Those of you following the recent developments in sentencing law generated by the recent decisions of the Supreme Court should check in over at the Indiana Law Blog. Marcia Oddi has produced “Part I. Overview of Blakely in the 7th Circuit Courts,” an excellent start for review of these issues.

Also of interest on this issue and related issues is the Capital Defense Weekly, the Death Penalty Information Center, the Sentencing Project, Punishment Theory, Sentencing Law and Policy, and Criminal Appeal.

The Muncie Star Press reports today about the poor state of Indiana management of its waterways:

Indiana ranks 48th in the country in establishing pollution limits for impaired rivers and streams.

The state has identified more than 1,100 impaired rivers and streams, but it has developed Total Maximum Daily Loads (TMDLs) for only 15 of those rivers, according to the U.S. Environmental Protection Agency.

The article lists some local rivers that are “impaired.”

When a parent is having trouble living up to the legal obligations of being a parent (not paying support or neglecting/abusing the child), people in the “system” hope that the parent does not do something to make the situation worse. When a parent is struggling with their obligations to the children they have, the last thing they need is another child. I have been involved in many situations that just seem incredible. Parents who are struggling to support the kids they have out there, turning around and producing more.

I was once involved with a case where the state was moving to terminate the rights of a mother in her three children. By the time the matter was all the way through court, and the appeals process, the mother had lost her rights in the three kids, but she had one more already, and another on the way. When courts are faced with people who just cannot reasonably be expected to provide for another child, the urge is to stop them before they bring another life into being.

At least one court as offered a father a choice between jail and castration when he repeatedly failed to pay child support. So far, most efforts to come up with a physical solution to people’s trouble with their children has not faired well in the higher courts. These efforts run into the right to procreate, which has been designated as a right under the US constitution. The federal courts have recognized some limitation on the right to procreate. The Ninth Circuit held that a prisoner did not have the right to procreate by Fedex during his term of incarceration. (Gerber v. Hickman, 291 F.3d 617 (9th Cir. 2002)).

The Ohio Supreme Court is being asked to review a trial court’s order in a criminal case directing a father to refrain from having any more kids for the next five years. NPR had a story on this this morning, and the Cleveland Plain Dealer has more extensive coverage:

Sean Talty, according to court records, isn’t sure how many kids he has fathered.

Six for sure. Probably seven.

But his lawyer, J. Dean Carro, is certain of one thing: A judge’s order requiring Talty to make “all reasonable efforts” not to have more is unconstitutional.

The Ohio Supreme Court will weigh today the unusual sentence that Medina County Judge James Kimbler imposed on Talty for failing to pay child support.

Talty, 32, who installs windows and siding, is more than $30,000 behind in support for three daughters he fathered with two women, including an ex-wife. He has made regular payments since Kimbler’s decision.

Talty, who has fathered children by five women, also owes support in Butler, Summit and Wayne counties.

Carro and prosecutors agree that reproduction is a fundamental right protected by the Constitution, but they differ over a judge’s authority to curtail it.

The Indianapolis Star carries a story today highlighting a big downside to the “stop loss” orders being used to keep soldiers in their units longer than the expected tour. Clearly, if you sign up, you are told that stop loss is a possibility, so when it occurs, you really have nothing to complain about. However, being hit with a stop loss order appears likely to make you not want to reenlist:

JASPER, Ind. — Almost two-thirds of Indiana National Guardsmen in a battalion that spent a year in Iraq chose not to re-enlist when their service time expired.

Over the past 21 months, the service contracts of 102 soldiers in the 1st Battalion of the 152nd Regiment expired. Of those, 32, or less than one-third, chose to re-enlist.

The unit typically keeps 85 percent of its members, a sergeant in charge of retaining members said.

Before the war, the unit had 650 members. Now the regiment headquartered about 40 miles northeast of Evansville has about 530 soldiers left, The Herald reported in a story today.

In early 2003, 610 of the members were deployed to Iraq.

“That one big word, ‘deployment,’ has done more damage than anything,” said Sgt. 1st Class Gary Love, who is in charge of convincing soldiers to stay.

“What killed us was the stop-loss,” Love said. “There wasn’t a whole lot we could do.”

The Defense Department has been taking numerous steps to keep enlistment up during the Iraq conflict, included issuing a “stop-loss” order that prevents soldiers from leaving the military when their obligations end and multiple deployments of guard and reserve units.

Typically, retention is tracked in one-year cycles, broken down by quarters.

But the stop-loss order, which lasted 18 months, meant some battalions, instead of spreading manpower losses over a manageable period, have dropped members all at once.

Eighty percent of the unit’s soldiers affected by the order — 59 of 74 Guard members — did not re-enlist, Love said. The goal was to keep at least half of those troops, he said.

Engadget posts today about some inovative technologies being employed to catch car theifs:

Perhaps all those X10 ads that plagued the web planted a tiny seed somewhere and now that seed has become a mighty oak. Cops are using some cool to tech to catch car thieves with “bait cars” and they need to—a car is stolen every 27 seconds in the USA. These cars have keys left inside, and the cars are loaded with cameras and GPS satellite trackers. They even program the bait car stereo to play a familiar song once the suspects are surrounded, the theme song from “Cops”.

The Indianapolis Star is providing coverage of an intriguing case where the State’s power to pass laws for the protection and safety of its citizens is about to run smack into the religious protections of the First Amendment. The summary of the case, appearing in the paper today, is as follows:

The Schmidts are lifetime, devout members of a small Morgan County church that eschews medical treatment in favor of faith in God’s power to heal. Last week, they were charged with reckless homicide in the death of their second child, Rhiana Rose Schmidt. She was born last August at home and delivered by a family member. The baby suffered complications during birth — she was in breech position, and her umbilical cord was wrapped around her neck and arm. She struggled to breathe. The Schmidts called church elders to their home to pray for the child, who died after two days. Her death, the coroner ruled, was caused by sepsis — an infection of the blood that can be caused by unsanitary delivery conditions. It can be treated with antibiotics.

Last week, a grand jury in Johnson County, Indiana indicted the couple (of what I, I am not sure). I think this case provides an interesting perspective on the pro-choice/right-to-life debate on abortion:: What are the limits on the state in dictating the choices we make for our children, especially if those choices are based on religious belief?

Marcia J. Oddi, from the Indiana Law Blog, has coverage (and here)of a new decision from the Indiana Court of Appeals in which the court struck down a sentence for murder because of the trial judge’s comments on the defendant’s race at sentencing. The Indianapolis Star quotes the trial judge as stating “I think in light of these facts of this case, it’s going to make people more concerned about people of color being in their neighborhoods,” Bartholomew Superior Court Judge Chris D. Monroe said, according to a transcript in the Court of Appeals decision. The Court of Appeals responded:

[W]e are very uncomfortable with the trial judge’s reference to the fact that Williams is African-American and the victim is white as an aggravating circumstance. While the trial judge’s concern over race relations in the community is laudable, his use of Williams’ race to address that concern during the sentencing proceedings was impermissible. * * *

Because of the serious nature of the offense, I imagine the Attorney General will seek transfer to the Indiana Supreme Court, but maybe Mr. Carter will not want to stand up for these comments when he is facing an election fight.

A local company in the business of providing internet access has run into some trouble with the state. The state claims the company is not really and ISP, but a “payday” loan operation. As such, the state claims it had to register and get permission to operate, plus the state accused the business of usury (charging more than the permitted rate of interest). The state got an injunction, forcing the company to stop operations. This initial action was affirmed by the Court of Appeals. What interested me about the decision, was the Court’s description of operations:

Short on Cash purports to be an Internet service provider. Customers that purchase Internet service from Short on Cash receive an immediate cash rebate of one hundred dollars per Internet account opened. In exchange, the customer commits to a one-year Internet contract with Short on Cash and is obligated to make bi-weekly payments of twenty dollars for Internet service. If the customer terminates the contract prior to the expiration of the one-year period, he or she is obligated to repay the one-hundred-dollar rebate. Short on Cash does not limit the number of accounts that its customers may open. However, for each account opened, the customer receives a one hundred dollar rebate and is obligated to make bi-weekly payments of twenty dollars for the one-year contractual period.
Short on Cash customers have unlimited access to the Internet from their home computers. However, those that access the Internet from the computer located on Short on Cash’s premises are limited to one hour of access per two-week period. In January of 2001, Short on Cash had a total of 100 to 120 customers; of this number, approximately twenty-five customers accessed the Internet from their home computers.

Just in case anyone is dubious of the nature of this deal, the Court dropped a footnote to clarify:

by charging biweekly payments of twenty dollars for the contractual period, in exchange for the one hundred dollar rebate, Short on Cash receives finance charges or profits in the amount of 20% of the principal or rebate, at a minimum, and 420%, at a maximum,—i.e., $520 minus $100 equals $420 divided by 100 equals 420%—per account. These excessive finance charges are in violation of Indiana Code Section 24-4.5-7-201.

Under Indiana law (IC 10-13-6-10), people who are convicted of particular criminal offenses must submit a DNA sample which is then incorporated into the State DNA database. This law takes effect after the person is convicted of a criminal offense, not because the state has shown and cause to believe that they have committed some other offense. The right to be free of a search of your genetic code by the government is one of those liberties you give up because of the conviction of a crime.

This law is being challenged by a public defender in Muncie, Indiana. His client was a suspect in a child molestation. He had previously been convicted of burglary back in 1999, and was on probation, but the state did not have a DNA sample from him. However, the state pursued him for violating his probation because he did not pay restitution as ordered, and the trial court revoked his probation, sending him back to prison. The only trouble was, the court of appeals reversed the probation revocation, because the state waited too long to file it after it was discovered that he had not paid. The defendant also challenged the taking of the DNA sample, but this issue was denied for technical reasons (he challenged the DNA test at first because his probation did not require DNA sampling). [The Court of appeals noted that his argument on appeal was “thorough and well-researched,” a rare compliment, but fruitless nonetheless]

Now he stands charged with a number of rapes in the area, based on DNA matching, and is again challenging the constitutionality of the mandatory testing statute. Specifically, he is claiming that the state must meet the requirements of the 4th Amendment before forcing him to undergo a search of the genetic code. News coverage is here.

From the always thoughtful and insightful divorce blog, Domestic Diversions, a comment on teenagers and the divorce process/aftermath.

Withholding information from one parent to avoid punishment or to solidify a relationship with another parent. Children can gain an upper hand by controlling information flow because, following a separation or divorce, there is often reduced communication between parents.

Moving from one home to another. Children often move into the home of the parent who is less controlling. They do this to punish the other parent or to escape a situation they don’t like.

Parents are often coconspirators in this process, not realizing the damage they can inflict on their kids. The kids who I have seen do the best post-divorce are the one where the parents act like adults, even if they cannot take life with eachother anymore, they still maintain a solid front to their kids.