Ah. Cheap irony. Ain't it fun?
BILLBOARD: KaZaA Hits Back Against Record Labels: Turning the tables on record labels, makers of the most popular file-sharing network are suing the companies for copyright infringement. Sharman Networks, the company behind the KaZaA file-sharing software, filed a federal lawsuit on Monday accusing the labels of using unauthorized versions of its software in their efforts to snoop out users. Sharman said the companies used KaZaA Lite, an ad-less replica of its software, to get onto the network. The lawsuit also claims efforts to combat piracy on KaZaA violated terms for using the network. Labels have allegedly offered bogus versions of copyrighted works and sent online messages to users. [...] The Recording Industry Association of America called Sharman's "newfound admiration for the importance of copyright law" ironic and "self-serving." Universal Music Group and Warner Music Group declined comment on the lawsuit.
Well, yes, I daresay Sharman's reliance on copyright law in this instance is entirely self-serving. That does not, however, mean that it is entirely wrong to do so. Only that they're not afraid to appear to be somewhat hypocritical.
In any event, that wasn't the only bad lawsuit-related news that the RIAA received recently.
Download lawsuit dismissed,
RIAA drops claim that grandmother stole online music (SFgate.com, Thursday, September 25, 2003): The Recording Industry Association of America has dismissed a copyright infringement lawsuit against a 65-year-old Massachusetts grandmother who said she was wrongly accused of illegally sharing thousands of songs, including many hip-hop hits. Sarah Seabury Ward was one of 261 people who were sued earlier this month as part of the recording industry's crackdown on illegal online file sharing. [...] Through [Cindy Cohn, a San Francisco digital rights attorney who helped Ward with her case], Ward declined an interview. But Cohn said Ward's home computer runs on Apple's Macintosh operating system, and Kazaa is available only for computers that run on Microsoft's Windows. Ward and her husband use the computer only for e-mail and to check weather reports, had never downloaded music and did not have children or grandchildren at home who could have been using Kazaa without their knowledge, Cohn said. "She didn't really know what file sharing was,'' Cohn said. She and her husband learned the RIAA was suing them when a process server knocked on their door after they had gone to sleep, and eventually called the EFF for help, Cohn said. The case highlights the potential legal problems of the digital copyright law, which allows copyright owners to issue subpoenas without the review of a judge, Cohn said.
People are up in arms against the RIAA suing 12-year-olds for thousands of dollars, which, to be sure, is bad publicity. The plain fact is, however, that those types of cases in particular are doing exactly what the RIAA wants them to do. They know perfectly well that their target audiences for downloading are people from, roughly, 12-25; the prime ages for people who buy music on impulse, and people who are much more familiar with computers as a general rule. The idea behind these suits is that if they can get enough of these people, their parents, or the colleges they attend caught in the dragnet of these suits, they can sharply restrict the availability and use of downloading services. The RIAA isn't naive enough to believe that they can completely eliminate free downloading; they are hoping, with a certain amount of justification, that they can intimidate users into not using the services in any significant amount, for fear of being sued into fiscal oblivion. In fact, the RIAA pretty much says as much in another article about this case:
She Says She's No Music Pirate. No Snoop Fan, Either (NY Times, September 25, 2003, registration required): ..... Ms. Weiss of the recording industry association said that the strategy was, in fact, working as planned. "This is a campaign of deterrence," she said, "and we want to send a strong message that this activity is illegal and there are consequences." Therefore, she said, "we are casting a wide net."
Lawsuit mistakes, however, stand the potential of doing serious damage to both the RIAA and its ability to conduct these types of search and seizures. With enough mistakes -- and there will almost certainly be more -- what is likely to happen is that a court will rule that the subpoena power contained in the DMCA constitutes an unconstitutional violation of the Fourth Amendment, especially if it leads to continued abuse of innocent people. (Less likely, but not entirely impossible, is that Congress will take notice of the abuse of the administrative subpoena contained in the DMCA and revoke it. However, Congress are craven corporate cowards, and are highly unlikely to do anything against the interests of the well-paying companies who paid for the DMCA.)
Elsewhere, SBC -- long loathed by its customers for its own, "We don't care. We don't have to. We're the phone company," attitude -- is fighting the RIAA subpoenas.
SBC fights record industry request (St Louis Post-Dispatch, September 24, 2003): While Charter Communications Inc. said Wednesday that it will cooperate in the music industry's hunt for computer users who share copyrighted music, another major Internet provider here is fighting for the privacy of customers. SBC filed a lawsuit in California in July to block 208 subpoenas that the Recording Industry Association of America issued seeking identities of computer users. "We think the standards that they're using here are so incredibly low to obtain personal information on people that it's an invasion of privacy," said Selim Bingol, a spokesman for SBC at its headquarters in San Antonio. "It's chipping away at personal privacy and using kind of a meat ax to get at it," he said.
It's not a lawsuit likely to succeed -- after all, Verizon has already lost that argument a few times. Still, it may delay things long enough that the information is moot by the time the RIAA can get around to trying to serve subpoenas on people. Additionally, if one or two more of these high-profile mistakes come to light, the courts may come to feel that, at the very least, the notification of these subpoenas needs to be handled differently, that people should perhaps be given a chance to answer them or at least know about them before the information is handed over.
The future do look interesting, don't it?
Posted by iain at 04:06 PM
Our commander in chief makes my head hurt sometimes, he really does.
FOXNews.com - Politics - Raw Data: Text of Bush Interview
HUME: How do you get your news?
BUSH: I get briefed by Andy Card and Condi in the morning. They come in and tell me. In all due respect, you've got a beautiful face and everything.
I glance at the headlines just to kind of a flavor for what's moving. I rarely read the stories, and get briefed by people who are probably read the news themselves. But like Condoleezza, in her case, the national security adviser is getting her news directly from the participants on the world stage.
HUME: Has that been your practice since day one, or is that a practice that you've...
BUSH: Practice since day one.
HUME: Really?
BUSH: Yes. You know, look, I have great respect for the media. I mean, our society is a good, solid democracy because of a good, solid media. But I also understand that a lot of times there's opinions mixed in with news. And I...
HUME: I won't disagree with that, sir.
BUSH: I appreciate people's opinions, but I'm more interested in news. And the best way to get the news is from objective sources. And the most objective sources I have are people on my staff who tell me what's happening in the world.
Theoretically, at least, I can understand that it's hard to find time to listen to or read the news when you're the president. On the one hand, I get that.
On the other hand .... while I can appreciate that he thinks his staff are good, why on earth would he think they're objective? I should think, if nothing else, the past few years have shown him that they're not in the slightest bit objective. And he doesn't want that; whenever anyone -- usually Powell -- seems to give him a truly objective viewpoint, they get shot down. And surely, however biased it may be, a president should receive a take on issues that isn't filtered by his staff, just to make sure he has an outside view, objective or not. This makes him sound very out of touch, somehow, and somewhat underinformed.
(Purely a side note: there are some things that just can't take being out of their context, can they? In this case, I mean that without seeing the interview and watching how the president was relating to Britt Hume, we have absolutely no way to understand why the line "In all due respect, you've got a beautiful face and everything," suddenly appears. I expect he was teasing Hume, but it's just wildly out of place where it appears in the transcript.)
Posted by iain at 01:07 PM
DenverPost.com - Air Force brass 'well aware' of assaults: Leaders at the "highest levels" of the Air Force knew for years there was a sexual assault problem at the Air Force Academy, but they didn't respond effectively, an independent investigating commission has found. And when problems boiled over into a scandal, the Air Force's top attorney omitted mention of those prior warnings in her own investigative report to spare top leaders public criticism, the panel said. "We found a deep chasm in leadership during the most critical time in the academy's history - a chasm that extended far beyond its campus in Colorado Springs," said former Republican U.S. Rep. Tillie Fowler, chairwoman of the investigating commission. "Sadly, we believe this chasm helped create an environment in which sexual assault became a part of life at the academy." [...] "They mentioned some specific names here," said U.S. Sen. Wayne Allard, R-Colo. "They also implicated the previous administration before the current one. They traced it clear back to 1993." According to the report, there were 142 allegations of sexual assault at the academy between 1993 and 2002. Many of the victims say their allegations were met with official indifference and often retribution.
It's really sad that the Air Force thought it was more important to protect its officers than to protect its cadets. It's worse that, when public awareness of the problem forced the Air Force to investigate, they still thought that protecting their officers was so important that prior instances of attacks being reported and the brass being warned were omitted from their internal investigation report. It's even more embarrassing that one of the things they did in response was to strip the victims of any expectation of confidentiality, thus further ensuring -- perhaps deliberately -- that future attacks would be severely underreported.
One wonders what this will mean for Air Force Secretary James Roche, who is up for confirmation as Secretary of the Army. (How on earth does that happen? Wouldn't the army object to being guided by someone from one of the other services? But I digress.) While he wasn't responsible for the initial lack of responsiveness by the academy, it was due to lawmaker's frustration with his lack of responsiveness after the investigation began that caused the appointment of the Fowler commission. This would not seem to augur well for his selection.
An interesting side note, somewhat buried in the report: more than 25% of the male cadets don't believe that women should be admitted to the air force academy. To be sure, it's probably not entirely unexpected. One of the things that some men expect on joining the military is that there will be a certain type of manly vigor, a certain type of male camaraderie. For them, you see, war is a Manly Art. The simple presence of women as equals ruins this picture for them.
Proud to Be: My Life, the Air Force, the Controversy by Kelly Flynn (Book Review by Florence King): ..... [Kelly Flynn's] Class of '93 had a high female attrition rate due to a gang rape on the athletic field, several "forced sex" incidents, and indecent exposure in parachuting class, but Flinn, taking strength, she says, from Anita Hill, hung on and graduated. [...] "True, women do pose a problem for the Air Force brass. But that problem isn't rooted in the fact that we are women per se. Rather, we're a problem because, in the Air Force's collective imagination, we're identified with sex." The Air Force is stuck, she believes, in a 1950s morality that makes it associate sex -- i.e., women -- solely with marriage and brothels. "But when the objects of their affections started accompanying them into battle, the whole system seemed to fall apart. . . . For if the men of the Air Force are no longer traditional macho warriors, upholding God and country by day and whoring at night, who are they? Sentimental soldiers who risk falling in love with their crew? . . . The fear isn't just of women distracting men in the Air Force from their work. It's of women feminizing men altogether."
Leaving aside Ms Flynn's notorious dismissal, this indicates that at least as far back as 1993, the academy should have been aware of the sexual assault issue.
I don't particularly agree with the reviewer that this is an argument against women in the military. I do think, however, that when this attitude is encouraged, as it clearly was at the academy, it is a recipe for disaster.
Posted by iain at 10:59 AM
My, how spectacularly vindictive our government has become.
Patriot Act Used In 16-Year-Old Deportation Case (washingtonpost.com): The Bush administration has decided to pursue a 16-year-old effort to deport two Palestinian activists who as students distributed magazines and raised funds for a group the government now considers a terrorist organization, despite several court rulings that the deportations are unconstitutional because the men were not involved in terrorist activity. The case, which has long had a high profile among Palestinian Americans, could pose a new judicial test of a controversial provision in the Patriot Act, passed in 2001. The provision prohibits supplying material support for organizations the government deems "terrorist," even without evidence of a link to specific terrorist acts. At the time of their initial arrests in 1987, the activists, Khader Hamide and Michel Shehadeh, were allegedly affiliated with the Popular Front for the Liberation of Palestine, a Marxist group that has advocated an independent Palestinian state and has been involved in various acts of terrorism. The government alleges that Hamide and Shehadeh helped raise funds for the PFLP in the mid-1980s at California churches, a Scottish Rite temple and an auditorium owned by the Veterans of Foreign Wars and distributed magazines for the group.
Procedurally, the case makes absolutely no sense. Why on earth would the Bush administration ever have been given permission to invoke an act that was declared unconstutional, and then repealed before they ever took office? Why would the cases still be in the courts? It would normally not matter that Congress' action didn't affect pending disputes; the grounds on which those disputes were based were declared unconstitutional by the court in any event. Thus, the administration looked to other grounds.
What nobody in the administration will likely explain is why it's worthwhile to pursue a 16-year-old case against people whose actions were neither illegal nor unconstitutional at the time, whose alleged affiliation -- which they deny -- was not at the time declared to be a terrorist organization, and who would not and could not have been arrested had they been US citizens.
It will be interesting to see the results. Ideally, this should draw a biting opinion from the court, and a dismissal with prejudice. Practically, I'm afraid that with this government's dogged persistence in doing the wrong things, these people are in for a very long haul indeed.
Posted by iain at 10:24 AM
ABCNEWS.com : Poll: Most Oppose Same-Sex Marriage: A majority of Americans oppose allowing homosexual couples to marry legally, but most also say it's not worth amending the U.S. Constitution to ban such unions, an ABCNEWS poll has found. In the poll, 37 percent of Americans say same-sex marriages should be legal, while 55 percent say they should be illegal. But when opponents are asked if it's worth amending the Constitution to ban such marriages, six in 10 of them say it's not. As a net total of the population, this poll finds 20 percent of Americans favor a constitutional ban on gay marriages; 33 percent oppose such marriages but wouldn't amend the Constitution; and 37 percent would make them legal. Other polls have found much more support for a constitutional amendment, for two possible reasons. Some pose the issue in a single question, conflating views on same-sex marriage with views on an amendment to ban them. This poll asks about the two issues separately. Also, this poll asks if it's worth amending the Constitution, inviting consideration of the amendment process.
Interesting that ABC News goes into such detail about why their poll finds lower levels of support for a constitutional amendment than other polls. (It would be far more interesting if they published samples of other questions to support their point.)
That said, we'll see what happens when/if the times comes near to go through it all. Such an amendment would pass Congress, probably fairly easily. The only issue after that is how the states would choose to present the ratification issue.
Posted by iain at 03:46 PM
Ah, the beginning of the school year! A time of such joy for all! New clothes, new supplies, new classes, new people to meet and greet and get raped by!
Reports only from the months of August and September:
School District in Hazing Case Draws Anger From Parents (NY Times, September 18, 2003, registration required): The football season is lost at Mepham High School, but the parents of players are not blaming their children or the three seniors who are suspected of sexually abusing their freshman teammates. Instead, many are focusing their anger squarely on the school district. [...] In interviews today, parents said the Board of Education merely hurt innocent children when it voted unanimously on Wednesday to cancel the Mepham Pirates' varsity and junior-varsity football seasons. The board blamed the players for not reporting the allegations and for putting up a shield of silence, but parents said their children felt threatened because the suspects had continued to attend school. "How can you let a threat walk around school when you're asking these kids to give you information?" said Todd Frenchman, a parent of a football player. "They're not going to testify or give any kind of comment. They're not silent. They're scared."
2 Teens Attacked 3 Separate Times At Camp (NY Newsday, September 16, 2003): Two of the Mepham High School football players allegedly sexually assaulted by older teammates at a weeklong training camp were attacked three separate times during the trip, with one suffering injuries serious enough to require surgery, a source close to one victim said yesterday. A third boy was attacked once, when he happened to pass by a bunk during one of the brutal hazing rites, the source said. [...] The victims told their parents only after one of them continued bleeding several days after the attacks. The victims' parents reported the incidents to school officials and the Pennsylvania state police, who are conducting separate investigations into the allegations. Several varsity players said last week that word of the attacks spread quickly through the camp, but no one told their coaches. The players said they thought they could handle it themselves by changing some players' bunk assignments on their own.
School punished after allegations of sex-assault hazing (CNN, September 18, 2003): A Long Island school board has voted to end a high school football team's season amid allegations that some players were sexually assaulted by older teammates at a training camp. The Bellmore-Merrick school board decided at a Wednesday night closed-door meeting to cancel all of the Mepham High School football team's games, Newsday reported in Thursday editions. Three varsity players, ages 15, 16 and 17, allegedly sodomized three junior varsity players with a broomstick, pine cones and golf balls while other players watched, the newspaper reported.
Ten Frat Members Face Trial For Hazing Death (WSTM-TV, September 22, 2003): (Plattsburgh-AP) -- Ten members of an upstate New York fraternity face a November trial for the alleged hazing death of an 18-year-old pledge. Walter Dean Jennings of Gansevoort in Saratoga County died of water intoxication last March 12th during the last day of a ten-day pledge cycle. Members of the banned Plattsburgh State College fraternity allegedly forced Jennings to drink large amounts of water, sometimes through a funnel.
University of Maryland Suspends Athletes In Hazing Incident (WJZ, September 16, 2003): Athletes on the men's and women's lacrosse teams at the University of Maryland are facing some stiff penalties after an investigation into alleged hazing and under age drinking. The Athletic Department has decided to suspend some players for the entire fall season, while others will have to sit out for half of fall play. Still other students will not be allowed to attend a planned lacrosse trip in the spring. University representatives say the number of students on suspension will make participating in fall games difficult. The punishments are a result of an investigation into under age drinking. Evidence of hazing, which is an extremely serious offense, will be turned over to the campus Office of Judicial Affairs.
Police probe hazing attacks (Calgary Herald, September 22, 2003): Calgary police and school officials are investigating several high school hazing rituals occurring during the first week of class -- including reports of teens swarming younger students, pinning them down and "paddling" them repeatedly with boards, sticks and cricket bats. Other incidents of "froshing," or Grade 10 initiation, under investigation include threats, egg tossing, fights with boxing gloves and spraying bleach-filled water pistols or balloons at students -- some of these leading to dozens of school suspensions and community service sanctions. The instances, police say, typically involve Grade 11 and 12 students targeting Grade 10s and are happening in close to a quarter of Calgary high schools.
7 football players charged in hazing incident (Cleveland Plain Dealer, September 7, 2003): Seven Bellefontaine High School football players are facing criminal charges after a fellow player was injured during a hazing incident. Six players, all 17 years old when the incident occurred, were charged with delinquency counts of complicity to unlawful restraint. An 18-year-old player was charged as an adult with complicity to unlawful restraint. Police said the players are accused of trying to tape sophomore Zack Keller to a bench in the locker room after practice Aug. 14. Keller's hand was injured when he grabbed the metal mesh of an open locker and players tried to break his grip. Tendons in Keller's hand were damaged. He is unable to play for the rest of the season.
Hazing Incident Under Review (KAMR NBC4, Amarillo, August 26, 2003): AMARILLO -- A local high school student is in the hospital with major internal injuries after a possible hazing incident. He's a freshman wrestler at Palo Duro High School. Amarillo Independent School District officials say he will be okay, but the situation is being fully investigated.
Rye Cove High hazing suspects to be suspended (Kingsport Times-News, August 13, 2003): RYE COVE - Four students accused of hazing two fellow football players will not be allowed back on the Rye Cove High School campus in the immediate future, according to statements released Wednesday. Information provided by Scott County Superintendent of Schools Jim Scott states Rye Cove principal Marjorie Blalock has recommended that the four students "receive out-of-school suspension and alternative placement'' as of Aug. 15, the first day of school for students. [...] The four teenagers, ranging in age from 16 to 18, have been arrested and charged with hazing two 13-year-old students during a voluntary weight training session on June 13 where the two younger students were allegedly penetrated with a wooden handle smeared with an antiseptic cream. [...] Two of the three juveniles were charged with one count each of inanimate object penetration, conspiracy and hazing. The other juvenile also faces hazing and conspiracy charges along with two counts of inanimate object penetration. [The adult, Robert Benjamin "Benny" Elliott, 18] is charged with one count of inanimate object penetration, conspiracy to commit a felony, and three counts of contributing to the delinquency of a minor.
Here are the questions I would dearly love to ask some of these people:
What on this earth has EVER made them think that it is right and proper to rape their teammates?
What on this earth has EVER made them think that it is right and proper to physically assault someone?
The plain fact is, as a recent Newsday editorial points out, these are exactly the same sorts of activities that have recently gotten police convicted on various sexual assault and battery charges. (Unfortunately, I cannot link to the editorial because they've got some seriously rogue Flash applet connected to that one page.) Do they think they're invulnerable to these charges because they're young?
They may think they're invulnerable because this is supposed to bind them together, both the physical act, and keeping the secret. Supposedly, the combination of the sexual nature of the rite and keeping that secret contributes to the bond between members of the group.
What puzzles me is this: why would you want to bond to someone who had raped and/or beaten you? Why would you want to bond to someone who would stoop to shoving a pine cone up your butt? Why would you want to bond with someone who had shoved your head into a toilet? In short, why on earth would you want to be a member of any group that would do something like that to you or anyone else? What would make it worthwhile?
The Mepham high school incident in the first two linked pieces had an interesting result. Students protested the cancellation of their football season, feeling that it was unjust to punish everyone for the sins of a few. Thing is, it seems fairly obvious that most of the teams knew about what had happened; how could they not? (I'll grant you that the cheerleaders probably hadn't heard a word about it; they alone seem to be suffering unintended fallout.) In fact, one of the NY Newsday articles linked above specifically notes that the news spread throughout the camp, and the players tried to cope with it by moving victims away from their rapists. So they not only knew about the attack, but knew that it was wrong, and did something to try to prevent further attacks. Even granting that teenagers don't want to tell adults anything, even granting that part of the idea behind this mess is to show that you can take torture and stay in the club ... even granting all that, you would think that after two people had been attacked multiple times, after one of them was bleeding so much that it wouldn't stop ... you'd think that one of them would have gotten a clue and told someone. So they're not being punished for what the others did. They're being punished for what they didn't do. They're being punished because they knew, and said nothing. And somehow, these students seem to think that they're the ones who have been ill-treated, that they're suffering more because they can't play football, or cheer on their football heroes. Somehow, they don't see that this protest essentially appears as though they're asserting their rights to have their players sexually assault each other and then keep it secret, and benefit thereby.
Their parents aren't helping the issue. According to the various NY Newsday articles linked above, the police and school authorities are meeting with a signal lack of cooperation from either students or parents. Understandable, that; who wants to be responsible for sending their child to jail? Nonetheless, it does send a message: Close ranks. Protect each other. It doesn't matter what you did wrong; that's not the most important thing.
The students and their parents all need to grow up.
Frankly, it will be interesting to see what happens with this case. The laws that were violated were Pennsylvania's -- that's where the camp was located -- but the students are all New York residents. (Which explains why NY newspapers seem to be saturated with this coverage, but there's not a peep out of Pennsylvania.) The crossjurisdictional issue may make it difficult for legal charges to go anywhere; Pennsylvania may feel that this isn't the sort of case that constitutes extraditable offenses, and New York lacks jurisdiction to prosecute, because the crimes didn't occur there.
Posted by iain at 01:49 PM
What on earth is going on in the administration?
NY Daily News - front - No Iraq link to 9/11: Breaking with other top Bush administration officials, Defense Secretary Donald Rumsfeld and national security adviser Condoleezza Rice disputed the possibility yesterday that Saddam Hussein was involved in the Sept. 11 attacks. "I've not seen any indication that would lead me to believe that I could say" Saddam was linked to Al Qaeda's suicidal hijackings, Rumsfeld said. "We have never claimed that Saddam Hussein had either direction or control of 9/11," Rice added.
That's a terribly odd position for the secretary of defense and the national security advisor to be taking publicly, especially when the president and veep seem to be asserting otherwise. One wonders what happened for them to make this sort of public break with the official administration position.
Update, 6:09pm: Oh, I see. THAT'S what's going on.
Posted by iain at 05:24 PM
Kline: Consent laws at risk 09/16/03: Attorney General Phill Kline said Monday if the state loses a sodomy case currently before a state appeals court, state laws regarding marriage and sex with children will be nullified. Kline said the American Civil Liberties Union is attacking the state's prohibition of same-sex marriages, as well as laws against polygamy, incest, bestiality and sex between adults and children. An ACLU attorney said Kline had distorted the group's arguments and dismissed the statements as "an act of desperation."
The ACLU is representing Matthew Limon, convicted in 2000 of having sex at age 18 with a 14-year-old boy in Paola. Limon was sentenced to more than 17 years in prison, whereas the maximum sentence would have been one year and three months in prison had one of the teens been female. Kline characterized the ACLU's arguments in the case, now pending before the Kansas Court of Appeals, as a broad constitutional challenge to various Kansas laws, then attacked the organization for taking a position he defined as "absurd, flawed and wrong."
OK, I'm impressed. If our attorney general was seriously willing to make the argument, in public, that the state had the right to treat gays and lesbians differently because not doing so somehow leads to sex with children .... my goodness, I'd be terribly worried that we really had a very bad attorney general.
The state certainly has a compelling interest in protecting children from predatory adults. That is unargued. Nowhere did the Supreme Court or the ACLU argue that the state did not have the right to set an age of consent, below which teenagers are not considered competent to consent to have sex. (This, of course, will not stop them from actually doing so, but that's a separable issue.)
Kline cited a footnote in the ACLU's brief for Limon, in which it said teenagers have a well-established "liberty interest in being free from state compulsion" in making personal decisions about sex and marriage. [Kline said] "I'll tell you what: I would be deeply offended if, when my daughter turns 13, she walks out the door to meet her 30-year-old boyfriend, and I say 'no,' and she says, 'I've got a 1-800 number for the ACLU; it's my constitutional right,' " Kline said. "That's their argument. They have to live with it."
Well, I should think he might be deeply offended. He's also be an utter and absolute idiot. The age of consent in Kansas is 16. If his daughter is having a romantic relationship with a 30-year-old, he can simply report the man to the police, who will then arrest the man. The teenager may in fact have a well established liberty interest in being allowed to make decisions about her sex life ... but only above a certain age, and only certain decisions. The adult involved has no liberty interest whatsoever in being allowed to have sex with someone below the age of consent.
Really, Kline is quite the idiot.
In any event, I suspect that, given the direction they received from the US Supreme Court, the Kansas Supreme Court has no choice but to invalidate the differential sentence that Matthew Limon received. According to the state's laws, once you eliminate the difference between the sentences, which is the crux of the issue in this particular case, Kansas would still have been allowed to sentence Limon to jail time. Mind, he's already served more than the usual maximum for that type of sentence. A developmentally disabled teenager in an adult prison, for having sex with a male.
Well, yes. Quite.
Posted by iain at 01:20 PM
RainbowNetwork.com -
5% Basketball Players Are Gay. Five percent of the players in the National Basketball Association are gay says Orlando Magic guard Tracy McGrady. McGrady, who has a reputation for making bold statements made the assertion in an interview with gutsy men's magazine Stuff. McGrady tells writer Bill Schulz that not only are five percent of the players in the league gay, he`s seen evidence of it in the locker rooms. In a question-and-answer interview at McGrady`s Orlando area mansion, Schulz asked McGrady, "Here`s a pertinent question: How many homosexuals are currently playing in the NBA?"
"I think about 5 percent," McGrady said.
Schulz then said, " Wow. That`s a huge amount for such a macho profession." But, when Schulz pressed him for details, McGrady refused to name names or provide details of how he came to his conclusions. "Have you observed any specific incidents that allow you to make that statement" Schultz asks.
"Yeah," McGrady said. He also refused to be drawn into making judgments or say how he personally feels about gays in the locker room.
My, my. That ought to make life in McGrady's locker room just terribly interesting in the near term. And just before the teams go back to training camp, too!
Posted by iain at 01:06 PM
Appeals court blocks Oct. 7 recall election (SFgate.com, September 15, 2003): A federal appeals court blocked California's Oct. 7 recall election Monday, throwing the fate of the unprecedented election into question. The Ninth U.S. Court or Appeals ruled that the vote cannot take place because almost half of the votes will be cast on unreliable problematic punch-card machines. The decision was granted an immediate 7-day stay to give the losing sides to appeal. The three-judge panel said that the use of the problematic machines is exacerbated by the sheer number of candidates vying to succeed Governor Davis if he is recalled.
My goodness. Whoda thunk it? Every other appeal has failed so badly that you wouldn't have expected this one to succeed.
I would not lay odds on this result surviving a Supreme Court appeal, if the case is accepted. Then again, I'm not sure of the odds of it being accepted for full hearing and review, given both the issues at hand and the time constraints. One issue is whether or not a Supreme Court review on the merits could be done in reasonable time. I should hope that after that most spectacular debacle, the Court would be more cautious about dealing with elections and their fairness. (If nothing else, there is a certain lovely "hoisted by their own petard" aspect of relying on Bush v Gore to support this particular request, which I suspect would go in exactly the opposite direction of that particular Court majority.) I think, although I'm not certain, that the Court can both grant certiorari and simultaneously issue a per curiam opinion reversing the appeals court at the same time, if necessary, although I'm not certain.
It will be interesting to see exactly how this turns out. If the request is refused, I would expect it to be refused without comment, since that's how most Court rejections of review requests are handled. (On the other hand, depending on who is on which side, a rejection of cert may produce an impressively snarky or disturbed opinion of why the other justices feel that review should have been granted.)
Frankly, I don't see how any court would conclude that anyone's interests would be harmed by a postponement of the election to March 7. Then again, I'd have thought that issue would have been decided in just that way a few court cases ago.
I am somewhat puzzled as to why the state, of all possible parties, would appeal the case (LA Times, registration required). At best, shouldn't the state be neutral on the issue of when the election is held? At worst, I'd think they'd say, "Hey, it'll save us money to wait until we were going to have an election with new processes in place in any event! Cool beans!" I don't understand what harm the state would suffer.
(Purely a side note: I do love the fact that, in the SFGate poll of whether or not the appeals court was right to postpone the decision, the 2d ranked result at the moment is, "I can't take six more months of this." I suppose it says something about how we regard our privileges and duties and what they've come to that some people's basic response at this point is essentially "Make this go away.")
Posted by iain at 01:55 PM
USATODAY.com - Top Democrats say Bush policy will weaken HIV prevention programs: A new Bush administration policy that imposes a new layer of state or local review on federally funded HIV prevention programs has drawn a stern rebuke from top congressional Democrats. Reps. Henry Waxman, D-Calif., Nanci Pelosi, D-Calif., and Steny Hoyer, D-Md., objected to the policy in a Sept. 11 letter to Secretary of Health and Human Services Tommy Thompson. [...] "The process that's now in place has worked well for over a decade," Waxman said. "My fear is that the new requirement would politicize prevention, so that conservatives who are offended by new HIV prevention messages could ignore the urgency of the message and turn it into something bland and ineffective."
Mr Waxman, sir? I'm pretty sure that's kind of the freakin' POINT of the revision. And it's sophistry to the extreme not to recognize that HIV prevention programs have and always will be politicized. Anything to do with sex and sexuality in this country will be politicized, because that's just the way we do things. Education and disease prevention are, and will probably always be, secondary to the politics of the issue at hand. As it stands, the administration has subjected long-established and proven programs to ceaseless audits, determined to drive the programs out of business. (Well, they can't be in the least concerned about the ides that a program is violating content guidelines when the subject it to back to back audits; when would a program have had time to violate content guidelines between audits?) This administration truly does not care in the slightest about effective AIDS/HIV prevention, just as it cares not at all about effective sex education -- and not a lot about effective education, period.
Posted by iain at 12:34 PM
Indians' Prospect Had Gay Porn 'Mistake' (Jim Rome Show, September 9, 2003): Cleveland Indians minor leaguer Kazuhito Tadano is a gay porn actor. That’s not subject to debate. He is. He even admits as much. Well…at least he was a gay porn actor.
Tadano admits that while he was a college student in Japan, he appeared in a gay porno and performed homosexual acts in the film. That would qualify you as a gay porn actor. If you are making movies committing homosexual acts, I’m guessing you’ve met all the requirements.
I’m also guessing that this won’t be a major distraction and it won’t cause any dissention in the clubhouse. A group of enlightened individuals (i.e. ballplayers) wouldn’t have any problem with that. We’ll just assume that people like Todd Jones and John Rocker will embrace Tadano with open arms. [...]
The Indians took a chance on him and brought him over to America to play, fully aware of his history. In fact, Tadano has told both his single-A and double-A teams about his past. He’s told them that he made a mistake and he would prove himself as a teammate. “You could tell he was sincere and embarrassed. I’ve sat in the bullpen with him and he is a good guy. We have all messed up in some shape or form in our life.” [said] Jack Cressand (teammate). That’s all well and good but a baseball clubhouse is one of the last bastions of bigotry and intolerance. That’s not going to fly. You wait and see what happens when he gets to the Majors. Not all of us have made gay porn and there are more Todd Jones’ and John Rockers than Mark Graces in big league clubhouses. More so than anyone wants to admit.
It's going to be interesting to see how long it takes Tadano to make it to the majors, and what happens when he does. Frankly, the smart thing for the Indians to do would be to call him up now. He's probably not ready for it, true. On the other hand, now that the story's broken, they could get the mess out of the way, find out how people are going to react to him (and I do agree with Jim Rome -- and I never thought I'd say THAT -- that things will probably not go at all well, at least not at first). If nothing else, it would get the grand public brouhaha over and done with, although it would probably be mentioned every time he did anything notable in the near term.
Even VH1's Totally Gay, while massively overstating the gayification of American society in recent years, made the point that professional team sports is one of the true bastions of acceptable homophobia. Imagine what will happen when they are presented with someone who has documented evidence of actual (GASP!) homosexual behavior in his background. No doubt many of them will stand up and swear that no matter how much they were paid, they would never ever do such a horrendous thing. And no doubt that most of his teammates will simply ... ignore him.
One wonders what will happen with those that don't simply ignore him.
Posted by iain at 02:13 AM
Yes, that's about what that amnesty form would look like, isn't it?
(I don't care what the crime is; being forced to purchase Milli Vanilli would be beyond the pale, dammit!)
Posted by iain at 07:51 PM
Ashcroft to address officers here; public barred
By DAN HERBECK
(Buffalo) News Staff Reporter, 9/6/2003
When U.S. Attorney General John D. Ashcroft brings his national speaking tour to Buffalo on Monday, he will address only law enforcement officials and reporters. He plans to grant interviews only to television reporters and will not answer questions from newspapers or other print media, officials said. Ashcroft will be here as part of his national tour to defend the USA Patriot Act, a tough anti-terrorism program enacted after the terror attacks of Sept. 11, 2001. He is scheduled to speak at 10:45 a.m. Monday in the Hyatt Regency Buffalo. The public is not invited, and that drew criticism Friday from officials of two groups that plan to protest during Ashcroft's visit - the Western New York Peace Center and the Buffalo office of the New York Civil Liberties Union.
Ashcroft's Tour Rallies Supporters and Detractors (NY Times, September 6, 2003, registration required): A frequent criticism is that Mr. Ashcroft's speeches A frequent criticism is that Mr. Ashcroft's speeches — rich in allusions to Thomas Jefferson, Abraham Lincoln and the firefighters killed in the World Trade Center — have been delivered almost exclusively to law enforcement personnel who are already strongly behind him. "He's preaching to the converted," said Anthony Romero, executive director of the American Civil Liberties Union and a frequent critic of Mr. Ashcroft. "He's not interested in engaging in a real public dialogue, and I think the whole tour is backfiring as a result."
When Mr. Ashcroft appeared in North Carolina on Saturday, Barbara Nettesheim, 69, of Chapel Hill wanted to let him know that she thought the government's antiterrorism campaign was chilling free speech. There were more than 75 empty seats at Mr. Ashcroft's speech, so many that hotel workers cleared away a few rows beforehand. But because the speech was not open to the public, Ms. Nettesheim had to settle for waving a placard in a raucous protest that spanned two blocks outside the event. It was the first political protest she had ever attended, Ms. Nettesheim said. "But what the government is doing really scares me, and I think Ashcroft should have the guts to talk to regular people and listen to them," she said.
Mr. Ashcroft and senior aides say critics are missing the point. "He's not going on the road to debate the Patriot Act," said David Israelite, deputy chief of staff to Mr. Ashcroft, "as much as to inform the American public about what it is and what it isn't, because there are a lot of misconceptions out there." The Justice Department has chosen local television as its main medium, parceling out one-on-one interviews with Mr. Ashcroft to stations and angering some local print reporters by limiting their access.
On the Road With Ashcroft
by David Cole
article | Posted September 4, 2003
..... Ashcroft's national tour will not address the public. His speaking engagements are all before closed audiences, primarily law-enforcement officers. The choice to speak to police and exclude the people captures much of the flavor of the Administration's war on terrorism: It has repeatedly sought to maximize police power while minimizing public oversight. But that tactic may be backfiring, as the American people are starting to fight back [see David Sarasohn, page 23].
So let me get this straight-ish.
Ashcroft is embarking on this tour in order to tell the public how successful the Constitutional Evisceration Act ... er, pardon me, the PATRIOT Act has been. He's doing this by excluding the print media, which can report on his presentations in more detail than local television, and which can provide details on the specific cases he cites as successes, and by excluding the public from the presentations.
He wants to reassure the public, so he excludes them. Well. Yes. Quite.
And somehow, he doesn't see that the fact of the exclusion itself is going to be far bigger news with the media than the tour itself. I suppose he's counting on the fact that people don't read newspapers any more.
Let's hear it for the Rainbow Tour
It's been an incredible success.....
Interestingly, while the Justice Department insists that the PATRIOT act is necessary for pursuing terrorists, they are using it to pursue ordinary criminals:
Patriot Act available against many types of criminals
BY MICHELLE MITTELSTADT
The Dallas Morning News (Sunday, September 7)
..... Although the government has not revealed most of the details of how it has applied the Patriot Act, the Justice Department told Congress in May that it is using the law in criminal cases, not just terrorism investigations. Federal agents have used the new tools to seize a con man's assets; track down computer hackers and a fugitive; identify the hoaxster who made a school bomb threat, and monitor kidnappers' communications, the department advised the House Judiciary Committee. In-house documents show that prosecutors are exploring other ways to use Patriot Act authorities in criminal investigations. "We all know that the USA Patriot Act provided weapons for the war on terrorism. But do you know how it affects the war on crime as well?" the Justice Television Network, the department's in-house channel, said in a 2002 circular offering a course on the Patriot Act's effect on "everyday prosecutions" of money laundering and asset forfeitures.
One would wonder just how much Congress realized that the act, which was sold as a better way to go after terrorists, would be used to go after ordinary crime. One would, if one hadn't watched the craven cowards in Congress stampeding to pass this act, or any other, that would make people feel that they were doing something, anything to make life safer.
Posted by iain at 03:00 PM
Spy Agencies Warned of Iraq Resistance (washingtonpost.com, Tuesday, September 9, 2003; Page A01): U.S. intelligence agencies warned Bush administration policymakers before the war in Iraq that there would be significant armed opposition to a U.S.-led occupation, according to administration and congressional sources familiar with the reports. [...] As U.S. military casualties mount and resistance forces wage a campaign of targeted bombings in Iraq, some administration officials have begun to fault the CIA and other intelligence agencies for being overly optimistic and failing to anticipate such widespread and sustained opposition to a U.S. occupation. But several administration and congressional sources interviewed for this article said the opposite occurred. They said senior policymakers at the White House, Pentagon and elsewhere received classified analyses before the war warning about the dangers of the postwar period. "Intelligence reports told them at some length about possibilities for unpleasantness," said a senior administration official, who like others spoke on condition of anonymity. "The reports were written, but we don't know if they were read."
One wonders if it has occured to the administration that it is unseemly, at the least, and massively counterproductive, at its worst, that the country's intelligence agencies feel the need to defend themselves publicly from the administration itself.
This administration's proclivity for demanding intelligence that matches what it wants to do, and ignoring information to the contrary, would mean that they probably very frequently make ill-informed and ill-advised decisions, both because some analysts are shading their data to match demands, and because they're not reading the data that doesn't. On the other hand, the increasing defensiveness of the intelligence agencies in response to the public pillorying they're getting from the administration means that, to the best of their abilities, they may well be supplying unfiltered intelligence to the administration. That is, at this point, it's probably safest to give raw data -- This is what's happening, these are the logistic implications -- with as little interpretation as possible; no analysis of what it all means in the big and small pictures. It is, after all, safest. You can't be yanked around by the administration for supplying information they don't want if you give them everything.
This is just desperately sad, really.
A White House official said the administration is not surprised by the level of resistance U.S. forces are encountering. "It does not come as a surprise that some of the bitter fanatics continue to fight against a foregone conclusion and that foreign terrorists would seek to hold back progress made in Iraq over the last five months," the official said.Ah. "Progress". Basic services still nonfunctional. Crime -- apart from the various attacks on US and UN personnel -- at obnoxiously high levels. A governing council without the authority to actually govern. An administrator who essentially doesn't administer. Heaven save anyone from such "progress".
On Feb. 26, the day Bush said in a speech that bringing democracy to Iraq would help democratize other Arab countries, the State Department's Bureau of Intelligence and Research completed a classified analysis that dismissed the idea. The State Department analysis reportedly stated that "liberal democracy would be difficult to achieve" in Iraq and that "electoral democracy, were it to emerge, could well be subject to exploitation by anti-American elements."
Well, there's a big DUH. You've got an Islamist movement that's been restrained with malice aforethought for many years. You've got an absolute majority that resents what the Americans have done to their country, however much they may or may not appreciate the fact that Saddam is no longer in power. It would be a wonder if free elections didn't produce a government strikingly hostile to the US and its interests.
Posted by iain at 01:17 PM
Daily Herald |
Lieutenant governor pushes for recall ability: Lt. Gov. Pat Quinn thinks Illinois voters -like those in California - should be able to recall a governor they believe is doing a bad job. "There ought to be the ability to pull out of office someone who has violated their oath," said Quinn, a Democrat. "I don't think voters should have to tolerate a lousy incumbent unfit to serve out their term."
... Right. Because the recall is doing such wonderful things for California, what with the rest of the country considering this to be just one more wacko thing happening out there, and the state's bond status being just one or two notches above "junk", and the very real possibility that, unless turnout in California's general elections increases sharply, they'll turn into our very own version of 1970s-80s Italy, with caretaker governors serving no more than two year sentences in office. Really, we need that so very very much.
I point out, purely for the sake of argument, that under Quinn's apparently stated conditions, California would not actually be having a recall. Gray Davis has not violated his oath of office in any way, shape, or form. He hasn't been found guilty of any crime -- for which impeachment would be the proper punishment, and not recall, in any event. Californians are just frustrated, and taking it out on the governor who is a symbol of that frustration for them.
The idea of recall is not completely foreign here. Quinn led an informal, Internet-based recall petition against then-Gov. George Ryan in 2000. Quinn said he's certain if Illinois had recall that Ryan would have not served his full term given his flip-flop on tax increases and the growing corruption scandal that emerged after he'd taken office.
I point out once again, that if the recall is limited to those who have violated their oaths of office, even Ryan wouldn't have been eligible. Ryan did not, as far as we know, violate his oath of office as governor, after all; flip-flopping on a tax pledge may be unwise, but it's not illegal. His actions as secretary of state have never reached a court, to date; although some of his underlings have been tried and convicted, the US attorney responsible for the corruption case has not yet brought charges against the former governor. (One would also add that, at least technically, being charged with a crime isn't in and of itself evidence of anything, since you haven't yet been found guilty in the courts.)
So, really, let's just let California and North Dakota and Nevada keep the recall madness to themselves. We've got quite enough issues of our own without importing that one.
Like, you know, the whole Illinois: Land of Logos program. (Chicago Tribune, registration required.)
Posted by iain at 02:21 PM
Holiday season arrives early at stores
I'm hoping for a mild backlash, to the point that they hide this stuff away for another three months.
I am also curious as to why the Christmas tree farms are expecting a banner year -- at least they're not putting stuff out early -- when there are several million fewer employed people now than there were last holiday season. Fewer people employed, more people uncertain about their future -- wouldn't that lead to less spending?
Posted by iain at 04:47 PM
And from around the country, health news that provokes the reaction: Yes? And? Your point being? How on earth can you possibly either be surprised by or not know this?
ABCNEWS.com : College Kids Ignore Risks of Unsafe Sex An alarming number of American college students engage in unprotected sex, but most fail to realize the risk of contracting sexually transmitted diseases, says a recent national survey. Among college students who live away from home, 56 percent had been sexually active while attending college, and 73 percent of that group reported having unprotected sex while in college, says the survey by the Society for Adolescent Medicine. Underscoring widespread ignorance about sexually transmitted diseases, the online survey of 516 students found that 68 percent of those who had unprotected sex did not believe they were at risk of contracting an STD.
And the surprise is ... what, exactly?
We're heading now into a solid generation of having had "just say no!" sex education. Which everyone knows doesn't work. And when you focus on "just say no!", there's relatively little information that gets absorbed on what happens when you don't -- even though most surveys indicate that the majority of adolescents and teens don't "just say no" to sex. (Those surveys also have a built in social desirability index problem. It's socially desirable for males to say they've had lots of sex, and it's socially desirable for teen and adolescent females to say they haven't had any at all. It's very likely that such surveys overstate the number of males who have had sex, and understate the number of females.) Frankly, I don't think it's that parents want to be their children's friends that contribute to the problem; it's that nobody wants to know about the problem. Parents and children in general don't, and really never have, talked that clearly about sex. Not as a general rule. And even if pediatricians did ask their patients if they were sexually active, how many would tell them? First, they know perfectly well that it's their doctor's responsibility to tell their parents what's happening; no protestations of confidentiality would suffice. And frankly, if pediatricians knew that their adolescent patients were having sex and they didn't tell the parents and the parents found out, the lawsuits would be a-flyin', and no jury would find for the doctor, especially if any of them were parents.
(Purely a side note: I would still dearly love to know why on earth nobody's come up with a vaccine for gonorrhea or syphilis. They're bacterial infections; shouldn't it be relatively simple as these things go to come up with one? Syphilis, at least, actually is deadly, if left untreated long enough.)
You do kind of feel sorry for college health services, though. They've got to deal with all these newly adult people who don't know things that they should have been taught when puberty reared its ugly head. How do you go about doing this type of elementary sex education that late in the day? And especially, how do you handle it without coming across as, "How the hell do you not know this stuff at 18, 19, 20?"
African American teen mothers have greater risk for low birth weight and premature babies (Healthnews.ws, August 29, 2003): A study by researchers at the Johns Hopkins Bloomberg School of Public Health finds that African American teens living in Baltimore, Md. are twice as likely to deliver low birth weight babies and 1.5 times more likely to have premature babies than whites. When compared to pregnant black women of all ages in Maryland, the study found the younger group had almost twice the infant mortality rate. * National Institutes of Health, NIH/National Institute of Child Health and Human Development.
African-American teens are twice as likely to deliver low-birth-weight babies and 1.5 times more likely to have premature babies than whites, according to a study by researchers at the Johns Hopkins Bloomberg School of Public Health. The study, conducted by the School’s Center for Human Nutrition (CHN), examined birth outcomes of 1,120 pregnant African-American teens age 17 and younger, living in Baltimore, Md., and compared them to national data on white women. When compared to pregnant black women of all ages in Maryland, the study found the younger group had almost twice the infant mortality rate (2.3 percent vs. 1.3 percent). The study appears in the August 2003 edition of The Journal of Pediatrics.
Yes? And?
Given that African American teens are somewhat more likely to be poor and thus have poorer health care than whites, where's the surprise? The interesting question would be, if you control for income across races, is there still a significant difference, and if so, why? To be sure, this is essentially a very long abstract, and not the entire Journal of Pediatrics article, but controlling for income would be an important enough aspect that you'd think they'd shove it to the front of the study. Frankly, I suspect that the issue would still exist, independent of income, but there's no way to tell without that having been considered.
Posted by iain at 11:59 AM
... Well, this ought to be entertaining, at the least. And who knows, maybe a little illuminating. Although one doesn't expect illumination from Congress, these days.
Republicans to force issue of gay 'marriage' - The Washington Times: Nation/Politics: Senate Republicans plan to use a hearing this week to force Democrats to take firm positions on same-sex "marriages," a prospect that could prove particularly dicey for some presidential candidates. Sen. John Cornyn, Texas Republican and member of the Senate Judiciary Committee, scheduled a hearing tomorrow on the Defense of Marriage Act (DOMA) to find out if it has been threatened by recent court rulings. "I believe we must do whatever it takes to safeguard the institution of marriage and ensure that the principles defined in DOMA remain the law of the land," said Mr. Cornyn, chairman of the panel's subcommittee on the Constitution, civil rights and property rights. "This hearing will remind people why traditional marriage is so important for a healthy society, and will determine the extent of the threat posed to DOMA by judicial activism in light of recent court decisions and pending cases."
THIS man is head of a subcommittee on civil rights? Yeesh.
Republicans worry that even the U.S. Supreme Court — dominated by GOP nominees — might undo DOMA. "There's a very real potential threat that they could overturn DOMA," Mr. Stewart said.
Well, assuming that they rule on established constitutional principles -- there are, after all, very few exceptions to the Full Faith and Credit clause -- they'd be almost required to overturn DOMA laws, should such appeals ever reach them. I don't think it will come up, somehow. I think that as soon as a state -- any state -- rules that gays are allowed to marry, or that such marriages contracted abroad must be recognized, the Republicans will ram through an amendment to the Constitution, and the Democrats, being the craven cowards that they are, will vote for it. And then it will pass to the states, where it will be added to state constitutions in a 50-0 sweep through the land. (OK, possibly 48-2, since California is odd, and Massachusetts seems to be leaning the other way. Although, that said, the prediction is that if the Massachusetts Supreme Court rules in favor of gay marriage, an amendment to the state constitution will be on the way almost immediately [second part of the article].)
Frankly, I don't think most people in this country would have the least problem in encoding into our country's law the proposition: We HATE You. After all, if the pendulum can swing from a 60% majority saying, "Hey, why not let gays have sex in the privacy of their own homes to a 48% plurality saying, "Oh, now we just don't think that's right" when it suddenly IS legal to have sex in the privacy of our own homes, how on earth are they likely to react to the possibility of actual marriage? Unfortunately, civil marriage has become inextricably linked with religious marriage in this country, both in peoples' minds and in actual fact, and unwinding civil from religious principles on this matter may no longer be possible.
Posted by iain at 11:36 AM
Court decision could take 89 off death row By Joseph Barrios and Rhonda Bodfield, ARIZONA DAILY STAR, September 3, 2003: ighty-nine Arizona death row inmates have new grounds to appeal their sentences after the 9th U.S. Circuit Court of Appeals threw out the death sentence of a man in a Maricopa County case. With Tuesday's ruling and earlier decisions, all 125 inmates on Arizona's death row now appear to have grounds to appeal their sentences. But prosecutors said it would be a long time before those defendants make it back to the courtroom and that Tuesday's ruling will be appealed. [...] In a worst-case scenario for prosecutors, all 34 inmates from Pima County who were sentenced to death could be sent back to local courts for new trials. "We'd be talking about 34 defendants coming back. The economic impact, the resource impact is huge. It would be very difficult to handle those cases," said Rick Unklesbay, chief criminal deputy Pima County attorney.
Judges' Rulings Imposing Death Are Overturned (NY Times, September 3, 2003): The federal appeals court in San Francisco yesterday overturned the death sentences of more than 100 prisoners in three states because judges rather than juries had made the crucial factual determinations in sentencing them to death. The court ruled that a Supreme Court decision last year striking down the capital sentencing laws in the three states and two others because they allowed judges to make those factual findings must be applied retroactively even to those inmates who had exhausted all of their appeals. The affected prisoners will be entitled, at a minimum, to a new sentencing proceeding, unless the United States Supreme Court reverses the appeals court's decision. The decision of the appeals court, the United States Court of Appeals for the Ninth Circuit, affects death row inmates in Arizona, Idaho and Montana. The other two states that had had unconstitutional sentencing laws, Colorado and Nebraska, are not directly affected by the decision because they are not in the Ninth Circuit, which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, along with Guam and the Northern Mariana Islands. Two other federal appeals courts have decided that last year's Supreme Court decision, known as Ring, does not apply retroactively. That split, coupled with the significance of the yesterday's decision, makes Supreme Court review fairly likely.
You know, I'd have thought that the Ring decision had to apply retroactively, appeal pending or no. It doesn't make logical sense to say, "OK, you guys who were convicted by a judge in violation of the Constitution: because your appeals were exhausted, your sentence is valid. You guys who have pending appeals, your death sentence is vacated and you're going to be resentenced." Either the original sentence was valid, or it wasn't, and since the rule under which the sentence was imposed was invalid, it does rather seem that they have to go through and do it all over again.
Judge Stephen Reinhardt joined in the decision and wrote separately to say that the technical doctrines it discussed obscured how straightforward he found the case. "Executing people because their cases came too early — because their appeals ended before the Supreme Court belatedly came to the realization that it had made a grievous constitutional error in its interpretation of death penalty law, that it had erred when it failed to recognize that the United States Constitution prohibits judges, rather than jurors, from making critical factual decisions regarding life and death in capital cases — is surely arbitrariness that surpasses all bounds," Judge Reinhardt wrote.
I suspect in the less egregious cases -- however you can determine that when the death penalty is involved -- many prosecutors will simply go for some sort of plea bargain to have the sentence commuted to life without parole. Especially for years-old cases, they'll essentially have to retry the cases in front of an entirely new jury, purely to have them find the aggravating factors necessary for sentencing. Some of the witnesses may be unlocatable after a certain amount of time, some of the witnesses and victims may have died or moved out of the jurisdiction. Judges normally get back cases where only the sentence is reversed, and not the finding of guilt, but for cases that are old enough, even some of the judges may have retired or died. In addition, how will cash-strapped district attorneys' offices and public defenders' offices ever manage to handle all this? In almost every state, their budgets have been cut due to the various states' budget crises. Now they're going to have to handle this on top of their normal heavy workloads. That said, relatively recent cases -- especially those which were for some reason locally notorious -- are more likely to get another go-round.
The specific case at issue would seem to have been ripe to have a sentence reversed in any event.
The appeals court noted that Judge Marquardt had admitted to heavy marijuana use around the time he sentenced Mr. Summerlin to death. "If the allegations concerning Judge Marquardt are true, Summerlin's fate was determined by a drug-impaired judge, habituated to treating penalty-phase trials the same as noncapital sentencing," Judge Thomas wrote.
At the very least, legal habituation aside, surely Summerlin was at least entitled to be sentenced by a judge who was "unimpaired". Somehow, Summerlin wound up with a second death sentence imposed for killing the same person, which is the sort of thing that makes you scratch your head. If you commit several felony murders, than an individual death sentence for each one is understandable, but how do you get sentenced to death twice for killing the same person? (The Times may be lacking a certain amount of information in the article, one suspects.)
It will be interesting to see what happens whtn this reaches the Court. As the Daily Star article notes, the Ninth Circuit Court of Appeals is quite literally the only court in the land to have ruled this way. That a circuit court of appeals did so, in opposition to the other three circuit courts that have ruled on the matter, makes it more likely that the Supreme Court will accept the case.
One wonders why the Court didn't originally specify whether or not this particular rule would apply retroactively. It does seem logical, on the face of it, that the rule would be required to apply retroactively, but clearly, the courts of appeals seem to feel differently. (One wonders whether or not the courts of appeal had decided somehow that they didn't want to take the heat for overturning huge volumes of death sentences.) Given that Ring was a 7-2 decision in favor of this rule in the first place, it might well produce an equally decisive majority for retroactivity.
Posted by iain at 11:10 AM
