Constitution Daily Update: More snooping allegations, a new look at jail sentences

Washington is under assault from Amazon’s Jeff Bezos and a team of 100 poison ivy eating goats. Also: a bipartisan effort to shorten jail sentences and a big anniversary for the 25th Amendment.

Nsa_signThursday, August 7, 2013

Items To Watch

1. Bezos-mania continues to run wild. Amazon founder Jeff Bezos and his move to buy the Washington Post is making big waves in political circles. The Post itself has done a ton of coverage about itself in recent days and people in Washington remain obsessed with the story.

In a different take, Constitution Daily’s Lyle Denniston looks at the moves by Bezos and Red Sox owner John Henry to get into the news business – and how it could be an important development that keeps the media independent as a First Amendment watchdog.

2. Another report the government could be reading your email. This one comes from The New York Times and reflects recent allegations that NSA folks could be reading text messages and emails, under what supporters say are legal provisions of the FISA Amendments Act of 2008. The Times report says the snooping takes place inside your communications to see if you’re in contact with foreign terror suspects.

Developing Questions …

Here are some updates on new discussions about top-of-mind constitutional issues.

1. Is the writ of habeas corpus dead in death penalty cases?

When John Errol Ferguson was executed in Florida on Monday, media attention focused on the irreconcilable contradiction between the rule of the Supreme Court from 1986 barring the execution of an insane person and the undisputed facts that Ferguson was a paranoid schizophrenic, whose delusions led him to think he was the “Prince of God” and believe he was being executed not because he committed murder, but because Florida wanted to keep him from sitting at God’s right hand.

But after years of back and forth between the Florida state courts and the federal courts in the Ferguson case, the petition for review that the United States Supreme Court rejected soon before he was executed was just as importantly about “the continued confusion among the lower federal courts over the role entrusted to them by the Great Writ,” as Ferguson’s lawyers said in a brief: When do the lower courts have “the obligation to review and remedy erroneous state-court decisions in matters implicating prisoners’ lives”?

At issue is federal court interpretation of the Antiterrorism and Effective Death Penalty Act, or AEDPA. The application by the U.S. Court of Appeals for the Eleventh Circuit in the Ferguson case was what his lawyers called “a uniquely potent form of AEDPA deference, a strain so strong that the panel upheld – as one judge conceded – the Florida Supreme Court’s ‘patently incorrect’ competency standard.” That was “not deference,” the lawyers claimed, “it was abdication.”

The Eleventh Circuit disagreed, with the view that “there is not yet a well-defined bottom line in this area of the law.”

Instead of attempting to answer more specifically the question of what is required for a rational understanding of death by execution and the reason for it, the Supreme Court preferred to leave “a question of this complexity” to be addressed in a fuller manner and on a better record by the district court and the court of appeals in that case.

Given the Supreme Court’s deference, the Eleventh Circuit found, the Florida Supreme Court did its best to apply the law to the facts in the case and its decision was not “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement.”

The case puts starkly the question whether the deference to state court decisions required by AEDPA has been turned into extreme deference by lower federal courts like the Eleventh Circuit – or as Ferguson’s lawyers said, into abdication.

2. Do mandatory minimums need to be reduced in jail sentences?

One of the newly appointed members of the United States Sentencing Committee is New York University Law School’s Rachel Barkow, a former law clerk to Justice Antonin Scalia, who has been an articulate voice for greatly improving proportionality in sentencing, so sentences better fit the crimes.

The call she has made in scholarly and congressional testimony has been taken up by Attorney General Eric Holder, as NPR reported on this week and the Sentencing Law and Policy Blog  is spotlighting. The attorney general’s view is that many sentences are too long, unfair, and too expensive for the country, with almost half of the 219,000 federal prisoners doing time for drug charges and many of them low-level mules rather than leaders of drug rings.

Last week, the left-right pair of the Democratic Senator Dick Durbin of Illinois and Republican Senator Mike Lee of Utah proposed the Smarter Sentencing Act of 2013, which would lower sentences for several drug crimes and give federal judges more discretion to give nonviolent offenders lower sentences than are prescribed by current mandatory-minimum sentence laws.

This left-right support is mirrored among policy groups, for example, from Right on Crime and ALEC among conservative groups and liberal groups like the NAACP and FAMM—Families Against Mandatory Minimums.

Senate Judicial Committee Chairman Patrick Leahy, the Democrat from Vermont, working with Republican Senator Ron Paul of Kentucky, has pledged to hold hearings next month about the reduction or elimination of many mandatory minimums, as the U.S. Sentencing Commission recommended in a well-respected report in 2011.


It was on this day in 1974 that President Richard Nixon resigned, making unelected Vice President Gerald Ford the leader of the free world. This is the only case since 1800 where someone who wasn’t chosen on a presidential ticket by voters became President. It was the passage of the 25th Amendment in 1967 that allowed a President to fill a vacancy in the office of the Vice President. Without that amendment in place, Speaker of the House Carl Albert, a Democrat, would have replaced Nixon.

Closing Notes

1. Goats invade Washington, with permission. A team of 100 Eco-Goats has been set loose in Washington’s historic Congressional Cemetery to take care of a massive weed and poison ivy problem.  The goats are actually getting things done in Washington during its recess period, with an approved budget. They also will fertilize part of the grounds.

2. John Lewis, the legendary Civil Rights figure and House member from Georgia, is correcting The Guardian, which appears to have taken some editorial license by saying Lewis praised Edward Snowden and compared him to Gandhi in a recent interview.  The Guardian removed the word “praise” from its headline but hasn’t run a correction, yet.

Editor’s note: The Update is a summary of news and commentary about the Constitution and related issues, as reported around the digital world. Guest contributors and our editorial staff add to the daily update, and we welcome your suggestions (and reports) at [email protected].