The 8th Amendment of the Constitution, in its prohibition of cruel and unusual punishment, holds at its core the fundamental American values of fairness, dignity, and justice.  Last week's Supreme Court decision on Kennedy v. Louisiana reaffirmed these values by once again finding the death penalty as not only an ineffective deterrent against crime, but also incongruous with the nation's "evolving standards of decency and redemption that mark the progress of a maturing society." (Trop v. Dulles). The court appealed to the "precept of justice" in holding that punishment is to be proportioned to the crime, and in the case of capital punishment this is indeed "a narrow category."

In delivering its opinion, the court held that the application of the death penalty had to rest on a "national consensus" that a death sentence was an inappropriate punishment to the crime of child rape.  The decision of the court also made significant reference to Roper v. Simmons, a 2005 ruling that appealed to international norms in ruling the death penalty an inappropriate punishment.  While the Supreme Court did not explicitly cite international human rights law in its decision, the values of decency, fairness, and dignity upon which it relies are shared universally.  Moreover, the language of international law pervades the friend-of-the-court brief submitted by Leading British Law Associations, Scholars, Queen's Counsel and Former Law Lords.  The brief, heavily referencing the UN Commission on Human Rights, hinges its argument on a "well-established global consensus" that "nations that retain the death penalty must progressively narrow the class of offenses punishable by death."  This amicus brief, and the Supreme Court ruling that upheld its conclusion, affirms an internationally held respect for the value of human life within the American court system.

By "repeatedly taking note of other nations' practices in considering the application of the death penalty," and by simultaneously holding itself to the standard of national consensus, the Supreme Court expressed the implicit view that international norms are compatible with and even complementary to our national values. (See Redemption).  This view underlies the Opportunity Agenda's commitment to engaging the discourse of human rights here in the US.  As affirmed by the Supreme Court in their approach to Kennedy v. Louisiana, universal rights are fundamentally in sync with core American values.

*    Last week, The Opportunity Agenda's Immigration Blog Roundup linked to an Of América posting about the Guantanamo-like treatment of individuals held at ICE detention facilities.  The latest Breakthrough video titled "Death by Detention" documents individuals' stories of their horrific experiences at these facilities.  The video has been posted on numerous pro-migrant blogs, including Standing FIRM.

*    Immigration News Daily has posted an editorial titled "No Getting Around the Wall."  The editorial, which originally appeared in La Opinión, condemns the Supreme Court for refusing to hear a challenge to the Department of Homeland Security decision to build a wall along the U.S.-Mexico border.  Numerous Arizona environmental organizations have claimed that the DHS ignored 36 environmental protection laws in deciding to construct the wall:

Once again, as in the case of the "mismatch letters" and other similar actions, the Bush Administration is trying to improvise an immigration policy without taking into account the consequences triggered, the rights violated, or the injustices committed.

Building a wall along the border is bad policy. As long as it continues, the courts have the responsibility to stop the abuse of authority that stems from its implementation.

*    Wednesday's Immigration Equality Blog posting calls attention to a USA Today story describing how U.S. citizens are suing the DHS after they were detained and interrogated by ICE workers.  The plaintiffs in the suit claim that they were subject to racial profiling and that ICE officials violated workers rights in the process of detaining people.  One immigrant worker, Jesus Garcia, was thrown in jail because of the ICE agents' "mistake":

ICE agents went to Jesus Garcia's home on April 16 in conjunction with a raid on a nearby Pilgrim's Pride poultry processing plant, where he worked marinating chicken meat. Garcia, from Mexico, has been a legal permanent resident for a year and a half. When about 10 ICE agents and local sheriff's deputies knocked on his door, they told him he was using the wrong Social Security number, says his wife, Olivia Garcia, a U.S. citizen.

Though Garcia showed the agents his green card, they handcuffed him and jailed him. He was released a day and a half later after agents told him he wasn't the person they wanted, he says. He had spent the night in jail. "He said it was pretty bad," Olivia says. "People were crying and screaming."

*    A story that appeared in Medical News Today and was initially reported by the Ventura County Star examines California Governor Arnold Schwarzenegger's decision to save $87 million in the state's Medicaid program ("Medi-Cal") by cutting funding for health care services to approximately 91,000 immigrants each month:

Immigration advocates say the cuts would prevent patients from obtaining preventive care, thus increasing emergency department visits and costs. State Assembly and Senate budget committees have voted against the proposals and other Medi-Cal changes, but state officials say they will continue to push for the cuts.

People seem to be reading this but not reccing it. Hmmmm... ;)

Via The Washington Post, the AP is reporting that the Supreme Court has struck down Washington DC's three decade-old handgun ban.

Details are still rolling in and will be posted here or at my blog as I get them. They're reporting a 5-4 decision (shocker!), and I'm guessing Roberts, Alito, Scalia, Thomas, and Kennedy.

Update 1: Just in, the decision was written by Justice Antonin "Fuck You" Scalia. Apparently the Second Amendment trumps everything else. No surprise there.

Update 2: I win! Roberts, Alito, Kennedy, and Thomas joined Scalia on the opinion. But that was too easy.

Update 3: Transcript (PDF) or oral arguments from the case. (via DKos' AdamB)

Update 4: The opinion (PDF) is now available. From SCOTUSblog:

In District of Columbia v. Heller (07-290), the Court nullified two provisions of the city of Washington’s strict 1976 gun control law: a flat ban on possessing a gun in one’s home, and a requirement that any gun — except one kept at a business — must be unloaded and disassembled or have a trigger lock in place. The Court said it was not passing on a part of the law requiring that guns be licensed. It said that issuing a license to a handgun owner, so the weapon can be used at home, would be a sufficient remedy for the Second Amendment violation of denying any access to a handgun. While the declaration of the individual right was clear-cut, as was the decision’s nullification of key parts of the Washington, D.C., law, the Court did not lay down a standard for judging the constitutionality of any other federal laws — an omission that the dissenters attacked strongly. Even so, the opinion made it clear that, whatever ultimate test emerge, it probably would be a tough one to meet, at least when self-defense is at issue. As Justice Scalia put it, whatever remains for “future evaluation” about the strength of the right, “it surely elevates above all other interests the right of law-abiding responsible citizens to use arms in defense of hearth and home.”

Update 5: Justice Kennedy's reasoning behind voting to strike down the gun ban: BEARS!

But who knew that a case testing the scope of the Second Amendment's "right to bear arms" would smoke out a secret side of Justice Anthony Kennedy? A side so intensely protective of his right to self-defense that he makes—as I count—four separate references to some mythical "remote settler" who—at the time of the framing of the Constitution—would have needed a gun to "defend himself and his family against hostile Indian tribes and outlaws, wolves and bears, and grizzlies."

Many, including me, were disappointed at Senator Obama's statement opposing the Supreme Court's ruling that child rapists could not be sentenced to death.  I see it as a tactical move to appeal to the large numbers of Americans who support the death penalty.  Now, I'm not freaking out and screaming CONCERN at the top of my lungs, but as a careful adoption of a not-so-progressive position on an issue many progressives care about, it is duly noted.

My real question is this: how do you think Sen. Obama will react to the likely outcome of D.C. v. Heller?  This case, set to come down any day now, will likely reveal the Court's never-yet expressed doctrine on the Second Amendment, and will set the rules for all gun-control efforts in the future.  Per SCOTUSblog, Heller is the only case left from its original batch, and Justice Scalia is the only justice without a majority opinion from that batch.  Not a good sign for those of us who don't favor radical reinterpretations of two hundred years of Constitutional law based on what was good policy for the matchlock muskets and devolved federal structure of 1784.

Obama's position on the Second Amendment:

Repect the Second Amendment. . . . as a former constitutional law professor, Barack Obama believes the Second Amendment creates an individual right, and he greatly respects the constitutional rights of Americans to bear arms.  He will protect the rights of hunters and other law-abiding Americans to purchase, own, transport, and use guns for the purposes of hunting and target shooting.  He also believes that the right is subject to reasonable and commonsense regulation.

Source: http://www.barackobama.com/issues/additi onal/#sportsmen (click "read the full plan.")

There's a fair amount of wiggle room in that policy position.  If the Court announces an individual right to bear arms, which seems likely, Obama will probably have to support it publicly.  The question will be the kind of "reasonable and commonsense regulation" the Court will allow--if it allows any at all.  I personally expect a somewhat broad consensus that the Second Amendment does, in fact, provide an individual right, and then a confusing mess of concurrences and dissents about exactly what kind of regulation of that right is permissible.

So, how will/should Obama play this?  Gun control, like the death penalty, is one of those issues that the great swath of Americans known as "the middle" seem to agree on: they're for it, but not too much.  My prediction is that, whatever the specifics of the holding, Obama will play to the mountain west in his response. Which I'm okay with.  I guess.

I just hope that if Scalia goes completely off the deep end and declares an untouchable, sacred right to the automatic assault rifle, Obama will speak out strongly in favor of the need for gun control.

In 1989, Exxon Mobil caused the biggest oil spill in U.S. history. The accident, which dumped 11 million gallons of oil into Alaska's Prince William Sound, caused the deaths of hundreds of thousands of marine wildlife, and caused 33,000 Alaskans to file for compensation for economic loss and punitive damages.

They are still waiting to be paid.

It seems paradoxical that, in an age where it is apparent that big oil represents an outdated form of energy supply, oil companies are still trying to rake in the big bucks. After being charged in 1994 for punitive damages, Exxon, preparing to launch a long, drawn out fight against the decision, put aside the amount they owed in a private account; now, the amount that Exxon owes essentially equals the interest that they've made from that account. Fossil fuels represent our past, not our future, so why would the Supreme court come to big oil's rescue?

In a victory for immigrants' rights, the Supreme Court handed down a decision allowing immigrants to file motions without fear of being deported for not voluntarily departing within a specific time period.  The case, Dada v. Mukasey addressed two conflicting sections of the Immigration and Nationality Act.  Section 1229c allows judges to grant immigrants who are told to deport the country permission to leave voluntarily within a specific period of time.  However, Section 1229a allows individuals to challenge a deportation order (in the event of any changed circumstances) but requires them to remain in the country while legal motions are pending.

The petitioner, Samson T. Dada, an immigrant from Nigeria, was married to an American citizen in 1999.  However, without adequate proof of marriage, the Department of Homeland Security alleged that he had overstayed his temporary immigrant visa and ordered his deportation.  An Immigration Judge granted Dada's request to voluntarily leave the country within 30 days, a decision that the Board of Immigration Appeals (BIA) affirmed.  However, two days before he was supposed to leave, Dada found conclusive proof of his marriage, withdrew his request for voluntary departure and filed a motion to reopen his removal proceedings.  The BIA denied his request, claiming that Dada had failed to depart the U.S. within the allotted time period (while ignoring Dada's withdrawal of his request to voluntarily leave).  The Fifth Circuit affirmed the BIA's decision.

Dada filed a writ of certiorari in the Supreme Court on the grounds that the Fifth Circuit Court decision contradicted other Circuit Courts that found immigrants should be able to file motions to reopen their cases, and found that their decisions to file should override their previous decision to voluntarily leave the U.S.

The Supreme Court ultimately ruled in favor of Dada, finding that immigrants must be allowed an opportunity to withdraw their request for voluntary departure (as long as they do so before the end of their allotted departure period).  

In addition, the Court articulated the inefficiencies and complications in the immigration process - Justice Kennedy said in his majority opinion:

A more expeditious solution to the untenable conflict between the voluntary departure scheme and the motion to reopen might be to permit an alien who has departed the United States to pursue a motion to reopen post departure, much as Congress has permitted with respect to judicial review of a removal order.

Much of The Opportunity Agenda's work to promote opportunity for all has been related to immigration reform.  Immigration Reform: Promoting Opportunity for All discusses the discrimination that immigrants face every day as they are treated as unequal members of society:

True opportunity requires that we all have equal access to the benefits, burdens, and responsibilities of our society. In order to fully contribute and participate in society, immigrants and the native born alike should be treated equally regardless of race, gender, religion, country of origin, and other aspects of what they look like and where they come from.  But too often immigrants are treated unfairly.

The document also emphasizes the importance of immigrants' roles in strengthening communities across America:

American communities are strengthened by immigrants from all over the world. Newcomers' economic contributions are immense, while their cultural and personal contributions improve all aspects of American life.

The Dada case addresses the importance of allowing immigrants to be full and equal members of American society.  Without having access to proper legal services, and with relentless discrimination from Courts, immigrants will continue to face barriers to achieving their full potential.

Many people have joined The Opportunity Agenda in calling for reform of the immigration process.   One of these individuals is the Seventh Circuit Judge Richard Posner - he described the U.S. immigration court system as "inadequate" and "ill-trained" in an article in The National Law Journal.

If even an established and admired judge in the U.S. is making such harsh criticisms of the immigration court system and the extent of legal remedies immigrants can seek, then it is clear it is time for the system to be reformed.  This reform cannot come fast enough; until it does, there will be more and more individuals trying to fight their way through an unjust system.

Any reform might be too late for Dada - while the Supreme Court ruled that Dada was able to withdraw his request for voluntary departure, the Court did not grant his request to reopen his removal proceedings (it remanded the case back to the lower court).  The BIA could still choose to deport him.  While Dada's case brought a victory for many U.S. immigrants, it has not yet brought him the legal right to remain in the U.S.

Our show was recorded before the shocking news about Tim Russert's death. We are tremendously saddened by the news and offer our deepest sympathies to his family.

My first diary here, so be kind. ;-)

UPDATE: Title changed to better reflect the subject matter.

I am and will always be a Hillary supporter, but I am also a realist and understand how important it is to elect a Democrat in November. Since it looks like that Democrat will be Obama, I throw my support (such as it is) behind him.

Appropriately-- especially in light of yesterday's Supreme Court decision on habeas corpus-- yesterday was Mildred Loving day, which celebrates the 1967 Supreme Court decision that legalized interracial marriage in the United States. Follow me.