CNN has a good analysis up today on the various search issues decided this term by the Supreme Court. It's okay to search a bus passenger's baggy jeans but not the underwear of a man in his home. "The bus search case overshadowed the underpants search challenge because of its impact on the government's anti-terrorism efforts."

Kudos to Judge Jed S. Rakoff for his courageous and well-reasoned decision in U.S. v. Quinones declaring the federal death penalty unconstitutional and violative of due process because there is too big a risk that innocent people are being executed.

Since 1973, 101 people in 24 states have been released from death row with evidence of their innocence. Check out this breakdown by state and year. To understand how this can happen, take a look at Convicted By Juries, Exonerated by Science, a study commissioned and published by the National Institute of Justice, the research arm of the Department of Justice, and cited by Judge Rakoff in his decision.

Reporters and commentators are noting Judge Rakoff did not rely on the 8th Amendment's ban against cruel and unusual punishment to arrive at this conculusion. He looked at the irrefutable and steady data that has been pouring in the last few years proving that more than 100 people have been found factually innocent after being sentenced to die. Among the most important of studies in recent years is A Broken System: Error Rates in Capital Cases, 1973-1995, by Professors James Liebman and Jeffrey Fagan of Columbia University, also relied upon by Judge Rakoff.

DNA often is not available for years after conviction to prove innocence. How does one prove one's innocence after he's dead? We agree with Judge Rakoff that this is a due process violation. Could there be a bigger one?

And while we are cheering Judge Rakoff, let's not forget to send loud hoots and raspberries to Attorney General John Ashcroft.

From the ACLU : "Recent reports show that since taking office last year, Attorney General Ashcroft has reversed the recommendations of his agencyís own prosecutors at least 12 times ñ each time ordering them to seek execution in cases where they had recommended against doing so. This aggressive pursuit to execute is unconscionable when so many questions about fairness continue to exist. "

The New York Times had an excellent editorial today commending Judge Rakoff and his opinion. For analysis of the opinion, we like Daily Kos who got right on it yesterday. Tom Perrotta of the New York Law Journal is also worth a read.

Where do we go from here?

Call and fax your elected officials in Washington to get on the ball and pass the Federal Death Penalty Moratium Act and the Innocence Protection Act.

Then let's study the problem without anyone being at risk of wrongful execution. For more information about these bills, and what you can do to help, check out The Moratorium Campaign and The Justice Project Press Information Kit.

Great news! Judge Jed S. Rakoff of the Southern District of New York just declared the federal death penalty unconsitutional in the case of U.S. v. Quinones! Here's the opinion.

The basis for his ruling is the "undue risk" that a meaningful number of innocent people have been executed.

Judge Jed S. Rakoff is the first federal judge to declare the current federal death penalty unconstitutional.

This is an issue that's not going away--

More on yesterday's Supreme Court's ruling reinstating a civil rights action against prison officials in the case of an Alabama inmate who repeatedly had been tied to a hitching post, left in the sun for hours without adequate water and bathroom breaks, taunted and more. HOPE V. PELZER (01-309)

The Supreme Court ruled that the guards actions were 'totally without penological justification" and demonstrated "deliberate indifference" to the inmates' health or safety. An obvious Eighth Amendment violation on the facts, said the Justices.

Governmental immunity won't protect the prison officials because "a reasonable officer would have known that using a hitching post as Hope alleged was unlawful. The obvious cruelty inherent in the practice should have provided respondents with some notice that their conduct was unconstitutional." (from the syllabus of the opinion)

How bad was the treatment? According to Atlanta Lawyer Craig Jones who represented the inmate, during the second hitching, at one point guards brought out buckets of water, and then gave it to some dogs. "Like something out of 'Cool Hand Luke." Actually, we think it's a lot worse, read the opinion for the gory details.

What will be the effect of the ruling? Civil rights lawyers say it's a brand new day, at least in the 11th Circuit. Now plaintiffs can pierce the immunity shields and recover damages when state officials inflict needless pain on inmates.

Clarence Thomas dissented.

bumped to the top to add new details.

Donna Shea, Legal Director for NORML, writes to say that in a 5-4 decision, the Supreme Court today upheld mandatory drug testing for students who wish to participate in extracurricular activities. NORML had filed an amicus brief against extending the Court's previous ruling in favor of testing athletes to include students who wish to engage in extracurricular activities. Justice Thomas wrote the opinion for the Court. Justice Ginsburg wrote a scathing dissent. The text of the opinion is on the Supreme Court's website. Here are excerpts of the Court's ruling.

Reacting to the decision, NORML charges that while students are taught the Constitution, they are no longer protected by it.

On the legislative front, Colorado Governor Owens is calling for a special legislative session to rewrite the states' death penalty law.

Elsewhere, opinions are rolling in about the Supreme Court's rulings the past two weeks rejecting the death penalty for the mentally retarded and requring that juries, not judges, impose the penalty. Will they bring about any kind of sea change in the death penalty itself? What will they mean for those on death row?

Check out Newsweek's Debra Rosenberg's interview with Chris Adams, Death Penalty Counsel for the National Association of Criminal Defense Lawyers, on MSNBC's website and the Washington Post article with reaction from Stephen Bright of the Southern Center for Human Rights and others.

Bottom line: While the rulings are encouraging, much is left in the air particularly retroactivity issues. Death penalty opponents say they've just begun to fignt.

The Washington Post is one of the few media sources pointing out the seeming contradiction between two of yesterday's Supreme Court decisions.

In Ring, the death penalty decision, the Court said juries, not judges, must make the decision to impose death sentences. Allowing a judge to impose a sentence by considering facts not brought before or ruled on by a jury violates a defendant's constitutional right to a jury trial. We agree.

But in the Harris decision yesterday, the Court upheld a judge's imposition of a higher sentence on a defendant who possessed a gun during the course of the crime for which he was convicted--even though the defendant was never charged with a gun crime and the jury never considered the issue. We disagree.

The effect of the Harris ruling is to uphold thousands of mandatory minimum sentences around the country. Our friend FAMM (Families Against Mandatory Minimums) submitted a brief in the Harris case arguing that mandatory minimums are "expensive and inefficient, perpetuate unwarranted and unjust sentencing disparities, and transfer the sentencing function unwisely from the judiciary to the prosecution." So true. The FAMM Press Release on the Harris decision clearly points out the unfairness of the decision and the need for legislative reform for mandatory minimum sentences.

What's the difference between the two cases? Isn't the actual sentence in both cases being determined by judges based on facts not presented to the jury ? The Court says the issue in the mandatory minimum gun case does not involve an "element of the offense" but merely a "sentencing factor." Aggravating factors in death cases, on the other hand, are the "functional equivalent" of "an element of the offense." Elements of offenses must be submitted to juries. Sentencing factors do not.

In addition, the Court reasons that the death penalty case involves a determination of the maximum penalty while the mandatory minimum gun case involves a determination of the minimum penalty without affecting the maximum sentence. Got that?

While we don't often agree with Justice Thomas, he makes a good point in the Harris dissent when he says "Whether one raises the floor or raises the ceiling it is impossible to dispute that the defendant is exposed to greater punishment than is otherwise prescribed."

Huge News! Supreme Court Overturns Judge-Imposed Death Sentences. Dozens of death verdicts are overturned. This may affect over 150 Cases. It was a 7-2 ruling. Five states, including Colorado, allowed sentencing in death cases to be determined by the Judge instead of the jury that convicted the defendant. The high court confirmed that this violates the defendant's constitutional right to a trial by jury. We're on a roll! Read the Full Opinion Here .

The National Coalition to Abolish the Death Penalty gives high praise to today's Supreme Court ruling . A quote: ìThe Supreme Court has recognized that executing mentally retarded people violates the evolving standards of decency that mark the progress of a maturing society,î said NCADP Executive Director Steven W. Hawkins. ìThe next step for the court should be to apply the same, exact standard to the execution of youthful offenders.î

Check out the Press Release from the National Association of Criminal Defense Lawyers on last week's Supreme Court ruling in Atkins v. Virginia prohibiting the application of the death penalty to mentally retarded persons. President Irwin Schwartz predicts ultimate abolition!

From the Colorado Criminal Defense Bar: (a quote on fiscal reasons not to have a death penalty)

"The cost of the death penalty has been found to be $2.16 million over the cost of a non-death penalty sentence of life imprisonment. On a national basis these figures translate to over $1 billion dollars spent since 1976 on the death penalty.

In Colorado it is estimated that approximately 50 million dollars has been spent in seeking the death penalty against Colorado prisoners in the last 26 years. That amounts to nearly $17 million for each of the two currently valid death sentences and one execution in Colorado."

Stay tuned, more reactions will be coming.

Big news for today: The Supreme Court just banned executing the mentally retarded! Associated Press report. The case is Atkins v. Virginia. Here is the text of the Court's opinion.

As the National Coalition to Abolish the Death Penalty said in a press release today: The next step for the court should be to apply the same, exact standard to the execution of youthful offenders."

The hearing on the Innocence Protection Act went well. Proponents say they are about 60% towards the passage point, which could still come later this year. For more, here's Barry Scheck's testimony before the Senate Judiciary Committee.