LASD Captain Kelley Frazer (see above video) is scheduled to be promoted to the position of commander and will be working under Assistant Sheriff Terri McDonald, the recently recruited head of the Los Angeles Sheriff’s Department’s Custody Division.

Frazer is an openly lesbian officer.

To take the promotion, Frazer will leave her post as the highly-regarded head of the LASD’s West Hollywood station, which she has led since April 2010.

When Frazer was promoted to captain and given charge of WeHo she was, at that time, the first openly gay person in department history to serve as an LASD branch commander.

Prior to WeHo, Frazer worked for the department’s Emergency Operations Bureau, and at Carson, Lennox and Temple stations, among other postings.

So what do her troops think of her?

“She’s Amazing!” said watch commander Lt. William Nash, when I called West Hollywood to get a reading. “It’s really bitter-sweet for us. We’re happy for her, and we know she deserves this opportunity but….she will be missed. She’s a great person. Ask anyone here.”

According to Nash, Fraser “cares for everyone in her command,” really looks out for their well being, and knows how to get the best out of people. “But she’s also a tough as nails as a cop,” said Nash. “She wants to make sure we’re on top of our jobs. She wants us to be safe, but she wants this community to be safe. And she really wants to get the bad guys off the street.”

West Hollywood Mayor, Jeff Prang, told the WeHo News that,”That an out member of the LGBT community now is in the highest ranks of the sheriff’s department is really good for West Hollywood and it’s good for LGBT people.”

Indeed. And with any luck Frazer will be good for the LASD Custody Division.

PREDICTING WRONGFUL CONVICTIONS

In a fascinating new study, the National institue for Justice looked at 460 erroneous convictions and “near misses,” in which “factually innocent” defendants were released or acquitted post-indictment, and found that there were 10 factors that were most most often led to a wrongful conviction. We’ve long known the elements that most often went wrong in a wrongful conviction (mistaken or coerced eyewitness testimony, false confessions, perjured informant testimony, etc.) but the study concluded that it was incorrect to call those factors “causes.”

Causes, they found, were different. So what elements, if they appear in combination, are most likely to cause a wrongful conviction? Here are the ten factors they found:

*A younger defendant
*A criminal history
*A weak prosecution case
*Prosecution withheld evidence
*Lying by a non-eyewitness
*Unintentional witness misidentification
*Misinterpreting forensic evidence at trial
*A weak defense
*Defendant offered a family witness
*A “punitive” state culture

Anyway, to find out more, here’s the 410-page study itself. (Scroll to the executive summery.) And here’s a quickie look at the study’s contents at The Crime Report.

THE RIDICULOUS MATTER OF THE SHOT-UP-AND-NEARLY-KILLED NEWSPAPER WOMEN, THEIR LAPD-PROMISED REPLACEMENT TRUCK…AND THE HOT POTATO OF TAXES (!!!)

Surely someone at the LAPD can find a way to cut through this idiotic tax-related impasse… But, evidently so far, they haven’t.

The Huffington Post’s Anna Almendrala has the story. Here’s a clip:

Accusations are flying over the Los Angeles Police Department’s bungled effort to replace a bullet-ridden pickup truck that belonged to two women who were mistaken for fugitive Christopher Dorner one horrifying morning.

Margie Carranza, 47, and her mother, Emma Hernandez, 71, were delivering newspapers in Torrance, Calif., during the early hours of Feb. 7 when members of the LAPD mistook their blue Toyota Tacoma for Dorner’s getaway car, a gray Nissan Titan pickup. Officers fired 102 bullets into Carranza’s truck. While Carranza was injured by the shattered glass, Hernandez was shot in the back.

Two days after the almost-deadly case of mistaken identity, LAPD Chief Charlie Beck visited the victims’ homes to apologize, and the department publicly promised to give them a new pickup truck by the next week.

Now, more than a month after the shooting, the police still haven’t replaced Carranza’s truck. A prominent car dealership owner and a lawyer representing the two women are pointing fingers about whose fault it is….

Read on.

YOUNG UNDOCUMENTED “DREAMERS” WANT TO KNOW WHY THEY DON’T CAN’T HAVE ACCESS TO AFFORDABLE HEALTHCARE SINCE THEY ARE, THEY SAY, FOR THE MOMENT ANYWAY, LEGAL

The video above was just released by the The California Endowment, in partnership with a group of undocumented youth in Southern and Central California. It kicked off the Endowment’s new #Health4All campaign, “an effort to drive a dialog about providing a health care solution for the remaining uninsured.”

This earlier story by Drew Joseph for the San Francisco Chronicle explains the issue from the Dreamers’ perspective. Here’s a clip:

California’s young immigrants who have been granted reprieves to stay in the country stand to gain little from the federal health reform law that the state Legislature is working to implement.

The Affordable Care Act excludes illegal immigrants from accessing the law’s benefits, but some immigrant and health advocates are angry that the young people known as Dreamers have been left out, saying the policy contradicts the law’s intent of expanding coverage to more people.

“It really defeats what the goals of the ACA were to begin with,” said Sonal Ambegaokar, health policy attorney at the National Immigration Law Center….

Read the rest (and watch the video!)

KIDS’ BRAIN DEVELOPMENT AFFECTED BY ENVIRONMENT

Socioeconomic status plays a role in the development of certain parts of kids’ brains associated with memory, learning, and stress response, according to a Columbia University report.

Youth Today’s James Swift has the story. Here’s a clip:

According to the study, researchers observed a correlation between the education and income level of parents and the development of several areas of their children’s brains – in particular, the areas vital to stress reception, learning and memorization.

“Socioeconomic disparities in childhood are associated with remarkable differences in cognitive and socio-emotional development during a time when dramatic changes are occurring in the brain,” the report states.
Using a broad base of subjects, from families that lived at the poverty threshold to families that made more than $100,000 annually, researchers found that the hippocampi – the portion of the brain essential in memorization and learning functions – of children living with parents with higher incomes had a larger “volume” than those in subjects raised by parents with lower incomes. Similarly, researchers found that the amygdalae – the portion of the brain that processes stress – of children living with parents with more educational experiences had lower “volumes” than those in children raised by parents with less educational experiences.

The report, which is behind a pay wall, seems to focus on family income and parents’ education levels. The larger picture, however, points to the fact that children in poorer families with lower education levels are faced with more trauma than their more affluent counterparts.

In a phenomenal September episode of This American Life, host Ira Glass looks at, among other things, the relationship between brain development and education. About a third of the way through the show, Glass introduces SF pediatrician Nadine Burke Harris, who explains why early childhood trauma stunts cognitive growth. Here’s his introduction to Burke’s work:

It’s well-documented that poor children do worse on tests and worse in school than better-off ones. This is the so-called achievement gap.

What this new science seems to indicate is that what is holding these children back is not poverty. It’s not the lack of money or resources in their homes. It’s stress. If you grew up in a poor household, it is more likely to be a household the just stresses you out in ways that kids in better-off homes are not stressed out. And that stress prevents you from developing these non-cognitive skills.

Be sure to listen to the whole thing—it’s important and we’ll definitely be coming back to these issues.

PRETRIAL PROGRAMS WORK FOR SF

Pretrial release programs are seeing success in the Bay Area, with a reported 97% of San Francisco participants showing up to their court dates. Because of the developed pretrial programs, SF boasts jail populations far below capacity, unlike…you know…LA. Advocates say the release of qualified defendants awaiting trial would ease CA jail overcrowding, save taxpayer dollars, and allow nonviolent detainees to continue providing for their families while they wait.

The SF Chronicle’s Marisa Lagos has the story. Here’s a clip:

Advocates, including the American Civil Liberties Union and some Democratic lawmakers, say the programs promote both public safety and justice by using scientific evaluations to help judges decide whether it is safe to release a defendant before they go to trial. The current bail system, they say, favors wealth and strands low-income people behind bars because they cannot afford bail amounts. They also argue that a defendant who gets out of jail is less likely to accept a plea deal and has a better chance of an acquittal or a shorter sentence if they go to trial.

Opponents, including the bail bond industry and some law enforcement and victims rights groups, say defendants pose a lesser flight risk when they have put up money for a bail bond and that pretrial programs pose a risk to public safety, because they do not focus on the crime a person is charged with.

Under the programs, nonviolent defendants who qualify for pretrial release are either freed on their own recognizance – that is, only a promise to appear, though often there are restrictions on their behavior – or placed on supervised release, which can range from mandated group therapy to probation-like check-ins or electronic monitoring.

In San Francisco, for example, someone placed on supervised release may have to go to an anger management group once a week until the case is adjudicated and will have a case manager checking in to make sure that person appears in court.

Supporters believe the programs help counties better manage overcrowded jails. Jail populations in some counties have increased since Gov. Jerry Brown’s realignment program started a year ago. Under the program, judges sentence some offenders to jails who in the past would have gone to state prisons.

But while some counties have overcrowded jails, San Francisco has been able to keep its jail population well below capacity for years, officials say, in part because of its 15-year-old pretrial release program.

“Last year, we released about 1,300 (pretrial defendants). … Our cases are predicated on public safety, and by and large, our folks are indigent,” said Will Leong, director of the city’s Pretrial Diversion Project, who said that as many as 97 percent of participants show up for their court date. “If they could afford to bail out, they do so before we can get to them.”

PRISON MEDICAL PROFESSIONALS’ SALARY CONTROVERSY

A 2001 class-action lawsuit (Plata v. Schwarzenegger) against the State of California over the ghastly quality of medical care in the state’s 33 prisons resulted in California’s prison health care system being handed over to a federal receiver in 2005 after the court found that things were SO bad that they violated the Eighth Amendment of the U.S. Constitution (cruel and unusual punishment). But nothing is ever simple. And so it appears one of the unintended consequences was that the receiver’s unchecked power to set medical staff’s pay grades and make hiring decisions seems have sent him off the rails. The average salary of CA prison doctors last year was nearly $379,000, with the highest salary paid to a Salinas psychiatrist to the tune of over $800,000.

ABC News has the AP story. Here’s how it opens:

A doctor at California Medical Facility was paid more than $410,000 last year, while a registered nurse at High Desert State Prison made nearly $236,000 — more than twice the statewide average in both cases.

A pharmacist at Corcoran State Prison was paid more than $196,000, nearly double what is typical across the state.

Compensation for medical providers has soared in the prison system since a federal judge seized control of inmate health care in 2006 and appointed an overseer with the power to hire and set pay levels.

As the official begins to wind down his oversight, the medical hiring and salary increases have helped lead to an improvement in inmate care, but it has increased the bill for taxpayers too.

It has also led to criticism that the official — called a receiver — provided a “Cadillac” level of care for convicted felons. A state review found that only Texas pays its state prison doctors more that California.

“The problem that we had is that the receiver was not accountable to anybody,” said former state Sen. George Runner, a Republican who has frequently criticized the program.

“So the receiver could just do or choose to spend whatever amount of money he thought was necessary to solve his problem, and unfortunately now the state is stuck with that,” he said.

The receiver for medical care, J. Clark Kelso, said the state has been free to collectively bargain health care providers’ salaries since a court order increasing their wages expired three years ago.

The receiver’s goal was to correct a prison medical system that was ruled unconstitutional for its substandard care and, at one point, contributed to an inmate death each week through negligence or malfeasance.

To do that, the receivership increased salaries, created new positions at high pay and hired hundreds of employees to fill longtime vacancies.

Total spending on medical, dental and mental health care for inmates, numbering 124,700, has more than doubled over the last decade, from $1.1 billion in fiscal year 2003-04 to a projected $2.3 billion this year.

INCLUDE FAMILIES IN JUVENILE JUSTICE PROCESS, SAYS REPORT

Justice for Families released a report Monday analyzing the areas in which the juvenile justice system lets kids down by not actively involving families in each step of their contact with the justice system. It also lays out a “Blueprint for Youth Justice Transformation” with solutions to specific problems within the system, including the lack of parental involvement.

The Juvenile Justice Information Exchange’s Kaukab Jhumra Smith has more info on the report. Here’s how it opens:

Every day, nearly 50,000 children are forced to spend the night away from their families because of their involvement in the juvenile justice system, according to a new report.

It’s not as if these youth have no one to care for them. Families of young detainees care deeply about their children, but often feel helpless when their children get into trouble — especially in the face of high adult incarceration rates, zero-tolerance school policies and reduced social services, which can make it difficult for families to offer support. Add to this a juvenile court system that practically shuts out family members from receiving or offering input, and the feelings of frustration and helplessness multiply.

These are the findings of Families Unlocking Futures: Solutions to the Crisis in Juvenile Justice, a report released Monday that offers a blueprint for reforms that involve family members at every step when a child gets into trouble, whether at school or in the juvenile justice system. It’s based on the belief that timely and appropriate intervention, with the help of families, can prevent the inexorable march for some children from school to juvenile court, and ease their transition from detention back into society.

Such detention doesn’t just take an economic and mental toll on detainees and their families; it also affects taxpayers and state budgets. Each day a youth spent in a juvenile facility cost taxpayers $241 in 2007, the report finds. Multiplied by 64,558 youth, states across the county spent a total of $5.7 billion for detention that year.

Family members surveyed for the report said they frequently felt ignored at proceedings in juvenile courts, overlooked by probation staff and shut out of their children’s lives in correctional facilities, even when it was time for their children to be released.

REPORT SAYS INVOLVEMENT IN HIGH SCHOOL SPORTS PROGRAMS MEANS LOWER SUSPENSION AND SERIOUS CRIME RATES

High schools that have high participation rates in sports programs see fewer suspensions and major crimes on campus, according to a recent report from the University of Michigan. (WitnessLA previously posted on a similar planned study to evaluate the effect of sports programs on kids in juvie detention facilities like Camp Kilpatrick.)

Here’s a clip from U-M’s article on the report:

The research includes violent behavior and attempted rape among major crimes, and suspensions involving five or more days out of school.

“Sport participation opportunities within a school might operate to slow down or stop more major forms of delinquency within a school environment from occurring,” said Philip Veliz, a postdoctoral fellow at the U-M Substance Abuse Research Center and the study’s lead author.

He co-wrote the research with Sohaila Shakib, an associate professor of sociology at California State University-Dominguez Hills.

The suspension rates also were reduced in schools with more sports participation opportunities, but this could be related to violent crimes being more likely to result in a long-term suspension, Veliz said.

The study can be found in full (but, unfortunately, behind a pay wall) in the current issue of Sociological Spectrum.

THE SIGNIFICANCE OF THE AFFORDABLE CARE ACT FOR THE CORRECTIONS SYSTEM

A new report from the Sentencing Project details how the Affordable Care Act could impact corrections and public safety. Here’s a clip:

Expanded Health Care Coverage — The Affordable Care Act gives states the option of expanding Medicaid eligibility and makes prevention, early intervention, and treatment of mental health problems and substance use essential health benefits. In states that opt to expand Medicaid coverage, the Federal government will cover 100% of expenditures for the newly eligible population from 2014 to 2016, with the amount of federal funds decreasing yearly to 90% by 2020 and thereafter.

Reducing Recidivism — Because of the role mental health and substance abuse problems play in behaviors that lead to incarceration and recidivism, the Affordable Care Act could help states reduce the number of people cycling through the criminal justice system.

Addressing Racial Disparities – The new legislation may contribute to reducing racial disparities in incarceration that arise from disparate access to treatment.

WHICH WAY LA? ON THE JAILS COMMISSION

Celeste appeared on Warren Olney’s Which Way LA? Monday night, along with Miriam Krinsky, Executive Director of the Los Angeles Citizens Commission on Jail Violence, to discuss Friday’s jails commission meeting and the commission investigators’ findings thus far. (Celeste’s story on the Friday hearing can be found here.)

SHOULD DEFENDANTS WITH FETAL ALCOHOL SYNDROME BE SAFE FROM DEATH PENALTY?

Fetal Alcohol Syndrome is a defect caused in utero that impairs brain activity in ways similar to mental retardation. As of 2002, it is considered cruel and unusual punishment to sentence a mentally retarded defendant to death row. Now, there are many cases seeking to exclude the death penalty for defendants suffering from FAS. Mark Anthony Soliz, one such defendant–convicted in March of killing a grandmother in her home–has started his appeals process.

The Star-Telegram’s Dianna Hunt has the story. Here’s a clip:

Soliz’s appeal of his capital murder conviction in the death of a Godley grandmother has joined a growing list of cases nationwide seeking to exclude the death penalty for defendants with fetal alcohol syndrome, a form of brain damage caused by maternal alcohol abuse.

Experts say the death penalty should be off the table in such cases, just as the U.S. Supreme Court has abolished the death penalty for defendants with mental retardation.

Prosecutors and victims advocates, however, say it’s a guise for going easy on killers who show no such mercy to their victims.

[SNIP]

…In a groundbreaking decision in the Atkins case in 2002, the Supreme Court held that executing a person who is mentally retarded violates the Eighth Amendment‘s prohibition against cruel and unusual punishment.

The deficiencies associated with mental retardation, the court concluded, reduce a person’s culpability in the crime.

Experts say the same rules should apply to people with fetal alcohol syndrome.

Those people have the same diminished capacities as those with mental retardation, they say, even though their IQs may test somewhat higher than the 70-75 range typically used to define mental retardation.

“The damage to the executive functioning of the brain is as severe as someone who is intellectually disabled,” said John Niland, director of the Capital Trial Project with the Texas Defender Service, a nonprofit law firm in Houston and Austin that also provides training and consultation for attorneys in death penalty cases. “I don’t think we’ve been aware of it long enough to identify all of the cases.”

CA’S “ANTI-ARIZONA” IMMIGRATION BILL TO CUT TIES WITH ICE

California’s TRUST Act–also called the “Anti-Arizona” bill–passed CA senate late last week. If signed into law, law enforcement officers would no longer be allowed to send immigrants to ICE (for deportation) unless they had committed a violent crime or a felony.

Time’s Amy Friedman has the story. Here’s how it opens:

California is taking a stand on immigration – and it doesn’t exactly jive with a recent ruling by the Supreme Court on the issue. Last week, the California State Senate passed the TRUST Act, a move that is in direct contrast to the high court decision upholding a controversial provision of Arizona’s anti-illegal immigration law requiring police to check the status of people they stop for another reason, if they suspect the person is undocumented. This new bill, also being called the “Anti-Arizona” bill, would lower the number of deportations in the wake of the commission of minor crimes. The TRUST Act will now go to the California state assembly and will most likely pass.

The law would mean that, contrary to what goes on now, evidence of against an immigrant could only be passed on to federal officials after a violent or serious felony. Currently, getting pulled over for merely pausing at a stop sign could mean your fingerprints get sent straight to the feds.

DRUG DOG WITH SUB-PAR SUCCESS RATE RAISES QUESTIONS ABOUT PROBABLE CAUSE

A Pittsburgh man is facing drug charges after a drug-sniffing dog alerted officers to his vehicle. His attorneys say that due to the dog’s shoddy 26% accuracy rate, there was no probable cause for the vehicle search. This is a serious issue, but also an irresistible story.

The Examiner’s Christine Funk has the story. Here’s a clip:

Herbert Green is facing cocaine charges after a drug dog alerted on Mr. Green’s vehicle. However, the dog’s alert track record is worse than the flip of a coin. Attorneys for Mr. Green argued that because the dog had a track record of 85 alerts but only 22 discoveries of drugs, the alert lacked probable cause for law enforcement to search the vehicle.

Judge Glen Conrad conceded the dog “may not be a model of canine accuracy,” but also took into consideration the dog’s training, as well as his “flawless performance” on re-certification tests. One might reasonably wonder about the nature and quality of the re-certification tests, if a dog can be “flawless” on the tests, but have only a 26% accuracy rate in the field.

AMAZING.

In a 5-4 vote, the Supreme Court has upheld the entire Affordable Health Care Act, with Chief Justice Roberts, not Kennedy, voting to save the AHCA.

SCOTUSBLOG is live blogging a deconstruction of the ruling. I’ve excerpted the best of it below.

SCOTUSBLOG: “The bottom line: the entire ACA is upheld, with the exception that the federal government’s power to terminate states’ Medicaid funds is narrowly read.”

Lyle Denniston: The key comment on salvaging the Medicaid expansion is this (from Roberts): “Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.” (p. 55)

Lyle: In opening his statement in dissent, Justice Kennedy says: “In our view, the entire Act before us is invalid in its entirety.”

Amy Howe: In Plain English: The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn’t comply with the new requirements, rather than all of their funding.

EDITOR’S NOTE: From here on out for purposes of discussion, the ACA is the acronym for Patient Protection and Affordable Care Act — the health care bill, also known as Obamacare.

HERE’S A LINK TO THE ACTUAL OPINION.

OKAY, BACK TO SCOTUSBLOG

10:50 a.m. – Lyle: Essentially, a majority of the Court has accepted the Administration’s backup argument that, as Roberts put it, “the mandate can be regarded as establishing a condition — not owning health insurance — that triggers a tax — the required payment to IRS.” Actually, this was the Administration’s second backup argument: first argument was Commerce Clause, second was Necessary and Proper Clause, and third was as a tax. The third argument won.

10:52: Lyle: The rejection of the Commerce Clause and Nec. and Proper Clause should be understood as a major blow to Congress’s authority to pass social welfare laws. Using the tax code — especially in the current political environment — to promote social welfare is going to be a very chancy proposition.

10:59: Amy Howe: By the way, the opinions collectively are a monster. The Chief’s opinion is 59 pages, Justice Ginsburg’s opinion is 61 pages, the four dissenters are 65 pages, followed by a short two-pager from Justice Thomas. You do the math.

11:00 – Amy Howe: Yes, a commenter notes that the Chief Justice’s opinion starts with a mini-civics lesson — definitely an awareness that this is one for the ages. Reminded me of his opinion in Snyder v. Phelps, the funeral protesters’ case last Term.

11:01 – Amy Howe: From the beginning of the Chief’s opinion: “We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.”

11:04 – Tom Goldstein: Here is the money quote on the fifth vote to hold that the mandate is not justified under the Commerce Clause (recognizing that doesn’t matter because there were five votes under the Tax Power): “The power to regulate commerce presupposes the existence of commercial activity to be regulated.” That will not affect a lot of statutes going forward.

11:12 Tom: Lyle is working on his initial post now. He will be adding to it but here’s the first paragraph: Salvaging the idea that Congress did have the power to try to expand health care to virtually all Americans, the Supreme Court on Monday upheld the constitutionality of the crucial – and most controversial — feature of the Affordable Care Act. By a vote of 5-4, however, the Court did not sustain it as a command for Americans to buy insurance, but as a tax if they don’t. That is the way Chief Justice John G. Roberts, Jr., was willing to vote for it, and his view prevailed. The other Justices split 4-4, with four wanting to uphold it as a mandate, and four opposed to it in any form.

FULL LYLE DENNISTON POST:

Don’t call it a mandate — it’s a tax

Salvaging the idea that Congress did have the power to try to expand health care to virtually all Americans, the Supreme Court on Monday upheld the constitutionality of the crucial – and most controversial — feature of the Affordable Care Act. By a vote of 5-4, however, the Court did not sustain it as a command for Americans to buy insurance, but as a tax if they don’t. That is the way Chief Justice John G. Roberts, Jr., was willing to vote for it, and his view prevailed. The other Justices split 4-4, with four wanting to uphold it as a mandate, and four opposed to it in any form.

Since President Obama signed the new law, it has been understood by almost everyone that the expansion of health care coverage to tens of millions of Americans without it could work — economically — only if the health insurance companies were guaranteed a large pool of customers. The mandate to buy health insurance by 2014 was the method Congress chose to supply that pool. It is not immediately clear whether the Court’s approach will produce as large a pool of new customers. The ACA’s key provision now amounts to an invitation to buy insurance, rather than an order to do so, with a not-very-big tax penalty for going without.

The decision to keep at least some foundation under the expanded coverage will lead almost certainly to renewed efforts by Republicans in Congress to repeal all or most of the new law. And, of course, the Court’s decision is guaranteed to become a very prominent fixture of debate in this year’s continuing presidential and congressional elections.

MORE TAKES:

John Cushman at the New York Times writes, “The decision was a striking victory for the president and Congressional Democrats…”

Josh Levs at CNN has an article entitled “What the health care ruling means to you”

Amy Davison at the New Yorker.

Matthew Yglesias at Slate discusses the Court’s Medicaid decision.

AS ADAM LIPTAK of the NY Times wrote back in March:

“Chief Justice Roberts is just 57, and he will probably lead the Supreme Court for an additional two decades or more. But clashes like the one over the health care law come around only a few times in a century, and he may well complete his service without encountering another case posing such fundamental questions about the structure of American government.”

NOTE: I wasn’t watching TV, but evidently both CNN and Fox got the news wrong and initially reported that the Supreme Court had “gutted” the president’s main provision. (It terms of the state of American mass media reporting, this incident comments on itself. No need for anything extra.)

Adam Winkler from UCLA has just posted this on SCOTUSblog.

“With this deft ruling, Roberts avoided what was certain to be a cascade of criticism of the high court. No Supreme Court has struck down a president’s signature piece of legislation in over 75 years. Had Obamacare been voided, it would have inevitably led to charges of aggressive judicial activism. Roberts peered over the abyss and decided he didn’t want to go there.”

MORE LATER (Back to non-Supreme Court related life, for a while.)

Pre-scribbled photo is Justice Robert’s official photograph.

FINDING OUT WHAT HAPPENED

On Thursday at 10 a.m. eastern time, the Supreme Court will announce its ruling on the Obama Administration’s Health Care Initiative, known for better or for worse as Obamacare.

For those of you who don’t want to wait for the news on this ginormously important decision to be masticated and pre-digested by news persons who may or may not be informed enough to do so meaningfully, how can you find out on your own?

Easy. This man will tell you.

This is Lyle Denniston, the lead reporter at the utterly wonderful ScotusBlog. Denniston is 81 years old, and has been covering the Supreme Court for fifty-four years, and he really knows his sh… er…stuff. In those 44 years, Denniston has reported on one-quarter of all of the Justices ever to sit on the court. And, no, he’s not an attorney. But he does understand the law very, very well.

He’ll be inside the court and will get the decision when it comes down, then bounce it via SKYPE out to his colleagues at SCOTUSBLOG who will then LIVE BLOG their minute by minute deconstruction.

It will be tough for anyone else to beat Denniston and SCOTUSBLOG with the news.

SCOTUSBLOG has been live-blogging Supreme Court decision for the past few years, and they’ve got this routine down. However, under normal circumstances, they are just read by lawyers and few other crazy people like me. (I use them as a source all the time, and I see that Taylor has newly and happily discovered them.)

But this time, the mainstream media has discovered and will be watching them. In fact Ezra Klein at the Washington Post even did a little profile on Denniston, which you can find here..

THURSDAY 10 AM UPDATE: The SCOTUSBLOG people’s liveblogging is, I understand, getting 1000 comments per second, as of right now, and has more than a half million readers, as I type. It is also being carried by C-SPAN

OKAY, BUT WHAT DOES IT MEAN?
Immediately pundits everywhere will be opining about what the decision means.

Naturally, there is a lot of handicapping going on already.

Josh Gerstein at Politico has a handy list of win/lose scenarios for various players. Gerstein’s analysis is snappy enough for quick reading, but canny enough to be worth your time. Plus he goes beyond the obvious players to include which media types the various possible outcomes could affect.

Here’s a sample:

The insurance industry

Best case: The mandate is struck along with new requirements for insurers. Insurance companies could end up getting the best of both worlds — at least for a short time. Consumers will still get subsidies to help them buy insurance, which benefits the industry, and the insurers won’t have to live under the new rule that they accept all applicants, even the expensive ones.

Worst case: The mandate is struck by itself. The insurers would be in a tough spot if the mandate — which brings insurance companies loads of new customers — is rejected, but the costly requirement to insure everyone remains. Insurers and policymakers from both parties warn this scenario would create a “death spiral” in which premiums would spike as customers buy insurance only when they really need it.

Justice Antonin Scalia

Best case: The individual mandate falls.

Going into oral arguments, some liberals and administration officials thought they might be able to win Scalia’s vote to uphold the law. After all, in 2005, the justice regarded as the intellectual leader of the court’s conservative wing sided with the federal government and the court’s liberal justices in a dispute over the feds’ authority to ban at-home cultivation of marijuana — even in states that have sought to legalize medicinal use of pot.

But it didn’t take long for Scalia to dash liberals’ hopes. He mounted a withering attack on the health care law, questioning whether the feds could mandate purchase of broccoli and lamenting the length of the 2,700-page bill.

A decision to strike the mandate, even one written by Chief Justice John Roberts, would cement Scalia’s position as the star of the conservative legal firmament.

Worst case: The mandate is upheld.

No doubt Scalia will have a colorful and impassioned dissenting opinion, but on the losing side he’s far easier to dismiss as a crank.

He’s already been on a tear this week, delivering an angry dissent in the Arizona immigration case that led one commentator to say he sounded like “a right-wing talk radio host rather than a justice of the Supreme Court.”

AND SPEAKING OF SPECULATION…..

Slate’s Dahlia Lithwick’s Wednesday column mostly has to do with the fact that she’s reached her wits end and wants everyone to stop pretending that they know what will happen, when, in fact, they don’t.

Here’s a clip:

.…Finally, if I get one more email from someone predicting the outcome of tomorrow’s health care cases based on a judicial speech, the timing of a dissent, or the telling flare of a judicial eyebrow, I am going to set my Out of Office response to the “fleeting expletives” setting. Truly, nobody knows what’s going to happen, and the group hypnosis that convinced everyone that the mandate would be struck down on Monday—and is equally adamant that it will be upheld tomorrow—is starting to make me feel like a member of a very troubled cult. My friend Professor Barry Friedman at NYU* described it to me this way today: “Everyone keeps saying, ‘The longer this goes on, the more I’m thinking X will happen.’ But that’s nuts; the decision was always going to come down on the last day of the term. What we’re really seeing is our own anxiety about the case circling around in our heads.” I agree. The only thing that has changed since March is the calendar. Walter, have you any thoughts or predictions to offer? Tea leaves to read? My Out of Office response is standing by.

Q: AND SO WHAT DO CONSTITUTIONAL SCHOLARS EXPECT SCOTUS TO DO?

A: IT’S COMPLICATED

Last week Bloomberg surveyed 21 Constitutional scholars about the Individual Mandate section of the Affordable Health Care Act. (Well, actually, it seems that Bloomberg tried to survey more, but 21 answered their questions.)

Anyway, out of 21, 19 said that the public option-–the part of the law that would force people to buy health care if they were uninsured—was constitutional. However only 8 of those 19 expected that clause to be upheld by the majority of the Supreme Court Justices.

Here’s a clip of the Bloomberg story by Bob Drummand.

When you take the fact of a high-profile, enormously controversial and politically salient case — to have it decided by the narrowest majority with a party-line split looks very bad, it looks like the court is simply an arm of one political party,” University of Chicago Law Professor Dennis Hutchinson said in an interview.

Nine of the law professors said if the coverage mandate is invalidated the justices are likely or very likely to throw out several related provisions, such as requiring insurance companies to offer policies without regard to pre-existing medical conditions. Five respondents said the justices will leave those provisions in place; seven called it a toss-up.

By a large margin, 15 of the 21 professors predicted the Supreme Court won’t kill the entire law even if justices throw out the insurance mandate and related provisions. Only three said the rest of the statute is likely to be voided and three called it a toss-up.

Although several of the law professors thought it was a toss up whether the court would accept or reject the Individual mandate, only one thought it genuinely likely that the Supremes would uphold the whole thing.

Here is his reasoning:

“I continue to find it extremely unlikely that Justices Roberts and Kennedy will support a 5-4 decision that has such an insubstantial basis in 75 years of Supreme Court case law,” said Yale University Professor Bruce Ackerman, the only respondent who said the court is very likely to uphold the insurance-coverage requireme

KAMALA HARRIS WEIGHS IN

Last week I happened to go to an event that California Attorney General Kamala Harris also attended. I caught Harris as she was leaving the party, and I asked her how she thought the Supremes would rule on the Affordable Health Care Act. Harris surprised me and those listening by saying she had a feeling they would uphold it. After Bush v. Gore and Citizens United, the justices “know that people are losing faith in the court.”

And Roberts doesn’t want that as his legacy? I asked.

, “I don’t believe that he does,” she said.

Harris admitted that, like everyone else, she was reading tea leaves—although she didn’t use those words. “But I’ve got a good feeling,” Harris repeated.

Very shortly we’ll find out whose tea leaf reading was the right one.

by Taylor Walker

CHANGING THEIR MINDS ON THE DEATH PENALTY

Two champions of California’s original 1978 capital punishment initiative are now campaigning for a new initiative—this one to revoke the death penalty, substituting life without parole. It is expected to be on the state’s ballot this November. The NY Times’ Adam Nagourney has the story.

Here’s a clip:

…The campaign [for California's 1978 death penalty initiative] was run by Ron Briggs, today a farmer and Republican member of the El Dorado County Board of Supervisors. It was championed by his father, John V. Briggs, a state senator. And it was written by Donald J. Heller, a former prosecutor in the New York district attorney’s office who had moved to Sacramento.

Thirty-four years later, another initiative is going on the California ballot, this time to repeal the death penalty and replace it with mandatory life without parole. And two of its biggest advocates are Ron Briggs and Mr. Heller, who are trying to reverse what they have come to view as one of the biggest mistakes of their lives.

Partly, they changed their minds for moral reasons. But they also have a political argument to make.

Read the rest.

WHEN MENTALLY ILL PEOPLE REFUSE CARE…WHAT THEN?

Lee Romney of the LA Times tells of a new report from a state task force that calls for significant changes in California’s mental health laws, some of which are bound to be very controversial. Here’s a clip:

Tens of thousands of mentally ill people wind up each year in California jails and prisons, cycle in and out of overburdened hospital emergency rooms or die on the streets.

California’s pioneering Lanterman-Petris-Short Act, passed in 1967, gave legal rights to those who previously could have been locked up indefinitely and treated against their will. But the task force — made up of family members, mental health professionals, judges and public defenders — contends that the law has failed those unable or unwilling to seek help.

They are calling for sweeping changes that would allow the involuntary commitment of those deemed incapable of making treatment decisions, expand the use of conservatorships, lengthen involuntary hospital stays and standardize the checkerboard way the law has been applied from county to county.

[SNIP]

Furthermore, they note, jails, prisons and repeated brief hospital confinements end up delivering involuntary care regardless — at great cost.

“I’d go so far as to say that involuntary treatment has increased since implementation” of the act,said Randall Hagar, a task force member and director of government affairs for the California Psychiatric Assn.

Nearly 200,000 people in California get their outpatient services every year in a jail setting,” he said. “Something is really wrong with this picture.”

THE DAMAGE DONE BY THE DESIGNATION OF “DEFIANCE”

Reporting for the Huffington Post Christina Hoag looks at the excessive use of suspensions for the all-purpose term of “defiance” and what that means for minority students.

But speaking personally, the main reason I’ve not written about the issue is because every time I stare at Travon’s photo, rather than being inspired to post something wise and meaningful, I find that I am simply struck dumb with grief for his mother—and for his dad, and the rest of his family of course too. But I am a mother of a son, so it is to Sybrina Fulton that my deepest sorrow goes.

If course, Trayvon is far from the only young person to die tragically and violently these past weeks. LA’s Youth Justice Coalition head, Kim McGill, tells me they’ve buried five of their own young members in the past two months. (I’ll have more on the five in the future.)

But some deaths get to you more than others; perhaps in that way they stand in for stand in for all the others. Travon Martin’s is one of those deaths.

Still, as much fearful empathy as I feel for Travon’s mother Sybrina, I do so with the understanding that there is one part of her experience that I cannot adequately feel into, at least not in the bone-deep way that many other American parents, sadly, can.

That difference has to do with the fear described in this story by Jesse Washington writing for the Associated Press. It is titled “Trayvon Martin, my son, and the Black Male Code,” and I’ve excerpted it below. But I urge you to read the whole thing.

I thought my son would be much older before I had to tell him about the Black Male Code. He’s only 12, still sleeping with stuffed animals, still afraid of the dark. But after the Trayvon Martin tragedy, I needed to explain to my child that soon people might be afraid of him.

We were in the car on the way to school when a story about Martin came on the radio. “The guy who killed him should get arrested. The dead guy was unarmed!” my son said after hearing that neighborhood watch captain George Zimmerman had claimed self-defense in the shooting in Sanford, Fla.

We listened to the rest of the story, describing how Zimmerman had spotted Martin, who was 17, walking home from the store on a rainy night, the hood of his sweatshirt pulled over his head. When it was over, I turned off the radio and told my son about the rules he needs to follow to avoid becoming another Trayvon Martin — a black male who Zimmerman assumed was “suspicious” and “up to no good.”

As I explained it, the Code goes like this:

Always pay close attention to your surroundings, son, especially if you are in an affluent neighborhood where black folks are few. Understand that even though you are not a criminal, some people might assume you are, especially if you are wearing certain clothes.

Read the rest. It’s worth it.

WHY DID THE MAINSTREAM MEDIA TAKE SO LONG TO BEGIN REPORTING ON THE TRAYVON MARTIN STORY?

Howard Kurtz asked that question on CNN on Sunday, and opened it for a round-table discussion you can read here.

I can’t say that the discussion is brilliant or even all that insightful, frankly, but listening in may stimulate your own thinking. (Really, I think Jon Stewart had the right take when he said of another big story that the media has two settings: blackout….and circus.

In truth, I think, the better question is what made the mainstream media finally snap awake. I credit Trayvon’s parents who refused to let the injustice of their son’s death go unnoticed and, together with supporters, were able to frame a clear narrative around the shooting of their son, together with a good picture, that gradually got the press’s attention—and has kept it. In a similar way, Kelly Thomas’s father in Fullerton exhibited the same well-focused determination, in which he was clear about what the story needed to be, and managed to keep it in the news rather than letting it be reported on once or twice and then vanish without a trace. As a result, Jim Thomas may get some kind of justice for his son.

Moreover, the rest of us should be grateful that Trayvon’s parents did not let their son’s death go unrecognized. As a consequence, out of their sorrow we are being shoved into having another round of the national conversion about race that we very much need to continue to have, but too often avoid.

AND SPEAKING OF THAT CONVERSATION….

Here’s Marion Wright Edelman (pictured above) president of the Children’s Defense Fund, with her own thoughts about Trayvon Martin, what his death should signify.

Here’s a clip:

….Just as sadly, Trayvon’s death was not unique. In 2008 and 2009, 2,582 black children and teens were killed by gunfire. Black children and teens were only 15 percent of the child population, but 45 percent of the 5,740 child and teen gun deaths in those two years. Black males 15 to 19 years-old were eight times as likely as white males to be gun homicide victims. The outcry over Trayvon’s death is absolutely right and just. We need the same sense of outrage over every one of these child deaths…

Photo by AP, for the Children’s Defense Fund

THE SUPREME COURT HEALTH CARE ARGUMENT: “ITS NOT ABOUT THE LAW, STUPID

This coming Monday, the Supreme Court will start hearing arguments regarding the Affordable Health Care Act—AKA Obamacare.

Dalia Lithwick of Slate, who has the advantage of being wickedly smart, gives the most intriguing analysis of what to expect from the justices that I’ve read yet.

Below is a clip from the essay, but if this case interests you at all, read the whole thing, as it is guaranteed to stimulate your thinking.

The first proposition is that the health care law is constitutional. The second is that the court could strike it down anyway. Linda Greenhouse makes the first point more eloquently than I can. That the law is constitutional is best illustrated by the fact that—until recently—the Obama administration expended almost no energy defending it. Back when the bill passed Nancy Pelosi famously reacted to questions about its constitutionality with the words, “Are you serious?” And the fact that the Obama administration rushed the case to the Supreme Court in an election year is all the evidence you need to understand that they remain confident in their prospects. The law is a completely valid exercise of Congress’ Commerce Clause power, and all the conservative longing for the good old days of the pre-New Deal courts won’t put us back in those days as if by magic. Nor does it amount to much of an argument.

So that brings us to the really interesting question: Will the Court’s five conservatives strike it down regardless? That’s what we’re really talking about next week and that has almost nothing to do with law and everything to do with optics, politics, and public opinion. That means that Justice Antonin Scalia’s opinion in the Raich medicinal marijuana case, and Chief Justice John Roberts’ and Anthony Kennedy’s opinions in Comstock only get us so far. Despite the fact that reading the entrails of those opinions suggest that they’d contribute to an easy fifth, sixth, and seventh vote to uphold the individual mandate as a legitimate exercise of Congressional power, the real question isn’t whether those Justices will be bound by 70 years of precedent or their own prior writings on federal power. The only question is whether they will ignore it all to deprive the Obama of one of his signature accomplishments.

Professor Randy Barnett, the intellectual power behind the entire health care challenge, wrote recently that Justice Scalia could break from his previous opinions—freeing him to strike down the Affordable Care Act—“without breaking a sweat.” I suspect that’s right.

If that’s true, we should stop fussing about old precedents. These old milestones of jurisprudence aren’t what will give Scalia pause. What matters is whether the five conservative justices are so intent in striking down Obama’shealthcare law that they would risk a chilly and divisive 5-4 dip back into the waters of Bush v. Gore and Citizens United.

Oddly enough that turns more on what we think about the case than what they think.

This clip is interesting, but read the whole column. Lithwick builds a thesis that deserved to read in its entirety.

AND WHILE WE’RE ON THE SUBJECT OF HEALTH CARE AND THE SUPREMES: CAMERAS IN THE COURT, DAMN IT!

Slate’s Andrew Cohen has a pleasingly cranky column on the issue. Here’s a clip:

Pardon me for being such a drag on the eve of the Supreme Court’s momentous health care arguments, but I respectfully dissent. There is something discordant here, something that just doesn’t feel right. While the legal and political elite gleefully plan their big week at the High Court, while members of the Washington establishment applaud themselves for their inside connections to the courtroom, the rest of the country will be left, as usual, in the dark. The contrast gives new meaning to the phrase “unequal justice.”

Starting next Monday, for three consecutive days, two hours a day, the justices will hear oral argument in three joined cases that are primed to determine the immediate fate of the Patient Protection and Affordable Care Act of 2010, the controversial new federal health care law. Together, the three cases (out of Florida) are the most closely watched Supreme Court cases since Bush v. Gore, for they have the potential to determine the outcome of the next presidential election and not just pick a winner in the last one.

AMAZINGLY, THE SUPREMES EXPAND THE RIGHTS OF THE ACCUSED IN THE PLEA BARGAIN PROCESS

This column by the NY Times’ Adam Liptak illustrates why Wednesday’s Supreme Court ruling that expands the rights of the accused when it comes to pleading out a case, is so important—and amazing, really, that the ruling favored the accused.

Here are clips from Liptak’s story:

Criminal defendants have a constitutional right to effective lawyers during plea negotiations, the Supreme Court ruled on Wednesday in a pair of 5-to-4 decisions that vastly expanded judges’ supervision of the criminal justice system.

The decisions mean that what used to be informal and unregulated deal making is now subject to new constraints when bad legal advice leads defendants to reject favorable plea offers.

“Criminal justice today is for the most part a system of pleas, not a system of trials,” Justice Anthony M. Kennedy wrote for the majority. “The right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining takes in securing convictions and determining sentences.”

{SNIP]

Scholars agreed about its significance.

“The Supreme Court’s decision in these two cases constitute the single greatest revolution in the criminal justice process since Gideon v. Wainwright provided indigents the right to counsel,” said Wesley M. Oliver, a law professor at Widener University, referring to the landmark 1963 decision.

[SNIP]

Some 97 percent of convictions in federal courts were the result of guilty pleas. In 2006, the last year for which data was available, the corresponding percentage in state courts was 94.

“In today’s criminal justice system,” Justice Kennedy wrote, “the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.”

Quoting from law review articles, Justice Kennedy wrote that plea bargaining “is not some adjunct to the criminal justice system; it is the criminal justice system.” He added that “longer sentences exist on the books largely for bargaining purposes.”