This is the kind of case that probably gives government defense lawyers ulcers. They made out o.k. in the end, but the jury verdict had to be a bad shock. The 7th Circuit recently decided the case of Freeman v. Berge (pdf). Freeman was a prisoner at a maximum security Wisconsin state prison. The prison’s feeding rules require the prisoner to stand in the middle of his cell, with the lights on, when the meal is delivered and that he be wearing trousers or gym shorts.

Mr. Freeman decided he didn’t want to wear pants, just his underwear. So, the prison didn’t feed him when he refused to wear pants. Sometimes, Mr. Freeman wanted to keep a sock on his head. The prison was concerned that the sock could be a weapon, depending what was inside of the sock. So, when he refused to remove it from his head, they didn’t feed him. Other times, Mr. Freeman decided it would be neat to smear the walls of his cell with blood and feces. When he refused to clean the walls, the prison refused to feed him.

As a result, he skipped so many meals he lost 45 pounds. He sued, claiming cruel and unusual punishment. A jury agreed and awarded him $50,000 in compensatory damages and $1.2 million in punitive damages. The trial court decided to disregard the jury verdict and enter judgment for the defendant “as a matter of law” (which essentially means that the trial court determined that, the jury’s conclusion notwithstanding, was no support for the jury’s conclusion based on the evidence presented.)

The Court of Appeals agreed with the trial court. The court distinguished between deprivation of food being used as a punishment and deprivation of food caused by the prisoner’s failure to comply with reasonable food service rules. The Court found the pro-pants, anti-fecal matter rules of the prison to be reasonable and, accordingly, said the prisoner wasn’t entitled to his $1.25 million.

I’ve heard about the Tookie Williams case in the news from time to time in the past few weeks. Then I saw that Leo Morris has a post over at Opening Arguments.

His reservations on the death penalty generally are based on a question of whether the government is competent to entrust with that power. He says:

It’s hard to question the government’s competence to do something as simple as paving potholes or hauling garbage and then blithely give it the very power of life and death.

My concerns about the death penalty are similar, though I suspect I have a more optimistic view about the abilities of our fellow citizens who work for the government. But, a missed pothole is not quite as tragic as executing an innocent man. And, since I’m not comfortable that the fact-finding process in capital trials is error-free, I can’t be comfortable about implementation of the death penalty generally.

But my specific thoughts about the Tookie Williams matter don’t even deal with that. Even though he claims he’s innocent, I’m just taking for granted that he was properly convicted. And, at this time, I’ll put forth my disclaimer that I haven’t followed the case closely at all. My understanding is that 1) Mr. Williams was convicted of killing some people about 30+ years ago in a manner that was cold-blooded and without any mitigating circumstances. 2) He denies having done it. 3) He has done some very good things with his time in jail, apparently working to keep kids away from gangs. 4) He’s scheduled to be executed tonight.

Based on the facts above, my thoughts on why clemency should be considered are pretty coldly pragmatic. I know there is an emotional desire to obtain retribution for the lives Mr. Williams took. But, I think clemency should be granted, if not necessarily in this case, in cases of a similar nature. First, killing Mr. Williams is not going to bring back the victims. Second, any deterrent effect of the death penalty is going to be the same if the death penalty is carried out in most cases rather than all cases. Third, the world –assuming as an irreversible status quo, the world as it was after Mr. Williams committed the murders– is at least marginally better because Mr. Williams worked hard to make it a little better. Fourth, all things being equal, we’d rather have death row inmates working hard to make the world a little better than doing nothing at all or working to make it worse. Fifth, (and, pragmatically, this might be the most important) death row inmates are likely easier to control and guard if they have something to live for.

So, if you grant clemency here and there for death row inmates who have worked exceptionally hard to do a little bit of good in the world after their heinous crimes, you are not likely to reduce the deterrent effect, such as it is, of the death penalty. You are likely to encourage future death row inmates to work hard to do a little bit of good. And, you make death row inmates a more controllable population in the prison. So, I do not know enough about the Williams case to say whether he’s exactly the right sort of candidate for clemency, but certainly I think there are probably cases like his where clemency would be the right course of action.

Like I said, this doesn’t satisfy the emotional desire of retribution for the deaths caused by Mr. Williams. But, I think we should set our policy rationally rather than emotionally.

The Indy Star offers up an ignorant editorial on the House Prayer issue entitled Religious tolerance takes a hit.

In particular, I refer to the passage that says:

The real question in this case is whether a federal judge has the authority to censor the prayers of religious leaders. Hamilton contends that even private individuals give up their First Amendment rights when they stand before “an official platform like the Speaker’s podium.” Yet, if the First Amendment means anything, it is that government, including the courts, does not have the power to regulate a private citizen’s religious or free speech rights. And those rights are not surrendered simply because an individual has entered a government building.

Because the Speaker of the House controlled access to the Speaker’s podium and that podium is not, in fact, open to the public, the speech from the ministers from that podium was government speech, not private speech. This is a vital distinction, one which Speaker Bosma conceded in the court proceedings but deliberately forgets or ignores in his public reaction. Bosma’s ignorance or amnesia has spread to the Indy Star’s editorial board. The First Amendment does not create a limitation on private speech. It does, however, impose a limitation on government speech, which is all the Court did.

It is simply pathetic that the Star chooses to perpetuate the myth that the Court is attempting to regulate private speech. All the Court has done is engage in the limitation of government speech. Limitation of government is the First Amendment’s purpose, and that is how it has been used in this instance.

A pretty good article on protests by colleges on CALEA. CALEA is the “Communications Assistance for Law Enforcement Act.” It was passed back in 1994 to require communications providers to make their systems wiretap friendly, particularly as new technologies were implemented.

I remember an uproar about CALEA back when I first started on the Internet (which was in ’94) but haven’t followed the issue closely since then. Apparently implementation has dragged out. The article is about the protests of colleges with respect to the expense and other burdens CALEA puts on their systems.

The federal government, vastly extending the reach of an 11-year-old law, is requiring hundreds of universities, online communications companies and cities to overhaul their Internet computer networks to make it easier for law enforcement authorities to monitor e-mail and other online communications.

The action, which the government says is intended to help catch terrorists and other criminals, has unleashed protests and the threat of lawsuits from universities, which argue that it will cost them at least $7 billion while doing little to apprehend lawbreakers.

. . .

The order, issued by the Federal Communications Commission in August and first published in the Federal Register last week, extends the provisions of a 1994 wiretap law not only to universities, but also to libraries, airports providing wireless service and commercial Internet access providers.

It also applies to municipalities that provide Internet access to residents, be they rural towns or cities like Philadelphia and San Francisco, which have plans to build their own Net access networks.

. . .

The 1994 law, the Communications Assistance for Law Enforcement Act, requires telephone carriers to engineer their switching systems at their own cost so that federal agents can obtain easy surveillance access.

. . .

Technology experts retained by the schools estimated that it could cost universities at least $7 billion just to buy the Internet switches and routers necessary for compliance. That figure does not include installation or the costs of hiring and training staff to oversee the sophisticated circuitry around the clock, as the law requires, the experts said.

“This is the mother of all unfunded mandates,” Mr. Hartle said.

Even the lowest estimates of compliance costs would, on average, increase annual tuition at most American universities by some $450, at a time when rising education costs are already a sore point with parents and members of Congress, Mr. Hartle said.

. . .

If law enforcement officials obtain a court order to monitor the Internet communications of someone at a university, the current approach is to work quietly with campus officials to single out specific sites and install the equipment needed to carry out the surveillance. This low-tech approach has worked well in the past, officials at several campuses said.

But the federal law would apply a high-tech approach, enabling law enforcement to monitor communications at campuses from remote locations at the turn of a switch.

It would require universities to re-engineer their networks so that every Net access point would send all communications not directly onto the Internet, but first to a network operations center where the data packets could be stitched together into a single package for delivery to law enforcement, university officials said.

. . .

Law enforcement has only infrequently requested to monitor Internet communications anywhere, much less on university campuses or libraries, according to the Center for Democracy and Technology. In 2003, only 12 of the 1,442 state and federal wiretap orders were issued for computer communications, and the F.B.I. never argued that it had difficulty executing any of those 12 wiretaps, the center said.

“We keep asking the F.B.I., What is the problem you’re trying to solve?” Mr. Dempsey said. “And they have never showed any problem with any university or any for-profit Internet access provider. The F.B.I. must demonstrate precisely why it wants to impose such an enormously disruptive and expensive burden.”

. . .

And, of course, all of this puts aside the civil liberties questions about just how easy it ought to be for the Justice Department to tap our phones.

According to the Associated Press, Michael Newdow is taking another shot at the school/under god/pledge of allegiance issue. Some time in the 1950s, the Congress jammed the phrase “under God” into the pledge. Newdow filed suit on his own behalf saying it was an unconstitutional violation of his rights as an atheist parent for schools to foist a pledge involving God on his daughter.

The 9th Circuit Court of Appeals agreed that schools shouldn’t be requiring kids to recite an affirmation of the existence of God. The Supreme Court ducked the issue by saying Newdow didn’t have standing because he didn’t have custody of his daughter when he filed the suit. Now, Newdow is acting as an attorney for three unnamed parents and their children. The California District Court Judge who heard the case said that the previous 9th Circuit decision is still good law, and he was bound by it. Now it will go up to the 9th Circuit. Presuming they don’t change their minds, Newdow will likely be gunning for a cleaner shot at the Supreme Court where it will have to decide the issue correctly. directly. (Typo there — obviously the S.Ct. is never required to decide an issue correctly. “A Supreme Court decision isn’t final because it’s right; it’s right because it’s final.”)

In my mind this is one of those issues where Newdow is right but I can’t work up much excitement for him. It’ll get overly sensitive religious types all worked up. It’ll get patriotic types with short attention spans all worked up because they won’t hear anything more than “atheist trying to ban the Pledge of Allegiance!” And, at the end of the day, even if he wins, it won’t do a whole lot for the advancement of Enlightenment values in our country.

Personally, I’d like to see the Congress repeal the McCarthy era law that inserted “under God” into the Pledge and ruined its cadence. I feel an allegiance to my country whether it’s under God or under nothing. No need to throw 3 extra syllables into an otherwise perfectly good verse in the name of a superfluous sentiment.

Wow. Justice Rehnquist died this evening, the AP is reporting. That ought to make things interesting. Two Supreme Court vacancies to be filled by a President whose poll numbers are in the toilet while he’s presiding over the greatest natural disaster of the century. The Bible thumpers are going to howl for theocratic dominance of the court to overturn Roe v. Wade and possibly Griswold v. Connecticut (that’s the case that found the right to privacy, allowing married couples to use contraception. The right to privacy is the much maligned penumbral right that social conservatives scorn while ridiculing the legal rationale of Roe.)

Well, rest in peace, Justice Rehnquist.

The S.Ct. released an opinion in the case of Town of Castle Rock v. Gonzales concerning a case where a mother had a restraining order against a father. The father kidnapped the kids and later murdered them. The facts are reasonably horrible. The kids disappeared from the yard between 5 and 5:30. Mom noticed the kids were gone, suspected the husband had them, and called the police at about 7:30 and, when the officers arrived at her home, showed them a copy of the restraining order and requested it be enforced. The officers said they couldn’t do anything and told her to call back if the kids were still gone at 10. At 8:30 mom talked to dad on the cell phone. Dad said he had the kids at an amusement park in Denver. Mom called the police and requested that the police check out the amusement park and get the kids back for her. They told her to call back at 10. At 10 she called back. They said call back at midnight. At midnight she called, and eventually got an officer dispatched to her home at 12:50 a.m. The investigating officer took the report and but didn’t try to enforce the order, instead he went to dinner. At 3:20 a.m. dad showed up at the police station and opened fire on the police. They returned fire, killing him. In the cab of dad’s pickup truck were the bodies of the 3 children.

Mom sued the city on her own behalf and on behalf of her dead children under 42 USC 1983 under a theory that their due process rights had been violated both procedurally and substantively. The 10th Circuit denied her substantive due process claim but upheld the procedural due process claim, holding “protected property interestin the enforcement of the terms of her restraining order” and that the town had deprived her of due process because “the police never ‘heard’ nor seriously entertained her request to enforce and protect her interests in the restraining order.”

The Supreme Court overturned the 10th Circuit decision in an opinion written by Justice Scalia joined by Rehnquist, O’Connor, Kennedy, Souter, Thomas and Breyer. Justices Stevens and Ginsburg dissented. Justice Scalia mentioned that this question had been left opened by the 1989 case of DeShaney v. Winnebago County (The “Poor Joshua” case for those of you who remember Justice Steven’s dissent.) Scalia described the question in DeShaney:

As the Court of Appeals recognized, we left a similar question unanswered in DeShaney v. Winnebago County Dept. of Social Servs., 489 U. S. 189 (1989), another case with “undeniably tragic” facts: Local child-protection officials had failed to protect a young boy from beatings by his father that left him severely brain damaged. Id., at 191–193. We held that the so-called “substantive” component of the Due Process Clause does not “requir[e] the State to protect the life, liberty, and property of its citizens against invasion by private actors.” Id., at 195. We noted, however, that the petitioner had not properly preservedthe argument that—and we thus “decline[d] to consider” whether—state “child protection statutes gave [him] an ‘entitlement’ to receive protective services in accordance with the terms of the statute, an entitlement which would enjoy due process protection.”

The 10th Circuit’s decision turned on a Colorado statute which provided, among other things, “A peace officer shall enforce a valid restraining order whether or not there is a record of the restraining order in the registry.” The 10th Circuit held that this statute demonstrated the state of Colorado’s clear intent “to alter the fact that the police were not enforcing domestic abuse retraining orders,” and thus its intent “that the recipient of a domestic abuse restraining order have an entitlement to its enforcement.” Any other result, it said, “would render domestic abuse restraining orders utterly valueless.” If the recipient of the restraining order had an entitlement to its enforcement, the argument goes, then a failure to enforce the restraining order deprives the recipient of its value and, therefore, constitutes deprivation of property without due process in violation of the 5th and 14th Amendments.

The Supreme Court regarded the 10th Circuit’s language as hyperbole.

Whether or not respondent had a right to enforce the restraining order, it rendered certain otherwise lawful conduct by her husband both criminal and in contempt of court. The creation of grounds on which he could be arrested, criminally prosecuted, and held in contempt was hardly “valueless”—even if the prospect of those sanctions ultimately failed to prevent him from committing
three murders and a suicide.We do not believe that these provisions of Colorado law truly made enforcement of restraining orders mandatory. A well established tradition of police discretion has longcoexisted with apparently mandatory arrest statutes.

With respect to police discretion, the Court noted:

It is hard to imagine that a Colorado peace officer would not have some discretion to determine that—despite probable cause to believe a restraining order has been violated—the circumstances of the violation or the competing duties of that officer or his agency counsel decisively against enforcement in a particular instance. The practical necessity for discretion is particularly apparent in a case such as this one, where the suspected violator is not actually present and his whereabouts are unknown.

With respect to the entitledment, the Court noted:

Respondent does not specify the precise means of enforcement that the Colorado restraining-order statute assertedly mandated—whether her interest lay in having police arrest her husband, having them seek a warrant for his arrest, or having them “use every reasonable means, up to and including arrest, to enforce the order’s terms,” Such indeterminacy is not the hallmark of a duty that is mandatory. Nor can someone be safely deemed “entitled” to something when the identity of the alleged entitlement is vague.

Even if the obligation to enforce the warrant was mandatory on the police, the Court argues, that wouldn’t necessarily mean that the mandate constituted an entitlement for the benefit of the Respondent (in this case, the mother).

The Court concludes with a summary of the law of which I approve, as someone who frequently defends government entities against claims under 42 U.S.C. 1983:

In light of today’s decision and that in DeShaney, the benefit that a third party may receive from having someone else arrested for a crime generally does not trigger protections under the Due Process Clause, neither in itsprocedural nor in its “substantive” manifestations. This result reflects our continuing reluctance to treat the Fourteenth Amendment as ‘a font of tort law,’ but it does not mean States are powerless to provide victims with personally enforceable remedies. Although the framers of the Fourteenth Amendment and the Civil Rights Act of 1871, 17 Stat. 13 (the original source of §1983), did not create a system by which police departments are generally held financially accountable for crimes that better policing might have prevented, the people of Colorado are free to craft such a system understate law.

Because the police have discretion over enforcement, their failure to enforce the restraining order did not constitute a violation of mom’s Constitutional rights.

The Washington Post has an article entitled, Ten Commandments Disallowed in Courthouses

Sort of the usual suspects. Stevens, Ginsburg, Breyer, Souter and O’Connor as the swing vote held that a Kentucky court house display of the Ten Commandments was impermissible because “”When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment clause value of official religious neutrality.” Justice Souter wrote for the majority. Opposed were Rehnquist, Scalia, Thomas, and Kennedy. Oddly, the article felt it necessary to point out that O’Connor was a Reagan appointee. If they’re going that route, they should say Ten Commandments ruled impermissible by Ford-appointee Stevens, Reagan-appointee O’Connor, Bush I-appointee Souter, and Clinton appointees Breyer and Ginsburg.

I haven’t read the opinion yet, but it is available in PDF form here.

—————–

The Supreme Court decided another case here wherein it held that a public display of the Ten Commandments was permissible. That display was at the Texas State House where it was among 17 monuments and 21 historical markers, and the Court felt that the display in that case was more secular in nature.