Brother John's Traveling Salvation Patriot Show is not saving many lost souls. 

According to a report in The Washington Post, support for the Patriot Act is waning in the country, including Idaho, where Ashcroft's summer revival tour traveled this week. Idaho's Rep. C.L. "Butch" Otter (R), is leading an effort in Congress to curtail the centerpiece of Ashcroft's anti-terrorism strategy, the USA Patriot Act.  Otter sponsored an amendment approved 309 to 118 by the House in July, which would cut off funding for "sneak-and-peek" warrants. Ashcroft calls this a "mistake," and says that those who voted for the amendment "did not know what they were voting for."  Also voting yea was Sen. Larry E. Craig (R-Idaho), a former singing mate of Ashcroft's in the senate quartet, who now is singing dissident chords about the law.

State representatives and city counsels in Idaho are making discordant noises, no doubt a reflection of a state in which people value their privacy and liked the Constitution the way it was before Ashcroft started playing it in another key.

New Harris Poll numbers indicate that less than 50 percent of those polled like the show's star, and 40 percent disapprove of his performance. And as long as Ashcroft continues to sing his repressive military march and accuse those who would curtail the Patriot Act of being traitors, his popularity is likely to drop.

This is a country that, save for the Rove's, Falwell's, Robertson's, and  Ashcroft's in it, believe in the right to dissent and debate. Ashcroft's words that he "values debate" and does not want to silence it, is belied by his deputizing his US Attorneys to speak personally with dissident Congressional members and report back to him. Report what?  They they disagree? To what end?  That they can be prosecuted as national security risks?

"It's pretty reckless to say that 309 members of Congress want to tip off terrorists," said Otter, who noted that more than a third of the votes cast for his amendment came from Republicans. "Instead of hitting the campaign trail, the attorney general should be listening to the concerns that many Americans have about some portions of the act."

ACLU Executive Director Anthony D. Romero, whose group has helped organize many of the anti-Patriot Act resolutions approved in recent months by more than 150 municipalities and states, said Ashcroft is now "clearly on the defensive. He and the Justice Department have finally understood that there are large portions of the public raising questions about their policies on terrorism and the Patriot Act. The opposition is springing up all across the country."

Some suggest that Bush's handlers sent Ashcroft on the road to test the country's tone toward him and curtailment of civil liberties. If it flops in New Haven (or Idaho), Bush's producers and directors can tweak the show and maybe even replace its star before it opens at the Republican convention next summer. 

Ashcroft fancies himself a martyr and does not mind the criticism or low poll numbers. Rather, they are proof positive that "for every crucifixion, a resurrection is waiting to follow," in the words he used to assuage himself after his loss to a dead man in the Missouri 2000 senate race. Ashcroft may get a second opportunity to test his theory. George W. Bush is not into self-sacrifice, so he may very well sacrifice Brother John on the altar of political convenience, if there is the slightest chance it will save his presidency from going to hell

This week, I had the great pleasure of leaving the Washington D.C.area and traveling to Chicago. I took every opportunity to find out what people west of the beltway were thinking about Bush and Company. And, much to my surprise, they were thinking more like me than the pollsters suggest.

Yes, I know this is anecdotal evidence from a mere smattering of people. But the nature of the comments and the variety of people who shared these views were impressive.

A young salesperson in Neiman Marcus on Michigan Avenue asked me if I thought it odd that Ashcroft was holding rallies to promote the Patriot Act. Isn't there a law against that, he said?

Another young man asked if I thought that the Patriot Act's provisions would be extended. Weren't many of the provisions "against the law," he asked?

The people I spoke with were reluctant to suggest that Bush was "evil." The young man in Neiman Marcus asked, "Do you really think he is trying to do the right thing?"  Another, does he only care about his father's buddies?  Or does he care about "us"?  Did Bush knowingly lie about intelligence that indicated Iraq was an imminent threat?

Is something wrong with Ashcroft, another young man asked? I mean, why would anybody cover up a statute to hide breasts?

Many people brought up the idea that Karl Rove must be behind the California recall effort. Not a person I spoke with thought it did not have Bush's fingerprints all over it. All hoped that it backfired, and that Bustamante would carry the day, if Davis is ousted.  All thought that the Schwarzenegger campaign was a joke. One referred to it as a national embarrassment.

Talk of potential voting fraud was a common theme--they had read about the machines that will leave no trace of one's actual vote. Is this all a plot, asked one young woman, to steal the election, like the Florida election was "stolen?"  (I was surprised at how often people expressed this belief).

A woman asked, how much abuse do people have to take before they get a clue? A clue about, she listed, the economy, the environment, health care, and the war in Iraq. This young woman, a long-time phone company union worker and a former Wellstone campaign aid from Minneapolis, dissected with great care the views of various Democratic candidates. She was going home from a union convention fired up to make sure, as she put it, that a moving van is at Pennsylvania Avenue in January 2005. She, editor of a union newsletter, said that she carefully edits her own writing to make sure that she does not refer to Bush as "President" Bush. He is not my President, she insisted.

Inside the beltway, we watch the ideological wars and the political spins play out.  Issues are discussed abstractly, not in terms of how they affect peoples' lives. This is both the blessing and the curse of living in Washington, DC. The blessing, that people are interested in issues and talk. The curse, that we do not live in the real world; rather, we inhabit a space where the major motivator is power. The people I met were, on the other hand, motivated to live good and decent lives and to care about the future of their country.

Many of them already have a "clue." When they hear that the war in Iraq will cost tens of billions of dollars that we will pay for while we sacrifice living wages and universal health care, they have a clue.  When they watch Bush pretend to be an environmentalist while loosening clean air standards on aging power and manufacturing plants, they have a clue.  When they count the number of Americans dying in Iraq after Bush declared "victory," they have a clue. When they read about the continued violence in the middle east, they have a clue.

And when they hear about Ashcroft wanting more laws curtailing their First Amendment freedoms to read, think, write, and meet with like-minded people, they have a clue.

Bush and his divisive political handlers should get a clue. 

The other day, I conducted a continuing legal education seminar for attorneys in Virginia. The group consisted of a varied lot of practitioners—patent attorneys, corporate lawyers, and government attorneys. Among the government attorney was an employee of the Justice Department and a Capital Hill staffer. We got into a lively debate about one of my favorite topics, the Patriot Act and the "war" on terror. 

The Justice Department attorney would not entertain any other notion except that the Patriot Act was not only necessary, but was actually "no big deal." The feds had done similarly before (like in the days of J. Edgar Hoover), only this time they had a law to back them up. To those who thought it should be curtailed, she had the same words Ashcroft has for the unaccepting public—I guess you want us all killed, or something to that effect.

The Hill staffer spoke eloquently. To the question from Ms. DOJ about "What would you have us do to fight terrorism?" she replied, in effect, "I would have you do what democracies do. They balance individual rights with national security interests. You don't violate the constitution because you think the threat is huge.  There is no perfect security—and cannot be in a democracy."

This attorney went on to lay the blame of the Patriot Act on a Congress (with whom she is employed, on the Senate side) who did not engage in thoughtful debate and who reacted to a crisis with an overreaching, hastily drawn statute.  She said that in all likelihood there would be some changes made to the law.  That upset the DOJ attorney greatly. She believed, like Ashcroft, that the Patriot Act did not go far enough and Ashcroft and his troops needed yet more powers. 

To the fact that many of innocent people are detained behind bars or kept off airplanes (or slowed down at security) because their names are on some list or another, she had not much sympathy. To the hill staffer's plea that Ashcroft & Co. should care that their heavy-handed tactics led to people with minor visa violations being deported, she had no concern. Simply, the only thing she cared about was Ashcroft and his law. It must stand, it must be enforced. And it must be reinforced with more powers and laws. 

I wonder if she was taking names of attendees who did not share her views. As she left, she laughingly said, "What's your name again?"  Ha, ha, ha.  Of course she knew my name. It was meant to be a joke. I did not think it was funny.

John Ashcroft is taking names. He has a list of Congressmen who want to cut off funding for a provision of the Patriot Act that allows warrantless "sneaks and peeks" into people's records and effects. And he has given that list to no other than his 93 prosecutors—the U.S. Attorneys whose duty it is to prosecute the laws of the United States. 

So now U.S. Attorneys are taking names. Ashcroft has ordered them to pay visits to those errant members. And to report back to him.

Report what? The questions they ask? Are they going to bring treason charges against the wary and dissenting? Then, too, the prosecutors are being told to "organize town meetings" and meet with citizens like us. The intent of these visits and meetings are unclear. But one thing is certain--federal prosecutors live and breathe but for one purpose--to prosecute us all for something. It is a suspicious motive Ashcroft has cooked up.It is Ashcroft's own "sneak and peak" into our thoughts and comments. Whoever is fool enough to talk with one of these foot soldiers better have a lawyer in the wings who will risk being branded a terrorist in order to try and save the unbelievers from Ashcroft's hellfire and brimstone.

"Onward, Ashcroft soldiers. Marching as to war." Ashcroft's war on civil liberties has a new front. The halls of Congress. Your neighborhood and mine. You and me. We should all be wary.

In an unprecedented, desperate, and politically motivated move, Brother John Ashcroft has taken to the road. Setting up his tent in strategic cities to bring his Traveling Patriot Salvation Show to lost Americans.  With apologies to Neil Diamond, "pack up the babies and  grab the old ladies."  But take 'em someplace safe, like an old-time religion tent revival, not Brother John's catechism on the USA Patriot Act.

Brother John senses he is in trouble. According to a report in The Washington Post, 150 local governments-- as well as the states of Alaska, Hawaii and Vermont--have passed resolutions condemning all or parts of the legislation. The House also voted earlier this summer to cut off funding for a portion of the law that allows for "sneak and peak" warrants by adopting an amendment by Rep. C.L. "Butch" Otter (R-Idaho) that caught the Bush administration by surprise.

His first sermon in the 2002 summer revival series was to the friendly American Enterprise Institute. Typical of his hell-fire and brimstone manner, he warned the audience (which was a tad like preaching to the choir), that failure to support efforts to renew and strengthen provisions of the Patriot Act would lead to further acts of destruction like those witnessed on September 11.  And in characteristic hyperbolic evangelistic fashion, he said that in hindsight the Patriot Act should have been passed before September 11, suggesting that its passage would have prevented the disaster. September 11 was caused, in case you were wondering, because there was no law allowing the information sharing that the Patriot Act enables. 

Talk about snake oil and witches' brew!  The world knows that the information to prevent the attack--or at least keep Atta and his crew out of the cockpits--was within the purview of the FBI and CIA well before the attack. And that performing perfunctory searches of the hijackers would have turned up their weapons. But a good preacher never lets the facts get in the way of the sermon.

Brother John refrained from quoting from the Bible, but he did use the names of Winston Churchill and Abraham Lincoln in vain in support of this attack on civil liberties which he calls the "linchpin" in the war against terrorism.

Waving the flag, Brother John warned that those who would curtail his powers under the act (a not-so-subtle threat to the American Civil Liberties Union and Center for Constitutional Rights, both of which have filed suits against Ashcroft) would "senselessly imperil American lives and American liberty."

Brother John's deacons didn't pass the collection plate or sell propaganda tracts after his sermon, but they did announce the debut of his new web site devoted to the preservation and expansion of the Patriot Act, www.lifeandliberty.gov.  Confess your sins and commit yourself to the Patriot Act as your lord and savior. Come all you who want life and liberty. Believe in John and he will keep you free. 

Justice Department spokeswoman Barbara Comstock said no political calculations went into choosing the cities for the tour. If you believe that, Brother John has a gallon of snake oil to sell you. Guaranteed to restore vim and vigor and burn off warts. His venues have been carefully chosen to maximize political gain for Brother Bush in his upcoming 2004 presidential campaign. They include the key states of Iowa, Pennsylvania, Michigan, and Ohio. 

And because the Reverend can't be everywhere, he has anointed his federal prosecutors--those highly paid suits on the government payroll--and ordained them to preach the Gospel of John in their home towns.  If you can't catch the Big Show at the Big Top, check your paper for local listings and times.

I am sure there are a few budding Brothers in U.S. Attorneys' offices waiting for the spirit to work in them. So they, too, can, in the fullness of time, preach and sing--let's don't forget the singing--like Brother John.

George Bush is not the only Bush to share a penchant for right-wing, extremist judges.  Baby brother Gov. Jeb Bush goes for judges he hopes will make judicial decisions that support his political interests. And, of course, as with his elder brother, political interests are another word for pro-business, anti-environment, and anti-humanitarian policies.

According to a report in the Miami Daily Business Review, Gov. Bush has tapped Frank Shepherd for the 3rd District Court of Appeals. Shepherd has been the managing attorney of the Pacific Legal Foundation's office in Coral Gables, an organization that champions property owners' rights over environmental protection.  Add to his credentials that he is past president of the Federalist Society chapter in Miami.  The Federalist Society, whose members include Justice Antonin Scalia and Solicitor General Ted Olson, is an extremely conservative organization of judges and lawyers who have great clout when it comes to getting ideologues on the bench.

As for Shepherd, some are asking how he can judge fairly and impartially when he has been on the wrong side of environmental and land-use issues in Florida as an attorney.  He argued a case in front of the very court to which he is nominated in which he claimed that any owner of a lot in the Florida Keys should be able to develop the property at his or her whim, without regard to environmental laws and regulations.  He has voted against regulations designed to protect endangered species.   He has been quoted as saying that individual rights are paramount over state law.

Floridians who value civil liberties have more to fear from Shepherd than just his anti-environmental views.  He has publicly come out in favor of Tort "Reform," which just passed in Florida (limiting pain and suffering damages in medical malpractice cases), school vouchers, and a prohibition against gays in the Boy Scouts. He has opposed affirmative action in college admissions.

And there is one other little dirty secret that has come to light about Shepherd. In 1983, he was charged with child abuse for beating his 8-year-old son in public with a baseball bat because, according to Shepherd, his son failed to "hustle" on the field. The boy was removed from the home for a week, after Shepherd admitted to inflicting soft tissue injuries on his son.

Nice guy. Environmental rapists and child beaters may soon have a friend on the Florida Appellate bench.

The U.S. District Court for the Eastern District of Virginia, Alexandria, Division, has until recently been renown for one overriding characteristic--a "rocket docket," where cases zoom to the finish line at breakneck speed. The rocket docket favors the prosecutors, those well-heeled U.S. Attorneys who have no end to money and resources.  Several U.S. attorneys may work on one case there--while the defendant has a lone counsel.

Especially since 9/11, everything about the federal court there has been designed to intimidate litigants and attorneys.  From the days when it used to be a collection of  airy courtrooms in an old post office building, where lawyers like myself could literally knock on the door of judge's chambers and talk to him, it has become more like a temple with gods sitting in judgment. 

The Eastern District has given us two judges who are heroes to criminal defense attorneys who have little to like about federal court these days--Judge Leonie Brinkema, presiding over the trials of Zacarias Moussaoui and the Alexandria 11, and Judge Gerald Bruce Lee, who recently set off sparks when he threw out the conviction of Jay Lentz.

Lentz was charged with the federal crime of kidnapping, along with murder, arising out the disappearance of his wife several years ago. There was no body, no physical evidence, and no crime scene.  Pure circumstantial evidence was all the government had. 

Judge Lee did not allow the government to introduce evidence that it hoped would show Lentz to have a pattern of stalking behaviors. Lee ruled that the possibility of prejudice would outweigh any evidentiary value.

After Judge Lee threw out the conviction (much to the sadness of the prosecutors, the jury did not recommend the death sentence that Ashcroft and his prosecutors so longed for), jurors reported to defense attorneys that the banned evidence--consisting of dayplanners of the victim, Lentz's wife--made its way into the jury room. The jury considered it, and some of them say it made them change their minds and vote Lentz guilty.

How did the evidence get there? The defense attorneys never had it in their possession.  The prosecutors swear that they know nothing of it, and besides, they say, what does it matter? The conviction has been overturned.

It matters a lot to Judge Lee. And he says he is getting to the bottom of it. As reported in The Washington Post, Lee summonsed the chief prosecutor, Paul McNulty, and the chief public defender, Frank Dunham, to his courtroom and ordered them to investigate the matter.  The arrogant U.S. attorneys objected, of course. 

When Judge Lee asked one of the prosecutors whether or not she would concede that somehow the evidence got into the jury room, she coyly responded that she would not. Whereupon Judge Lee stood up at the bench, reached into a box holding evidence that had been reviewed by the jury, and picked up the two disputed planners. "I can make this judgment right now," he said.

The prosecutors are not pleased with Judge Lee's inquiry, nor with the prospect of having to testify in front of him on September 8, when he will conduct an evidentiary hearing. They think that Judge Lee is violating the law. Assistant U.S. Attorney Vincent Gambale warned Lee, "I don't think this court is charged, or even should engage in, a wild goose chase."

"A wild goose chase"?  That's what it is called when a judge wants to get to the bottom of illegal evidence getting to the jury?  It sounds like the U.S. Attorneys in Alexandria have something to hide. Otherwise, they ought to welcome an investigation that would clear them of any hint of impropriety.

Like his colleague Leonie Brinkema, Gerald Bruce Lee is not going to be cowed or silenced by Ashcroft's army.  The rude, patronizing prosecutors who speak to a federal judge in this manner think they own the courtroom and the evidence.

Who could blame them the attitude, given the successes their boss, John Ashcroft, has had in trying the turn the judicial system into his own private tribunal?

They may own a lot of courtrooms in this country. They may have a lot of judges in their pockets. But they don't own Judge Gerald Bruce Lee.

Lee, an African-American who grew up in a humble beginnings and was a zealous defense attorney before he was a judge, has not forgotten that the law is a mandate that even federal prosecutors have to live by. At least in his courtroom.

With a little help from Congress, John Ashcroft has mounted a new assault on the Constitution:  He wants to control federal judges--and his own prosecutors.  As with so much of what Ashcroft does, his rationale is riddled with hyperbole, lies, and half truths. What's the truth about sentencing that Ashcroft does not want you to know? 

Mark Allenbaugh, Washington D.C. attorney, Adjunct Professor in the Philosophy Department at the George Washington University, and former staff attorney for the United States Sentencing Commission, examines the motives behind Ashcroft's latest move to take over the judicial system. First published in Findlaw's Writ on August 13, 2003, it is reprinted here with permission.

The PROTECT Act's Sentencing Provisions, And the Attorney General's Controversial Memo: An Assault Against the Federal Courts

By MARK H. ALLENBAUGH 

This spring, the PROTECT Act was signed into law. While it is famous for containing the federal version of the "Amber alert," it also included another important provision relating to federal criminal sentencing.

That provision directs the U.S. Sentencing Commission to amend the U.S. Sentencing Guidelines "to ensure that the incidence of downward departures are substantially reduced." (The Sentencing Guidelines apply to all criminal sentences meted out in federal court, and dramatically constrain judges' sentencing discretion. Judges can choose a "downward departure" - imposing a sentence below the range that Guidelines prescribe - only in limited circumstances.)

On July 28, Attorney General John Ashcroft issued a memorandum to all federal prosecutors outlining the Department of Justice's policies with respect to downward departures, in light of the PROTECT Act. It states that prosecutors should not "acquiesce" to departures except in rare occurrences. In addition, when a judge imposes a departure over the prosecutor's objections, the memo requires the prosecutor, within 14 days, to report the departure to DOJ. In short, DOJ's departure policy is no policy at all.

The result, Senator Edward Kennedy has argued, will be to establish a "blacklist" of federal judges who downwardly depart.

The PROTECT Act and the Ashcroft memorandum indicate a distrust of the judiciary, and a belief that more offenders should be imprisoned for longer periods of time. These beliefs, however, could not be more wrong.

In its state and federal prisons, combined, America incarcerates approximately 1 out of every 143 of its residents (over 2.1 million people). In comparison, England, Italy, France and Germany are only about 1 out of every 1,000. The federal inmate population now exceeds that of any single state. And this is largely due to Congress's Draconian mandatory minimum sentencing laws.

Meanwhile, though you would never know it from the PROTECT Act, downward departures do not mean that federal judges are disobeying the law because they are "soft on crime." The truth is quite to the contrary.

How Downward Departures Work, and What They Mean

The U.S. Supreme Court itself has approved downward departures, in Koon v. United States. They exist because the Sentencing Commission lacks the perfect foresight to address every single individual case when drafting the Guidelines. Accordingly, the Guidelines are meant to cover a "heartland" of typical cases.

In a case outside that "heartland," in which the judge believes that certain unusual mitigating factors exist, a downward departure is allowed. That is entirely consistent with the philosophy of the Guidelines - which is to impose punishment that is deserved, and not arbitrary.

Take, for example, the recent case of United States v. VanLeer out of the U.S. District of Utah. VanLeer had entrusted his shotgun with a friend before he headed off to prison to serve time for a drug offense. When he left prison, having served his time, he picked up the gun - and, technically, committed a federal crime by becoming a "felon in possession of a firearm." But he did so only because, needing rent money, he wanted to pawn the gun at a local pawn shop - which he then did.

The Guidelines called for a sentencing range of 30 - 37 months. But Judge Paul Cassell thought - reasonably - that the range was unjust under the circumstances, and downwardly departed to a sentence of "only" 18 months imprisonment.

The judge reasoned that the federal "felon in possession of a firearm" law was intended to prevent "violent crimes and consequent personal injury and even death." That was its heartland. But VanLeer fell outside that heartland; his pick-up-and-pawn transaction did not threaten violence. Accordingly, the judge reasoned, consistent with the purpose of departures, VanLeer should not be sentenced as severely as a felon who possessed a firearm with the intent to inflict serious injury or death should.

Judge Cassell certainly was not being "soft"; he was being just. And isn't that what judges are supposed to do?

Why the Federal Judiciary Is Angry About the PROTECT Act

Since the inception of the PROTECT Act, the federal judiciary has voiced grave concern - and even outrage - at its requirements.

On May 5, during his address to the Federal Judges Association Board of Directors, the Chief Justice William Rehnquist took issue with parts of the Act. He conceded that collecting information on downward departures could assist Congress in deciding whether further legislation is needed. But he also warned that "[t]here can also be no doubt that the subject matter of the questions, and whether they target the judicial decisions of individual federal judges, could amount to an unwarranted and ill-considered effort to intimidate individual judges in the performance of their judicial duties." (Emphasis added).

On June 26, U.S. District Court Judge John S. Martin published an Op Ed in The New York Times, announcing that he was resigning from the bench due to the PROTECT Act. He argued that, "[f]or a judge to be deprived of the ability to consider all of the factors that go into formulating a just sentence is completely at odds with the sentencing philosophy that has been a hallmark of the American system of justice," and concluded, "I no longer want to be part of our unjust criminal justice system."

On July 18, Judge Myron H. Bright of the U.S Court of Appeals for the Eight Circuit, in his concurring opinion in United States v. Flores, urged, "I want to conclude by making a plea to the district judges of this country who feel that they should have some say and some discretion in sentencing. Let your opinions disclose your views about the injustice in the sentencing decision or decisions you are obligated to impose by Congressional mandate and/or the Sentencing Guidelines.... [And l]et me say further that judges generally do not object to appropriate guidelines for sentencing decisions but the time has come for major reform in the system. I say in this concurring opinion, as I have said in other sentencing opinions that I have written, 'Is anyone out there listening?'"

The Chief Justice and Judges Martin and Bright are far from alone in their views. Last week, Chief Judge Marilyn Hall Patel of the Northern District of California attacked the PROTECT Act and Ashcroft memo in a published opinion. She complained that, under the new regime, "the wisdom of the years and breadth of experience accumulated by judges and the Sentencing Commission in adjudicating criminal cases and sentencing defendants is chucked for the inexperience of young prosecutors and the equally young think-tank policy makers in the legislative and executive branches."

Quoting Judge Guido Calabresi of the U.S Court of Appeals for the Second Circuit, Judge Patel also wrote that "'an independent judiciary which applies rules of law ... is a pain in the neck to any government that wants to get things done.' The judicial branch should not be timid nor fearful of inflicting an occasional whiplash or, where necessary, even imposing chronic pain when Constitutional rights are threatened or the balance of powers is jeopardized."

Meanwhile, just this past weekend, Supreme Court Justice Anthony Kennedy, in an address to the American Bar Association, stated that "[o]ur resources are misspent, our punishments too severe, our sentences too long." He advised that "[t]he federal sentencing guidelines [themselves] should be revised downward."

Next week, the U.S. Sentencing Commission will convene public hearings to receive input regarding how it should amend the Guidelines to substantially reduce departures, pursuant to the dictates of the PROTECT Act. Hopefully, with Congress's cooperation, they will take Justice Kennedy's wise suggestion that lowering the ranges downward, will itself reduce downward departures, by minimizing the instances in which judges are forced by the Guidelines to impose a long sentence that is unjust under the circumstances of the individual case.

An Impending Additional Threat to Judicial Discretion: The VICTORY Act

Now circulating in Congress, but not yet introduced, is the Vital Interdiction of Criminal Terrorist Organizations Act of 2003, or the VICTORY Act. (Ironically, or appropriately, the 'Y' is missing.)

The Act does have one redeeming feature: It would reduce the much derided 100-1 sentencing ratio between crack and powder cocaine to 20-1. That, at least, is a step in the right direction. But this small softening is accompanied by a large crackdown: With respect to the sentencing of drug offenders, the Act would reduce the impact of certain mitigating factors, and increase the impact of certain aggravating factors - predictably leading to longer sentences.

Otherwise, the VICTORY Act continues the assault on the federal judiciary that the PROTECT Act and the Ashcroft memo embody. It would further reduce the discretion of federal judges when sentencing drug offenders. It would also make it more difficult for federal judges to invoke the "safety valve" - a legal mechanism whereby judges can sometimes sentence a first-time drug offender below the mandatory minimum sentence. (Technically, the "safety valve" is not a downward departure mechanism, though it has the same effect.)

The Problem with the PROTECT and VICTORY Acts

The PROTECT and VICTORY Acts do not do justice. Instead, they rob the federal judiciary of their discretion to impose just sentences. (And meanwhile, they mandate ever more malicious sentences for drug offenders that will only lead to more Americans languishing in prison.)

This assault on judicial independence must end. Judges, who rarely speak out on matters that involve Congress or the Executive, have spoken out strongly in this instance. If we fail to listen, we do so at our peril.

I am not one who easily succumbs to humor when faced with crises.  Especially the crises of the governmental and constitutional proportions that face Americans at this time. I have received an extraordinary number of emails in the past week from people overseas who think that the US is on a runaway train headed for social, economic, and political disaster. They are frightened, and wonder why more of "us" are not.

But there is a little to smile about today:  A large part of the country is engulfed in a electrical power outage, but it wasn't (we are told, thankfully) the work of terrorists, just a plain old generic breakdown of overloaded, maybe outdated infrastructure; the gubernatorial nonesense in California makes Washington politics look civilizled; Texas legislators are still on the run, and the thought of grown men and women who cannot come to the table and talk to each other is laughable (where is Dr. Phil on this?); and Bush is playing with his chainsaw in Texas and making only occasional innane comments that are as limp and lifeless as this a hot and humid August day in Alexandria, Virginia.

Today is an ok day, then, to share with you the oneliners from a packet of bumper stickers sent to me by a reader in Arizona. Lighten up and smile. Even your serious blogger got a grin out of these.

Disarm Bush.

Warning:  Danger:  Weapons of Mass Distraction

Bush I & Bush II:  Addicted to War

Help me!  My President is an Idiot

Caution:  Empty Warheads in Washington

We have found the enemy:  Our leaders.

Drunken frat boy drives country into ditch.

Jesus is coming soon and boy is he pissed.

Happy Friday to all.

Since 1973, 111 people waiting execution on death row have been released because they are actually innocent.  That means 111 could have been wrongly executed in our names. How many of the nearly 900 executed during these years have been innocent? We will never know for sure, though there is a long list of possibilities based on reporting by journalists and filings by attorneys.

A handful of federal judges are troubled by the thought of innocent people dying. But as welcome as it was to hear that Boston federal district court Judge Mark A. Wolf is troubled by this prospect, his refusal to act on his misgivings makes one wonder. What in the world has happened to "justice" in a country that will let one innocent man die? And think it is just fine?

According to a report in The New York Times, Wolf said, "In the past decade, substantial evidence has emerged to demonstrate that innocent individuals are sentenced to death, and undoubtedly executed, much more often than previously understood."

But...(and that there is a "but" is appalling), he said, "The day may come the when a court properly [Macro error: Can't compile this script because of a syntax error.] can and should declare the ultimate sanction to be unconstitutional in all cases. However, that day has not yet come."

And what will it take for "that day" to come? Why, we, as a country, must decide "how large a fraction of the executed must be innocent to offend contemporary standards of decency."

The "offend contemporary standards of decency" line comes from the Supreme Court's rationale for considering if a punishment is sufficient to fail the 8th Amendment's constitutional protection against "cruel and unusual" punishment.

Is it cruel and unusual punishment to execute a retarded man? The Supreme Court said last year, by a slim 5-4 margin, that it was.

Is it cruel and unusual to execute someone who was a juvenile at the time of the offense? The Supreme Court has said it is not.

Is it cruel and unusual to execute an innocent man?  The Supreme Court has said repeatedly that it is not concerned if innocent people die, as long as the state or federal government followed its laws and procedures. 

Are you offended by that?  Judge Wolf was not. 

The case that gave rise to Wolf's ruling has John Ashcroft's dirty bootprints all over it. Gary Lee Sampson admitted to killing three men while he was hitchhiking in Massachusetts and New Hampshire in 2001. He offered to plead guilty to state murder charges in Massachusetts and receive the maximum punishment of life in prison without parole. The State of Massachusetts does not have the death penalty.

Enter John Ashcroft and his war on state's rights, especially states with antipathy toward the death penalty. In his admitted effort to bring the death penalty to every state that does not have this sanction, Ashcroft directed the prosecutors to bring federal kidnapping charges against Sampson that would make him eligible for the federal death penalty. Ashcroft did this recently in Alexandria, Virginia, in the case of Jay Lentz.  Not content to see Lenz tried for the murder of his ex-wife (this was a case with no body, no crime scene, and no weapon) in state court, Ashcroft had him charged with murder and kidnapping. Though the jury convicted Lentz, they sparred his life, much to the distress of Ashcroft and his prosecutors. 

But Judge Gerald Bruce Lee threw out the conviction, saying there was no evidence at all of kidnapping to warrant the federal charge, let alone to support a conviction.  Naturally, the government is appealing that decision.

Judge Wolf, a Reagan appointee and former federal prosecutor, noted that "juries have recently been regularly disagreeing with the attorney general's contention that the death penalty is justified in the most egregious federal cases involving murder."

Wolf is right. The latest count shows that Ashcroft is 1 for 20 in his making a federal case out of murder just to get the defendant executed. The most recent acquittals were this month in Puerto Rico, which does not have the death penalty. The Lenz case, in which the jury rejected the death penalty, preceded that one. Virginians have no problem with the death penalty--their love for it is second only to George Bush's Texas.

What does Ashcroft have to say about executing innocent people? As reported by The Times, a "Justice" spokesperson, Monica Goodling, said the Department has an obligation to ensure the fair and consistent application of the federal death penalty.

And what does that mean, pray tell? It means to kill everyone that is remotely eligible.

Ashcroft is a blight on America.  State and federal governments kill in our name. We all have the blood of innocents on our hands.  

How much blood is too much? 

Having been a practicing attorney for 24 years, I have heard my share of lawyer jokes. And had my share of ungrateful clients. For everyone who likes to dump on lawyers and complain about them--this column is for you. Ashcroft has been at war with defense attorneys for more than year. A couple of weeks ago Ashcroft declared war on federal judges. Now Ashcroft, along with the Securities and Exchange Commission (SEC), has declared war on you--the client!

The lawyers are trying to protect the oldest legal privilege in existence--the lawyer-client privilege. Lawyers are regulated by state bar associations.  No state bar association has a law requiring that a lawyer turn in a client or breach privilege.  But new Justice Department and SEC rules may change all that.

Sadly, the American Bar Association is willing to go along with the government to some extent. The ABA's Model Rules of Professional Conduct are template for state rules of conduct. So any change made by the ABA will trickle down to the states.

At its annual meeting taking place this week, the ABA is considering changes that would permit lawyers greater discretion to disclose client confidences, although lawyers would not be required to do so, as the regulators are insisting.

As reported by The New York Times, two years ago, the bar association rejected changes to its model code of conduct to permit lawyers more latitude in disclosing client confidences to prevent fraud. But the ABA is wavering in its commitment to principle. ABA president Alfred P. Carlton Jr., rationalizes the association's position as a necessary corrollary to the  "war on terror" and the financial scandals. Lawyers, he says, need to do their part to protect the nation's physical and economic security. "The confluence of those events is what is causing all this. It is a new day," he said to The New York Times.

But forsaking the sanctity of the attorney-client relationship is appalling to most attorneys, who, if they remember nothing else from law school, remember the mandate of client confidentiality. In short, the government's attack is an unprecedented incursion into the professional relationship.

"The tradition has always been that lawyers were the protectors and were most concerned with a client's rights, trying to achieve for them through the legal system the best results they could," said Timothy Terrell, a law professor at Emory University, who spoke to The New York Times.

If the changes are approved, the ABA's Model Code would permit, but not compel, a lawyer to disclose client confidences to prevent or to mitigate "injury to the financial interests or property of another," when the lawyer's services were used to further a client's crime. In 2001, the delegates approved a narrower change, permitting a lawyer to breach client confidentiality "to prevent reasonably certain death or substantial bodily harm," but even that change was controversial.

In late July, the chief justices of all 50 states adopted a resolution in favor of the current proposal, putting pressure on the bar association.

In the wake of  Enron, WorldCom, AOL-Time Warner, and a host of other corporate accounting scandals, the SEC adopted a rule requiring lawyers to report potential fraud to corporate boards and this fall it may well propose additional rules. But other regulatory agencies are mixing it up as well. The Federal Trade Commission has filed suit to force law firms to comply with a 1999 law on disclosing privacy policies to clients and the Internal Revenue Service is trying to make law firms disclose which clients bought questionable tax shelters.

And, the mother of all injustice, the "Justice" Department, which is already listening in on conversations between lawyers and "terrorism" suspects, has this message for people under "suspicion" or investigation for any crime: waive the attorney-client privilege and let your lawyer talk to us or we will charge you with obstruction of justice and ask that years be added to your sentence (for they will get a sentence, they promise, even if they have to scramble to find something you are guilty of). 

If you exercise your legal right, you will pay. Your end may not just be prison, but personal and professional ruin.

Where are we headed with this?  How about a dismantling of the entire judicial system?  When your number comes up, government prosecutors of every rank will break down your door, read you the charges, and take you off to prison.

Sound like a grade "B" movie about the legal system in China? Or a bad dream? Wrong. It is the new reality justice--brought to you by Bush and his band of tyrants.