March 28, 2006
More on push to reform California's 3-strikes law
Providing continuing coverage of an important reform movement in California, this AP article details that a proposal for revising California's tough 3-strikes law has a surprising advocate:
The lead voice urging voters to reconsider California's tough "three strikes" sentencing law belongs to an unlikely advocate for change: one of the state's top lawmen. Los Angeles County District Attorney Steve Cooley is pushing for a ballot measure he believes would make prison terms more just by reforming guidelines voters passed amid an early 1990s crime wave.
Cooley says his motivation is twofold. He wants the punishment to fit the crime and believes current guidelines — the toughest in the nation — can be too harsh. He also worries that Californians eventually will overhaul sentencing law, and he wants reform done right. "We're fixing three strikes in order to save it," says the Republican prosecutor who leads the country's largest district attorney's office.
One result could be that hundreds, perhaps thousands, of inmates would be sentenced to shorter terms or set free.
Related prior posts:
Editorial lauding post-Booker sentencing system
Sunday's Milwaukee Journal Sentinel included this effective editorial about federal sentencing, which endorsed current post-Booker realities. Here is a snippet:
Early last year, the nation's top court changed how federal judges set the sentences they issued. Before the Supreme Court decided United States vs. Booker, judges had to fit sentences within specific limits. Afterward, they could treat those limits as suggestions, not mandates. The switch served the cause of justice....
The old system straitjacketed judges too much, such as Utah's U.S. District Judge Paul Cassell, known as a hard-line conservative. He lamented from the bench that he had no choice but to put a first-time offender in prison for 55 years for dealing marijuana. Justice demands that judges be allowed to exercise discretion. Otherwise, you may as well replace him or her with a computer program.
The rationale behind mandatory sentencing is that it keeps punishment uniform. But it only seems to do so. It simply transfers discretion from the judge to the prosecutor, who exercises it by choosing which charges to bring or whether to bring any at all. Prosecutors use the draconian sentences as a club to extract plea bargains. The system allows U.S. attorneys to dish out leniency in exchange for cooperation. Thus, suspects with much information to trade can get light sentences. One consequence is that drug ringleaders have gotten much shorter sentences than defendants only tangentially connected to the ring, such as a leader's girlfriend, since the latter has little information to swap. Giving the judge discretion can prevent such injustices.
Newspaper article on the "trial penalty"
Monday's Pittsburgh Post-Gazette included this effective article about federal plea and sentencing realities, entitled "Plead guilty or go to trial? System unfairly rewards one, penalizes other, lawyers say." Here is the article's introduction:
In the criminal justice system, defendants in federal court can be convicted one of two ways -- by pleading guilty or after a trial. Those who choose to admit their guilt are often "rewarded" with lesser sentences. Those who choose to take advantage of their Constitutional right to trials are often "penalized" with harsher sentences.
Prosecutors argue that guilty pleas are essential, and without them the system would be crippled by thousands of cases backlogged for trial. Further, they think that defendants who take responsibility for their crimes deserve to benefit.
Defense attorneys and some academics, though, argue that the system is so skewed that most clients are forced to accept pleas, knowing that if they take their chances at trial and lose, they will face sentences that are at least 25 percent higher.
Fifth Circuit again affirms above-guideline sentence
Continuing a well-established reasonableness review pattern, the Fifth Circuit on Monday affirmed an above-guideline sentence in US v. Jones, No. 05-60152 (5th Cir. Mar. 27, 2006) (available here). Here is the opening paragraph from Jones:
Robert Jones pleaded guilty to possession of child pornography in violation of 18 U.S.C § 2252A(a)(5)(B). At sentencing, which occurred after the United States Supreme Court decided United States v. Booker, the district court sentenced Jones to the statutory maximum prison term of 120 months, which was beyond the 46-to-57 month range calculated under the Guidelines. Jones challenges his sentence on three grounds, claiming, for the first time on appeal, that (1) in violation of Federal Rule of Criminal Procedure 32(h), he did not receive notice before sentencing that an upward departure was contemplated or notice of the grounds for that departure, (2) the district court based its decision to depart upwardly on impermissible factors, and (3) the sentence is unreasonable. Because we conclude that plain error has not been shown, we affirm Jones's sentence.
March 26, 2006
Pondering the re-argument in Kansas v. Marsh
Last month in this post, I expressed surprise that the Supreme Court did not order re-argument in any of the capital cases that were first argued before Justice Alito's arrival. However, as detailed by SCOTUSblog and How Appealing, the Court on Friday did decide it needed re-argument in Kansas v. Marsh(posts here and here provide some background ). This AP story about the reargument order, as well as reactions from folks in Kansas.
Because I am not an expert on the internal deliberations of the Court, I cannot provide any educated speculation as to why the Court has only now decided it needs Justice Alito's help to resolve this case. Perhaps readers might suggest theories about what's happened in Marsh in the comments.