WASHINGTON (AP) — The U.S. Supreme Court has rejected an appeal from opponents of same-sex marriage who are seeking to put a proposal on the ballot to overturn the District of Columbia’s gay marriage law.
The court did not comment Tuesday in turning away a challenge from a Maryland pastor and others who want Washingtonians to vote on a measure that defines marriage as between a man and a woman.

Bishop Harry Jackson led a lawsuit against the district’s Board of Elections and Ethics after the board refused to put the initiative on the ballot. The board ruled that the ballot question would in effect authorize discrimination.

Last year Washington began issuing marriage licenses for same-sex couples and began in 2009 began recognizing gay marriages performed elsewhere.

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WASHINGTON — In 1976, just six months after he joined the Supreme Court, Justice John Paul Stevens voted to reinstate capital punishment after a four-year moratorium. With the right procedures, he wrote, it is possible to ensure “evenhanded, rational and consistent imposition of death sentences under law.”

In 2008, two years before he announced his retirement, Justice Stevens reversed course and in a concurrence said that he now believed the death penalty to be unconstitutional.

But the reason for that change of heart, after more than three decades on the court and some 1,100 executions, has in many ways remained a mystery, and now Justice Stevens has provided an explanation.

In a detailed, candid and critical essay to be published this week in The New York Review of Books, he wrote that personnel changes on the court, coupled with “regrettable judicial activism,” had created a system of capital punishment that is shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.

The essay is remarkable in itself. But it is also a sign that at 90, Justice Stevens is intent on speaking his mind on issues that may have been off limits while he was on the court.

In the process, he is forging a new model of what to expect from Supreme Court justices after they leave the bench, one that includes high-profile interviews and provocative speeches.

He will be on “60 Minutes” on Sunday night.

Earlier this month, he weighed in on the controversy over the proposed Islamic center near ground zero in a speech to the National Japanese American Memorial Foundation.

During World War II, Justice Stevens served as a Navy cryptographer at Pearl Harbor for more than two years. On returning to Hawaii in 1994, he said he had an emotional reaction to seeing Japanese tourists at a memorial there. “We shouldn’t allow them to celebrate their attack on Pearl Harbor,” he remembered thinking.

He added that he understood why some New Yorkers would have a similar reaction to the proposed Islamic center near ground zero.

“But then, after a period of reflection, some of those New Yorkers may have second thoughts, just as I did,” he went on. “The Japanese tourists were not responsible for what some of their countrymen did decades ago; the Muslims planning to build the mosque are not responsible for what an entirely different group of Muslims did on 9/11.”

The two other retired justices have been active, too, but they have largely limited their public comments to more traditional matters like judicial independence and constitutional interpretation. Justice Sandra Day O’Connor, who is 80, speaks frequently on what she says are the problems inherent in electing state court judges.

Justice David H. Souter, 71, in a commencement address in May at Harvard, gave a detailed critique of the mode of constitutional interpretation associated with Justices Antonin Scalia and Clarence Thomas, who rely on the text and original meaning of the Constitution.

Justice Souter said those tools are inadequate given the “open-ended language” in the Constitution, which, moreover, “contains values that may well exist in tension with each other.”

But that sort of abstract discussion is nothing like the blow-by-blow critique in Justice Stevens’s death penalty essay, which will be published in The New York Review’s Dec. 23 issue and will be available on its Web site on Sunday evening.

The essay is actually a review of the book “Peculiar Institution: America’s Death Penalty in an Age of Abolition,” by David Garland, a professor of law and sociology at New York University. The book compares American and European approaches to the death penalty, and Justice Stevens appears to accept its major conclusions.

Professor Garland attributes American enthusiasm for capital punishment to politics and a cultural fascination with violence and death.

In discussing the book, Justice Stevens defended the promise of the Supreme Court’s 1976 decisions reinstating the death penalty even as he detailed the ways in which he said that promise had been betrayed.

With the right procedural safeguards, Justice Stevens wrote, it would be possible to isolate the extremely serious crimes for which death is warranted. But he said the Supreme Court had instead systematically dismantled those safeguards.

Justice Stevens said the court took wrong turns in deciding how juries in death penalty cases are chosen and what evidence they may hear, in not looking closely enough at racial disparities in the capital justice system, and in failing to police the role politics can play in decisions to seek and impose the death penalty.

In Payne v. Tennessee in 1991, for instance, the court overruled a 1987 decision, Booth v. Maryland, that had banned statements from victims at sentencing because of their tendency to inflame juries.

“I have no doubt that Justice Lewis Powell, who wrote the Booth opinion, and Justice William Brennan, who joined it, would have adhered to its reasoning in 1991 had they remained on the court,” Justice Stevens wrote. “That the justices who replaced them did not do so was regrettable judicial activism and a disappointing departure from the ideal that the court, notwithstanding changes in membership, upholds its prior decisions.”

Justice Stevens did not name those new justices. One was Justice Anthony M. Kennedy, lately the court’s swing justice, who replaced Justice Powell.

The other was Justice Souter, who replaced Justice Brennan and in other cases generally voted with Justice Stevens and the rest of the court’s more liberal wing.

Justice Stevens also had harsh words for the 5-to-4 decision in 1987 in McCleskey v. Kemp, which ruled that even solid statistical evidence of racial disparities in the administration of the death penalty did not violate the Constitution. He said the decision effectively allowed “race-based prosecutorial decisions.”

“That the murder of black victims is treated as less culpable than the murder of white victims provides a haunting reminder of once-prevalent Southern lynchings,” Justice Stevens wrote.

Here, too, Justice Stevens wrote, the decision turned on changes in the court’s membership. Justice Potter Stewart “surely would have voted with the four dissenters,” Justice Stevens said. Justice Stewart was replaced by Justice O’Connor, who voted with the majority.

The problems with the administration of capital punishment extend beyond the courthouse and into the voting booth, Justice Stevens said.

“Local elections affect decisions of state prosecutors to seek the death penalty and of state judges to impose it,” he wrote.

He was also critical of decisions allowing prosecutors to exclude jurors with qualms about the death penalty, tilting the legal playing field toward conviction. The better approach, he said, is one in which “a jury composed of 12 local citizens selected with less regard to their death penalty views than occurs today — in that respect, a truer cross-section of the community — would determine individual defendants’ fates.”

Robert B. Silvers, the editor of The New York Review of Books, said the idea of asking Justice Stevens to contribute occurred to him after he read passages from the justice’s dissent in Citizens United, the January decision that lifted restrictions on campaign spending.

“It was clear that he was a very strong writer,” Mr. Silvers said. “We simply sent him the book, and we got back a letter saying he’d be delighted to review it.”

These are just two indicators cited in the 15-year legal battle over whether the state’s prisons are failing to provide humane medical care for 165,000 inmates.

On Tuesday the problems of California’s prisons will move to a national stage, when the Supreme Court hears the state’s challenge to an extraordinary court order that would require the prison population to be reduced by one-fourth in two years. That could mean releasing or transferring more than 40,000 inmates, state lawyers say.

The case is not just of interest to California.

Lawyers for 18 other states, including Illinois, Pennsylvania and Virginia, joined in support of California’s appeal, saying they feared a ruling upholding the prison-release order could trigger similar moves across the nation. “Real world experience” suggests that releasing a large number of inmates would “inevitably place innocent citizens at much greater risk,” they said.

California Gov. Arnold Schwarzenegger and other state officials call the order from a panel of three federal judges “the most sweeping intrusion into a state’s management” of its prisons ever handed down by a court. They see an activist panel – composed of two federal district judges and a federal appeals judge – “using the guise of providing health care” to order a restructuring of the state’s correctional system. They also argue that the forced release of prisoners would threaten the public safety.

Defenders of the judges’ order cite Schwarzenegger’s own words in 2006 declaring that California faced an overcrowding emergency in its prisons. They also say the state is exaggerating the impact of the order. California locks up many prisoners for repeat petty crimes or for technical parole violations, even though they are not considered dangerous or violent.

“California has people in prison who wouldn’t be in prison in any other state,” said former Bush administration Solicitor Gen. Paul D. Clement, who represents one group of state prisoners. His brief cites comments from a former Texas prison director who said he was surprised and disturbed by the overcrowding in California’s prisons.

Supporters of the judges’ order also emphasize that it does not require a wholesale release of inmates. For example, the prisons could free up space by relocating some inmates to county jails, private prisons or out-of-state facilities. In addition, some nonviolent inmates could be released early.

“We’re sending 80,000 people to prison each year for two to three months – parole violators who are going from their home communities to sit in reception centers where there is no rehabilitation, no health care, no drug programs,” said Michael Bien, lead attorney in the case brought on behalf of prisoners deprived of mental health care.

“This is the kind of thing that everyone knows doesn’t do anything for public safety,” Bien added, “These men and women come back home after a couple of months having been exposed to much more dangerous people. If they weren’t dangerous before, they are now.”

The case began nearly 20 years ago with separate lawsuits contending inmates who were mentally ill or had chronic health problems were suffering behind bars. The Eighth Amendment forbids cruel and unusual punishment, and it has been read to mean prisoners cannot be denied needed medical care.

U.S. District Judges Lawrence Karlton in Sacramento, Calif., and Thelton Henderson in San Francisco separately ruled the prisoners were suffering from unconstitutional ill treatment, and they handed down at least 80 orders requiring the state prisons to make improvements. Despite promises from prison authorities, the state did not comply with most of these orders.

Frustrated, the judges called for convening a three-judge panel under the terms of a federal law that authorizes prison releases as a last resort. The chief judge of the 9th U.S. Circuit Court of Appeals appointed Judge Stephen Reinhardt from that court to sit on the panel with Karlton and Henderson.

The panel then determined the overcrowding was the “primary cause” of the substandard medical care, and on Aug. 4, 2009, ordered the state to reduce the prison population to 137.5 percent of the original design capacity in its 33 prisons, or about 40,000 fewer inmates than they now hold.

In June the Supreme Court agreed to hear Schwarzenegger’s appeal.

Most legal experts assume the conservative justices of the high court will cast a skeptical eye on the prison-release order, and especially so because all three judges from California have long liberal records. In a friend-of-the-court brief, Kent Scheidegger of the Criminal Justice Legal Foundation, a law-and-order group in Sacramento, called the choice of Reinhardt “astonishing” and said it was reason enough for the high court to set aside the release order.

But Robert Weisberg, a professor of criminal justice at Stanford, said the court should focus on the long record in the case.

“I hope this will be looked at as a lawsuit on appeal and not a political Armageddon,” he said.

(Savage wrote from the Tribune Washington Bureau. Los Angeles Times staff writer Williams wrote from Los Angeles.)

The court last week unanimously upheld a police department’s search of an officer’s personal, sometimes sexually explicit, messages on a government-owned pager, saying the search did not violate his constitutional rights.

The common-sense message to all employees: If you want privacy, use your own cell phone, pager or computer.

“They were really clear they were dealing with police officers in that setting,” said Michael Foreman, the director of the Civil Rights Appellate Clinic at Penn State Dickinson School of Law. It might be hard to transfer that ruling to a schoolteacher or someone working at a private business, he said. “But I think the court is signaling in the electronic age, there is less expectation of privacy in general.”

Officials from Penn State Milton S. Hershey Medical Center, Highmark Blue Shield and Rite Aid were not available Friday to discuss their policies about monitoring employees’ use of work computers or other technology.

State workers using office technology shouldn’t expect privacy, said a spokesman for the Office of Administration.

“Those devices, your computer, your BlackBerry, other technology issued to you from the commonwealth is our property, and we reserve the right to monitor your use of them to make sure you are not going to sites that are not work-related and engaging in behavior that is not work-appropriate,” spokesman Dan Egan said.

Of course, everyone does a certain amount of personal work.

“You need to tell your spouse to pick up eggs and milk after work?” Egan said. That’s OK as long as it doesn’t conflict with work and is not excessive. “There is a certain amount of personal and work life that is blending from time to time,” he said.

Private businesses aren’t that different. They tell individuals: “When I give you this technology, you have no expectation of privacy,” Foreman said.

In a 6-2 ruling, the high court accepted the state’s argument that the policy, which is one of the most restrictive in the nation, was needed to encourage better behavior among the “worst of the worst” in the state prison system.

“While we do not deny the constitutional importance of the interests in question, we find, on the basis of the record now before us, that prison officials have set forth adequate legal support for the policy,” wrote Justice Stephen G. Breyer.

The decision came in a case brought by a Pittsburgh man, Ronald Banks, 41, who is serving a life sentence for murder and is now confined in the long-term segregation unit at the state prison in Fayette.

Banks went to court on behalf of himself and other inmates in the 40-prisoner unit in a constitutional test of how far prisons can go in restricting reading material and personal photos without violating the First Amendment.

Andrew Shubin, an attorney for Banks, said he was disappointed but not surprised by the ruling. “Prisoners face additional hurdles — extraordinarily high hurdles — on issues that touch on security and rehabilitation,” he said.

Prison officials would not disclose Banks’ disciplinary history, but his prison behavior earned him a cell in long-term segregation, customarily a place for inmates who pose security risks or have a history of escape or violence.

Inmates placed in the most restrictive part of that unit can have religious and legal periodicals, writing paper and two paperback books, but not mainstream newspapers, magazines or personal photographs.

Such prisoners also are kept in solitary confinement for 23 hours a day with no access to radio or TV, and they have phone privileges only in an emergency and one visit a month from a family member.

While Banks challenged the ban on newspapers as excessive, attorneys for state prison officials said the policy was necessary to give inmates an incentive to improve their behavior, and for safety reasons.

The high court held in a 1987 case that “prison walls do not form a barrier separating prison inmates from the protections of the Constitution.”

When a regulation “impinges” on a constitutional right, the court said then, the rule is valid if it is reasonably related to “legitimate penological interests.”

Breyer concluded that, under that standard, Banks did not show that the Pennsylvania regulation was unreasonable. Breyer was joined by Chief Justice John G. Roberts Jr., and Justices David H. Souter and Anthony M. Kennedy. Justice Clarence Thomas concurred in the decision, but wrote a separate opinion that was joined by Justice Antonin Scalia.

Justice John Paul Stevens, one of the two dissenters, said that the ban on newspapers and photographs was excessive.

“What is perhaps most troubling about the prison regulation at issue in this case is that the rule comes perilously close to a state-sponsored effort at mind control,” he wrote.

Justice Ruth Bader Ginsburg, the other dissenter, said she found some of the state’s justification “too tenuous to be plausible.” Inmates, she said, were unable to get the Christian Science Monitor but allowed to have the Jewish Daily Forward, barred from reading about the war in Iraq and Hurricane Katrina but allowed to read romance novels.

The high court ruling reversed last year’s decision by the Philadelphia-based U.S. Court of Appeals, which concluded, in a 2-to-1 ruling, that the policy went too far. The newest justice, Samuel A. Alito Jr., was the dissenter in that case when he was on the Third Circuit. He did not consider the case in the high court.

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Copyright (c) 2006, The Philadelphia Inquirer

State College lawyer Andrew Shubin has an opportunity to do what most lawyers can only dream about: argue a case before the United States Supreme Court.

Shubin will be in Washington on March 27 to present arguments before the court in favor of upholding an appellate court decision that allows state prison inmates to read newspapers, magazines or view any other media for current events.
These inmates — hardened, “problem” inmates — are prohibited from reading any form of current events, which Shubin argues, is a violation of the First Amendment.

“They are among the most isolated inmates on the planet,” Shubin, 42, said. “They are virtually in a prison within a prison. They have no access to news or current events.

“The First Amendment clearly protects that, the right to receive information.”

In 2005,Shubin won a 2-1 decision in the 3rd Circuit Court of Appeals in favor of the inmates, housed in the long-term segregation unit at the State Correctional Institution at Pittsburgh. But attorneys for the commonwealth of Pennsylvania asked the U.S. Supreme Court to review the case, which it agreed to do in December.

In the appellate case, the lone dissent against the inmates was now-Supreme Court Justice Samuel Alito, who Shubin said will have to recuse himself from the case because the justice essentially would be reviewing his own decision.

“There is a distinct possibility there will be a 4-4 tie, which will mean the appellate ruling will stand and the inmates will have won,” Shubin said.

The commonwealth argues prisons have the right to keep reading materials away from inmates to prevent them from using newspapers and such to hide weapons or sling bodily waste at guards. The prison system also argues that keeping these materials away from inmates can serve as motivation for them to behave.

Segregated inmates are allowed religious and legal materials.

While winning the case is foremost on his mind, Shubin admits he is excited for this opportunity, which rarely comes along for most lawyers.

“For an attorney, it’s an incredibly rare opportunity,” he said. “It’s probably going to be once in a lifetime. It’s been a wonderful experience so far, and a little bit scary. It’s been one of the highlights of my practice.”

Centre County attorney Terry J. Williams, a former president of the Centre County Bar Association, said, to the best of his knowledge, Shubin will be only the second county attorney to argue before the high court.

“That’s how rare it is,” Williams said.

In private practice since 1998, Shubin handles civil-rights cases, criminal defense, employment law, constitutional and political cases. He began practicing law with Mid-Penn Legal Services and worked on prisoners’ rights issues for the first five or six years of his legal career.

By Pete Bosak
pbosak@centredaily.com