March 22, 2008
Federal prisoner provides clemency test for a compassionate conservative
A federal inmate is asking President Bush for clemency so he can be with his daughter, who's dying of brain cancer in Lincoln. Jason Yaeger is in a federal prison in Yankton, South Dakota, serving four years on methamphetamine charges. He's scheduled to be released next year.
But that may be too late for 10-year-old Jayci, who is too weak to respond when her father talks to her on the phone. Yaeger says he's not trying to get out of his sentence. He says the request for clemency is a last resort after the warden refused to move him to a Council Bluffs halfway house, as well as Yaeger's request for a furlough.
He's also filed a court injunction, asking for an immediate transfer to the halfway house, where he's scheduled to be transfered in August.
Show me support for capital child rape laws
As detailed in this official press release, "Gov. Matt Blunt and members of the Missouri General Assembly filed a brief with the U.S Supreme Court today in support of a Louisiana law allowing the death penalty as an appropriate form of punishment for an individual convicted of child rape." Here are more specifics from the release:
“Violent sex offenses against children are unspeakable crimes, crimes so horrific that they defy comprehension and demand harsh punishment,” Gov. Blunt said. “Crimes like these deserve the most serious punishment we can possibly deliver. I strongly support legislation allowing the death penalty for convicted child rapists. As we seek legislation to allow this punishment in Missouri, we have filed a legal brief with the U.S. Supreme Court supporting Louisiana in their fight to better protect innocent children from deviant sexual predators.”
Gov. Blunt and members of the Missouri General Assembly filed an amici curiae, or “friends of the court” brief, asking the U.S. Supreme Court to clarify previous rulings that the Eighth Amendment does not prohibit the death penalty for child rapists. The brief also argues that the court should not preclude a national debate on this issue and allow states to form a consensus.
Too much great stuff around the blogosphere
Here are lots of posts (with lots of questions and food for weekend thought) from some of my regular reads:
- From Balkinization, "Strict Scrutiny for Second Amendment Rights?"
- From Concurring Opinions, "Is Baseball the Fairest Sport?"
- From Convictions, "Two Strikes and You're Violent?"
- From Grits for Breakfast, "Drug offenders dominate new prisoners from probation revocation"
- From Pardon Power, "Campaign 08: Mrs. Clinton and the Disown-Distance Dance"
- From PrawfsBlawg, "Retributive Damages: Some Recent Normative Scholarship"
- From Sex Offender Issues, "Former Jackson County deputy avoids prison time in teen’s sex abuse case"
- From TalkLeft, a bunch of notable criminal justice stories
- From WSJ Law Blog, "Zach Scruggs, Son of Dickie, Pleads Guilty to Misprision Charge"
I have an interest, but lack the time, to opine on all of these (very diverse) blogospheric insights. If readers in the comments report a particular interest in any of these posts, I'll be eager to chime in while keeping an eye on my brackets.
March 21, 2008
More great (NCAA) sentencing reading from SSRN
A bunch of new pieces on SSRN seem worthy of a weekend look, especially if (when?) your bracket blows up. Here are the titles and links:
- Against Judgment by Katherine Barnes
- Naïve Cynicism: Maintaining False Perceptions in Policy Debates by Adam Benforado & Jon D. Hanson
- Dialogic Allocution: Deliberative Democracy in Sentencing Law by Felix Valenzuela
How do sophisticated lawyers negotiate sentencing terms?
The WSJ Law Blog here and here provides effective coverage and links concerning famed lawyer Mel Weiss's decision to enter a deal to agree to plead guilty in a case alleging improper kickbacks. The plea deal can be accessed here, and it is an interesting read.
I was particularly interested in paragraph 15, which sets forth the agreed upon sentencing terms. And for some reason the parties came up with a range of 18 to 33 months imprisonment. I think they got these terms from the top and botton of a range of guideline ranges, but it is fun to just speculate about how the big-time lawyers on both sides approached this part of the plea negotiations.
Notable new journal with some innovative weekend reading
I just got an e-mail announcing an interesting new journal than would-be criminal justice reformers will want to be sure to check out. Here is the text of the e-mail with links:
I'm writing to announce the publication of the first issue of the Journal of Court Innovation, a new journal that we have created in collaboration with Pace Law School and the New York State Judicial Institute.
The goal of the Journal is simple: to spark new thinking about how courts work and the role they play in our society. Along the way, we hope to bridge the worlds of theory and practice. Like most scholarly journals, the Journal of Court Innovation will include in-depth examinations of complicated subjects. But it will also contain shorter pieces describing provocative experiments, interviews with leading thinkers and practitioners, and book reviews that highlight cutting-edge scholarship.
I think our first issue gives you a sense of the rich diversity of content that you can expect from the Journal going forward. The first issue includes articles about using the Internet to impanel jurors, how to smooth the transition of parolees from prison to the community, and the lessons that can be learned from failed criminal justice reforms. To subscribe to the Journal or to access articles from the first issue, visit http://www.courtinnovation.org/journal.html
Some (final?) thoughts on politics, prosecution and punishment
Reviewing today's headlines in the New York Times in my in-box, these two indirectly related items seemed to justify some criminal justice reflection and commentary:
- From the front page: U.S. Defends Tough Tactics With Spitzer: "The Justice Department used some of its most intrusive tactics against Eliot Spitzer, examining his financial records, eavesdropping on his phone calls and tailing him during its criminal investigation."
- From the op-ed page: After the End of the Affair: "Whatever Eliot Spitzer's and David Paterson's sins, just surviving infidelity in America may be punishment enough."
Especially in the wake of so many high-profile federal prosecutions for lying — ranging from Martha Stewart to Victor Rita to Scooter Libby to Barry Bonds — I found this passage from the op-ed intriguing:
We Americans are particularly preoccupied with honesty. We're the only country that peddles the idea that "It's not the sex, it's the lying." (In France, it's not the lying, it's the sex.) America is also the only place I found that has a one-strike rule on fidelity: if someone cheats, the marriage is kaput.
We might not strictly hold ourselves to this script, but we expect our politicians to follow it. That's why people doubted that Bill and Hillary Clinton could have a "real" marriage if she stayed with him after the Lewinsky affair....
In my view, I actually think it is combination of the sex and the lying that really troubles most Americans. Indeed, this combination proved deadly for Patrick Kennedy: he became the first person place on death row for a child rape offense in part because he refused to admit to his crime (Louisiana prosecutors likely would not have sought — and surely would not have secured — a death sentence had Kennedy admitted guilt). Then again, Bill Clinton was involved in the sex and in the lying under oath all while being the President of the United States, and his only formal punishment ended up being the loss of his law license. Hmmm.
March 20, 2008
Should dying child justify a federal sentencing break?
A helpful reader sent me this remarkable local story that has to make every sentencing theorist (not to mention ever federal prison official) think hard about modern notions of justice and mercy:
The story of a 10-year-old Lincoln girl who is dying of brain cancer's one dying wish spurred a lot of e-mail to KETV NewsWatch 7. Jayci Yaeger wants her father to be at her bedside, but that isn't likely to happen since Jason Yaeger is in a federal prison in Yankton, S.D.
Vonda Yaeger is pleading with the warden for compassion to grant her daughter's wish. "She wants her dad. She goes to her room crying because she wants her dad," Yaeger said.
Jason Yaeger was convicted of methamphetamine charges nearly five years ago and is scheduled to be released next year. "We've never asked them to release him early. Never asked them to change anything. We've asked them to just give him some time to be here," Vonda Yaeger said.
Several KETV NewsWatch 7 viewers said they've e-mailed the warden themselves after reading the story. Kevin Burton said he e-mailed a link of KETV's story to the warden, along with a note that said in part: "I feel heartbroken for this little girl. It sounds like a drug charge, and not a more serious crime. As a father of a young daughter myself, I hope that there is more to this story. I would hope in cases such as this some compassion can be shown and reasonable accommodations taken that safeguard the public, honor the judiciary, but still let this little girl see her father while she is still living."....
Another viewer suggested starting a nationwide petition to get Jason Yaeger to his daughter before she dies.
Jayci Yaeger has been allowed three escorted visits with her father, but each trip lasts only a couple of hours and costs the family hundreds of dollars. Requests for longer furloughs have been denied. "They say it doesn't constitute an extraordinary circumstance," Vonda Yaeger said.
The Federal Bureau of Prisons Web site states its policy -- that furloughs can be allowed for a family crisis and that decision is left to the warden. "We've asked them numerous times, 'What is an extraordinary circumstance?'" said Vonda Yaeger. "They danced around it. They don't give you a direct answer."
Jayci still gets calls when her father can manage. "He talks to her. We put the phone to her ear and she cries," Vonda Yaeger said. She said there have been several times she didn't think Jayci would make it through the night, but she somehow keeps fighting. "I feel she's hanging on for her dad," Vonda Yaeger said. The family said that what makes the situation even more difficult is that Jason Yaeger is scheduled to be transferred to a half-way house in Council Bluffs, Iowa, in August. That would make it possible to visit Jayci, but her mother said it will probably be too late.
Sentencing justice through collateral consequences?
I encourage readers to comment on whether they feel as though justice has now been (better?) served in light of this AP story:
Former top White House aide I. Lewis "Scooter" Libby was banned Thursday from practicing law in the nation's capital following his perjury conviction in the case of a CIA operative's leaked identity. The disbarment order of the U.S. Court of Appeals for the District of Columbia had been expected.
"When a member of the bar is convicted of an offense involving moral turpitude, disbarment is mandatory," the appeals court ruled. Last May, a court panel that oversees lawyer ethics recommended that Libby be stripped of his law license in Washington. The Board on Professional Responsibility then found that Libby's conviction for lying to the FBI about the case of former CIA operative Valerie Plame amounted to "crimes that involve moral turpitude."
"This action is required by the rules following a conviction regardless of the merits of the case, and for that reason Mr. Libby expected and did not oppose the court's order," said Libby attorney William Jeffress.
A tough sentence (but not tough enough?) for tenth DWI offense
Regular readers know that I am often complaining that repeat drunk drivers often do not seem to get tough enough sentences. So I was pleased to get this local story from Texas about one state sentencing judge finally getting really tough on a defendant for his TENTH conviction for DWI. Here are the details:
A Taylor man was sentenced to 60 years today for his 10th driving while intoxicated conviction. Anthony Lynn Falco, 54, was arrested in June for failing to use a turn signal while driving north on Mays Street in Round Rock.
He admitted that he’d been drinking beer at a Round Rock bar and failed field sobriety tests. Falco refused a breath sample, but a blood search warrant was obtained, according to a release by Williamson County District Attorney John Bradley. The sample showed that he had more than two times the legal limit of alcohol in his blood, Bradley said.
Falco has nine previous DWI convictions, the first of which came in 1979, Bradley said. On his last three DWI convictions, he also served prison terms. He will not be eligible for parole for 15 years.
Candidly, I am a bit troubled that this very dangerous repeat criminal will ever be eligible to be free to drive again, but maybe by 2023 we will have developed a technology that can truly ensure that this repeat offender is completely incapacitated and unable to put innocent lives at risk yet again. If not, I hope he does not get granted parole.
Some related posts about getting tougher on drunk drivers:
Some related posts:
- Getting tougher on drunk driving
- Why do we worry so much more about sex offenders than drunk drivers?
- Technology versus toughness to combat drunk driving
- Undue leniency for drunk drivers?
- More discussion of leniency for drunk drivers
- Why do we worry so much more about sex offenders than drunk drivers?
- Is capital punishment for drunk driving morally required?
- Technology versus toughness to combat drunk driving
Important report from NC about (not) implementing new crack guidelines
This Charlotte Observer story, headlined "N.C. slow to cut crack sentences," provides a fascinating account of the challenges in implementing the new retroactive crack sentencing guidelines. Here are snippets from a must-read (with key points for commentary in bold):
Federal judges across the country have released hundreds of crack cocaine inmates or reduced their sentences under new guidelines that took effect this month. But in North Carolina, the courts have shortened sentences for just three people, public defenders say.
At least 14 other inmates prosecuted in the Charlotte region qualify for immediate release but remain incarcerated, according to Claire Rauscher, public defender for Western North Carolina. More prisoners statewide may be in the same situation, according to officials who are examining records to determine who is eligible....
Court officials say they are working as quickly as possible through caseloads among the largest in the nation. They said they would resolve more cases in coming weeks. "This is a new law and the first couple of weeks always take the longest," said Frank Johns, clerk of the U.S. District Court for Western North Carolina, which covers Charlotte....
Prisoners in other states have moved faster through the courts. As of Friday, the federal government said it had received about 1,900 court orders reducing prisoners' sentences.
At least 400 court orders were received the week of March 3, the day the new guidelines took effect, said Michael Nachmanoff, public defender for the U.S. District Court for Eastern Virginia. Nachmanoff said at least seven offenders from his district were immediately released from prison March 3 because the courts started working on the cases in February. "There are many districts that have had success," Nachmanoff said. "Unfortunately, North Carolina is behind the curve."...
Of the 14 remaining Western North Carolina cases where public defenders have pending requests for an inmate's immediate release, almost all have been delayed because the U.S. Attorney's Office has failed to file paperwork, said Rauscher, the public defender.... Rauscher said most of the inmates eligible for immediate release are nonviolent offenders. They live in halfway houses. "I'm very frustrated," she said....
A spokeswoman for Western North Carolina U.S. Attorney Gretchen Shappert declined to comment. Shappert has been an outspoken critic of the sentence reductions, testifying to the Sentencing Commission last year that it would put dangerous criminals back on the streets. Shappert testified that their release would harm law enforcement successes that help make neighborhoods in Charlotte and elsewhere less violent. "Crack dealing is not a victimless crime," she said. "It holds entire communities hostage."
Though I am not one to quickly throw around serious accusations, this press report suggests a kind of "prosecutorial nullification" might be keeping some NC defendants in federal prison longer than justice demands. As the article explains, the US Attorney in this key NC district is personally against allowing any crack defendants getting reduced sentences. She certainly can and perhaps eventually will make these arguments to the federal judges considering defendants' motions for reduced sentences. But rather than make her arguments in each case and letting a judge decide (as the law now requires), it appears the US Attorney in this key NC district may be indirectly blocking the consideration of these motions for reduced sentences by failing to file needed paperwork.
I hope anyone directly involved with or knowledgeable about what is going on in the Western District of NC might report on whether my concerns about "prosecutorial nullification" are founded. Of course, a recent case around Duke reminds us that some prosecutors in North Carolina can be motivated by concerns other than true justice. I hope the facts of what's going on in this new setting does not prove to be another case of an NC prosecutor gone wild.
March 20, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (30) | TrackBack
Around the blogosphere
Lots of good new stuff for sentencing fans at:
- Capital Defense Weekly
- Crime and Consequences
- Grits for Breakfast
- Pardon Power
- White Collar Crime Prof
March 19, 2008
Great new paper on prosecutorial choices in Mizzou
This new paper from SSRN provides fitting companion reading to today's Supreme Court work in Snyder (basics here). The piece is entitled "Life and Death Decisions: Prosecutorial Discretion and Capital Punishment in Missouri," and here is the abstract:
This article presents the results of an empirical study of intentional homicide cases in Missouri. The authors created a database of 1046 cases; it includes substantially all of the homicide cases prosecuted in Missouri over a five year period that were initially charged as murder or voluntary manslaughter and that yielded criminal convictions. The authors selected 247 cases from the larger database for more detailed analysis. We analyzed geographic and racial disparities in the rates at which: prosecutors charge first-degree murder versus lesser charges; prosecutors seek the death penalty, not lesser punishments; defendants are convicted of first-degree murder versus lesser crimes; and defendants are sentenced to death, not lesser punishments.
The Missouri statute gives prosecutors very broad discretion. We estimate that at least 76 percent of the cases in the database are death-eligible under the statute. However, prosecutors pursued capital trials in only about five percent of the cases. Thus, death-eligible cases in which prosecutors chose not to pursue capital trials comprise at least 71 percent of the cases in the database. Prosecutors in different counties exercise their discretion differently, leading to substantial variation in charging and sentencing practices in different counties across the state. The analysis of cases by race of victim and race of defendant shows that there are racial disparities in charging and sentencing decisions, but the racial disparities are not as significant as the geographic disparities. The article presents measures of racial and geographic disparities without controlling for individual culpability; a follow-on study will introduce culpability measures as control variables.
SCOTUS overturns "OJ death sentence" in Snyder
As detailed here at SCOTUSblog, "Supreme Court ruled 7-2 on Wednesday that the trial judge in a Louisiana murder case — one that involved a prosecutor’s use of the O.J. Simpson case to try to help win a death sentence against a black man — was wrong in rejecting a challenge to the denial of a seat to one black juror." Thanks to SCOTUSblog, the decision in Snyder v. Louisiana can be downloaded here.
The voting pattern may be the most interesting aspect of this ruling: "ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined."
Especially at a time when we are having a national political dialogue about race, I will have a lot of reflections on this case (and on the complexion of the Supreme Court Justices) in future posts. For now let me make one notable observation: Senator Obama's speech yesterday mentioned O.J. (with a reference to the "OJ trial"), but did not mention Associate Justice Clarence Thomas. I wonder how that made both Justice Thomas and O.J. Simpson feel.
Is the editorial board of the Denver Post omniscient or just obtuse?
Commenting on a Colorado bill that proposes making a second offense of child rape a capital offense, this Denver Post editorial boldly asserts in its headline that "Death penalty for rape doesn't protect children." Tellingly, the text of the editorial is a little more nuanced on whether a capital child rape law could protect kids, and it also shows how opposition to the death penalty is a contributing factor to mass incarceration and extremely long prison sentences:
A bill pending in the Colorado Senate that would authorize a death sentence on a second conviction of raping a child could backfire by giving some of society's most vicious criminals a perverse incentive to kill their victims.
Senate Bill 195 by Sen. Steve Ward, R-Littleton, would authorize the death penalty for people who sexually assault a child 12 years or younger if DNA evidence links them to the crime. Ward's bill also could discourage victims from reporting abuse by relatives, fearing they'd get the death penalty. The Senate Judiciary Committee amended the bill to allow the death penalty only for rapists previously convicted of a similar attack on a child. It then sent the bill to the Appropriations Committee, where it should receive a quiet burial.
The Post has historically opposed the death penalty. But even supporters of capital punishment have strong reasons to oppose this bill. First, it endangers the very children it is designed to protect. If the penalty for rape alone is death, then a criminal vicious enough to make such a heinous attack in the first place may reason that he faces no further penalty for killing the victim. Granted, most rapists would not even think that far down the road, but why provide the incentive for those who might?
Whether or not the death penalty deters crime at all is a subject of endless debate. But what influence the law does have should always be aimed at shielding victims from even worse harm. Colorado law already allows a death penalty for a rapist who kills his victim. By executing for rape alone, Ward's bill strips victims of whatever protection they now receive under that law.
We share Ward's outrage at the kind of sick people who would rape children — but why wait for a second such heinous offense to crack down on these criminals? Current law allows sentencing child rapists to 20 or 30 years, depending on the circumstances of the crime. If the legislature wants to get tough, why not allow a life sentence on the first offense in the worst cases and thus preclude the possibility of a second offense? That's the best way to protect children.
This editorial, in my view, highlights everything wrong with modern death penalty abolitionist arguments:
- First, despite the usual denials by abolitionists that the death penalty could be an effective deterrent, the editorial uses a fuzzy and highly-suspect reverse-deterrence argument to contend that a capital child rape law could would hurt children.
- Then, in an effort to save repeat child rapists from even the possibility of capital punishment, the editorial argues that other offenders (first offenders) should be subject to longer terms of imprisonment.
- Throughout we get no real evidence or data, just false assertions and excessive confidence that life sentences (but not the possibility of death penalty) provide "the best way to protect children."
This stuff drives me crazy and, as I have tried to explain in some prior posts, may promote the worst of all possible criminal justice worlds for children and everyone else:
Effective reports on sex offending
As detailed here, the Deseret Morning News (in Utah) has published a four-part series on sex offending. Here is how they describe the series and links to the article:
Deseret Morning News reporters Lucinda Dillon Kinkead and Dennis Romboy spent three months investigating sex offenders in Utah. They spoke with 85 people whose lives have been affected by the pervasive and gut-wrenching issue of sexual abuse. This four-day series explores the widespread, growing problem that is exhausting the criminal justice system and traumatizing families.
March 18, 2008
Imagining post-Heller federal felon-in-possession litigation
I want to unpack a little more fully the basis for my post-Heller argument post, titled "Get ready for a Second Amendment rumble, defense attorneys." That post was largely inspired by the fact that, as Lyle Denniston puts it here, expected Heller swing voter "Justice Anthony M. Kennedy emerged as a fervent defender of the right of domestic self-defense." As I suggested here yesterday, the impact of Heller on federal felon-in-possession prosecutions could be significant if an enforceable Second Amendment right is conceptually premised on a robust right of domestic self-defense.
To explicate my instincts here, consider how this op-ed from Robert Levy, a catalyst for the Heller litigation, concludes:
At root, the Heller case is simple. It's about self-defense: individuals living in a dangerous community who want to protect themselves in their own homes when necessary. The Second Amendment to the Constitution was intended to safeguard that right. Banning handguns outright is unconstitutional.
As federal criminal law buffs know well, 18 U.S.C. 922(g) categorically prohibits any persons who has ever been "convicted in any court of a crime punishable by imprisonment for a term exceeding one year" to ever at any time or for any reason "possess... any firearm or ammunition." In short, 922(g) makes it a federal crime for any person who has ever been convicted of any felony to ever possess any firearm (insider or outside homes), and this blanket federal ban on all felon gun possession is punishable with up to 10 years of imprisonment.
But when someone is convicted of a single non-violent felony — say someone named Libby convicted of lying under oath or named Snoop convicted on a drug charge or named Martha convicted of obstruction of justice — that person would not seem to completely and forever forfeit the (natural?) right of domestic self-defense. Thus, if we get a Kennedy-esque self-defense-focused ruling in Heller, at least some felons can and should hope to be covered by whatever individual rights get recognized in Heller. (Indeed, persons with a felony records are probably more likely than non-felons to live in dangerous communities and to get less-than-adequate police protection, and thus felons may genuinely need the protection of a Second Amendment right of domestic self-defense a lot more than non-felons.)
Does this mean that a Kennedy-esque self-defense-focused ruling in Heller will lead to a ruling that 18 U.S.C. 922(g) is categorically unconstitutional? Absolutely not. But does this mean that a Kennedy-esque self-defense-focused ruling in Heller will lead to a lot of new Second Amendment litigation in the context of felon-in-possession prosecutions. Absolutely. And that is the reason why, in my view, Solicitor General Paul Clement has been so unsolicitous of a broad Second Amendment ruling in Heller.
UPDATE: Kent writing here at C&C about Heller explains why the CJLF did not file a brief in the case. Reading between the lines of the post, I surmise that Kent agrees that a very broad Second Amendment ruling could raise new legal questions about "the authority of the government to punish more severely people who use guns to commit crimes and to bar possession of guns by convicted felons."
Busta Rhymes doesn't have to worry about bustin' out
As detailed in this AP report, a "judge sentenced Busta Rhymes to three years' probation Tuesday for assaulting his former driver and a fan, and warned the rapper to stay out of trouble." Here are more details:
The 35-year-old Rhymes, whose real name is Trevor Smith, was also ordered to perform 10 days of community service; pay a $1,250 fine, plus court costs; and enroll in a drunken driving program. After the sentencing, Rhymes said the terms of the plea deal won't be a problem. "I have no trouble being a good dude because that's what I am," he said.
Scott Leemon, Rhymes' lawyer, said a private agency called Rock Corp. will work out the community service program. He said he doesn't know yet what it will be. He also said Rhymes has paid most of the fines and surcharges he owed.
Manhattan Criminal Court Judge Larry Stephen put Rhymes on notice that he must abide by the conditions of his probation. "If you mess up, you're going to jail," he said. "I've given you a chance."
Rhymes said after the sentencing, "I couldn't feel better, and this couldn't have happened at a better time. I thank the judge for giving me a chance and I thank everybody for being supportive." The rapper said he wanted to get back to "having fun, making music, running around and showing love."
Looking at capital child rape's constitutionality through the Atkins/Roper lens
Over at CrimProf, Mike Mannheimer has this great extended post titled "Role Reversal in Kennedy v. Louisiana: Or What's Sauce for the Goose . . . ." Here are snippets from the start of the post:
Last night, the death penalty seminar I teach did a moot court of Kennedy v. Louisiana, presenting the question whether capital punishment is unconstitutionally disproportionate to the crime of the rape of a child.... The thing that struck me most after reading the briefs and participating in the moot was the sense of role reversal from Atkins v. Virginia and Roper v. Simmons. Kennedy is almost the mirror image of those cases in several respects.
As I have suggested in a number of prior posts (and will explain more fully as next month's oral argument approaches), there is an extraordinary potential richness to the Kennedy case. I am expecting — or at least hoping — that Kennedy ends up as one of the most consequential Eighth Amendment rulings in a long time. And that may be true no matter what the exact outcome in this case.
Some related posts on the Kennedy case and capital child rape legislation:
Get ready for a Second Amendment rumble, defense attorneys
In what I view to be good news for federal criminal defense attorneys, it appears from today's oral argument that the Supreme Court may be headed toward recognizing an individual right to armed self-defense protected by the Second Amendment. Here is how Lyle Denniston at SCOTUSblog sees matters after the Heller oral argument:
The Supreme Court’s historic argument Tuesday on the meaning of the Constitution’s Second Amendment sent out one quite clear signal: individuals may well wind up with a genuine right to have a gun for self-defense in their home. But what was not similarly clear was what kind of gun that would entail, and thus what kind of limitations government cut put on access or use of a weapon. In an argument that ran 23 minutes beyond the allotted time, Justice Anthony M. Kennedy emerged as a fervent defender of the right of domestic self-defense.
As I have highlighted in lots of prior posts (some of which are linked below), if individuals are recognized to have an enforceable right to have a gun for self-defense in their home, I think there could be real constitutional problems with broad federal laws that prohibit all felons from possessing any guns in any settings AND severe sentencing laws that might unduly chill an individual's efforts to keep guns safely in her home.
Some prior posts on Heller and the Second Amendment's potential impact on criminal justice realities: