Martin Luther King Jr. Day 2012

This year I offer a few thoughts of my own in commemeration of Dr. King and his legacy.  Today, we often mention “progress” when the topic of racial equality is raised — this being the initial focus of Dr. King’s efforts as an advocate for the downtrodden and marginalized, and later, with the same forceful advocacy that he brought to the cause of racial equality, the great injustice that was America’s war against the Vietnamese war and the economic poverty that was, and still is, very much a staple of life in America despite willfully false portrayals by our news and popular media to the contrary.  Certainly, true progress has been achieved since the days of institutionalized slavery, Jim Crow and Emmet Till.  Colored-only buses and restrooms are a thing of the past.  As are lynchings, at least in their most public and severe form.  If one were keeping score, one might even think of the glass as being half full without the sense of guilt and pity that more often than not lead to shortsightedness and undesirable outcomes.  Still one need not look too hard to see that much of what Dr. King fought against — the inequality, the senseless violence, the hate and cynicism — remains an intractable force in our society.  A few blocks from where Dr. King grew up here in Atlanta sits homes and storefronts long abandoned by those who succumbed to such a force.  Had Dr. King been able to see his old neighborhood and its surrounding communities in their present state, it is safe to say that “progress” is not the word that would have come to mind.

None of this, however, should be news.  The “pursuit of happiness” that is a founding principle of this country necessarily implies a culture of self-absorption and inequality, where one’s key to his or her own “happiness” often comes at the expense of another’s.  And blacks, in particular, have long been, and continue to be, the expendable ones in this equation.  And the election of our first “black” president has done nothing to change that.

There is time yet to reverse this trend.  And it takes not the writing or oratory of  a great thinker or scholar to do so.  Rather, the solution has been in front of our noses since time immemorial and has been posited in various forms to the general public.  Joe Black, a pitcher for the legendary 1950′s Brooklyn Dodgers baseball team, did just in a university talk that was documented by Roger Kahn in his book, The Boys of Summer:

During a recent Honors Day Program at Virginia Union, a black university in Richmond, Black spoke about the responsibilities as well as the rewards of black power: “Our efforts have to be more positive than shouting, ‘Sock it to him, Soul Brother,’ or, ‘We are victims of a racist society,’ or, ‘Honkey!’ I’m in favor of black history because it makes whites realize that American blacks have done more than make cotton king. Rut I’m opposed to all-black dorms, and to violence. If the black student wants to use a loaded gun to make a point, what can we expect of uneducated blacks? By now some of you may be saying I’m a Tom, a window-dressing Negro. But I learned two things early.  A minority cannot defeat a majority in physical combat and you’ve got to let some things roll off your back.  Because my name is Joe Black, whites called me ‘Old Black Joe.’  After a few years of scuffling, I still hadn’t silenced all of them and throwing all those punches had made me a weary young man.  Call me ‘Old Black Joe’ today and you agitate nobody except yourself.”

He makes one point to everyone. It is bigotry to exalt the so-called special language of the blacks. “What is our language?” he asked. ” ‘Foteen’ or ‘fourteen.’ ‘Pohleeze’ for ‘police.’ ‘Raht back’ for ‘right hack.’ ‘We is going.’ To me any man, white or black, who says whites must learn our language is insulting.  What he’s saying is that every other ethnic group can migrate to America and master English, but we, who were born here and whose families have all lived here for more than a century, don’t have the ability to speak proper English.  Wear a dashiki or an African hairdo, but in the name of common sense, learn the English language. It is your own.”

At lunch, [Joe] handed me a sheet of paper.  ”This is part of my philosophy,” he said.  ”And by the way, notice the use of English vocabulary.”

I read:

blackball,

black hook,

black eye,

black friday,

black hand,

black heart,

blackjack,

black magic.

blackmail,

black market,

black maria,

black mark,

little black sambo,

white lies.

Black is Beutiful.

“If that’s what you make it, Joe,” I said.

“Well,” he said.  ”You got the point.”

 

Defining the Ex-Offender

In today’s New York Times is an Op-Ed piece entitled “Paying a Price, Long After the Crime.”  It touches upon some of the issues that have been covered on this blog concerning the increasing marginalization of ex-offenders in all aspects of daily life, from employment to education to housing, and provides proposals as to how those in power may seek to reintegrate ex-offenders into society.  On the latter point and  in addition to what the authors have proposed, I would simply add the following: that we consider a fundamental shift in our perception of the capacities and desires of an ex-offender from an individual with a presumed criminal bent to someone who, if given the chance, greatly wishes to contribute to society, perhaps (gasp!) more so than those from different (read: more conforming) walks of life.

2011 Year in Review

Thanks to those who visited Invisible Man in 2011.  I hope this blog has been of use to some.  The issue of Padila retroactivity, to which I have devoted a lot of my blogging, is still percolating throughout the courts and remains very much a hot topic among criminal defense and immigration law attorneys, especially those who toil in the trenches of postconviction litigation.  For 2012, I predict that the U.S. Supreme Court will finally step in to decide the issue of Padilla retroactivity, with a decision due in late 2012 or early 2013.  I believe the Court will find Padilla retroactively applicable (how could I predict otherwise?!) and Justice Kennedy will write the decision for the majority, although Justice Alito will, in one way or another, be key in shaping the contours of the Court’s ruling on Padilla retroactivity.

WordPress.com has provided me with a year end report for 2011, which I have posted below for everyone’s reference.

Thank you all again for taking time out to visit the Invisible Man.  I look forward to another year of blogging on Padilla and other issues.

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The WordPress.com stats helper monkeys prepared a 2011 annual report for this blog.

Here’s an excerpt:

The concert hall at the Sydney Opera House holds 2,700 people. This blog was viewed about 9,400 times in 2011. If it were a concert at Sydney Opera House, it would take about 3 sold-out performances for that many people to see it.

Click here to see the complete report.

UPDATED: Gaitan (NJ Supreme Court) Oral Arguments Webcast

The November 9th oral arguments before the New Jersey Supreme Court in State v. Gaitan, which presents the issue of whether Padilla can be applied retroactively, is now available for viewing online.  Note that Mac users might have trouble playing the webcast.

UPDATE: I found that it wasn’t easy playing the webcast on a PC either.  For those who have had trouble doing so, I would recommend the following procedure: copy the link for the Gaitan webcast (not the one on this blog post, but the one on the webpage to which it directs you under the Gaitan case) and paste it directly into Windows Media Player (from WMP, click on File then Open URL).

11-11-11: Veterans Day and Armistice Day

In commemoration of those who have served their countries with honor and bravery, I post here a video clip of Martin Luther King Jr.’s speech on the Vietnam War.  I do this not to denigrate the sacrifices of those to whom this day is dedicated but rather in hope that those who have gone a different route do not take for granted and are not blinded to the circumstances which have perpetuated the scenarios and theaters that have become the breeding ground for such sacrifices.

A New Form of Apartheid

I was reading a neighborhood newsletter the other day and came across a Q & A column with someone who works at a nearby homeless shelter.  In addition to its tradition function as place of respite for the homeless, the shelter also provides education, job and housing-related support for the down and out.  Services that are more important now than ever with the country in its second worst economic decline since the Great Depression.  Real solutions for folks with real issues.

This makes one wonder why efforts of similar utility and foresight cannot be implemented on a more systemic level.  Especially by those who do little else but profess their affinity for the American people.  President Obama and his use, or, more aptly, disuse, of his presidential pardon power comes to mind here.  According to a recent New York Times report:

In the months since the end of the 2010 fiscal year, the Obama administration reduced the backlog [of clemency applications] substantially by denying nearly 4,000 petitions while granting 17 pardons. The first nine of those were granted last December, barely avoiding a record set by President George W. Bush for the longest wait for a president’s first pardons.

Here is a chart published by the Pardon Power blog comparing Obama’s clemency record with that of other Presidents:

President              Days before First Commutation of Sentence
———–              ———————————————–
Obama                1,004 … and counting
Clinton                  672
Reagan                  317
Eisenhower           282
Nixon                    282
H.W. Bush             206
Carter                    82
Ford (s)                  61
Truman (s)             54
Johnson (s)            30
Kennedy                 19

If there’s anyone who really needs a second chance of sorts it is an ex-offender with a conviction on his or her record.  As I have mentioned previously, society has increasingly little tolerance for anyone who has had any kind of run-in with the law, whether it’s an arrest for shoplifting or a conviction for robbery.  Aside from depriving individuals of jobs on the basis of something that has very little if anything to do with their ability to actually do good work, this two-tier system [i.e., those with clean records and those with criminal histories] increases the racial and socioeconomic stratification that has led to anger and unrest around the country (as seen in the Occupy Wall Street movement and its cross-continental progeny).  That such an issue fails to attract the attention of those in Government is not a surprise.  Prisoners and arrestees do not have a lobby in Washington as far as I am aware.  But ignoring the country’s prison and ex-offender population, as Obama has been doing through his disuse of the pardon power, carries with it far greater risks in terms of social inequality and public dissatisfaction.

 

Split Decisions

Just a quick note that the Third and Tenth Circuit Court of Appeals denied petitions for rehearing in their respective cases dealing with Padilla retroactivity. It is notable that the denial in the Third Circuit came at the expense of the Government, which lost on appeal in seeking to block retroactive application of Padilla.

The Seventh Circuit is still considering whether to rehear its Padilla retroactivity case (Chaidez) and has asked for a response from the Government on the appellant’s request for rehearing.

Cert. Denied in Morris v. Virginia – UPDATED

Followers of Padilla retroactivity might be disappointed to hear that the U.S. Supreme Court denied cert. today in Morris v. Virginia, the first case to present the question of whether Padilla qualified for retroactive application.  The decision denying cert. can be found on page 15 of the Court’s order list from 10/3/2011.

This ruling should come as no surprise, however.  The Virginia Supreme Court in Morris never really addressed the Padilla retroactivity question head on, if at all, and the issue is still percolating throughout the federal and state courts.

As to the latter, a helpful reader has informed me that the Eleventh Circuit Court of Appeals will soon rule on the Padilla retroactivity issue.  The case is United States v. Marisella Carmen-Iglesias (Case No. 11-12316) from the Southern District of Florida.  I will post the briefs and provide updates as they become available.

UPDATE: the “helpful reader” who alerted me to the Carmen-Iglesias case in the Eleventh Circuit was nice enough to send me the appellate briefs.  The Government’s brief can be found here, the appellant’s/defendant’s here.

Not the Last Word

Just a heads up that the losing parties in the three federal appellate court cases that dealt with Padilla retroactivity — Chaidez (7th Cir. — Padilla no retroactive), Chang Hong (7th Cir. — same) and Orocio (3d Cir. — Padilla retroactive) — have all signaled that they will be seeking en banc rehearings.  Also of note is that lawyers from the National Immigrant Justice Center have entered appearances on behalf of defendant in the Chaidez matter.  That will surely be one to watch.

Over in sovereign state territory, the two cases dealing with Padilla retroactivity that are pending before the New Jersey Supreme Court (State v. Frensel Gaitan) and the Florida Supreme Court (State v. Gabriel Hernandez) are just that, still pending.  I will post updates as they become available.

 

Seventh and Tenth Circuits Rule on Padilla Retroactivity

I apologize again for the delay in posting.  Things have been hectic around here, both work-wise and life-wise.  For those of you who follow developments with Padilla retroactivity, this is probably old news.  But the Seventh and Tenth Circuits have recently issued opinions holding that Padilla cannot be applied retroactively.  Notably, the Seventh Circuit reversed Judge Gotschall’s groundbreaking decision in Chaidez which has been covered extensively in this blog.  (See posts here and here.)  The case from the Tenth Circuit is United States v. Chang Hong (Case No. 10-6294) and was an appeal from a denial of a 2255 habeas petition.  Of note in Hong is that the petitioner there argued that Padilla is a new rule so he could extend the statute of limitations for his habeas claim; his petition was otherwise untimely.

I will have more to say about both decisions soon.  Meanwhile, the opinion in Chaidez (including a persuasive dissent) is here, the one in Hong, here.

Meanwhile, it will be interesting to see how these rulings will affect the application for writ of certiorari in Morris (post here) that is currently pending in the Supreme Court on Padilla retroactivity.  Will anyone of the losing parties in Chaidez and Hong also appeal to the Supreme Court?  If so, which case presents the more ideal vehicle for (a) getting cert granted and (b) reversing the appellate decision on Padilla retroactivity?