LAPD SAYS IT WILL HAVE SEPARATE AREA FOR TRANSGENDERED INMATES IN POLICE LOCK-UP

Last Thursday night, LAPD Chief Charlie Beck announced a newly crafted, and hearteningly enlightened policy toward transgender people—including a separate LAPD lock-up, the first in the nation. The new policy takes a hugely significant step in healing the problem-laced relationship between the transgender community and the criminal justice system in general.

(According to a study by UC Irvine commissioned by the Department of Corrections and Rehabilitation, nearly 60 percent of transgender inmates in California lock-ups reported being sexually assaulted by other inmates, a rate 13 times higher than for a random sample of the general inmate
population.)

The LA Times’ Sam Quinones has the story. Here’s how it opens.

Responding to incidents of violence against transgender arrestees, the Los Angeles Police Department plans to open a segregated lockup for biologically male and female suspects who identify themselves as members of the opposite sex, officials said.

By early May, a 24-bed transgender module will open at the LAPD women’s jail downtown, the first such police lockup in the nation, according to Capt. Dave Lindsay, the jail division commander.

“This is a major change,” Lindsay said. It will allow for “an environment that’s safe and secure, as there’s been a history of violence against transgender people.”

City jails are for holding people only until they are arraigned in court on the charges on which they were arrested, typically a maximum of three days; then they are transferred to the Los Angeles County Jail, run by the Sheriff’s Department. The county jail will not be affected by the changes.

Go, Chief Charlie. This is a very good thing.

HOWEVER, AFTER YOU READ THE TRANSGENDER STORY, READ THIS BY THE LAT’S JOEL RUBIN ABOUT HOW THE POLICE COMMISSION IS CRUCIALLY AT ODDS WITH PART OF BECK’S DISCIPLINE POLICY

SCOTUS WILL HEAR ARGUMENTS THAT THE FAIR SENTENCING ACT—REGARDING THE CRACK AND POWDER DISCREPANCY—SHOULD BE RETROACTIVE, AT LEAST IN PART

ON Tuesday the US Supreme Court will hear arguments regarding whether or not the Fair Sentencing Act of 2010 should be, in any way, retroactive If you’ll remember, the FSA is the law that (mostly) rectified the horrific 1-100 sentencing discrepancy between the prison terms handed down for powder cocaine sales convictions and sentences for convictions for crack sales. (The FSA changed the ratio to 1-20-ish.) The problem is that the new law implied —but did not implicitly say— that it would retroactively apply to crimes committed before the act was passed—but sentenced after the act was passed.

The twinned cases of Dorsey v. the United States, and Hill v. the United States are about that retroactivity issue.

Lyle Denniston over at SCOTUSBLOG has a very complete rundown of the finer points of the cases and the law. While he may be a little on the wordy side for non-wonks, his post is quite fascinating and informative if you take the time.

Here are some clips:

Blacks more often got punished for buying or selling the “crack” or “rock” variety of cocaine, which can be easily processed into a smoked version; conviction carried a much heavier prison sentence. Whites more often got punished for dealing in the “powder” or “blow” version, which can be snorted; conviction carried a far more lenient sentence.

[Snip]

For cocaine, that [1986 Anti-Drug Abuse] Act required judges to punish an individual convicted of a crack crime 100 times more severely than one convicted of trafficking in the powder form. In other words, every gram of crack was treated as the same, for punishment purposes, as 100 grams of powder.

[The Fair Sentencing Act] adopted a ratio that works out to about 18 to 1, crack to powder. A crime involving 28 grams of crack would draw a five-year minimum sentence, as would a crime with 500 grams of powder. A crack crime with 280 grams would be sentenced to ten years, as would a powder crime with 5000 grams. The Justice Department has explained the choice of 28 grams as the bottom amount of crack for sentencing on the premise that wholesale distribution of crack usually involves one-ounce quantities — that is, close to 28 grams.

Although only one lawyer will appear Tuesday for the two Illinoisians, the lawyers for each have filed their own merits brief. The brief for Corey Hill (whose lawyer will be arguing) put its main emphasis upon congressional intent in 2010: “Once Congress completed its historic overhaul of crack sentencing policy,” the brief said, Congress “wanted those amendments to apply immediately….The clear implication….was that the new mandatory minimums should take effect rapidly so that the Guidelines would have a model against which to ‘conform’ and be consistent.”

[Snip]

The Dorsey-Hill cases almost certainly will revive within the Court the long-running dispute over how to read federal statutes — to stay focused only on their language, or to look at legislative history, too. If the Court were to use the former approach, it would seem that the Court-appointed amicus has the better of the argument. The 1871 law is quite specific in requiring Congress, if it wants a new criminal law to have retroactive effect, to say so explicitly; Congress did not do that in 2010. But if the Court were to take the latter approach, there is much that went on during the process of passing the 2010 law that suggests that Congress did want retroactivity to the extent being advanced by the government and counsel for the two Illinois men — not least, the removal of the anti-retroactivity provision from the bill.

BALTIMORE POLICE ABOUT TO JOIN OTHER DEPARTMENTS WHO VIDEOTAPE INTERROGATIONS

The Baltimore PD, which is the 8th largest department in the nation, plans to begin videotaping interrogations in serious cases like shootings and murders. Criminal justice advocates across the country have been pushing for the move due to the now recognized prevalence of false confessions in innocence cases. Baltimore PD’s dithering—and their determination to make the change—is emblematic of similar policy shifts taking place in agencies all over the U.S.

Justin Fenton of the Baltimore Sun has the story. Here’s a clip:

The department, the eighth-largest in the country, recently began using video as part of a series of reforms of its sex-offense unit. Now officials are exploring equipment options and the policy impact of videotaping homicide and shooting interrogations. Detectives are being trained on subtleties such as where to stand and how their demeanor will play to a jury.

I’m committed to doing this, and I have a bunch of really smart guys working on getting this done,” said police Commissioner Frederick H. Bealefeld III, who has studied videotaping since he was chief of detectives. “But it’s not as simple as going to Radio Shack and bolting a camera into the wall.”

[SNIP]

Hundreds of jurisdictions across the country now videotape interrogations, and it is required by law in several states and the District of Columbia. The shift has been spurred by increasing affordability, as well as by questions of coercion and false confessions as DNA testing has led to the release of scores of inmates.

In Harford County, the sheriff’s department says it has long recorded interviews in major cases and recently got funding to add interrogation rooms to neighborhood precincts.

“It’s pretty much a standard for progressive law-enforcement agencies,” Sheriff L. Jesse Bane said. “People are finding out that the things Hollywood portrays really don’t take place.”

STRANGE, IMPRACTICAL MARRIAGE FOR LAPD? OR CONVENIENT HOOK-UP?

Mayor Antonio Villaraigosa is expected to propose a merger between the LAPD and the General Services’ Office of Public Safety cops in his budget, to be presented Friday. The rather curious melding of the officers who guard libraries and courthouses with the LAPD may be a cost-efficient way for Villaraigosa to uphold his promise to add 1,000 officers to the LAPD ranks by the end of his mayoral term—or not.

Here’s a clip from the Daily News’ Dakota Smith’s report:

As part of his budget being released Friday, Villaraigosa is proposing to shift the Department of General Services’ Office of Public Safety into the Los Angeles Police Department, according to City Council members familiar with the proposal.

Under the proposal, some or all of the city’s 250 security officers and sworn officers who guard the city’s parks, zoo, and City Hall would move under the command of the LAPD.

City budget chief Miguel Santana is expected to release a report on the costs, advantages, and risks of moving the department to the LAPD next week.

Additionally, the LAPD is doing its own feasibility study on absorbing the department.

“There’s a lot of homework to do before this can occur,” said City Councilman Dennis Zine, adding he has questions about the plan.

For instance, Zine said the OPS and LAPD officers have different salaries and pension plans.

In any case, at this point, it’s far from a done deal.

The L.A. Times also reported on the issue.

CAN AN UNDOCUMENTED IMMIGRANT WOULD-BE LAWYER GET ADMITTED TO THE FLORIDA BAR?

Rafael A. Olmeda of the Sun-Sentinel has the intriguing story. Here’s a clip:

Can an immigrant without a green card get a Florida Bar card?

Aspiring lawyer Jose Godinez-Samperio, 25, a Tampa-area resident, is hoping the answer is yes.

A native of Mexico who entered the United States legally with his parents 16 years ago on a tourist visa, Godinez-Samperio is a graduate of the Florida State University College of Law, the valedictorian of the Armwood High School class of 2004, an Eagle Scout — and an undocumented immigrant.

The Florida Board of Bar Examiners, which grants membership to the Bar, has asked the state Supreme Court to determine whether it can accept someone who is not in the country legally. The Supreme Court flagged the case as “high profile” last week.

Similar cases are pending in NY and California.

Original illustration by Scott McPherson

Since the news described in the following story broke, we have been bothered by the seemingly blithe disregard for the lives of those most affected, on the part of those who really ought to have known better. So we asked WitnessLA reporter David Lynn to look into the matter. This is what he found.

THE VERY PUBLIC OUTING OF THE MANHATTAN BEACH 18
by David Lynn

---

Devices known as pillory stocks have been used for centuries to shame public offenders by trapping their head and hands and forcing their body into a ninety-degree angle stoop. They were all the rage in colonial America, but at some point we got it together and decided enough was enough. Fret not, colonial enthusiasts – thanks to the Internet, the good old days are back.

After the Manhattan Beach Police Department wrapped up its sting investigation of a beach bathroom they say had recently become a popular sex den for gay men, eighteen men were arrested on charges which include soliciting or engaging in lewd conduct in a public place, loitering in and around a public toilet for the purpose of engaging or soliciting a lewd or unlawful act, utilizing a restroom peephole, invasion of privacy, resisting arrest and indecent exposure. All of the charges are misdemeanors.

Once the objects of the sting were safely booked, the Manhattan Beach PD thought it would be a swell idea to distribute the booking photos, names, birth dates, and cities of residence of the eighteen men arrested to media outlets. They did so in the form of a press release.

Upon receiving the release, a string of the news outlets dutifully posted, published and/or broadcast the 18 mugshots. The Daily Breeze was one of the first to post the photos and personal information to their website. The L.A. Weekly followed suit and later wrote, “We were a little surprised ourselves to receive said PDF from the Manhattan Beach Police Department….”

They may have been surprised, but they sure ran with it, taking the time to also post links to some of the suspects’ Twitter accounts, LinkdIn and Facebook profiles and, in the case of one suspect, his IMDB profile.

KTLA and NBC4 covered the story in their broadcasts, both of which featured footage of MBPD’s press release. The L.A. Times posted KTLA’s video to their website and the Huffington post did the same with NBC4’s coverage.

WitnessLA spoke to MBPD’s Press Information Officer, Stephanie Martin, and asked her what exactly the department was thinking in posting photos of the 18 men, one as young as 20-years old, none of whom have actually been convicted of anything.

“Whenever we issue a press release and we have access to mugshots and booking information at the time, we include it. Even in the case of misdemeanor crimes,” Martin said.

Well, did Officer Martin think the MBPD foresaw this press release gaining the amount of attention that it has?

“We anticipated that it was going to be a fairly large story since it was a significant arrest for us,” said Martin, “but really it’s just another arrest, another press release.”

There is no question that using public spaces for sex acts—straight or gay—is illegal. The offenders should have been arrested and given due process. But should they have been publicly shamed for it, especially without having the benefit of a conviction? By posting their names, faces and towns of residence online, the MBPD and their media collaborators effectively pilloried these men in a virtual town square. In the age of Google, even if some of the men are found to be innocent of any charges, they will never really be released.

WitnessLA contacted the Daily Breeze’s Assistant City Editor, Josh Grossberg for comment, since his paper was among the first to publish the information.

“We always run mugshots and booking information when it’s available. It’s not any different than anything else we’ve covered,” Grossberg said. “We also put up a picture of the mother who killed her family who was arrested for texting in her car while holding a baby on her lap.** We have a long record of doing this, it’s not the first time. If it’s an issue because they may be gay, then you’re asking us to exclude people based on their sexuality.”

Well, no, that’s not what we’re saying. The bathroom sting is not a high profile case where the public’s right to know demands immediate and detailed reporting. We are talking about men arrested for misdemeanor offenses, but misdemeanors that, in many circles still carry a daunting social stigma.

The day after the mugshots hit the news, The Los Angeles Gay and Lesbian Center issued a statement to that effect.

“The consequences of being ‘outed’ or perceived as gay in such a homophobic society are very real. The publication of these photos serves no purpose other than to embarrass them, and has the potential to destroy their lives,” said the center’s press release.

When we questioned the Center further, Communications Manager Stevie St. John told WitnessLA in an email that since the story broke, “…at least three of the men arrested have contacted the Center for counseling. From one of the callers, we learned that one of the 18 made a suicide attempt.”

WitnessLA spoke to attorney/journalist and law professor Henry Weinstein about the ethics of the matter. Weinstein, a former longtime staff member at the L.A. Times, is currently a professor of law at the University of California, Irvine.

“I would love to hear their rationale for why they chose to run those men distinct from other, more serious criminals. A lot of people are accused of crimes and most don’t have their pictures in the paper. Murderers, sure. But what about mortgage fraud or armed robbers?” When was the last time we saw them in the papers, Weinstein asked.

“It seems like a double standard to me, and a troubling one at that,” said Weinstein. “Society has made a lot of progress, but there are still places where there’s a stigma to being gay. If someone chooses to keep their sexual orientation a secret, they’re entitled to that privacy.”

One would think.

With the 43rd anniversary of the Stonewall Riots in Greenwich Village, an event which many credit as the start of the Gay Rights movement, only a few months away, it seems like a good time to take the pillory stocks out of the town square once and for all.

**CORRECTION: I have no idea how we garbled this quote so thoroughly. But, Daily Breeze editor Josh Grossberg has kindly given us the correct reference. WitnessLA strives to be extremely careful with the words of others entrusted to us. Thus we are grateful for the note informing us of our error.

by Taylor Walker

CAN MARRIED GAYS DIVORCE IN NON-GAY MARRIAGE STATES?

Washington Post’s Ellen McCarthy reported Monday

on a same-sex couple seeking divorce in Maryland, where gay marriage itself has not been legalized.

Here’s a clip:

The electronic board outside the courtroom identified the case as “No. 69, Jessica Port v. Virginia Anne Cowan.” That title is misleading. Port and Cowan are on the same side of this case: They both want to get divorced. But a Prince George’s County judge said they could not, reasoning that because same-sex marriage is not legal in the state, neither is same-sex divorce.

Now the highest court in Maryland will decide whether he was right, and whether the women will be required to maintain a bond they’ve tried for almost two years to sever. The case represents just one of the many blind spots in the legal infrastructure of same-sex marriage in America. Couples often have different rights when they cross jurisdictional lines and may not have the same status in the eyes of the federal government as they do in their home states. The laws are constantly evolving and election-year politics promise to heighten the already divisive passion surrounding the issue.

VISIONARY LEADER OR AUTOCRATIC BULLY? WHY DO THOSE WHO WORK WITH LAUSD’S SUPT. JOHN DEASY SEEM TO EITHER LOVE OR LOATH HIM?

The LA Times’ Teresa Watanabe and Howard Blume took a look at LAUSD Superintendent John Deasy’s aggressive methods for cleaning up the K-12 school system and the wildly divergent opinions of his efforts thus far.

Here’s a clip:

…Deasy is pushing to change the culture of a behemoth school system with 660,000 students on 743 campuses across 710 square miles of urban sprawl. Some see Deasy as a dynamic leader driven by a moral urgency to give all students a quality education. But others view him as a relentless taskmaster intolerant of dissent.

“Either you do what he wants or you’re gone,” said one senior administrator who, like most senior aides and top administrators contacted, asked for anonymity for fear of reprisals.

Antonia Hernandez, president of the California Community Foundation, is one of many civic leaders who believes Deasy should press harder to improve a district where just over half the students graduate on time and half are not proficient in reading and math.

“We all know what LAUSD has been doing in the past hasn’t worked,” she said. “He needs to be even more aggressive. People are hungry for leadership.”

Deasy admits he can be impatient and undiplomatic but otherwise makes no apologies for his style. He says he wants to find common ground with teachers and administrators; consensus is his preference rather than his priority.

THE NY TIMES ASKS WHY IN SOME STATES KIDS ARE STILL HOUSED WITH ADULTS IN ADULT PRISONS A NY Times Sunday Op Ed called on the DOJ to reform the juvenile justice system nationwide and eliminate the unethical placement of youth in adult facilities. An estimated 10,000 youths under 18 can be found in adult jails or prisons on any given day, according to federal statistics. As [32 members of Congress] pointed out, data from a 2005 study showed that youths made up only 1 percent of the inmates in jails and prisons, but 21 percent of the victims of sexual violence.

Numerous studies show that placing children in adult prisons leads to more suicide, victimization and recidivism, which is costly in both human and economic terms.

EDITOR’S NOTE; A RALLY FOR KENDRIC MCDADE WILL BE HELD TUES. 6 PM ON THE STEPS OF PASADENA CITY HALL

According the the email from the Youth Justice Coalition, the NAACP of Pasadena will be attending, so will the Pasadena Foothill ACLU, the League of Women Voters, the Pasadena Community Coalition, various religious leaders and a list of others.

EDITOR’S NOTE: Starting today, the very smart and talented Taylor Walker is helping me gather stories. Eventually Taylor will be doing a story-gathering and commentary section of her own. But right now, she’s helping me curate and write these multi-story posts. More about—and from—Taylor Walker soon.

NEARLY 50 PERCENT OF AMERICANS SAY THAT TOO MANY PEOPLE ARE IN PRISON & WE COULD LET 20 PERCENT OF ‘EM OUT….SAYS NEW PEW STUDY

The Pew Center on the States has the results of a new survey out that measures attitudes by Americans about who we should incarcerate and for how long.

Turns out that the majority of Americans think that there are “more effective, less expensive alternatives to prison for non-violent offenders and expanding those alternatives is the best way to reduce the crime rate.”

There’s lots more and it’s quite interesting. So check out the summary of the rest of the report here.

ANTONIO GOES LOOKING FOR GANG PREVENTION AND INTERVENTION $$ IN D.C.

The LA Times reports that mayor Antonio Villaraigosa was in Washington DC this week for a gang-violence reduction summit meeting with leaders from Boston, Chicago, Detroit, Memphis, San Jose and Salinas.

Sunday, he also met with Attorney General Eric Holder, to hit up Holder for some federal money to help to fund LA’s GRYD programs (Gang Reduction and Youth Development), These were the programs that were gathered under the mayor’s umbrella in 2007, and got up and running in 2009.

Last year, the combined prevention and intervention GRYD programs were budgeted at $26 million, made up of federal, state and local monies. Villaraigosa wants the feds to come across with a good chunk of those millions.

Hopefully he’ll get the money he/we need. I just wish that when the mayor made his pitch he didn’t have to try to attribute LA’s drop in gang crime to GRYD, since even his own evaluators from the Urban Institute say otherwise (namely since the parts of Los Angeles that aren’t served by GRYD have had exactly the same drop).

Yeah, yeah. Picky, I know.

ACLU ISSUES REPORT SHOWING HOW MANY POLICE DEPARTMENTS ARE TRACKING US THROUGH OUR CELL PHONES WITHOUT ANYTHING PESKY LIKE, SAY, A WARRANT

A huge pile of information gathered by the ACLU on law enforcement cell phone tracking protocols was released to the New York Times on Saturday. The report returned results that differed considerably between about 200 agencies that agreed to provide information about how they were using our cell phones to track us. Departments across the U.S. are grappling with the lack of concrete boundaries set in place for officers in regard to cell phone tracking. While some agencies state that they are only using tracking without a warrant in life-threatening situations (and sometimes it does save lives), others are using it when they damn please, including in California where state prosecutors advised local police departments on ways to get carriers to “clone” a phone and download text messages while it is turned off.

(About that text downloading function, unreasonable search and seizure anyone? Seriously, how in the world is that not a 4th Amendment violation?)

In order to get the information, 35 ACLU affiliates filed over 380 public records requests with state and local law enforcement agencies to ask about their policies, procedures and practices for tracking cell phones.

This is from the ACLU’s statement:

What we have learned is disturbing. While virtually all of the over 200 police departments that responded to our request said they track cell phones, only a tiny minority reported consistently obtaining a warrant and demonstrating probable cause to do so. While that result is of great concern, it also shows that a warrant requirement is a completely reasonable and workable policy.

They’ve got a point. And, given this recent SCOTUS decision, I think the SUPREMES may think so too.

LGBTQ BOX TO CHECK MAY SHOW UP IN CAL STATE COLLEGE APS…SO IS THIS A GOOD IDEA? BAD IDEA? MANY ARE NOT SURE

Within the next year, students may see optional sexual orientation check-boxes on their application forms for California state colleges. While the purpose may be to gauge the size of the LGBTQ community on campus, and thus offer better services, some fear it may be an invasion of privacy or that the information may be improperly used or wrongly divulged. The LA Times reports.

LAUSD PAID $40 GRAND TO SETTLE WITH MIRAMONTE TEACHER MARK BERNDT, BUT PUT BLOTCH ON RECORD OF INNOCENT MIRAMONTE TEACHERS. REALLY.

KPCC’S Tami Abdollah with Shirley Jahad broke the $40 K settlement story and the opening paragraph pretty much says it all:

The Los Angeles Unified School District agreed last June to pay about $40,000 to settle its dismissal case against former Miramonte Elementary teacher Mark Berndt, who has since been charged with 23 counts of lewd conduct, including spoon-feeding his semen to children.

It turns out that it doesn’t matter if Berndt is convicted of all 23 counts, he still gets his pension, health care benefits for the rest of his life, and presumably the 40 grand—according to his unbreakable union contract.

Read and/or listen to the whole thing.

Then in Friday’s LA Times, Howard Blume, Angel Jennings and Richard Winton, follow up on the Berndt settlement story, and take it farther by delving into the unbelievably careless way the non-semen spooning Miramonte teachers were treated.

Here’s one clip from their story, but there’s lots more:

“When teachers were told that they were being transferred, dozens of teachers were in tears,” union President Warren Fletcher said. “They are part of the fabric of this community.”

The union accepted the transfers, Fletcher said, on the understanding that the move was temporary and that no innocent teacher’s employment record would be marred. L.A. Unified, he said, broke both promises, by categorizing the teachers’ relocation as an administrative transfer. Such paperwork frequently results from a disciplinary action…..

WHO ARE LAPD’S RESERVE POLICE? AND ARE THE EFFECTIVE? SO-CAL CONNECTED TAKES A LOOK

Here’s So Cal Connected’s summary of the segment, which airs tonight, Friday:

They look the same, dress the same, get the same training and wear the same badge, but they’re not full-time cops, and they’re not even paid. Meet the members of the Los Angeles Police Department’s Reserve Corps, the regular citizens who back up the city’s 10,000 cops and whose numbers are on the rise.

AS CRIME RATES DROP, PRIVATE PRISONS ARE NO LONGER CASH COWS—UNLESS WE CAN LOCK UP MORE PEOPLE (WHICH—P.S.— IS NOT A GOOD SOLUTION)

Okay, did anyone really think that private prisons would not end up presenting weird and creepy conflicts of interest if crime went down and we started having more sensible sentencing laws?

Llewellyn Hinks-Jones for the Atlantic Monthly has the story.

Here’s a clip:

Over the last 30 years, Texas built over 90 prisons, quintupling the number of detention centers in the state and earning the title of highest state incarceration rate in the process.

As much as Texas ended up an outlier, it was by no means alone. All across the U.S. during the 1970s, ’80s and early ’90s, depressed villages and hamlets in need of an industry, from the Mississippi Delta to the Appalachian Coal Belt, signed up to build oversized detention facilities on the outskirts of town, surrounded by barbed wire and klieg lights, in the hopes of bolstering the local economy with taxes, jobs and associated retail.

But ever since the nation’s crime rate began leveling off in the late 1990s, with the total state prison population decreasing for the first time in 40 years, there haven’t been enough inmates to populate these new-found penitentiaries….

THE PROP 8 CHALLENGE: IS IT TOO EARLY?

David Cole, an expert in Constitutional law, has written an essay for the New York Review of Books about whether or not the Prop 8 challenge, that will now go to the Supreme Court (presuming that SCOTUS takes case), was premature.

There was much discussion of this issue when Ted Olson and David Boies first talked about taking on this case. Olson and Boies argued that this was exactly the right time.

In any case, Cole’s essay on the issue is worth reading. Here’s a clip:

…..gay rights organizations have stayed away from the federal court system. They have instead sought to obtain legal rights for same-sex couples state by state, going first through the legislatures and only thereafter through the courts; and even then, only in the state courts, relying on arguments based on state law that could not be reviewed by the Supreme Court. The strategy has proved quite successful. Since 2004, six states (Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, and New York) and the District of Columbia have recognized same-sex marriages. On February 8, Washington’s state legislature passed a bill that will make it the seventh such state once the governor signs it. Twelve more recognize some sort of partnership status that gives same-sex couples all or most of the benefits and obligations associated with marriage..

Yet many other states have moved in the opposite direction. By June 2011, 29 states had banned gay marriage by constitutional amendment, and another twelve by state statute. (Some states, like California, have both recognized same-sex civil unions and banned same-sex marriage.) In short, we are far from reaching any national consensus on the issue….

Photo by the AP

On Tuesday morning, there was mostly ebullience. However, by afternoon the significance of Tuesday’s Proposition 8 decision by the 9th Circuit was being examined from every angle.

The majority opinion for the 2 to 1 ruling was, after all, written by the most liberal justice on the most liberal appellate court in the nation. Yet it was a narrow opinion, a fact that has been criticized by some as not being the history-making ruling it could have been. Still others claim that the very narrowness of the opinion will make it easier for SCOTUS to back, should they agree to take the case next fall.

THE OVERVIEW

NPR’s Talk of the Nation has a great multi-part segment on the decision that gives a good overview.

SOME SAY THE 9TH COULD HAVE MADE HISTORY, BUT DIDN’T: WAS THE 9TH WISE OR GUTLESS?

Dahlia Lithwick at Slate is somewhat critical of the 9th Circuit for not making a more historic decision, but argues that it may be a smart one.

Here’s a clip:

It should come as no surprise to anyone that the (“liberal”) 9th Circuit Court of Appeals, led by the (“very liberal”) Stephen Reinhardt, struck down the state’s ban on gay marriage as unconstitutional. Prop 8, passed by referendum in November 2008, had already been thrashed to a pulp by a (“gay”) judge in August 2010, and when the federal appeals court heard the case in December 2010, it was manifestly clear that they were struggling to find some plausible rationale for a ban on gay marriage that made sense. And given that a lot of folks always thought the fix was in at the 9th Circuit, the real shocker today isn’t that a liberal panel delivered a liberal decision. Rather, what’s so surprising is that they delivered a far more moderate decision than anyone would have predicted.

Consider what a dismal job the proponents of Prop 8 did at trial in this case, proffering mediocre witnesses who proffered mediocre evidence that gay marriage would harm children and imperil heterosexual marriage. (Who can forget Prop 8’s star witness David Blankenhorn’s admission that he knew of no study that proved children reared by gay couples fared worse than those raised by heterosexual parents.) Then, recall the almost painfully meticulous findings of fact (80! 80 findings of fact!) produced by Judge Vaughn Walker to support his conclusion that Proposition 8 violated not just the constitutional promise of equal protection, but also a fundamental right to marry the partner of one’s choosing. Against this dramatic backdrop, today’s 2-1 decision is downright modest, corralling the ruling to apply only in California, and only because of the indignity of Prop 8, which “eliminated” a right that had already been granted same-sex couples. Confronted with massive constitutional questions, the majority wrote, “We need not and do not answer the broader question in this case, however, because California had already extended to committed same-sex couples both the incidents of marriage and the official designation of ‘marriage,’ and Proposition 8’s only effect was to take away that important and legally significant designation, while leaving in place all of its incidents.”

Today, the most liberal judges in the most liberal state on the most liberal appeals court had an opportunity to make history. Instead, they opted to do far less.

Read the rest though, because her analysis goes much farther.

AND FOR THOSE WANTING HANDICAPPING ABOUT HOW THIS RULING WILL FARE IN THE FUTURE WHEN IT COMES TO SCOTUS…..

60 Minutes legal analyst, Andrew Cohen, who also writes for the Atlantic, points to all the ways that Tuesday’s ruling was carefully tailored to address the legal sensibilities of Anthony Kennedy, who will almost certainly be the Supreme Court’s swing vote on the matter, should they decide to take the case.

Here’s a clip:

The only serious question, in the 552 days between the trial court’s ruling and today, was how far the 9th Circuit would travel, doctrinally, in declaring Prop 8 to be an unconstitutional violation of the due process and equal protection rights of same-sex couples. Would it follow the logic and reasoning of U.S. District Judge Vaughn Walker, the Republican appointee who presided over the trial in this case and then had to defend himself against allegations that he was biased because he is gay? Or, would the 9th Circuit strike out on its own?

In the colossal wake of Perry v. Brown, 133 pages of fur and teeth, the best answer I can offer today is that the federal appeals court’s majority sought to thread a needle between recognizing the constitutional rights of certain same-sex couples to stay married and respecting the current equal protection jurisprudence of Justice Anthony Kennedy, the Republican appointee and native Californian, whose vote everyone agrees ultimately will decide the fate of Prop 8 and therefore the fate of same-sex marriage in America.

The 9th Circuit’s ruling is much narrower than was Judge Walker’s ruling and clearly aimed at Justice Kennedy’s jurisprudence in cases involving discrimination based upon sexual orientation

Photo by Justin Sullivan/Getty Images via the Hollywood Reporter

UPDATE: Today is a very good day for human beings.

No reporting can speak quite as eloquently to the point as the opening of the ruling itself, the majority opinion, written by Circuit Judge Stephen Reinhardt.

You can find it here.

But here’s one line that sums up all:

Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to opposite sex couples. The Constitution simply does not allow for “laws of this sort.”

The opinion (with minority commentary) goes on for another 128 pages.

But that’s the heart of the matter. Straight up.

The court’s decision, had it’s light moments, which in a back door way also spoke deeply to the issue.

As The wrap reports via Reuters:

The appellate court judges who ruled Tuesday that California’s Proposition 8, which banned same-sex marriage, mentioned Jumbotrons, Frank Sinatra, movies and Marilyn Monroe along with Supreme Court precedents in their decision.

“Had Marilyn Monroe’s film been called ‘How to Register a Domestic Partnership with a Millionaire,’ it would not have conveyed the same meaning as did her famous movie, even though the underlying drama for same-sex couples is no different,” the judges wrote.

The judges wrote that in society, “We are excited to see someone ask, ‘Will you marry me?’, whether on bended knee in a restaurant or in text splashed across a stadium Jumbotron. Certainly it would not have the same effect to see, ‘Will you enter into a registered domestic partnership with me?’.”

They even invoked Groucho Marx, William Shakespeare and Abraham Lincoln — all in one paragraph:

“Groucho Marx’s one-liner, ‘Marriage is a wonderful institution … but who wants to live in an institution?’ would lack its punch if the word ‘marriage’ were replaced with the alternative phrase. So too with Shakespeare’s ‘A young man married is a man that’s marr’d.’ Lincoln’s ‘Marriage is neither heaven nor hell, it is simply purgatory,’ and Sinatra’s ‘A man doesn’t know what happiness is until he’s married. By then it’s too late.’”

The Court mentioned Shakespeare a few times:

“We emphasize the extraordinary significance of the official designation of ‘marriage,” the decision says. “That designation is important because ‘marriage’ is the name that society gives to the relationship that matters most between two adults. A rose by ay other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of ‘registered domestic partnership’ does not.”

The ruling by the 3-judge panel from the 9th Circuit Court of Appeals is due to be announced at 10 am, Tuesday.

Fingers crossed.

One day we’ll look back on this crazy period in which some among us were not allowed to marry the people they love because of the whacked notion that those unions, no matter how devoted, would do harm to the concept of marriage as a whole—and we’ll wonder what in the world we could possibly have been thinking.

Howard Mintz at the San Jose Mercury News has a good break down of the possible outcomes. Bob Egelko of the SF Chron also has a clarifying take.

9TH CIRCUIT DECIDES THAT VIDEO OF PROP 8 TRIAL ARGUMENTS WILL NOT BE RELEASED

The San Jose Mercury News has the story. Here’s a clip:

A federal appeals court on Thursday refused to allow the public release of the videotapes of the historic Proposition 8 trial that led a judge to overturn California’s voter-approved gay marriage ban.

The 9th U.S. Circuit Court of Appeals rejected the arguments of media organizations and same-sex marriage advocates, saying the trial judge in the Proposition 8 trial had offered assurances that the videotapes would remain under seal.

The appeals court stressed that the ruling was based on the particular facts of the Proposition 8 case, not broader questions of public access to court proceedings.

Before the 2010 trial, the U.S. Supreme Court had blocked former Chief Judge Vaughn Walker from permitting the proceedings to be broadcast. But Walker videotaped the trial for use inside the courthouse by the lawyers and him.

THE CITIZENS’ COMMISSION ON JAIL VIOLENCE MEETS FRIDAY

The Citizens Commission on Jail Violence has not yet begun hearing from witnesses and the like, but is still nailing down its plan of attack.

For instance, at today’s meeting the commission plans to firm up its timeline (Hint: its final report is preliminarily set to due in August/September—meaning September, since nobody wants to read a serious report in August.)

The commission will also discuss the five different areas of investigation that its teams of investigators intend to pursue—things like “deputy culture,” “use of force,” “investigative procedures,” “management and oversight,” and various jail personnel issues.

PLUS they’ll receive a report on jail population trends, compiled for them by Jim Austin (the national expert on the topic who is doing a larger jail population assessment and proposal for Sheriff Baca and the LA County Board of Supervisors).

Anyway, you get the idea. More on all this after the meeting.

(Just to remind you, this is the commission appointed by the LA County Board of Supervisors to investigate the problems of inmate abuse by deputies in the LA County jail system and to make recommendations).

SENTENCING PROJECT RELEASES NEW REPORT SHOWING MANY STATES ARE DIALING BACK THEIR SENTENCING AND LOCK-UP POLICIES.

The new report highlights 55 reforms in 29 states and documents “a growing trend to reform sentencing policies and scale back the use of imprisonment without compromising public safety.”

Here are the kinds of reforms the report documents:

Sentence modifications – Four states — Connecticut, Ohio, Nebraska, and North Dakota — established sentence modification mechanisms that allow correctional officials to reduce the prison sentences of eligible prisoners;

• Drug offense reforms - Four states — Arkansas, Delaware, Kentucky, and Ohio — revised penalties for certain drug offenses and authorized alternatives to prison as a sentencing option in specified circumstances. In addition, Idaho and Florida expanded the eligibility criteria for drug courts in order to expand their impact.

• Death penalty - Illinois abolished the death penalty, becoming the sixteenth state to eliminate the sentencing option;

• Probation revocation reforms - North Carolina restricted the use of prison as a sentencing option for certain persons who violate the conditions of probation; and..

• Juvenile offender sentencing reforms – Georgia authorized sentence modifications for certain juvenile defendants with felony offenses by allowing judges to depart from the statutory range when considering the youth’s background.

NOTE: California is not exactly high on the list of the states who’ve done well with reform.

IN COLBERT V. THE SUPREME COURT OVER CITIZENS UNITED, THE COMEDIAN MAY BE WINNING

Slate’s Dahlia Lithwick has this essay on the topic, and you must read it. Immediately. Really.

Here’s a clip:

When President Obama criticized Citizens United two years ago in his State of the Union address, at least three justices came back at him with pitchforks and shovels. In the end, most court watchers scored it a draw. But when a comedian with a huge national platform started ridiculing the court last summer, the stakes changed completely. This is no pointy-headed deconstruction unspooling on the legal blogs. Colbert has spent the past few months making every part of Justice Anthony Kennedy’s majority opinion in Citizen United look utterly ridiculous. And the court, which has no access to cameras (by its own choosing), no press arm, and no discernible comedic powers, has had to stand by and take it on the chin.

It all started when Colbert announced that, as permitted by Citizens United, he planned to form a super PAC (“Making a better tomorrow, tomorrow”). As he explained to his viewers, his hope was that “Colbert Nation could have a voice, in the form of my voice, shouted through a megaphone made of cash … the American dream. And that dream is simple. That anyone, no matter who they are, if they are determined, if they are willing to work hard enough, someday they could grow up to create a legal entity which could then receive unlimited corporate funds, which could be used to influence our elections.”

Then last June, like a winking, eyebrow-wagging Mr. Smith, Colbert went to Washington and testified before the FEC, which granted him permission to launch his super PAC (over the objections of his parent company Viacom) and accept unlimited contributions from his fans so he might sway elections. (He tweeted before his FEC appearance that PAC stands for “Plastic And/Or Cash.”) In recent weeks, Colbert has run several truly insane attack ads (including one accusing Mitt Romney of being a serial killer). Then, with perfect comedic pitch, Colbert handed off control of his super PAC to Jon Stewart (lampooning the FEC rules about coordination between “independent PACS” and candidates with a one-page legal document and a Vulcan mind meld). Colbert then managed to throw his support to non-candidate Herman Cain in the South Carolina primary, placing higher on the ballot than Rick Perry, Jon Huntsman, and Michele Bachmann….

Read the rest.

A lot of necessary budget cutting is going on in the state right now. Many of the cuts are difficult. But in a few cases, the cuts are poorly thought out—- penny wise and pound foolish (as my mother would have put it).

The cut to Foster Youth Services is one of those cuts.

Foster Youth Services is a unique state program that helps !4,000 California kids in foster care stay in school and navigate their lives—help that is very much needed..

If you are not familiar with the stats, foster care kids, particularly the kids who age out of foster care, do not, as a group, have great outcomes—in school, in employment, in finding a stable place to live, at staying out of poverty.

More than one third of the nation’s runaway kids were in foster care during the year they ran away.

A third of those who age out of foster care wind upon the street, homeless.

Over 75 percent of foster youth students’ work is below grade level, 50 percent are held back at least one year in school. 75 percent of those who age out of foster care, fail to graduate high school.

However, if foster care kids are given tutoring, encouragement, and mentoring during their school years, their prospects change dramatically.

Created in 1981 as a pilot program, Foster Youth Services was so incredibly successful in keeping foster kids in school and helping them navigate their lives that, in 1998, it was expanded statewide to help foster kids from ages to 4 to 21, plus adolescents in juvenile detention facilities.

Suddenly kids began doing better.

Now, however, Foster Youth Services is scheduled to use its funding. It’s not that it’s being cut directly. It is that the funds especially designated for the program are no longer designated. This leaves the onus of providing funds for FYS will fall on the individual school districts—-WHICH ARE BUSY CUTTING EVERYTHING.

Thus it is the equivalent of defunding the program. And it is not in the state’s best interest to have this Foster Youth Services dumped.

This blog post by Amy Lemley has more.

A GAY CALIFORNIA VET AND HER SPOUSE IS DENIED BENEFITS

The AP has the story:

A gay Army veteran and her wife sued the federal government on Wednesday after they were denied military benefits granted to straight spouses.

The lawsuit announced in Washington involves a 12-year veteran of the Army, Tracey Cooper-Harris. After leaving the Army she married Maggie Cooper-Harris in California in 2008. Two years later, Tracey Cooper-Harris was diagnosed with multiple sclerosis, and she has received disability benefits through the U.S. Department of Veterans Affairs as a result. But her application for additional money and benefits that married veterans are entitled to was denied.

THURS. THE 9TH CIRCUIT WILL RELEASE A PROP 8 RULING (NAMELY THE RULING ABOUT WHETHER OR NOT THE VIDEO RECORDING OF THE FEDERAL TRIAL WILL BE RELEASED)

Lyle Denniston of ScotusBlog thinks today’s ruling may be a precursor for the next ruling-–which will be about whether or not the Prop 8 supporters who challenged the lower court ruling have the “standing” to have brought the challenge.

Heres a clip from the ScotusBlog story:

The first ruling by the Ninth Circuit Court on California’s controversial ban on same-sex marriage — but not an ultimate ruling on the ban’s constitutionality — will be released Thursday morning, the Circuit Court announced Wednesday. Coming out at 1 p.m. Washington time (10 a.m. in San Francisco), this will be a decision on whether the courts will release, for public broadcast and public viewing in general, the videotapes made of the historic federal trial on the ban known as “Proposition 8.”

The ballot measure approved by California voters in November 2008 barred gay marriages in California, but the state Supreme Court later ruled that — while Proposition 8 did not violate the state constitution — marriages already performed among same-sex couples remained legal. The ban itself, however, was then challenged in a federal court case that unfolded in a three-week trial two years ago. A video recording was made of the entire trial and, although some limited excerpts of it have been played before selected audiences, the full tape remains under seal in federal court.

In answer to the above question…..it’s complicated.

However, before we discuss the implications of Tuesday’s California Supreme Court hearing, here’s what the LA Times and the NY Times reported on the basic facts of the matter.

First the LA Times:

The California Supreme Court appeared ready Tuesday to rule that the backers of Proposition 8 and other ballot measures have the right to defend them in court, a stance that would give opponents of same-sex marriage the chance to champion the initiative all the way to the U.S. Supreme Court.

During an hour of oral arguments, several justices appeared skeptical that only elected state officials may defend measures passed by voters, as gay-rights lawyers claimed.

If that were the case, same-sex marriages would resume in California because Gov. Jerry Brown and Atty. Gen. Kamala D. Harris have refused to appeal last year’s federal ruling against Proposition 8.

Justice Ming W. Chin observed that the power of the people to enact laws would be curtailed if initiatives could be blocked in court every time officials refused to defend them.

“So the attorney general and the governor get to pick the laws they want to enforce?” asked Chin, a conservative on the court.

Justice Joyce L. Kennard, one of the court’s more liberal members, appeared to agree. Denying initiative sponsors the right to appeal, she said, would be “nullifying the great power that the people have reserved for themselves” and “would not promote principles of fundamental fairness….”

Now the NY Times:

In a hearing that suggested no quick resolution to the long-contested legal battle over Proposition 8, the same-sex marriage ban in California, several members of the state’s highest court seemed skeptical of arguments on Tuesday that the measure’s supporters should not have a chance to defend it in federal court.

The hearing, at California Supreme Court here, came at the behest of a three-judge panel of the United States Court of Appeals for the Ninth Circuit, which is reviewing a 2010 decision by a federal judge who found Proposition 8 to be unconstitutional.

The appellate court had asked the state court if the backers of Proposition 8 had legal standing under California law to defend the measure, because both the current and previous governors and attorneys general of California have repeatedly refused to argue for it. Opponents of the measure say that without standing, there is no case, something that could mean a resumption of same-sex marriage in the state, where it was briefly legal in 2008.

But while no decisions were issued at the hearing on Tuesday — the seven-member Supreme Court has 90 days to do so — there were indications that several California justices were wary of finding that supporters of Proposition 8 had no right to defend the measure…..

Now here’s where it gets complicated: If the California Supremes rule that the Prop 8 defenders have no official right—-aka legal standing— to challenge Judge Vaughn Walker’s findings that Proposition 8 is unconstitutional, that will be good news for all who favor equality—at least in the short-run—because marriage for same sex couples will become instantly legal in the state of California.

Yet, while California will have won the battle, the larger precedent-setting war will have been lost, at least in the short run, because that will mean there will be no Supreme Court challenge to Prop 8.

Of course, if the Prop 8 case goes to SCOTUS, it’s a roll of the dice. The Constitutional law dream team of Ted Olson and David Boies could lose, while a “no standing” decision gives them an instant victory in California.

However, if standing is established, and the case goes from the 9th Circuit to the Supreme Court, and if the US Supremes rule in favor of Prop 8 challengers Olson and Boies….. that, ladies and gentlemen, is the ball game. Equality will become the law of the land.

NOTE: Just got back. Back fully in biz tomorrow.