Today, we’ve got a quiz. How many violations of the Constitution can Berkeley County, South Carolina Sheriff Wayne DeWitt commit simultaneously? DeWit is responsible for the Berkeley County Detention Center, otherwise known as the county jail.

At least until recently all books except for paperback copies of the Christian Bible were banned.That means the Jewish Torah and the Muslim Koran are banned. Also banned are novels, health books, books on law, etc. This may even exclude the constitution and the Declaration of Independence from the jail. It even includes Christian literature other than the Bible.

I wonder if the reason books are excluded is that the sheriff and his deputies cannot read.

The policy was recently changed but only after the ACLU filed suit. The Federal government has now joined the suit.

My answer to the question is seven. (freedom of speech, the establishment clause, freedom of religion, right to a fair trial, cruel and unusual punishment, due process, and equal protection)

William S. MacDonald was convicted for sodomy in 2005 in Virginia. The law bans oral and anal sex between consenting adults. The age of consent in Virginia is 15. The court found that he had sex with two female co-workers aged 16 and 17. He was sentenced to 20 years in prison with 17 of those years stayed.

A similar sodomy law in Texas was declared unconstitutional by the Supreme Court in 2003. At the time everyone thought that the Supreme Court action would affect the Virginia law and those of other states that banned sodomy. But thus far MacDonald’s efforts to clear his record have been rebuffed since the Supreme Court exempted cases involving minors in Lawrence v. Texas However this leads to a confusing situation. Since the Virginia age of consent is 15 enforcing the anti-sodomy acts against those that have anal or oral sex with 16 and 17 year olds does not make vaginal sex with 16 and 17 year olds illegal. The California Supreme Court has ruled that making anal and oral sex illegal while allowing vaginal sex violates equal protection. The Constitution’s equal protection clause prohibits making illegal one activity and allowing another when there is no rational reason to differentiate between two similarly situated groups in an unequal manner.

While waiting for a Supreme Court decision on whether to hear the case MacDonald is subject to Jessica’s Law. He told the New York Times that he is unable to live with his wife and he is forced to be homeless.

The sodomy law appears to be aimed particularly at Gay and Lesbian citizens since it does not ban male/female vaginal sex. But as in MacDonald’s case it can be used against consenting heterosexuals also. No doubt it was used in this case because of the 25 year difference between MacDonald and the two teenagers. ¹

The Eighth Circuit’s decision in United States v. Brewer is rather meaningless and for the most part unworthy of comment. There is a decent search issue but it is based upon confusing testimony in the District Court and once the Court of Appeals settles the evidentiary question or thinks it has settled the question the decision to uphold the search is predictable. The other issues raised by the defendant such as the sufficiency of the evidence or the failure of the trial court to inform the jury of the possible sentence in the case are clearly inane and equally unworthy of comment.

But Judge Bright’s dissent on the 370 month sentence for sales of 150 grams (5 plus ounces) of rock cocaine are compelling and something that more people ought to understand. Judge Reade who was the sentencing judge sentenced the defendant to 370 months in compliance with the advisory Sentencing Guidelines. If the case happened on the other side of the freeway which runs through the Northern District of Iowa it would have been assigned to Judge Bennett. Judge Bennett generally, using the discretion assigned to Federal judges by the Supreme Court in Kimbrough and treats rock cocaine the same as powder cocaine. Judge Reade, to the contrary used the 33:1 ratio found in the Guidelines at the time Brewer was sentenced. At the time of the sentencing Brewer would have been sentenced to 240 months (including a 20 year mandatory sentence that has now been reduced to 10 years) when treating rock and powder cocaine the same. Under 18 U.S.C. 3553(a) Federal judges are supposed to consider the sentences imposed by other judges in similar cases in order to prevent significant disparity in sentencing for defendants who commit similar crimes. Yet this apparently does not happen in the Northern District of Iowa or in a number of other jurisdictions.

As Bright points out that although Whites use drugs more often that African Americans it is African Americans who get prosecuted for crack cocaine and get the higher sentences.

The guidelines for crack cocaine are plainly unreasonable. They are the same as the guidelines for second degree murder. In fact the average Federal prison term for crack is greater than the average sentence for murder.

Furthermore at the current cost of imprisonment it will cost the Federal government $780,000 to keep Brewer in prison throughout his term. If he lives to complete the term the government will then have to pay for ten years of supervised release.

This makes no sense. Brewer will be imprisoned until he is approximately 60 years old and studies have shown that few people commit major crimes when they are 60 years old. The lengthly prison sentence is not necessary to protect society. Nor is it an appropriate for punishment. The message it gives is that a series of relatively small sales of rock cocaine to a government agent is more horrendous than murder. I doubt we want to give that message. The other message it gives is that we prefer to lock up significant numbers of African American men for relatively small sales of crack than deal with the race problems in this country.

The irrationality of our sentencing laws promotes lack of respect for out criminal justice system and actually increases the amount of crime. Knowing that regardless of what they do African American men are likely to end up in prison, for long periods of time, only encourages them to use and sell drugs. Yet they still use it less frequently and in smaller numbers than Whites who are not targeted by law enforcement and are less likely to be incarcerated.

The Third Circuit refused to find incompetence of counsel where trial counsel failed to make a Batson claim. In Batson v. Kentucky the Supreme Court ruled that the Fourteenth Amendment’s guarantee of equal protection mandates that jurors not be selected by race.

James Douglas Clausell was convicted of murder in New Jersey state courts. His trial counsel failed to raise a Batson motion despite the prosecutor’s use of peremptory challenges on five of the eight African American and Hispanic jurors in the venire.

In Clausell v. Sherrer he appeals the denial of his writ of habeas corpus to
the Third Circuit Court of Appeals on the Batson issue as well as on incompetence of counsel grounds for his attorney’s failure to raise the Batson issue in the trial court.

There are three steps to a Batson challenge. First, the defense must raise the issue and make a prima facie case. Second the prosecutor must show that he/she had legitimate not-racial reasons for the use of the peremptory challenge. Finally, the court must decide whether or not there was purposeful discrimination.

The Third Circuit denied the Batson claim. The Court ruled that since Clausell did not make a Batson claim in the trial court he waived the issue on appeal. Therefore he has to rely on his incompetence of counsel claim.

At the time of his trial, New Jersey followed a rule that to show a prima facie case you had to show that there was a “substantial likelihood” that the peremptory was based on race. Later the United States Supreme Court made it clear that Batson mandated that the initial showing only had to be enough to allow the trial judge to draw an inference of discrimination. Yet the majority opinion in Clausell found that there was insufficient evidence to meet the “substantial likelihood” test. Therefore, Clausell’s trial counsel was not incompetent in failing to raise the Batson issue. The concurring opinion by Judge Ambro points out that the majority uses the wrong standard by using the substantial likelihood test instead of the inference test but it claims that Clausell cannot even meet the inference test.

Thus Clausell’s incompetence of counsel claim is denied even though he may have had a legitimate Batson claim. His counsel, not only, did not make the claim but did not preserve a record upon which the appellate court could determine if there was sufficient information for the Batson claim. But it was his attorney’s job to preserve a record allowing for a Batson claim. Is it not incompetence not to investigate the claim?