Wednesday, October 26, 2011
The Land of Cotton
All over Alabama the lamps are out. . . .The fields lie there, with nothing at work in them, neither man nor beast. — James Agee, Let Us Now Praise Famous Men
Alabama is back in the news. Not that it ever left. It’s just there are times when it seems it would be better if it did. The federal courts have once again stepped in to save it from itself, although how completely it is saved from its most recent folly is yet to be determined. By contrast, when the Courts met Roy Moore their success was complete.
In 1997 Roy was an Alabama circuit court judge. A great fan of the 10 Commandments, he hung them in his courtroom on a hand-carved wooden plaque in order to help him remember what they said. When a higher (though not celestial) court ordered him to remove the plaque, he refused. Siding with the judge, Fob James, the governor of Alabama at the time, said he would call out the national guard, if necessary, to prevent the removal of the plaque. The plaque remained.
In 2001 Roy was elected Chief Justice of the Alabama Supreme Court
Within 6 months of his election as Chief Justice, Roysupervised the construction and installation of a 5,280-pound granite monument to the Ten Commandments in the central rotunda of the State Judicial building. The 11th Circuit Court of Appeals upheld a lower court ruling ordering removal of the monument. When Roy refused to remove the monument the Alabama Court of the judiciary removed him. (His removal was not a great loss to Alabama jurisprudence. Prior to his removal he wrote a concurring opinion in a custody battle involving a lesbian mother in which he said that homosexuality is “abhorrent, immoral, detestable, a crime against nature and a violation of the laws of nature and of nature’s God” and said that homosexuals in Alabama were “presumptively unfit to have custody of minor children.” After Maine approved gay marriage he said that the next logical process was for the law to allow unions between “two men and four women” or between a “sheep and a man.” Now the federal courts are once again called upon to save Alabama from itself although whether they will seize the opportunity will only be determined after further hearings in the Court of Appeals.
On September 29, 2011 the Beason-Hammon Alabama Taxpayer and Citizen Protection Act, , a 76-page piece of legislation that is intended to protect Alabama from the scourge of illegal immigration, became effective. The Act has lots of catchy provisions designed to discourage illegal immigrants from settling in Alabama and encouraging those settled to leave the state. In the 76 pages it has a number of draconian provisions that leave no doubt in the mind of the reader that the illegal immigrant is not wanted in Alabama. Some of its provisions have now been prevented from taking effect until further court hearings.
Among provisions that have now been temporarily blocked is a prohibition against giving an illegal immigrant a ride to church (or any place else for that matter.) Section 13 of the Act makes it a crime to “transport or . . . conspire to transport in this state an alien. . . .”
Another provision that has been temporarily blocked is Section 8 that provides that an illegal alien “shall not be permitted to enroll in or attend any public postsecondary education institution.” The legislature wants to insure that illegal aliens will remain uneducated lest they prove themselves smarter than their masters in the legislature. Another blocked provision says K-12 schools must require each student to prove he or she is not an illegal immigrant. (In early October Bill Lawrence, the principal of Foley Elementary School where 20% of the student population that is Hispanic has not been attending regularly, assured his parent population that the information the school obtains will not be used to deport the family. It is only being used for statistical purposes. Hispanic families may be forgiven if they fail to find that assurance reassuring, notwithstanding the provisions of the Act.)
Of course there are many provisions of the Act that remain in force including Section 15 that says no “employer shall knowingly employ . . . an unauthorized alien to perform work within the State of Alabama.” Although that sounds harsh, the Act provides relief for the affluent. Subparagraph l says the section does not apply to “casual domestic labor performed within a household.” Thus, unlike Alabama farmers who are :unable”:http://www.csmonitor.com/USA/Politics/2011/1022/Anti-illegal-immigration-bill-stokes-backlash-in-Alabama-fields/(page)/2 to find people willing to harvest their crops, the wealthy need not worry about the Act impacting their ability to get good household help.
Roy Moore (like other Alabamans before him) prepared us for House Bill 56. The Federal Court of Appeals by starting the process that resulted in his removal protected the state from the most egregious of his acts. Perhaps upon sober reflection and a full hearing, the Court of Appeals will throw out House Bill 56. Many immigrants, both legal and illegal, are not waiting to find out. They are leaving the state. One can’t blame them.
Sunday, October 16, 2011
Congress Creates a Crime
The Congress doesn’t run-it waltzes.
—Charles Joseph, Comment to Comte Auguste de LaGardeChambonas (1814)
Congress is not as idle as it may seem. Whereas much of the publicity it is getting suggests it is not getting anything done, that is because the things it has not accomplished tend to be more interesting than the few things a few of its committees have gotten done. The House Judiciary Committee is an example of this. As has been observed here and elsewhere, in July it addressed the vexing problem confronted by peripatetic armed citizens.
Constitutionally armed citizens are confronted by a plethora of state laws covering concealed weapons. Each time they cross a state line bearing concealed weapons they fear they may be in violation of the law of the state they are entering and that fear impinges on their rights to freely travel around the country. To remedy that, in July the House Judiciary Committee passed the National Right-to-carry Reciprocity Act of 2011 in July. If enacted by Congress all rules pertaining to concealed weapons will come from the federal government and not from individual states. The Judiciary Committee has now passed amendments to the criminal code that, if enacted by Congress, will fix a problem that was created by
United States vs. Ivan Lopez-Vanegas et al. , a case from the U.S. Court of Appeals for the Eleventh Circuit decided in 2007.
In Lopez the Court reversed the conviction of Mr. Lopez who was convicted of a conspiracy to possess, with the intent to distribute, cocaine. Mr. Lopez and his colleagues were assisting Prince Nayef bin Fawwaz al-Shaalan, the son-in-law of the Saudi Vice Minister of Defense (who is the brother of the former king of Saudi Arabia) by coordinating the purchase of cocaine. Two tons of cocaine were purchased in Colombia and transported on a plane owned by the Saudi royal family to Europe where all but 840 grams was distributed. (The Prince is a wealthy member of the royal Saudi family who owns oil interests in Colombia and Venezuela and the court does not explain why he was selling cocaine.) French authorities seized the 840 grams two weeks after its arrival in France. Following its seizure Mr. Lopez and others were apprehended and tried and in Mr. Lopez’s case, convicted.
The extent of Mr. Lopez’s activities in the United States consisted of hotel meetings that planned the operation. The cocaine was never in the United States. The government charged Lopez with violating two sections of the United States Code that read together make it a crime “to conspire to possess with the intent to distribute a controlled substance, such as cocaine.” He was convicted in the trial court but his conviction was reversed on appeal. The court found that since none of his activities involved possessing or distributing cocaine within the United States, Code sections relied on did not apply to him. That was the end of the matter until September 2011.
Between the time of the decision and September 2011, Congressman Lamar Smith, the chair of the Judiciary Committee, contemplated the effect of the decision and concluded that it was inimical to the best interests of the United States for a violation of the Controlled Substances Act to apply only if the controlled substance was in the United States. The bill passed by the Committee on October 6 provides that it “amends the Controlled Substances Act to clarify that persons who enter into a conspiracy within the United States to possess or traffic illegal controlled substances outside the United States, or engage in conduct within the United States to aid or abet drug trafficking outside the United States, may be criminally prosecuted in the United States. . . .” The bill was baptized the “Drug Trafficking Safe Harbor Elimination Act of 2011” and does not distinguish between controlled substances that are legal in the country where the distribution is to take place and those that are illegal in that country. Thus if someone in the United States enters into negotiations for the purchase and sale of a drug that is legal in the country in which the transaction is taking place, that individual can nonetheless be prosecuted in the United States. The democrats on the committee tried to amend the bill to provide that it only applied if the controlled substance was illegal in both countries. The Republicans who dislike the ever-expanding role of the federal government in the lives of ordinary citizens, preferred to have the amendment apply to as many people as possible.
Commenting on the bill, a civil rights lawyer and author, Harvey Silverglate, said: “Just when you think you can’t get any more cynical, a bill like this comes along. It just sounds like an abomination. [T]here’s no intuitive reason for an American to think that planning an activity that’s perfectly legal in another country would have an effect on America. . . . [T]his is just an act of shameless cultural and legal imperialism. It’s just outrageous.” He’s right. Of course it is nice to see that occasionally a Congressional Committee can actually pass legislation, even if it’s bad. At least it’s not doing nothing.
Wednesday, October 5, 2011
The 8th Amendment meets the 5th Amendment
“Why can’t we just take them out and shoot ‘em? We know they’re guilty.”
Because the “guilt of the German leaders should be carefully documented.” Because “our system is not lynch law. We will dispense punishment as the evidence demands. “
— Joe Nocera in the New York Times quoting Harold Burson’s scripts from the Nuremberg trials
It happened because of prison overcrowding. Prison overcrowding creates unconstitutional conditions for inmates. Anything that can be done to relieve those unconstitutional conditions is welcome.
For those who have not paid much attention to prison overcrowding, the U.S. Supreme Court case of Brown v. Plata is an eye opener. Although it affects only the California prison system, it focuses attention on overcrowded conditions in state and federal prisons alike. Writing for the majority in that case, Justice Anthony M. Kennedy said that California prisons were designed to house a population of 80,000 but that the population was close to double that. “Prisoners” he said, “are crammed into spaces neither designed nor intended to house inmates. . . . [S]uicidal inmates may be held for prolonged periods in telephone booth sized cages without toilets “ and the lack of care results in “needless suffering and death.” Stating the often overlooked but obvious truism, Justice Kennedy says that even though incarcerated, “Prisoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment.” He concludes his opinion saying that “The medical and mental health care provided by California’s prisons falls below the standard of decency that inheres in the Eighth Amendment.”
Overcrowding is a problem in federal prisons as well. According to The Crime Report, when the U.S. Attorney for Atlanta, Sally Quillian Yates, was testifying before the U.S. Sentencing Commission in Washington in late May 2010, she said that federal facilities are currently operating at 34 per cent above capacity. In her testimony she said that the overcrowding will have “real and detrimental consequences for the safety of prisoners .” Her concerns are echoed by Bryan Lowry, president of the American Federation of Government Employees’ Council of Prison Locals. Testifying before a House Appropriations subcommittee in 2010 he pointed out to the committee that between June 2008 and the time of his testimony in March 2010, there were 340 inmate-on-staff assaults in federal prisons nationwide. He told the committee that “These aggressive acts by inmates against staff illustrate a common reality facing staff daily at their workplace. Federal prisons have continued to be increasingly dangerous places to work, primarily because of serious correctional worker understaffing and prison inmate overcrowding problems.” And that all serves to highlight what we learned from the Platt case. Overcrowding violates the prohibition against cruel and unusual punishment that is proscribed by the Eighth Amendment to the United States Constitution. It also helps explain the death of Anwar al-Awlaki, the United States citizen who was summarily executed by the United States Government because he had been designated a terrorist.
Mr. Awlaki was killed September 30 in Yemen by a missile fired from a United States operated drone aircraft. Mr. Awlaki spent the first 7 years of his life in Las Cruces New Mexico. His family moved to Yemen where he lived until he was 19 when he returned to the United States to attend college. Following his graduation he became an imam at assorted mosques in the United States. Eventually he became a fiery preacher advocating the mass murder of American citizens. In early 2010 the U.S. government said his actions made him a justifiable target for capture or death. His father objected to the fact that his son had been made death penalty eligible without having been tried or convicted of any offense. Aided by the ACLU he went to court alleging that the actions of the government in authorizing his son’s summary execution violated the due process clause of the U.S. Constitution. The judge threw out the lawsuit although he said that the actions of the government raised “stark, and perplexing, questions” one of which was whether the president could “order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based [on] the mere assertion that he is a dangerous member of a terrorist organization.” The question has now been answered. It can, it did and Mr. Awlaki is now dead.
In making its decision to kill Mr. Awlaki, it is clear that the Obama administration was addressing two competing interests. If Mr. Awlaki was captured and sent to prison his 5th Amendment due process rights would be preserved but the other prisoners’ 8th Amendment rights would be impinged by increasing the overcrowding. By killing him the administration was violating the constitutional rights of only one person instead of many. Examined in that light it is obvious that the government made the right decision. It should also cause the rest of the country to wonder how far the administration is willing to go to avoid further prison overcrowding. Time will tell.