Monday, June 24, 2013

Civil Disobedience as Espionage

(c) 2010
I find the uproar over Snowden to be interesting. Snowden is not the traditional Civil Disobedient in the mold of Gandhi, MLK Jr, or Nelson Mandela or any of the other political prisoners including Bradley Manning. The practitioners of classical civil disobedience all realized that paying the penalty for their disobedience was part of what they had to endure and the educative function of civil disobedience was the fact that they went to jail for their beliefs and their refusal to bend to the demands of then current political morality. 
Snowden did not (although he may yet do so) go to jail. That causes me to believe that CD is an ongoing  political event. That being said it does not mean that Snowden is not a whistleblower.  We probably all suspected the existence of the NSA program if we actually thought about the technology available to the Government and the Government's secret contractors such as Bozz-Allen.. All he did to earn the enmity of the right wing noise machine and the various servants of government overreaching such as Feinstein, Schumer, Graham and McCain,Obama and Holder and the lesser lights or dimmer bulbs if you will like King, Gohmert et al was to disclose the actual existence of a tornadic covert program that sweeps up everything its path. He gave us concrete proof, direct evidence if you will  that we are being surveilled by our own Government.  This is not the same as saying that we are currently being listened to by agents of the government or agents of the privatized government such as Snowden's former employer. What he has established is  that all of what we say, hear, speak and write is being vacuumed up and stored for later use. Archived if you will. As someone said recently this is not a search and seizure. It's a  seizure and the search is yet to come. Snowden is going to be used by Chinese and Russian politicians. There is no doubt about that.  That does not make him a bad guy (at least as I understand the term) and much more importantly it does not mean that his disclosures are any the less important to us as citizens off the US. What we make of this is up to us.
Snowden's actions are certainly less criminal than the lies told by James Clapper under oath to congress this past spring nor less criminal than the disclosure of the identity of a CIA operative by Dick Cheney...something that deprived our nation of the services of Valerie Plame as a covert agent of our government.  That was certainly more of an espionage operation than Snowden's disclosures.

Monday, June 17, 2013

US Senate Skips Town for Fathers' Day Gfits

By law the Congress is charged as the lawgivers in our Nation with overseeing the operations of the the executive branch of government. This includes our national security infrastructure including the National Security Agency (NSA) that is busy turning our Nation into a textbook example of the national security state.
On Thursday last only days after Edward Snowden released documents showing the existence of the PRISM program at the NSA that indiscriminately vacuums up incredible amounts of what is called metadata from the phone calls, emails and Internet site visits of ordinary Americans the NSA held a classified briefing for the entire membership of the US Senate in a secure room in the basement of the US Capitol building. This was reported in The Hill which is a smallish circulation newspaper that reports mostly on goings on in the Government of the US.
What made this article unusual and worthy of note is that more than half of the membership of the Senate decided they would skip that briefing. That's right you read it correctly 53 members of the senate balanced their duty to oversee the structure of the national security state that has been created since the attack on the US by foreign nationals against their desires to get home early for the Fathers' Day weekend and the weekend won..
What really frosts my butt about this story is that the identities of the members who chose to get home early in order to be on time to receive their Fathers' Day gifts and accolades were secret and their names not disclosed to The Hill. Apparently the gift-receiving culture of our national politics was more important to them than doing the jobs they were elected or in some cases appointed to do. What gives here? Has the US Senate just blown us off big time?!

Sunday, June 16, 2013

Tomorrow is Decision Day.

Tomorrow is the 17th of June. There will be only one more Monday in June and the current Term of Court ends when the last decision of the October 2012 Term is filed. The Court does not convene again until the first Monday of October. Absent a special decision day it is quite probable that the Court will file its opinions in Hollingsworth vs Perry and US vs Windsor on either tomorrow, the 17th or on the following Monday the 24th of June. There are at least two other hot button cases to be decided before the term ends: the affirmative action case and the case out of Shelby County Alabama seeking to toss section 5 of the 1965 Voting Rights Act. My guess is that tomorrow is going to be Decision Day for both the Hollingsworth and Windsor cases. The court traditionally files its opinions on related but separate cases on the same day. So I expect both cases to be filed or, probably more accurately, released on the same day. I am not as familiar with the facts and arguments in the Windsor case as I am in the Hollingsworth case so I will limit my comments to Hollingsworth only.
Hollingsworth vs Perry arose out of California's Proposition 8 at the 2008 General Election which amended the state's constitution to take away the right of Californians to marry the person of their choice and welded the so called 'traditional marriage' model into the California's constitution. There are three things that SCOTUS could do with this case.
First of all it could render a global decision that either ties marriage to privacy rights like the court's prior decisions on birth control (Griswold vs Connecticut) and a woman's right to choose whether she will carry a pregnancy to term (Roe vs Wade) or on the validity of statutes that outlawed interracial marriages (Loving vs Virginia) and hold that the states cannot interfere with personal life choices on either or both of those grounds . The Court could adopt a global decision denying gay and lesbian people equal access to the legal benefits of marriage. If the courts adopts the view(s) of the petitioner proponents of the traditional model it will have some difficult writing and persuading to do in the face of cases like Loving vs Virginia that held that laws against interracial marriage violated the Fourteenth Amendment's equal protection clause. There will also be a major PR issue reconciling a denial of marriage equality based on the existence of non-marriage fixes such as California's Registered Domestic Partner statute which gives RDPs all the rights, responsibilities and benefits of marriage other than the designations husband and wife while ignoring what SCOTUS said about the separate but equal fiction cobbled onto Fourteenth Amendment jurisprudence by Plessy vs Ferguson: essentially that it was nonsense. A decision adopting the positions of either the Petitioners or the Respondents will be of great scope and will go to to the heart of how society is organized is so fundamental that it should not be by a narrow one vote majority but i should be unanimous. Chief Justice Warren realized that and the great school desegregation case Brown vs Board of Education was a unanimous decision. We should ask no less of the Court in rendering such a major case as this one. If the marriage equality case is rendered by a less than unanimous Court it will suffer the same as Roe: continual attack by partisans on the losing side of the case. Some that will divide the Nation for decades to come. I think that Justice Kennedy who has been very understanding of the the issues involved in gay rights litigation and who is generally agreed to be the 'swing vote' will withhold his vote to render any 5-4 decision in favor of nationwide marriage equality. I also suspect that Chief Justice Roberts will also not want to lend his vote to a narrow 5-4 decision holding for the proponents of Proposition 8. I doubt that either side in this great dispute can muster the five votes necessary for for either such earth-shaking nationwide decision.
Another possible outcome would be for the SCOTUS to dismiss certiorari on lack of standing grounds under Article III of the Constitution. A dismissal on this basis would effectively uphold Proposition 8 because it would vacate the Court of Appeals decision previously filed in the case and it would vacate the decision and judgment of the District Court declaring Proposition 8 to be unconstitutional. The reason for this is that if the petitioner at SCOTUS did not have standing to ask for certiorari in the Supreme Court it also would be lacking, ipso facto, in both the Ninth Circuit appeal and in the District Court lawsuit as well. Those cases would have to be dismissed also. Federal courts are almost without exception courts of what is called “limited jurisdiction” and the judicial power of the United States has to affirmatively and expressly appear in Article IIII or the federal judiciary is without power to act at all in the case. A finding there is no standing would effectively end all of the attacks on Proposition 8. I would think that this view would have a chance of prevailing but for the fact that the original panel of 9th Circuit judges certified a question of standing under state law to the California supreme court and that court unanimously held that in a case where California's constitutional officers, the Governor and the Attorney General, who are charged by law with defending an initiative measure enacted by the electors fail and refuse to defend the act under attack because they believe it is unconstitutional that the proponents of the measure have standing under California law to defend the measure in state courts. That is close to but not identical with Article III standing. In California's trial court system, the superior court is a court of general jurisdiction that has original power to hear and decide any and all cases except those which the legislature has been expressly removed from the superior court's jurisdiction so that the superior court can not hear and determine the case. The federal district courts being courts of limited jurisdiction only have the power to hear and determine cases over which it has been expressly granted jurisdiction either by the Constitution or Congress. The plaintiffs, Perry et al in the federal court lawsuit brought their case in federal court because they urged that Prop 8 violated the Equal Protection Clause of the 14th Amendment therefore the district court had jurisdiction because it was a 'federal question'. The also asserted that they had Article III standing because they had skin in the game and alleged that it was their federal constitutional rights that were being denied. The same cannot be said for the proponents of Prop 8. Their interest in this case, their skin in the game so to speak was more akin to the interest that every citizen and taxpayer has in seeing that the laws are enforced. The courts have always held that the interest that each of us possesses in that regard is so minuscule that it's non-existent and does not confer Article III standing. The Court could find that because the proponents of Prop 8 could allege no particular injury to themselves they did not have standing to defend the case in federal court. SCOTUS to dismiss on standing grounds would have to do either one of two things. Either it would have to distinguish standing as discussed by the state supreme court and found to exist in these Prop 8 proponents as different from Article III standing. That could be done but it might appear to the public to be a nonsensical exercise in the parsing of words and thus adversely affect the moral authority of SCOTUS. The other supporting logic in such a standing opinion is that SCOTUS would just be interfering with the judgment on the certified question of state law much like SCOTUS did in 2000 in Bush vs Gore when it overturned the decision of the Florida supreme court on the question of who won the state's electoral votes. The illogic of that decision has troubled SCOTUS and its moral authority for the last 13 years much like it was a bell tied to the tail of a dog or a cat. Based on these  very real considerations  I think that SCOTUS will not adopt this position and essentially follow the lead of the California court on the standing issue or just ignore the issue entirely.
The third possible outcome and the one I believe will prevail as to Proposition 8 is that SCOTUS will in fact DIG the case. Certiorari is a discretionary writ. It is not an appeal because generally there is no right of further appeal from an adverse decision in an appeal from the district court. The court of appeal in this case had exclusive appellate jurisdiction. The only way Prop 8 proponents could  launch themselves into the Supreme Court was to convince four of the nine justices to issue a Writ of Certiorari. The only thing required for a grant of certiorari is the affirmative vote of four of the nine justices. Five justices may later say that they don't' want to hear the particular case for whatever reason. DIG is lawyerese for Dismissing Certiorari as Improvidently Granted. The effect of DIGing the case would be to reinstate the opinion of the 9th Circuit upholding the decision of the District Court in declaring Prop 8 to be unconstitutional. The reason for this is quite simple and involves no effort to distinguish anything from anything else as a dismissal for lack of Article III standing would require. The case as litigated in the San Francisco district court involved a simple fact pattern. California's supreme court found under the California constitution that marriage is a fundamental right and  that denying same gendered people the right to intermarry was an interference with a fundamental right supported by neither the required compelling state interest nor even the lesser standard of a rational basis. Proposition 8 six months after the California supreme court's 4-3 decision in The Marriage Cases holding that marriage equality existed in California later removed that right and declared that in California only opposite gendered people would intermarry. Proposition 8 was held valid by a subsequent ruling of the California court and there was no discussion of any federally guaranteed right in either opinions of the California court. The issue presented to the district court by the plaintiffs and later to the circuit court on appeal was a question of whether California's doing what it did in November of 2008 was lawful under the US Constitution. Since Proposition 8 was passed public opinion in California now shows a substantial majority in favor of marriage equality. Furthermore the last four times that the issue was on the ballot anywhere in this nation the electorate has supported marriage equality in all four of those contests. SCOTUS knows this. They are not going to ignore this march toward equality. They are going to want to see it proceed. Since the facts of Hollingsworth are unique in this dispute and really only apply to the California fact pattern it really should only apply within California and to the facts and procedural history of this case, DIGing the case would cause minimal damage to the proponents of Prop 8 and achieve some justice at least in California. It would also allow the progress of democratization of our society to grow and prosper.
Thus I suspect that SCOTUS is going to DIG the Proposition 8 case and allow everyone to claim to be the victor.

Friday, June 14, 2013

Is It Time for a Constitutional Convention? Part One

I read a post by Daniel Marks in FDL discussing the current utter inability of Congress to govern the Government that was created as the product of the Constitutional Convention of 1787. It is an excellent rundown of the evidence showing that our Government is both dysfunctional and no longer operating for the benefit of us, the posterity of the people who wrote that document. They are the people we generally call the Founders. They attempted to create a republican government that would 'promote the general welfare, and secure the blessings of liberty to ourselves and our posterity” as solemnly promised by them in its Preamble.
I have lately and for the last several years wrestled with the thought that perhaps we need a constitutional convention to deal with specific issues that face us as a society operating in the fourth century since its adoption. I was concerned that a convention would open the flood gates to nonsensical ideas like making our government a theocracy, or creating classes of citizens, or restricting the burning of flags only to patriotic associations retiring tattered copies of it, or monkeying around with the franchise by authorizing literacy and wealth tests and the like and freezing and calcifying religious beliefs as to how society is organized into the Constitution. Those were scary thoughts to me, what if we were jumping from the frying pan into the fire? What if we ended up worse than before? After reading and thinking about Mr Marks' post I no longer have those fears. In this part of my analysis I am going to write about current issues of governance. What we can't get done and why we can't get it done. In the next I will put forth an analysis of what needs to be done in order to further the hopes and desires of the Founders and how we might as a nation go about doing what we decide has to be done to keep faith with the Founders, and to keep faith with ourselves and our fellow citizens.
The current Constitution became effective in 1789 and it wasn't much of a magna carta but it was the best that could be cobbled together at the time. It also was most definitely not a monumental work of democratic political theory. It was simply a broad outline with some basic requirements and built in bumps in the political road. The Founders were by no stretch of anyone's imagination democrats of any stripe. All but one of the Founders either were the owners of other human beings kidnapped and condemned to a life of slavery or had made fortunes in endeavors that supported slavery. Twenty percent of the people of this new nation were owned by some percentage of the other eighty percent! The Founders were definitely not democrats.
It created a bicameral national legislature it called a Congress and abandoned the unicameral legislature under the Articles of Confederation. This new legislature was composed of one house which was elected by the legislatures of the constituent states of the Union for six year terms. They called that the Senate. The other house they called the House of Representatives and it was elected 'popularly' by persons allowed to vote for the more numerous branch of their state legislatures. That generally meant males of European descent, who owned real property and who weren't themselves owned by other members of the society and who paid taxes. Seats were apportioned in this body according to the Three-Fifths Compromise. So basically if you weren't allowed to vote for your local legislative representative you were only 3/5th of a human being for purposes of representation in the Congress. That was not very democratic at all.
The Constitution also created an officer called “President of the United States” and set out his qualifications and prescribed a special oath he must swear before he could undertake his duties. The new Constitution set out his duties and made him commander in chief not of Americans (as some people urge today)  but of our military forces. It also set out how he was to be elected. It created another body which we call the Electoral College. Each state had seats in this college equal to the state's total representation in Congress and stated that no sitting member of Congress need apply for a membership in this body. It left the 'chusing' of its members to the discretion of each state's legislature. Having done that it required that the college meet on the same day, a day prescribed by Congress, in each state capital. Essentially there were going to be thirteen separate meetings.There they would vote only once by indicating their choice for President. They then packaged up their ballots and sent them off by messenger to the senate. When Congress convened it would count the votes. The person with a majority of electoral votes would become president and his runner up became vice president. If no one received a majority each chamber would meet separately and the senate would elect a vice president and the house, each state having one vote, would select the President. When there is no requirement of popular elections for an office it can't really be said that it was a democratic election.
The history of constitutional law in this country is a steady march to democratize the government. Changes were made in the Electoral College by the Twelfth Amendment, the 3/5th Compromise was repealed by the Fourteenth Amendment, slavery was ended by the Thirteenth, senators were directly elected by the Seventeenth , the franchise was broadened and enshrined in the Fifteenth Amendment which prevented states from denying the vote to persons on account or race or 'previous condition of servitude', women were given the right to vote by the Nineteenth in 1913 the year of the birth of my mother, poll taxes were outlawed by the Twenty-fourth in 1964
Fast forward to 2013 and where are we? We have a senate that requires a ten vote super majority in order to take a bathroom break. We have a house dominated by rural interests protected by something that has bothered us and been derided by pundits since the beginning of our history. We call it the “gerrymander” after Eldredge Gerry who was the fifth vice president of the US.
As a result, we have a Congress that recently  strained mightily in long hours of labor and gave birth only to a fraction of what's needed to fix our health care delivery system. Then that institution voted no fewer than 37 times to kill this 'child' that it gave birth to after much cajolery, poking and prodding and financial transactions between interested parties and entities associated with that Congress. I understand the speaker is going to bring it up again for another vote. Yet we have no budget. We squabble quarterly over how much debt we the people can incur and which of our bills we are going to pay. We have a polity where money is speech and speech is money and I have a right to drown out your speech with my money. We have a polity where fictitious entities are treated equally with 'we the people.' Congress has devised a scheme whereby people who make secret and anonymous donations to certain tax exempt 'social welfare' organizations can be safe and secure in the knowledge that their taxpayer-aided gift will benefit the candidate of the contributor and no one will ever be the wiser because the donor lists of those privileged groups are secret. We have a society in which every thought ever expressed by us and given voice by us via the telegram, telephone, television, social media, via the internet and all the devices it has spawned such as smart phones and the like are preserved forever in some data archive somewhere and available for instant retrieval and use by government entitles for whatever purpose, known or unknown to us. The Government in theory knows what movies you watch, what books you buy. What TV shows you watch. What emails you write. What your tastes in porno are even. It knows what you tell your congressman perhaps even what you tell your priest. There are even restrictions on the doctor-patient relationship enacted by the Patriot act in this new national security state. I am no longer convinced even that my communications with and from my law clients are protected to the extent they were only forty years ago in the early days of my career.
The Judiciary has not been exempt from the destruction wreaked by these changes to our political system. In an end run around the Warrant Clause of the Constitution the Congress in 1978 created an Article One court called the Foreign Intelligence Surveillance Court (FISC). It's has a very specific jurisdiction. And in a complete reversal of our practice since the founding of the country it is a secret court., our very first secret court. No one knows what cases are pending before it.  No one knows what relief the petitioner (which is always the Government or an agency of the Government) is asking for. No one knows who, if anyone, has physically appeared before the court. The petitions filed are secret. The arguments are secret. The evidence is secret and its final orders are secret. The FISC is staffed by sitting district court judges selected for six year terms by the Chief Justice of the US. No publicly accessible records are kept. Turnover orders are issued by the FISC and are completely secret and the persons or corporations receiving these orders are required by law to keep the fact they have been served with an order secret and and may not disclose its existence or contents to any person. In other words everything this court does is secret. We have entered upon an era in our history, both the good and the bad,  in which we are living under the oppression of secret laws made in total secrecy. That is the hallmark of tyrannical despots and of fascists and even of nazis.
Neither warrants nor the concept of probable cause is a concern of the FISC. Any judge of the court is required to issue the order requested if made by an appropriately titled government official who says there is an investigation pending related to national security provided that if the investigation is of a “United States person” it is not 'conducted solely upon' activities protected by the First Amendment. Simply put the Government may investigate you and obtain secret orders based on your exercise of  your First Amendment liberties provided there is at least one other ground for investigation other than your exercise of those liberties. This is a truly nugatory guarantee and it means that the FISC is simply a rubber stamp on a decision already made by an unknown and unquestioned government official. All of this is contained in the Patriot Act enacted after the attacks of September 11, 2001.
The problems outlined above are some of the pressing issues of our political history and they are intermixed with other problems the Nation faces such as climate change, tax burdens, constant warfare and the ever present burden of poverty, hunger and the lack of adequate access to health care, mental health care and access to justice in our society. We must also deal with the biggest problem we as a society have the inescapable fact that our governance is controlled not by us but by corporations and money. We have to decide what it is that we want the Government to deal with and how best to ensure that those ends are met These are some of the problems we as Americans face in the Twenty-first Century. Our task is to decide  how we will  address them. Addressing these core issues in our society demands that we continue to democratize our Constitution and our society.

Thursday, June 6, 2013

More Bad News.

Again the New York Times lives up to its role as the Nation's Newspaper of Record and published a most interesting story on information provided to it by the UK's Guardian newspaper. You can read the article here.
In mid April of this year an unknown bureaucrat employed by the FBI, a person of no lesser rank than an Assistant Special Agent in Charge the minimal rank required by section 215 of the Patriot Act, i.e. the assistant manager of an FBI field office located god only knows where applied to a secret US Court, the Foreign Intelligence Surveillance Court or FISA for a secret order requiring MCI Communications dba Verizon Business Services to a secretly turn over call records of all of Verizon's customers in the United States to this unknown and unidentified assistant special agent in charge acting under the authority of the Director of the FBI. Presumably this major domo then turned all the tangible things he received pursuant to the order of Judge Clyde Vinson to the NSA which is another snooping agency of the US Government. The Order which you can read here is a continuing order and requires Verizon to continually turn over the tangible things it accumulates until it's expiration date sometime next month.
The order  is marked Top Secret and the relevant portions of the Patriot Act under which it was issued, section 215 of the Act can be read here. All persons who see the order or upon whom it is served are required not to disclose to any other person the existence of the Order or its contents or the persons upon whom it has been served. The order published by the Guardian required Verizon to turn over all data in its possession or under its control concerning any and all telecommunications originating anywhere and delivered anywhere by any person using Verizon's telecommunications facilities. The Order required that even routing and trunk information i.e. the specific route that any such communications took on the system be disclosed to the FBI. The only exception in the Order was that Verizon was not required to disclose the data for any communications which originated and terminated outside United States. Which is another way of saying turn over all of the metadata generated within the US that used any Verizon telecommunications infrastructure. It is by its own terms a fishing expedition and was issued without any finding of probable cause. It is really important to understand that the failure of the judge to find any probable cause as is required by the Warrant Clause is not the Judge's failure in his duty. Rather it is the fault of section 215 of the Patriot Act which does not require a finding of probable cause. The Congress that enacted this law did not require such a finding. If anyone or any institution is to blame for this the blame must be laid directly at the feet of each and every member of Congress who voted for the law. Again I suppose we have the best Congress that money can buy.
The Warrant Clause of the Fourth Amendment is simple and straight-forward: “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized “ Congress created a mandatory duty and imposed that duty on FISA judges to issue the order (they didn't call it a warrant) when the right person applied for it and asserted that the reason for the application does not solely have its genesis in actions or events protected by the First Amendment.. This is akin to the robo-signing scandals of recent years in the foreclosure industry that those of us who practiced bankruptcy law for debtors saw all the time in motions to avoid the automatic stay and for leave to foreclose on debtor's residences. It is simply a mechanistic recital of magic words and a want list. All the agent has to do is mention the magic words “national security” and ask the judge for the order. The judge then must enter the requested or modified order.
The FISA court while staffed by Article III judges is not an Article III court. That's because the members of that court are not appointed to that court by the President with the Advice and Consent of the Senate, and they do not have lifetime tenure upon “good behaviour”. There is no building called the FISA court building. It operates totally in secret and in the chambers of the judges who serve on that court. The files of the FISA court are not open to the public. You can not connect to the court's computer via PACER and read or download pleadings or orders or even see the docket. The only thing we know about the FISA court is that it is a secret court, its members are appointed from among sitting District Court judges by the Chief Justice of the United States for specific terms of office. All matters pending before the court are secret, all hearings are secret and ex parte. Ex parte means that only one side, the government's side in this case, is entitled to appear before the court, to file applications and to argue before the court. No one is authorized to object to any application or any proposed order of the court. Persons who are subject to orders issued by FISA are not allowed to participate and are bound to secrecy when they are served with a copy of the Order.
The Order issued in this case was issued under the authority of section 215 of the infamous USA PATRIOT Act which was authorized by Congress within days of the attack on the US by Saudi Arabian nationals on September 11, 2001.
The Patriot Act not only does not require a finding of probable cause from the application before the FISA court but section 215 mandates that the court shall issue an order for the production of tangible things when application is made (1) by an appropriately titled FBI agent (2) who mutters anything about National Security as its justification, and, (3) if the the request is made on grounds that are not “solely” based on the exercise of First Amendment protected rights of the person(s) who are the proposed subject(s) of the requested order. The FISA court can modify a proposed order but if there are no standards set out in the statute governing the order's issuance in the first place then what standards are to be applied by the FISA judge in order to modify the requested order? It is quite apparent to anyone who reads the statute and is of normal intelligence that the likelihood of a court modifying a request is somewhere between non-existent and the proverbial snow ball's chance in hell.

Wednesday, June 5, 2013

North Carolina Repeals Its Racial Justice Act.

North Carolina is in a headlong rush back into the 19th century and honored its own brand of Traditional Values recently  by repealing the first in the Nation Racial Justice Act which allows persons convicted in North Carolina and sentenced to death to urge on appeal (and to establish)  that racism was a cause of their condemnation to the graveyard. It was enacted at the time when there was a progressive streak in the politics of the Tar Heel State  Those years were apparently sweet but short.News of this legislation  appeared in today's New York Times. You can read the whole article here.
The Act was enacted during the tenure of a Democratic governor. Mike Easley  and at a time when the legislature was not as populated with RWNJs as it is now. This repeal  is nonsensical. It is designed not only to grease the skids to the death chamber in that formerly slave state but allows North Carolinians to reminisce their way back to when the good old Southern tradition of the Lynch Mob was in its hey day. Apparently proponents of the traditional values of slavery, segregation and mob-imposed justice swinging  from the long leaf pine trees (pinus palustris) of North Carolina have succeeded in returning to the 'good old days'.
There is only one solution to this nonsense: the wholesale repeal of capital punishment throughout the Nation. It is intolerable that people can be put to death in anywhere in  the Union. It is barbaric, it is of no use in the prevention of heinous crimes and when it is erroneously imposed on a person factually innocent of the crime it is just as much a murder as any committed in this country.

Good News and Bad News.

There is news this morning. It is good news and it is bad news. Since I believe that bad news is sometimes ameliorated and cushioned a bit by good news. I will deal with the Bad News first.
In today's New York Times I found an article about a sitting Judge for the Fifth Circuit Court of Appeals which sits in Houston, among other places, and handles appeals from the judgments of the district courts of Texas, Mississippi and Louisiana which comprise the Fifth Circuit. You can read the article here. The judge in question is Edith Jones who has been on the Fifth Circuit bench since she was first nominated by President Ronald Reagan at the end of February 1985. She was confirmed by the US Senate thirty five days later on April 3, 1985. That is a most interesting fact since President Obama's nominees have waited sometimes almost two years before receiving the advice and consent of the Senate and taking up their judicial duties. In some cases the senate has refused to vote on his nominees altogether because 'filibusters' could not be broken.
Judge Jones recently made a speech in Pennsylvania before a meeting of the Federalist Society in which she asserted that black and Latino Americans were more predisposed to commit crimes than their caucasian peers and that the death penalty was a good thing because it prodded the soon to be executed to make their peace with god. She also stated that claims of mental retardation by criminal defendants (mostly people accused of capital offenses) were an abuse of the justice system. She commented that the SCOTUS decision in Atkins vs Virginia (2002) 536 US 304 which held that the imposition of the death penalty on the “mentally retarded” violated the Eighth Amendment's proscription against 'cruel and unusual punishments'. She said the case was wrongly decided. That is easy to say about any case. You just have to say it. Now Judge Jones is certainly as entitled to opine that cases decided by SCOTUS were wrongly decided as any lawyer, judge or citizen is. My problem with the comment is that it shows a mindset that believes the society has the unfettered right to dispose of its detritus (as defined by either majority opinion or by loud and raucous minority opinion) by gassing, poisoning, shooting, hanging or any other way. She does not seem to care that capital punishment is un-fixable when wrongly imposed. Any trial lawyer (which she was not) will tell you one of the greatest tasks in trying a case to a jury is to overcome societal prejudice against certain types of defendants (and the crimes they have been alleged to have committed), especially when prosecutors have previously tried those cases in the media.  Additionally Judge Jones for years has been criticized for her demeanor and her open criticism and ridicule of lawyers and litigants who come before her court. She has even told her fellow judges sitting in review of the same case to “shut up.” She apparently is no one's favorite judge. Nor is she a model of judicial temperament and certainly cares nothing for the judicial canon commanding her to avoid even the appearance of impropriety. Complaints have been filed against her with the current Chief Judge of the Fifth Circuit. If nothing else Judge Jones is distasteful and perhaps her remarks and her beliefs deserve investigation by the House Judiciary Committee with a view towards filing Articles of Impeachment against her for failure to engage in “good behaviour.”
Now for the good news. I want to share with my readers (aren't I presumptuous) the blog of a friend of mine, Robbie. That blog can be found at www. Robbie is a graduate of the Rochester Institute of Technology. He is also Poz or more clearly living with the fact that he has been infected with the HIV virus. He posts about politics, geek stuff and HIV. He is thoughtful and articulate and deserving not just of a read but of a bookmark. Welcome to the Gathering, Robbie. Enjoy writing, discussing and good faith arguments for and against various propositions. I enjoy your writing and I hope others will too.