October 10, 2005
Miers, religion, and criminal justice issues
As the buzz over the Miers' nomination continues to rage in the media and the blogosphere, the debate remains fascinating across many dimensions. And yet, as was the case during CJ Roberts' confirmation hearings, no attention is being given to criminal justice issues (even though these issues comprise nearly half of the Supreme Court's docket). Despite Miers' service on the board of Exodus Ministries, a spiritual organization devoted to assisting prisoner re-entry, and her vocal advocacy for better funding of criminal defense, none of the historical exegeses or political punditry or doctrinal speculation in the media or the blogosphere has explored how a Justice Miers might impact a Supreme Court divided on a number of important criminal justice issues.
An issue getting a lot of attention is religion and the significance of Miers' status as an evangelical (see this Washington Posteffective review). Of course, the religion conversation in other fora quickly moves to a discussion of what Miers' faith might mean for cases involving abortion or homosexuality. But in this forum, I have to spend a little time ruminating about what religion and faith can mean for views on criminal justice issues.
Consider first, as but one dimension of this issue, that Chuck Colson was one of the participants in the "buck up, conservatives" conference call about Miers last week. Colson's chief work these days is with Prison Fellowship, and this bio calls him "one of the nation's influential voices for criminal justice reform." And recall that, back in March, Colson wrote a powerful op-ed in which he called America's approach to criminal justice "a flawed policy" and advocated alternatives to imprisonment for non-violent offenders.
Another variation on this theme concerns the death penalty, which occupies a huge place on the Supreme Court's docket. My understanding is that evangelicals are generally supportive of the death penalty, though the relationship between religious views and the death penalty is always nuanced (as is well documented at this helpful overview webpage and this page from the Pew Forum). Combining Miers' faith with her concerns about the inadequacies of indigent defense might make for some distinctive views on a range of capital punishment issues.
Moreover, as I noted when examining whether there is a new right on sentencing issues, concepts of redemption and forgiveness have often made religion a progressive criminal justice force in various areas. In this recent post, for example, I noted a letter from Charles Thomas, Executive Director of the Interfaith Drug Policy Initiative, which asserted that "most major religious groups oppose mandatory sentencing." The comments to that post highlighted the potentially combustible mix of religion politics and sentencing politics.
Ultimately, I am not sure what the mix of religion and criminal justice means for Harriet Miers (or even for my own view of her nomination). But I am sure these issues merit a lot more attention as we all try to figure out whether Miers should be our next Justice.
Related posts on Miers' nomination:
Related posts on religion and criminal justice:
- Religion, sentencing and corrections
- Meth, mandatories and moral values
- Is there a "new right" on criminal sentencing issues?
- More evidence of a new sentencing reform politics
- Sentencing and Religion
- Having faith in prisons
- Sister Prejean powerful perspective
UPDATE: I see that The Truth Laid Bair has this amazing Miers page, and a quick review confirms my sense that nobody is examining criminal justice issues.
Interesting perspective on white-collar sentencing
The Oregonian on Sunday had this interesting story about white-collar sentencing in state and federal courts. The piece spotlights that, despite long sentences in some high-profile cases recently, many "first-time embezzlers often get probation in Oregon and usually fail to fulfill requirements of restitution orders." Here are some interesting details from the article:
Compared with other criminals, [white-collar criminals] serve lighter prison sentences — if they do time at all — and it's often tough to get them to repay their victims.
In Multnomah County, for instance, authorities have collected about 11 percent of all restitution ordered in theft and aggravated theft convictions since 2000.... Last year, the U.S. District Court in Oregon ordered $10.6 million in restitution — most of it for federal white-collar crimes — and collected $1.8 million....
In 2002, nearly 80 percent of those convicted of first-degree theft, which includes embezzlement, landed on probation, according to the most recent figures from the Oregon Criminal Justice Commission. The average sentence for those who were sent to prison that year was about 12 months.
Sentences handed down in federal court aren't much tougher when it comes to clever scam artists and crooked loan officers. In 2003, Oregon's federal judges handed down an average sentence of 16 months in white-collar cases — one month more than the national average — and far less than average sentences handed down in weapons and drug crimes.
The article goes on to note, however, that "not all embezzlers get away with light sentences. The average sentences mask disparities at both the state and federal level. In some cases, it depends on where the crime was committed."
With Flanigan out, who might be #2 at Justice?
As detailed in this AP account and this longer NY Times piece, Timothy Flanigan has withdrawn as a nominee to be deputy attorney general after his confirmation had bogged down because of his dealings with indicted Republican lobbyist Jack Abramoff. I am far too "outside the Beltway" to have any idea who might be nominated in Flanigan's place, but I do know that whomever assumes the #2 spot at DOJ could have a significant influence on the shape of the post-Booker world.
October 9, 2005
Will SCOTUS notice or care about Blakely errors in Tennessee?
I discussed in this post some state Blakely cases working their way up to the Supreme Court, and among the most interesting is the Gomez case from Tennessee. State Blakely fans should recall that, as detailed here, the Tennessee Supreme Court in Gomez found Blakely inapplicable to Tennessee's presumptive sentencing scheme through a ruling which, as detailed here, seemed to rest on a misunderstanding of Apprendi and Blakely.
Significantly, all the litigants involved in Gomez, including the Tennessee Attorney General, believe the Tennessee Supreme Court got Blakely wrong in Gomez. However, in its reply to the cert petition brought by the defendant in Gomez, the state argues that plain error/waiver issues should keep the US Supreme Court from taking up the case. This cert opposition, which was filed last week and is available for download below, set up the issue in a manner that might get someone's attention on One First Street:
Respondent acknowledges, as it did below, that petitioners' sentences were imposed in violation of the Sixth Amendment as interpreted in Apprendi and Blakely, that Booker does not alter that conclusion, and that the Tennessee Supreme Court's assertion otherwise is in conflict with decisions of other state supreme courts applying Apprendi, Blakely, and Booker to similar facts. See State v. Allen, 615 S.E.2d 256 (N.C. 2005), and State v. Natale, 878 A.2d 724 (N.J. 2005). Nevertheless, for the reasons that follow, review of the question presented is foreclosed on jurisdictional grounds and, in any event, is unwarranted.