April 2016 Archives

Calling All Commentary on TWC and Charter Merger

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Just yesterday, the Justice Department and Federal Communications Commission moved to allow the merger of Time Warner Cable and Charter, a $78 billion dollar deal that would have far-ranging effects on American telecommunications. The company created by this combination would be known as "New Charter," and would have unprecedented control over the nation's media.

The lawsuit, settled the same day it was filed, alleged that the merger would hurt online video distributors, or OVDs, that rely on their ability to obtain licensing for television materials. The proposed settlement precludes New Charter from "entering into or enforcing any agreement with a programmer that forbids, limits or creates incentives to limit the programmer's provision of content to one or more OVDs," and also disallows usage-based data caps. This serves to protect streaming apps and services dependent on access to video or music content.

However, even though the settlement protects OVDs, it does little to protect the general population from the anticompetitive environment this combination would create. For example, it does not address the effects New Charter's market dominance might have on over-the-air broadcast television or consumer Internet use. This omission could lead to the decreased availability of free, quality programming - but we can work to correct that oversight.

A 60-day public comment period will soon commence as the settlement is published in the Federal Register, and we at PlanetGreen encourage our readers to voice their concerns about the merger. Our opinions do matter, and can effectively preserve the airwaves as a public and free resource. All submitted comments will be posted online and made available to the U.S. District Court considering the settlement, giving regulators and the Court the added perspective of a public that will be deeply affected by their decisions.
Just yesterday, the Supreme Court denied review in Brooker v. Alabama, the Eighth Amendment case of a seventy-six year old man condemned under Alabama's "three strikes" law to life in prison on nonviolent charges. Despite compelling briefs from the petitioners and the obvious inequity of the sentencing practices, the Court chose continued inaction over a much-needed second look at our outdated, largely ineffective justice system.

This is not the first time that our nation's highest tribunal has declined to address the problem and consider all the relevant constitutional issues. However, it is still highly surprising that it would avoid the issue amid both the ongoing national debate over mandatory minimums and the changing political reality of criminal justice reform.

$150 = 50 Years


In November of 1995, an Army veteran named Leandro Andrade walked into a California Kmart store and left with five children's videotapes, which he had not paid for. Fourteen days later, he repeated the performance at another Kmart location, and was charged with shoplifting nine tapes worth, in all, roughly one hundred and fifty-three dollars. The theft of Batman and Casper is not usually worthy of much mention in the important debate over the criminal justice system, and it should never have been a major issue. After all, petty theft is a misdemeanor that usually carries only six months in jail - not two consecutive terms of twenty-five years to life, which is what Andrade got.

But he had two prior convictions on his record, and therefore was a casualty of the "three strikes" laws. These statutes impose mandatory minimum penalties on those already convicted of two felonies, no matter how trivial the third infraction is. Their proponents argue that they effectively deter habitual offenders and increase accountability for crime; but, in reality, they often result in blatantly disproportionate sentences that hinder the goal of eventually reintegrating transgressors into society.

In a later challenge, the Ninth Circuit granted relief to Andrade on the grounds that his sentence was "cruel and unusual punishment," and the Supreme Court subsequently agreed to hear the case. It appeared to be a clear-cut example of inordinate, unrealistic penal practices, and the lower court's decision was almost universally expected to stand. However, the Court chose to reverse, reasoning per Justice O'Connor that because a possibility of parole still existed (in 2046, when Andrade would be eighty-seven years old), the sentence was not "contrary to, or an unreasonable application of, clearly established Federal law" (28 U.S.C. §2254). By invoking an ordinary statute to avoid addressing a constitutional question, the Court narrowed its own ability to grant relief further, resulting in the untrammeled long-term incarceration of relatively petty offenders across the country.

However, even though the Court may have rejected the Eighth Amendment argument against mandatory sentencing, the Constitution and common-law decisions interpreting it still indicate the illegality of the practice.

Separation of Powers

Despite the ruling in Lockyer v. Andrade, the courts have always recognized that the ability of a judge to tailor the law to the facts of a case is essential to substantive justice. As Justice Holmes famously observed: "The life of the law has not been logic; it has been experience... and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics" (The Common Law, 1881). Justice Frankfurter seconded this from the bench when he called due process "the least frozen concept of our law -- the least confined to history and the most absorptive of powerful social standards of a progressive society" (Griffin v. Illinois, 351 U.S. 20-21 (1956)). Now, though, the legislature encroaches on that judicial function through its ill-considered mandatory minimum laws. Not only does this interfere with the historical procedure of the courts, but it violates the constitutional system of checks and balances.

The 1965 case of United States v. Cox concerned a U.S. Attorney threatened with contempt of court after he refused to sign an indictment, even though he was acting under the direction of then-Attorney General Nicholas Katzenbach. In a landmark decision, the Fifth Circuit Court of Appeals decided that the prosecutor was a member of the executive branch, and therefore that the contempt order unlawfully infringed upon the separation of powers (342 F.2d 167). The mandatory minimum laws have a similar effect, forcing judges to impose heavy penalties regardless of the dictates of individualized justice.

As Blackstone once noted in his Commentaries, "In all tyrannical governments the supreme magistracy, or the right both of making and of enforcing the laws, is vested in one and the same man, or one and the same body of men; and wherever these two powers are united together, there can be no public liberty." 1 B.C. 146. In today's system of compulsory inclemency, it appears that this basic tenet has been forgotten.

"Making One Year Count" for Don Blankenship

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Blankenship.jpgJust yesterday, the "Making One Year Count" movement made its social media debut. This letter-writing campaign addresses the blatant miscarriage of justice in the Don Blankenship mine explosion trial. The initiative's goal is to deliver three hundred and sixty-five letters to Blankenship during his year in prison, showing him that though the courts may have been lenient, citizens have neither forgotten the lives lost in the tragedy nor the injuries caused daily by the coal industry.

Today, I made my contribution to this endeavor:


Dear Mr. Blankenship,

Whatever words I can write on this page feel pitifully insufficient, to say the least, but in honor of those your negligence killed, those still alive but suffering daily from the hurting you caused, and those living in a country pained by pollution and the injurious practices of your industry as a whole, I have to try.  It's the most I can do to send you a letter like this one, and hope that you get three hundred and sixty-four more reminders of what justice truly is and should have been in your case. I am going to start by reminding you of something else: that if things had been different, and you had been one of the unlucky ones, compelled by the basic necessity to provide for oneself to descend into your Tartarean "workplaces," you probably would have received four hundred and thirty-five times what you did get (fifteen years, the penalty for manslaughter, multiplied by twenty-nine counts).

But even that isn't a victory, except in the hollowest sense. And maybe that's enough for you, but somehow I doubt it. Because even after you do return to the outside world, you will sometimes unavoidably think back on everything that happened. The last time somebody tried to caution you, and you brushed them off and went back to business as usual. The explosion you could have prevented at marginal cost to your company. The twenty-nine people whose dreams of a better life were powerful enough to send them into your mines, whose dreams will now never be realized. The families and friends of the killed, everyone who had grown accustomed to having them around. Somehow, I just don't believe you'll always be able to smirk at all that.

When I was reading about your trial, it called to mind another case that took place in Idaho over a hundred years ago. You may know about it. It was the trial of William "Big Bill" Haywood, a labor leader of the Western Federation of Miners. He was unfairly framed by the mining interests with the murder of Frank Steunenberg, and represented against those charges by Clarence Darrow. Anyway, the passage of Darrow's summation that reminded me of you goes like this:

"But, gentlemen, he and his mother, his wife and his children are not my chief concern in this case. If you should decree that he must die, ten thousand men will work down in the mines to send a portion of the proceeds of their labor to take care of that widow and those orphan children, and a million people throughout the length and the breadth of the civilized world will send their messages of kindness and good cheer to comfort them in their bereavement. It is not for them I plead.

Other men have died, other men have died in the same cause in which Bill Haywood has risked his life, men strong with devotion, men who love liberty, men who love their fellow men have raised their voices in defense of the poor, in defense of justice, have made their good fight and have met death on the scaffold, on the rack, in the flame and they will meet it again until the world grows old and gray. Bill Haywood is no better than the rest. He can die if die he needs, he can die if this jury decrees it; but, oh, gentlemen, don't think for a moment that if you hang him you will crucify the labor movement of the world.

Don't think that you will kill the hopes and the aspirations and the desires of the weak and the poor, you men, unless you people who are anxious for this blood--are you so blind as to believe that liberty will die when he is dead? Do you think there are no brave hearts and no other strong arms, no other devoted souls who will risk their life in that great cause which has demanded martyrs in every age of this world? There are others, and these others will come to take his place, will come to carry the banner where he could not carry it."

This year will soon be through, and this tragic story will be consigned to the casebooks alongside Haywood's. But long after both of us are forgotten, that century-old devotion will still be there, because you can't kill solidarity. You should know that better than I do, actually. I've never tried.

Before you can finally put me down and go back to what you were doing, I want to say one thing more. I believe in justice, but I am not the vengeful sort. I never have wanted to see a man killed, whether by a misguided criminal or by the state. That's the chief irony: for all the technical defenses you concocted and resources you invested in the attempt to thwart a single prosecution, you cannot say that for yourself. Those miners' only crime was in being poor, having to make a living for themselves from the earth with their own hands, and yet in your Upper Big Branch that was a capital offense.

Think about that.

Sincerely,
Katrianna Brisack

Our earlier coverage of the case, both a historical perspective on the issues and an announcement of the verdict, can be found here.

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This page is an archive of entries from April 2016 listed from newest to oldest.

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