The Eleventh Circuit Court of Appeals has issued some noteworthy decisions in the last few weeks concerning the rights of foreign nationals in both criminal and civil proceedings. One case, Gupta v. McGahey, No. 11-1420, concerned the right of an immigrant to sue immigration officers for civil rights violations; the Eleventh Circuit ultimately decided he had no such right. Another case, United States v. Garza-Mendez, No. 12-13643, involved an effort by an immigrant to reduce his sentence for a federal conviction of unlawful entry by obtaining a “clarification” order from a state court judge for a prior domestic violence conviction which had been used by federal prosecutors to enhance his sentence; the Eleventh Circuit turned aside this effort, as did the lower court, finding that the order was just a belated effort by the immigrant party to influence the outcome of his federal case. In the last case, Donawa v. U.S. Att’y General, No. 12-13526, a foreign national of Antigua tried to avoid deportation by arguing that two prior Florida convictions for drug-related offenses which immigration authorities had used to initiate deportations proceedings against him were not deportable offenses; the Eleventh Circuit agreed in part and sent the case back to the immigration judge for a second look.
In each of these three cases, Judge Martin ended up on the side of the immigrant. She was alone in that regard in two of the cases where she issued strong dissents and took her colleagues to task for what she believed was their “astonishing” and “cursory” legal reasoning. As someone who spent most of her legal career prosecuting individuals, one might find Judge Martin’s positions surprising. But one’s past experience is not always a reliable predictor of future action. In fact, the two sometimes have no discernible correlation; Obama is a good example of that.
It will be interesting to see how Judge Martin develops as a jurist and to what extent she is able to influence other members of the Eleventh Circuit, or instead alienates them. If the court’s recent decisions are any indication, Judge Wilson has signaled that he too may be prepared to speak out when his colleagues reach an unjust result.
Yesterday, Doris Lessing, the novelist, died at the age of 94. I do not know her with the kind of familiarity that I might of other authors — at least when it comes to their bodies of work. But I did recently read of essay by Ms. Lessing entitled The Small Personal Voice in which she discusses the purpose and endurance of the novel as a form of art. Here is some of what she had to say on that subject:
The great [novelists] of the nineteenth century [like Tolstoy, Stendahl, Dostoevsky, Balzac, Turgenev, and Chekov] had neither religion nor politics nor aesthetic principles in common. But what they did have in common was a climate of ethical judgment; they shared certain values; they were humanists. A nineteenth-century novel is recognizably a nineteenth-century novel because of this moral climate.
If there is one thing which distinguishes our literature, it is a confusion of standards and the uncertainty of values. […] Words have become so inadequate to express the richness of our experience that the simplest sentence overheard on a bus reverberates like words shouted against a cliff. One certainty we all accept is the condition of being uncertain and insecure. It is hard to make moral judgments, to use words like good and bad.
Yet I reread Tolstoy, Stendahl, Balzac and the rest of the old giants continuously. So do most of the people I know, people who are left and right, committed and uncommitted, religious and unreligious, but who have at least this in common, that they read novels as I think they should be read, for illumination, in order to enlarge one’s perception of life.
Why? Because we are in search of certainties? Because we want to return to a comparatively uncomplicated world? Because it gives us a sense of safety to hear Balzac’s thundering verdicts of guilt or innocence, and to explore with Dostoevsky, for instance in Crime and Punishment, the possibilities of moral anarchy, only to find order restored at the end with the simplest statements of faith in forgiveness, expiation, redemption?
Recently, I finished reading an American novel which pleased me; it was witty, intelligent, un-self-pitying, courageous. Yet when I put it down I knew I would not reread it. I asked myself why not, what demand I was making on the author that he did not answer. Why was I left dissatisfied with nearly all the contemporary novels I read? Why, if I were reading for my own needs, rather than for the purposes of informing myself about what was going on, would I begin rereading War and Peace or The Red and the Black?
Put directly, like this, the answer seemed to me clear. I was not looking for a firm reaffirmation of old ethical values, many of which I don’t accept; I was not in search of the pleasures of familiarity. I was looking for the warmth, the compassion, the humanity, the love of people which illuminates the literature of the nineteenth century and which makes all of these old novels a statement of faith in man himself.
The issue of Padilla retroactivity is not dead yet, well not entirely. The Court of Appeals of Maryland, the State’s highest court, recently decided the case of Lincoln Miller v. State, No. 94, Sept. Term 2012. In a 4-3 decision, the Court denied postconviction relief for a native of Belize based on a claim that he was not advised of the immigration consequences of his conviction.
The case has a long and convoluted procedural history which stems from the fact that it has been pending for a long time, before the Supreme Court even decided Padilla. It is not at all clear what the majority decides in this case aside from ruling that the petitioner is not entitled to relief. There’s discussion about Padilla retroactivity in light of Maryland and federal law (in a previous decision, the Maryland Court of Appeals held Padilla could be applied retroactively under the state’s retroactivity framework) but the majority opinions doesn’t make any inroads on the issue. The dissent, in contrast, argues that Padilla should be applied retroactively under Maryland law.
The following concurrence by Judge McDonald is perhaps the best take on both the majority and dissent opinions:
I will explain why I join neither of the thoughtful opinions in this case, although it may simply reveal my own ignorance in this arena. I agree with the result reached by the Majority opinion, but do not follow its reasoning — it says it is not applying the Teague standard for retroactivity, but is compelled to follow the result in Chaidez,which was based on the Teague standard. The Dissent points that out and states quite clearly that it believes a different standard set forth in this Court’s Daughtrycase should be applied. But I do not grasp the distinction that the Dissent makes between the Daughtry standard and the Teague standard in reference to this case, particularly in that the Dissent relies on Justice Sotomayor’s dissent in Chaidez — a dissent that applied the Teague standard.
In the end, I find Justice Kagan’s analysis for the Chaidez majority persuasive and would apply it here, whether one views it an application of the Teague standard or another standard that operates similarly. That brings me to the same place as the Majority.
The full decision can be downloaded here.
The shutdown of the U.S. Government is a reflection of a government that, at all levels, has lost its moral compass. One can blame the Republicans and the extreme right within the party as the ones who are primarily responsible for this debacle. But they only made it this far because they have been aided in their lunacy, even if indirectly, by the Democrats and the other branches of the government.
By all accounts, including one from a sitting Justice, the Supreme Court is one of the most activist in history, gutting laws on an unprecedented pace and for reasons that have nothing to do with whether the law is right or wrong, but because it can.
Then you have the executive, in Obama and his endless cadre of advisers and deputies. Had they really cared about the American people, those “regular folks who live paycheck to paycheck”, they would have sought to reform the country’s healthcare system from the ground up. Instead, they cared more about their own records and ambitions, and having a law they could call their own. The result: healthcare reform legislation that was written largely behind closed doors by lobbyists offering only incremental benefits to the public.
In making this grand compromise, Obama lost the one bargaining chip that perhaps would have made the difference in the debates leading up to today’s government shutdown: the merits of Obamacare. Is there any question that the public would not have embraced a genuinely reformed healthcare system so that they would have done what they did with Obama’s request to Congress to back his foolish foray into Syria: tell their representatives and their government to stop the foolishness. Instead, Obama is left with a impossibly complex, patchwork of a law that he can neither discard nor defend. How does one expect to energize the general public when all it really has to look forward to is the status quo? But this is old news when it comes to Obama and the Democrats.
The impression one is left with is that the government makes decisions that only benefit those who run it not those whom it was created to protect.
The policies of officers stopping people for minor or nonexistent offenses has been well documented, most recently in the Floyd case out of New York, where a federal judge found the practice unconstitutional.
The 11th Circuit Court of Appeals recently denied a request for rehearing which would have raised a similar issue. The case is United States v. Kareen Rasul Green (No. 11-1558). Judge Barkett, joined by Judge Martin, dissented from the denial, and she did so in particularly strong terms. Interestingly, she discussed the relevance, or irrelevance as the case may be, of a “high-crime neighborhood” which is often a proxy for race, as a factor that is often used to justify a stop. According to Judge Barkett:
[T]he fact that the stop occurred in a high-crime area cannot, on its own, justify this frisk. The vast majority of people that live, work, or travel through high-crime neighborhoods do not participate in any criminal activities, much less activities that put officers and other community members at risk. This is, in part, why several of our sister circuits have warned of “the dangers of relying too easily or too heavily on these contextual factors.”
Judge Barkett does not stop there, however:
Focusing on the fact that a crime occurs in a purportedly high-crime area carries with it other significant risks. In addition to eroding the liberty of all individuals in these communities, the high-crime neighborhood designation “raised special concerns of racial, ethnic, and socioeconomic profiling.” The Terry [v. Ohio] decision itself recognized these dangers, requiring individualized suspicion in part “because according the police unfettered discretion to stop and frisk could lead to harassment of minority groups and ‘severely exacerbat[e] … police-community relations.” Moreover, because neighborhoods descried as “high-crime” are almost always poor communities of color, excessively-broad police discretion to frisk suspects in such neighborhoods facilitates the disproportionate targeting of poor people of color by law enforcement, contributing to unjustifiable levels of racial and socioeconomic disparities in the criminal justice system.
I have omitted citations and footnotes from these quotes; they are available in the actual order itself, which can be downloaded here.