Archive for the ‘law’ Category
New Mexico’s governor, Bill Richardson, signed a bill that abolishes capital punishment in that state—at least henceforth; the two people currently on death row in the Land of Enchantment will stay there. For crimes committed after 1 July of this year the maximum penalty will be life in prison without the possibility of parole.
New Mexico is the second state to abolish capital punishment since the U.S. Supreme Court reinstated it in 1976. New Jersey did so in 2007. The state used the death penalty very sparringly, only executing one person since 1960.
Richardson said that over 12,000 people contacted his office by phone, e-mail, snail mail, or in person; over three-quarters supported repeal. While he used to support capital punishment, he cites the possibility of executing an innocent person and the racial disparity in the penalty’s application as reasons for abolishing it.
There are now 15 states without the death penalty; two of them, Nebraska and New York, had existing statutes declared unconstitutional by their Supreme Courts and have yet to pass new laws. About 22.25% of all Americans live in a state without the death penalty. Many others, including Maryland, are considering abolishing it.
A bill that would give the District of Columbia full representation in the U.S. House has cleared a key hurdle in the Senate, a procedural vote invoking cloture, 62-34, that will allow it to face a final vote in that chamber later this week. A majority of senators appear to support it. If passed by the Senate, it will then go to the House of Representatives, where such bills have previously been approved in past Congresses. President Obama has indicated he will sign the legislation.
The District presently has a Delegate in the House of Representatives, since 1991 Eleanor Holmes Norton (D). Delegates can vote in committee and on amendments but not on final passage of legislation. Puerto Rico, Guam, American Samoa, the Virgin Islands, and the Northern Mariana Islands also currently have delegates in the House; none has representation in the Senate (which the present bill would not change for the District).
Washington, D.C. is overwhelmingly Democratic; typically only about 10-15% of the city’s vote in presidential elections goes to the Republican ticket. It is extremely unlikely that the District would elect a Republican to any House seat that it is given. I don’t think such political considerations should bear on the matter, however. The bill in question, S. 160, would also grant another House seat to the State of Utah, which is currently represented by two Republicans and one Democrat, in the lower house. Utah is one of the most Republican-leaning states in the Union and would likely elect a Republican to that seat. The state missed out on gaining a fourth representative by just 856 people after the 2000 census (it went instead to North Carolina; there were some lawsuits over the way people were counted, but they went against Utah).
I think that the people of Washington, D.C. should have full representation in Congress—and not just because I don’t want them to mess up their flag, either; it seems like a matter of right to me. However, I think that the bill is probably unconstitutional. The Constitution says that Representatives shall be chosen “by the people of the several states” and a normal reading would seem to limit full congressional representation to states, which the District clearly is not. The Supreme Court’s precedents on the matter are divided, but it does appear likely the Court would strike down the bill. A Constitutional amendment may be needed to rectify the problem.
The Wyoming Senate has given preliminary approval to a bill that would outlaw internet hunting in the Union’s least populous state. First used in Texas, which has also since outlawed the practice, internet hunting allows people to shoot animals with a remote-controlled gun and a webcam.
“It’s absolutely despicable to have a remote gun, unless we were able to send the gun to Iraq or something like that,” [Sen. Charles] Townsend said. “So lets vote it out of here right now.”
John Emmerich, deputy director of the Wyoming Game and Fish Department, said after the Senate vote that the department supports the bill and opposes Internet hunting. He said 38 states have already passed bans.
Wyoming game rules make allowances for hunters who use wheelchairs as well as for blind hunters, Emmerich said.
However, Emmerich said, “Killing something on the Internet is not consistent with the whole concept of hunting and fair chase.”
According to Wikipedia, internet hunting has never been a viable industry. There is some worry that the remote control guns may now just be relocated to other countries with looser laws on what you can shoot from thousands of miles away.
The North Dakota House of Representatives approved a bill that would grant human rights to fertilized egg cells, a move designed to challenge abortion and Roe v. Wade. The bill passed 51-41 and now moves on to the 47-member state Senate.
If passed by the Legislative Assembly and signed into law by the Governor, the bill will face a challenge in the courts, which will almost certainly declare it unconstitutional and a violation of Roe v. Wade. Critics say that defending the law in the courts will be an unnecessary expense for the state, since defeat is almost certain. The current composition of the Supreme Court, and the likely composition after any Obama appointments, make it unlikely that that tribunal would intervene to overturn its prior precedents in abortion law.
The operative text of the bill reads as follows:
References to individual, person, or human being – Legislative intent. For purposes of interpretation of the constitution and laws of North Dakota, it is the intent of the legislative assembly that an individual, a person, when the context indicates that a reference to an individual is intended, or a human being includes any organism with the genome of homo sapiens.
The measure is very similar to Colorado’s Amendment 48 (blogged about in detail here), which would have modified that state’s constitution to define a fertilized egg as a person. The people of Colorado examined the issue closely and handed Amendment 48 a huge defeat—73.3% of voters rejected it, almost a 3:1 margin.
To abortion opponents this sort of thing may sound good, but upon examination the law becomes extremely problematic. Not only abortion, but many common forms of birth control that prevent fertilized eggs from implanting in the uterus would be illegal; women on the pill could potentially be charged with murder. The law would also be likely to have a chilling effect on the medical community for various reasons.
Even if the law was a good idea, it is so likely to be struck down in the courts that passing it would amount to only a fairly costly symbolic gesture. I think the people of North Dakota have more important business for their legislators to be attending to.
The California Supreme Court will hear oral arguments to determine the validity of Proposition 8, the constitutional amendment approved by 52% of the state’s voters last November. Prop 8, which this blog is not a fan of, overturned a previous decision of the state’s high court that required the state to recognize and allow same-sex marriage.
The argument brought by opponents of the measure is that it violates not the Federal Constitution but certain provisions of the State Constitution, which contains several different amendment mechanisms including initiatives, which can be placed on the ballot by petition, and revisions, which can only be put on the ballot by a super majority of the state legislature.
The plaintiffs argue that a measure eliminating fundamental rights from a historically persecuted minority amounts to a revision of the Constitution and exceeds the power of initiatives.
A revision can be placed on the ballot only by a two-thirds legislative vote or by delegates to a state constitutional convention. The court has upheld such challenges to initiatives only twice in its history, in 1948 and 1990.
Opponents of Prop. 8 also argue that it violates the constitutional separation of powers by stripping the judiciary of its ability to protect a minority group. Attorney General Jerry Brown has sided with opponents of the measure and argues that it is invalid for another reason: that it abolishes “inalienable rights,” guaranteed by the state Constitution, without a compelling justification.
The plaintiffs clearly have a tough case to argue and, as a matter of law, I’m not sure if they’re correct about the measure constituting a serious revision. I didn’t think they had a case at first, but now I think they may. Imagine if a simple majority of the electorate could revoke the right of women or of African Americans to vote. Or if 50% +1 could take away the presumption of innocence or freedom of religion. (All of these are protected by the U.S. Bill of Rights, but the point remains.)
Keep in mind that the entire point of a Bill of Rights is to keep the majority from doing what it wants. If it can be overturned by a simple majority, then what’s the point? It’s just a speed bump, not any sort of true impediment to the mob or protection for political minorities.
Even if Proposition 8 is permissible under that wonderful document that is the California Constitution, it shouldn’t be. Amending the Constitution should take more than a few signatures on a petition and then a simple majority of the electorate. A simple majority to ratify an amendment proposed by a super majority of the legislature is fine; that’s what almost all, if not all states allow. But an amendment proposed by petition, if allowed at all, should have to secure 60% of the vote, I think.
The lead case is Strauss vs. Horton, S168047. The Court will also be hearing arguments concerning whether the 18,000 same-sex marriages performed prior to the amendment was approved are still valid. I imagine they would be, but the state just couldn’t recognize them—if Proposition 8 is upheld. The lead attorney for those seeking to overturn the amendment and limit marriage rights is Kenneth Starr, the former investigator of President Clinton.
Due to some technical difficulties with the oath of office as given on Tuesday, Barack Obama had Chief Justice John Roberts administer the oath again Wednesday evening.
Due to an apparent misunderstanding of where Roberts would pause in the oath for Obama to repeat after him, Roberts flubbed part of the Constitutionally-stipulated oath, reversing the order of some words. As Article II of the U.S. Constitution says:
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:
“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”
Here is the original oath:
The administration and legal scholars said this probably wasn’t necessary, but was done out of an over abundance of caution.
Craig, the White House lawyer, said in a statement Wednesday evening: “We believe the oath of office was administered effectively and that the president was sworn in appropriately yesterday. Yet the oath appears in the Constitution itself. And out of the abundance of caution, because there was one word out of sequence, Chief Justice John Roberts will administer the oath a second time.”
The Constitution is clear about the exact wording of the oath and as a result, some constitutional experts have said that a do-over probably wasn’t necessary but also couldn’t hurt. Two other previous presidents have repeated the oath because of similar issues, Calvin Coolidge and Chester A. Arthur.
Hopefully Justice Stephens, who delivered the significantly longer Vice Presidential oath to Joe Biden without incident, isn’t giving Roberts a hard time about all of this back at SCOTUS headquarters.
An 8-year old Saudi Arabian girl forced into a marriage with a 58-year old man (CNN reports that he’s 47) must stay married, according to a Saudi Judge, Sheikh Habib Abdallah al-Habib. Her father arranged the marriage in order to cover his debts to the man, who is reportedly “a close friend.” The amount in question is approximately $7961 US.
The girl’s mother, with whom she lives, petitioned the court to annul the marriage; however the judge ruled that the mother, who is divorced from the father, is not the legal guardian of the girl and thus has no standing to bring suit. The judge ruled that the girl could petition in her own right for a divorce once she reaches puberty, however there is no accepted definition of what constitutes puberty under sharia law. The father apparently had asked the man not to have sex with his “wife” until she reached 18. The judge has asked for some sort of pledge from the husband against consummating the marriage until she reaches puberty, whatever that may mean. (I presume that the pledge would go to the father, not the girl, if te girl is statutorily raped, as such activity would be called in the civilized world).
Such marriages between young girls and (much) older men are not terribly uncommon in Saudi Arabia, though there are Saudis who oppose child marriages and point out that they violate various human rights agreements to which the kingdom is a party. (As I’d previously noted, women are not currently allowed to drive legally in the kingdom, which is hardly a bastion of women’s rights.)
Apparently the girl doesn’t yet know that she’s married. Hopefully the girl continues living with her mother and doesn’t find out about her marriage until she gets to sign the divorce papers in a few years.
A 23-member commission set up in Maryland to investigate the death penalty in that state has released its final report; they recommend, by a vote of 13-9 with one abstention, abolishing capital punishment in the Seventh State. The Maryland Commission on Capital Punishment included five legislators along with lawyers, civilians, and clergy; most were appointed by Governor Martin O’Malley, a death penalty opponent. It was chaired by former U.S. Attorney Benjamin Civiletti who said the commission recommended repeal rather than reform because “There are so many faults, so many flaws within the system that we could not imagine … ways in which to cure it.”
By a vote of 20-3 the commission found that racial disparities and differences in how the death penalty is sought from one jurisdiction to the next created significant problems.
The present administration of capital punishment shows substantial disparities in its application based on race and jurisdiction. … These disparities are so great among and between comparable cases that the death penalty process is best described as arbitrary and capricious.
For instance, the chances of receiving the death penalty in Baltimore County is about 23 times higher than the chances of receiving the death penalty in Baltimore City (they are geographically and politically distinct entities).
Baltimore County State’s Attorney Scott Shellenberger was a member of the commission and wrote a 22-page dissent which seven other members signed. He says that prosecutors must be able to “reflect the will of the people,” and said regional disparities can be explained by “local rule.” “Different sentences in different counties for the same kind of crime are legal and constitutional,” Shellenberger wrote in the dissent. “Disparities in sentencing exist in each county across the entire spectrum of crimes committed in Maryland.” He argued that the state should retain the death penalty as a tool to wield against “the worst of the worst.”
The commission reported that the death penalty is not an effective deterrent, saying they found “no persuasive evidence that the death penalty deters homicides in Maryland.” They also found that the additional costs that the death penalty incurs do not bring corresponding benefits. They estimate that $186 million could have been saved between 1978–1999 if the state had sought life imprisonment without the possibility of parole in lieu of the death penalty. Of course, they also cited the chance that an innocent person could be executed, despite advances in forensic science, including DNA evidence (which is only available in a minority of death eligible cases). For a summary of their findings, click here.
Fifteen other states, plush the District of Columbia, have no death penalty; and in many other states it is rarely used. Efforts to abolish capital punishment failed in the Maryland General Assembly the past two sessions, last year on a tied vote in a Senate committee. It is expected that the commission report will increase the chances of abolition passing during the 2009 session and will certainly make the debate one of chief interest.
Maryland has carried out five executions since the U.S. Supreme Court reinstated capital punishment in 1978, two of them since 2000. Currently five people are on the state’s death row. Unlike most other states with the death penalty, Maryland does not offer the condemned a “last meal”; he or she is simply served whatever is on the prison menu that day. For more info, see Wikipedia’s article on capital punishment in Maryland, which has data going back to 1638.
The Governor of Illinois, Rod Blagojevich, has been arrested for attempting to sell the U.S. Senate seat vacated by Barack Obama to the highest bidder. Under state law, when there is a midterm vacancy in the state’s Senate representation the Governor can appoint a replacement; Federal authorities tapped his phones and claim evidence that Blagojevich was trying to sell the appointment for cold hard cash as well as other benefits for himself and his wife, including lucrative appointments to corporate boards.
In the affidavit, the Governor is quoted as saying “I want to make money,” and noting that a Senate seat “is a f—ing valuable thing, you just don’t give it away for nothing.” He allegedly said that he would appoint himself to the seat if he didn’t “get something real good” for it, saying “I’m going to keep this Senate option for me a real possibility, you know, and therefore I can drive a hard bargain.” Another time he said “I’ve got this thing and it’s f—ing golden, and, uh, uh, I’m just not giving it up for f—in’ nothing. I’m not gonna do it. And, and I can always use it. I can parachute me there.” Apparently he thought it could put him in good position to run for President himself in 2016. That’s probably pretty unlikely now.
Blagojevich is under investigation for numerous other alleged acts of corruption, including trying to use government powers to pressure the Chicago Tribune to fire reporters who were critical of him. Special prosecutor Patrick Fitzgerald has called this “the most staggering crime spree in office I have ever seen.” Unfortunately, the only way he can be impeached right now is if the legislature convenes, which can only happen if he calls for it. Which probably isn’t too likely. Apparently they are trying to convene to call for a special election, to get around having the governor appoint someone. The Times Online out of London has a good story detailing some of the alleged deals that the governor was trying to make; I highly recommend it.
If these allegations are true—and I don’t think you arrest a sitting state governor without a surfeit of evidence—then Blagojevich is one corrupt dude and needs to be in jail, not the Illinois governor’s mansion. But one must admit that he fits right in at the Illinois executive mansion, three other Governors of the Land of Lincoln have been jailed in the past 35 years, as reported by MSNBC:
— OTTO KERNER, a Democrat who was governor from 1961 to 1968, served less than a year of a three-year sentence after his 1973 conviction on bribery, tax evasion and other counts. He was convicted of arranging favorable horse racing dates as governor in return for getting horse racing association stock at reduced prices. Kerner died in 1976.— DAN WALKER, a Democrat who was governor from 1973 to 1977, served 1 1/2 years of a seven-year sentence after pleading guilty in 1987 to bank fraud, misapplication of funds and perjury. The charges were not related to his service as governor.— GEORGE RYAN, a Republican who was governor from 1999 to 2003, was convicted of corruption in 2006 for steering state contracts and leases to political insiders while he was Illinois secretary of state and then governor. He is serving a 6 1/2-year prison term.
Today the Iraqi cabinet unanimously approved a Status of Forces Agreement that will allow U.S. forces to stay in the country legally after their UN mandate expires at the end of this year. According to Al Jazeera the vote was 27-0 with one cabinet member abstaining and nine members not present. The agreement must now be approved by the full parliament.
The pact requires U.S. troops to leave the country’s towns and cities by mid 2009; they will then be based in rural areas and will assist in urban areas only when called upon to do so by Iraqi forces. U.S. forces must leave Iraq by the 31 December 2011. It was because this agreement was in the works and that no Iraqi government would or could approve a document that allowed the U.S. to stay much beyond 2011 that I didn’t think the recent presidential election would have any impact on the withdrawal of the American military from Iraq; John McCain couldn’t keep the troops there indefinitely and Barack Obama is unlikely to pull them out ahead of schedule. .
While Status of Forces Agreements (SOFAs) are considered treaties under international law (see Article 2 Section 2(a) of the 1969 Vienna Convention on the Law of Treaties), under U.S. law they are considered executive agreements and are made pursuant to the president’s inherent power as commander in chief of the armed forces, not his or her treaty-making power; they therefore do not require approval either by the full Congress or the Senate.
In Iraq the pact is controversial, with Sunnis tending to be most opposed and some calling for a public referendum. Now that the Iraqi cabinet has approved it, the agreement must now be passed by the 275-member Iraqi parliament where its fate is uncertain. It then would have to be ratified by the three-member presidency which includes Sunni Vice President Tariq Hashimi, who has led calls for a public referendum and could veto the pact. There are currently about 150,000 American military personnel in the country.