRANDA AND DZHOKHAR TSARNAEV: WHEN WE’RE SURE THAT SOMEONE HAS DONE SOMETHING TERRIBLE, WHEN MUST WE READ HIM HIS RIGHTS?

Of course we want the feds to have gotten everything possible our of Dzhokar Tsarnaev before he started clamming up. But is that merely an emotional position or a legally justifiable one? (Do remember, that the rights we give away in exceptionally moments often tend to stay given away.)

Dzhokhar Tsarnaev talked for 16 hours before he was read his rights. Emily Bazelon of Slate thinks that’s too long. Here’s a clip from her discussion-provoking essay on the matter.

According to the AP, Dzhokhar Tsarnaev answered questions for 16 hours before he was read the Miranda warning that he could remain silent and could ask for a lawyer. Once Tsarnaev was told that, he stopped talking. (So much for the idea that everyone has heard Miranda warnings so many times on TV that they have become an empty ritual.) The AP also reports that the investigators questioning him were “surprised when a magistrate judge and a representative from the U.S. Attorney’s office entered the hospital room.” The investigators “had planned to keep questioning him.”

Wow. That’s bad no matter your point of view. If you think Tsarnaev doesn’t deserve the normal protections American law affords criminal suspects, then you’d want the FBI to keep at him as long as they chose. Or if, like me, you’re worried about how far the Obama administration’s Justice Department has stretched the limited “public safety” exception the Supreme Court has allowed for questioning suspects about ongoing danger without Miranda warnings, 16 hours sounds expansive.

It’s true that Miranda offers protection only after the fact. Technically, the rule is violated not when investigators fail to give the warnings, but when they try to introduce in court a confession or other facts a suspect revealed before he was read his rights. It’s also true that given the mountain of evidence against Tsarneav, he could be convicted without his own statements. But that may not be true with the next terrorist suspect—or the next hated man for whom the government decides to stretch the public safety exception. The Justice Department is setting a precedent here. And how does that precedent directly involve public safety, when all of law enforcement reassured the public that safety had been restored once Tsarnaev was captured Friday night, and that the authorities strongly believed he and his brother, Tamerlan, had acted alone?

Read on. There’s a lot more.

CAN I SAY I’M SORRY? IS THERE A PLACE FOR APOLOGIES IN CRIMINAL COURT?

This research paper on the value of—and legal difficulty with—apologies by defendants in criminal court, by Professor Michael Jones of the Phoenix School of Law, covers an interesting question.

Here’s the abstract:

This paper is written for the purpose of addressing the power and possibility of early apologies in the criminal justice system. As constructed, our criminal justice system rewards defendants that learn early in their case to remain silent, and punishes those that talk. Defendants that may want to offer an apology or allocution for the harm they’ve caused are often required to wait until a sentencing hearing, which may come months, or even years after the event in question. This paper proposes that the Arizona Rules of Criminal Procedure be modified to provide an exception for apology to criminal defendants. Apologies can play an invaluable role in the healing process for victims, defendants, family members and others tied together by the unfortunate events of a criminal prosecution. This paper seeks to further the comprehensive law movement approach that promotes a healing process for those involved in the criminal justice system.

An here’s the full paper if you’d like to take a look.

(A thank you, once again, to the excellent Doug Berman of Sentencing, Law & Policy, for flagging this paper.)

THE KOCH-BROS, THE LA TIMES, AND A NOT-SO-MODEST PROPOSALS

Now that the shock of the Koch duo’s possible purchase of the LA Times and other Tribune Corp papers is nearly a week old, a whole second wave of reactions has been surfacing, some of them….odd.

Take, for example, this somewhat untethered column by the Washington Post’s Steve Perlstein in which Perlstein breathlessly suggests that he knows a sure fire way that the LAT employees can save the paper from the marauding Koch-sters.

Ready?

Everyone should quit. (Right, Steve. That’d show ‘em.)

“If the Times journalists,” he writes…

….”….decide collectively to walk out the door one day, the readers and advertisers are almost certain to follow.

“A new owner, of course, could hire new journalists, and certainly there are plenty of them out there looking for a job. But it would take time to attract them, get them working as a team and weed out the inevitable clunkers…

“And in the meantime, competing news organizations would be quick to pick up Tribune’s stars and use them to lure away readers and advertisers at a time when circulation and revenue are already under pressure. Hell, in the age of the Internet, the rebellious journalists could easily start their own news organizations and grab a good chunk of their old readership within weeks.
This is a rare moment for Tribune’s beleaguered journalists. For the first time in a long time, they actually have leverage. They’d be crazy not to use it….”

This is, of course, quite nuts.

But read the rest anyway.

WA PO’S HEROLD MEYERSON SAYS MANY TIMES STAFFERS

Washington Post columnist Herold Meyerson spent years as a political journalist in LA, so it’s understandable that he would feel moved to weigh in on the possibility of the Koch brothers as buyers for the LA Times, and about the necessity of remembering that a newspaper isn’t just a business; it’s also a civic trust.

Here’s a couple of clips:

On May 21, Los Angeles voters will go to the polls to select a new mayor. Who will govern Los Angeles, however, is only the second-most important local question in the city today. The most important, by far, is who will buy the Los Angeles Times.

The Times is one of the eight daily newspapers now owned by the creditors who took control of the Tribune Co. after real estate wheeler-dealer Sam Zell drove it into bankruptcy. Others include the Chicago Tribune, the Baltimore Sun, the Orlando Sentinel and the Hartford Courant. The Tribune board members whom the creditors selected want to unload the papers in favor of more money-making ventures.
Fans of newspapers are a jumpy lot these days. And in the past couple of weeks, their apprehension has gone through the roof with word that right-wing billionaires Charles and David Koch are looking to buy all eight papers.

[BIG SNIP]

Being human beings, all newspaper owners have politics of their own. Since the 19th century, however, most haven’t gone into business primarily to advance a political perspective. Profit, professional and civic pride, and recognition have largely motivated them. It’s hard to see how any of these factored into the Koch brothers’ calculations.

In their very brief no-comment on the sale rumors, the Kochs took care to note, “We respect the independence of the journalistic institutions” owned by Tribune, but the staffs at those papers fear that, once Kochified, the papers would quickly turn into print versions of Fox News. A recent informal poll that one L.A. Times writer conducted of his colleagues showed that almost all planned to exit if the Kochs took control (and that included sports writers and arts writers). Those who stayed would have to grapple with how to cover politics and elections in which their paper’s owners played a leading role. It’s also unclear who in Los Angeles, one of the nation’s most liberal cities, would actually want to read such a paper, but then the Kochs don’t appear to view this as a money-making venture.

Though slimmed down from its glory days, the L.A. Times remains a great newspaper, as its recent stories on increasing employer surveillance of blue-collar workers illustrate. But the paper that, under the reign of publisher-owner Otis Chandler in the 1960s and ’70s, moved to the apex of American journalism has suffered a string of indifferent-to-godawful owners, ranging from Mr. Chandler’s cousins to Mr. Zell — that rare journalism mogul who actively hated journalism and journalists….

MEANWHILE…Marcelle Pacatte writing for Crains Chicago Business urges his fellow Chicagoans not to be afraid of the “big, bad Koch Brothers.”

PROP 8 CHALLENGER ATTORNEYS DAVID BOIES AND TED OLSON AFTER TUESDAY’S HEARING

It is still something of a miracle that Constitutional attorneys David Boies and Ted Olson—who fought against each other in Bush v. Gore—have been the lawyers who made this case against Proposition 8 possible.

Here’s their post hearing press conference.

Their clients, Sandy Stier, Kris Perry, Jeff Zarrillo and Paul Katami spoke as well— along with Kris and Sandy’s sons. It is hard to understand how anyone could object to their marrying each other. Very, very hard.

Have a look.

Here, as promised, are a couple of the more intriguing essays and reports on Tuesday morning’s hearing on the constitutionality of California’s Proposition 8.

DOMA—the Defense of Marriage Act case—is Wednesday.

WHAT ABOUT THE CHILDREN? PROP 8 AND PROCREATION

Amy Davidson from the New Yorker focuses on the fertility issue—or whatever it was that Prop 8 attorney, Charles Cooper was nattering on about regarding fertility and marriage.

Here’s a clip:

This is what we’ve come down to: a lawyer arguing, before the Supreme Court, that a ban on same-sex marriage should be upheld in the interest of discouraging elderly heterosexual men from cheating on their similarly aged female partners with younger women who might get pregnant. At least, that is what Charles Cooper, the lawyer for the proponents of California’s Proposition 8, seemed to be saying in his very odd exchange with Justice Elena Kagan. She had pointed out, amid his talk of the “historic traditional procreative purposes” of marriage, that infertile couples have every right to marry.

JUSTICE KAGAN: If you are over the age of 55, you don’t help us serve the Government’s interest in regulating procreation through marriage. So why is that different?

MR. COOPER: Your Honor, even with respect to couples over the age of 55, it is very rare that both couples—both parties to the couple are infertile, and the traditional—

[Laughter.]

JUSTICE KAGAN: No, really, because if the couple—I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage.

[Laughter.]

MR. COOPER: Your Honor, society’s—society’s interest in responsible procreation isn’t just with respect to the procreative capacities of the couple itself. The marital norm, which imposes the obligations of fidelity and monogamy, Your Honor, advances the interests in responsible procreation by making it more likely that neither party, including the fertile party to that…

His thought was interrupted by an exchange between the Justices, in which Scalia made a joke about Strom Thurmond—presumably referring to his marriage to a twenty-five-year-old when he was sixty-eight, and not to the daughter he fathered, at the age of twenty-two, with a woman whom it was, at the time, illegal for him to marry in his home state of South Carolina. And then, back to Cooper:

MR. COOPER: Very few men—very few men outlive their own fertility. So I just—

[EDITOR’S NOTE: Why, why, why did no one ask Mr. Cooper at this juncture if postmenopausal women should be forbidden to marry? Why??? A glorious opportunity, lost, LOST, I tell you!)

JUSTICE KAGAN: A couple where both people are over the age of 55—

MR. COOPER: I—

JUSTICE KAGAN: A couple where both people are over the age of 55.

MR. COOPER: And Your Honor, again, the marital norm which imposes upon that couple the obligation of fidelity…. It’s designed, Your Honor, to make it less likely that either party to that—to that marriage will engage in irresponsible procreative conduct outside of that marriage. Outside of that marriage.

Read on. Please, read on. (How can you resist? I mean, really???!)

ONLY SCALIA AND ALITO SEEMED TO CONTINUE TO BACK PROP 8, SAYS UCI LAW SCHOOL DEAN ERWIN CHEMERINSKY

Oh, may he be right! Maura Dolan at the LA Times has the story on Chemerinsky’s opining on the Supremes possible opining. (Plus some counter opining by Prop. 8 advocates.)

Here’s a clip:

One leading law professor said he saw little support on the U.S. Supreme Court for keeping Proposition 8, California’s ban on gay marriage.

Erwin Chemerinsky, dean of the law school at UC Irvine and a constitutional law professor, said a reading of the transcript showed that several justices were particularly concerned about standing, especially Chief Justice John Roberts and Justice Ruth Bader Ginsburg.

If the court dismisses the appeal on standing, the ruling by a federal district judge would probably stand.

“There might be a majority to leave the district judge’s opinion in place,” Chemerinsky said. “On the other hand, it is also possible the court could reach the merits. Only two justices—Samuel Alito and Antonin Scalia—seemed clearly supportive of Proposition 8.”

Gay marriage foes expressed confidence that the U.S. Supreme Court could uphold the state’s ban on same-sex unions after hearing arguments Tuesday.

“I think we are going to win this case,” Andy Pugno, lawyer for Proposition 8 campaign, said. “We definitely represented the winning case today and the justices asked good thoughtful questions and we were able to say everything that we wanted to get in front of the court today.”

Pugno, counsel for Protectmarriage.com, said he was unimpressed by the arguments in favor of lifting the voter-approved ban on same-sex marriages in California.

Chemerinsky thinks that both Kennedy and Roberts are swing votes, not just Kennedy. I tend to agree—both based on pre-hearing logic re: Roberts and his legacy, and based on Roberts’ behavior in Tuesday’s hearing. Let’s hope they both swing with the tide of history.

TRANSCRIPT AND AUDIO FOR TUESDAY’S HEARING….GRAND THEATER (WITH ENORMOUS AMOUNTS AT STAKE)

If you’d like the full transcript of Tuesday’s hearing plus the audio, NPR has it here.

Charles Cooper, who is attorney for Prop 8, was first up. Cooper is clearly an extremely capable attorney. But he sounded nervous in the beginning, thus was a little wordier than might be optimum and got continually interrupted by impatient and keyed up justices, both on the liberal and the conservative side of the matter.

But then Cooper and the justices all seemed to settle down and the exchanges became legally substantive—even if sometimes a bit odd (as with the procreation, women over 55 section excerpted in the New Yorker story above).

Here are a couple of the more interesting moments:

JUSTICE SOTOMAYOR: Outside of the -­ outside of the marriage context, can you think of any other rational basis, reason, for a State using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them? Is there any other rational decision-making that the Government could make? Denying them a job, not granting them benefits of some sort, any other decision?

MR. COOPER: Your Honor, I cannot. I do not have any — anything to offer you in that regard. I think marriage is -­

JUSTICE SOTOMAYOR: All right. If that -­ if that is true, then why aren’t they a class? If they’re a class that makes any other discrimination improper, irrational, then why aren’t we treating them as a class for this one thing? Are you saying that the interest of marriage is so much more compelling than any other interest as they could have?

MR. COOPER: No, Your Honor, we certainly are not. We — we are saying the interest in marriage and the — and the State ‘s interest and society’s interest in what we have framed as responsible pro -­ procreation is — is vital, but at bottom, with respect to those interests, our submission is that same-sex couples and opposite-sex couples are simply not similarly situated.

But to come back to your precise question, I think, Justice Sotomayor, you’re probing into whether or not sexual orientation ought to be viewed as a quasi-suspect or suspect class, and our position is that it does not qualify under this Court’s standard and -­ and traditional tests for identifying suspectedness.

The — the class itself is — is quite amorphous. It defies consistent definition as — as the Plaintiffs’ own experts were — were quite vivid on. It — it does not — it — it does not qualify as an accident of birth, immutability in that — in that sense.

And then a classic moment in Scalia-osity in which the good justice musingly wondered why he should have to rule on a social issue that he alleged is “newer than cell phones.”

JUSTICE SCALIA: ….Traditional marriage has been around for thousands of years. Same-sex marriage is very new. I think it was first adopted in The Netherlands in 2000. So there isn’t a lot of data about its effect. And it may turn out to be a — a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe.

But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet? I mean we — we are not — we do not have the ability to see the future….

AND IN OTHER NEWS – LAPD OFFICER IS GIVEN 1.2 MILLION IN RACIAL HARASSMENT LAWSUIT

On Tuesday, the verdict came in for LAPD officer, Earl Wright, who described harrowing harassment by his supervisor and some other officers at the department’s Central division.

The LA Times Joel Rubin reported on the three day trial..

Here’s a clip:

…The testimony by officers during the trial showed Wright “willingly participated in some of the inappropriate behavior and banter,” said Lt. Andy Neiman, a spokesman for the department.

The jury, however, seemed to reject that notion.

In reaching their decision, jurors noted in written records that the LAPD’s procedures for handling harassment claims such as Wright’s were “ineffective,” Smith said.

Beck said in his written response that the department had learned lessons from the Wright case and “has used its experience from the allegations revealed in this case to more aggressively monitor workplace environments and investigate allegations of misconduct.”

Indeed, cop-on-cop accusations of harassment, retaliation and discrimination have bedeviled the LAPD for years, and cost tax payers tens of millions of dollars in verdicts and settlements.

Wright’s verdict is the second seven-figure payout for the city in as many weeks. Last week, the City Council voted to approve a $1.25-million settlement with two lesbian officers who claimed they had been subjected to sexual harassment by their supervisor.

That’s nearly 3 million in harassment settlements in two weeks.

FOXLA News notes that Wright is still working for the LAPD—now at the department’s training division—and still loves his job.

IS OUR RIGHT TO COMPETENT LEGAL COUNSEL IF WE NEED IT A MYTH?

Every week I get a couple of calls from gang members or former gang members who are locked up in county jail or state prison. These collect calls are a byproduct of my years of gang reporting. I spent so much time on the street talking with homeboys and homegirls that many of them came to view me as some kind of white lady auntie who always carried a notebook, an audio recorder and a camera.

Many of the guys I knew from way back when have long ago turned their lives around and have good jobs, kids, wives and houses of their own. But some have not, at least not with any consistency. So when they, or their brothers or nephews, get locked up, sometimes they call me.

I talked to such a guy earlier this week. He was someone I only vaguely know, but it was the weekend and I had a minute to two to spare so I took his call. We’ll call him David. He called because he’d just signed a plea bargain but wanted advice as to how he might get his 18-month sentence transferred to county jail, which would allow him to call and see his daughter for whom he had always been the sole caretaker, instead of doing the year and a half in state prison. I told him that his public defender would likely have the best luck in talking to the judge about such a change—and the judge would either cooperate or not.

No, he said. “I already asked my lawyer. He told me to go F— myself.” He paused awkwardly. “Sorry for cussing.”

“He told me the first day he saw me that I was going to take a deal, and that he didn’t want to hear any argument from me. He hardly even looked at my case.” David took the deal, he said. “And I’m okay with that. But all I wanted is for my lawyer to ask the judge if I could do my time here, where I could make phone calls and get visits. If I go to prison, they told me I’ll spend the whole 18 months in ‘reception,’ which means I won’t be allowed any phone calls or visits. And what is my little girl going to do? She’s six and she’s never had any other parent but me.”

Okay, tell me how this conversation when again,” I said.

“He told me to go F— myself,” David reiterated. “When I tried to explain, and I mean really nicely and respectfully, he said it again.”

Now, as I said earlier, I don’t really know David, thus I don’t know if some crucial part of his story is false, or exaggerated, or left out. But it had the odd ring of truth. He made no excuses for himself. He simply had this one anguished request, that the judge could grant—or not. Yet, David’s attorney, who would have lost nothing by making a quick pitch to the judge, instead told David to go screw himself. (After telling him he was taking a deal, regardless of whether he wanted to take a deal or not.)

I know many wonderful, wonderful public defenders and court appointed attorneys who do work a gazillion times past what they are every paid for, and who believe ardently in the principal that everyone deserves a competent defense. A lot of those PD’s cope with impossible caseloads, yet keep working like crazy, with great intelligence and compassion, to provide what their clients need. In fact, it’s public defenders’ associations that are fighting to make things better.

Yet, I’ve also seen public attorneys who do the absolute minimum, who actively loathe most of their clients whom they believe are scum who should just take what’s coming to them.

Which is not an attitude that you want in your attorney.

It sounded like David’s lawyer fell into the latter category.

I bring all this up as a very long introduction to this essay by Kevin Burke, a trial judge who is the immediate past president of the American Bar Association. Burke writes about the 50th anniversary of U.S. Supreme Court decision of Gideon v. Wainwright, in which the court ruled that defendant in a criminal case had a constitutional right to have an attorney, and if he or she could not afford one the government had an obligation to provide said attorney.

In his essay, Burke suggests that maybe our 50-year-old right to counsel has become more of myth than the principal the Supremes intended a half century ago with their unanimous ruling. Here’s are two clips from Burke’s essay:

…Today there are those who claim [Gideon] is all a mirage. The right to counsel they say is just “another lie we tell each other to hide the truth” about unequal justice in America. Andrew Cohen wrote this week, “for all the glory we heap upon Gideon, for all the preening we display about our fealty to the rule of law, the sad truth is that there is no universal right to counsel today. We know today which path our legal and political leaders chose. Instead of ensuring that the right to counsel kept pace with the explosion of criminal cases, the Supreme Court and the Congress (and state legislatures) allowed the right to be left by the side of the road.”

What happened that diminished the bright promise of Gideon? First, the reality was there was no appetite for anyone to fund the mandate or for courts to order adequate funding. Neither Fortas nor Krash (and perhaps Justice Black as well) foresaw the problems of financing the new right to counsel. Caseloads and inadequate representation stripped Hugo Black’s admonition of the importance of the right to counsel of its vitality. They did not foresee a criminal justice system dominated by plea bargaining. They did not nor could have at the time foreseen the collateral consequences that flow from a conviction today.

[SNIP]

Every day in thousands of courtrooms across the nation, from trial courts that handle felony cases to limited jurisdiction justice of the peace courts, the right to counsel is violated. Judges conduct hearings in which people accused of crimes and children accused of delinquency appear without lawyers. Some are middle class and therefore not eligible for appointed lawyers. Many plead guilty without lawyers. Others plead guilty and are sentenced after learning about plea offers from lawyers they met moments before. They are afraid and intimidated by the courts. Innocent people plead guilty to get out of jail. Too many plead guilty with no idea that there are collateral consequences that could change their lives.

Read the rest here.

(NOTE: A hat tip to Doug Berman of Sentencing. Law and Policy who flagged Burke’s essay.)

REMEMBERING ANTHONY LEWIS

Pulitzer Prize-winning legal columnist and author Anthony Lewis died on Monday.

His death was an odd bit of timing, since Lewis’s most enduring work is Gideon’s Trumpet, about the that very Supreme Court decision that gave Americans the right to have counsel.

There are lots of remembrances about how Lewis’s knowledge and his love of writing about the law made his legal reporting clear, elegant, and understandable. This one from the Atlantic’s Andrew Cohen is a good one. Here’s a representative clip:

…The headline of the [New York Times] obit says that Lewis “transformed” coverage of the United States Supreme Court, and he did. But he did much more than that. He transformed coverage of the broader beat of the law, and he inspired generations of writers (and lawyers and judges, for that matter) to try to better explain and translate legal jargon into phrases and concepts that laypeople could more easily understand.

Lewis’ masterwork, Gideon’s Trumpet, was a piece of art for precisely this reason — word by word, simple sentence by simple sentence, he deconstructed the Sixth Amendment’s right to a fair trial, and murky Supreme Court procedure, and state law, and the insular world of Washington law firms, and all the other satellite topics that revolved around that seminal case. Here is a representative passage:

The case of Gideon v. Wainwright is in part a testament to a single human being. Against all the odds of inertia and ignorance and fear of state power, Clarence Earl Gideon insisted that he had a right to a lawyer and kept on insisting all the way to the Supreme Court of the United States

His triumph there shows that the poorest and least powerful of men-- a convict with note even a friend to visit him in prison — can take his cause to the highest court in the land and bring about a fundamental change in the law.

But of course Gideon was not really alone; there were working for him forces in law and society larger than he could understand. His case was part of a current of history,and it will be read in that light by thousands of persons who will known no more about Clarence Earl Gideon than that he stood up in a Florida court and said: “The United States Supreme Court says I am entitled to be represented by counsel.”

For his work, in 1963, he won a Pulitzer Prize (his second, his first coming years earlier with his equally trenchant work covering the civil rights movement). Afterward, taking the longer view, Lewis wrote pointedly and poignantly for decades on the op-ed page of the Times, wrote excellent books like Make No Law (about the key first amendment case New York Times v. Sullivan), and contributed regularly to the New York Review of Books.

When given the chance over the years, I always tell young journalists and young lawyers to read everything Lewis has written, because his writing was always so clear, and so accessible, and such a good starting point for more involved research on any given legal topic….

PREPARING FOR TUESDAY’S GAY MARRIAGE HEARINGS BEFORE THE SUPREMES

A few stories for your reading pleasure:

CALIFORNIA MAYORS URGE SCOTUS TO OVERTURN PROP 8

David Siders at the Sacramento Bee reports that ” mayors of 25 California cities are urging the court to find the measure, Proposition 8, unconstitutional..”

Read more here:

THE NEW YORKER’S GEOFFREY TOOBIN ON WHY NO MATTER WHAT THE SUPREMES DECIDE, “THOUGH THE BATTLE CONTINUES THE WAR IS OVER”,

For the moment, Toobin’s essay from the April 1 issue of the New Yorker isn’t hidden behind a paywall. Let’s hope it stays that way but, if you’re not a subscriber, you might want to read it now, just in case. It’s short, very smart and gives an interesting way in to what some of the arguments will be, and what is at stake.

Here are some clips:

In 2003, the Supreme Court decided that gay people could no longer be thrown in prison for having consensual sex. Specifically, Justice Anthony Kennedy’s opinion, in Lawrence v. Texas, declared that Texas’s anti-sodomy law “demeans the lives of homosexual persons” and violated the right to liberty guaranteed by the Fourteenth Amendment. But Kennedy was careful to describe the limits of the Court’s holding. He wrote that the case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” In other words, in Kennedy’s telling, Lawrence v. Texas was not about same-sex marriage.

To which Justice Antonin Scalia responded, in a dissenting opinion, “Do not believe it.” He explained:

If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct; and if, as the Court coos (casting aside all pretense of neutrality), “when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “the liberty protected by the Constitution”?

What, indeed? A decade later, it’s clear that Scalia was right. Once a society decides that the law must treat a group of people equally in one area of life, it becomes harder—and, eventually, impossible—to justify discriminating against them in others. If gay people can’t be prosecuted for being gay, then they shouldn’t be fired for being gay, either. If they can’t be fired, then they shouldn’t be denied custody of children. And so on, to the issue of marriage.Each of these steps is incomplete under current law, as well as in the real world, but the direction they are taking is unmistakable. This week, we will begin to find out whether the Justices will impede or accelerate that process. But, at this point, not even the Supreme Court can reverse the march toward equality.

And then there’s this:

…It’s important that the Justices decide these two cases the right way.

It’s just not as important as it once seemed. When Theodore B. Olson and David Boies, the lead lawyers in the Prop 8 case, filed their lawsuit, in 2009, it appeared to many informed observers that they were taking a foolhardy risk. At the time, gay-rights organizations had been following a cautious, state-by-state approach, and it seemed that an adverse decision in a major federal lawsuit could set back the cause of same-sex marriage for a generation. But, whatever the Justices do, that’s not going to happen. The question about marriage equality for all Americans is not if it will pass but when. The country has changed, and it’s never going back to the way it was. Though the battles continue, the war is over.

Read the rest.

Photo from the Missouri Bar Association

When it comes to overly punative school discipline policies, Meridian, Mississippi, arguably leads the pack.

But a new federal consent decree filed on Friday promises to force a change in Meridian’s severe approach to punishing students—and could, say experts, provide a blueprint for school discipline reform nationwide.

In Meridian the need for reform is particularly extreme. Here students are reportedly routinely arrested for any one of a string of minor reasons. When kids are arrested, children as young as ten are taken away by police in handcuffs, and thrown into juvenile detention centers—often without being allowed access to a lawyer.

For example, one girl with a bladder disorder was arrested after she raced frantically to the restroom without getting permission from her teacher.

Other kids were arrested and incarcerated for minor dress code violations, like the wrong color socks, or for having shirts untucked.” Tardiness and “flatulence in class” could be arrest-worthy offenses, as could using “vulgar language, or yelling at teachers.”

And in an alarmingly disproportionate number of instances, the students receiving these outsized punishments were “African-American children and children with disabilities.”

After warning Meridian to clean up its act or face legal proceedings, the civil rights section of the U.S. Department of Justice filed a legal complaint in October 2012, in which they wrote in harsh tones about Meridian administrators’ “school to prison pipeline” diciplinary policies:

Collectively, Defendants engage in a pattern or practice of unlawful conduct through which they routinely and systematically arrest and incarcerate children, including for minor school rule infractions, without even the most basic procedural safeguards, and in violation of these children’s constitutional rights.

Defendants do not afford children in the juvenile justice system even the minimum procedural safeguards required by the Constitution. As a result, (1) the City of Meridian engages in a pattern or practice of arresting children in school without probable cause; (2) Lauderdale County and the Youth Court Judges engage in a pattern or practice of authorizing the repeated incarceration of children without essentials of fairness and due process such as a timely hearing to determine whether there is probable cause to detain them, and meaningful representation by an attorney; (3) the Mississippi Division of Youth Services, Lauderdale County, and the Youth Court Judges engage in a pattern or practice of placing children on probation and incarcerating children for alleged probation violations without affording children constitutionally required protections such as reasonable opportunities to understand their probation requirements or hearings to challenge alleged probation violations that could result in incarceration; and (4) Defendants collectively engage in a pattern or practice of imposing disproportionate and severe consequences, including incarceration, for technical probation violations such as school suspensions, without any due process whatsoever.

Defendants’ concerted actions punish children in Meridian, Mississippi so arbitrarily and severely as to shock the conscience, and deprive these children of liberty and educational opportunities on an ongoing basis.

In January, the Advancement Project issued its own report titled: HANDCUFFS ON SUCCESS: The Extreme School Discipline Crisis in Mississippi Public Schools. The report made clear that the habit of criminalizing kids as young as five was not exclusive to Meridian but was happening all over the state of Mississippi.

THE FEDS LAY DOWN A LIST OF RULES WITH A CONSENT DECREE

After conducting an investigation that began in December 2011, the Feds gave local officials plenty of time to make progress toward correcting the most harmful of the issues before beginning with legal proceedings. But, instead of complying, Meridian officials reportedly tried to keep documents away from the DOJ people.

So the lawsuit was filed last October, followed five months later by the consent decree that was filed last Friday.

The following is from the DOJ press release announcing the move:

“The American dream is rooted in education. In Meridian, that dream has long been delayed by discipline practices that deny students access to education,” said Jocelyn Samuels, Principal Deputy Assistant Attorney General for the Civil Rights Division. “We commend the Meridian Public School District for taking this huge step toward ensuring that its schools are safe and welcoming to all students and that education is a road to success instead of a pipeline to prison.”

A BLUEPRINT FOR REFORM BEYOND MERIDIAN?

A consent decree—like the one that the Los Angeles Police Department operated under after the Rampart scandal—is basically a plea bargain in which the agency being sued avoids court proceedings by agreeing to a set of requirements.

The main terms that the Meridian consent decree lays out are the following:

· Limits exclusionary discipline such as suspension, alternative placement and expulsion, and prohibits exclusionary discipline for minor misbehavior;
· Prohibits school officials from involving law enforcement officers to respond to behavior that can be safely and appropriately handled under school disciplinary procedures;
· Requires training for school law enforcement officers on bias-free policing, child and adolescent development and age appropriate responses, practices proven to improve school climate, mentoring and working with school administrators;
· Revises policies at the district’s alternative school to create clear entry and exit criteria and provide appropriate supports to speed students’ transitions back to their home schools;
· Requires enhanced due process protections in student discipline hearings
· Expands use of a behavior and discipline management system known as positive behavior intervention and supports (PBIS) at all schools;
· Requires teachers and administrators to use developmentally appropriate tiered prevention and intervention strategies before removing students from instruction;
· Requires monitoring of discipline data to identify and respond to racial disparities
· Requires training on all revised policies and procedures, and
· Implements measures to engage families and communities as partners in revising policies and as participants in regular school and community informational forums.

But here’s where it gets interesting.

Many youth advocates hope that the full 44-page consent decree, which expands on the points made above, can act as an instructive model that any school district can use as a blueprint for its own reforms.

“This is really an incredible document,” Miriam Krinsky, policy consultant for the California Endowment, told me on Friday. (Note: Krinsky is also the executive director for LA’s Citizens Commission on Jail Violence.) “It provides a detailed and thoughtful roadmap for elements of best practices that can be incorporated in school discipline reforms around the nation.”

A look at the still depressingly high suspension and drop out rates that plague too many American school districts makes it clear that reforms are badly needed.

“Even one court appearance during high school increases a child’s likelihood of dropping out of school,” writes the DOJ. “And court appearances are especially detrimental to children with no or minimal previous history of delinquency.”

13_03_21 Barnhardt and US v. Meridian Joint Consent Order – FILED

Photo from the Advancement Project’s report, “Handcuffs on Success”

LAPD Chief Charlie Beck did a couple of back-to-back interviews this week—with KPCC’s Larry Mantle on Wednesday and on Tuesday with KNX1070′s Ed Mertz.

In both instances, the chief said that the department is going to conduct anonymous survey of more than 500 of its officers about issues of racism, discipline, and a list of related issues, the idea being to find out what officers think and experience that they may not be willing to come forward to say.

On Larry Mantle’s show Beck and Mantle also had an interesting exchange about whether or not the chief would ever endorse one local candidate over the other. The answer was NO—”Unless I believed that person was dangerous to the city.” Even then, Beck suggested, he would likely say something behind the scenes, not as a public statement.

This is, of course, quite different than the point of view Sheriff Lee Baca has taken. (In the past, Baca has endorsed candidates for City attorney and for LA’s District Attorney, among others.)

MEANWHILE, LAPD OFFICER EARL WRIGHT FILES RACIAL HARASSMENT SUIT AGAINST LAPD

FoxLA reports on a lawsuit brought by Earl Wright, an LAPD officer alleging racial harassment on the job at LAPD’s Central station, as recently as 2010. (The lawsuit was filed in April 2012, but is just now coming to court.)

Here’s the complaint if you wish to read it. If true, it describes a climate of ongoing racial harassment—with liberal references to watermelon and the n-word. According to the complaint, the harassment was not limited to Wright, but states he observed an Asian American officer being similarly harassed, and also a female colleague, who was allegedly sexually harassed then pressed not to report it. In many cases, the incidents were allegedly caused by same officer who, according to the complaint, supervisors declined to reprimand.

Anyway, read it yourself and see what you think.

NEW LASD ASSISTANT CHIEF TERRI MCDONALD TO BE ON WHICH WAY LA?

The LASD’s new Assistant Chief in charge of custody is scheduled to appear on Warren Olney’s Which Way LA? today Thursday. She is also expected to be interviewed by Patt Morrison for the LA Times in the next day or so.

Here’s the link to the Terri McDonald interview.

CA CONSERVATIVE LAWMAKERS INTRODUCED THEIR PACKET OF REALIGNMENT BILLS ON TUESDAY

The threatened cluster of counter-Realignment bills were introduced into committee on Tuesday. The idea of increasing penalties for those who take off or disable their GPS bracelets (introduced by Sen. Ted Lieu) is one that we think has merit, if written correctly.

As for the rest….we’ll be keeping an eye on them. Public hysteria plus shoddy reporting, like we have too often seen on this topic, usually makes for bad laws.

Don Thompson of the AP has more details on this story.

AND SPEAKING OF LEGISLATION….CONGRESSMAN BOBBY SCOTT WILL BE INTRODUCING THE YOUTH PROMISE ACT TODAY, THURSDAY

We’ve been fans of the Youth Promise Act for a long time. But although it has, in the past, gathered lots of sponsors, it has not gotten very far in terms of passage. But times are changing. Here’s some info on the bill from Scott’s site:

Under the Youth PROMISE (Prison Reduction through Opportunities, Mentoring, Intervention, Support, and Education) Act (H.R. 2721), communities facing the greatest youth gang and crime challenges will be able to develop a comprehensive response to youth violence through a coordinated prevention and intervention response. Representatives from local law enforcement, the school system, court services, social services, health and mental health providers, foster care providers, other community and faith-based organizations will form a council to develop a comprehensive plan for implementing evidence-based prevention and intervention strategies. The plans can be funded up to four years. The act also enhances state and local law enforcement efforts regarding youth and gang violence.

Nothing in the Youth PROMISE Act eliminates any of the current tough on crime laws, and while it is understood that law enforcement will still continue to enforce those laws, research tells us that no matter how tough we are on the people we prosecute today, unless we are addressing the underlying root causes of criminal activity, nothing will change.

Aside from reducing crime and providing better results in the lives of our youth, many of the programs funded under the Youth PROMISE Act will save more money than they cost. The State of Pennsylvania implemented a process very similar to the one provided for in the Youth PROMISE Act in 100 communities across the state. The state found that it saved, on average, $5 for every $1 spent during the study period…

RICHARD WALDON AND OPERATION USA: THE “CHARITY BUCCANEER” STILL RIDES AFTER 35 YEARS

In Wednesday’s LA Times, Patt Morrison interviews Richard Waldon, the LA guy who, as the founder of Operation USA, has managed for 35 years to bring medicines, food and other aid to areas of the world deeply in need—sometimes when others could not or would not venture in.

International relief work is a little outside WLA’s normal story area But I’ve known Richard for all of those 35 years and, as a reporter and friend, was on a couple of Op USA’s earliest wild adventures in aid bringing.

Richard’s the real deal, and I thought you might enjoy the interview as a change of pace, (Be sure to read the whole story. Otherwise you’ll miss such excellent tidbits as how Richard uses the latest issue of Playboy Magazine as a rarely-fails bribe to get past certain roadblocks in certain countries.)

Here are some clips:

Almost on impulse, almost 35 years ago, Richard M. Walden and a friend rounded up six tons of relief supplies and a jet to ferry them to Vietnamese boat people in Malaysia. Thus was Operation California — now Operation USA — born. A Times headline soon called him the “charity buccaneer,” a red-tape-slashing contrarian who fretted about the “international web of neglect,” and who still has sharp words for relief efforts unmet and relief agencies that don’t measure up. He has steadfast celebrity supporters, like Julie Andrews, but the advent of social media that let anyone text a few bucks to Lady Gaga’s favorite charity in the middle of a concert has made things harder for brick-and-mortar charities like Operation USA. Walden soldiers on, boldly going where too many charity-come-latelies can only try to go.

[SNIP]

What sort of dangers in general do you face?

We were not far from Abbottabad, Pakistan. We had an ambulance to evacuate women in complicated labor from the frontier to Islamabad hospitals. It went up with no English-language markings [but] it got stopped, trashed and burned. They didn’t harm the lady in labor and the driver, but that kind of stuff goes on.

How does Operation USA work?

In most cases we look for partners, from U.N. agencies to small, in-country NGOs.

One of our all-time bests is in Jacmel, Haiti, where for $1 million we built a public primary school which has 1,000 kids, no fees, and is a center of community activities, with free architecture from L.A.-based Gensler, money from Honeywell Corp.’s foundation and quake-proofing engineering from Sacramento-based Miyamoto; 100% Haitian-built. Another is a seniors center in Ofunato, Japan, for abandoned seniors in a small port mostly destroyed by the quake. [Again] free architecture, free engineering, free land, all from Japanese partners with money from Honeywell’s foundation.

We [ran] the first U.S. aid to Cambodia after the war, the first to Vietnam, to Ethiopia [in 1984]. Operation USA predates nearly all the major entertainment industry-driven causes by years. In 1980 we had a two-hour prime-time special on the Cambodian famine which featured Julie Andrews, Frank Sinatra, Michael Jackson, Jane Fonda and others.

I can’t say we are still unique, only that we were often the “only Indians in a cowboy town….”

DECADE OLD STRIP & CAVITY SEARCHES IN SF JAIL MAY GARNER COUNTY PAYOUT OF $450,000

Thirteen male and female plaintiffs appear about to receive $450,000 from San Francisco County for being subjected to strip and body cavity searches after being arrested on minor charges more than ten years ago.

The settlement, that has been recommended by the SF City Attorney, is interesting in light of the fact that, last spring the U.S. Supreme Courted ruled in a 5-4 decision that strip searches in the nation’s jails were perfectly constitutional, even absent any kind of probable cause.

However, in the case of the 13 San Francisco plaintiffs, there was some kind of cavity searche—either “visual” or…the more invasive kind—in addition to the strip search, hence the settlement offer.

When I spoke to an LASD spokesman, Sgt. Pena, he confirmed that, yes, strip searches in LA County Jail are indeed standard operating procedure, regardless of why one has landed in lock-up. But real cavity searches require the okay of a judge, just as one would need for a search warrant.

KCBS San Francisco also reports on the upcoming settlement.

STAR WITNESS FOR PRO-PROP 8 IN CALIFORNIA COURT NOW WANTS A GAY-STRAIGHT COALITION TO STRENGTHEN MARRIAGE (OKAY. THAT WORKS.)

Mark Oppenheimer has the story in Wednesday’s New York Times. Here’s a clip:

David Blankenhorn, a traditional-marriage advocate and star witness in the Proposition 8 trial in California in 2010, shocked his allies with an Op-Ed article in The New York Times last June announcing that he was quitting the fight against same-sex marriage. “Instead of fighting gay marriage,” Mr. Blankenhorn wrote, “I’d like to help build new coalitions bringing together gays who want to strengthen marriage with straight people who want to do the same.”

He is about to find out how much support such a coalition can get.

On Thursday, Mr. Blankenhorn’s research group, the Institute for American Values in New York, plans to issue “A Call for a New Conversation on Marriage,” a tract renouncing the culture war that he was once part of, in favor of a different pro-marriage agenda. The proposed conversation will try to bring together gay men and lesbians who want to strengthen marriage with heterosexuals who want to do the same.

The document is signed by 74 well-known activists, writers and scholars, on the left and the right, including the conservative John Podhoretz, editor of Commentary magazine; John Corvino, a gay philosopher; Robert N. Bellah, a sociologist; Caitlin Flanagan, a social critic; and Glenn C. Loury, an economist — once conservative, now less so.

“While the nation’s attention is riveted by a debate about whether a small proportion of our fellow citizens (gays and lesbians) should be allowed to marry,” the statement reads, “marriage is rapidly dividing along class lines, splitting the country that it used to unite.”

IMMIGRATION REFORM AND THE PROBLEM OF MISINFORMATION

Marcos Breton at the Sacramento Bee speaks rather plainly about the fact that much of the split among Americans on immigration reform has mostly to do with misinformation.

Here’s a clip:

As President Barack Obama gave the most important speech on immigration reform in years on Tuesday, it became clear that his greatest foe is not the Republican Party on this terribly divisive issue.

It’s misinformation.

There is so much we think we know about immigration that is wrong. Some don’t want to know the real truth or seem addicted to having little brown people to blame for all of America’s woes.

What’s more American than one group dumping on another?

For most of my 50 years, the punching bags of choice have been people with roots in Mexico…

There is a lot of news that is worth your attention this week: a significant new report with implications about California’s probationers and parolees...some action on LA County probation’s use of solitary confinement for kids…additional LASD news….and more. But we’ll get to those issues tomorrow, and in coming days.

Today we are pausing to focus on Monday’s inauguration as it relates to a couple of the social justice topics that we discuss here at WitnessLA.

With that in mind, here are some stories, essays, and op eds that attempt to decode the import of the president’s speech, specifically, and the inauguration, in general:

(Here’s the text of Obama’s inaugural address, in case you need it for reference.)

AMERICA’S MOST IMPORTANT GAY RIGHTS SPEECH?

Well, Richard Socarides of the New Yorker thinks so, and makes his case.

Here’s a clip from his essay:

No one anticipated it, but President Barack Obama used the occasion of his second Inaugural Address to give what was perhaps the most important gay-rights speech in American history. Inaugural Addresses are, by their definition, important and defining occasions, when Presidents set the tone and direction for the coming four years. President Obama used the occasion to make the first direct reference to gay-rights in an Inaugural Address, and he did so with a power and forthrightness we have not heard before, even from him.

About two-thirds of the way into the speech, Obama referred to Stonewall, a gay bar where, in 1969, a police raid provoked a riot, in the same sentence as Seneca Falls and Selma—thus comparing the women’s and African-American civil-rights movements to the gay-rights struggle. Had he stopped there, it would have been historic—particularly coming from the first African-American President—but, in keeping with the tradition of politicians who refer to gay-rights obliquely or with code words, stopping short of directness.

But the President continued:

Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law—for if we are truly created equal, then surely the love we commit to one another must be equal as well.

Not only was this a call to end discrimination, but an unambiguous argument for the recognition of same-sex marriage across the country. For a President who announced his support for marriage equality less than a year ago, after more reluctance (and suggestions about what could be left to the states) than many would have liked, this was a bold declaration….

THE DIFFERENCE FOUR YEARS MAKES

NY Times columnist, Frank Bruni, comments on the difference between Obama’s first inauguration and Monday’s when it comes to gay rights. Here’s a clip:

Seneca Falls, Selma, Stonewall. The alliteration of that litany made it seem obvious and inevitable, a bit of poetry just there for the taking. Just waiting to happen.

But it has waited a long time. And President Obama’s use of it in his speech on Monday — his grouping of those three places and moments in one grand and musical sentence — was bold and beautiful and something to hear. It spoke volumes about the progress that gay Americans have made over the four years between his first inauguration and this one, his second. It also spoke volumes about the progress that continues to elude us.

“We, the people, declare today that the most evident of truths — that all of us are created equal — is the star that guides us still, just as it guided our forebears through Seneca Falls and Selma and Stonewall,” the president said, taking a rapt country on a riveting trip to key theaters in the struggle for liberty and justice for all.

Seneca Falls is a New York town where, in 1848, the women’s suffrage movement gathered momentum. Selma is an Alabama city where, in 1965, marchers amassed, blood was shed and the Rev. Dr. Martin Luther King Jr. stood his ground against the unconscionable oppression of black Americans.

And Stonewall? This was the surprise inclusion, separating Obama’s oratory and presidency from his predecessors’ diction and deeds. It alludes to a gay bar in Manhattan that, in 1969, was raided by police, who subjected patrons to a bullying they knew too well. After the raid came riots, and after the riots came a more determined quest by L.G.B.T. Americans for the dignity they had long been denied.

The causes of gay Americans and black Americans haven’t always existed in perfect harmony, and that context is critical for appreciating Obama’s reference to Stonewall alongside Selma. Blacks have sometimes questioned gays’ use of “civil rights” to describe their own movement, and have noted that the historical experiences of the two groups aren’t at all identical. Obama moved beyond that, focusing on the shared aspirations of all minorities. It was a big-hearted, deliberate, compelling decision.

He went on, seconds later, to explicitly mention “gay” Americans, saying a word never before uttered in inaugural remarks. What shocked me most about that was how un-shocking it was.

OKAY, THAT’S ALL VERY NICE, BUT DOES IT SIGNAL A CONCRETE POLICY SHIFT THAT WILL RESULT IN ACTION?

In this LA Times Op Ed, Ken Dilanian and David G. Savage of the paper’s Washington Bureau, discuss the possible policy shifts the speech suggests—particularly when it comes to the stand the administration may or may not take with regard to the gay rights matters coming soon before the Supreme Court. Here’s a clip from their story:

“….Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law,” he continued, “for if we are truly created equal, then surely the love we commit to one another must be equal as well.”

The passage “was definitely one of those moments that took your breath away,” said Adam DeRosa, president of the Lesbian and Gay Band Assn., whose 215 members later marched past the president in the inaugural parade. “We understand the historical significance of it. What political significance it has remains to be seen.”

Obama, who only last spring hesitated to declare his public support for gay marriage, soon will have to decide whether his administration will take the potentially huge step of arguing before the Supreme Court that gay marriage is an equal right under the Constitution.

The court will soon review two cases, one of them involving California’s Proposition 8, the ballot measure that limited marriage to unions between a man and a woman. Gay rights lawyers have asked the Supreme Court to declare the ballot measure unconstitutional, potentially striking down the laws of 41 states.

To several legal scholars, Obama’s equating of Selma and Stonewall strongly implied he is prepared to side with gay rights activists. But doing so would mark a sudden departure from the caution with which he has typically approached most issues….

[SNIP]

Theodore Olson, the former George W. Bush administration solicitor general and lawyer for the gay couples challenging Proposition 8, said the president sounded ready to back a constitutional right to gay marriage.

“I was very gratified to hear the president state in clear and unambiguous language that our gay and lesbian citizens must be treated equally under the law,” Olson said, “and that their loving relationships must be treated equally as well. That can only mean one thing: equality under the Constitution.”

Evan Wolfson, president and founder of New York-based Freedom to Marry, noted in an interview that Obama’s speech “was an inaugural address, not a legal brief, and we will see over the next several weeks exactly what positions the Justice Department takes.”

“I am confident the president knows that the Constitution requires equality in the freedom to marry,” he added…

AND, WHILE ON THE SUBJECT OF ACTION, WHAT’S WITH THE PREZ’S INACTION ON CLEMENCY?

“We do not believe that in this country, freedom is reserved for the lucky, or happiness for the few.”

Doug Berman over at Sentencing, Law and Policy wants to know if Obama’s clemency record will match his inaugural rhetoric.

Here’s a clip:

Blogging four years ago during the last day in which a US President took the oath of office, I commented in this post about the tendency of chief executives to invoke great rhetoric and wax poetic about freedom and liberty in America despite our country’s recent record of locking up a record number of persons in jails and prisons. I also asked in this follow-up post on the same day whether it was too early to start demanding President Obama use his clemency power to live up to our country’s traditional commitment to personal freedom and liberty.

Sadly, as P.S. Ruckman effectively documents and highlights in this new post, President Obama’s first-term record on the clemency front is at once disgraceful and disgusting:

Barack Obama’s first term has come to an end and we are now ready to report that his four-years as president represent the least merciful term for any modern president (Democrat or Republican) and, quite possibly, the least merciful in the entire history of the United States (see footnote below).

This is, of course, an incredible distinction for a president who repeatedly notes that America is a place where people get “second chances,” from a president who complained bitterly about overly-harsh sentences given to criminal defendants simply because they were African-American, and from a president who promised us “hope and change.”

AND TWO MORE OPINIONS ON WHETHER OR NOT THE RHETORIC WILL TRANSLATE INTO ACTION

The Atlantic’s James Fallows points out that, in addition to the significance of the paragraphs in the president’s speech on gay rights, gender equality, et al, the other significant section is the one that comes earlier in the speech, and contains this:

“For history tells us that while these truths may be self-evident, they’ve never been self-executing; that while freedom is a gift from God, it must be secured by His people here on Earth. The patriots of 1776 did not fight to replace the tyranny of a king with the privileges of a few or the rule of a mob. They gave to us a republic, a government of, and by, and for the people, entrusting each generation to keep safe our founding creed.”

In other words, for whatever it is worth, POTUS intends the speech as more than rhetorical; it is a specific call to action.

Fallows says he has ” no illusion, delusion, allusion, or even dog-whistle conceptions that this speech will change the partisan power-balance affecting passage of anything Obama mentioned, from climate legislation to reforming immigration law.”

And yet, Fallows’ colleague Ta-Nehisi Coates suggests in his reflections on the speech:

Obama’s speech is different. To some extent it exposes people to new ideas. But to a greater extent, perhaps, it shows how movements which only a few years ago were thought to be on the run have, in at least one major party, carried the day. This is not a small thing.

For details, one presumes we should stay tuned for the State of the Union address in February.

AND NOW….back to our regularly scheduled programming

PS: While Beyonce and the others were wonderful to see and hear at the inauguration, for me it was that lovely, unnamed soprano who—along with the Brooklyn Tabernacle Choir surrounding her—truly blew the doors off the joint.

Now that we know that the US Supreme Court will, indeed, consider the issue of California’s Proposition 8 (along with the Defense of Marriage Act case, the United States v. Windsor), the handicapping has begun as to what the Supremes might decide and why.

With Prop 8 the justices have at least three possible choices:

1. They could elect to reverse the 9th Circuit’s ruling that Prop. 8 is unconstitutional and, in so doing, outlaw same sex marriage in California by letting Prop 8 stand.

2. Alterately, there is the best case scenario: the court could find that Prop 8 violates the U.S. Constitution. And that’s the ball game; same sex marriage will be legal throughout the nation.

3. There is, however, a third option, a sort of trap door that lets SCOTUS out having to make one of the two blanket decisions on constitutionality. With option 3, they could reach in and rule, not on the issue, but on whether the Prop 8 defenders have the “standing” to have appealed the lower court ruling that declared Prop 8 unconstitutional. If the Supremes go for option 3, then wedding bells may ring in California, without affecting the rest of the nation one way or the other.

One of the more upbeat essays analyzing the various possibilities is this op ed in the Sunday LA Times by Harvard Law prof, Michael Klarman, in which Klarman basically says that the most likely options are #2 and #3, that even the most conservative justices can see the way the wind is blowing culturally in the U.S., and they’re not likely to want to have to explain in 10 years to their grandchildren why they voted on the resoundingly wrong side of history. Thus, if they’re not ready to open the doors to marriage rights, nationwide, they’ll kick it back to the states.

Here’s how he ends it:

….Many state legislators have explained their votes in favor of gay marriage on the ground that they wanted to be on the right side of history and to have their children be proud when reflecting on their parent’s legislative record. Judges authoring opinions in support of gay marriage have frequently invoked examples of courts being on the right side of history. Chief Justice Margaret Marshall, the author of Massachusetts’ pioneering gay-marriage ruling, has compared it to that court’s 1790s ruling that barred slavery under the very same constitutional provision. Similarly, the California Supreme Court’s decision in favor of gay marriage proudly invoked its landmark 1948 ruling that invalidated a state ban on interracial marriage.

In 1954, the court’s ruling in Brown vs. Board of Education, which invalidated racial segregation in public schools, split the nation in half. Within two decades, however, it had become iconic. A high court ruling in favor of marriage equality would similarly divide the nation in 2013. Yet, given how quickly public opinion is evolving, within a decade or so such a decision would probably also be almost universally applauded. What justice would not be tempted to author the opinion that within a few short years likely would become known as the Brown vs. Board of Education of the gay rights movement?

However, Adam Liptak is not nearly as chipper in his outlook in Monday’s New York Times.

Here’s a clip:

…The cautious move for the justices would have been to hear just one of the cases they were asked to consider, the one posing the relatively modest question of whether the federal government can discriminate against same-sex couples married in the places that allow such unions.

But the court went big on Friday, also taking the case from California filed by Theodore B. Olson and David Boies. Their case seeks to establish a constitutional right to same-sex marriage in the remaining states, almost all of which have laws or constitutional provisions prohibiting it.

“We are now literally within months,” Mr. Boies said Friday, “of getting a final resolution of this case that began three and a half years ago.”

The speed with which the court is moving has some gay rights advocates bracing for a split decision. The court could strike down the federal law, the Defense of Marriage Act, saying that the meaning of marriage is a matter for the states to decide. At the same time, it could reject the idea that the Constitution requires states to allow same-sex marriage, saying that the meaning of marriage is a matter for the states to decide.

That may be why supporters of traditional marriage sounded pretty cheerful on Friday.

“I’m ecstatic,” said Brian S. Brown, the president of the National Organization for Marriage. “Taking both cases at the same time exposes the hypocrisy on the other side.”

It is entirely possible, then, that the votes to grant review in the California case came from the court’s more conservative justices. They may have calculated that they had a shot at capturing the decisive vote of the member of the court at its ideological center, Justice Anthony M. Kennedy, at least in the California case.

AND WHILE WE’RE ON THE TOPIC, HERE ARE the coolest photos of the first wave of same sex couples getting married in Washington.

CHICAGO IS THE FALSE CONFESSION CAPITAL OF THE NATION: 60 MINUTES SHOWS SOME OF THOSE WHO WERE PRESSURED TO FALSELY CONFESS

60 Minutes has an excellent and disturbing story about the prevalence of false confessions, particularly in Chicago, and about two groups of teenagers, now adults, who were pushed into confessing to murders they didn’t commit.

Here’s a clip from the transcript:

Why would anyone confess to a crime they did not commit? It happens so often in Chicago, defense attorneys call the city the false confession capital of the United States. Chicago has twice as many documented false confession cases as any city in the country. One reason may be the way police go about questioning suspects. And 60 Minutes has learned the Chicago Police Department is now the subject of a Justice Department investigation into its interrogation practices.

Two cases we examined involve several teenage boys who were arrested and they say forced or tricked into confessing to violent crimes they never committed. Each spent nearly half their lives in prison. They are free now, and told us their story together for the first time.

Terrill Swift: We all of us got one thing in common. We did an extensive amount of time in jail for something we didn’t do. And that’s the bottom line.

They each would serve sentences that ranged from 15 years to life. Terrill Swift, Michael Saunders, Vincent Thames, and Harold Richardson were convicted in one rape and murder. James Harden, Robert Taylor and Jonathan Barr, in a different one. All were found guilty based solely on confessions.

YELLOWSTONE’S MOST FAMOUS WOLF IS KILLED BY HUNTERS

The latest instance of a tagged and monitored wolf that are part of Yellowstone’s wolf study program being killed makes clear that some better system needs to be designed that protects these wolves during hunting season.

The New York Times’ Nate Schweber has the story about the shooting of 826F—popularly known as ’06, the rock star female wolf.

Yellowstone National Park’s best-known wolf, beloved by many tourists and valued by scientists who tracked its movements, was shot and killed on Thursday outside the park’s boundaries, Wyoming wildlife officials reported.

The wolf, known as 832F to researchers, was the alpha female of the park’s highly visible Lamar Canyon pack and had become so well known that some wildlife watchers referred to her as a “rock star.” The animal had been a tourist favorite for most of the past six years.

The wolf was fitted with a $4,000 collar with GPS tracking technology, which is being returned, said Daniel Stahler, a project director for Yellowstone’s wolf program. Based on data from the wolf’s collar, researchers knew that her pack rarely ventured outside the park, and then only for brief periods, Dr. Stahler said.

This year’s hunting season in the northern Rockies has been especially controversial because of the high numbers of popular wolves and wolves fitted with research collars that have been killed just outside Yellowstone in Idaho, Montana and Wyoming….

Photographer Jimmy Jones has photos of ’06 here.

A lot of people have good stories on SCOTUS’s Friday pleasantly amazing decision to hear both the Edie Windsor DOMA case and…..the big one, Prop 8. However, I recommend the following (in no particular order):

David Savage of the LA Times for a good California-centric take

Adam Liptak of the NY Times for the overview.

Lyle Denniston at SCOTUSblog, for the wonky take.

And then the smart emotional take belongs to Emily Bazelon at Slate, whose story is titled “The Civil Rights Case of Our Generation: The Supreme Court has agreed to consider the constitutionality of gay marriage. This is going to be big.”

Yep.

LA TIMES SAYS BACA OWES US A BETTER EXPLANATION ABOUT HIS JAILING OF IMMIGRANTS

Thursday’s LA Times has an unsigned editorial (likely written by the very smart Sandra Hernandez) that holds Sheriff Lee Baca’s feet to the metaphorical fire on the issue of jailing immigrants with ICE holds reportedly longer than the law—or the feds—require.

Here’s a clip (but you really need to read the whole thing):

Los Angeles County Sheriff Lee Baca is once again confronting questions about problems in the nation’s largest jail system. The latest allegations center on whether deputies in his department routinely denied bail to people arrested for minor offenses — even after they were ordered released by a judge — solely because of pending immigration investigations.

The sheriff’s office denies that such a policy exists, although it acknowledges that the department holds immigrants under a federal immigration enforcement program known as Secure Communities. Baca says that program requires him to hold someone suspected of being in the country illegally, if called upon to do so by federal immigration officials, while the arrestee’s immigration status is confirmed.

But Secure Communities only allows the sheriff to hold people for up to 48 hours; it does not provide him with a free pass to ignore individuals’ constitutional right to due process or grant him the authority to deny immigrants bail after the 48-hour clock has run out….

Read on, because there’s lots more—including the $26 mil per anum to do this excessive jailing in our already overcrowded system.

COULD FELONS TIP THE ELECTION? (IT’S NOT IMPOSSIBLE.)

Obama and Romney are reaching out to the many specialized constituencies some of which could, under the right circumstances, push things one way or the other, especially in battle ground states. But, in this close race, there is one constituency that, according to Reuters, may amount to as much as 10 percent of likely voters. And yet its a demographic that both parties have kinda….well…avoided.

Of course, men and women with felony records are defined by many other aspects of their lives and selves than the simple fact of a felony conviction.

Still Thomas Ferraro writing for Reuters has a bunch of interesting points.

Here’s a big clip from the story:

Felons could account for up to 10 percent of the roughly 130 million Americans expected to vote in the November 6 election, more than enough to affect the razor-thin margins that could determine the outcome.

But as in years past, neither Democrats nor Republicans are doing much to reach out to them.

“Criminals are not a popular constituency,” says James Hamm, 64, who spent 17 years in prison in Arizona for a drug-related homicide and now heads an inmate advocacy group with his wife, a retired judge. “Politicians don’t want to say, ‘Hey, I have the backing of people who committed crimes.’”

Still, both presidential campaigns have reason to be attentive to the estimated 13.4 million felons who are eligible to vote.

Felons traditionally vote Democratic, says Christopher Uggen, a University of Minnesota sociologist, who co-authored a 2006 book, “Locked Out: Felony Disenfranchisement and American Democracy.”

Ferraro says that the Obama camp has quietly reached out to felons in that swing state of all swing states, Ohio, where there are an estimated 784,0000 felons, only around 52,000 of them in prison thus prohibited from voting. However, he offers no additional details about this reported outreach so it’s difficult to know what exactly we’re talking about here.

And yet, it bears noting that in 1976, Jimmy Carter took Ohio from Gerald Ford by just 11,116 votes….so….

BAD SCIENCE AND BAD CRIMINAL CASE EVIDENCE

The Crime Report’s Graham Cates interviews David Harris, author of “Failed Evidence: Why Law Enforcement Resists Science

Both book and interview are worth our attention. Here’s a clip:

strong>On March 11, 2004, powerful bombs set by terrorists on four Madrid commuter trains killed 191 people and wounded 1,800. Two months later, the Federal Bureau of Investigation (FBI) arrested Brandon Mayfield, an Oregon lawyer, after fingerprints found on a bag near the explosion site allegedly matched his.

Mayfield had not been to Spain. Nor had he been outside the U.S. for over a decade. But the FBI kept insisting the fingerprints were a “100 percent match”—until Spanish police tied another suspect to the fingerprints. And even after Mayfield was released two weeks later, the FBI continued to insist that their fingerprint-matching process was infallible.

It was a costly mistake. Mayfield eventually received a $2 million settlement from the U.S. government. But to David A. Harris, it also was—or should have been—a teachable moment. Harris, a professor of law at the University of Pittsburgh, believes the FBI’s insistence on the accuracy of their analysis, even when the evidence failed to bear it out, reflects a law enforcement culture that relies too much on quasi-scientific forensic evidence—even while it resists the application of genuine advances in science-based investigative techniques…

Read on.