Judge Brown’s Sleight-of-Hand in Al-Bihani–And Why It Matters…

(Steve Vladeck) It can be very difficult these days to follow all of the developments in the Guantanamo litigation, even for those of us who are fairly active in it.  Thus, I thought I’d take a minute to blog about the Government’s very significant brief in response to the Petition for Rehearing En Banc in al-Bihani v. Obama, filed yesterday in the D.C. Circuit (and discussed by Lyle Denniston @ SCOTUSblog here).  [Full disclosure: I co-authored an amicus brief in support of rehearing en banc.]

The Government’s brief is telling in two distinct respects.  First, as Lyle notes, the Government all-but concedes the principal ground on which al-Bihani is seeking rehearing en banc — i.e., that the panel’s sweeping holding that detention authority under the September 2001 Authorization for Use of Military Force (AUMF) is not informed (or constrained) by the laws of war is thoroughly inconsistent with the Supreme Court’s analysis in Hamdi (and, to a lesser extent, Hamdan). 

But the second telling feature of the Government’s brief, which is perhaps even more significant, is its full-bore defense of the al-Bihanipanel’s procedural discussion (which held, in effect, that Guantanamo detainees are entitled to exceedingly few procedural protections in their habeas cases notwithstanding Boumediene). In particular, at page 13 of their brief (page 17 of the PDF), the Government notes that “The panel simply recognized – correctly – that the habeas review mandated by Boumediene need not match the procedures that apply to habeas challenges to criminal convictions.”

This statement is an entirely fair summary of what the al-Bihani majority actually held. But, like the panel opinion itself, it is an incredibly deceptive reading of Boumediene. Here’s the relevant passage from al-Bihani, with citations omitted (and emphasis added):

Habeas review for Guantanamo detainees need not match the procedures developed by Congress and the courts specifically for habeas challenges to criminal convictions. Boumediene’s holding explicitly stated that habeas procedures for detainees “need not resemble a criminal trial.” It instead invited ‘‘innovation’’ of habeas procedure by lower courts, granting leeway for ‘‘[c]ertain accommodations [to] be made to reduce the burden habeas corpus proceedings will place on the military.’’ Boumediene’s holding therefore places Al–Bihani’s procedural argument on shaky ground. The Suspension Clause protects only the fundamental character of habeas proceedings, and any argument equating that fundamental character with all the accoutrements of habeas for domestic criminal defendants is highly suspect.

Do you see the sleight-of-hand? In the quoted passage, Boumediene was referring to the procedural protections that attach to criminal trials themselves, not to “habeas challenges to criminal convictions.” Indeed, the procedural protections that attach to post-conviction proceedings (especially non-capital cases) pale in comparison to those that the Constitution and various statutes require in criminal trials, especially these days. So, the al-Bihani majority conflated criminal trials with criminal (post-conviction) habeas, suggesting that, because Boumediene held that Guantanamo habeas petitions need not have the protections attendant to criminal trials, they also need not have the (far lesser) protections attendant to post-conviction habeas petitions.

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Libertarians and the Claims of Democratic Authority in the Context of Criminalization Debates

(Dan Markel) I have a section in this paper I’m working on –designed to be a love letter of sorts between retributive justice and liberal democracy :-) —  that I’m afraid I’m not sure is fully there yet, and I was wondering if those with a political philosophy bent might have some reactions. The relevant background here is that I’m trying to explain the reasonableness of democratic authority, largely by appeal to some arguments put forward these days (ie, in the last decade) by Shapiro, Hershovitz, and Christiano. My concern, however, is that in anticipating the first-wave libertarian objection, they have not responded to the “second wave” of critique that an aspect of Arneson’s paper represents. (The rough cites for this can be found below.). I could be completely wrong and maybe they or others address the concern, so please feel free to email me offline . 

So below the fold, please take a look at these tentative thoughts and feel free to share some reactions or references to additional citations that can help me manage Arneson’s critique. I’ve included a bit more of the discussion than is necessary in case it spurs other reactions too. All the usual caveats apply–it’s just a preliminary draft and not for citation or circulation w/o my approval but yes, please tell me if/how I’m wrong (gently). Many thanks!

  1. Why Fidelity to Liberal Democratic Law?

To sustain a claim that offenders in liberal democracies could reasonably and retributively be punished even in the absence of conduct that is morally wrongful probably requires overcoming an intuition that is widespread and reasonably fixed. Nonetheless, we currently have many laws that criminalize conduct that is not morally wrongful, and many of those laws are violated, and those violators are punished. So do we rationalize this outcome simply by appealing to the possibility that we are all, deep down, thoroughgoing welfarists and that these laws (and the punishments made in their name) are in fact welfare-promoting? 

Well, that is one tactic available to avoid cognitive dissonance. But another way to explain this outcome – and indeed to justify it – is to say that we have obligations to conform our conduct to the law’s dictates in liberal democracies, and the recognition of these obligations is not only reasonable, but praiseworthy.[i] What would such an argument look like?

Scott Shapiro and others have defended the idea that there is an authority of law in liberal democratic regimes such that the fact of legislation to do X provides a free-standing (though probably still defeasible) reason to X.[ii] (I leave aside for now whether that obligation is one that necessarily trumps all other reasons to do or not do X.[iii])

We live, work, and play with others—that much cannot be denied. The reason we must conform to democratically elected authority is because such a power-sharing arrangement is, according to Shapiro, “socially necessary, empowering and fair.  By disobeying, subjects are unilaterally, and hence unreasonably, setting the terms and direction of social cooperation.”[iv] To understand why this unilateralism is inappropriate, consider first that “social cooperation is not … possible without the availability of procedures for the resolution of conflict.”[v] Moreover, and “absent acceptable resolution, disputes would fester … [and] likely threaten the very survival of the community.”[vi] As Heidi Hurd notes, democratic rulemaking is morally demanding (even if defeasibly so)  because “when a moral matter is in dispute (even a matter that concerns competing claims of right, rather than competing claims of preference or utility) and it is more important (again, perhaps as a matter of right) to gain a peaceful resolution of the dispute than to gain a right resolution at a cost to peace, a democratic resolution will recommend itself, and the value of peace will thus dictate compliance with the democratically-crafted solution, even when one takes the resolution to be in error.”[vii]

To risk such dire effects is especially misplaced once “citizens are granted the power to exert control over their lives by allowing them, through the franchise, to affect the terms of social cooperation and the direction of collective pursuits.”[viii]

Choosing the right criminal defense attorney to represent you or your loved one is the most important decision you can make when charged with a crime.

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“The Right to Counsel: Badly Battered at 50″ (At a Great Moment for Hope and Change)

(Douglas A. Berman) The title of this post is drawn in part from the headline of this notable commentary by Lincoln Caplan, which appeared in yesterday’s New York Times.  Here are excerpts (with a final key point stressed by me below):

A half-century ago, the Supreme Court ruled that anyone too poor to hire a lawyer must be provided one free in any criminal case involving a felony charge.  The holding in Gideon v. Wainwright enlarged the Constitution’s safeguards of liberty and equality, finding the right to counsel “fundamental.”  The goal was “fair trials before impartial tribunals in which every defendant stands equal before the law.”

This principle has been expanded to cover other circumstances as well: misdemeanor cases where the defendant could be jailed, a defendant’s first appeal from a conviction and proceedings against a juvenile for delinquency.

While the constitutional commitment is generally met in federal courts, it is a different story in state courts, which handle about 95 percent of America’s criminal cases.  This matters because, by well-informed estimates, at least 80 percent of state criminal defendants cannot afford to pay for lawyers and have to depend on court-appointed counsel.

Even the best-run state programs lack enough money to provide competent lawyers for all indigent defendants who need them.  Florida set up public defender offices when Gideon was decided, and the Miami office was a standout.  But as demand has outpaced financing, caseloads for Miami defenders have grown to 500 felonies a year, though the American Bar Association guidelines say caseloads should not exceed 150 felonies.

Only 24 states have statewide public defender systems. Others flout their constitutional obligations by pushing the problem onto cash-strapped counties or local judicial districts.

Lack of financing isn’t the only problem, either. Contempt for poor defendants is too often the norm.  In Kentucky, 68 percent of poor people accused of misdemeanors appear in court hearings without lawyers.  In 21 counties in Florida in 2010, 70 percent of misdemeanor defendants pleaded guilty or no contest — at arraignments that averaged less than three minutes….

The powerlessness of poor defendants is becoming even more evident under harsh sentencing schemes created in the past few decades.  They give prosecutors, who have huge discretion, a strong threat to use, and have led to almost 94 percent of all state criminal cases being settled in plea bargains — often because of weak criminal defense lawyers who fail to push back….

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A Zombie in the Wild

(Eric Rasmusen) I have long thought fairly highly of the Atlantic, both as a magazine and as a blog. So the following article by Richard Gunderman1 is disheartening to read. It is a perfect example of the very zombie I am trying so hard to kill: the “Standard Story” that unquestioningly accepts the generally-incorrect conventional explanations without (for obvious reasons) providing data to back them up. So I thought I’d spend this post attacking it point by point, just so it is clear how deeply flawed the conventional story is, and to highlight the dubious arguments that are so often made in favor of it.

Gunderman starts with the standard it-isn’t-crime explanation:

Why have U.S. incarceration rates skyrocketed? The answer is not rising crime rates. In fact, crime rates have actually dropped by more than a quarter over the past 40 years.

His statement that crime has dropped by 25% over 40 years is wrong in several ways. As the graph below (taken from here) shows, crime has only been dropped since 1991, which is 24 years ago. Between 1974 (that’s 40 years ago) and 2011 (the last year for which the FBI has data), violent crime has risen by 23%, and property crime has falled by just over 2%. The net change: + 0.1% (since there is about 10 times as much property crime as violent crime). So he is just factually wrong.2

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But looking at the graph reveals another, deeper problem with his analysis. Given that crime soared from 1960 to 1991 (with a little pause for violent crime in the early 1980s), why present just a single percent-change number? If we want to understand why prison populations have risen sharply since the mid-1970s, we can’t just ignore the unprecedented rise in crime that accompanied the first 20 years of prison growth.

Furthermore, if we want to understand why crime remains such a politically powerful issue, just note that despite the crime drop since 1991, violent crime is still 100% higher than it was in 1960, which were the formative years of the politically-powerful Baby Boom cohort. And much of the drop since 1991 has come through self-protective measures that don’t necessarily make us actually feel safer (security systems, not going out at night, etc.). So we are still a relatively violent country by historical standards for a large bloc of voters.

For more crime related updates, call or visit Best Detroit Lawyers. 

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Tap Into Best Detroit Criminal Lawyer for Superior Results

Criminal lawyers generally work for people who are accused of felonies such as murder, assault, family violence, probation violation, traffic violations, domestic violence, embezzlement, etc. The service of a Detroit criminal lawyer is to essentially ensure that ones legal rights are adhered to in the court of law.

Since criminal consequences may include fines, possible imprisonment, and probation, it is always advisable to hire the best criminal lawyer you can afford, one with expertise and experience. Various resources are available to find a competent and experienced criminal lawyer. Referrals are always considered to be the most important source; the name of a competent criminal lawyer may come from any circle such as friends, colleagues, family, etc. If you do use the Internet, make sure you perform due diligence for your final selections. It will be well worth the extra time you take to make sure you have a qualified candidate and one that will fight for your rights and freedom.

Best Detroit Criminal Lawyer

If you find a particular lawyer competent enough to handle your case, you can certainly approach him/her. Professional legal organizations are also an excellent source of finding a criminal lawyer. Offices of organizations such as National Association of Criminal Defense Lawyers (NACDL) in the state of Michigan, will provide competent attorneys in the state. Some organizations offer referral services even through Internet. Additionally, the service of local bar associations can be utilized to gather information on a perspective criminal lawyer such as how much experience a particular criminal lawyer has in this field. Lastly, other more conventional sources can be little nuggets as well: telephone directories, yellow pages, and newspapers.

The Internet is undoubtedly the most valuable tool to search for a reputed criminal lawyer. Some of the online directories available are CriminalLawyerSource.com, Lawyers.com, FreeAdvice.com, BestDetroitLawyers.com, and FindLaw.com, etc. These directories provide easy access to legal information and other related sources.

Can We Justify How Criminal Justice Authority is Allocated Across Jurisdictions?

(Cynthia Godsoe) Blogging, young kids, and flu season: apparently only two of the three can co-exist at one time, at least in my house. Anyway, in my last post, I asserted that the decentralized nature of our criminal justice system has played a major role in driving up prison populations. In this post, before looking at the problems with decentralization, I wanted to think about whether we can justify such a system, and ask whether the problematic decentralization seen in criminal law is prevalent elsewhere as well.

As an economist, the strongest justification I can see for federalism1 relates to externalities. At least as a starting point, issues should be dealt with by the smallest jurisdiction that completely contains the problem. Obviously, there are clear counterarguments—economies of scale, coordination problems, etc., etc.—against having too many levels of government. But since here I’m basically looking at city, county, and state governments, it seems like a reasonable place to start.

The division of labor we see is basically this: local communities such as cities are responsible for enforcement, counties are in charge of bringing cases and incarcerating misdemeanants, and the state is responsible for incarcerating felons and, via the state criminal code, defining the basic substantive and punitive rules.

Yet what is striking is how remarkably local and concentrated crime is.

Nearly half of all crime in the United States takes place in just 75 counties (see the codebook here)—or just over 2% of the 3,143counties in the country. Within these counties, crime is concentrated in the urban areas. And within these urban areas, crime is heavily concentrated at the block-by-block level. One study of Seattle, for example, revealed that over a fourteen year period, over 50% of all crime took place in just 4% to 5% of city blocks each year, and 100% of crime each year took place in just about half of all city blocks; over 22% of all city blocks never experienced a crime during the whole sample period. Similar results have been found in other cities as well.

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Yet even the idea of “good” and “bad” neighborhoods understates the concentration of crime. As David Weisburd explains elsewhere:

In what are generally seen as good parts of town there are often streets with strong crime concentrations, and in what are often defined as bad neighborhoods, many places are relatively free of crime.

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