CrimProf Blog

Federal Defender Publishes YouTube Video to Aide Guantanamo Detainee

William Teesdale, an attorney with the Federal Public Defender's Office in Portland, Oregon has been seeking the release of a Guantanamo Bay detainee and has turned to YouTube to get the message out about his client. Here's the description of Teesdale's Guantanamo Unclassified video, from Legal Pad:

Teesdale has released a short documentary video in which, on a beach in Guantanamo bay, he explains that hospital worker and teacher Adel Hamad has been held for years in detention and denied release even after a member of the military tribunal reviewing his case called his incarceration “unconscionable.” The video includes interviews with Hamad’s coworkers from Afghanistan, where he’d worked for a hospital supported by a charity that the CIA seems to think might have counter-American ideals. Watch the video here. . . [Michele Berry]

Secret "FISA" Court to Monitor Domestic Spying Program

Yesterday, the Justice Department announced that a secret independent panel of judges, known as the FISA Court (Foreign Intelligence Surveillance Court) has been given authority to monitor the government's contentious domestic spying program.  FISA has already has approved one request for monitoring the communications of a person believed to be linked to al-Qaida or an associated terror group. 

The FISA court was established in the late 1970s to review requests for warrants to conduct surveillance inside the United States. The Bush administration initially resisted giving the court final approval over the Terrorist Surveillance Program (the program allowing the phone calls or emails of Americans suspected of ties to terrorism to be monitored without any oversight from a judge), even when communications involved someone inside the country. A federal judge in Detroit last August declared the program unconstitutional, saying it violates the rights to free speech and privacy and the separation of powers. In October, a three-judge panel of the 6th Circuit Court of Appeals in Cincinnati ruled that the administration could keep the program in place while it appeals the Detroit decision. Story from CBS/AP. . . [Michele Berry]

Kevorkian Will Be Paroled

in June, after he agreed to no longer perform assisted suicides.  story. 

Flying Foreign Flag = Crime...

Unless an American flag is flying above it. Scofflaws face criminal penalties: a $50 fine and 30 hours of community service. From CNN.com: This is where we've arrived in this country: You have the constitutional right to burn an American flag, but you can get into trouble for simply flying a foreign one.  At least you can in the 30,000-person town of Pahrump, Nevada, which is close to Las Vegas and even closer to stepping over the line with an idiotic, intolerant and insulting ban on foreign (read: Mexican) flags. The town council voted last week, 3-2, to approve an ordinance that makes it illegal to display a foreign flag -- unless an American flag is flown above it. Pahrump resident Michael Miraglia proposed the ban because, he said, he got upset when he saw immigrant activists marching through U.S. cities last spring, waving Mexican flags. Mr. Miraglia told USA Today that he was especially miffed that "we had Mexican restaurants closed that day...For the record, I don't think people should wave flags of countries they left behind or celebrate one country while demanding rights from another. But just because you'd like to see a given outcome -- i.e., immigrants putting foreign flags in mothballs -- doesn't mean you should use the coercive power of government to bring it about. The end does not justify the means." More Commentary from CNN.com. . . . [Michele Berry]

Sex Offender Residency Restriction Laws, Ripe for Attack...in Supreme Court?

California's Proposition 83, or "Jessica's Law," is like other sex offender restriction laws.  It includes stiffer punishment, longer parole terms and tighter monitoring for future sex criminals, and a controversial residency restriction, prohibiting anyone required to register as a sex offender from "living within 2,000 feet of any public or private school or park where children regularly gather."  If California voters pass Jessica's Law this November, California will be the 18th state to pass residency restrictions on sex offenders.  Lessons learned from the previous 17 states have shed light on the legislation's key causes for concern among legal scholars and critics, including:

• Whether Prop. 83 would apply to already convicted sex offenders -- the thousands now behind bars, on probation or parole, or even the tens of thousands who have been free of the criminal justice system for years, living in the community, some of them homeowners.

• That it would too broadly restrict where all registered offenders can live, including those whose convictions were for sex crimes against adults.

• That it would cross a constitutional line into public banishment if registered offenders could find nowhere to live in most of the state's population centers -- as maps produced by the state Senate suggest.

Sex offenders could argue that Jessica's Law would strip them of protected liberties.  But a challenge of that nature to overturn the Iowa law restricting sex offenders from living within 2,000 feet of schools and day care centers, failed.  The Eighth Circuit ruled that there is no right to live where you want to live if the state has compelling reasons otherwise.

Several scholars have said the strongest legal attack is the "ex post facto" angle.  If a city tried to apply Jessica's Law to sex offendes who were convicted before the law took effect, the sex offender could challenge the eviction on the basis of the constitutional ban on ex post facto laws.  That's what has happened in Ohio.  The Ohio Justice & Policiy Center, under David Singleton, has about a dozen cases pending, but they're yet to stop an eviction. 

That probably has something to do with the fact that the constitutional ban on "ex post facto" laws only applies to punitive laws, not civil regulations with a clear public policy rationale.  As UCLA CrimProf Eugene Volokh points out, a government takings claim probably won't work either.  "If the person is a tenant, there's no property being taken...Even if he owns the property, it's not that the person is being barred from or denied the right to own the property. He can resell it, rent it out. He could make money off it." 

As more and more states pass these laws, the key question is whether the courts view the 2,000 foot rule (or in the case of Ohio, 1,000) as punishment for past crimes, rather than a civil law intended to protect the public.  That's the only way the ex post facto attack could work, but the Supreme Court has set a high bar for proving that a civil law has crossed the line to punishment, insisting on "only the clearest proof."

While some legal scholars say the residency restrictions will invariably pass constitutional muster, other say the 2003 SCOTUS case challenging Meghan's law left the door open for a successful challenge to Jessica's law and others like it.  But through all the debate, the concensus is, as more of these laws pass, the stronger the likelihood that the Supreme Court will have to step in and give an opinion on the constitutionality of these state laws.

Read the full story from ContraCostaTimes.com with opinions from several legal scholars including William & Mary CrimProf Wayne Logan; UC Hastings LawProf and director of the Center for State and Local Government David Jung, Stanford LawProf and executive director of the Stanford Constitutional Law Center Derek Shaffer, David Singleton of the Ohio Justice and Policy Center, and UCLA CrimProf Eugene Volokh.  [Michele Berry]

FBI Releases Hate Crime Statistics for 2005

From AllHeadlineNews.com: The Federal Bureau of Investigation (FBI) has released their 2005 statistics on hate crimes. Statistical data indicates a total of 7,163 criminal incidents. These incidents involved 8,380 reported offenses reported in 2005, resulting from a bias toward a particular race, religion, sexual orientation, ethnicity/national origin, or physical or mental disability...Racial bias topped the list as motivation for the 2005 hate crimes at 54.7 percent. Thereafter, smaller percentages were reported for motivations of religious bias at 17.1 percent, sexual-orientation bias at 14.2 percent, ethnicity/national origin bias at 13.2 and disability bias of 0.7 percent.  The "Hate Crime Statistics, 2005," is published by the FBI's Uniform Crime Reporting Program. The data includes details on reported hate crimes from city, county, state, tribal, and federal law enforcement agencies across the country. More statistics. . . and more information from the FBI about these statistics here. . . [Michele Berry]

Nebraska: KKK-Trooper Probed by Crime Commission

From KETV.com: The Lincoln Police Department will investigate Omaha Sen. Ernie Chambers' request that a former state trooper lose his law enforcement certificate. Chambers had filed a complaint with the Nebraska Commission on Law Enforcement and Criminal Justice against former trooper Robert Henderson. The police department was tapped to act for the state crime commission in conducting the investigation. Henderson was fired in March for "conduct unbecoming an officer" after an investigation revealed he was a member of the Knights Party, a group with ties to the Ku Klux Klan. Henderson appealed his dismissal, saying among other reasons that the firing violated his First Amendment rights. Last month, an arbitrator ordered Henderson's reinstatement and payment of back wages. The state is appealing the decision. More. . . [Michele Berry]

Packed Prisons, Solution-Stalement: Is the Eighth Amendment the Answer?

Stanford CrimProf Robert Weisberg, director of Stanford Law's Criminal Justice Center says "there's a general sense of caution on anything involving crime and prisons" in California.  Three months ago, Gov. Schwarzenegger urged legislators to take action to resolve California's prison overpopulation and "deplorable inmate healthcare."  But at the end of August, lawmakers adjourned for the year without addressing the system's myriad of problems. And while the legislators have gone home, prison officials warn they will run out of beds by June. Already inmates are stacked on double and triple-bunks in gymnasiums and day centers.

Steve Fama of the Prison Law Office is considering a federal lawsuit contending that overcrowding conditions amount to "cruel and unusual punishment.'' If successful, the case could cap prison populations.  If prison populations were capped, of course more facilities would be necessary.  Schwarzenegger has indicated that he may declare a state of emergency in the prisons, allowing him to impose measures, such as shipping inmates to other states or re-opening mothballed prison facilities. Story from MercuryNews.com. . . [Michele Berry]

Surveillance Cameras Watch Ideologies Clash

UPDATED: Here's another perspective from the SanFrancisco Chronicle: "Community, Not Just Technology, Needed in Crime Prevention"

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San Francisco Mayor Gavin Newsom announced last week that the city will install 50 surveillance cameras in high-crime public housing projects around the city in attempts to to reduce the recent influx of violence. But in a society where surveillance cameras seem to have become ubiquitous, and in a major city that lags far behind other cities of its size in terms of camera presence, the Mayor's announcement has generated staunch criticism. 

This column criticizes the critics. Here's an excerpt:  "Several public officials have decried the use of the security devices as an infringement on civil liberties — no matter how many criminals they help catch. And those people with thick rap sheets aren't happy about them either.  I have always been against more government interference in personal privacy, but that is hardly a big issue here. Nor is the use of surveillance cameras in general. They are not being installed in living rooms — just in the places where a lot of innocent people are terrorized.

San Francisco, reputedly one of the nation’s most technologically advanced towns, lags well behind big cities such as New York, Chicago and Los Angeles in using the electronic eyes as a crime deterrent. Those cities have had success in reducing crime — which is why they have put cameras in hot spots. Some San Francisco officials have their knickers in a twist over a desire to install less than 100. Supervisor Jake McGoldrick called the installation of surveillance cameras a “case of mistaken strategy...The mayor says he’s doing 50 other [things] to fight crime and I think he should focus on the other 49,” McGoldrick said.

And while I can applaud his unshakeable ideological stance, it flies in the face of reason. Surveillance cameras are so ubiquitous in our daily lives, we’ve come to take them for granted. There is hardly a place where anyone can go today where they aren’t electronically monitored — department stores, supermarkets, ATMs, elevators. In a post-9/11 world, is anyone really objecting that cameras have become a security staple on transportation lines, including BART and Muni?" More from The Examiner. . . [Michele Berry]

How the 9/11 Attacks Changed America's Legal Landscape

Here's a look from Bloomberg.com at how the 9/11 attacks changed America's legal landscape over the past five years--particularly, in the areas of criminal and constitutional law.  The article discusses specific shifts in executive power, international law, and privacy issues that normally would have taken decades to occur.  The article concludes that the changes in criminal law and the balance of power among the governement's branches have ultimately reduced or eliminated many of the external fact-checking measures typically in place to balance power and check the government.  For example, documents that once were available to the public have been reclassified as secret, and that which used to be available online has been removed from public view altogether.  As a result, accountability and public confidence in the system may wane and take decades to restore.

An excerpt: "As a measure of how far things have gone in the law, consider a single amendment to an anti-torture bill passed last year....Congress curtailed one of the most elemental rights, that of habeas corpus, when it said the men held at Guantanamo Bay could no longer go to the U.S. Supreme Court to challenge any aspect of their imprisonment.

That's 'just about the most stupendously significant act that the Congress of the United States can take,' Justice David Souter remarked at an oral argument this spring.  And then there was the revelation that the president had authorized domestic-wiretapping without court orders, even though a law specifically requires them...

'What I was seeing in the months after 9/11 was definitely a presidential exercise of power in what was perceived to be a moment of importance,' says Edwin Smith, constitutional law professor at the University of Southern California. 'I also saw a Congress going along with absolutely everything.'...And yet, in his conduct of the war on terrorism, President Bush has acted without the constitutionally required authority of Congress, the Supreme Court has ruled."  More from Bloomberg.com. . . [Michele Berry]

Bush Cuts Bill of Rights to a "More Workable" Six Amendments

The Onion's story here.

Cynthia McKinney and the Police

Representative Cynthia McKinney is being investigated by a grand jury for shoving or hitting a Capitol Police Officer who, claiming not to recognize her, physically prevented her from going around a metal detector.  Of course, she should not have done that.  But I was struck by the similarity of that case to a Newsweek My Turn column written by an African American female MD, who is continually suspected by patients of not being a real doctor.  Remember when the police allegedly got rough with African American astronaut Dr. Mae Jemison?  Has anyone heard of a Capitol Police Officer physically stopping a white male who went around the metal detector who turned out to be a Member of Congress? [Jack Chin]

Sex Toys Sending Vibrations through the 11th Circuit

A number of states still have laws that make it a crime to sell or distribute sex toys, and over the past several years there has been a notable amount of litigation throughout many southern states concerning whether these laws remain constitutional in the aftermath of the U.S. Supreme Court's ruling in Lawrence v. Texas, which holds that states cannot outlaw homosexual sodomy between consenting adults. Here's a description of cases challenging laws criminalizing sex toy sales and/or distribution, which can be summarized as follows: Sex toy bans are constitutional, except for when they violate First Amendment commercial speech rights, and please be sure to remove the batteries before placing sex toys into checked luggage. [Mark Godsey]

Illinois Hate Crimes Panel Fractures over Nation of Islam Appointment

Three Jewish panel members resigned when a Nationl of Islam leader was appointed to the state's Hate Crimes Panel.  Story here.

Pardon Sought in Civil Rights Era Wrongful Conviction

Clyde Kennard is one of the unsung martyrs of the civil rights movement; he was convicted of a crime underquestionable circumstances after he sought admission to an all white university, and spent most of the rest of his life in prison, realeased only when terminally ill to die shortly thereafter.  I mentioned his story in an article a few years ago.  Gabriel J. Chin, Rehabilitating Unconstitutional Statutes, 71 U. Cin. L. Rev. 421, 447-48 (2002).

Now Northwestern CrimProf Steve Drizin and a high school teacher Barry Bradford and their students are seeking a pardon on the ground of actual innocence.  Here's their message to you:   

"Last year, you may recall, three of my students and I helped to get the Mississippi Burning murder case reopened, This year we have taken on another similar struggle and we need your help. Along with Prof. Steven Drizin of the Center On Wrongful Convictions at the Northwestern University School Of Law, we wanted to let you know that we have made a major breakthrough on our latest effort to overturn a miscarriage of justice and history from the Civil Rights Era.

Our website is http://www.clydekennard.org " Full message here; they just want you to email the Governor of Mississippi to support the pardon.  The Mississippi Supreme Court recently denied collateral relief on the ground that Kennard died in 1963.  

Montana Defense Clinic Seeks Pardons for WWI Sedition Convicts

U of Montana Law and journalism students have joined forces to form the Montana Sedition Project, a group of 13 students petitioning for posthumous pardons from MT Gov. Brian Schweitzer for 74 people convicted of sedition during 1918-19.  During these WWI, Montana operated under one of the harshest anti-speech laws ever passed by any state in the history of the United States.  UM journalism Professor Clem Work inspired the project.  He authored the recently published book “Darkest Before Dawn: Sedition and Free Speech in the American West,” which details Montana’s old draconian sedition laws.  The law students who are participating in the Montana Sedition Project plan are drafting a legal opinion as to whether the governor has the authority to pardon these WWI sedition convicts.  In April, the law students hope to present their findings to Gov. Schweitzer.  More on the Sedition Project. . . [Mark Godsey]

Lesbian and Gay Law Notes

Published out of New York Law School are archived here.  There continues to be some criminal law issues related to GayLaw, such as the Kansas Romeo and Juliet case. [Jack Chin]

Happy Martin Luther King Birthday

I'm celebrating by having lunch with one of my colleagues who clerked on the Supreme Court when Brown was argued.  Meanwhile, here is a TV Interview from 1957 with Dr. King and Federal Judge J. Waring Waites. [Jack Chin]

Alabama CrimProf on Sexual Orientation's Exclusion from Hate Crime Legislation

From Al.com (Montgomery, Ala.): AP--"The severe beating of a Montgomery man for allegedly making sexual advances toward another man is the latest example of why Alabama's hate crime law should include sexual orientation, the leader of a gay advocacy group said Wednesday. Police say Marcus Dewayne Kelley, 26, told them he beat Billy Sanford, 52, with a hammer because of repeated sexual advances. Sanford has remained in a coma since the Oct. 19 attack at his home. Kelley, who worked as a handyman for Sanford, was arrested Monday in Alexander City and will be charged with attempted murder...[T]he attack on Sanford is at least the fifth reported crime based on homosexuality in Alabama within a year.

"Hate crimes are based in hatred, and committed based on anti-gay hatred," said [Howard Bayless, Chairman of Equality Alabama]. "The most important thing about it is the perception of the perpetrator, not the identity of the victim." Alabama law defines a hate crime as a violent act committed against a person because of their race, color, religion, national origin, ethnicity, or physical or mental disability. For the last three legislative sessions, Rep. Alvin Holmes, D-Montgomery, has pushed bills to include sexual orientation within Alabama's hate crime statute. The bills have yet to pass.

University of Alabama Law professor and retired Judge Joseph Colquitt said the penalties in many cases like Kelley's are the same even though Alabama's hate crime statute is as strong as those in other states. Attempted murder carries the same penalties as actual murder — a sentence of 10 to 99 years served. An additional hate crime charge would raise the minimum sentence by five years. "It has some affect but not a great amount of impact," Colquitt said. "In many cases of attempted murder or murder, the sentencing may very well be more than 15 years."

[Regardless of the practical effects on sentencing,] Bayless said that including violence aimed at gays and lesbians would likely decrease those crimes. The state sends a message that it is OK to hurt gays and lesbians by excluding sexual orientation from the statute, he said. "It is so important that we get sexual orientation added to the hate crimes bill so that awareness of this problem will grow," Bayless said." [Mark Godsey]

9th Circuit: Law Prohibiting False Statements Against Officers, Overturned

From MSNBC.com: San Francisco, CA (AP): The 9th Circuit Court of Appeals in California has nullified a California criminal law enacted after Rodney King's 1991 beating.  The law prohibited citizens from knowingly lodging false accusations against police officers, an offense punishable by up to six months in jail.  The 9th Circuit held that the law unconstitutionally limited free speech, because the law did not prohibit false statements supporting officers, but rather, only the negative false statements.  The law was enacted in 1995 in reaction to a surge in complaints against officers following King's 1991 taped beating. Story... [Mark Godsey]

Hawaii: ACLU Sues State for "Unsanitary" "Chaotic" Youth Prisons

From Findlaw.com: Honolulu (AP): "A civil liberties group sued the state of Hawaii on Monday, saying it failed to protect inmates at a youth prison where teens were abused and kept in overcrowded, unsanitary conditions.

The class-action lawsuit asks for a federal court-ordered expert to "design, implement and oversee policies and procedures" at the Hawaii Youth Correctional Facility, said Lois Perrin, legal director for the American Civil Liberties Union of Hawaii...

After an ACLU report in 2003 said young inmates were abused and harassed, the prison's two top administrators were removed and the attorney general's office launched an investigation. In August, the U.S. Justice Department released its own critical report, saying the young inmates' constitutional and federal statutory rights were being violated and describing the Kailua facility as 'existing in a state of chaos'...An ACLU lawsuit last month accused guards at the youth prison of harassing and discriminating against inmates because of their sexual orientation." Story... [Mark Godsey]

RIP, Rosa Parks

As the photo on the CNN obit reminds me, segregation was a set of criminal controls. Here's the Conglomerate Blog's Post.  [Jack Chin]

Kansas Supreme Court Strikes Down Harsher Penalties for Gay Statutory Rape

An 18 year old guy was having sex with a 14 year old guy; if one of them had been a female, the maximum sentence would have been 15 months; instead, the dude got 17 years.  The Kansas Supreme Court unanimously held that punishnent of gay underage sex much more harshly than straight underage sex was unconstitutional.  Story here, opinion here. [Jack Chin]

Black Dad Describes False Arrests of Kids

Miami Herald Columnist Leonard Pitts (archive here) describes how, notwithstanding the description of a 5'8" suspect, his 6'3" kid was arrested and held for a couple of weeks; "A few weeks later, the prosecutor declined to press charges, finally admitting there was no evidence." Column here. [Jack Chin]

CrimProfs Offer Insight into the O.J. Verdict, Ten Years Later

This past Monday, October 3, 2005, marked the ten year anniversary of the O.J. Simpson "not guilty" verdict.  Cal Berkeley CrimProf David Sklansky and Temple CrimProf & Associate Dean JoAnne Epps offer insight into the O.J. verdict and its impact, ten years later, in the following article.

From BlackAmericaWeb.com: "As an estimated 150 million people watched the live broadcast of the courtroom finale on October 3, 1995, television news cameras captured the vastly-different reactions of black and white Americans, and the images spoke volumes about race relations as the 20th century drew to a close.

JoAnn A. Epps, a one-time prosecutor for the city of Los Angeles and the U.S. Attorney’s Office in Philadelphia, told BlackAmericaWeb.com that she believes the Simpson trial presented a defining moment for blacks and the legal system.  "I think the O.J. trial did empower African-Americans across this country to believe that they could get a fair day in court, although for many that realization was tempered by the worry that their day in court would be costly," said Epps, who is black. "But the trial gave hope for many that they could have their case and their voice heard."

Some would argue that the trial and the infamous use of the "race card" by Simpson’s defense team were nothing more than a public spectacle, while others believe it played an important role in getting people to have frank discussions about race.  "The race card spawned a tremendous amount of conversation on race," said Epps, a professor and associate dean at Temple University’s School of Law. "Not all of it was easy, but it was good that we were reminded of this thorny issue."...

"This trial really revealed the extent to which black Americans and white Americans saw things through different lenses,” David Sklansky, a professor at the University of California at Berkeley’s School of Law, told BlackAmericaWeb.com. "There was just an astonished lack of comprehension by many white Americans, and there were things that seemed plausible to black Americans that didn’t seem plausible to whites -- like how blacks were much quicker, in general, to believe that police could have planted evidence."

The person many believed to have planted evidence was Los Angeles homicide detective Mark Fuhrman, who discovered a bloody glove near the murder scene. While on the witness stand, Fuhrman also denied ever having used a racial slur, although it was eventually discovered that he spewed the N-word in a taped interview 10 years prior to Simpson’s trial.

'That was an important lesson from the trial,' said Sklansky, who was a criminal law professor at the University of California at Los Angeles at the time of the trial. 'It was a lesson that, despite all of the progress that has been made, we still live in a universe in which black and white lives can be very different. The fact was that police officers that didn’t utter racial epithets in court might very well use them outside of the courtroom.'" More insight from Epps and Sklansky here... [Mark Godsey]

European Commission Proposes Increased Surveillance

From PCPro.co.uk: "The European Commission has accepted proposals to log details of all telephone, email and Internet traffic in an attempt to combat terrorism and serious crime.

The proposals, which are designed to harmonise data retention practices across the EU, will need the backing of all 25 member states. However some states believe they have been watered down in response to pressure from telecommunications firms and civil rights groups.

Under the EC proposals telecoms operators will be required to store data for one year and ISPs to retain it for six months. In the wake of the Madrid bombings, the EU's Council of Ministers had originally called for a three year retention period...Home Secretary Charles Clarke stressed the importance of a common approach. 'Getting some kind of uniformity across Europe is important because this is such an important technique in how we solve serious crimes and in dealing with counter-terrorism,' he said." Story... [Mark Godsey]

Boston: Controversy over Racial Composition of Jury Pools

Using registered voters and driver's license records to select jurors,  skews your pool white and affluent.  In addition, databases are maintained by localities rather than the state as a whole, and affluent communities have more accurate records, so more of them are findable.  U.S. District Judge Nancy Gertner is trying to increase the pool of eligible jurors, and it is controversial.  Story here. [Jack Chin; thanks to Lester Roy Zipris]

US House Approves More Stringent Sex-Offender Monitoring and Expansions to Hate Crime Law

From MSNBC.com: Washington (AP)--On Wednesday, the US House approved the Children's Safety Act, "which, among its many provisions, creates a national Web site for child sex offenders and stipulates that sex felons face up to 20 years in prison for failing to comply with registration requirements...The sex offender bill...also requires felony offenders to register for life and authorizes the death penalty for sex crimes resulting in the killing of a child." House Judiciary Committee Chairman James Sensenbrenner, R-Wis., called the bill a response to a "'national crisis' in child sex offenses. He said that of some 550,000 convicted sex offenders in the nation, the whereabouts of 100,000 are unknown."  Rep. Mark Foley, R-Fla., commented that 'We track library books better than we do sexual predators.' 

In addition to tightened sex-offender monitoring, the bill also expands the "current hate crime law to include some crimes involving sexual orientation, gender and disability. Under current law, the federal government assists local and state authorities prosecuting limited types of crimes based on the victim’s race, religion or ethnic background." Sensenbrenner expects the bill to be approved by the Senate and signed into law by the end of the year. Story... [Mark Godsey]

WI: Firefighters Challenge Hate Crime Statute

Story here. [Jack Chin]

PA: 1983 Win for Person Arrested for Videotaping Police

Pennsylvania State Police don't like to be videotaped while they do truck inspections, evidently, but wheth they repeatedly arrested a gentleman for doing so, he sued and won.  Thanks to BoingBoing. [Jack Chin]

Hong Kong High Court Strikes Down Sodomy Law

From The Standard.com:  "In a landmark decision, the High Court ruled Wednesday that current laws on the age of consent discriminate against homosexuals.  Justice Michael Hartmann acted in favor of William Leung, 20, who launched a Judicial Review against the government for what he considered unfair laws against gays.  Hartmann said existing laws were "demeaning of gay men,'' stereotype them as "deviant,'' and interfere with their private lives on the assumption that homosexuality was "morally reprehensible.''  Civil rights groups described the ruling as "a historical moment for the Hong Kong gay community.''  Hartmann declared that four sections of the law covering homosexual acts, on the books since 1991, were unconstitutional.  The Basic Law "must allow for a remedy in appropriate circumstances to those who say that their fundamental rights have been undermined by primary legislation,'' he ruled.  Hartmann said that Leung, should not have to face prosecution and life imprisonment before he can use the courts to challenge the constitutionality of laws that infringe upon his rights.  Previously, sexual intimacy between two men below the age of 21 was a criminal offence even though sexual intimacy between heterosexuals and lesbians is allowed after the age of 16.  Group sex between gay men, even though in private and conducted by consenting adults, was also criminal, while such activities between heterosexuals and lesbians above 16 was allowed.  An act of sodomy, submitted as the natural sexual expression of gay men, below the age of 21 was a criminal offence with possible life imprisonment if it was conducted between two men.

During the trial in July, the government conceded that three of the four sections were in breach of the Bill of Rights and Article 25 of the Basic Law safeguarding equal rights because they unfairly distinguished between homosexuals and heterosexuals.  However, it maintained that the criminalization of sodomy between men under the age of 21 was not in breach of the constitution since sodomy between a man and a woman under 21 was equally a criminal offence.  The judge added that the proposal not to make women criminally liable "demonstrates a reliance on the stereotyped view that the female is per se submissive, the man always sexually the active partner.''  The reason put forward by the government to make both partners of a homosexual act of sodomy below the age of 21 was the "potential for blackmail.''

Citing an Equal Opportunities report to Legco in 2001, Hartmann ruled this attitude exemplified "stereotypical assumptions made of the homosexual community.''  Hartmann also declared that criminalizing sodomy for homosexuals below the age of 21 was indirectly discriminatory of gay men since it deprives them of their natural sexual expression.  "Put plainly, heterosexual couples may have sexual intercourse under the age of 21, homosexual couples may not,'' he said.

Leung said that previously, he could not form physical homosexual relationships because of this "criminal threat above my'' head.  [Mark Godsey]

Dallas Prosecutors and Batson

From the washingtonpost.com:  "DALLAS -- As recently as 2002, Dallas County prosecutors were excluding eligible blacks from juries at more than twice the rate they turned down whites, a newspaper reported Sunday.  The issue surfaced earlier this year when the U.S. Supreme Court overturned the 1986 murder conviction of a black man accused of killing a white motel clerk, saying the Dallas County jury that convicted Thomas Miller-El was unfairly stacked with whites.

The Supreme Court cited a manual, written in 1969 and used until at least 1980, that instructed prosecutors on how to exclude minorities from Texas juries. Justice David Souter wrote that racial discrimination in the Miller-El case was unquestionable.  Bill Hill, who took over as district attorney in 1999, said his prosecutors don't exclude jurors on the basis of race.  "The statistics may show we strike more blacks, but it's not because they're black," Hill said. "It's because for one reason or another, they (prosecutors) don't think they are going to be fair and impartial."  Blacks still served on Dallas juries in proportion to their population, the newspaper's study found, because defense attorneys excluded white jurors at three times the rate they rejected blacks.

The Dallas Morning News examined jury selection in cases from 2002, reviewing more than 6,500 juror information cards, studying transcripts of juror questioning, and analyzing lawyers' strike patterns.  It published the first part of a three-part series on jury selection Sunday.

The analysis found that prosecutors treated the responses of blacks and whites to key questions differently. A review of transcripts of juror questioning, available in 59 of the 108 cases studied, showed that:

_Juror views on rehabilitation were the most important factor in determining whom prosecutors rejected, but they excluded 79 percent of blacks who favored rehabilitation over punishment or deterrence, compared with 55 percent of whites who did.

_Prosecutors excluded 78 percent of blacks who said they or someone close to them had had contact with the criminal justice system, compared with 39 percent of whites.

_Prosecutors rejected all blacks who said they or someone close to them had had a bad experience with police or the courts, compared with 39 percent of whites who gave the same response. About 2 percent of all respondents gave that response.

More . . .  [Mark Godsey]

Washington Post editorial on Bail for KKK Killer

Edgar Ray Killen, belatedly convicted of manslaughter for 1964 killings of civil rights workers in Mississippi, was granted bail pending appeal.  The Washington Post editorializes against it here. [Jack Chin]

Homophobic Crime Cases Falter

According to a British study, homophobic-based hate crimes are hard to prosecute because the victims often refuse to testify.  "In the first full set of figures for homophobic crime released by the Crown Prosecution Services, officials admit that it is a “concern” that victims feel uncomfortable taking crime complaints through to prosecution.  They are calling for more action to be taken to reduce the “gap” between prosecution for hate crimes and other crimes." Story . . . [Mark Godsey]

Hate Crime Investigations

From the IndyStar.com: "A fire at a Bloomington, (Indiana) mosque early Saturday (July 9) is being investigated as a hate crime by the FBI and members of its Joint Terrorism Task Force.  The incident took place at the Islamic Center of Bloomington, where a ground-floor window was broken and an incendiary device was used to start a fire....A burned Quran, Islam's holy text, was found near the broken window, and fire damage inside the building was limited to a wall....In its 2005 annual report, the [Council on American-Islamic Relations in Washington, D.C] noted it had received 141 reports of actual or potential violent anti-Muslim hate crimes in 2004, a 52 percent increase from the 93 reports received in 2003." The mosque plans to hold an open house in a couple weeks to invite the Bloomington community to learn more about the mosque, its memebers, and mission. Story...

And speculation of hate crimes in Los Angeles stemming from a series of freeway shootings: From the LATimes.com: "Activist Najee Ali (director of Project Islamic Hope) called on Monday (July 11) for the FBI to join the investigation into a series of Southland freeway shootings, saying some of the cases were racially motivated hate crimes (consisting of Latinos shooting African-Americans)...although he did not provide information to back up his allegations.  Law enforcement officials were quick to say they are unaware of a racial motive in the shootings, which began on the Costa Mesa Freeway in Tustin on March 12.  Altogether, four people have died in more than two dozen freeway shootings in Los Angeles, Orange, Riverside and Ventura counties.  LAPD Officer Jason Lee said the investigation into the incidents in the city of Los Angeles is continuing, adding that there is 'no definitive reason to believe these are racially motivated.'" Story... [Mark Godsey]

Former Klansman Convicted

From CNN.com:  "PHILADELPHIA, Mississippi (CNN) -- Forty-one years to the day three civil rights workers were ambushed and killed by a Ku Klux Klan mob, a jury found former Klansman Edgar Ray Killen guilty of all three counts of manslaughter Tuesday.  The "Freedom Summer" killings of James Chaney, 21, Andrew Goodman, 20, and Michael Schwerner, 24, galvanized the civil rights movement.  The jury of nine whites and three blacks reached the decision after several hours of deliberations." Story . . .  [Mark Godsey]

Iowa: Governor Restores voting Rights to Discharged Felons

For years, Iowa was one of the few states without a long history of race-based vote suppression to deny discharged felons the right to vote.  After Nebraska passed a a law automatically restoring voting rights earlier this year, Iowa stood alone.  Now the governor by executive order will restore voting rights to all persons who have been discharged from prison, probation and parole.  Story here, editorial against felon disenfranchisement here; Roger Clegg on the merits of felon disenfranchisement here.  [Jack Chin]

NY Mayor Prosecuted for Attempting to Marry Gay Couples

From Law.com:  "The village mayor who challenged New York law by attempting to marry gay couples last year will face trial, the state's highest court ruled Friday. New Paltz, N.Y., Mayor Jason West faces 24 misdemeanor counts of violating the state's domestic relations law by marrying couples without licenses in late February 2004. He faces fines and up to a year in jail if convicted. West's actions came amid a flurry of efforts in various states to wed gay couples after San Francisco Mayor Gavin Newsom allowed gay couples there to marry in February 2004. Those efforts have largely been put on hold by the courts. West has maintained he was upholding the gay couples' constitutional rights to equal protection -- and thus his oath of office -- by allowing them to wed in the Hudson Valley college town in late February 2004. But state officials, including Gov. George Pataki and Attorney General Eliot Spitzer, have said same-sex ceremonies violate state law."  Story . . .  [Mark Godsey]

Hate Crime Bill Introduced in House

A new hate-crime bill was introduced in the U.S. House of Representatives on Friday with explicit protections against crimes based on sexual orientation.  Story . . .  [Mark Godsey]

Latinos Angry at Runaway Bride's False Charges: UPDATE

CrimProf Katheryn Russell-Brown of Florida is cited in this article.  Will critics be more forgiving when they hear her excuse for the escapade?  She was horny.  [Jack Chin] UPDATE: She's got a rap sheet.  The Smoking Gun has a nice collection of emails sent to Duluth, GA city officials with suggestions about how to handle the case.  After reading some of these, you will never again say that the art of letterwriting is dead.

Arizona Voids Race-Based Traffic Stops

The Arizona Supreme Court unanimously held that race-based traffic stops may give rise to a defense to criminal charges arising therefrom.  The case involved an appeal of the refusal of the trial court to appoint an expert witness who allegedly would have shown a race-based pattern of traffic stops in the county.  The trial judge held that under Whren, "selective enforcement of traffic laws was not a defense to the drug offenses for which the defendants were charged."  The Supreme Court disagreed, holding that while discrimination might not be a Fourth Amendment problem, it was a Fourteenth Amendment problem.  On appeal, the state did not deny this, but contended "however, that proof of selective enforcement of traffic laws is not a defense to a criminal charge, but rather entitles injured parties only to civil redress."  Either the Supreme Court unfairly characterized the state's argument or the state's copy of United States Reports didn't have Yick Wo v. Hopkins in it; in any event, the Court unanimously rejected the argument.  The Court cited this article by Penn CrimProf Paul Robinson.  Opinion here, story here. [Jack Chin].

Activists Seek Reopening of 1946 Murders

Four African American sharecroppers were lynched in 1946 in Georgia; Morris Dees of the Southern Poverty Law Center is involved in the effort to have the cases reinvestigated. [Jack Chin]

Louisiana's Solution to Indigent Defense Funding

On April 1, in the case State v. Citizen (2005 WL 737421) the Louisiana Supreme Court held that, in cases involving indigent defendants, if adequate funds to support assigned counsel's work aren't identified and made available, the defendant has the option to file a motion requesting the trial judge to stop the prosecution of the case until adequate funds are provided.  The Court assured that speedy trial mandates still apply according to LA and Federal Rules of Criminal Procedure. [Mark Godsey] (thanks to Pamela Metzger of Tulane for the tip)

Oral Argument Today in Prison Religious Freedom Case

The Supreme Court will hear oral argument today in Cutter v. Wilkinson, 03-9877.  Question presented:  Whether Congress violated the Establishment Clause by enacting the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1 through § 2000cc-5, which requires state officials to lift unnecessary governmental burdens imposed on the religious exercise of institutionalized persons under their control?  The suit was brought by a group of prisoners who claimed that the Ohio prison system stifled their ability to exercise their religion of choice.  On prisoner is a Satanist, another claims to be a witch, and others belong to a polytheistic religion called Asatru, which requires them to wear medallians in violation of prison rules.   Details. . .   [Mark Godsey]

Attack on North Carolina Student Ruled Hate Crime

Story about the gay bashing here. [Jack Chin]

New Supreme Court Decision Today: Constitutionality of Race Segregation in Prisons

From BNA.com:  "The U.S. Supreme Court on February 23rd decided one case related to the criminal justice system. In Johnson v. California, No. 03-636, the court ruled that the proper standard of review for an equal protection challenge to a California corrections department policy of racially segregating prisoners for up to 60 days when they enter a new prison is "strict scrutiny." The court declined to apply the deferential standard of Turner v. Safley, under which a prison policy that burdens inmates' fundamental rights may be upheld if it is rationally related to legitimate penological goals. It remanded the case to the lower courts for an application of the strict scrutiny standard."  Decision here.  More on the case from Crime & Federalism here.  [Mark Godsey]