Flap Your Lips Friday
Posted by Michelle Moquin on May 31st, 2013
Good morning!
Another write from ThinkProgress:
Justice Scalia: Ensuring Innocent People Get Out Of Prison Is A ‘Faustian Bargain’
A man who may be locked up for a murder he did not commit should not be allowed to challenge his conviction, according to Justice Antonin Scalia and his three most conservative colleagues. And three members of the Supreme Court seem to believe that most people jailed due to unconstitutional convictions should have no recourse to the federal courts. At least, that’s what emerges from a four justice dissenting opinion written by Scalia in a case dealing with the rights of state prisoners who may be “actually innocent” of the crime they were convicted of committing.
McQuiggin v. Perkins is a fairly unusual case. After being sentenced to life in prison for murder, Floyd Perkins spent years gathering three affidavits from witnesses corroborating his claim that another man committed the crime. Yet he sat on this new evidence for nearly six years before presenting it to a federal court. Justice Scalia’s dissent claims that a one year statute of limitations prevents Perkins from presenting six year-old evidence that he may be innocent. Justice Ruth Bader Ginsburg’s majority opinion holds that “actual innocence” may overcome this one year time limit, although she also requires prisoners in Perkins’ shoes to overcome a very high bar before their claims of innocence may succeed in federal court.
Beyond the narrow issue presented by this case, however, the final paragraphs of Scalia’s opinion — three paragraphs that conservative Justice Samuel Alito pointedly chooses not to endorse — suggest a massive contraction of prisoners’ rights. Earlier in his opinion, Scalia claims that state prisoners’ right to challenge their conviction in federal court was “radically expanded in the early or mid-20th century to include review of the merits of conviction and not merely jurisdiction of the convicting court.” This is likely a reference to a controversial theory, championed by a young future Chief Justice William Rehnquist and later promoted by a conservative law professor named Paul Bator, that federal courts traditionally could not overrule state convictions so long as the defendant enjoyed minimal safeguards such as “counsel to argue all his points to the trial court, [access to] the state appellate courts” and the ability to seek Supreme Court review.
Scalia’s final paragraphs claim that the practice of allowing broad challenges to unconstitutional state convictions, including cases where a state prisoner may in fact be innocent, was a “Faustian bargain that traded the simple elegance of the common-law writ of habeas corpus for federal-court power to probe the substantive merits of state-court convictions.” As Scalia warns, permitting state prisoners to challenge their conviction in federal court leads to “floods of stale, frivolous and repetitious petitions [which] inundate the docket of the lower courts and swell our own.”
Justice Scalia is correct that judges have to do more work if potential innocents are allowed to seek vindication. Unlike prisoners locked up for crimes they did not commit, however, those judges will also get to go home every day.
*******
Readers: How cold and cruel can you be. It is so easy to just leave an innocent person in prison when it is not you or someone you care about that is innocently left behind bars with no recourse. Can you believe that Scalia is more concerned about inundating the docket of the courts, than the livelihood of innocent people in jail? Yep, I can believe it. Scalia has no feelings but for himself and his own.
Thoughts? It’s Friday…Blog me.
David: Patience is its own reward. :) I just got Zen Lill’s fashion picks yesterday – You can expect to see them this weekend!
Lastly, greed over a great story is surfacing from my “loyal”(?) readers. With all this back and forth about who owns what, that appears on my blog, let me reiterate that all material posted on my blog becomes the sole property of my blog. If you want to reserve any proprietary rights don’t post it to my blog. I will prominently display this caveat on my blog from now on to remind those who may have forgotten this notice.
Gratefully your blog host,
michelle
Aka BABE: We all know what this means by now :)
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May 31st, 2013 at 4:45 pm
Fashion picks? Lol…that’s funny, I can be fashionable I suppose though I just really love my white blouse & shorts.a.lot : ) – ZL
May 31st, 2013 at 4:46 pm
I have no comment about Scalia, what’s to even say about this guy?
June 1st, 2013 at 6:00 am
The Affordable Care Act Working for You
May 31, 2013
Last week, millions of families learned that California will deliver on a central promise of the Affordable Care Act: access to quality, affordable health care coverage for all.
Due to the extraordinary leadership of Covered California, our state will offer more than a dozen comprehensive health plans without the fear of higher premiums.
Starting in October, insurance companies will compete in the open marketplace, giving Californians who lack health insurance a chance to enroll in a plan that best suits their needs and their pocketbook.
Under health reform, insurers can no longer consider pre-existing conditions or health histories to set the price of coverage. Many people who purchase a plan in the exchange will also receive a tax credit to help reduce their premiums.
Thanks to the cooperation and commitment of California’s medical community, our health insurance marketplace will expand competitiveness, improve health care, protect the economic security of the middle class, and transform millions of lives.
I am proud to see that California is leading the way in establishing the bright and healthy future that the Affordable Care Act is meant to ensure.
Congresswoman Pelosi tours Heath Ceramics with co-owner Robin Petravic in the Mission to highlight the House Democrats’ “Make It In America” agenda for SFMade Week and San Francisco Small Business Week
Keeping College Affordable
There is no greater way to safeguard the future of our country than to invest in the education of our children. Yet if Congress fails to act by July 1st, interest rates on student loans will double, putting a college education well out of reach for millions of American students.
With hardworking families already carrying $1 trillion in student loan debt, we must do more to ease – not exacerbate – that burden.
House Democrats are eager to help middle class families keep college more affordable. But Republicans have acted to do the opposite, voting for the ‘Make College More Expensive Act’ to saddle hard-working students and families with higher interest payments for their loans.
When a majority of new jobs in the next decade will require a college degree, it is an economic necessity that obtaining a higher education remains an opportunity for every student, not a perk of the privileged few.
House Republicans should come back to the table and work with Democrats to prevent interest rates from doubling now. We must reaffirm our commitment to the success of America’s students, families, and future by making college affordable for all.
Casework Corner
A constituent who was turning 65 years old was notified by the Social Security Administration (SSA) that they would deduct the cost of Medicare Part B from her benefits. Because of her low income and eligibility for Medi-Cal, it was her understanding that the SSA would reimburse her for Medicare premiums paid.
My staff contacted the SSA and were able to ensure that my constituent’s records were correctly updated by the Centers for Medicare and Medicaid Services (CMS). She will be reimbursed for premiums paid, and next month her benefits will return to normal.
If you have a problem with a federal agency or obtaining your federal benefits, you can learn more about how my office can be of assistance to you at my website or by calling my office at 415.556.4862.
Please feel free to forward this information to your family and friends. To learn more about these efforts, to express your views, or to sign up for email updates, please visit my website. I am also on Twitter at http://twitter.com/NancyPelosi.
best regards,
June 1st, 2013 at 6:20 am
This guy is just a fat piece of shit. Another reason why white privilege has fucked this country up. If Scalia was not supported by the racist 1/3 he would have been drummed out long ago.
June 1st, 2013 at 6:40 am
Michelle the title of this article shows that the white boy is still trying to hold out that the this BAPF idiot is very intelligent. To my knowledge to “strike a Faustian bargain” means to be willing to sacrifice anything to satisfy a limitless desire for knowledge or power.
This disgusting creep is suggesting that SCOTUS is willing to refuse to allow someone to challenge their conviction even when it is obvious they are innocent because they have the power to do so.
That is white boy arrogance and is what has kept this country from being an equal opportunity for all its citizens. And it certainly has nothing to do with any “Faustian bargain.”
June 1st, 2013 at 7:08 am
good old justice scalia – he’s like a permanent STD given to us by ronald reagan.
June 1st, 2013 at 7:09 am
He knows he sounds like an asshole. He also knows he’s elected for life, that Congress will never be united enough to remove a sitting justice, and that he can keep directing American judicial policy until he dies or decides to retire. He’s just trolling at this point.
He’s always been a diehard rightwing judicial activist, now he’s just telling people and daring them to do something about it. He just spit on the foundation of our entire legal system and knows there will be no consequences whatsoever; this is just for his own amusement.
June 1st, 2013 at 7:13 am
Scalia decision has nothing to do with the definition of innocence, and everything to do with how fast you have to pursue your innocence claim.
The majority held that “The Court has applied this “fundamental miscarriage of justice exception” to overcome various procedural defaults, including, as most relevant here, failure to observe state procedural rules, such as filing deadlines. See Coleman v. Thompson, 501 U. S. 722, 750. The exception, the Court’s decisions bear out, survived AEDPA’s passage.”
Scalia opined that “The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides that a “1-year period of limitation shall apply” to a state prisoner’s application for a writ of habeas corpus in federal court. 28 U. S. C. §2244(d)(1).”
The majority basically said “actual innocence” is enough to defeat the statutory bar. Scalia said no, even if they are 100% innocent if they didn’t file the paperwork within the year, they are SOL and should rot in jail.
June 1st, 2013 at 7:14 am
While I understand the point that procedures are in place for practical, functional purposes, holding innocent people in prison is not only unjust but also costs the taxpayers a lot of money.
Even from a purely economic argument it is in our best interests to make sure innocent people get released, regardless of arbitrary procedural deadlines. (By “arbitrary” I do not mean pointless, I mean there is no mathematically-derived conclusion that 1-year is correct and 1-year plus a day, or 2-years, or 5-years are incorrect. It’s simply a nice, round number to chose that should normally be enough time.)
I think rational considerations easily trump his procedural ones, and I’m sad he doesn’t recognize this.
June 1st, 2013 at 7:19 am
Virginia did a study recently. They took DNA evidence from serious crimes (mostly rape and murder) that were tried in the 80s before DNA typing was available and compared it to the DNA of the people convicted for those crimes.
To repeat, these were not cold cases, but cases in which they had convicted someone. Because of the serious nature of the cases, most convicted had served decades in prison, some even completing 30 year terms.
20-25% were factually innocent, could not have done it, totally excluded by DNA.
Nationally, the current best guess is that about 10% of prisoners are factually innocent. That’s a few hundred thousand individuals.
It is not a little problem.
June 1st, 2013 at 7:42 am
Does Your Heart Need That ICD Device…or Not?
Your doctor may someday suggest that you get a heart-regulating medical device called an implantable cardioverter defibrillator (ICD) placed in your chest. And you might be tempted to agree right away—but don’t be too hasty.
Although ICDs can and do save lives, the risks of these devices can far outweigh the potential benefits in some patients. Such people can wind up with pain, infections, even life-threatening complications—all from a device they didn’t really need. Here’s what you should know to protect yourself…
The job of an ICD is to guard against sudden cardiac arrest, a condition in which the heart abruptly stops beating due to a malfunction of the internal electrical system that controls the heart’s rhythm and rate.
Sudden cardiac arrest is not the same as a heart attack (though the two can occur simultaneously). A heart attack happens when a blocked artery prevents oxygen-rich blood from reaching a section of the heart—and though many people fear heart attacks more, sudden cardiac arrest is much likelier to be deadly.
A person experiencing sudden cardiac arrest typically passes out within seconds and dies within minutes unless the heart is restarted almost immediately. As many as 95% of sudden cardiac arrest victims die before they can reach a source of emergency help, such as a hospital.
That’s where the ICD comes in. If you are known to be at risk for sudden cardiac arrest, your cardiologist may recommend implanting this small metal device under the skin of your chest or abdomen. It includes a box with a battery, small computer and pulse generator…leads (wires) that run from the box through a vein to your heart…and electrodes that connect to the heart itself.
When the ICD computer detects a potentially dangerous arrhythmia (abnormal heart rhythm), the pulse generator sends out an electric shock to reestablish a normal heartbeat.
Sounds reasonable so far, right? Here’s the worrisome part. Among patients who have ICDs, only 7% end up ever getting a needed shock from the device during an episode of arrhythmia. This means that for the other 93%, the ICD was unnecessary…yet these patients still face the risks involved in having the device.
Of course, it’s impossible to know in advance whether you’ll be among that small percentage of patients who actually needs that lifesaving shock. But since ICDs do carry risks, you want to be as certain as possible that the device’s potential benefits—for you personally—will outweigh its risks.
FRANK TALK IS VITAL
To weigh the balance of an ICD’s risks and benefits, it is essential to have an in-depth and frank discussion with your cardiologist, said John Mandrola, MD, a cardiologist and electrophysiologist (a cardiologist with additional training in the diagnosis and treatment of abnormal heart rhythms) in private practice in Louisville, Kentucky. Here’s what to cover…
Possible complications. For instance…
ICDs sometimes misfire, shocking the heart unnecessarily even when there is no arrhythmia. Inappropriate shocks occur in an estimated 5% to 30% of patients, Dr. Mandrola said.
These shocks are not only painful, they might cause damage to the heart or even trigger an irregular and dangerous heartbeat.
Infection is another concern.
Staphylococcus and other bacteria can lodge around the ICD and overwhelm the immune system’s defenses. Among patients who develop such infections, 18% die within a year.
The wire leads sometimes become dislodged, in which case repeat surgery—with all its attendant risks—is needed to reposition them. Dislodged leads also can perforate the heart or lungs.
Influence of gender.
Women encounter more problems with ICDs than men do. In a recent three-year study involving more than 5,400 ICD patients, women were nearly twice as likely as men to develop severe complications such as heart or lung perforation.
Women also were less likely than men to get needed shocks from their ICDs when arrhythmia did develop. This doesn’t mean that women should never get ICDs, Dr. Mandrola said—but women and their doctors should take these factors into account when gauging the risks versus the benefits.
Your overall health.
This sounds blunt, but it’s an important factor to consider, Dr. Mandrola said. For a patient with other serious health problems (such as late-stage cancer, severe kidney disease or advanced dementia), getting an ICD may mean “trading” a very quick and nearly painless death from sudden cardiac arrest for a still inevitable, yet much more prolonged and difficult, death from some other illness.
BEST ICD CANDIDATES
So who is most likely to benefit from an ICD? Dr. Mandrola’s ideal candidate is someone who is sick enough to be at significant risk for sudden cardiac arrest—but not so sick that he or she is likely to succumb fairly soon to some other illness.
Those who have survived a life-threatening arrhythmia.
Those with inherited disorders of the heart that predispose them to severe arrhythmia (such as hypertrophic cardiomyopathy or long QT syndrome). (For an explanation of long QT syndrome, see our Daily Health News article, “Sickening Finding About Common Anti-Nausea Drug.”
Those with persistently weakened heart muscle, such as occurs with congestive heart failure.
Even if you do fall into such a category, if your doctor emphasizes only the benefits of an ICD and glosses over the risks, it’s vital to get a second opinion, Dr. Mandrola advised.
If you do opt for an ICD:
Remember that experience matters. Patients whose ICDs are implanted by electrophysiologists have significantly lower rates of complications than patients whose devices are implanted by cardiologists or surgeons who are not electrophysiologists.
Currently, only about one in 16 cardiologists in the US is an electrophysiologist. Best: If your cardiologist is not an electrophysiologist, request a referral or find an electrophysiologist near you by visiting the Heart Rhythm Society.
You might also be interested in another Daily Health News article on cardiac implant dangers, “Infection Protection for Cardiac Implant Patients.”
Source: John Mandrola, MD, a cardiac electrophysiologist in private practice, Louisville, Kentucky. His recent article, “Choosing Wisely: The Electrophysiology List of Five Don’ts,” was published online at http://www.TheHeart.org.
June 1st, 2013 at 8:34 am
I think Scalia might be mentally ill.
June 1st, 2013 at 8:56 am
Welcome to “tough luck” justice. An innocent person moldering in prison for life is the collateral damage of a system willing to put expediency above the truth, and Scalia’s fine with it.