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The Bureau Of Prisons’ Failure To Properly Implement The Second Chance Act Of 2007
Have They Become Too Autonomous?
A Position Paper from The MPM Group, Inc.
As of this writing, there are approximately 200,000 people being confined by the United States Bureau of Prisons (BOP), a component of the Department of Justice (DoJ). Their offenses span the spectrum from high treason, terrorism, or murder - to the more mundane like poaching deer on federal land. Interestingly, official government records will confirm that a majority of federal inmates are non-violent and non-weapon offenders that are incarcerated for comparatively low security violations, minor drug offenses, or white-collar related offenses. Nonetheless, the debate rages on how to reduce the federal prison population and, in turn, reduce the $5.53 billion (yes, that’s a “B”) BOP budget that was approved for fiscal year (FY) 2009.
In an effort to facilitate a federal inmate’s return to society, reduce inmate recidivism, and bring the federal prison population to manageable levels, U.S. Congressman Danny Davis (D-IL) introduced House Resolution 1593 (H.R. 1593) in 2007. It was signed by President Bush, became Public Law 110-199 on April 9, 2008, and it became known as The 2nd Chance Act of 2007. In addition to its many Sections offering funding mechanisms for inmate re-entry programs, The 2nd Chance Act also increased a federal inmate’s previous 6-month maximum allowed in a Residential Re-entry Center (RRC), commonly referred to as a Halfway House, to a maximum of 12-months. The thought of course being, it would immediately reduce federal prison levels by allowing worthy non-violent offenders an opportunity to return to society, become gainfully employed, start paying income taxes, begin paying restitution to any victims, and most importantly, start supporting their own families. However, despite the intent of The 2nd Chance Act of 2007, and the logic that accompanied it, the BOP has again apparently decided to “implement” this very worthwhile Congressional mandate in the same cavalier manner that they handle most of the other ineffectual political or judicial attempts to “dictate policy” to BOP upper management - they simply ignore it. Consequently, prison populations are still increasing and American taxpayers continue to fund the $25,000 to $35,000 annual fee it reportedly requires to house each federal inmate.
How did we get to where we are today? Arguably, it was precipitated by the knee-jerk reaction of a few elected officials in their politically motivated, albeit failed, attempt to address the rise in violent drug related crimes that were proliferating our city streets during an election year. (Why does the rush to pass The Patriot Act come to mind?) As a direct result, The Sentencing Reform Act of 1984 and The Comprehensive Crime Control Act of 1984 (the Acts) overhauled the federal sentencing system and revised bail and forfeiture procedures along with other federal practices. They also abolished federal parole and mandated minimum-mandatory sentences for any federal offense. Consequently, this political faux pas took all sentencing discretion away from federal judges and began filling our federal prison system with a majority of non-violent offenders with no possible way for them to be prematurely released. Indeed, federal defendants could (and still can) be assured that they would serve at least 85% of any sentence they received - no matter how innocuous their offense might have been. Furthermore, should one consider that more than 94% of all infrastructure labor support (repair, landscaping, maintenance, kitchen, etc.) at BOP facilities is conducted by federal inmates, why would the BOP be in any hurry to release their 12-cents an hour labor force or tamper with their revenue generating UNICOR business interests? It might also explain why they refuse to honor the Congressionally mandated “good-time” provision for federal inmates and continue to drag that issue through the federal courts. We would suggest that you don’t have to be a Wharton School graduate to conclude that the BOP currently enjoys the luxury of having a very large number of ” not-so-bad” bad guys doing the lion’s share of the work required to incarcerate a much smaller number of “truly-bad” bad guys.
From 1984 until today, the BOP has been demonstrating what can only be described as a consistent and conscious attempt to move farther and farther away from any accountability to Congress, federal judges, or anyone else for that matter. Initially supported by elected officials (who always seem to be working on their re-election), coupled with the oft-times well-deserved national hysteria of crime victims, the BOP has been allowed to create their own little fiefdom within the DoJ and now appear to be enjoying unprecedented powers and an autonomy or an “institutional arrogance,” if you will, that has heretofore been reserved for the likes of the Federal Bureau of Investigation (FBI), who coincidentally, also happen to be a component of the DoJ.
Although pretty much “neutered” in sentencing matters by the Acts of 1984, some federal judges mistakenly believed that they remained sacrosanct in their own courtrooms. In fact, some even had the temerity to suggest that judicial recommendations to the BOP on defendant designations, rehabilitation treatments, and other issues delineated within the court’s Judgment & Commitment Orders should be honored. Several subsequent cases to include the First Circuit case, United States v. Dennis Guerette (District of Maine Docket CR-03-95-B-W) nipped that presumptuous thought in the bud,
”…..[d]ecisions to place a convicted defendant within a particular treatment program or a particular facility are decisions within the sole discretion of the Bureau of Prisons. United States v. Melendez, 279 F.3d 16, 18 (1st Cir. 2002) (per curiam), cert. denied, 535 U.S. 1120 (2002) (quoting Thye v. United States, 109 F.3d 127, 130 (2d Cir. 1997)). A sentencing court’s recommendation to the BOP is both “non-binding” and “non-reviewable and its failure to recommend is similarly ‘non-appealable.’ Id”
In these days of economic uncertainty and Congressional oversight into anything with a financial pulse, one can only imagine how far “below-the-radar” the BOP must be operating - or are they? Notwithstanding various credible and well-publicized allegations, multiple state/federal investigations, and subsequent contracting fraud indictments targeting various business associates, Keefe Group of St. Louis has consistently been awarded the extremely lucrative contract within the BOP to supply food stuffs to all the BOP prison commissaries throughout the United States. Contracts that stand to earn several million dollars in annual profits, yet when questioned about these well-documented contracting improprieties or, at the minimum, the appearance of an egregious conflict-of-interest, the consistently unflappable BOP continues business as usual. Interestingly, the same reaction they have when asked to explain why they charge indigent federal inmates and/or their families more than seven times the average cost of a telephone call from a federal penal facility. A long distance telephone service contract that is being awarded with about the same transparency as the Keefe Group contract. Little wonder why BOP Correctional Officers can find more cell phones in a minimum-security federal prison camp than a college sorority house.
Speaking of bidding on contracts, how about the even more lucrative BOP medications contracts that have been consistently awarded to McKesson Corporation. A company that has been investigated by both the Department of Justice (various U.S. Attorneys Offices) as well as the Drug Enforcement Administration, eventually leading to some high-ranking executives being federally indicted. In fact, one May 2008, incident in the District of Maryland required McKesson to pay the government a $13-million dollar fine for among other things, “…allegations that it violated federal reporting provisions relating to the sale of certain prescription medications.” Sounds suspiciously like an articulate way of saying they were “selling dope.” In any event, such minor indiscretions never dissuaded the BOP contracting officers from continuing to award extremely lucrative contracts for McKesson to provide “generic” medications for federal inmates and do so even while these various federal investigations were still being conducted. Due to limited space here, we won’t even open the “Pandora’s Box” of BOP Government Purchase Orders (GPO) - Duraskin Gloves from Indonesia, T-shirts from Pakistan, Hypard products from China, Gildan merchandise from Honduras, cloth and other products from Vietnam and Mexico. Are we, as American taxpayers, to understand that our American factory workers are incapable of manufacturing a single item that the BOP can use or does the BOP simply not have any credible government contract oversight? Indeed, any oversight at all?
In addition to these head-scratchers, should the opportunity ever present itself, we would certainly make ourselves available to discuss the mass removal of heretofore well-qualified contract medical officers from the BOP, many of whom were replaced by much lower paid graduates from “lesser known” medical schools and, in some cases, even replaced by Physician’s Assistants (PA) and/or Emergency Medical Technicians (EMT). The recent and arbitrary discontinuation of any kind of medically acceptable and/or effective pain medication from the BOP Formulary - replacing them exclusively with Gabapentin (Neurotin). The infamous and well-traveled BOP “spider” that has apparently bit every BOP inmate that has ever contracted MRSA inside a BOP facility, the recent unexplained deaths of incarcerated inmates in West Virginia and Texas from something other than prison violence, the recent riots in Texas BOP facilities. Lastly, of specific interest to us would be a detailed BOP senior management accountability of revenues generated by the BOP from reduced/unpaid inmate salaries, inmate TRULINC and copier fees, re-cycling contracts, UNICOR profits, inmate commissary and long distance telephone profits, monies saved from “low-bid” food purchases - all the while failing to backfill several vacant positions causing the understaffing of the more violent BOP facilities thus, exposing the remaining overworked and underpaid Correctional Officers to more than usual violence that is usually encountered in those specific facilities. The list of “Talking Points” could go on and on, but we have limited time/space and we digress. Therefore, back to The 2nd Chance Act of 2007.
In order to comply with implementation requirements set forth in The 2nd Chance Act language, Federal Register, Volume 73, No. 204, pp. 62440-62443, the BOP set forth their policy to implement The 2nd Chance Act of 2007. Of specific interest was Section 570.21, wherein the BOP delineated the maximum of 12-months of RRC time a federal inmate was permitted under the Act. However, even a cursory review of the policy will confirm the BOP’s usual practice of leaving enough policy “wiggle room” that the benefits afforded by the Act can neither be implemented uniformly throughout the BOP nor can the BOP ever be held legally accountable for their failure to do so. Indeed, as one Washington insider once opined about a similar situation, “It was one of those Washington assertions that is simultaneously accurate and deceptive and just confusing enough to defy opposition.” Resultantly, every Warden and/or every Regional Director within the BOP would now appear to have the unilateral authority to dictate how much Halfway House time an inmate in their facility should receive. Consequently, you have inmates receiving 10-months in one facility and another more deserving candidate receiving less than 3-months in another. We would respectfully suggest that this type of “selective” policy implementation was not what Congressman Davis intended when he drafted the Act in 2007.
That said, nobody can argue that the BOP rank and file do an outstanding job in a dangerous and thankless job. Indeed, given the nature of the mission and the type of dangerous individuals involved, the federal penal system is unquestionably one of the best in the world. Best selling author John Grisham confirmed as much when he suggested in his best selling novel The Brethren, “If you have to do time - do federal time.” However, notwithstanding our admiration for the work of the BOP correctional cadre, we will continue to encourage debate about the wisdom of our elected officials passing laws or policies and then delegating the authority to implement (and adhere to) that policy to the very agency management officials that the policies are designed to govern. Indeed, after The Patriot Act was passed, FBI agents, as well as other government entities, were admittedly monitoring privileged electronic communications and throwing around National Security Letters and Administrative Subpoenas with little (actually, none whatsoever) regard for the “spirit-of-the-Act” or individual civil rights. Today, with the BOP and The Second Chance Act of 2007, “It’s Déjà Vu all over again.” Even last ditch Congressional inquiries from family members, friends, or lawyers are usually being handled by the lowest ranking aide in the Congressman’s office and done so usually as a vexatious collateral duty. This 20-something intern will no doubt get a response back from a well-versed and politically savvy BOP Congressional liaison who appeases them (and their inexperience) with a some type of in-the-can generic form letter or email response marked “High Priority,” “Sensitive,” or some other impressive heading, yet lacks any semblance of a meaningful response to the initial question.
Should we point fingers, the BOP’s ability to develop such unprecedented (and apparently unchecked) power can partially fall directly on the shoulders of certain federal inmates who were “amused to abuse” the legal process by filing repeated and frivolous complaints and/or torts claims. Conduct that eventually facilitated the strict implementation of both the Prison Litigation Reform Act (PLRA) and the Federal Tort Claim Act (FTCA). As a result, every inmate is now relegated to filing everything through the labor intensive and intentionally time consuming BOP Administrative Remedy Process. Unfortunately, despite the purpose of this Process, it would appear that BOP management has now, yet not surprisingly, developed the Administrative Remedy Process into their own self-managed and personally supervised shell game to hide and delay formal responses to inmates - or any other outside inquiries for that matter. In fact, they have turned it into an art form and, wait for it, there is no appeal, other than filing another tort claim. We know, George Orwell couldn’t make this stuff up.
In conclusion, how do we properly and uniformly implement The 2nd Chance Act of 2007, and do so in the spirit for which it was developed? Actually, it’s relatively simple, we need to develop an outside oversight committee for the BOP. A group of individuals that are tasked and empowered with the authority to ensure that BOP senior management properly runs this massive government “cash cow” and does so in full and transparent compliance with Congressional and judicial mandates. Has anyone on Capitol Hill ever read Lord Acton?
However, as comedian Dennis Miller would say, “This is just our opinion, we may be wrong.” The MPM Group, Inc. are nationally recognized and court adjudicated experts in complex litigation support, sentence mitigation issues, and federal prison advocacy isues. They can be reached at www.TheMPMGroup.com.
Destroying Indigenous Populations
by Dahr Jamail
June 22nd, 2009 T r u t h o u t
The Fort Laramie Treaty once guaranteed the Sioux Nation the right to a large area of their original land, which spanned several states and included their sacred Black Hills, where they were to have “the absolute and undisturbed use and occupation” of the land.
However, when gold was discovered in the Black Hills, President Ulysses S. Grant told the army to look the other way in order to allow gold miners to enter the territory. After repeated violations of the exclusive rights to the land by gold prospectors and by migrant workers crossing the reservation borders, the US government seized the Black Hills land in 1877.
Charmaine White Face, an Oglala Tetuwan who lives on the Pine Ridge Reservation, is the spokesperson for the Teton Sioux Nation Treaty Council (TSNTC), established in 1893 to uphold the terms of the Fort Laramie Treaty of 1868. She is also coordinator of the voluntary group, Defenders of the Black Hills, that works to preserve and protect the environment where they live.
“We call gold the metal which makes men crazy,” White Face told Truthout while in New York to attend the annual Permanent Forum on Indigenous Issues at the United Nations in late May. “Knowing they could not conquer us like they wanted to … because when you are fighting for your life, or the life of your family, you will do anything you can … or fighting for someplace sacred like the Black Hills you will do whatever you can … so they had to put us in prisoner of war camps. I come from POW camp 344, the Pine Ridge Indian Reservation. We want our treaties upheld, we want our land back.” Most of the Sioux’s land has been taken, and what remains has been laid waste by radioactive pollution.
“Nothing grows in these areas - nothing can grow. They are too radioactive,” White Face said.
Although the Black Hills and adjoining areas are sacred to the indigenous peoples and nations of the region, their attempts at reclamation are not based on religious claims but on the provisions of the Constitution. The occupation of indigenous land by the US government is in direct violation of its own law, according to White Face.
She references Article 6 of the U.S. Constitution: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
The spokesperson for the TSNTC declares, “We need our treaty upheld. We want it back. Without it we are disappearing. They might have made us into brown Americans who speak the English language and eat a different kind of food, and are not able to live with the buffalo like we are supposed to, but that is like a lion in a cage. You can feed it and it will reproduce, but it is only a real lion when it gets its freedom and can be who it’s supposed to be. That’s how we are. We are like that lion in a cage. We are not free right now. We need to be able to govern ourselves the way we did before.”
Delegations from the TSNTC began their efforts in the United Nations in 1984 after exhausting all strategies for solution within the United States.
Homeland Contamination
There is uranium all around the Black Hills, South and North Dakota, Wyoming and Montana. Mining companies came in and dug large holes through these lands to extract uranium in the 1950’s and 1960’s prior to any prohibitive regulations. Abandoned uranium mines in southwestern South Dakota number 142. In the Cave Hills area, another sacred place in South Dakota used for vision quests and burial sites, there are 89 abandoned uranium mines.
In an essay called “Native North America: The Political Economy of Radioactive Colonialism,” political activists Ward Churchill and Winona LaDuke state that former US President Richard Nixon declared the 1868 Treaty Territory a “National Sacrifice Area,” implying that the territory, and its people, were being sacrificed to uranium and nuclear radiation.
The worst part, according to White Face, is that, “None of these abandoned mines have been marked. They never filled them up, they never capped them. There are no warning signs … nothing. The Forest Service even advertises the Picnic Springs Campground as a tourist place. It’s about a mile away from the Cave Hills uranium mines.”
The region is honeycombed with exploratory wells that have been dug as far down as six to eight hundred feet. In the southwestern Black Hills area, there are more than 4,000 uranium exploratory wells. On the Wyoming side of the Black Hills, there are 3,000 wells. Further north into North Dakota, there are more than a thousand wells.
The Black Hills and its surroundings are the recharge area for several major aquifers in the South Dakota, Nebraska, and Wyoming regions. The crisis can be gauged from the simple description that White Face gives: “When the winds come, they pick up the [uranium] dust and carry it; when it rains or snows, it washes it down into the aquifers and groundwater. Much of this radioactive contamination then finds its way into the Missouri River.”
She informs us that twelve residents out of about 600 of the sparsely populated county of Cave Hills have developed brain tumors. A nuclear physicist has declared one mine in the area to be as radioactively “hot” as ground zero of Hiroshima.
Red Shirt, a village along the Cheyenne River on the Pine Ridge Indian Reservation, has had its water tested high for radiation and local animals have died after consuming fish from the river.
After three daughters of a family and their mother died of cancer, a family requested White Face to have the municipal water tested. The radiation levels were found to be equal to those inside an x-ray machine. Little wonder then that the surviving sons and their father are afflicted with the disease. People procuring their grain and cattle from the region are advised to be extra cautious.
One cannot but feel the desperation of her people when White Face bemoans, “It’s pure genocide for us. We are all dying from cancer. We are trying not to become extinct, not to let the Great Sioux Nation become extinct.”
The Ogala Sioux are engaged in ongoing legal battles with the pro-uranium state of South Dakota. They are aware of the unequal nature of their battle, but they cannot afford to give up. White Face explains how “… Our last court case was lost before learning that the judge was a former lawyer for one of the mining companies. Also, the governor’s sister and brother-in-law work for mining companies [Powertech] and a professor, hired by the Forest Service to test water run-off for contamination, is on contract with a company that works for the mining company. When I found out the judge was a lawyer for the mining company I knew we would lose, but we went ahead with the case for the publicity, because we have to keep waking people up.”
Other tribes, such as the Navajo and Hopi in New Mexico, have been exposed to radioactive material as well. Furthermore, the July 16, 1979, spill of 100 million gallons of radioactive water containing uranium tailings from a tailing pond into the north arm of the Rio Puerco, near the small town of Church Rock, New Mexico, also affected indigenous peoples in Arizona.
Her rage and grief are evident as White Face laments, “When we have our prayer gatherings we ask that no young people come to attend. If you want to have children don’t come to Cave Hills because it’s too radioactive.”
The exploitative approach to the planet’s resources and peoples that led to these environmental and health disasters collides with White Face’s values: “I always say that you have to learn to live with the earth, and not in domination of the earth.”
Nuking the Colonies
The US government practices another approach. In occupied Iraq and Afghanistan, the uranium that has caused genocide of sorts at home has proceeded to wreak new havoc.
Two Iraqi NGO’s, the Monitoring Net of Human Rights in Iraq (MHRI) and the Conservation Center of Environment and Reserves in Fallujah (CCERF) have extensively documented the effects of restricted weapons, such as depleted uranium (DU) munitions, against the people of Fallujah during two massive US military assaults on the city in 2004.
In March 2008, the NGO’s were to present a report titled “Prohibited Weapons Crisis: The effects of pollution on the public health in Fallujah” to the 7th Session of the United Nations Human Rights Council
Muhammad al-Darraji, director, MHRI and president, CCERF, was to present the report with an appeal, “We are kindly asking the High Commissioner for Human Rights to look at the content of the report in accordance with the General Assembly’s resolution 48/ 141 (paragraph 4) of 20 December 1993, to investigate the serious threat (to the) health right in Fallujah and Iraq, and to relay the results of this investigation to the Commission on Human Rights to take the suitable decisions.”
Attached to the aforementioned is another report co-authored by Dr. Najim Askouri, a nuclear physicist trained in Britain and a leading Iraqi nuclear researcher and Dr. Assad al-Janabi, director of the Pathology Department at the 400-bed public hospital in Najaf. Their report includes a section on the “Depleted Uranium Crisis” from Najaf, 180 miles from where DU was used in the First Gulf War.
Dr. Najim begins the report by noting that Coalition Forces, mostly US, used 350 tons of DU weapons in about 45 days in 1991, primarily in the stretch of Iraq northwest of Kuwait where Iraqi troops were on their retreat. Then, in 2003, during the Shock and Awe bombing of Baghdad, the US used another 150 tons of DU. He says that cancer is spreading from the conflict area as a health epidemic and will only get worse. The cancer rate has more than tripled over the last 16 years in Najaf.
According to Dr. Najim, “When DU hits a target, it aerosolizes and oxidizes, forming a uranium oxide that is two parts UO3 and one part UO2. The first is water soluble and filters down into the water aquifers and also becomes part of the food chain as plants take up the UO3 dissolved in water. The UO2 is insoluble and settles as dust on the surface of the earth and is blown by the winds to other locations. As aerosolized dust, it can enter the lungs and begin to cause problems as it can cross cell walls and even impact the genetic system.”
One of Dr. Najim’s grandsons was born with congenital heart problems, Down Syndrome, an underdeveloped liver and leukemia. He believes that the problems are related to the child’s parents having been exposed to DU.
Detailing a skyrocketing rate of cancer and other pollution-related illnesses among the population of Fallujah since the two sieges, the report states, “Starting in 2004 when the political situation and devastation of the health care infrastructure were at their worst, there were 251 reported cases of cancer. By 2006, when the numbers more accurately reflected the real situation, that figure had risen to 688. Already in 2007, 801 cancer cases have been reported. Those figures portray an incidence rate of 28.21 [per 100,000] by 2006, even after screening out cases that came into the Najaf Hospital from outside the governorate, a number which contrasts with the normal rate of 8-12 cases of cancer per 100,000 people.
“Two observations are striking. One, there has been a dramatic increase in the cancers that are related to radiation exposure, especially the very rare soft tissue sarcoma and leukemia. Two, the age at which cancer begins in an individual has been dropping rapidly, with incidents of breast cancer at 16 (years of age), colon cancer at 8 (years of age), and liposarcoma at 1.5 years (of age).” Dr. Assad noted that 6 percent of the cancers reported occurred in the 11-20 age range and another 18 percent in ages 21-30.
“The importance of this information confirms there is a big disaster in this city…. The main civilian victims of most illnesses were the children, and the rate of them represents 72 percent of total illness cases of 2006, most of them between the ages of 1 month and 12 years…. Many new types and terrible amounts of illnesses started to appear [from] 2006 until now, such as Congenital Spinal cord abnormalities, Congenital Renal abnormalities, Septicemia, Meningitis, Thalassemia, as well as a significant number of undiagnosed cases at different ages. The speed of the appearance these signals of pollution after one year of military operations refers to the use of a great amount of prohibited weapons used in 2004 battles. The continued pollution maybe will lead to a genetic drift, starting to appear with many abnormalities in children, because the problems were related to exposure of the child’s parents to pollution sources and this may lead to more new abnormalities in the f uture. According to the security situation with many checkpoints and irregular cards to allow the civilians to enter or exit the city until now, all this helps to continue the terrible situation for this time. Therefore, we think that all these data is only 50 percent of the real numbers of illnesses.”
The Sioux tell their youth to avoid their radioactive native lands if they wish to procreate and prosper. Those in Iraq have no option but to lead maimed lives in their native land.
On February 4, 2009, Muhammad al-Darraji sent President Barack Obama a letter, along with the aforementioned report. A few excerpts are presented here:
“We have the honor to submit with this letter our report on the effects on public health of prohibited weapons used by the United States during its military operations in Fallujah (March-November 2004). It was our intention to present the report to the Human Rights Council of the United Nations on 4 March 2008, but both security and political reasons played a significant role in making this task impossible. The report, now in your hands, contains vast evidence and documentation on the catastrophic and continuous pollution in Iraq (to prevent) which nobody has taken any real action to help the victims or clean up polluted places. Some months ago, and in June 2008, I sent this report directly to some US congressmen. Two of them went to my town, Fallujah, and visited the general hospital to investigate the claims contained in our report. No substantial result came out of this visit. In February 2009 one of my colleagues, who worked in the hospital’s statistical office and helped gather information about the pollution, was killed by unknown individuals. The blood of my friend is the driving force that led me to write to you directly in order for you to release the facts for which my friend paid with his life. Therefore, we are kindly asking you to look at the content of the attached report and to investigate the serious threats to the right to life of the inhabitants of Fallujah and other polluted places in Iraq, as well as to publicly release the results of this investigation under right of information about what really happened in Iraq.”
The president has yet to respond.
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http://dahrjamailiraq.com/destroying-indigenous-populations
Jason Coppola and Bhaswati Sengupta contributed to this article.
Court rules for defendants on crime lab reports
The Associated Press
Thursday, June 25, 2009 12:58 PM
WASHINGTON -- The Supreme Court said Thursday that criminal defendants have a constitutional right to cross-examine the forensic analysts who prepare laboratory reports on illegal drugs and other evidence used at trial.
The court ruled 5-4 for a defendant who was convicted of cocaine trafficking, partly because of crime lab analysis.
Luis Melendez-Diaz challenged lab analysis that confirmed cocaine was in plastic bags found in the car he was riding in. Rather than accept the report, Melendez-Diaz said he should be allowed to question the lab analyst about testing methods, how the evidence was preserved and other issues.
Massachusetts courts rejected his arguments.
Justice Antonin Scalia, writing for the high court, said Melendez-Diaz has a constitutional right to confront the lab analyst.
Many states had argued that drug prosecutions would be slowed significantly if prosecutors had to make lab analysts available on a routine basis. Crime labs analyzed 1.9 million substances in following drug arrests in 2006, according to a court filing by 35 states.
About 20 states, including California, do give defendants some right to cross-examine lab employees about forensic evidence.
"Perhaps the best indication that the sky will not fall after today's decision is that it has not done so already," Scalia said. Many defense lawyers and their clients would just as soon not call added attention to evidence, he said.
But in dissent, Justice Anthony Kennedy said Scalia misunderstood how criminal trials work.
He predicted that criminal defense lawyers will accept the risk that the testimony will prove even more damaging to their clients on the chance the analyst isn't available to testify "and the government's case collapses."
The case produced unusual alliances. Scalia attracted the votes of Justices Ruth Bader Ginsburg, David Souter, John Paul Stevens and Clarence Thomas.
Joining Kennedy in dissent were Chief Justice John Roberts and Justices Samuel Alito and Stephen Breyer.
The case is Melendez-Diaz v. Massachusetts, 07-591.
Mobilizing the international community
Originally printed at http://www.indiancountrytoday.com/opinion/editorials/49178372.html
Contemporary indigenous rights are heavily dependent on international support. Over the past decades, indigenous groups have worked hard to bring their human rights and indigenous issues before the United Nations and international community. When national and international communities understand the history and context of indigenous land, political and human rights there is often good support.
Recent events in Peru illustrate the type of conflict over land, consultation, and differences in perspective that confront indigenous peoples throughout the world. Over the past several years in Peru, the government pressed ahead with measures to promote quick oil and gas development covering 70 percent of the Peruvian Amazon. Nine special bills were passed by the Peruvian Congress, some that set aside the Peruvian Constitution, and were designed to speed up oil and gas development and facilitate the implementation of the Free Trade Agreement with the United States. The kinds of issues the Peruvian indigenous peoples were exposed to are found almost everywhere there are indigenous peoples.
The new fast development plan, however, did not include consultation with the indigenous peoples of Peru. Indigenous peoples of the Amazon did not oppose the development of oil and gas in their region, but wanted to have access to planning and decision making. The Peruvian indigenous peoples wanted development in a way that preserved their claims to land, respected their culture, and which benefitted their future generations and ensured the continuity of their communities.
For the past 80 days, a coalition of indigenous Peruvian Amazonian peoples created a blockade that stopped transportation and commerce in the region. On June 5, the Peruvian government sent troops to clear protesters, and violence erupted where both policemen and indigenous protesters were killed, and many wounded in the conflict. The deaths reached the attention of the Peruvian national press and the international community. On June 11, national protests in support of the indigenous position were held in the major cities of Peru. Many human rights organizations and environmental groups that work in the Amazon alerted the international community and press, and there was a large outpouring of support for the indigenous protestors.
Last week the Peruvian Congress voted to suspend two of the nine measures for rapid oil and gas development, and the Peruvian government decided to initiate negotiations. The leaders of the Peruvian indigenous organizations hailed the change in government policy as a landmark day, and hoped that in the future the government will listen to the voice of indigenous communities and “not legislate behind their backs.”
While the Peruvian Congress and government have the sharp focus of the national and international community upon their actions, the government was willing to make some concessions, which was the 90-day suspension of two acts that were already marked as violating the Peruvian Constitution. The indigenous peoples need full rescinding of the two acts and full discussion about the remaining seven Peruvian Congressional Acts that are still on the books.
During the crisis, the indigenous organizations and communities showed Peruvian national identity and loyalty to the country of Peru. Indigenous leaders lamented the deaths of the police officers, who were fellow citizens. The indigenous peoples were not arguing for separation from the people or state of Peru, but wanted their voices respected, their lands preserved, and their way of life and future as indigenous peoples sustained and recognized through government action and legislation.
The temporary suspension of two doubtful measures is designed to introduce a cooling off period. Now, the Peruvian government and indigenous communities and organizations need to develop a dialogue, one that should have existed already for many years. There are no guarantees that the Peruvian government will accommodate indigenous cultural, territorial and political needs.
The kinds of issues the Peruvian indigenous peoples were exposed to are found almost everywhere there are indigenous peoples. In the past, national governments did not have any checks on the power that was exerted over indigenous human rights, culture and political autonomy. The international civil society has emerged as a place for discussion of indigenous rights, but takes action on a crisis by crisis basis. It has been very difficult for indigenous communities to establish ongoing and institutionalized consensual discussions over issues and rights. The international community should turn its attention to establishing ongoing national and international dialogues over recognition of indigenous peoples and discussions of their rights.
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